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United States v. Jackson

United States District Court, D. South Carolina, Charleston Division

March 14, 2018

UNITED STATES OF AMERICA,
v.
DAMON JACKSON a/k/a “DJ” a/k/a “Daddy Frost” TREMEL BLACK a/k/a “Sincere” a/k/a “New York” DA-SHUN SHUKUR CURRY a/k/a “Dae Dae” BAKARI SHAHID MCMILLAN a/k/a “Bizzle” KERRY TAYLOR a/k/a “KJ” DESMOND SINGLETARY a/k/a “Six” HOWARD PARKER a/k/a “Poppa” RYAN SHAQUON TURNER a/k/a “Gotti” a/k/a “Qweezy” ROBERT BLACK a/k/a “Kareem Banks” a/k/a “Nino Black” a/k/a “Black” COREY MILLER a/k/a “Clow”, Defendants.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE.

         This matter comes before the court on a dispute over the United States Sentencing Guidelines (“the Guidelines”) brought by defendants Tremel Black, Da-Shun Shukur Curry, Kerry Taylor, Desmond Singletary, Howard Parker, Ryan Shaquon Turner, and Robert Black, the defendants who entered guilty pleas in the US v. Jackson sex trafficking case. After a hearing on the issue, the court ruled that defendants are not subject to an enhanced base offense level of 34 and that the proper base offense level is 14. This written order provides further explanation of that oral ruling.

         I. BACKGROUND

         Defendants were indicted on multiple counts of trafficking a minor for sex and of sex trafficking by force, fraud, and coercion in connection with a conspiracy to commit sex trafficking in South Carolina, Georgia, and North Carolina. The indictment charges that the defendants conspired to recruit young women, some of whom were less than 18 years old, to work as prostitutes. According to the indictment, defendants used the website Backpage.com to advertise for sexual services and used Facebook to recruit victims as well as to communicate with other co-conspirators. Defendants also physically beat or threatened to physically beat the victims to terrorize and control them. Defendants kept all or most of the proceeds from the sex work. The indictment further charges that members of the conspiracy used heroin and crack cocaine to coerce the victims-many of whom were addicted to drugs-to engage and continue to engage in commercial sex acts.

         II. DISCUSSION

         Defendants contend that they should be subjected to a base offense level of 14 as opposed to 34. They argue that while the conduct that forms the basis of their conspiracy conviction tracks the language of the penalty subsection 15 U.S.C. § 1591(b)(1), defendants pleaded guilty to the conspiracy charge and its related penalty provision under 18 U.S.C. § 1594(c) instead.[1] Defendants contend that the language of § 2G1.3 of the Guidelines specifies the count of conviction as the basis for selecting the proper offense level. All defendants signed a plea agreement that did not have any reference to the penalty subsection and instead included only a reference to § 1594(c). Since there was only a reference to § 1594(c), defendants contend that the base offense level is 14. Because none of the defendants who entered into a plea agreement were “convicted under” § 1591(b)(1), defendants contend that the guideline base offense level of 34 is incorrect. This court-and the only court of appeals to consider this issue-agrees. United States v. Wei Lin, 841 F.3d 823, 825 (9th Cir. 2016). The base offense level of 34 applies only to defendants who were convicted of the penalty subsection § 1591(b)(1), which none of these defendants pleaded guilty to. Therefore, the court finds that the appropriate base offense level under the plain language of § 2G1.1(a) is 14.

         The court starts with the plain language of the Guidelines. The Guidelines direct that for conspiracy offenses, the court should find the Base Offense Level in the section used for the underlying offense. U.S. Sentencing Guidelines Manual § 2X1.1(a) (U.S.

         Sentencing Comm'n 2015). For the underlying offense of the sex trafficking of adults, Guidelines § 2G1.1 states:

§2G1.1. Promoting a Commercial Sex Act or Prohibited Sexual Conduct with an Individual Other than a Minor (a) Base Offense Level:
(1) 34, if the offense of conviction is 18 U.S.C. § 1591(b)(1); or
(2) 14, otherwise.

U.S. Sentencing Guidelines Manual § 2G1.1(a) (U.S. Sentencing Comm'n 2015). Section 2G1.1(a) provides only two offense levels: 34 “if the offense of conviction is 18 U.S.C. § 1591(b)(1), ” and 14 “otherwise.” Here, the offense of conviction was not § 1591(b)(1). Therefore, the guideline offense level cannot be 34. The defendants' offense of conviction necessarily then falls into the second category of § 2G1.1(a) where the offense of conviction is “otherwise.” So the offense level must be 14.

         This court is not the first to make such a finding. In Wei Lin, the Ninth Circuit held in a published opinion that the base level of 34 only applied to defendants who were subject to statutory 15-year mandatory minimum sentence for sex trafficking offenses involving minors under the age of 14, or offenses involving force, threats of force, fraud, or coercion, not conspiracy offenses. Wei Lin, 841 F.3d at 827. The Ninth Circuit held that Wei Lin could not receive an offense level of 34, despite the Guidelines' directive to use the base offense level for the underlying substantive crime, because his “offense of conviction” was not § 1591(b)(1). Wei Lin, 841 F.3d at 825-27. The Ninth Circuit determined that it is only if the “offense of conviction” is punishable by § 1591(b), then the base offense level of 14 applies. Wei Lin, like the defendants here, was convicted of conspiracy to violate § 1591 under 18 U.S.C. § 1594(c). See Wei Lin, 841 F.3d at 825-27; see also USSG § 2G1.1 (“promoting a commercial sex act or prohibited sexual conduct with an individual other than a minor”).

         The Wei Lin court suggests that the Sentencing Commission only intended § 2G1.1(a)(1) to apply where defendants were subject to the mandatory minimum sentence imposed by § 1591(b), stating, “the Commission . . . likely did not want the higher base offense level to apply when the defendant was not subject to § 1591(b)(1)'s fifteen-year mandatory minimum.” Lin, 841 F.3d at 827. Certainly, if the text of § 2G1.1(a) read “34, if the offense of conviction is 18 U.S.C. § 1591(a)(1) or 1594” then this court would ...


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