Sunday, June 30, 2013

Case o' The Week: Ninth Under the (Undue) Influence -- Guideline Double-Counting

  A pimp can “unduly influence” a minor-prostitute without using “force, fraud or coercion” – and get more prison time as a result.
  (Though how a pimp would actually do this isn’t entirely clear). United States v. Smith, 2013 WL 3198487 (9th Cir. June 26, 2013), decision available here.

Players: Decision by Judge Ikuta, joined by Judges Callahan and Hurwitz.

Facts: Smith went to trial and was convicted of sex trafficking of children by force, fraud or coercion under 18 USC § 1591(a) and (b)(1). Id. at *1. Smith gave homeless minor “M.S.” a job, asked her to move in with him, and had sex with her. Id. at *1, *4. Smith then worked with his “most-trusted prostitute” to involve M.S. in prostitution. Id. Smith then beat and threatened M.S. until he was arrested. Id. The PSR recommended an upward guideline enhancement for “exerting undue influence on a minor” under USSG § 2G1.3(b)(2)(B). The defense objected that this guideline enhancement was impermissible double-counting; the district court imposed the increase and sentenced Smith to thirty years. Id.

Issue(s): “We begin with Smith’s challenge to the enhancement for undue influence under § 2G1.3(b)(2)(B). This section provides for a two-level upward adjustment if a participant ‘unduly influenced a minor to engage in prohibited sexual conduct.’ Id. “Smith argues that this two-level increase for undue influence under § 2G1.3(b)(2)(B) was impermissible double-counting because the court calculated a base offense level of 34 under § 2G1.3(a)(1) for his violation of § 1591(b)(1), which has as an element that the defendant used ‘force, fraud, or coercion.’ Because a person using ‘force, fraud, or coercion’ against a minor would necessarily have ‘unduly influenced’ the minor, Smith asserts, the § 2G1.3(b)(2)(B) enhancement impermissibly punished him for conduct already included in the base offense level.” Id. at *2.

Held: “Because having ‘undue influence’ on a victim under § 2G1.3(b)(2)(B) may involve acts that do not constitute ‘force, fraud, or coercion’ encompassed in § 2G1.3(a)(1), the two provisions serve unique purposes under the Guidelines and may both be applied to the same conduct. Here, the district court could reasonably determine that Smith ‘unduly influenced a minor to engage in prohibited sexual conduct,’ § 2G1.3(b)(2), by preying on M.S.'s vulnerability. Smith took steps aimed at making M.S. dependent on him: knowing she was homeless and lacking family support or financial resources, he invited her to move in with him, gave her a job, and began a sexual relationship with her. These predatory acts compromised the voluntariness of her ability to resist Smith's demands that she work as a prostitute for him. . . . Yet, these acts do not amount to ‘force’ or ‘fraud.’ . . . Nor do such acts amount to ‘coercion’ as defined in § 1591. . . . Accordingly, we conclude that the district court did not err in applying a two-point enhancement for ‘undue influence’ under § 2G1 .3(b)(2) when calculating Smith's guidelines range.” Id. at *4 (internal citations and quotations omitted). 

Of Note: Smith makes tough pimp cases even tougher. In addition to the double-count holding above, Judge Ikuta upholds a Chapter 3 “organizer / leader” adjustment for Smith’s use of his “most-trusted” prostitute to groom the minor. Id. at *5. Another red flag for a common factual scenario in pimp cases involving minors.

How to Use: Smith illustrates what we already know: the Guidelines are unjust because they double-count. Felon-in-possession defendants get more time because their priors increase both their offense levels and criminal history points, USSG § 2K2.1, illegal entry defendants suffer the same double-count, USSG § 2L1.2. Here, Smith’s double-whammy was entirely in the offense level calcs. Smith started with a whopping 34 base offense level because he trafficked a minor using force, fear or coercion. Id. at *2. He then got two more offense levels for exerting “undue influence” on the minor. Id. While Judge Ikuta tries to tease these two types of conduct apart, as a practical matter it is hard to imagine a pimp case where the “undue influence” bump won’t be an automatic additional two-level hit after a “force, fear or coercion” conviction. Beware of this guideline danger when calculating exposure in pimp cases.  
For Further Reading: Budget cuts to FPDs will jeopardize the security and functioning of the U.S. justice system. So reports the Federal Bar Council in a recent letter to President Obama, available here

Image of guideline nomenclature from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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