US v. Houston

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; David H. Souter,* Associate Supreme Court Justice and Bobby R. Baldock,** Appellate Judge. Published. * The Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. ** Of the Tenth Circuit, sitting by designation. [16-1017, 16-1020]

Case: 16-1017

Document: 00117157213

Page: 1

Date Filed: 05/19/2017

Entry ID: 6093497

United States Court of Appeals
For the First Circuit
No. 16-1017
UNITED STATES OF AMERICA,
Appellee,
v.
ALVIN HOUSTON, JR., a/k/a/ Chip,
Defendant, Appellant,

No. 16-1020
UNITED STATES OF AMERICA,
Appellee,
v.
SHAWNA CALHOUN,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]

Before
Lynch, Circuit Judge,
Souter, Associate Justice,*
and Baldock, Circuit Judge.**

*

The Hon. David H. Souter, Associate Justice (Ret.) of
the Supreme Court of the United States, sitting by designation.
**

Of the Tenth Circuit, sitting by designation.

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Syrie D. Fried on brief for appellant Houston.
Jeffrey W. Langholtz on brief for appellant Calhoun.
Renée M. Bunker, Assistant United States Attorney, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.

May 19, 2017

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BALDOCK,
Jr.,

and

Shawna

Page: 3

Circuit

Date Filed: 05/19/2017

Judge.

Calhoun

Defendants

pleaded

guilty

Alvin
to

Entry ID: 6093497

Houston,

charges

of

transporting Minor A from Maine to Massachusetts and back to
Maine over an eight-day period with the intent that Minor A
engage in prostitution.

See 18 U.S.C. § 2421.

The district

court sentenced each Defendant to 108 months' imprisonment.

In

these consolidated appeals, Houston asserts the district court
erroneously applied sentencing enhancements for undue influence
and computer use, U.S.S.G. §§ 2G1.3(b)(2)(B) & (b)(3)(B), and
the government breached the terms of a proffer agreement in its
sentencing memorandum.
to

adequately

fashioning

her

weigh

Calhoun argues the district court failed
the

sentence.

18

U.S.C.

Exercising

§ 3553(a)

factors

jurisdiction

under

when
28

U.S.C. § 1291 and concluding that all these claims lack merit,
we affirm.
I.
When, as here, a sentencing appeal follows a guilty
plea, we obtain the facts from the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report,
and the record of the disposition hearing.

United States v.

Dávila-González, 595 F.3d 42, 45 (1st Cir. 2010).

"We rehearse

only those facts that are needed to put the claims of error into
context."

Id.

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On December 13, 2014, Minor A contacted Calhoun via
Facebook.

In response to a question about her age, Minor A, who

was 13 years old, wrote that she was 15.
"[W]hat I do you need to be of age."

Calhoun replied,

They later discussed

meeting up to travel from Maine to either Massachusetts or New
York.
Calhoun asked her acquaintance Houston to rent a car
to

drive

Calhoun

Massachusetts.

and

Minor

A

from

Maine

to

Boston,

In exchange, the group would pay his expenses

and he could visit his child in Boston.

On December 23, Houston

drove Calhoun, Minor A, and another individual from Maine to
Boston.
online

While in Boston, Calhoun used her smartphone to prepare
advertisements

on

Minor A's sexual services.

Backpage.com

to

market

her

own

and

Calhoun coached Minor A on how to

post to Backpage.com and also purchased condoms for Minor A to
use.

Houston, meanwhile, drove Minor A to various locations in

the Boston area to engage in prostitution, and Minor A provided
the money from these encounters to Calhoun.

Both Houston and

Calhoun learned Minor A's true age either at the outset of the
trip or while in Boston.
On December 30, Calhoun, Houston, and Minor A learned
the FBI was looking for Minor A in Massachusetts.
drove the group to Bangor, Maine.

Houston then

While en route, they stopped

briefly in the Lewiston/Auburn area, near Minor A's hometown.
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Minor A hid in the backseat of the car because the group knew
the

authorities

and

her

mother

were

looking

for

her.

Advertisements for Minor A's sexual services in the Bangor area
were posted to Backpage.com, and Minor A again performed sexual
services for money.
Early

in

the

morning

on

December

31,

Calhoun

and

Houston drove Minor A to a hotel in the Bangor area so that she
could

meet

with

enforcement
entered

a

client.

detective

the

hotel

who

The

purported

identified

room.

Police

client

himself

then

was

after

arrested

a

Minor

Calhoun

law
A
and

Houston, who were in the parking lot in the rental car.
That same day, Houston waived his Miranda rights and
agreed to speak with the police.

He said he knew that Minor A

and Calhoun had both been engaging in prostitution at different
hotels, that he had driven them to Boston and back to Maine, and
that they paid for his expenses during the trip.
In January 2015, Houston and Calhoun were charged in a
one-count

complaint

interstate

commerce

with
with

transporting
the

intent

an
that

individual
she

engage

in
in

prostitution, and aiding and abetting the same, in violation of
18 U.S.C. § 2421 and § 2.
The

following

month,

Houston

agreed

to

provide

information relating to the human trafficking of Minor A via a
proffer agreement.

The government agreed not to offer Houston's
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statements from the proffer session in evidence in its case-inchief or in connection with a sentencing proceeding, except in a
prosecution for false statements or perjury.

But the terms of

the agreement also provided that, in the event of a prosecution,
the

government

district court.

would

provide

Houston's

statements

to

the

The parties acknowledged that the government

could not bind the district court from using the statements to
the extent permitted by law.
In March 2015, Calhoun and Houston were charged in a
one-count
January

indictment

with

complaint.

the

Calhoun

without a plea agreement.

trafficking

and

Houston

charges

each

from

pleaded

the

guilty

Their separate Revised Presentence

Investigation Reports (PSRs) calculated the same offense level
under the Guidelines.

Starting with a base offense level of 24

under U.S.S.G. § 2G1.3, the PSRs computed 2-level enhancements
for unduly influencing Minor A under subsection (b)(2)(B); 2level

enhancements

(b)(3);

2-level

for

use

of

enhancements

a

as

computer
the

under

offense

subsection

involved

the

commission of a sex act under subsection (b)(4)(A); and 3-level
reductions
offense

for

levels

accepting
of

27.

responsibility,
As

Calhoun

resulting
and

in

total

Houston's

prior

convictions placed them both in criminal history category III,
their Guidelines ranges were 87–108 months' imprisonment.

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In
sentencing

December

2015,

hearings

for

objections

Houston's

Page: 7

to

the

Date Filed: 05/19/2017

district

Calhoun
the

and

court

held

Houston.

undue-influence

Entry ID: 6093497

and

separate

Overruling
computer-use

enhancements, the district court accepted all of the suggested
enhancements and reductions and sentenced each Defendant to 108
months'

imprisonment.

Calhoun

and

Houston

now

appeal

their

sentences for the reasons described below.
II.
A.
Houston argues the district court erred in applying
U.S.S.G.

§ 2G1.3(b)(2)(B),

which

provides

for

a

two-level

enhancement when "a participant . . . unduly influenced a minor
to engage in prohibited sexual conduct."1
objected

to

the

undue-influence

To the extent Houston

enhancement

below,

we

review

under a multifaceted abuse of discretion standard, in which we
review the district court's interpretation of the Guidelines de
novo, its findings of fact for clear error, and its judgment
calls for abuse of discretion.
18, 21 (1st Cir. 2012).

United States v. Leahy, 668 F.3d

But we review the specific claims of

error Houston failed to preserve for plain error.
standard,

Houston

must

establish

1

that

(1) an

error

Under that
occurred;

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. n.1; see U.S.S.G.
§ 2G1.3 cmt. n.1 (referring to the application notes of § 3B1.1
to define “participant”).
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(2) the error was clear or obvious; (3) the error affected his
substantial rights; and (4) the error seriously impaired the
fairness,

integrity,

proceedings.

or

public

reputation

of

the

judicial

United States v. Ruiz-Huertas, 792 F.3d 223, 226

(1st Cir. 2015).
Houston does not dispute that Calhoun warranted the
enhancement for her conduct, but he faults the district court
for

accepting

the

government's

"simplistic"

argument

that

Calhoun's conduct as a "participant" could be attributed to him
as

relevant

conduct.

To

qualify

as

a

defendant's

relevant

conduct, acts and omissions of others that occurred during, in
preparation for, or while attempting to avoid detection of an
offense must be "(i) within the scope of the jointly undertaken
criminal

activity,

(ii) in

furtherance

of

that

criminal

activity, and (iii) reasonably foreseeable in connection with
that criminal activity."
argues

the

district

U.S.S.G. § 1B1.3(a)(1)(B).

court

held

him

vicariously

Houston

liable

for

Calhoun's manipulation and undue influence over Minor A without
making

an

individualized

finding

that

Calhoun's

conduct

was

"within the scope" of the criminal activity to which he agreed
to

jointly

undertake.

Because

Houston

did

not

make

this

specific argument before the district court, but instead argued

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that he himself did not unduly influence Minor A, we review this
argument for plain error.2
Contrary to Houston's assertion, the district court
did not uncritically hold Houston vicariously liable for all of
Calhoun's conduct, nor did it find that the scope of Houston's
involvement was identical to Calhoun's.
not,

for

example,

predated

his

on

Houston

involvement,

communications
focused

hold

with

events

criminal activity.

Minor
that

responsible

such

A.

took

The district court did

as

conduct

Calhoun's

Instead,
place

for

after

the

Facebook

district

Houston

that

court

joined

the

The court found that Houston "participated

actively with Calhoun" and facilitated her manipulation of Minor
A

by

driving

Calhoun

and

Minor

A,

renting

motel

rooms,

and

sleeping in the same room or same car with Calhoun and Minor A.
Although

the

district

court

could

have

more

specifically

delineated the scope of the criminal activity Houston agreed to
undertake,
conduct

the

was

court

within

nonetheless
that

scope

2

indicated
because

that
Houston

Calhoun's
actively

We make a distinction between events that predated
Houston’s involvement and those events that took place after he
agreed to take part in the criminal activity.
While Houston
urged the district court not to hold him responsible for
Calhoun’s
manipulation
over
Minor
A
that
predated
his
involvement, he did not argue that Calhoun’s undue influence
over Minor A that occurred after he became involved was outside
the scope of the activity he agreed to jointly undertake. As to
the latter conduct, Houston disregarded the enhancement’s
discussion of a “participant” and instead argued to the district
court that he did not do anything to unduly influence Minor A.
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participated in the offense and facilitated Calhoun's conduct.
See U.S.S.G. § 1B1.3 cmt. n.3(B) (U.S. Sentencing Comm'n 2015)
(directing a court to determine the scope of criminal activity
the

defendant

agreed

to

jointly

undertake,

and

allowing

the

court to consider "any explicit agreement or implicit agreement
fairly inferred from the conduct of the defendant and others").3
The district court did not plainly err by inferring
that Calhoun's undue influence over Minor A that took place
after Houston began participating in the offense was within the
scope

of

the

undertake.

criminal

activity

he

implicitly

agreed

to

Houston pleaded guilty to transporting Minor A with

the intent that she engage in prostitution.

Houston relied on

Calhoun's and Minor A's success in prostitution activities to
pay

for

his

lodging,

food,

and

3

alcohol.

He

admitted

to

In an amendment effective November 1, 2015, the
Sentencing Commission restructured § 1B1.3(a)(1)(B) and its
commentary to “set out more clearly the three-step analysis” for
determining a defendant’s relevant conduct in offenses involving
multiple participants. U.S.S.G. App. C, Amend. 791. While the
commentary had previously addressed the “scope” element of the
analysis, the amendment specifically includes that element in
the text of the Guideline itself.
Id.
Houston’s revised PSR
states that it was prepared under the 2014 Guidelines Manual,
but we assume the district court used the 2015 Guidelines Manual
when sentencing. See U.S.S.G. § 1B1.11 (directing a sentencing
court to “use the Guidelines Manual in effect on the date that
the defendant is sentenced,” so long as doing so does not
violate the ex post facto clause of the Constitution). Although
the district court did not expressly set out each step of the
relevant conduct analysis, we cannot say it plainly erred in
this regard when Houston did not object to the lack of a
specific finding under U.S.S.G. § 1B1.3.
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overhearing at least some of Calhoun's manipulative conduct over
Minor A, including negotiations with customers, yet he continued
to

drive

them

between

Massachusetts

and

Maine

to

meet

with

customers and avoid authorities who were looking for Minor A.
Further, even when a defendant does not agree to the
precise

conduct

of

another

participant,

the

participant's

conduct may still be within the scope of the jointly undertaken
criminal

activity.

For

example,

the

Guidelines

commentary

explains that a defendant who agrees to commit a robbery is
accountable for the other defendant's assault and injury of a
victim during the robbery, "even if the . . . defendant had not
agreed to the assault and had cautioned the [other] defendant to
be

careful

n.3(D).

not

to

hurt

anyone."

See

U.S.S.G.

§ 1B1.3

cmt.

In that case, "the assaultive conduct was within the

scope of the jointly undertaken criminal activity (the robbery),
was in furtherance of that criminal activity (the robbery), and
was

reasonably

foreseeable

in

connection

with

activity (given the nature of the offense)."
The

district

court

likewise

that

criminal

Id.

did

not

abuse

its

discretion in determining that Houston's own conduct qualified
for the undue-influence enhancement.

First, the district court

applied a rebuttable presumption that Houston unduly influenced
Minor A because of their age difference—he was 27 and she was
13.

See

U.S.S.G.

§ 2G1.3

cmt.

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n.3(B)

(providing

for

a

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rebuttable presumption of undue influence when a participant is
at least ten years older than the minor).

Houston asserts in a

footnote that it would be impossible to rebut this presumption
when the district court applied it on a theory of vicarious
liability,

but

the

Calhoun's conduct.4

district

court

did

not

focus

solely

on

Rather, the court found Houston's unique

role in the offense compromised the voluntariness of Minor A's
behavior, including driving Minor A across state borders away
from

her

family

and

familiar

surroundings.

Additionally,

Houston drove Minor A to various locations to meet with adult
4

Even if the district court did apply the enhancement
solely based on Calhoun’s conduct, we disagree with the premise
that Houston could not rebut the presumption of undue influence
because of their age difference. The case he cites for support,
United States v. Chriswell, 401 F.3d 459 (6th Cir. 2005), is
inapposite.
In Chriswell, the Sixth Circuit refused to apply
the undue-influence enhancement in cases involving undercover
agents portraying imaginary minor victims.
Id. at 469.
The
Sixth Circuit reasoned that applying the enhancement, along with
its rebuttable presumption, would “render[] the presumption
irrebuttable” because an undercover officer can always portray
the victim “as an unwilling and inexperienced victim whose will
is easily overcome,” making it “virtually impossible” for a
defendant to show that “the victim’s will was not overcome.”
Id. at 470.
We do not face the same problem of an “irrebuttable
presumption” here, even when applying the enhancement based on a
different participant’s conduct.
A defendant may always point
to evidence that the other participant did not unduly influence
the minor to engage in prohibited sexual conduct.
Houston did
not have that option available in this case because even he
agrees that Calhoun’s conduct easily warrants the enhancement,
but that does not render the presumption irrebuttable as a rule.
And so long as that participant’s conduct is relevant to the
defendant under U.S.S.G. § 1B1.3, the plain text of the
Guideline allows a sentencing court to apply the undue-influence
enhancement for the conduct of the “participant.”
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men for sexual encounters, thus giving her few options other
than

engaging

in

prohibited

sexual

conduct.

Contrary

to

Houston's arguments, the district court faithfully discharged
its duty to "closely consider the facts of the case to determine
whether a participant's influence over the minor compromised the
voluntariness of the minor's behavior."
n.3(B).

U.S.S.G. § 2G1.3 cmt.

The district court did not abuse its discretion in

concluding that Houston failed to rebut the presumption that he
unduly

influenced

Houston's
court's

own

Minor

role

in

application

A.

Between

the

of

offense,

the

Calhoun's
we

affirm

undue-influence

conduct
the

and

district

enhancement

to

Houston.
B.
Houston
applying

the

§ 2G1.3(b)(3).
not

apply

to

also

argues

the

computer-use

district

enhancement

court
under

erred

in

U.S.S.G.

Specifically, he contends the enhancement does
him

because

enhancement's scope.

the

application

note

limits

the

We review this legal argument de novo.

See Leahy, 668 F.3d at 21.
Under § 2G1.3(b)(3), a defendant is subject to a twolevel

enhancement

computer . . .

to

"[i]f
(A)

the

offense

persuade,

involved

induce,

the

entice,

use

of

coerce,

a
or

facilitate the travel of, the minor to engage in prohibited
sexual conduct; or (B) entice, encourage, offer, or solicit a
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person to engage in prohibited sexual conduct with the minor."
Application Note 4 to this section states:
Subsection (b)(3) is intended to apply only to
the use of a computer or an interactive computer
service to communicate directly with a minor or
with a person who exercises custody, care, or
supervisory control of the minor.
Accordingly,
the enhancement in subsection (b)(3) would not
apply to the use of a computer or an interactive
computer service to obtain airline tickets for
the minor from an airline's Internet site.
U.S.S.G. § 2G1.3 cmt. n.4.

There is obvious tension between the

plain text of the Guideline in subpart (b)(3)(B), which involves
using a computer to "solicit a person to engage in prohibited
sexual conduct with the minor," and Application Note 4, which
only mentions using a computer to communicate with a minor or a
minor's caretaker.

"[C]ommentary in the Guidelines Manual that

interprets or explains a guideline is authoritative unless it
violates

the

inconsistent
guideline."

Constitution
with,

or

a

or

a

plainly

federal
erroneous

statute,
reading

or
of,

is
that

Stinson v. United States, 508 U.S. 36, 38 (1993).

Today, we join the Circuit courts that have concluded
Application Note 4 is inconsistent with the plain language of
U.S.S.G. § 2G1.3(b)(3)(B).

See United States v. Gibson, 840

F.3d 512, 514 (8th Cir. 2016); United States v. Hill, 783 F.3d
842, 846 (11th Cir. 2015); United States v. Cramer, 777 F.3d
597, 606 (2d Cir. 2015); United States v. McMillian, 777 F.3d
444, 450 (7th Cir. 2015); United States v. Pringler, 765 F.3d
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445, 454 (5th Cir. 2014); United States v. Winbush, 524 F. App'x
914, 916 (4th Cir. 2013) (unpublished).
recognized,

§ 2G1.3(b)(3)

"has

two

As these courts have

distinct

subsections,

one

relating to inducement of a minor and the other relating to
solicitation of a third party."

Cramer, 777 F.3d at 606.

If

the drafters of the Guidelines intended Application Note 4 to
apply to subsection (b)(3)(B), "it would render Subsection 3(B)
inoperable in all but [a] narrow subset of cases under only one
of the criminal statutes the Guideline covers."
F.3d

at

454

(noting

that

although

the

Pringler, 765

Guideline

covers

six

statutory provisions, only a specific scenario under one of the
statutes—18 U.S.C. § 2422(b)—could satisfy both the plain text
of the Guideline and the Application Note).

But "there is no

indication that the drafters of the Guidelines intended to limit
th[e]

plain

language

Application Note 4."

[of

subsection

(b)(3)(B)]

Cramer, 777 F.3d at 606.

through

Instead, as the

Fifth Circuit observed, the Guideline's drafting history shows
that the application note was originally meant to apply only to
subsection (A), not to subsection (B).
455.

The

amendment

that

changed

the

Pringler, 765 F.3d at
application

note

to

encompass both subsections "was a mere drafting error."

Id.

Applying

not

Stinson,

authoritative

as

we
to

conclude
subsection

Application
(b)(3)(B).

Note

4

is

This

reading

of

Application Note 4 does not, as Houston argues, "nullify" the
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note "altogether," as it still applies to explain and clarify
subsection (b)(3)(A).
The district court did not err when it disregarded
Application Note 4 and instead applied the plain text of the
computer-use
court

enhancement

applied

the

in

§ 2G1.3(b)(3)(B).

enhancement

to

Houston

The

because

district

he

jointly

undertook criminal activity that involved using smartphones to
solicit men to engage in prohibited sexual conduct with Minor A.
We affirm the enhancement.
C.
Houston's

final

argument

is

that

the

government

breached the proffer agreement by referencing statements he made
during

the

proffer

session

in

its

sentencing

memorandum.

Because Houston did not object below, we review for plain error.
See Ruiz-Huertas, 792 F.3d at 226 (providing the four prongs of
plain error review).
"Informal

immunity

agreements,

such

as

proffer

agreements, 'are shaped . . . by the language of the contract
conferring immunity.'"

United States v. Melvin, 730 F.3d 29, 37

(1st Cir. 2013) (quoting United States v. Hogan, 862 F.2d 386,
388 (1st Cir. 1988)).

Houston's brief relies on and heavily

quotes from the Proffer Agreement.

As such, we directly quote

portions of the Proffer Agreement's terms:

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(2)
In
any
prosecution
brought
against
[Houston] . . . , the Government will not offer
in
evidence
in
its
case-in-chief,
or
in
connection with any sentencing proceeding for the
purpose of determining an appropriate sentence,
any statements made by [Houston] at the meeting,
except in a prosecution for false statements,
obstruction of justice or perjury with respect to
any acts committed or statements made during or
after the meeting or testimony given after the
meeting.
The parties understand, however, that
in the event of a prosecution of [Houston], the
Government
will
provide
to
the
Court
the
information which [Houston] provides pursuant to
this Agreement.
The parties understand that,
while
the
Government
will
not
introduce
[Houston's] statements in evidence except as
permitted in this agreement, the Government
cannot bind the Court as to its appropriate use
of such information and that the Court will use
such information to the extent permitted by law.
(3) Notwithstanding item (2) above: . . . the
Government may also use statements made by
[Houston] at the meeting to rebut any evidence or
arguments offered by or on behalf of [Houston]
(including arguments made or issues raised sua
sponte by the District Court) at any stage of the
criminal prosecution (including bail, all phases
of trial, and sentencing) in any prosecution
brought against [Houston].
Houston contends the government breached these terms when it
asked the district court to apply the computer-use enhancement
to

Houston.

Specifically,

in

his

brief,

he

faults

the

government's sentencing memorandum for urging the district court
to
infer from all of the evidence, including
[Houston's]
post-arrest
statements,
that
[Houston] would have been aware of the repeated
use of phones to post advertisements for Minor
A's services given the extensive amount of time
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Entry ID: 6093497

[Houston], Calhoun, and Minor A spent together
over an approximately 8-day period.
Houston contends that "the only support" for the government's
argument that he was aware of Calhoun and Minor A's repeated use
of phones to post advertisements came from his statements during
the proffer session when he admitted driving Calhoun and Minor A
to

a

drugstore

advertisements

to

on

purchase

pre-paid

Backpage.com.

Visa

And

he

cards
argues

to
that,

post
by

definition, his proffer statements are post-arrest statements,
and thus, the government improperly urged the district court to
consider the protected statements.
But

Houston

from its context.

has

divorced

the

government's

argument

In the sentencing memorandum, the government

quotes the statements Houston made during the first interview
after

he

was

arrested—his

"post-arrest

statements"—not

statements he made during his proffer session.

the

During that

initial interview the morning Houston was arrested, two officers
asked Houston how customers found Calhoun's number to set up
sexual encounters with Calhoun or Minor A.
"I don't know.

That's on their phone.

They do everything on their phone.
drive."

Houston responded,

That's on their phone.

I don't do.

I told you I

Read in context, the government urged the district

court to infer from these post-arrest statements that Houston
was aware that Calhoun and Minor A regularly used a phone to

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Case: 16-1017

Document: 00117157213

post advertisements.

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Date Filed: 05/19/2017

Entry ID: 6093497

The government did not mention or refer to

Houston's proffer session statements.
The

district

court

latched

onto

Houston's

proffer

session statements during sentencing but not at the government's
request.

When Houston argued at sentencing that there was "not

a single objective fact that the Government can point to in
which [Houston is] involved in any degree with the use of a
computer in this case," the district court asked about Houston's
role in driving Minor A and Calhoun to a drugstore to purchase
Visa cards to post ads on Backpage.com.

In line with the terms

of

submitted

the

agreement,

the

government

had

the

proffer

session record to the district court, and, also consistent with
the terms, the district court could then rely on that evidence
to the extent permitted by law.
district

court

erred

statements sua sponte.
on

the

statements

in

Houston has not argued that the

relying

on

the

proffer

session

The fact that the district court seized
does

not

show

that

the

government

impermissibly urged the court to do so; it shows only that the
district court independently reviewed the statements and used
them to rebut Houston's argument that he was not involved in
using a computer in this case.

The government did not breach

the terms of the proffer agreement.
otherwise.

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We see no error, plain or

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Document: 00117157213

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Date Filed: 05/19/2017

Entry ID: 6093497

III.
We turn now to Calhoun's argument on appeal that the
district court abused its discretion by failing to carefully
consider

all

the

evidence

presented

during

sentencing

adequately weigh the 18 U.S.C. § 3553(a) factors.
the

district

court

relied

too

heavily

on

the

and

She contends
nature

of

the

offense and the value of deterrence, while minimizing mitigating
evidence of Calhoun's own difficult childhood in which she was
sexually abused, grew up in violent households, was introduced
to the drug world by relatives, and entered a series of abusive
relationships.
To

the

extent

Calhoun

has

attempted

to

raise

a

procedural error—that the district court "fail[ed] to consider
the § 3553(a) factors," Gall v. United States, 552 U.S. 38, 51
(2007)—we review for plain error since Calhoun did not object
below, see Ruiz-Huertas, 792 F.3d at 226.

A district court

must consider all the relevant § 3553(a) factors, but it does
not need to address each factor, "one by one, in some sort of
rote

incantation

when

explicating

its

sentencing

decision."

United States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006).

When

the district court explicitly states that it has considered all
of the § 3553(a) factors, "[s]uch a statement 'is entitled to
some weight.'"

United States v. Clogston, 662 F.3d 588, 592

(1st Cir. 2011) (quoting Dávila-González, 595 F.3d at 49).
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After

Page: 21

adopting

Date Filed: 05/19/2017

the

Revised

PSR's

Entry ID: 6093497

Guidelines

calculations, the district court outlined the circumstances of
the offense as well as Calhoun's criminal and personal history,
and

then

stated

it

"considered

authorized by law."

all

the

sentencing

factors

The district court went on to address the

seriousness of the offense, Minor A's vulnerability, Calhoun's
history of criminal conduct, the need to protect the public and
deter

Calhoun

from

criminal

conduct,

the

importance

of

treatment, and its task in determining a just punishment in
light of Calhoun's guilty plea and personal history as a victim.
The

district

court

considered

all

the

§ 3553(a)

factors

and

simply focused its analysis on the factors it considered most
relevant.

Further, a within-Guidelines sentence requires less

explanation

than

one

that

varies

Clogston, 662 F.3d at 592.

from

the

Guidelines

range.

We discern no procedural error,

plain or otherwise.
To the extent Calhoun attempts to argue the district
court

imposed

a

substantively

unreasonable

sentence,

we

note

that the applicable standard of review "is somewhat blurred"
because she did not object below.

See Ruiz-Huertas, 792 F.3d at

228 (declining to decide whether a defendant must "preserve a
claim

that

the

duration

of

a

sentence

unreasonable" to avoid plain error review).

- 21 -

is

substantively
But whether we

Case: 16-1017

Document: 00117157213

review

for

abuse

of

Page: 22

Date Filed: 05/19/2017

discretion

or

plain

error,

Entry ID: 6093497

Calhoun's

substantive reasonableness argument fails.
Calhoun
overemphasized

primarily

the

alleges

seriousness

of

that
the

the

district

offense

and

court

value

of

deterrence, while minimizing the mitigating factors of Calhoun's
personal history and difficult childhood.

But this complaint

amounts to little more than a disagreement over how to weigh the
various

§ 3553(a)

factors.

The

district

court

addressed

Calhoun's "predatory conduct" in transporting a 13-year-old for
prostitution,

but

it

also

considered

Calhoun's

difficult

upbringing, noting that she too had been victimized in the past.
In

the

end,

the

district

court

concluded

that

as

a

mother,

Calhoun understood what she was doing and how it would impact
Minor A, and thus, the mitigating circumstances did not require
a

lesser

sentence.

The

district

court

was

well

within

its

discretion in determining how much weight to give the various
factors.

See Clogston, 662 F.3d at 593 ("A sentencing court is

under a mandate to consider a myriad of relevant factors, but
the weighting of those factors is largely within the court's
informed discretion.").

In sentencing Calhoun to 108 months in

prison, the district court provided a plausible rationale and
reached

a

defensible

result

within

the

range

of

reasonable

sentences.

See United States v. Martin, 520 F.3d 87, 96 (1st

Cir.

("[T]he

2008)

linchpin

of

a

- 22 -

reasonable

sentence

is

a

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Entry ID: 6093497

plausible sentencing rationale and a defensible result.").
district

court

did

not

impose

a

substantively

The

unreasonable

sentence.
IV.
For the reasons stated above, we affirm the sentences
the district court imposed on Defendants Alvin Houston, Jr., and
Shawna Calhoun.

- 23 -