United States v. Randolph Spain

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4692

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

RANDOLPH JOHNSON SPAIN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:14-cr-00021-F-1)

Submitted: November 21, 2016 Decided: December 20, 2016

Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.

Affirmed in part, vacated in part and remanded by unpublished
per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, Acting United States Attorney,
Jennifer P. May-Parker, Barbara D. Kocher, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

A federal jury convicted Randolph Johnson Spain of two

counts of interstate transportation of an individual for

purposes of prostitution, in violation of 18 U.S.C. § 2421

(2012). The district court upwardly departed from the

Guidelines range and sentenced Spain to the statutory maximum of

240 months of imprisonment, and he now appeals. For the reasons

that follow, we affirm the convictions, but vacate the sentence

and remand.

Spain first challenges the sufficiency of the evidence for

the second count of conviction. We review a district court’s

decision to deny a Fed. R. Crim. P. 29 motion for a judgment of

acquittal de novo. United States v. Smith, 451 F.3d 209, 216

(4th Cir. 2006). A defendant challenging the sufficiency of the

evidence faces a heavy burden. United States v. Beidler, 110

F.3d 1064, 1067 (4th Cir. 1997). In determining whether the

evidence is sufficient to support a conviction, we determine

“whether there is substantial evidence in the record, when

viewed in the light most favorable to the government, to support

the conviction.” United States v. Palacios, 677 F.3d 234, 248

(4th Cir. 2012) (internal quotation marks omitted). Substantial

evidence is “evidence that a reasonable finder of fact could

accept as adequate and sufficient to support a conclusion of a

defendant’s guilt beyond a reasonable doubt.” Id. (internal

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quotation marks omitted). Furthermore, “[d]eterminations of

credibility are within the sole province of the jury and are not

susceptible to judicial review.” Id. (internal quotation marks

omitted).

Section 2421(a) prohibits knowingly transporting any

individual in interstate commerce with intent that such

individual engage in prostitution or any sexual activity that

constitutes a criminal offense. 18 U.S.C. § 2421(a). The

intent that the individual engage in prostitution, however, need

not be the defendant’s sole motivation for the interstate travel

where prostitution is the predominate purpose of the trip.

Dingess v. United States, 315 F.2d 238, 239 (4th Cir. 1963). We

have thoroughly reviewed the record and conclude that there was

sufficient evidence to support the jury’s verdict of guilt on

the second count.

Spain also argues that the district court erred in applying

a cross-reference under the Sentencing Guidelines and that this

error violated his Sixth Amendment right to a jury trial. We

review a sentence for abuse of discretion, determining whether

the sentence is procedurally and substantively reasonable.

United States v. Heath, 559 F.3d 263, 266 (4th Cir. 2009). In

so doing, we first examine the sentence for “significant

procedural error,” including “failing to calculate (or

improperly calculating) the Guidelines range, treating the

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Guidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a) [(2012)] factors, selecting a sentence based on

clearly erroneous facts, or failing to adequately explain the

chosen sentence”. Gall v. United States, 552 U.S. 38, 51

(2007). We then “‘consider the substantive reasonableness of

the sentence imposed.’” United States v. Evans, 526 F.3d 155,

161 (4th Cir. 2008) (quoting Gall, 552 U.S. at 51).

In addition, in reviewing the district court’s calculations

under the Guidelines, “we review the district court’s legal

conclusions de novo and its factual findings for clear error.”

United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010)

(internal quotation marks omitted). We will “find clear error

only if, on the entire evidence, we are left with the definite

and firm conviction that a mistake has been committed.”

Manigan, 592 F.3d at 631 (internal quotation marks omitted).

Section 2G1.1(c) of the Guidelines provides that a district

court should apply U.S. Sentencing Guidelines § 2A3.1 (2015) in

determining the offense level if the offense involved conduct

described in 18 U.S.C. § 2242 (2012). USSG § 2G1.1(c). A

defendant is guilty of violating § 2242 if he knowingly causes

another person to engage in a sexual act by threatening or

placing that other person in fear. 18 U.S.C. § 2242(1). Based

on our review of the record, we conclude that the district court

did not err in applying this cross-reference in calculating the

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advisory Guidelines range. Moreover, as Spain concedes in his

reply brief, his constitutional argument is foreclosed by

binding circuit precedent. See United States v. Benkahla, 530

F.3d 300, 312 (4th Cir. 2008) (“Sentencing judges may find facts

relevant to determining a Guidelines range by a preponderance of

the evidence, so long as that Guidelines sentence is treated as

advisory and falls within the statutory maximum authorized by

the jury’s verdict.”).

Finally, Spain argues that the court erred in awarding two

criminal history points each to his 2011 Virginia conviction

consisting of four counts of prostitution and his 2013 North

Carolina conviction for assault because these convictions were

on appeal. The Government has conceded the error and joins

Spain in requesting that we vacate Spain’s sentence. With

respect to Spain’s North Carolina conviction, the district court

should have awarded that conviction only one criminal history

point because it was on appeal. See United States v. Martin,

378 F.3d 353, 355-60 (4th Cir. 2004). The Virginia conviction,

however, was not on appeal. Spain appealed the 2011 Virginia

conviction and the presentence report makes clear that he

pleaded guilty to one of the four prostitution charges while on

appeal in the state circuit court. However, as the Government

points out, the district court awarded two criminal history

points each for (1) the 2011 conviction for four counts of

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prostitution as well as (2) the 2011 Virginia conviction for one

of those counts that resulted from Spain’s appeal to the state

circuit court. As these are not separate convictions, the

district court double-counted them in calculating Spain’s

criminal history.

We are unable to determine on the record that this error

was harmless. * Cf. United States v. Savillon-Matute, 636 F.3d

119, 123 (4th Cir. 2011) (to determine that incorrect Guidelines

calculation was harmless, appellate court must determine that

district court would have reached the same result if Guidelines

had been properly calculated and sentence would have been

reasonable). Accordingly, we affirm Spain’s convictions, but

vacate the sentence and remand for proceedings consistent with

this opinion. We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before this court and argument would not aid in the decisional

process.

AFFIRMED IN PART;
VACATED IN PART AND REMANDED

*We express no opinion on the substantive reasonableness of
the sentence that the district court imposed.