US v. Randolph Spain

Filing

UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Affirmed in part, vacated in part and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.

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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

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quotation

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marks

omitted).

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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

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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
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advisory Guidelines range.
reply

brief,

his

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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

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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