NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 30 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50343
Plaintiff-Appellee, D.C. No.
3:15-cr-01201-BTM-1
v.
WILLIE DWAYNE MICKEY, AKA Ace, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry Ted Moskowitz, Chief Judge, Presiding
Argued and Submitted February 15, 2018
Pasadena, California
Before: McKEOWN and WARDLAW, Circuit Judges, and DONATO,** District
Judge.
Willie Dwayne Mickey appeals his conviction, after a five-day jury trial, for
two counts of sex trafficking by force, threats of force, fraud, coercion, or any
combination of such means in violation of 18 U.S.C. §§ 1591(a) and (b)(1). We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
here address Mickey’s evidentiary and sentencing claims.1 Because the parties are
familiar with the facts, we do not recite them here. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
I. Rule 404(b) Ruling
The district court did not abuse its discretion when it admitted evidence of
Mickey’s 2012 Valentine’s Day assault on K.I. United States v. Romero, 282 F.3d
683, 688 (9th Cir. 2002). Evidence of the assault was admissible to show
Mickey’s intent, plan, and motive in using violence to traffic the prostitutes
working for him, including K.I. See Fed. R. Evid. 404(b).
Nor did the district court abuse its discretion in finding that evidence of this
assault was admissible under Federal Rule of Evidence 403. See Fed. R. Evid.
403; United States v. Wiggan, 700 F.3d 1204, 1210 (9th Cir. 2012). Evidence of
the assault corroborated the prosecution’s theory that Mickey used force in causing
prostitutes to work for him, and the risk of unfair prejudice from the photos did not
substantially outweigh their probative value. In any event, any claimed error was
also harmless in light of the overwhelming evidence supporting conviction. See
United States v. Derington, 229 F.3d 1243, 1247 (9th Cir. 2000).
II. Sixth Amendment Claim
1
Mickey’s specific unanimity and constructive amendment claims are addressed in
the concurrently-filed Opinion.
2
The district court’s refusal to include a specific unanimity requirement with
respect to the means that Mickey used to traffic A.P. and K.I. did not violate the
Sixth Amendment, a claim we review de novo. See United States v. Lizarraga-
Carrizales, 757 F.3d 995, 997 (9th Cir. 2014). The lack of such an instruction did
not increase the mandatory minimum sentence that Mickey faced. See Alleyne v.
United States, 570 U.S. 99, 107–08 (2013). Mickey’s indictment charged him with
violating 18 U.S.C. §§ 1591(a) and (b)(1). That section of the statute states in
relevant part that “if the offense was effected by means of force, threats of force,
fraud, or coercion . . . or any combination of such means . . .” the punishment is
“imprisonment for any term of years not less than 15 or for life.” 18 U.S.C. §§
1591(b)(1). Hence, Mickey only faced a mandatory minimum sentence of 15
years.
Mickey argues that because a different subsection of the statute, 18 U.S.C. §
1591(b)(2), permits a mandatory minimum sentence of only 10 years, the district
court was required by Alleyne to provide a specific unanimity instruction. See 570
U.S. at 107–08; see also Apprendi v. New Jersey, 530 U.S. 466 (2000). That is not
so. To see why, one need only review 18 U.S.C. §§ 1591(b)(1) and (b)(2)
together:
“(1) if the offense was effected by means of force, threats of force, fraud, or
coercion described in subsection (e)(2), or by any combination of such
means, or if the person recruited, enticed, harbored, transported, provided,
obtained, advertised, patronized, or solicited had not attained the age of 14
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years at the time of such offense, by a fine under this title and imprisonment
for any term of years not less than 15 or for life; or
(2) if the offense was not so effected, and the person recruited, enticed,
harbored, transported, provided, obtained, advertised, patronized, or solicited
had attained the age of 14 years but had not attained the age of 18 years at
the time of such offense, by a fine under this title and imprisonment for not
less than 10 years or for life.” 18 U.S.C. §§ 1591(b)(1), (b)(2) (emphases
added).
As the emphasized language indicates, the statute sets out a binary choice
between two mandatory minimums. If the offense is effected by “means of force,
threats of force, fraud, or coercion . . . or by any combination of such means,” the
mandatory minimum is 15 years. By contrast, “if the offense was not so effected,”
the mandatory minimum could be 10 years. Id.
Mickey was neither indicted nor tried for violating 18 U.S.C. § 1591(b)(2).
Because the only mandatory minimum Mickey ever faced was 15 years, Alleyne
does not apply, and no Sixth Amendment violation occurred.
AFFIRMED.
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