United States v. Mikel Alemin Craig

Case: 16-10083 Date Filed: 08/28/2017 Page: 1 of 13

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 16-10083
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-00032-MP-GRJ-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MIKEL ALEMIN CRAIG,
a.k.a. Black,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Florida
________________________

(August 28, 2017)

Before HULL, MARCUS, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

Mikel Alemin Craig appeals his 300-month sentence after pleading guilty to

a single count of sex trafficking by force, fraud, or coercion, in violation of 18
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U.S.C. §§ 1591(a)(1), (b)(1) and 2. After thorough review of the record and the

parties’ briefs, we affirm.

I. BACKGROUND

A. The Plea Agreement

On August 19, 2015, Craig pled guilty pursuant to a written plea agreement

to sex trafficking by force, fraud, or coercion, as alleged in Count 1 of the

indictment. Craig and the government submitted a statement of facts in

conjunction with the plea agreement describing Craig’s scheme to make money by

forcing S.D., a 19-year-old woman who was addicted to cocaine, to perform sex

acts.

Specifically, Craig posted an ad on the website Backpage.com that showed

S.D. posing in a motel room. Though the ad was posted in a section for “escort

services,” the purpose of the ad was to offer S.D. for commercial sexual activity.

S.D. then engaged in sexual activity for money with persons who responded to the

ad. According to the statement of facts, Craig coerced S.D. to engage in sexual

activity through physical violence and the threat of physical violence, and by

providing her with cocaine, which he then forced her to pay for by performing sex

acts for money. Craig collected the proceeds of and profited from S.D.’s

commercial sexual activity. The district court accepted Craig’s plea.

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B. The PSI

The probation office prepared a presentence investigation report (“PSI”). In

addition to the facts contained in the proffered statement of facts, the PSI stated

that Craig had been involved with the prostitution of at least four women,

including S.D., and that he repeatedly beat S.D., pulled out her hair, and threatened

her. [It also stated that “[i]n order to carry out the meetings between S.D. and the

customers, [Craig] recruited a driver, ‘W.S.’, to provide S.D. with transportation to

and from locations” where commercial sex acts were performed. In an interview

with law enforcement, W.S. later “corroborated the physical harms suffered by

S.D. at the hands of [Craig].”

The PSI assigned Craig a total offense level of 34 and a criminal history

category of VI, resulting in an advisory guidelines range of 262 to 327 months’

imprisonment. Included in Craig’s total offense level was a two-level increase

under U.S.S.G. § 3B1.1(c) because Craig was an organizer, leader, manager, or

supervisor in the offense. The PSI stated that the increase was appropriate because

Craig organized a prostitution scheme by creating online ads on Backpage.com,

coordinated contact between at least four adult females and customers seeking

prostitutes, and “recruited a driver to facilitate the offense by providing

transportation for the victim to the location(s) where commercial sex acts were

performed.”

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The total offense level also included a career offender enhancement under

U.S.S.G. § 4B1.1 because Craig was at least 18 years old at the time of the offense,

the offense was a “crime of violence” as defined under U.S.S.G. § 4B1.2, and

Craig had three prior felony convictions for controlled substance offenses. The

PSI stated that the instant offense was considered a crime of violence under the

elements clause of § 4B1.2(a)(1) because the statement of facts admitted to by

Craig in pleading guilty listed elements including the use of physical force and

threats of physical harm. The PSI also noted that an offense under 18 U.S.C. §

1591(a)(1) can be considered a crime of violence under the residual clause of §

4B1.2(a)(2). Neither party filed any objections to the PSI or a sentencing

memorandum.

On January 7, 2016, the district court sentenced Craig. At the sentencing

hearing, the parties were asked if they had any objections to the PSI, and both

indicated that they did not. After hearing arguments from the parties about an

appropriate sentence, the district court imposed a within-guidelines sentence of 300

months. Craig timely appealed.

Although Craig filed no objections to the PSI in the district court, on appeal

Craig raises arguments about two guidelines calculations. First, Craig argues that

the district court plainly erred in imposing a two-level role enhancement pursuant

to U.S.S.G. § 3B1.1. Second, he contends that the district court plainly erred in

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imposing the career offender enhancement because the offense of conviction was

not a “crime of violence” pursuant to U.S.S.G § 4B1.2. We discuss our plain-error

standard of review and then Craig’s claims on appeal.

II. STANDARD OF REVIEW

Ordinarily, we review a district court’s interpretation of the sentencing

guidelines de novo and its factual determinations for clear error. United States v.

Barrington, 648 F.3d 1178, 1194-95 (11th Cir. 2011). An argument raised for the

first time on appeal, however, is reviewed for plain error. United States v. Clark,

274 F.3d 1325, 1326 (11th Cir. 2001) (per curiam). Plain error requires (1) an

error, (2) that is plain, and (3) that affects substantial rights. United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). If all three conditions are met,

we may correct the error if it “seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. (internal quotations omitted).

“‘Plain’ error means that the legal rule is clearly established at the time the

case is reviewed on direct appeal.” United States v. Hesser, 800 F.3d 1310, 1325

(11th Cir. 2015) (per curiam). “[W]here the explicit language of a statute or rule

does not specifically resolve an issue, there can be no plain error where there is no

precedent from the Supreme Court or this Court directly resolving it.” United

States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).

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The government must prove the facts supporting a sentencing enhancement

by a preponderance of the evidence. United States v. Zitron, 810 F.3d 1253, 1261

(11th Cir. 2016). A defendant’s failure to object to factual statements in the PSI

renders those statements undisputed, and the district court may “rely upon them

without error even if there is an absence of supporting evidence.” United States v.

Aguilar-Ibarra, 740 F.3d 587, 592 (11th Cir. 2014) (quotation omitted).

III. DISCUSSION

A. Aggravating Role Enhancement

Section 3B1.1(c) of the sentencing guidelines provides for a two-level

aggravating role enhancement where a defendant “was an organizer, leader,

manager, or supervisor in any criminal activity” that involved fewer than five

participants or was not “otherwise extensive.” U.S.S.G. § 3B1.1(c); see id.

§ 3B1.1(a), (b). “A ‘participant’ is a person who is criminally responsible for the

commission of the offense,” though he or she need not be convicted. Id. § 3B1.1

cmt. n.1. An individual who provides knowing assistance in a criminal scheme is

considered a “participant.” See Zitron, 810 F.3d at 1262. The assertion of control

over a single participant is sufficient to sustain an aggravating role enhancement

under § 3B1.1(c). United States v. Jiminez, 224 F.3d 1243, 1251 (11th Cir. 2000).

Here, the district court did not plainly err in imposing a two-level

aggravating role enhancement pursuant to U.S.S.G. § 3B1.1(c) because the facts

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set forth in the PSI establish by a preponderance of the evidence that Craig

managed or led at least one other criminally responsible participant—an individual

identified as W.S.—in the sex trafficking offense. The district court was presented

with undisputed evidence that: (1) Craig recruited W.S. to transport the victim to

and from locations, including various hotel chains, where the victim would engage

in commercial sexual activity, and (2) W.S. was aware of the physical harm that

Craig inflicted on the victim—including threats and repeated beatings—to cause

her to engage in commercial sex acts. These facts, taken together, are sufficient to

demonstrate by a preponderance of the evidence that W.S. knowingly assisted

Craig in sex trafficking, and was therefore a criminally responsible participant.

B. Career-Offender Enhancement

Under the sentencing guidelines in effect when Craig was sentenced on

January 7, 2016, a defendant is a “career offender” if: (1) the defendant was at least

18 years old when he committed the offense of conviction; (2) the offense of

conviction is a felony that is either a “crime of violence” or a controlled substance

offense; and (3) the defendant has at least two prior felony convictions of either a

crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a) (2015).

Under the 2013 version of the guidelines used to calculate Craig’s sentence,

a “crime of violence” is:

any offense under federal or state law, punishable by imprisonment
for a term exceeding one year, that––
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(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a) (2013). Subsection (a)(1) of § 4B1.2 is referred to as the

“elements clause,” while subsection (a)(2) contains enumerated crimes and the

“residual clause.” See United States v. Lockley, 632 F.3d 1238, 1240-41 (11th Cir.

2011). The Supreme Court has held that the sentencing guidelines are not subject

to vagueness challenges and has upheld the residual clause of the career offender

guideline. See Beckles v. United States, __ U.S. __, __, 137 S. Ct. 886, 897

(2017); see also United States v. Matchett, 802 F.3d 1185, 1193-96 (11th Cir.

2015) (holding that vagueness doctrine does not apply to advisory sentencing

guidelines).

Under 18 U.S.C. § 1591(a)(1), it is unlawful to knowingly recruit, entice,

harbor, transport, provide, obtain, advertise, maintain, patronize, or solicit a person

to engage in a commercial sex act, knowing or in reckless disregard of the fact that

“means of force, threats of force, fraud, coercion . . ., or any combination of such

means” will be used to cause the person to engage in the act. 18 U.S.C.

§ 1591(a)(1). The statute defines coercion as: (1) “threats of serious harm to or

physical restraint against any person”; (2) “any scheme, plan, or pattern intended to

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cause a person to believe that failure to perform an act would result in serious harm

to or physical restraint against any person”; or (3) “the abuse or threatened abuse

of law or the legal process.” Id. § 1591(e)(2)(A)-(C). 1

Neither the Supreme Court nor this Court has yet addressed whether a

violation of 18 U.S.C. § 1591 is a crime of violence under any of § 4B1.2(a)’s

clauses. Because (1) an error is “plain” only when the legal rule is clearly

established, and (2) there is no precedent from the Supreme Court or this Court

directly resolving this issue, there is no plain error here. 2 See Hesser, 800 F.3d at

1325; Lejarde-Rada, 319 F.3d at 1291.

Moreover, the district court did not err by sentencing Craig as a career

offender because his conviction under § 1591(a)(1) qualifies as a crime of violence

in any event. We need not address whether § 1591(a)(1) is a divisible statute or

whether it qualifies as a crime of violence under § 4B1.2’s elements clause because

we conclude that the offense qualifies under § 4B1.2’s residual clause.

1
Section 1591(a) also makes it unlawful to knowingly recruit, entice, harbor, transport,
provide, obtain, advertise, maintain, patronize, or solicit a person to engage in a commercial sex
act when the defendant knows that the victim is less than 18 years old. 18 U.S.C. § 1591(a). We
do not address that portion of the statute today.
2
We recognize that Craig relies on the Fourth Circuit’s determination that an offense
under § 1591(a)(1) is not categorically a crime of violence under 18 U.S.C. § 924(c)’s force
clause. See United States v. Fuertes, 805 F.3d 485, 498-99 (4th Cir. 2015). But Fuertes does not
help Craig because it does not make the district court’s purported error plain. See Lejarde-Rada,
319 F.3d at 1291 (“[T]here can be no plain error where there is no precedent from the Supreme
Court or this Court directly resolving [the issue].”) (emphasis added). Moreover, Fuertes itself
distinguishes its holding in the context of § 924(c) from the “more expansive definition” of a
crime of violence found in U.S.S.G. § 4B1.2. See Fuertes, 805 F.3d at 499.
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In determining whether a conviction qualifies as a crime of violence under

§ 4B1.2’s residual clause, this Court has traditionally employed a three-step

categorical approach. United States v. Hall, 714 F.3d 1270, 1273 (11th Cir. 2013).

First, we consider the offense generically, that is, we look only at the elements of

the statute under which the defendant was convicted, and not at the facts

underlying the conviction. See id.; see also Mathis v. United States, 579 U.S. __,

__, 136 S. Ct. 2243, 2251 (2016). Second, we determine whether the generic

offense “involves conduct that presents a serious potential risk of physical injury to

another.” Hall, 714 F.3d at 1273 (internal quotation marks omitted). Finally, if the

offense does present such a risk, we classify it as a crime of violence only if it is

“roughly similar, in kind as well as in degree of risk posed,” to the residual

clause’s enumerated example crimes: burglary of a dwelling, arson, extortion, and

the unlawful use of explosives. Id.

In undertaking this analysis, we are persuaded by the Sixth Circuit’s

decision in United States v. Willoughby, 742 F.3d 229 (6th Cir. 2014). There, the

Sixth Circuit used a categorical approach to determine that an offense under 18

U.S.C. § 1591(a), “boiled down to its statutory definition, was the use of force,

threats of force, fraud, or coercion, knowing that these actions would cause a

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[person] to engage in a commercial sex act.” Id. at 242.3 The Sixth Circuit

rejected the defendant’s argument that § 1591(a) is not categorically a “crime of

violence” because he could have merely used fraud against the victim, concluding

that the act of causing a person “to engage in prostitution—even when the

defendant’s act does itself not involve force—obviously does present a ‘serious

potential risk of physical injury’ to the victim” under § 4B1.2’s residual clause. Id.

The Sixth Circuit reasoned that:

There is the risk of physical injury from the sex act itself; the risk of
violence from johns, many of whom . . . are addicted to drugs; and,
not least, the risk of violence from the pimps themselves. The latter
risk is present regardless of whether the pimp uses force to cause his
victim to engage in a sex act; because there is always a serious risk
that he will use force afterward, if she disobeys his rules, fails to
obtain a client, or for any number of reasons.

Id.

We agree with our sister circuit that 18 U.S.C. § 1591(a)(1) qualifies as a

crime of violence under § 4B1.2’s residual clause because the act of forcing or

coercing another person to engage in commercial sexual acts clearly presents a

serious potential risk of physical injury to the victim that is at least similar in kind

to the risks presented in the enumerated crimes of § 4B1.2.

3
Willoughby was decided in the context of § 1591(a)(1)’s prohibition on child sex
trafficking. Nonetheless, we believe that the Sixth Circuit’s logic applies with equal force in this
situation.
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C. Amendment 798

Craig also contends that his conviction cannot qualify under the residual

clause because a recent amendment to the sentencing guidelines has removed the

residual clause from § 4B1.2. Craig is correct that, effective August 1, 2016,

§ 4B1.2 was amended. See U.S.S.G. Supp. to App. C, amend. 798 (2016).

Though the elements clause remains unchanged, the residual clause was eliminated

and replaced with a revised list of enumerated offenses. See id; see also U.S.S.G.

§ 4B1.2(a) (2016). The Sentencing Commission has indicated that Amendment

798 is not to be applied retroactively. See U.S.S.G. § 1B1.10(d) (2016).

In reviewing the district court’s application of the guidelines, we typically

apply the version of the guidelines in effect at sentencing. United States v.

Jerchower, 631 F.3d 1181, 1184 (11th Cir. 2011). Where a subsequent amendment

clarifies the meaning of a guideline, rather than making a substantive change,

however, we will consider that amendment on appeal. Id.; see also U.S.S.G.

§ 1B1.11(b)(2) (directing courts to consider subsequent amendments to the

guidelines, to the extent they make clarifying, rather than substantive, changes). In

determining whether an amendment is substantive or clarifying, we consider

several factors, including: (1) whether the amendment alters the text of the

guideline itself, suggesting a substantive change, or merely the commentary,

(2) whether the Sentencing Commission has described the amendment as clarifying

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or whether its statements in the amendment commentary reflect a substantive

change, (3) whether the Sentencing Commission has included the amendment in its

list of retroactive amendments, U.S.S.G. § 1B1.10(d), and (4) whether the

amendment has overturned circuit precedent. Jerchower, 631 F.3d at 1185.

Craig’s argument that we should apply the revised version of § 4B1.2 that

eliminates the residual clause fails because Amendment 798 is substantive and not

retroactively applicable. Amendment 798 significantly changed the guideline’s

language, which “strongly suggests that a substantive change was being made.”

See United States v. Summers, 176 F.3d 1328, 1331 (11th Cir. 1999). Further, the

Sentencing Commission’s statements in its commentary to Amendment 798 reflect

that it sought to substantively change the guideline. See U.S.S.G. Supp. to App. C,

amend. 798, Reason for Amendment; see also Jerchower, 631 F.3d at 1185.

Finally, the amendment is not listed as retroactive in U.S.S.G. § 1B1.10(d). Thus,

because Amendment 798 is substantive, rather than clarifying, we do not consider

it on appeal. See Jerchower, 631 F.3d at 1184.

IV. CONCLUSION

Because the district court did not plainly err in applying either the

aggravating role enhancement or the career-offender enhancement to Craig, we

affirm Craig’s 300-month sentence.

AFFIRMED.

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