United States v. Tavares

United States Court of Appeals
For the First Circuit

Nos. 10-1781, 11-1055

UNITED STATES OF AMERICA,

Appellee,

v.

DARRYL TAVARES, a/k/a Young Stallion, a/k/a Stallion,

Defendant, Appellant.

No. 10-2495

UNITED STATES OF AMERICA,

Appellee,

v.

EDDIE JONES, a/k/a Young Indian,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]

Before

Howard, Ripple,* and Lipez,
Circuit Judges.

*
Of the Seventh Circuit, sitting by designation.
 William A. Hahn for appellant Darryl Tavares and Robert R.
Herrick for appellant Eddie Jones.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

January 14, 2013

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 RIPPLE, Circuit Judge. After a jury trial,

Darryl Tavares and Eddie Jones were both convicted under 18 U.S.C.

§ 371 of conspiracy to knowingly transport an individual in

interstate commerce with the intent that such individual engage in

prostitution, in violation of 18 U.S.C. § 2421 (Count One).

Mr. Tavares was also convicted of knowingly transporting a minor,

B.B., across state lines to engage in prostitution, in violation of

18 U.S.C. § 2423(a) (Count Nine), and of sex trafficking of a

child, T.B., in violation of 18 U.S.C. § 1591 (Count Ten).

Mr. Jones also was convicted of aiding and abetting the

transportation of a minor, B.B., across state lines to engage in

prostitution, in violation of 18 U.S.C. § 2423(a) (Count Nine), and

of knowingly transporting a minor, K.S., in interstate commerce

with the intent that she engage in prostitution, in violation of 18

U.S.C. § 2423(a) (Count Fourteen). The district court sentenced

both Mr. Tavares and Mr. Jones to 300 months’ imprisonment and to

three years’ supervised release. They have timely appealed their

convictions and sentences on various grounds.1 For the reasons set

forth in this opinion, we affirm the judgments of the district

court.

1
The jurisdiction of this court was based on 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742.

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 I

BACKGROUND

On May 16, 2007, a grand jury indicted Mr. Tavares,

Mr. Jones and four other individuals for various offenses involving

the transportation and trafficking of individuals for

prostitution.2 They were indicted for conspiring to knowingly

transport individuals in interstate commerce with the intent that

those individuals engage in prostitution. In addition, Mr. Tavares

was charged with two counts of sex trafficking of children, and

Mr. Jones was charged with one count of transporting a minor to

engage in prostitution. The four other individuals pleaded guilty;

Mr. Tavares and Mr. Jones chose to go to trial.

At trial, the Government established that Mr. Tavares and

Mr. Jones were pimps who, over several years, prostituted young

women, including high-school-age girls. The Government presented

five principal witnesses, women who had worked as prostitutes for

Mr. Tavares, Mr. Jones or both. Four of these five women worked

for one or both defendants as prostitutes when they were under

eighteen.

The Government’s evidence demonstrated that Mr. Tavares

and Mr. Jones worked closely together. The testimony recounted one

incident in which Mr. Tavares and Mr. Jones, along with an

2
The four co-defendants are Shaun Leoney, Reuben Porcher,
Aaron Brooks and Trueheart Peeples.

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associate, took a young girl from her home in Maine to become a

prostitute in Boston, Massachusetts. Travel such as this was

common; another woman testified that she had worked for Mr. Jones

as a prostitute in several cities along the East Coast (Boston,

Massachusetts, Atlantic City, New Jersey, Philadelphia,

Pennsylvania and Washington, D.C.). The Government also presented

evidence that Mr. Tavares and Mr. Jones had used violence and

coercion against their victims. For instance, on one occasion,

Mr. Tavares took a young woman to another pimp, assisted in

assaulting her and then offered to take her back with him.

Mr. Tavares and Mr. Jones were sentenced separately.

Mr. Tavares received an “organizer or leader” enhancement. The

district court then imposed an above-guidelines sentence of 300

months’ imprisonment, to be followed by three years’ supervised

release. The district court determined that Mr. Jones was a career

offender and imposed a within-guidelines sentence of 300 months’

imprisonment, to be followed by three years’ supervised release.

II

DISCUSSION

Mr. Tavares and Mr. Jones were tried together, but

sentenced separately. Their consolidated appeal contains only one

common issue. Thus, for clarity and ease of discussion, we shall

address first their joint trial on the merits, beginning with the

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common issue and then turning to each defendant’s claims. Finally,

we shall discuss their respective sentencing claims.

A. Trial on the Merits

1. The Common Issue: Voir Dire

Mr. Tavares and Mr. Jones each have nicknames.

Mr. Tavares’s is “Stallion” or “Young Stallion”; Mr. Jones’s is

“Young Indian.” These nicknames were included on the docket sheet

posted outside of the courtroom during jury selection.

Voir dire of the prospective jurors lasted three days.

At the beginning of the proceeding, the district court informed the

jurors of the nature of the charges. The court then made some

general inquiries to ascertain if any member of the venire had read

or seen anything about the case or if any member was related to or

knew the attorneys or witnesses. The court then pointedly

admonished the prospective jurors that they were “under an order

not to talk about the case” and not to “guess what the case is

about beyond what” the court had told them.3

The court then undertook an individual examination of

each prospective juror. Counsel were permitted an allotted time to

question each prospective juror. During that questioning, defense

counsel often inquired about the jurors’ views of pimps and

prostitutes, and the relationship between the two. Defense counsel

questioned some prospective jurors concerning their views about

3
R.292 at 23.

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prostitutes who were minors. During this process, three

prospective jurors reported that some members of the jury pool had

discussed the district court’s instructions about the case and the

significance of Mr. Tavares’s and Mr. Jones’s nicknames in the jury

room. They also said that there had been speculation about the

nature of the case. They reported that several prospective jurors

had laughed and joked about the nicknames, including one comment

that the nicknames might indicate gang membership.

After listening to the jurors’ accounts and considering

the argument of counsel, the district court denied Mr. Tavares’s

motion to disqualify all jurors who had been in the jury room since

the first report of discussion about the case and the nicknames.

Mr. Tavares and Mr. Jones then asked to question prospective jurors

who already had been preliminarily qualified. This request also

was denied; the district court stated that it was not going to

order the return of all preliminarily qualified jurors for

additional questioning. It then explained that it was “fairly

confident[] that all that was involved was speculation about what

[the court’s] instructions were and speculation about what [the

defendants’] nicknames meant.”4 The court also noted that, in any

event, the nicknames would be revealed at trial and that the early

revelation of the nicknames “pales [in comparison] to what [defense

4
R.294 at 75.

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counsel] told the jurors” about the defendants’ work as pimps.5

When subsequent prospective jurors were called for

examination, the district court asked each potential juror whether

he or she had discussed the case. One prospective juror, who

admitted to joking about the nicknames, was challenged for cause

and dismissed. After empaneling the jury, the court gave a general

instruction to the jurors not to discuss the case with anyone,

including each other, until all evidence was presented. However,

no specific instruction was given about the nicknames or the

earlier discussions.

Mr. Tavares and Mr. Jones submit that the district

court’s response to the discussion of the defendants’ nicknames was

inadequate. They maintain that the court committed reversible

error when it refused to permit questioning of the entire jury

pool. Alternatively, they contend that, upon learning of the

discussion, the court should have dismissed the entire jury pool.

The parties variously cast the problem presented here as

one of juror taint on the theory that prospective jurors were

exposed to material outside the record, or of premature

deliberation because prospective jurors speculated among themselves

about the significance of facts that eventually would be before

them, if they were selected for service on the chosen jury.

Neither of these characterizations is a precise description of the

5
Id. at 76.

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rather unique situation that confronted the district court. In any

event, choosing between these characterizations is not an essential

part of the analytical task facing a district court, or this court,

when dealing with juror misconduct. Our cases make clear that when

faced with a non-frivolous allegation of any sort of juror

misconduct, the district court must engage in a two-step analysis.

See United States v. Diaz, 597 F.3d 56, 62-63 (1st Cir. 2010);

United States v. Tejeda, 481 F.3d 44, 52 (1st Cir. 2007). First,

the court must determine whether misconduct occurred. If no

misconduct occurred, no further action is required. “[M]isconduct

allegations that are frivolous . . . do not trigger any duty of

inquiry and do not require that a hearing be held.” United States

v. Mikutowicz, 365 F.3d 65, 74 (1st Cir. 2004) (alterations in

original) (internal quotation marks omitted). On the other hand,

if any misconduct did occur, the court must proceed to “assess[]

the magnitude and extent of any prejudice caused” and, if

necessary, take remedial measures. Tejeda, 481 F.3d at 52. If no

curative measures appear adequate, the court may grant a timely

motion for mistrial. Id.

We review for abuse of discretion a district court’s

handling of juror misconduct. Diaz, 597 F.3d at 62.6 The

6
We cannot accept Mr. Tavares’s contention that the standard
of review is de novo under United States v. Jadlowe, 628 F.3d 1, 14
(1st Cir. 2010). Jadlowe involved review of the district court’s
instruction to the jury, not its response to potential juror
misconduct. Id. at 15.

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fact-specific and often delicate task of assessing such situations,

which often requires the assessment of witness credibility,

counsels that a district court must “enjoy broad discretion in

addressing potential juror misconduct.” Id. Therefore, “normally

we will not reverse unless the judge’s choice among the various

avenues available was patently unreasonable.” United States v.

Lemmerer, 277 F.3d 579, 591 (1st Cir. 2002).

Here, our colleague in the district court followed the

process of assessment prescribed by our case law. The court

undertook an examination of the rather unique circumstances

surrounding the incident. The court realized that the misconduct

took place at a very early stage of the proceedings and also gave

appropriate weight to the fact that the defendants’ nicknames would

indeed be before the yet-to-be selected jury as evidence during

trial. Finally, the court determined that any harm caused by the

discussion of the nicknames had been negated significantly by

defense counsel’s own statements to jurors about Mr. Tavares’s and

Mr. Jones’s activities. Having made this assessment, the district

court determined that admonishing the empaneled jury not to discuss

the case or to form ultimate conclusions until all evidence had

been presented was the appropriate course.

On the basis of our study of the trial transcript, we

cannot accept the contention that the district court was obliged to

conduct a more extensive inquiry. While not protracted, the

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inquiry here was measured but sufficiently thorough. The court

observed and evaluated firsthand the potential jurors’ reports of

the jury-room discussions. It took note of the conversations’

content, the point in the proceeding when they took place and the

fact that the matter discussed by the prospective jurors would be

covered thoroughly at trial. The court then concluded that any

harm from the violation of its initial instruction not to speculate

about the trial could be cured by an appropriate cautionary

instruction. This approach was certainly well within the options

from which a thoughtful district court could be expected to choose,

and we shall not second-guess the course taken by the court here.

2. Issues Raised by Mr. Tavares

Mr. Tavares raises several challenges to his convictions.

We address these count by count.

a. Conspiracy (Count One)

Count One of the indictment charged Mr. Tavares with

conspiring to knowingly transport an individual in interstate

commerce, intending that she engage in prostitution. In support,

the indictment alleged twenty-six overt acts taken in furtherance

of the conspiracy. Among these was Overt Act J, which alleged that

“[i]n or about February 2004, after assisting in the assault of

T.B. by covering her head with a garbage bag and securing it with

duct tape, Darryl TAVARES negotiated with another male to have T.B.

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return to work for him as a prostitute.”7

T.B., a young woman who worked as a prostitute at various

times for Mr. Tavares and for another pimp named “Jungle,”8 was a

witness at trial. She testified about an incident when Mr. Tavares

brought her to her then-pimp, Jungle. She said Mr. Tavares was

with Jungle when “they tied [her] hands behind [her] back with

rope.”9 She further testified that while Jungle put the bag over

her head, he asked Mr. Tavares for help, but, because of the bag,

she could not hear or see who participated in her subsequent

beating. After the assault, Mr. Tavares offered to take T.B. back,

but Jungle refused because T.B. had to work for him first.

Mr. Tavares’s counsel extensively cross-examined T.B.

i. Admission of T.B.’s Testimony

Although Mr. Tavares does not appeal the admission of

evidence concerning the other twenty-five overt acts, he does

challenge the admission of T.B.’s testimony about Overt Act J. He

challenges T.B.’s testimony only as irrelevant under Rule 401 of

the Federal Rules of Evidence and unfairly prejudicial under Rule

403. We shall address these arguments in turn.10

7
R.1 at 3.
8
Jungle is an unindicted co-conspirator.
9
R.297 at 81.
10
At trial, Mr. Tavares grounded his objection to T.B.’s
testimony in Federal Rules of Evidence 401, 403 and 404(b). Before
us, he has abandoned his Rule 404(b) objection.

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 We review the district court’s admission of evidence for

abuse of discretion. United States v. Upton, 559 F.3d 3, 15 (1st

Cir. 2009). Under Federal Rule of Evidence 401, “evidence is

relevant if it has any tendency to make a fact more probable or

less probable than it would be without the evidence[] and the fact

is of consequence in determining the action.”

Mr. Tavares objected at trial, and presses here on

appeal, that T.B.’s testimony was not relevant and is therefore

inadmissible because it primarily inculpated Jungle.11 The

Government submitted at trial, and the district court agreed, that

T.B.’s testimony was relevant because it explained the relationship

between Mr. Tavares and T.B., a fact germane to whether Mr. Tavares

transported T.B. for prostitution. Further, Mr. Tavares’s offering

to take T.B. off Jungle’s hands suggests that she worked for him as

a prostitute, also germane to whether Mr. Tavares trafficked her

for sex (Count Ten). We certainly cannot discern any abuse of

discretion in the district court’s ruling. The events to which

T.B. testified certainly have “a tendency to make a fact [that

Mr. Tavares transported T.B. and trafficked her for sex] more

probable than it would be without the evidence.” Fed. R. Evid.

401. Furthermore, whether Mr. Tavares transported her and

prostituted her “is of consequence in determining the action.” Id.

Federal Rule of Evidence 403 provides that although

11
See, e.g., R.297 at 4-5.

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relevant, evidence may be excluded “if its probative value is

substantially outweighed by a danger of . . . unfair prejudice.”

We do not disturb the district court’s balancing of probative value

and risk of unfair prejudice absent “extraordinarily compelling

circumstances.” Freeman v. Package Mach. Co., 865 F.2d 1331, 1340

(1st Cir. 1988). We see no such extraordinary circumstances here.

In Mr. Tavares’s view, even if T.B.’s testimony is

relevant, it still should have been excluded because its probative

value is substantially outweighed by the risk of unfair prejudice.

According to Mr. Tavares, prostitution and sex trafficking of

children are not violent crimes. Thus, he concludes, any mention

of violence inherently poses a risk of prejudice substantially

outweighing probative value and inviting jurors to decide the case

purely on emotion. We accept neither Mr. Tavares’s premise nor his

conclusion. Violence, abuse and other forms of human degradation

are part and parcel of sex trafficking. It is not at all

surprising that evidence of such acts is offered to establish a

conspiracy to engage in sex trafficking. Moreover, evidence of

these violent acts was particularly probative of the defendants’

relationship with the women because it directly demonstrated the

control that the defendants exercised over the women in their

prostitution operation. Specifically, with respect to Mr. Tavares,

the evidence showed that the violent episode also entailed

negotiations with Jungle to get T.B. back to work for him. The

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testimony was also relevant to and probative of Mr. Tavares’s

knowledge and intent with respect to Count Ten, charging him with

recruiting and transporting T.B. to engage in a commercial sex act.

Here, the district court considered Mr. Tavares’s

arguments several times and concluded that the probative value of

T.B.’s testimony was not substantially outweighed by any risk of

unfair prejudice. That decision was certainly among the options

from which a reasonable judge could be expected to choose. The

record contains no basis that would justify our overturning the

district court’s decision.

ii. Prejudicial Variance

T.B.’s testimony concerning the incident with Jungle

indisputably is at variance with the language of the indictment and

the Government’s identical proffer to the district court. The

Government expected T.B. to testify that Mr. Tavares put the

plastic bag over her head. However, T.B. testified that Jungle,

not Mr. Tavares, put the bag over her head. Her testimony

otherwise conformed to the indictment; she indicated that

Mr. Tavares “assist[ed] in [her] assault” and “negotiated with

another male [Jungle] to have T.B. return to work for him as a

prostitute.”12

“Not every variance calls for reversal.” United States

v. Seng Tan, 674 F.3d 103, 110 (1st Cir. 2012). Mr. Tavares must

12
R.1 at 3.

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show that the variance prejudiced him. Id. Prejudice in this

context is found when, for example, “the variance . . . le[ft the

defendant] so in the dark about the charge against h[im] that []he

could not prepare a defense or plead double jeopardy to stop a

second prosecution for the same crime.” Id.

Here, Mr. Tavares faces an additional hurdle. Because he

did not object in the district court to this variance, our review

is for plain error. Id. Thus, Mr. Tavares “must demonstrate that

(1) an error occurred which was (2) clear or obvious and which not

only (3) affected his substantial rights, but also (4) seriously

impaired the fairness, integrity, or public reputation of the

judicial proceedings.” United States v. Savarese, 686 F.3d 1, 12

(1st Cir. 2012).

Mr. Tavares cannot establish any prejudice from the

variance between the indictment’s language and T.B.’s testimony at

trial. Mr. Tavares’s conspiracy conviction did not depend on Overt

Act J being proven. Evidence was admitted concerning the

twenty-five other overt acts charged in the indictment; the

evidence supporting his (and Mr. Jones’s) conviction was

overwhelming. Thus, any error in admitting T.B.’s testimony

concerning Overt Act J was harmless.

The variance between the indictment and T.B.’s testimony

was not prejudicial and affords no basis for reversal.

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 b. Transportation of a Minor (Count Nine)

Mr. Tavares was convicted of knowingly transporting a

minor, B.B., in violation of 18 U.S.C. § 2423(a). A great part of

the evidence on this count came from B.B.’s own testimony. In

evaluating the sufficiency of the evidence, we construe the

evidence “in the light most favorable to the jury’s verdict.”

United States v. Alfonzo-Reyes, 592 F.3d 280, 289 (1st Cir. 2010).

At trial, B.B. testified that, when she was seventeen,

Mr. Tavares and Peeples, a co-defendant who pleaded guilty, picked

her up at her high school in Maine. Mr. Tavares and Peeples then

took her to her sister’s home. Mr. Jones was at the home. The

group talked about “[g]oing to Boston to make money.”13

Mr. Tavares, Mr. Jones and B.B. then drove from Maine to

Massachusetts with some other people. B.B. testified that in the

car she was told to pick her future pimp from among Mr. Tavares,

Mr. Jones and another man; she chose Mr. Tavares.

During the ride, B.B. sat on Mr. Tavares’s lap while he

explained the rules of prostitution, including forbidding her from

talking to other pimps and dictating how she should speak to him.

She testified that she did not speak with Mr. Jones at her sister’s

apartment or on the drive to Boston. Immediately upon arrival in

Boston, Mr. Tavares took B.B. to the streets to work as a

prostitute. She worked there for a considerable period of time.

13
R.295 at 40.

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 Mr. Tavares raises two challenges to his conviction for

transporting B.B.: insufficient evidence and an erroneous jury

instruction. He contends that the Government did not prove that he

transported B.B. with the intent that she engage in prostitution

and that the Government failed to prove that he knew B.B. was under

eighteen at the relevant time. Mr. Tavares’s assertion that the

Government’s proof of his knowledge of B.B.’s underage status was

insufficient is closely linked to his challenge of the jury

instruction on this count.

i. Sufficient Evidence of Intent

In order to convict Mr. Tavares of transporting B.B., the

Government was required to prove, among other things, that he had

the “intent that [she] engage in prostitution.” 18 U.S.C.

§ 2423(a). This element requires proof that “criminal sexual

activity [was] one of the several motives or purposes . . . not a

mere incident of the trip or trips, but instead was at least one of

the defendant’s motivations for taking the trip in the first

place.” United States v. Ellis, 935 F.2d 385, 390 (1st Cir. 1991)

(alteration in original) (internal quotation marks omitted).

When reviewing the sufficiency of the evidence, we

reverse only if “the evidence, viewed in the light most favorable

to the government, could not have persuaded any trier of fact of

the defendant’s guilt beyond a reasonable doubt.” United States v.

Paradis, 802 F.2d 553, 559 (1st Cir. 1986). We do not weigh

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evidence or assess credibility. See United States v. Downs-Moses,

329 F.3d 253, 261 (1st Cir. 2003).

Mr. Tavares maintains that the Government failed to prove

beyond a reasonable doubt that he transported B.B. with the

requisite intent. According to Mr. Tavares, a jury could not draw

a reasonable inference that he intended that B.B. engage in

prostitution until they had arrived in Boston, i.e., after

transportation was completed. In support, he relies on the fact

that only B.B.’s participation in an escort service, not

prostitution, was discussed explicitly in Maine.

The record shows that the Government met its burden at

trial. The jury reasonably could infer from B.B.’s testimony that

Mr. Tavares’s purpose in bringing her from Maine to Boston was that

she work for him as a prostitute. The discussion about “[g]oing to

Boston to make money” reasonably can be understood as relating to

prostitution. This interpretation is especially justifiable

because Mr. Tavares is an admitted pimp, he picked B.B. up with

another pimp (Peeples) and took her to discuss “mak[ing] money”

with a third pimp (Mr. Jones).

Even disregarding this statement, Mr. Tavares’s conduct

during the ride from Maine to Boston clearly evidenced his intent

in taking the trip. En route from Maine to Boston, Mr. Tavares

instructed B.B. to choose a pimp for whom to work and told her his

rules for the prostitutes working for him. Furthermore, the jury

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was not limited to considering B.B.’s testimony in assessing

Mr. Tavares’s intent. For example, an FBI agent testified that

Mr. Tavares told him that Peeples was B.B.’s sister’s pimp but

Peeples “couldn’t handle both sisters and so they [Mr. Tavares and

Peeples] had made arrangements . . . to bring [B.B.] down to the

Boston area.”14

Mr. Tavares’s contention that no intent reasonably could

be inferred from this evidence is unavailing. The evidence

produced at trial was more than sufficient to prove beyond a

reasonable doubt that Mr. Tavares had the requisite intent at least

during, if not before, transportation.

ii. Sufficient Evidence of “Knowingly”

Mr. Tavares also challenges the sufficiency of his

conviction on Count Nine by contending that the Government failed

to prove beyond a reasonable doubt that he knew B.B. was under

eighteen at the time he transported her. This claim is linked

closely to his contention that the district court erred in

instructing the jury that it could convict him on this count15

without finding that he knew B.B. was under eighteen. Therefore,

we address the instructional issue first.

14
R.299 at 78.
15
Mr. Tavares also challenges the district court’s
instruction for Count Twelve, which involved the same offense with
a different victim and an identical jury instruction. However, Mr.
Tavares was acquitted of Count Twelve, and so we do not address
this claim.

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 Title 18 of the United States Code, Section 2423(a)

criminalizes “transportation with intent to engage in criminal

sexual activity.” It provides that

[a] person who knowingly
transports an individual who has
not attained the age of 18 years
in interstate or foreign
c om m e r ce, or in any
commonwealth, territory or
possession of the United States,
with intent that the individual
engage in prostitution, or in
any sexual activity for which
any person can be charged with a
criminal offense, shall be fined
under this title and imprisoned
not less than 10 years or for
life.

Id. The district court instructed the jury that, in order to

convict Mr. Tavares, it had to find that the Government proved

beyond a reasonable doubt that (1) Mr. Tavares knowingly

transported B.B. in interstate commerce, (2) with the intent that

B.B. engage in prostitution and (3) B.B. was under eighteen years

old at the time of the transportation. The district court applied

the “knowingly” requirement only to the act of transportation, not

to the age of the individual transported.

We review de novo claims of legal error in jury

instructions. Figueroa v. Alejandro, 597 F.3d 423, 434 (1st Cir.

2010). Although we have not addressed whether § 2423(a) requires

knowledge of the victim’s underage status, all six circuits to

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consider the issue have concluded that it does not.16

Mr. Tavares, relying on the Supreme Court’s decision in

Flores-Figueroa v. United States, 556 U.S. 646 (2009), urges that

we break with our sister circuits and extend the knowledge

requirement to the victim’s underage status. In Flores-Figueroa,

the Court construed 18 U.S.C. § 1028A(a)(1), which penalizes a

person who “knowingly transfers, possesses, or uses, without lawful

authority, a means of identification of another person.” The Court

found that the statutory language required applying “knowing” to

two elements: the “means of identification” and “of another

person.” Id. at 652-57. Mr. Tavares contends that Flores-Figueroa

represents an emerging trend in the Supreme Court’s jurisprudence

of applying the scienter requirement to every statutory element.

Thus, he concludes, this court should extend “knowingly” to the

victim’s underage status.

The Sixth and Seventh Circuits have considered and

rejected this argument. See United States v. Daniels, 653 F.3d

399, 410 (6th Cir. 2011); United States v. Cox, 577 F.3d 833,

837-38 (7th Cir. 2009). These circuits agree that “the context of

§ 2423(a) compels a reading of the statute that does not require

16
See, e.g., United States v. Daniels, 653 F.3d 399, 410 (6th
Cir. 2011); United States v. Cox, 577 F.3d 833, 837-38 (7th Cir.
2009); United States v. Jones, 471 F.3d 535, 539 (4th Cir. 2006);
United States v. Griffith, 284 F.3d 338, 350-51 (2d Cir. 2002);
United States v. Taylor, 239 F.3d 994, 997 (9th Cir. 2001); United
States v. Hamilton, 456 F.2d 171, 173 (3d Cir. 1972).

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‘knowingly’ to be applied to the victim’s age.” Daniels, 653 F.3d

at 410. The court in Daniels held that this reading

“is consistent with
congressional intent that minors
need special protection against
sexual exploitation.” We agree
that this context justifies
requiring a defendant--who would
presumably know he is treading
close to the line in
transporting a young person to
engage in illicit sexual
activity--to bear the risk that
the person transported is
underage.

Id. (quoting Cox, 577 F.3d at 837). In addition to context, the

court noted that

under the Mann Act, 18 U.S.C.
§ 2421, a defendant commits a
crime any time he transports an
individual for the purpose of
prostitution. Therefore, age in
§ 2423(a) is not a factor that
distinguishes criminal behavior
from innocent conduct, but
rather serves to justify a
harsher penalty when a victim is
underage. In contrast to the
aggravated-identity-theft
statute [at issue in Flores-
Figueroa], when a defendant
violates the Mann Act, he knows
a real victim is involved, even
if he does not know that victim
is a minor.

Id. (citations omitted) (internal quotation marks omitted).

There is further reason to doubt that the Supreme Court

intended such a modification of existing case law interpreting

§ 2423(a). In Flores-Figueroa, Justice Alito, noting the

-23-
importance of context in legislative interpretation, suggested in

a concurring opinion that the majority’s principles of

interpretation would not extend the scienter requirement in

§ 2423(a) to the underage status of the victim. 556 U.S. at 660

(Alito, J., concurring in part and concurring in the judgment).17

As the Seventh Circuit noted in Cox, 577 F.3d at 838, the majority

in Flores-Figueroa did not take explicit issue with Justice Alito’s

caution and, indeed, appeared to endorse it. See Flores-Figueroa,

556 U.S. at 652. For these reasons, we are persuaded by the

reasoning of our sister circuits, and we see no need to depart from

it.

Our construction of the term “knowingly” in the statutory

language is fatal to Mr. Tavares’s second sufficiency challenge and

to his claim that the jury instruction was infirm. Even assuming,

for the sake of argument, that the Government had not produced

sufficient evidence of Mr. Tavares’s knowledge of B.B.’s age, such

a failure is irrelevant. The Government was under no obligation to

prove that Mr. Tavares knew B.B. was underage.

17
“In interpreting a criminal statute . . . it is fair to
begin with a general presumption that the specified mens rea
applies to all the elements of an offense, but it must be
recognized that there are instances in which context may well rebut
that presumption.” Flores-Figueroa v. United States, 556 U.S. 646,
660 (2009) (Alito, J., concurring in part and concurring in the
judgment). Justice Alito then specifically mentioned § 2423(a) as
an example of such a situation and noted that “[t]he Courts of
Appeals have uniformly held that a defendant need not know the
victim’s age to be guilty under this statute.” Id.

-24-
 3. Issues Raised by Mr. Jones

Mr. Jones challenges his convictions on Counts Nine and

Fourteen. We address these challenges in turn.

a. Aiding and Abetting Transportation of a Minor
(Count Nine)

Mr. Jones was convicted of aiding and abetting

Mr. Tavares’s transportation of B.B., in violation of 18 U.S.C.

§ 2423(a). He contends that the Government did not prove that he

participated in Mr. Tavares’s transportation of B.B. Rather, he

maintains, the Government established that he was merely present

while Mr. Tavares committed a crime.

To convict Mr. Jones of aiding and abetting, the

Government was required to prove that he “participated in the

illegal venture and sought by his actions to make it succeed.”

Downs-Moses, 329 F.3d at 261. “[P]roof of sufficient participation

in the crime, as well as knowledge of it, is required to convict.”

United States v. Guerrero, 114 F.3d 332, 342 (1st Cir. 1997). Mere

presence at the scene of the crime, even “with knowledge that a

crime is being committed, is generally insufficient.” United

States v. Campa, 679 F.2d 1006, 1010 (1st Cir. 1982).

We conclude that the evidence produced at trial was

sufficient to convict Mr. Jones of aiding and abetting the

transportation of B.B. The Government established that Mr. Jones

was a pimp and that he worked as one with Mr. Tavares. It also

established that Mr. Jones was party to the discussion at B.B.’s

-25-
sister’s home about “[g]oing to Boston to make money,” which a jury

reasonably could infer was a discussion about prostitution and one

in which Mr. Jones participated. A jury could conclude that

Mr. Jones’s participation in such a discussion was part of an

effort to recruit B.B. to be a prostitute, either for him or for

Mr. Tavares. Given that the group left for Boston soon after, a

jury further reasonably could infer that Mr. Jones accompanied them

as part of the scheme to bring B.B. into the prostitution ring.

B.B. also testified that she was instructed on the ride

to Boston to choose a pimp for whom to work from among the men in

the car, including Mr. Jones. A jury could draw at least two

reasonable inferences from this testimony, both supporting

Mr. Jones’s conviction. First, a jury reasonably could infer that

Mr. Jones stood to benefit financially from transporting B.B.

because there was a chance she would work for him. Second, it

could infer that Mr. Tavares’s indication of Mr. Jones as a

potential pimp for B.B. demonstrates Mr. Jones’s association with

Mr. Tavares’s plan to transport B.B. for prostitution. Indeed, had

B.B. chosen differently, Mr. Jones could have been principally

liable.

Mr. Jones stresses B.B.’s testimony that she did not

speak to him either at her sister’s home or during the car ride.

This argument is unavailing. Considering B.B.’s testimony as a

whole and Mr. Jones’s working relationship with Mr. Tavares, such

-26-
lack of conversation between Mr. Jones and B.B. does not raise a

reasonable doubt about Mr. Jones’s aiding and abetting liability.

Mr. Jones’s presence at the discussion about making money in Boston

and on the subsequent car ride permitted the jury to conclude that

Mr. Jones had more than a coincidental association with

Mr. Tavares’s criminal venture and, indeed, had joined the illegal

enterprise.

We therefore conclude that the evidence at trial was

sufficient to justify Mr. Jones’s conviction on Count Nine.

b. Due Process and Voluntariness of K.S.’s
Testimony (Count Fourteen)

Mr. Jones also was convicted of knowingly transporting a

minor, K.S., in interstate commerce with the intent that she engage

in prostitution, in violation of 18 U.S.C. § 2423(a). Mr. Jones

alleges that K.S.’s testimony was coerced and that its admission

into evidence violated his Fifth Amendment right to due process.

He also claims, in the alternative, that the district court erred

by failing to investigate sua sponte allegations of coercion.

K.S. was a Government witness. She testified that she

met Mr. Jones when she was sixteen and began working for him as a

prostitute. In this capacity, she worked for Mr. Jones in Boston

and traveled with him on several occasions to work as a prostitute

in other cities. In addition to Boston, Mr. Jones prostituted K.S.

in Atlantic City, New Jersey, in Philadelphia, Pennsylvania and in

Washington, D.C. After ending her relationship with Mr. Jones,

-27-
K.S. worked as a prostitute for Mr. Tavares.

On direct examination, K.S. admitted that she did not

want to testify, but was doing so under a subpoena. Mr. Jones’s

counsel conducted a full cross-examination of K.S. During that

cross-examination, she agreed with defense counsel that she had

been threatened by FBI agents and a federal prosecutor with

remaining in jail after she was arrested for failing to appear as

required by a summons and with losing custody of her daughter if

she did not “do what [they] wanted [her] to do.”18 She also agreed

she was just going to tell the prosecution what they wanted to hear

so she could move on with her life. On redirect, K.S. stated that

she had been threatened by the FBI and federal prosecutors when she

had been required to appear before the grand jury four years

earlier and admitted that she had not told the district court that

she had been threatened.

Mr. Jones did not object to K.S.’s testimony at trial.

Accordingly, we review his challenges to K.S.’s testimony for plain

error. United States v. Matos-Quiñones, 456 F.3d 14, 20-21 (1st

Cir. 2006).

Mr. Jones’s claim is very similar to the one we rejected

in United States v. Hall, 434 F.3d 42 (1st Cir. 2006), and that

case provides substantial guidance. According to the testimony in

that case, agents told one witness that she faced prosecution if

18
R.296 at 32.

-28-
she did not tell them “what they wanted to hear.” Id. at 57

(internal quotation marks omitted). Another witness testified that

an agent told him that if he did not cooperate, the Government

would take his home. In light of this testimony, the defendant in

Hall contended that the Government had violated his Fifth and Sixth

Amendment rights by “threatening certain witnesses with severe

consequences if they did not testify on the government’s behalf.”

Id. In assessing this claim, we noted that a due process violation

can occur when witnesses are discouraged from testifying through

threats or other coercion. Notably, we distinguished those cases

from situations where “the government has to press unwilling

witnesses . . . to provide testimony that they are reluctant to

give.” Id. at 57-58. Therefore, unlike Government efforts to

prevent the testimony of certain witnesses, “[t]here is no blanket

rule against inducements by the government to witnesses to produce

truthful testimony.” Id. at 58. While making this distinction, we

nevertheless recognized the possibility that, “in extreme

circumstances, government misconduct[] could occur through improper

efforts to shape testimony to the government’s liking.” Id.

However, we determined that Hall presented no such circumstances,

and, in any event, no constitutional violation had occurred because

“there was conflicting testimony as to whether the government

actually threatened [the witnesses] and defense counsel was allowed

to cross-examine on the issue, leaving it to the jury to evaluate

-29-
witness credibility in light of the evidence concerning the alleged

threats.” Id.

Upon examination of the circumstances here, we must reach

the same conclusion as the one that we reached in Hall: There is

no constitutional violation. To be sure, K.S. did not want to

testify against Mr. Jones. Indeed, she threw away a summons to

appear before the grand jury and subsequently failed to appear as

required.19 She testified at trial only because she had been

subpoenaed,20 and she stated several times that she did not want to

testify against Mr. Jones.21 What Mr. Jones’s counsel characterized

as the Government’s “threats,” are more accurately viewed as lawful

coercion of a reluctant witness to testify as required by law.

Such “threats” are the legal consequences for failing to appear

pursuant to a summons. Additionally, as in Hall, Mr. Jones’s

counsel fully cross-examined K.S. on this issue. There was ample

testimony in the record to permit the jury to evaluate K.S.’s

credibility in light of all these circumstances.

Nor can we say, as suggested by Mr. Jones, that the

district court committed plain error in not conducting an

evidentiary hearing prior to admitting the testimony. Mr. Jones

contends that these “threats” trigger the analysis set forth in

19
R.296 at 34.
20
R.295 at 104.
21
See, e.g., R.296 at 23-24, 27.

-30-
LaFrance v. Bohlinger, 499 F.2d 29, 35 (1st Cir. 1974). In that

case, we determined that the circumstances surrounding a witness’s

statement were so indicative of its involuntariness as to require

a hearing. Specifically, a witness had recanted a prior sworn

statement while testifying; he claimed that the prior statement was

a police fabrication that he had been forced to sign while under

the influence of drugs. Id. at 31. There, we stated that “[i]t is

unthinkable that a statement obtained by torture or by other

conduct belonging only in a police state should be admitted at the

government’s behest in order to bolster its case.” Id. at 34.

Because the surrounding circumstances raised a substantial claim

that the statement was legally involuntary, see Lego v. Twomey, 404

U.S. 477, 480 (1972); Jackson v. Denno, 378 U.S. 368, 372 (1964),

we held that the trial court had an obligation to investigate,

through an evidentiary hearing, whether the testimony was

voluntary. LaFrance, 499 F.3d at 35.

There is a material and qualitative distinction between

the prosecutorial misconduct at issue in LaFrance and the situation

before us today. LaFrance dealt with police extraction of a

statement from a drug-impaired witness, by means which we described

as “police threats and other blatant forms of physical and mental

duress.” Id. In her testimony, K.S. related on cross-examination

instances of lawful pressure. She was apprised of the lawful

consequences of her failing to testify, which she was legally

-31-
required to do. The purpose of informing her of those legal

consequences, moreover, was to ensure that she fulfilled her

obligation to testify, not to ensure that she give particular

testimony.

Given the nature of the Government’s pressure and the

full picture of the surrounding circumstances rendered by the

robust cross-examination to which K.S. was subject, we conclude

that the district court had no duty to inquire further into the

voluntariness of K.S.’s testimony. There was no error, and

certainly no plain error, in the district court’s admission of this

testimony.

B. Sentencing

1. Mr. Tavares’s Sentencing

Mr. Tavares’s presentence report (“PSR”) calculated that

he had a total of fourteen criminal history points, which

corresponds to a criminal history category of VI. The PSR noted

that Mr. Tavares had one three-point state criminal conviction and

eight one-point offenses, including two juvenile adjudications.

Because the United States Sentencing Guidelines section 4A1.1(c)

provides that a maximum of four one-point prior offenses can be

included in a criminal history points calculation, the PSR assigned

only four points for these convictions.

At sentencing the district court heard arguments from the

Government and from Mr. Tavares concerning the PSR’s criminal

-32-
history category calculation, the imposition of several sentence

enhancements and the 18 U.S.C. § 3553(a) factors. The Government

submitted that Mr. Tavares’s criminal history category was VI;

Mr. Tavares maintained that the appropriate criminal history

category was V. The district court never determined which criminal

history category was correct.

The district court imposed “organizer or leader” and

obstruction of justice enhancements for one of Mr. Tavares’s

conduct groups (Group 3). Given these enhancements and their

differing views on the appropriate criminal history category, the

Government and Mr. Tavares disagreed on the correct guidelines

sentencing range. The Government’s guidelines sentencing range

calculation was 235 to 293 months. Mr. Tavares’s guidelines

sentencing range calculation was 210 to 262 months. The Government

asked that the district court impose a sentence of 300 months’

imprisonment, a sentence in excess of the Government’s own

calculated guidelines sentencing range.

The district court never chose between the Government’s

proposed guidelines sentencing range and Mr. Tavares’s. During

argument on sentencing enhancements, the court stated:

“[E]ssentially I will sentence in a way that it will make [the

guidelines sentencing range calculation] not matter.”22 After

considering both potential ranges, the district court decided that

22
R.308 at 17.

-33-
it would impose a sentence above either range and so it was

unnecessary to decide between the two. The court ultimately

imposed a sentence of 300 months’ imprisonment on Mr. Tavares.

The court explained that it imposed this sentence for

several reasons. First, it viewed Mr. Tavares’s crime as “a crime

of intentionality,” “a lifestyle crime,” “a choice . . .

Mr. Tavares made.”23 Second, the court reasoned that “this is a

crime that can be deterred because it’s the lifestyle choice, and

if the cost of this lifestyle is 30 years in prison, then it seems

. . . that others will pause.”24 The court also stated that the

testimony of Mr. Tavares’s victims concerning the violence to which

he subjected them during the crimes of conviction was “about the

most disturbing testimony that [it had] heard.”25 Thus, it

reasoned, “a 300-month sentence serves all the purposes of

sentencing but notably and candidly retribution, retribution for

the women who were victimized, retribution for the violence they

suffered.”26 The court concluded that its chosen sentence “fully

satisfie[d] the purposes of sentencing, particularly general

deterrence, specific deterrence, retribution, public safety, indeed

23
Id. at 43.
24
Id.
25
Id.
26
Id. at 44.

-34-
incapacitation.”27

“We review the district court’s interpretation and

application of the sentencing guidelines de novo and factual

findings for clear error.” United States v. Cortés-Cabán, 691 F.3d

1, 26 (1st Cir. 2012). “We review the reasonableness of a criminal

sentence under an abuse-of-discretion standard.” United States v.

Rivera-Moreno, 613 F.3d 1, 8 (1st Cir. 2010) (citing Gall v. United

States, 552 U.S. 38, 51 (2007)). Review of a sentence under this

standard generally involves a two-step process: First, we

determine whether the district court committed procedural error;

second, if there was no procedural error, we determine whether the

sentence was substantively reasonable. See Gall, 552 U.S. at 51.

We review for plain error Mr. Tavares’s claims that he raises for

the first time on appeal. See United States v. Ríos-Hernández, 645

F.3d 456, 462 (1st Cir. 2011).

a. Calculation of Mr. Tavares’s Guidelines
Sentencing Range

Mr. Tavares correctly points out that the district court

never conclusively determined his guidelines sentencing range. It

considered both the Government’s calculation and Mr. Tavares’s, but

never determined which was correct or stated upon which it relied.

This lapse is clearly a significant procedural error. The district

court is required to calculate the defendant’s guidelines

27
Id. at 47.

-35-
sentencing range before exercising its discretion. See Gall, 552

U.S. at 49 (stating that “a district court should begin all

sentencing proceedings by correctly calculating the applicable

Guidelines range”) (citing Rita v. United States, 551 U.S. 338,

347-48 (2007)). “[F]ailing to calculate (or improperly

calculating) the Guidelines range” is a “significant procedural

error.” Gall, 552 U.S. at 51. The Supreme Court has made clear

that “[t]he Guidelines provide a framework or starting point . . .

for the judge’s exercise of discretion.” Freeman v. United States,

131 S. Ct. 2685, 2692 (2011).

Under the particular circumstances of this case, however,

we are convinced that the district court’s failure to calculate

definitively the operative guidelines sentencing range was

harmless. The record disclosed that the district court understood

the position of the parties on the applicable guidelines range. It

is also apparent that the court understood that the only point of

disagreement between the parties was the applicable criminal

history category. There is, moreover, no basis to conclude, and

neither party suggests, that the proper guidelines sentencing range

was other than one of those suggested and discussed at the

sentencing hearing. The court imposed sentencing enhancements, the

sole purpose of which is to alter a defendant’s guidelines

sentencing range, and considered both resulting guidelines

-36-
sentencing ranges.28 The record makes equally clear, however, that,

having been apprised of these considerations, the district court

determined that a sentence within the guidelines range as

calculated by either party was not an appropriate sentence. The

court stated: “[E]ssentially I will sentence in a way that it will

make [the guideline sentencing range calculation] not matter.”29

Therefore, regardless of whether Mr. Tavares’s guidelines

sentencing range was that calculated by the Government or by

Mr. Tavares, the district court was of the view that a sentence of

300 months was warranted.

Although the district court’s failure to calculate

conclusively Mr. Tavares’s guideline sentencing range is a serious

procedural error, such an error does not necessarily require remand

for re-sentencing. The Supreme Court held in Williams v. United

States that “remand is required only if the sentence was imposed as

a result of” the error.30 503 U.S. 193, 202-03 (1992) (internal

quotation marks omitted). If “the district court would have

imposed the same sentence” even without the error, it was harmless.

28
R.308 at 5-25.
29
Id. at 17.
30
In United States v. Williams, 503 U.S. 193 (1992), the
Court was interpreting 18 U.S.C. § 3742(f)(1), which provides, in
relevant part, “[i]f the court of appeals determines that the
sentence was . . . imposed as a result of an incorrect application
of the sentencing guidelines, the court shall remand the case for
further sentencing proceedings.” Section 3742(f)(1) was not
changed by United States v. Booker, 543 U.S. 220 (2005).

-37-
Id. We routinely apply Williams’s harmless-error analysis to

procedural errors at sentencing.31 Whether the district court’s

commission of a significant procedural error, here its failure to

calculate Mr. Tavares’s guidelines sentencing range, is subject to

harmless-error analysis under Williams is a question of first

impression in this circuit. Our colleagues in the Sixth Circuit

have confronted squarely the issue of whether Williams applies to

a failure to calculate definitively the guidelines sentencing range

and have held that it does. See, e.g., United States v. Lanesky,

494 F.3d 558, 561-62 (6th Cir. 2007) (performing harmless-error

analysis where “the sentencing court did not calculate an

applicable guideline range at all”).32 Other circuits, while not

confronting precisely this issue, have held that other serious

procedural sentencing lapses are subject to Williams and to

31
See, e.g., United States v. McGhee, 651 F.3d 153, 158 (1st
Cir. 2011) (performing harmless-error analysis on the district
court’s erroneous application of a career offender designation);
United States v. Marsh, 561 F.3d 81, 86 (1st Cir. 2009) (applying
harmless-error analysis to the district court’s application of an
upward departure under U.S.S.G. § 5K2.0).
32
The Third and Ninth Circuits also have addressed this issue
in unpublished opinions and reached the same conclusion. See,
e.g., United States v. Swanson, 455 F.App’x 246, 249 (3d Cir. 2011)
(holding that “the District Court’s failure to calculate explicitly
the Guidelines range . . . was harmless error”); United States v.
Olibas-Valenzuela, 404 F.App’x 213, 214 (9th Cir. 2010) (applying
harmless-error analysis where the district court “did not calculate
the advisory Guidelines range[] and neither the parties nor the
probation office identified the applicable range”).

-38-
harmless-error analysis.33

The reasoning of our sister circuits is persuasive. The

fact that Gall designated failure to calculate the guidelines

sentencing range as serious procedural error does not preclude

application of Williams’s harmless-error analysis. As our

colleagues on the Eighth Circuit have concluded, “[w]e see nothing

in Gall that undermines Williams or makes harmless-error analysis

inapplicable to procedural sentencing errors.” United States v.

Henson, 550 F.3d 739, 741 (8th Cir. 2008). We note, furthermore,

that the Supreme Court in United States v. Booker, 543 U.S. 220

(2005), noted the continued validity of harmless-error analysis in

33
See, e.g., United States v. Woods, 670 F.3d 883, 886 (8th
Cir. 2012) (“A failure to properly calculate the advisory
Guidelines range is a significant procedural error, and a
non-harmless error in calculating the guidelines range requires a
remand for resentencing.” (quoting United States v. Spikes, 543
F.3d 1021, 1023 (8th Cir. 2008))); United States v. Bacon, 617 F.3d
452, 456-57 (6th Cir. 2010) (applying harmless-error analysis where
“the district court . . . committed a significant procedural
error”); United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010)
(same); United States v. Delgado-Martinez, 564 F.3d 750, 752-53
(5th Cir. 2009) (same); United States v. Abbas, 560 F.3d 660, 666
(7th Cir. 2009) (applying Williams’s harmless-error analysis to “a
mistake that is specifically listed as a significant procedural
error in Gall [v. United States, 552 U.S. 38 (2007)]”); United
States v. Livesay, 525 F.3d 1081, 1092 (11th Cir. 2008) (applying
harmless-error analysis where “the district court committed prong
one or ‘procedural’ Gall error when it departed 18 levels under
§ 5K1.1”); United States v. Grissom, 525 F.3d 691, 696 (9th Cir.
2008) (holding that remand is necessary only “if the sentence
imposed resulted from an incorrect application of the Sentencing
Guidelines, and the error was not harmless” (emphasis added)
(internal quotation marks omitted)); United States v. Kristl, 437
F.3d 1050, 1054-55 (10th Cir. 2006) (holding that the court “must
remand--without reaching the question of reasonableness--unless the
error is harmless”).

-39-
procedural error cases. The Court stated that “in cases not

involving a [constitutional] violation, whether resentencing is

warranted or whether it will instead be sufficient to review a

sentence for reasonableness may depend upon application of the

harmless-error doctrine.” Id. at 268.

An error is harmless if it “did not affect the district

court’s selection of the sentence imposed.” Williams, 503 U.S. at

203. However, even if we are satisfied that an error did not

affect the district court’s determination of the sentence, we still

must review the sentence for substantive reasonableness. See id.

(“If the party defending the sentence persuades the court of

appeals that the district court would have imposed the same

sentence absent the erroneous factor, then a remand is not required

. . . and the court of appeals may affirm the sentence as long as

it is also satisfied that the departure is reasonable.”); United

States v. Marsh, 561 F.3d 81, 86 (1st Cir. 2009) (reviewing the

district court’s discussion of § 3553(a) factors after determining

that any error in the district court’s sentencing was harmless).

With these principles in mind, we first consider whether

the district court’s error was harmless. As we noted earlier, the

district court clearly stated that it would sentence Mr. Tavares in

such a manner as to render the guidelines sentencing range

irrelevant. It also engaged in a lengthy colloquy with the parties

concerning various enhancements to Mr. Tavares’s sentence.

-40-
Ultimately, the district court calculated Mr. Tavares’s guidelines

sentencing range assuming a criminal history category of V and then

assuming a criminal history category of VI. Immediately before

sentencing Mr. Tavares, the court stated, “I just want to identify

again the Sentencing Guideline range which was[,] even accepting

the defense’s calculations, the guideline range is 210 to 262

months. I’ve described why, taking the government’s calculations

. . . it’s still 235 to 293 at a category 6.”34 With both of these

potential guidelines sentencing ranges in mind, the court then

stated, “I am going to accept the government’s recommendation here,

and here’s why: This is a crime of intentionality. This is a

lifestyle crime. This is a choice . . . Mr. Tavares made.”35

This is just the type of harmless error in sentencing

envisioned in United States v. Rodriguez, 630 F.3d 39 (1st Cir.

2010). In Rodriguez, we stated:

Certainly there are
situations in which a judge
might make clear that a dispute
about a Guidelines calculation
did not matter to the sentence.
This might be a different case
if, for example, the district
judge had been faced with an
explicit choice between the two
sets of Guidelines, and thus
understood the magnitude of the
difference between them, when he
said the choice did not affect

34
R.308 at 42.
35
Id. at 43.

-41-
 the sentence.

Id. at 43. Disagreement over Mr. Tavares’s criminal history

category separates Mr. Tavares’s calculation from the Government’s.

The district court understood this disagreement and chose not to

decide between the two proposed guidelines sentencing ranges

because the severity and nature of Mr. Tavares’s crimes of

conviction made doing so unnecessary. Indeed, in its statement of

reasons, the district court wrote that “Criminal History Category

is V or VI.”36 The district court therefore did not fail completely

to calculate Mr. Tavares’s guidelines sentencing range or impose

his sentence without any consideration of the Guidelines. Rather,

it determined that whether Mr. Tavares’s criminal history category

was V or VI did not impact its sentencing decision. The district

court clearly understood the options within the possible guidelines

calculations and clearly rejected all of them as yielding too

lenient a sentence. The district court’s evident intent to

sentence Mr. Tavares to 300 months’ imprisonment regardless of

whether his criminal history category was V or VI is sufficient to

demonstrate that the district court’s failure to determine

Mr. Tavares’s guidelines sentencing range did not affect the

sentence it imposed.

This situation is not materially different from

situations that we and our sister circuits have encountered with

36
R.283 at 7.

-42-
respect to other procedural errors. For example, in Marsh, the

district court stated “that it would impose the same sentence as a

non-guideline sentence under 18 U.S.C. § 3553(a).” 561 F.3d at 85.

We held that the defendant’s claim of procedural error “is not one

we need to resolve” because “the district court stated that it

would have imposed the same sentence as a non-Guideline sentence.”

Id. at 86. This statement was sufficient for us to conclude that

“an alleged Guideline error would not have affected the district

court’s sentence.” Id.; see also United States v. Ortiz, 636 F.3d

389, 395 (8th Cir. 2011) (holding that “[b]ecause the district

court stated that ‘even in the absence of these departures under

the Sentencing Guidelines, [the district court] would [have]

impose[d] the same sentence,’ any procedural error was harmless as

a matter of law” (alterations in original)); United States v.

Teague, 469 F.3d 205, 209-10 (1st Cir. 2006) (holding that the

district court’s erroneous determination that the defendant was a

career offender under the Guidelines was harmless because the

district court stated that it found the career offender enhancement

“undue or excessive” and so did not rely on the enhancement in

sentencing).37

37
This case stands in stark contrast to typical cases where
a district court’s failure to calculate a defendant’s guidelines
sentencing range has warranted a remand for resentencing. Cases in
which reversible error has been found involve far less awareness of
the applicable guidelines range than we find here. In United
States v. Peebles, 624 F.3d 344, 347 (6th Cir. 2010), the Sixth
Circuit remanded the case for resentencing because “the transcript

-43-
 We therefore conclude that the district court’s failure

to choose between the two proposed guidelines sentencing ranges and

determine definitively which applied is harmless error. We must

therefore review the substantive reasonableness of Mr. Tavares’s

sentence. See infra II.B.1.f.

b. Since-Vacated State Conviction

During the pendency of this appeal, Mr. Tavares’s

Massachusetts criminal conviction, which was given a score of three

in the PSR, was reversed and its verdict set aside. See

Commonwealth v. Tavares, 959 N.E.2d 449, 451-52 (Mass. App. Ct.

2011). According to the PSR, Mr. Tavares’s criminal history

category was VI; had this conviction not been counted, it would

have been V. He contends that the inclusion of this since-vacated

state conviction in his guidelines sentencing range calculation

requires resentencing.

As we have noted earlier, Mr. Tavares’s sentence was not

imposed as a result of his guidelines sentencing range calculation;

his criminal history category did not affect the district court’s

of the sentencing hearing does not reflect that the district court
addressed the Guidelines range at all.” “The applicable Guidelines
range was not discussed during the hearing by either attorney or by
the judge,” so the court found it “impossible to determine with
certainty what sentencing range the district court relied on, and
whether the district court meant to impose a sentence within or
above that range.” Id.; see also United States v. Novales, 589
F.3d 310, 314 (6th Cir. 2009) (remanding for resentencing where
“the district court never mentioned any specific, numeric
Guidelines range at any point during the [sentencing] hearing”).

-44-
sentencing. Because failing to determine Mr. Tavares’s guidelines

sentencing range is harmless error, any error in calculating the

guidelines sentencing range, such as improperly including a prior

conviction, is harmless.

We have recognized that, in some cases, an erroneous

calculation or designation “can be influential even if not treated

as controlling.” United States v. McGhee, 651 F.3d 153, 159 (1st

Cir. 2011). In McGhee, the district court had classified the

defendant as a career offender under the Guidelines but the case on

which it relied to do so subsequently was overruled. We therefore

were required to “treat that [designation] retrospectively as

error.” Id. at 158. Moreover, in explaining the defendant’s

sentence, the district court made ambiguous remarks concerning its

rationale for the sentence’s length. As a result, we held that “we

think the transcript is less clear than it was in Teague that the

career offender designation was entirely irrelevant.” Id. at 159.

In Teague, we concluded that the district court had made clear that

its erroneous designation of the defendant as a career offender had

not mattered to its sentencing--only the circumstances of prior

crimes and the defendant’s role in the crime of conviction had been

considered. 469 F.3d at 209. Therefore no remand was required.

Id. at 209-10.

This case is not like McGhee. We do not believe that the

record supports the view that the district court was influenced

-45-
materially by the inclusion of Mr. Tavares’s since-vacated

conviction in his PSR. On the contrary, the record indicates that

the district court considered only Mr. Tavares’s crimes of

conviction in imposing his sentence, not his since-vacated

conviction. After initially stating its chosen sentence, the

district court explained its rationale:

I believe that this is a crime
that can be deterred because
it’s the lifestyle choice, and
if the cost of this lifestyle is
30 years in prison, then it
seems to me that others will
pause.

I’m going to accept the
government’s recommendation
because I sat through the
testimony of women that was
about the most disturbing
testimony that I’ve heard since
I’ve been on the bench.[38]

The court repeatedly connected trial testimony39 and Mr. Tavares’s

victims40 in his crimes of conviction to his sentence of 300 months.

Mr. Tavares’s since-vacated conviction was not mentioned by the

district court and there is no evidence in the record that the

district court was in any way relying on, or influenced by, this

conviction or the PSR’s guidelines sentencing range calculation

which included it. As we have noted earlier, the district court

38
R.308 at 43.
39
Id.
40
Id. at 45.

-46-
did not view Mr. Tavares’s criminal history as operative in the

determination of the sentence. It made clear that it would have

imposed the same sentence had Mr. Tavares’s criminal history

category been V; its focus was the nature and the circumstances of

the crimes of conviction. See Teague, 469 F.3d at 209-10

(affirming the defendant’s sentence where the district court

erroneously believed that the defendant was a career offender under

the Guidelines and then used its discretion to depart downward from

the guidelines sentencing range after considering the defendant’s

role in the crime of conviction).

We therefore conclude that the inclusion of Mr. Tavares’s

since-vacated conviction in his PSR was harmless error.

c. “Organizer or Leader” Enhancement

The district court imposed a two-level “organizer or

leader” enhancement on Mr. Tavares’s sentence under United States

Sentencing Guidelines section 3B1.1(c). Evidence produced at trial

established that Mr. Tavares had a prostitute collect money from

his other prostitutes, drive around his other prostitutes and

inform him when a prostitute had misbehaved. The district court

found that “Mr. Tavares was the top of this organization,”41 stating

that “[t]here’s no question that he was in a leadership role” in

committing the offenses of conviction.42

41
R.308 at 16.
42
Id. at 15.

-47-
 United States Sentencing Guidelines section 3B1.1(c)

provides for a two-level enhancement if the defendant “was an

organizer, leader, manager, or supervisor in any criminal activity

other than” a criminal activity involving five or more

participants. Under this provision, therefore, the defendant must

exercise leadership over fewer than five participants. A

“‘participant’ is a person who is criminally responsible for the

commission of the offense, but need not have been convicted.”

U.S.S.G. § 3B1.1 cmt. 1.

Mr. Tavares contends that the prostitutes he employed

cannot be “participants” within the meaning of section 3B1.1(c)

because they received immunity from prosecution. Their immunity,

he argues, prevents them from being criminally responsible for the

offenses of conviction. We cannot accept this argument. The

Guidelines’ commentary notes that a “participant” need not be

convicted of the offense. That a participant can be unindicted is

clear from the plain language of the Guideline. See, e.g., United

States v. Scott, 529 F.3d 1290, 1303 (10th Cir. 2008) (“A

‘participant,’ in turn, must be ‘criminally responsible for the

commission of the offense’ even if he or she was not charged or

convicted.” (quoting U.S.S.G. § 3B1.1 cmt. n.1)); United States v.

Messervey, 317 F.3d 457, 464-65 (5th Cir. 2002) (rejecting

defendant’s assertion that “the district court erred when it found

that those [the defendant] exploited to his advantage in his fraud

-48-
schemes were ‘participants’ in the offenses . . . because the PSR

described these people as ‘victims’”); see also U.S.S.G. § 3B1.1

introductory cmt. (“The determination of a defendant’s role in the

offense is to be made on the basis of all conduct within the scope

of § 1B1.3 . . . and not solely on the basis of elements and acts

cited in the count of conviction.”).

We have not had occasion to consider whether a grant of

immunity precludes designation as a “participant.” The only

appellate court to have addressed the issue has concluded that a

grant of immunity does not preclude such a designation. See United

States v. Anderson, 580 F.3d 639, 650 n.16 (7th Cir. 2009); United

States v. Jackson, 95 F.3d 500, 511 (7th Cir. 1996). In light of

our sister circuit’s reasoning and the clear language of the

Guideline, we also hold that a “participant” can be an immunized

witness against the defendant. The district court did not err in

imposing an “organizer or leader” enhancement.

d. Juvenile Adjudications

Mr. Tavares also challenges the inclusion of two juvenile

adjudications in his PSR, each scored as one point under United

States Sentencing Guidelines section 4A1.2(d)(2)(B). He raises two

issues on appeal, neither of which he raised in the district court.

Thus, our review is for plain error.

First, Mr. Tavares contends that the Government failed to

meet its burden of showing that his juvenile offenses were punished

-49-
by at least sixty days’ confinement. Mr. Tavares misapprehends the

legal standards governing the inclusion of his juvenile

adjudications in the PSR. The PSR scored each adjudication under

section 4A1.2(d)(2)(B). Under this section, the Government only

need establish that the relevant “juvenile sentence [was] imposed

within five years of the defendant’s commencement of the instant

offense”; it does not have to establish any length of confinement.

Mr. Tavares erroneously cites the standard required to score an

adjudication as two points, see U.S.S.G. § 4A1.2(d)(2)(A), which

the PSR did not do. Because Mr. Tavares alleges that the

Government failed to meet the requirements of a standard it did not

apply, his argument fails.

Second, Mr. Tavares urges us to reject the consideration

of juvenile adjudications in sentencing on policy grounds.

Mr. Tavares notes that his “main contention” is “that since the

sentencing guidelines are now advisory rather than mandatory . . .

it is open to him to argue that countervailing policies counsel

against use of juvenile adjudications in federal sentencing.”43

“The Guidelines specifically provide for certain juvenile

adjudications to be considered in evaluating the defendant’s

criminal history.” United States v. Gonzalez-Arimont, 268 F.3d 8,

14 (1st Cir. 2001) (citing U.S.S.G. § 4A1.2(d)). We consistently

43
Appellant Tavares’s Br. 60.

-50-
have upheld scoring juvenile adjudications under the Guidelines.44

Certainly, there is no plain error in considering Mr. Tavares’s

juvenile adjudications. In any event, as we have noted earlier,

Mr. Tavares’s sentence would have been the same even if the

juvenile convictions had not been considered. Moreover,

Mr. Tavares has eight prior convictions which were each scored one.

Mr. Tavares does not challenge the calculation of any of the

remaining six one-point convictions. Because the Guidelines

provide in section 4A1.1(c) that the maximum number of one-point

prior offenses that can be counted in the criminal history category

is four, eliminating two of these offenses still leaves six, more

than the four permitted. The exclusion of Mr. Tavares’s juvenile

adjudications, therefore, would not alter his criminal history

category calculation and so would not alter his sentence (even if

the district court had based Mr. Tavares’s sentence on his criminal

history category, which it did not). Therefore, we decline to

consider Mr. Tavares’s policy argument concerning the use of

juvenile adjudications.

e. Sentencing Memorandum

When sentencing above the guidelines range, the district

44
See, e.g., United States v. Gibbons, 553 F.3d 40, 46 (1st
Cir. 2009); United States v. Melendez, 301 F.3d 27, 34-35 (1st Cir.
2002); cf. United States v. Matthews, 498 F.3d 25, 36 (1st Cir.
2007) (finding “no constitutional barrier to the use of [juvenile]
adjudication[s] to support appellant’s enhanced sentence” under the
Armed Career Criminal Act).

-51-
court is required to articulate its reasoning for the upward

departure. See 18 U.S.C. § 3553(c)(2). This requirement is met

when the district court sets forth its reasoning in a written

“statement of reasons” attached to the judgment. See, e.g., United

States v. Vargas-Dávila, 649 F.3d 129, 130 (1st Cir. 2011). The

district court’s statement of reasons includes a copy of

Mr. Tavares’s sentencing transcript in which the court explained

the imposition of his sentence.

Mr. Tavares makes much of the fact that on the statement

of reasons, the district court wrote “sentencing memo to follow” in

the space provided to justify the imposition of an above-guidelines

sentence. No separate memo was ever produced. We see no error

here. The district court adequately explained Mr. Tavares’s

above-guidelines sentence in the sentencing transcript and

incorporated that transcript in the statement of reasons. The

district court’s decision to incorporate the sentencing transcript,

which contained the required information, rather than to write its

reasoning in the space provided, adequately fulfilled the

requirement that the reasons for the imposition of the sentence be

stated and is not reversible error.

f. Adequate Explanation of Section 3553(a)
Factors

Mr. Tavares also maintains that his sentence is

procedurally unreasonable because the district court failed to

consider the mandatory § 3553(a) factors, especially Mr. Tavares’s

-52-
background and characteristics.

The district court believed that a term of imprisonment

of 300 months “fully satisfie[d] the purposes of sentencing.”45 Our

review of the record makes clear that the district court considered

the mandatory § 3553(a) factors. “While the court ordinarily

should identify the main factors upon which it relies, its

statement need not be either lengthy or detailed.” United States

v. Turbides-Leonardo, 468 F.3d 34, 40 (1st Cir. 2006). We conclude

that the district court’s explanation is adequate. The court

specifically mentioned Mr. Tavares’s background several

times--including his psychological report and family history--the

sentences of co-defendants, deterrence and the violent nature of

the crimes of conviction.46 Given the record, we must conclude that

the district court did not fail to consider the § 3553(a) factors

or “fail[] to adequately explain the chosen sentence.” Gall, 552

U.S. at 51.

Therefore, we conclude that Mr. Tavares’s sentence was

procedurally correct and substantively reasonable.

2. Mr. Jones’s Sentencing

Mr. Jones challenges the procedural and substantive

reasonableness of his sentence. He specifically challenges the use

of his two prior convictions for resisting arrest as predicates for

45
R.308 at 47.
46
Id. at 43-44.

-53-
a career offender classification under the Guidelines and the

district court’s consideration of the § 3553(a) mandatory

sentencing factors. He also contends that his sentence is

substantively unreasonable because the district court gave

insufficient weight to the report of Mr. Jones’s forensic

psychologist. We address these issues in turn.

a. Career Offender Classification

The district court classified Mr. Jones as a career

offender under United States Sentencing Guidelines section 4B1.1

based on his prior Massachusetts convictions for resisting arrest.

Thus, Mr. Jones’s offense level was set at thirty-four, resulting

in an increased guidelines range. We review de novo a

determination that a prior conviction qualifies as a predicate

offense for the purposes of the career offender Guideline. See

United States v. Almenas, 553 F.3d 27, 31 (1st Cir. 2009).

United States Sentencing Guidelines section 4B1.1(a)

classifies a defendant as a career offender if (1) he was at least

eighteen years old at the time he committed the offense of

conviction, (2) the instant offense is a crime of violence and (3)

the defendant has at least two prior felony convictions of a crime

of violence. Mr. Jones urges that his convictions for resisting

arrest cannot be the basis for his career offender classification

because resisting arrest is not a crime of violence. We

consistently have rejected this argument. In Almenas, we held that

-54-
resisting arrest under Massachusetts law is a crime of violence

within section 4B1.1(a). 553 F.3d at 32-35. We reaffirmed this

conclusion recently in United States v. Grupee, 682 F.3d 143, 149

(1st Cir. 2012), and United States v. Davis, 676 F.3d 3, 7 (1st

Cir. 2012).

Mr. Jones attacks Almenas (and its progeny) as

inconsistent with the Supreme Court’s decision in Chambers v.

United States, 555 U.S. 122 (2009), decided after our decision in

Almenas. However, we rejected this claim in United States v.

Weekes, 611 F.3d 68, 72-73 (1st Cir. 2010). Therefore, the

district court did not err in classifying Mr. Jones as a career

offender under the Guidelines.

b. Remaining Challenges to Mr. Jones’s Sentence

“[A reviewing court] must first ensure that the district

court committed no significant procedural error . . . . Assuming

that the district court’s sentencing decision is procedurally

sound, the appellate court should then consider the substantive

reasonableness of the sentence imposed under an abuse-of-discretion

standard.” Gall, 552 U.S. at 51. Accordingly, “[o]ur first task

is to determine whether the district court made any procedural

errors . . . . If the district court has committed no such

procedural error, we then review the substantive reasonableness of

the sentence imposed and review the sentence for abuse of

discretion.” Marsh, 561 F.3d at 85-86 (internal quotation marks

-55-
omitted). “[W]e afford the district court wide discretion in

sentencing.” Id. at 86. Here, because Mr. Jones did not object to

the substantive reasonableness of his sentence before the district

court, we review for plain error. See Matos-Quiñones, 456 F.3d at

20-21.

Mr. Jones submits that the district court committed

significant error by failing to consider the mandatory § 3553(a)

factors, to make explicit reference to those factors and otherwise

to explain adequately his sentence.

The record demonstrates that the district court

explicitly considered the § 3553(a) factors. It identified the

main factors upon which it relied in sentencing Mr. Jones,

emphasizing the connection between the sentence imposed and the

nature and circumstances of the offense, the need for the sentence

to reflect the seriousness of the offense and the avoidance of

unwarranted sentence disparities. Although the district court’s

discussion of these factors was brief, “we do not require the court

to address those factors, one by one, in some sort of rote

incantation when explicating its sentencing decision.” Marsh, 561

F.3d at 86 (internal quotation marks omitted).

The district court also addressed adequately Mr. Jones’s

history and characteristics. It discussed his psychologist’s

report detailing his family background, his history of restraining

orders and his statement to the court. However, after considering

-56-
all of the relevant factors, the district court found that the

gravity of the offense trumped any weight that might otherwise be

given to Mr. Jones’s background. The district court stated:

While I have read the
report that [Mr. Jones’s
counsel] handed up, there are
frankly certain offenses that
are so serious that even if
there’s an explanation for it in
someone’s background and history
and even if you can draw a
straight line from who they were
to who they are now, and if you
can understand it, there are
some offenses that can’t be
explained, can’t be justified.
This is one of them.[47]

In Mr. Jones’s view, this statement indicates the district court’s

refusal to consider his history and characteristics--a mandatory

factor under § 3553(a). We cannot accept this argument. The

district court considered Mr. Jones’s history and characteristics,

but after reviewing these factors, still believed that the nature

of the offense and surrounding circumstances required the sentence

imposed. The district court committed no procedural error in

making that determination.

We now address the substantive reasonableness of

Mr. Jones’s sentence.

Mr. Jones faults the district court for failing to give

47
R.303 at 17.

-57-
“significant weight” to the report of his forensic psychologist.48

The district court stated that it considered this report.49

Mr. Jones contends, however, that, because the district court

relied on his treatment of the victims in determining his sentence,

the district court also should have considered the mitigating

circumstances in his background that may have caused his behavior.

We cannot accept this contention. “That the sentencing court chose

not to attach to certain of the mitigating factors the significance

that the appellant thinks they deserved does not make the sentence

unreasonable.” United States v. Clogston, 662 F.3d 588, 593 (1st

Cir. 2011). Here, the district court considered Mr. Jones’s

mitigating evidence but was not persuaded by it.

We therefore conclude that Mr. Jones’s sentence was

procedurally correct and substantively reasonable.

Conclusion

For the reasons set forth in this opinion, Mr. Tavares’s

and Mr. Jones’s convictions and sentences are hereby affirmed.

AFFIRMED

48
Appellant Jones’s Br. 60.
49
R.303 at 17.

-58-