US v. Jeremy Naughton

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 8:12-cr-00229-JFM-1 Copies to all parties and the district court/agency. [999652556].. [13-4816]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4816

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEREMY NAUGHTON, a/k/a Jerms Black,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
J. Frederick Motz, Senior District
Judge. (8:12-cr-00229-JFM-1)

Argued:

May 13, 2015

Before KING and
Circuit Judge.

KEENAN,

Decided:

Circuit

Judges,

September 2, 2015

and

DAVIS,

Senior

Affirmed in part, vacated in part, and remanded by unpublished
opinion.
Judge Keenan wrote the opinion, in which Judge King
and Senior Judge Davis joined.

ARGUED: Meghan Suzanne Skelton, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant.
Sujit Raman,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for
Appellant.
Rod J. Rosenstein, United States Attorney, Mark W.
Crooks, Paul Budlow, Assistant United States Attorneys, James D.
Houghton, Student Law Clerk, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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BARBARA MILANO KEENAN, Circuit Judge:
Jeremy Naughton was convicted by a jury of numerous charges
arising from his involvement in an interstate sex trafficking
enterprise.

On appeal, Naughton challenges: (1) the district

court’s

denial

of

obtained

from

two

formerly

his

occupied;

motions

warrantless

to

and

(2)

suppress

searches

his

certain

of

an

conviction

evidence

apartment

under

18

he

U.S.C.

§ 924(c) for brandishing a firearm in furtherance of a crime of
violence,

namely,

conspiracy

to

commit

sex

trafficking

in

violation of 18 U.S.C. § 1594(c).
Upon our review, we affirm the district court’s denial of
Naughton’s

motions

to

suppress.

We

hold

that

one

of

the

searches was conducted lawfully based on the police officers’
reasonable belief that Naughton had abandoned any interest in
the apartment.

With respect to the other search, we conclude

that any error in admitting into evidence certain items seized
was

harmless

beyond

a

reasonable

doubt.

However,

we

vacate

Naughton’s conviction under Section 924(c), because we conclude
that

the

district

court

plainly

erred

in

determining

that

conspiracy to commit sex trafficking qualifies as a crime of
violence.

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I.
We

begin

by

describing

the

searches at issue in this appeal.
denied

Naughton’s

motions

to

facts

relevant

Because

suppress

the
the

to

the

district

evidence

two

court

obtained

during these searches, we construe the evidence in the light
most favorable to the government.

United States v. Montieth,

662 F.3d 660, 664 (4th Cir. 2011) (quotation marks and citation
omitted).
The

first

September

search

search),

took

after

place
an

on

September

unidentified

22,

woman

2010

(the

placed

a

telephone call to a “911 operator” in Brooklyn, New York, to
report

an

Apartment

ongoing
2R

(the

incident
apartment,

at

322

or

Marcus

Naughton’s

Garvey

Boulevard,

apartment).

The

government later offered evidence establishing that Naughton had
leased and had lived in this apartment.
The

unidentified

caller

stated

that

she

had

received

a

“text message” on her cellular telephone from a female friend
who reported that she was being held against her will in the
apartment by a man in possession of a firearm.

The caller did

not identify herself, her friend, or the perpetrator, and did
not

provide

any

additional

information

to

the

emergency

operator.
When the officers arrived at the apartment building, the
external door to the building was open, and the officers entered
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the

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building

apartment.

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and

climbed

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the

stairs

to

the

second-floor

The officers “constantly knock[ed]” on the apartment

door for about three minutes, while identifying themselves as
police.

No one responded.

The officers did not observe any obvious criminal activity
outside the building, nor did they see or hear anything unusual
in the area of the apartment.

Additionally, the officers did

not attempt to communicate with neighbors to inquire about the
reported

incident.

After

a

few

minutes

had

passed,

several

officers climbed the fire escape to enter the apartment through
a window.
Upon
inside. 1

entering

the

apartment,

the

officers

found

no

one

The officers seized a handgun and ammunition that were

lying on a counter in plain view.
Officers searched the same apartment again on June 2, 2011
(the June search), after two Assistant United States Attorneys
from Maryland, a detective from the Montgomery County, Maryland
Police Department, and a detective from the New York City Police
Department went to the apartment to obtain a photograph of the
building.

When the four individuals (the officers) arrived at

the apartment building, an officer rang several of “the buzzers”

1

Law enforcement officers later determined that the
telephone call to the emergency services operator was a hoax.

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in an effort to enter the locked exterior door of the building.
A woman dressed in a bathrobe responded to the front door of the
building.

After the woman identified herself as the landlord

and superintendent of the building, the officers did not ask her
to produce verifying identification.
The woman informed the officers that Naughton’s apartment
“was

vacant,”

that

she

had

not

seen

weeks,” and that he had been evicted.

Naughton

in

“a

couple

She explained that she

had arranged for the apartment to be cleaned the next day, and
that the locks to the apartment had been changed.

Although the

woman did not have the new keys to the apartment, she attempted
to contact her sister, the other co-landlord of the building who
allegedly retained the new keys, but did not succeed in reaching
her.
Although the door to the apartment was locked, two officers
entered the landlord’s apartment at her suggestion, climbed up
the

fire

window.

escape,

and

entered

Naughton’s

apartment

through

a

The apartment was “dirty” and “in disarray,” and the

officers discovered and seized numerous items, including used
condoms and women’s clothing.
Following further investigation into Naughton’s involvement
in an interstate sex trafficking enterprise, a grand jury issued
a 16-count superseding indictment charging Naughton with: one
count of conspiracy to commit sex trafficking, in violation of
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18 U.S.C. § 1594(c) (count 1); one count of using, carrying, and
brandishing

a

firearm

during

and

in

relation

to

a

crime

of

violence, in violation of 18 U.S.C. § 924(c) (count 2); six
counts of sex trafficking, in violation of 18 U.S.C. § 1591
(counts 3, 4, 6, 8, 11, and 12); six counts of transporting an
individual to engage in prostitution, in violation of 18 U.S.C.
§

2421

(counts

5,

7,

9,

10,

13,

and

16);

one

count

of

kidnapping, in violation of 18 U.S.C. § 1201(a)(1) (count 14);
and one count of possession of a firearm by a convicted felon,
in violation of 18 U.S.C. § 922(g)(1) (count 15).
Before trial, Naughton moved to suppress the firearm and
ammunition seized during the September search, as well as the
items seized during the June search.

After the district court

held an evidentiary hearing, the court denied Naughton’s motions
to suppress.
Following a 14-day trial in which seven victims and former
prostitutes testified as part of the government’s case, a jury
convicted Naughton of most of the charges, acquitting him only
of the charges in counts 3, 11, 14, and 15.
imposed

a

total

sentence

of

36

years’

The district court
imprisonment,

which

included a consecutive sentence of 84 months’ imprisonment on
count 2 for brandishing a firearm in furtherance of a crime of
violence.

The

district

judgment of acquittal.

court

denied

Naughton’s

This appeal followed.
7

motions

for

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II.
On appeal, Naughton challenges the district court’s denial
of his motions to suppress evidence seized in the two searches
of the apartment.
2,

for

He also challenges his conviction under count

brandishing

a

firearm

in

furtherance

of

a

crime

of

violence in violation of 18 U.S.C. § 924(c).
A.
We first address Naughton’s arguments relating to the two
searches.

In considering a district court’s denial of motions

to suppress evidence, we review the court’s legal conclusions de
novo and its factual findings for clear error.

Montieth, 662

F.3d at 664.
i.
Naughton argues that the June search of the apartment was
an unreasonable search in violation of the Fourth Amendment and
that,

therefore,

the

district

court

evidence seized during the search.

erred

in

admitting

the

Naughton contends that he

maintained a protected privacy interest in the apartment because
he had not been issued an order of eviction before the time of
the search.

Accordingly, Naughton asserts that the officers

violated his Fourth Amendment rights by entering his apartment
without

a

maintains

warrant
that

and

the

without
officers

his

consent.

unreasonably

Naughton
relied

on

also
the

representations made by the purported landlord that Naughton had
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abandoned

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his

interest

in

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the

apartment.

We

disagree

with

Naughton’s arguments.
The Fourth Amendment guarantees the right of individuals
“to be secure in their persons, houses, papers, and effects,”
and

affords

seizures.”

protection
U.S.

Const.

from

“unreasonable

amend.

IV.

These

searches

Fourth

and

Amendment

protections extend to an individual occupying a residence under
a lease.

United States v. Stevenson, 396 F.3d 538, 546 (4th

Cir. 2005) (citing Chapman v. United States, 365 U.S. 610, 61617 (1961)).

Thus, a landlord or building owner typically cannot

consent

a

to

property.

warrantless

search

of

a

tenant’s

leasehold

Chapman, 365 U.S. at 616-17.

Generally, a search of an individual’s residence conducted
without a warrant and without proper consent is unreasonable,
based on the individual’s reasonable expectation of privacy in
his

residence.

(2001).
privacy

Kyllo

v.

United

States,

533

U.S.

27,

31-33

However, when an individual “voluntarily abandons his
interest

in

property,

his

subjective

expectation

of

privacy becomes unreasonable, and he is precluded from seeking
to suppress evidence seized from it.”

Stevenson, 396 F.3d at

546; see also United States v. Hoey, 983 F.2d 890, 892 (8th Cir.
1993) (“The warrantless search of abandoned property does not
constitute an unreasonable search”).

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In

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determining

whether

an

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individual

has

abandoned

his

privacy interest in this context, we focus not simply on whether
“all formal property rights have been relinquished.”
396 F.3d at 546.

Stevenson,

Instead, we consider all the objective facts

available to the officers at the time of the search, and any
surrounding circumstances such as whether the tenant has paid
the rent due, whether the tenant has communicated an intent to
abandon the premises, and whether the tenant has vacated the
property.

Id. at 546-47; United States v. James, 534 F.3d 868,

873 (8th Cir. 2008).
In
evidence

the

present

available

case,

to

the

we

conclude

officers

that

showed

the

that

objective

Naughton

had

abandoned his privacy interest in the apartment, despite the
fact that his tenancy had not formally expired at the time of
the

June

search.

Most

notably,

the

district

court

found

credible the officers’ testimony that the woman who identified
herself as Naughton’s landlord had told the officers that the
apartment had been vacant for two weeks, and that the locks on
the apartment had been changed.

We discern no clear error in

the district court’s factual findings.

See Montieth, 662 F.3d

at 664.
Additionally,
district

court’s

we

conclude

that

determination

that

the
the

record

supports

officers

the

reasonably

believed that they were speaking to the landlord, and that she
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had provided reliable information regarding Naughton’s intent to
vacate

his

apartment

on

a

permanent

basis.

When

the

woman

answered the door to the building wearing a bathrobe, providing
circumstantial evidence that the woman lived in the building,
she also identified herself as the landlord.

She was able to

answer questions about where Naughton’s apartment was located,
when she last had seen Naughton, and the statements he had made
regarding his intent to vacate the apartment.
The woman further informed the officers that Naughton had
been evicted, that he had “taken what [personal property] he
wanted and left the rest,” and that the apartment was scheduled
to be cleaned the next day.

Moreover, the woman attempted, in

the officers’ presence, to contact her sister and co-landlord to
obtain a key to the apartment.
did

not

have

a

key

to

the

Thus, the fact that the woman

apartment

did

not

undermine

reliability of her representations to the officers.

the

Based on

these circumstances, we hold that the district court did not err
in

concluding

representations

that

the

indicating

officers
that

reasonably
Naughton

had

relied

on

her

abandoned

his

privacy interest in the apartment.
Our conclusion is not altered by the fact that the officers
were able to see inside the apartment through a window before
entering, and observed several items including some furniture
and personal belongings.

Not only did the woman identifying
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herself as the landlord inform the officers that Naughton had
told her that he had removed what belongings he wanted, but the
officers

also

“dirty.”

saw

that

the

apartment

was

“in

disarray”

and

See United States v. Harrison, 689 F.3d 301, 311 (3d

Cir. 2012) (observing that the fact that the inside of a house
was dilapidated or “trashed,” in conjunction with a “rundown”
exterior, provided probative evidence of abandonment).
The totality of the circumstances therefore supported the
district

court’s

determination

that

the

officers

had

a

reasonable basis for concluding that Naughton had abandoned his
tenancy, thereby permitting the officers to enter the apartment
without

a

search

warrant

and

without

Naughton’s

consent.

Accordingly, we hold that the district court did not err in
denying Naughton’s motion to suppress the items seized during
the June search.
ii.
Naughton

next

argues

that

the

district

court

erred

in

refusing to suppress the firearm and ammunition seized during
the September search of the apartment, which the police entered
based

on

the

telephone call.

information

they

received

in

the

anonymous

Citing Kerman v. City of New York, 261 F.3d

229, 236 (2d Cir. 2001), Naughton contends that because the “911
call” and the surrounding circumstances did not manifest any
indicia to support the reliability of the caller’s statement,
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officers

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were

not

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justified

in

entering

his

apartment

without a warrant.
Although the government contends that the officers properly
entered the apartment to investigate the report of imminent harm
to a victim, the government alternatively maintains that we need
not

decide

this

issue

because

the

admission

of

the

seized

firearm and ammunition was harmless beyond a reasonable doubt.
See Chapman v. California, 386 U.S. 18, 24 (1967).

We agree

with the government’s harmless error analysis.
We will assume, without deciding, that the September search
violated

Naughton’s

conclude

that

a

Fourth

Amendment

constitutional

error

rights.
was

Before

harmless

we

may

beyond

a

reasonable doubt, we must determine based on the entire record
that

the

error

convictions.

“did

not

contribute”

to

the

defendant’s

United States v. Holness, 706 F.3d 579, 598 (4th

Cir. 2013) (citation omitted); see also United States v. Abu
Ali, 528 F.3d 210, 256 (4th Cir. 2008) (we must “be able to say
with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error”) (citation omitted).
This

standard

evidence

was

is

more

rigorous

sufficient

to

than

support

determining
the

convictions

absence of the erroneously admitted evidence.
at 598.
13

whether
in

the
the

Holness, 706 F.3d

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The

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record

before

us

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contains

overwhelming

evidence

detailing Naughton’s use of firearms during the course of his
sex

trafficking

firearm
Several

and

operation,

ammunition

victim

rendering

harmless

prostitutes

the

beyond

involved

admission

a

reasonable

in

of

the

doubt.

Naughton’s

sex

trafficking enterprise testified against him, and most of these
victims described Naughton’s regular use of firearms, including
both a handgun similar to the one seized during the September
search as well as a larger machine gun.
These victims stated that Naughton routinely possessed a
firearm in his waistband, in the console of his car, in the
trunk of his car, and in his apartment.

One victim related that

Naughton kept a firearm with him “at all times.”

Also, multiple

victims described incidents in which Naughton had used a gun in
their presence.
One

victim

testified

regarding

an

incident

in

which

Naughton carried a machine gun into a room and set it down on
the dresser.

According to that witness, Naughton had stated

that the gun was “for silly bitches like” her, causing her to
believe that he would kill her if she tried to leave.

Another

victim identified a machine gun in a photograph, indicating that
Naughton had maintained possession of the gun in her presence.
The evidence also included a video and numerous photographs
depicting Naughton brandishing firearms, including both handguns
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and machine guns.

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In addition, the government introduced into

evidence audio recordings in which Naughton referred to his use
of firearms in relation to his sex trafficking enterprise.
In light of this voluminous evidence linking Naughton’s use
of firearms to his sex trafficking operation, we conclude that
the handgun and ammunition displayed at the trial, which were
seized

in

the

jury’s

September

ultimate

findings

search,
of

could

guilt.

not

have

Although

affected

the

the

government

referred to the firearm and ammunition during closing arguments,
these

references

were

minor

in

relation

testimonial and photographic evidence.

to

the

overwhelming

Therefore, we hold that

any error resulting from the admission of evidence seized in the
September search was harmless beyond a reasonable doubt.
B.
Finally, we address Naughton’s challenge to his conviction
under count 2, for brandishing a firearm in furtherance of a
crime

of

violence,

in

violation

of

Section 924(c).

This

conviction was based on the predicate offense of conspiracy to
commit sex trafficking by force, fraud or coercion, in violation
of

Section

1594(c).

Naughton

contends

that

this

predicate

offense does not qualify categorically as a crime of violence
and

that,

therefore,

we

should

brandishing charge.

15

vacate

his

conviction

on

the

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response,

the

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government

argues

that

conspiracy

to

commit sex trafficking qualifies as a crime of violence under
Section 924(c), because the crime necessarily involves a grave
risk that a defendant or others will use physical force against
the victims of the crime.
is

foreclosed

by

our

We disagree with this argument, which

recent

decision

in

United

States

v.

Fuertes, Nos. 13-4755, 13-4931, 2015 U.S. App. LEXIS 14475 (4th
Cir. Aug. 18, 2015). 2
As an initial matter, we observe that Naughton’s objection
in the district court relating to count 2 was limited to his
motion for judgment of acquittal challenging the sufficiency of
the evidence.

As we explained in Fuertes, such a motion does

not preserve a purely legal argument such as the one presented
here.

See

Fuertes,

2015

U.S.

App.

LEXIS

14475,

at

*21-22.

Accordingly, we review for plain error Naughton’s challenge to
his conviction under count 2.

Id.

(citing United States v.

Tillery, 702 F.3d 170, 175 (4th Cir. 2012)).

2

To prevail under

The government also asserts that Naughton waived his
argument regarding count 2, because his own proposed jury
instruction assumed that conspiracy to commit sex trafficking
qualified as a crime of violence. We disagree. Waiver is “the
intentional relinquishment or abandonment of a known right.”
United States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014)
(citation omitted).
In the context of this case, Naughton’s
proposed jury instruction did not qualify as the identification
of an issue, followed by explicit withdrawal of that issue, so
as to constitute waiver. See id.

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the plain error standard of review, Naughton must show that the
district
rather

court

than

affected

erred,

subject

to

Naughton’s

“seriously

that

the

error

reasonable

substantial

affect[ed]

the

was

“clear

dispute,”

rights,

fairness,

reputation of judicial proceedings.”

or

obvious,

that

error

that

and

the
the

error

integrity

or

public

United States v. Marcus,

560 U.S. 258, 262 (2010).
We therefore turn to address the issue whether the district
court

erred

in

concluding

that

conspiracy

to

commit

sex

trafficking, in violation of 18 U.S.C. § 1594(c), qualifies as a
crime of violence under 18 U.S.C. § 924(c).

Section 1594(c)

establishes a crime for conspiracy to violate 18 U.S.C. § 1591.
Section 1591

generally

prohibits

interstate

commerce

by

an

individual

enticing,

from

providing,

affecting
obtaining,

recruiting, harboring, transporting, or maintaining a person, or
benefitting from such conduct, by “means of force, threats of
force, fraud, coercion, or any combination of such means . . .
to

cause

the

person

to

engage

in

a

commercial

sex

act.”

conviction

under

§ 1591(a) (emphasis added).
As

relevant

Section 924(c),

to
the

this

case,

government

to

prove

needed

to

a

show

that

Naughton

knowingly possessed, used, carried, or brandished a firearm in
furtherance of a crime of violence.

Under the definition in

Section 924(c), a “crime of violence” is a felony that
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(A) has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another [the force clause], or
(B) that by its nature, involves a substantial risk
that physical force against the person or property of
another may be used in the course of committing the
offense [the residual clause].
18 U.S.C. § 924(c)(3).
Our inquiry whether the predicate offense qualifies as a
crime of violence does not permit our review of the conduct
underlying Naughton’s conviction, but allows us to consider only
“the

statutory

definition

of

the

[]

crime

and

the

fact

of

conviction to determine whether the conduct criminalized by the
statute, including the most innocent conduct, qualifies as a
‘crime of violence.’”

United States v. Royal, 731 F.3d 333,

341-42 (4th Cir. 2013).
violating
approach
meaning

the
the

of

statute
offense

the

actual conduct. 3

force

If any one of the available means of
is

is

non-violent,
not

clause

a

crime

under
of

irrespective

the

violence
of

the

categorical
within

the

defendant’s

Descamps v. United States, 133 S. Ct. 2276,

2285-86 (2013); Fuertes, 2015 U.S. App. LEXIS 14475, at *23-25.
Similarly, if we conclude that the elements of conspiracy to
3

The categorical approach applies only to “indivisible
statutes.”
Under Descamps v. United States, 133 S. Ct. 2276
(2013), a statute is divisible only if it “comprises multiple,
alternative versions of the crime” by “list[ing] multiple,
alternative elements.” 133 S. Ct. at 2284-85. As we explained
in Fuertes, Section 1591 is an indivisible statute.
Fuertes,
2015 U.S. App. LEXIS 14475, at *24.

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commit sex trafficking do not involve a substantial risk that
the perpetrator of the crime will use physical force against the
victim, then the crime categorically does not qualify as a crime
of violence under the residual clause.

See Fuertes, 2015 U.S.

App. LEXIS 14475, at *26-29.
In

Fuertes,

we

held

that

because

the

crime

of

sex

trafficking under Section 1591 can be committed by force or by
fraud or coercion, the offense does not have “as an element the
use,

attempted

use,

or

threatened

required by the force clause.

use

of

Id. at *25-26.

physical

force”

We also held that

sex trafficking does not qualify as a crime of violence under
the

residual

clause,

because

in

the

ordinary

case,

a

perpetrator’s possible conduct under the elements of the offense
includes

several

different

ways

committed in a non-violent manner.

that

the

crime

could

be

See id. at *28-31, 31 n.6.

Although the predicate offense at issue here involves a
conspiracy to commit sex trafficking, rather than the actual
crime of sex trafficking, that distinction does not alter our
analysis or our application of the holding in Fuertes, because a
conspiracy cannot be “divorced from its violent [or nonviolent]
objective.”

See United States v. White, 571 F.3d 365, 373 (4th

Cir. 2009) (holding that conspiracy to commit robbery with a
dangerous weapon involves a violent object of the conspiracy and
is a crime of violence under Section 924(e)).
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the

district

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erred

in

determining

that

conspiracy to commit sex trafficking qualified as a crime of
violence under Section 924(c).
We also conclude, as explained in Fuertes, that this error
was plain.

Fuertes, 2015 U.S. App. LEXIS 14475, at *29-31.

With respect to the force clause, the Supreme Court’s holding in
Descamps made clear that because one of the means of violating
Section 1591 is non-violent, the offense does not qualify as a
crime of violence.

Descamps, 133 S. Ct. at 2285-86; see also

Fuertes, 2015 U.S. App. LEXIS 14475, at *29-30 (explaining that
although Descamps had not been decided at the time of trial, the
error became plain on appeal in accordance with Henderson v.
United States, 133 S. Ct. 1121, 1130 (2013)).

Similarly, with

respect to the residual clause, because sex trafficking can be
committed by force, fraud, or coercion, the offense plainly does
not categorically involve a substantial risk that the defendant
will use physical force in the course of committing the offense. 4
Fuertes, 2015 U.S. App. LEXIS 14475, at *29-31, 31 n.6.

4

The parties in this case submitted supplemental briefing
on the potential impact of Johnson v. United States, 135 S. Ct.
2551 (2015), in which the Supreme Court held that the residual
clause
set
forth
in
18
U.S.C.
§ 924(e)(2)(B)
was
unconstitutionally vague.
The residual clause struck down in
Johnson contains similar but not identical language to the
residual clause at issue in the present case under 18 U.S.C.
§ 924(c)(3)(B).
However, we need not examine whether the
holding in Johnson impacts the constitutionality of the residual
(Continued)
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Finally,
substantial
public

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we

hold

rights

as

reputation

of

that
well

Pg: 21 of 22

this
as

judicial

the

error

affected

fairness,

proceedings,

Naughton’s

integrity,

because

and

Naughton

received an additional sentence of 84 months’ imprisonment based
on his erroneous conviction under Section 924(c).
2015 U.S. App. LEXIS 14475, at *31-32.
conspiracy

to

commit

sex

trafficking

See Fuertes,

Accordingly, because

does

not

categorically

qualify as a crime of violence, we vacate Naughton’s conviction
under Section 924(c), and remand the remaining convictions to
the district court for resentencing.

III.
For

these

reasons,

we

affirm

Naughton’s

convictions

on

counts 1, 4, 5, 6, 7, 8, 9, 10, 12, 13, and 16.

We vacate

Naughton’s

a

conviction

on

count

2,

for

brandishing

firearm

during a crime of violence in violation of 18 U.S.C. § 924(c).

clause here, because we invalidate application of that clause on
the separate basis that a perpetrator’s possible conduct under
the elements of sex trafficking includes several different ways
that the crime could be committed in a non-violent manner. See
Fuertes, 2015 U.S. App. LEXIS 14475, at *26-27 n.5 (citing the
principle
of
constitutional
avoidance
in
accordance
with
Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346-48 (1936)).

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Accordingly, we remand the remaining convictions to the district
court for resentencing.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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