US v. Randolph Spain


UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:14-cr-00021-F-1 Copies to all parties and the district court/agency. [999990750].. [15-4692]

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Appeal: 15-4692 Doc: 49 Filed: 12/20/2016 Pg: 1 of 6 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4692 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. RANDOLPH JOHNSON SPAIN, Defendant -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 Before NIEMEYER and Senior Circuit Judge. TRAXLER, Decided: Circuit December 20, 2016 Judges, and HAMILTON, Affirmed in part, vacated in part and remanded by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. Appeal: 15-4692 Doc: 49 Filed: 12/20/2016 Pg: 2 of 6 PER CURIAM: A federal counts purposes of convicted interstate of (2012). jury transportation prostitution, The Randolph district in Johnson of violation court upwardly an of Spain of individual 18 U.S.C. departed two for § 2421 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. (4th Cir. 2006). United States v. Smith, 451 F.3d 209, 216 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.” 2 Id. (internal Appeal: 15-4692 Doc: 49 quotation Filed: 12/20/2016 marks omitted). Pg: 3 of 6 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 individual 2421(a) in prohibits interstate knowingly commerce transporting with intent any 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). so doing, procedural improperly we first error,” examine the including calculating) the sentence “failing Guidelines 3 for to range, In “significant calculate treating (or the Appeal: 15-4692 Doc: 49 Filed: 12/20/2016 Pg: 4 of 6 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”. (2007). Gall v. United States, 552 U.S. 38, 51 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 placing that other person in fear. act by threatening 18 U.S.C. § 2242(1). or Based on our review of the record, we conclude that the district court did not err in applying this cross-reference in calculating the 4 Appeal: 15-4692 Doc: 49 Filed: 12/20/2016 advisory Guidelines range. reply brief, his Pg: 5 of 6 Moreover, as Spain concedes in his constitutional binding circuit precedent. argument is foreclosed by 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. Spain in The Government has conceded the error and joins 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). however, was not on appeal. conviction and the The Virginia conviction, Spain appealed the 2011 Virginia presentence report makes clear that he pleaded guilty to one of the four prostitution charges while on appeal in the state circuit court. points out, the district court points each for (1) 2011 the However, as the Government awarded conviction 5 two for criminal four history counts of Appeal: 15-4692 Doc: 49 Filed: 12/20/2016 Pg: 6 of 6 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. district As court these are not double-counted separate them in convictions, calculating the 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 reasonable). calculated and sentence would have been 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. 6

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