United States District Court, D. South Carolina, Charleston Division
C. NORTON UNITED STATES DISTRICT JUDGE.
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.
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.
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. 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.
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.
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
(1) 34, if the offense of conviction is 18 U.S.C. §
(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.
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
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 ...