                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4132


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

DWANE WASHINGTON, a/k/a Cisco,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.     John A. Gibney, Jr.,
District Judge. (3:12-cr-00085-JAG-1)


Argued:   December 12, 2013                 Decided:   February 28, 2014


Before TRAXLER, Chief Judge, and DIAZ and FLOYD, Circuit Judges.


Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Chief Judge Traxler and Judge Floyd joined.


ARGUED: James Brian Donnelly, J. BRIAN DONNELLY, P.C., Virginia
Beach, Virginia, for Appellant.    Brian R. Hood, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.    ON
BRIEF: Neil H. MacBride, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia; Christopher W.
Bascom, Third Year Law Student, UNIVERSITY OF RICHMOND LAW
SCHOOL, Richmond, Virginia, for Appellee.
DIAZ, Circuit Judge:

       A jury convicted Dwane Washington of violating 18 U.S.C.

§ 2423(a), which prohibits the interstate transportation of a

minor with the intent that the minor engage in prostitution or

other criminal sexual activity.                 He was sentenced to 240 months’

imprisonment.         Washington         challenges      his   conviction,   arguing

that § 2423(a) requires the government to prove that he knew his

victim was underage.              He also contends that the district court

abused its discretion by imposing an upward variance.                        For the

reasons that follow, we affirm.



                                            I.

       On appeal from a criminal conviction, we recite the facts

in the light most favorable to the government.                     United States v.

Smith, 701 F.3d 1002, 1004 (4th Cir. 2012).

                                            A.

       In the spring of 2012, Washington, then thirty-two years

old,    met    R.C.,     a    fourteen-year-old           runaway.         Washington

approached R.C. on a street in Maryland, where she had already

begun    engaging      in    prostitution         and    using    drugs.         Almost

immediately,     he    became      her    pimp.     At    some   point,    R.C.    told

Washington that she was nineteen years old.                        Washington took

R.C.    to   Nashville      and    Clarksville,       Tennessee;     Birmingham     and

Huntsville,     Alabama;      and    Richmond,      Virginia.        In   each    city,

                                            2
Washington used the internet to advertise R.C. as a prostitute.

He   developed      a    pricing    scale        and     kept    nearly        all   of   the

proceeds, which he used to pay for food, lodging, travel, and

drugs.     Washington also had sex with R.C. on multiple occasions.

      In    Birmingham,          R.C.   was       arrested        and     charged         with

prostitution.           She gave the police a false name and date of

birth, claiming that she was nineteen years old.

      Washington and R.C. were later arrested in Richmond in an

FBI sting operation.             During an interview with an FBI agent,

R.C. confirmed that Washington was her pimp.

                                         B.

      A    grand     jury    charged     Washington             with     the    interstate

transportation of a minor with the intent that the minor engage

in prostitution or other criminal sexual activity, in violation

of 18 U.S.C. § 2423(a).            At trial, the district court instructed

the jury that “the government d[id] not have to prove that the

defendant knew that the individual he transported across state

lines was under the age of 18 at the time she was transported”

in order to convict him under § 2423(a).                          J.A. 376.            As the

district court explained, “the defendant’s knowledge of the age

of   the   individual       he    transported       is    not     part    of     the    proof

required    by     the   government     in       order    to    sustain    a     conviction

. . . .”     Id. at 377.           The jury subsequently found Washington

guilty.

                                             3
      After   the      guilty    verdict,            the   district       court          filed   the

following presentencing notice:                       “The Court is hereby placing

the parties on notice that the Court will consider sentencing

Mr. Washington outside of the guideline range.                               Specifically, at

the sentencing hearing, the Court will consider sentencing Mr.

Washington     above     the     guideline            range    up       to     the       statutory

maximum.”     J.A. 411.

      The     presentence             investigation           report           (the         “PSR”)

subsequently     calculated           an    offense        level    of       30,     a    criminal

history     category     of     IV,    and       a    resulting      advisory            Guideline

sentencing range of 135 to 168 months’ imprisonment.                                      Prior to

sentencing, the government moved for an upward departure and a

variance, seeking a sentence between 188 and 235 months.

      At    Washington’s        sentencing            hearing,      the       district       court

stated that it would not impose an upward departure but was

considering a variance, and it then permitted the parties to

address the issue.          Afterward, the court discussed the 18 U.S.C.

§ 3553(a)     factors     and    decided         to    impose      an     upward         variance.

Ultimately,      the    court     sentenced            Washington         to       240     months’

imprisonment.



                                                II.

      The issues before us on appeal are twofold:                                  (1) whether

the   district      court     erred        in    instructing        the       jury       that    the

                                                4
government did not have to prove that Washington knew R.C. was a

minor, and (2) whether the court erred by imposing an upward

variance.    We consider each question in turn. 1

                                      A.

      Washington first challenges the jury instruction that the

government   was   not     required   to   prove   that   he   knew    R.C.    was

underage.    We review de novo a claim that a jury instruction did

not   correctly    state    the   applicable   law.       United      States   v.

Mouzone, 687 F.3d 207, 217 (4th Cir. 2012), cert. denied, 133 S.

Ct. 899 (2013).

      Section 2423(a) of Title 18 provides:

      A person who knowingly transports an individual who
      has not attained the age of 18 years in interstate or
      foreign commerce, or in any commonwealth, territory or
      possession of the United States, with intent that the
      individual engage in prostitution, or in any sexual
      activity for which any person can be charged with a
      criminal offense, shall be fined under this title and
      imprisoned not less than 10 years or for life.



      1
       After formal briefing, Washington, acting pro se, filed a
lengthy document styled as a notice of supplemental authority.
We decline to consider the filing.       Issues that Washington
failed to raise in his opening brief are waived, see United
States v. Leeson, 453 F.3d 631, 638 n.4 (4th Cir. 2006), and
“[w]e do not countenance a litigant’s use of [Federal Rule of
Appellate Procedure] 28(j) as a means to advance new arguments
couched as supplemental authorities,” United States v. Ashford,
718 F.3d 377, 381 (4th Cir. 2013). Moreover, Washington “has no
right to raise substantive issues while he is represented” by
counsel. See United States v. Cox, 577 F.3d 833, 836 (7th Cir.
2009).



                                       5
Washington argues that the term “knowingly” in § 2423(a) applies

to    the    clause       “who    has   not    attained     the    age    of     18    years,”

thereby requiring the government to prove that he knew R.C. was

a minor.           He acknowledges that we rejected this argument in

United States v. Jones, 471 F.3d 535, 541 (4th Cir. 2006), which

held that “under § 2423(a) the government is not required to

establish      the       defendant’s     knowledge         of    the    alleged       victim’s

age.”       Nevertheless, Washington asserts that Jones is no longer

good law after the Supreme Court’s decision in Flores-Figueroa

v. United States, 556 U.S. 646 (2009).

       In    Jones,        we     explained         that   “the    adverb        ‘knowingly’

modifies      the     verb       ‘transports’”        because     “[a]dverbs       generally

modify verbs, and the thought that they would typically modify

the    infinite          hereafters     of    statutory         sentences      would    cause

grammarians         to    recoil.”        471       F.3d   at    539.       In    our    view,

requiring knowledge of the act of transporting the victim--not

knowledge of the victim’s age--was “[a] more natural reading of

the statute.”            Id. (internal quotation marks omitted).

       But Jones did not rely on the text of § 2423(a) alone.

Rather,      our    interpretation           was    also   supported      by     § 2423(a)’s

more    general      counterpart,        18     U.S.C.     § 2421.       See     id.      That

provision          punishes        “[w]hoever          knowingly        transports         any

individual in interstate or foreign commerce . . . with intent

that such individual engage in prostitution, or in any sexual

                                                6
activity for which any person can be charged with a criminal

offense.” 2     § 2421.        As a textual matter, the only differences

between the two statutes are that § 2421 does not include an age

element and imposes a lesser punishment.

     In Jones, we noted that it would be implausible for the

knowledge requirement in § 2421 to modify the noun “individual.”

471 F.3d at 539.          And we concluded that it would be similarly

“implausible     to    suggest     that,       in § 2423(a),     where      the    noun

‘individual’ is modified by the clause ‘who has not attained the

age of 18 years,’ the term ‘knowingly’ suddenly applie[d] to

both the noun and its dependent clause.”                 Id.     Grammar problems

aside,    we    deemed     it     “unlikely      that,    in     providing        extra

protection for minors in § 2423(a), Congress intended to make

the evidentiary burdens of that provision disproportionate to

those of § 2421.”        Id.

     Finally,     we    explained     that      only   our     interpretation       was

consistent     with    congressional       intent.       Id.    at   540.         “Under

     2
         Section 2421 reads in full as follows:

              Whoever knowingly transports any individual
              in interstate or foreign commerce, or in any
              Territory   or  Possession   of  the   United
              States, with intent that such individual
              engage in prostitution, or in any sexual
              activity for which any person can be charged
              with a criminal offense, or attempts to do
              so, shall be fined under this title or
              imprisoned not more than 10 years, or both.



                                           7
§ 2423(a), the fact that the individual being transported is a

minor     creates     a   more       serious      crime        in     order     to    provide

heightened    protection        against      sexual      exploitation          of    minors.”

Id. (internal quotation marks omitted).                       The defendant’s view of

the statute, on the other hand, “would strip [it] of its clear

purpose: the protection of minors.”                      Id.         Indeed, “[i]mposing

such a mens rea requirement would be tantamount to permitting

adults to prey upon minors so long as they cultivate ignorance

of their victims’ age.”               Id.        For these reasons, we held in

Jones that “under § 2423(a) the government is not required to

establish    the      defendant’s      knowledge         of    the     alleged       victim’s

age.”   Id. at 541 (emphasis added).

     Washington        contends       that     Flores-Figueroa           undermines         our

analysis    in    Jones.        We    disagree.           In    Flores-Figueroa,            the

Supreme Court considered an aggravated identity theft conviction

under 18 U.S.C. § 1028A(a)(1).                    See 556 U.S. at 647.                    That

statute    punishes       an    individual        who,    while        committing         other

enumerated    crimes,      “knowingly        transfers,             possesses,       or   uses,

without lawful authority, a means of identification of another

person.”         18   U.S.C.     § 1028A(a)(1)           (emphasis        added).          The

question     presented         was   “whether       the        statute        requires     the

Government to show that the defendant knew that the ‘means of

identification’ he or she unlawfully transferred, possessed, or

used, in fact, belonged to ‘another person.’”                           Flores-Figueroa,

                                             8
556 U.S. at 647.         The Court concluded that it does.                 Id.    It

reasoned that “[a]s a matter of ordinary English grammar, it

seems natural to read the statute’s word ‘knowingly’ as applying

to all the subsequently listed elements of the crime.”                      Id. at

650.

       Nevertheless,     the   Court   did    not    purport    to   establish     a

bright-line rule that a specified mens rea always applies to

every element of the offense.                Instead, it approvingly cited

Justice      Alito’s   concurrence     for     the   proposition      that       “the

inquiry into a sentence’s meaning is a contextual one.”                     Id. at

652.    The majority noted that some statutes may “involve special

contexts or themselves provide a more detailed explanation of

background circumstances” that call for a different result, but

it did not find a “special context” in the case before it.                   Id.

       Justice Alito wrote separately out of a “concern[] that the

Court’s opinion may be read by some as adopting an overly rigid

rule    of   statutory    construction.”         Id.    at     659   (Alito,     J.,

concurring).      He agreed with the general presumption that the

specified mens rea applies to all of the offense’s elements but

emphasized that context may rebut that presumption.                  Id. at 660.

As an example, he referenced § 2423(a)--the statute at issue

here--and noted that the courts of appeals have uniformly held

that knowledge of the victim’s age is not required.                  Id.



                                       9
     Several      circuits      have       addressed       the     effect    of     Flores-

Figueroa on § 2423(a) and have universally concluded that the

knowledge requirement does not apply to the victim’s age.                               See

United States v. Tavares, 705 F.3d 4, 19-20 (1st Cir.), cert.

denied, 134 S. Ct. 450 (2013); United States v. Daniels, 653

F.3d 399, 410 (6th Cir. 2011); Cox, 577 F.3d at 838; cf. United

States v. Daniels, 685 F.3d 1237, 1248 (11th Cir. 2012), cert.

denied,   133     S.   Ct.    1240        (2013)       (adopting    the     reasoning   of

circuits that have considered the issue under § 2423(a), and

“find[ing] that § 2422(b) likewise does not require that the

government prove that a defendant knew his victim was under the

age of eighteen in order to convict”).                       “These circuits agree

that the context of § 2423(a) compels a reading of the statute

that does not require ‘knowingly’ to be applied to the victim’s

age.”     Tavares,      705        F.3d    at     19    (internal    quotation       marks

omitted).

     We   agree    with      our    sister      circuits     and    join     them   today.

Flores-Figueroa does not undermine our decision in Jones.                                To

the contrary, the “special context” of § 2423(a) supports our

previous interpretation of the statute.                          See Flores-Figueroa,

556 U.S at 660 (Alito, J., concurring) (listing § 2423(a) as an

example of a potential special context).

     We previously identified this “special context” in Jones,

although we did not use that phrase.                     As we then noted, Congress

                                             10
enacted the provision to provide minors with special protection

against sexual exploitation.                  See Jones, 471 F.3d at 540.               It

was intended “to protect young persons who are transported for

illicit purposes, and not transporters who remain ignorant of

the age of those whom they transport.”                      Id. (internal quotation

marks        omitted).        In    the    time     since     circuit      courts   first

interpreted § 2423(a) as we did in Jones, Congress has amended

the statute numerous times but has never changed it to require

the result Washington urges here.                     See id. at 539.         Viewed in

context, the purpose of § 2423(a) is to make a victim’s underage

status an aggravating factor in order to provide minors with

special protection--not to make the provision protecting minors

more difficult to prove than its more general counterpart in

§ 2421.       See id.

     This special context is sufficient to rebut the general

presumption that a specified mens rea applies to all elements of

the offense.          Flores-Figueroa thus does not compel a different

result       from    the   one     we   reached    in     Jones.     Accordingly,      the

district        court      correctly      instructed        the     jury    that    under

§ 2423(a),          the    government     was      not    required    to    prove     that

Washington knew that R.C. was a minor.

                                              B.

        We    next    consider      whether     the      district   court    abused    its

discretion by imposing an upward variance.                     We review a criminal

                                              11
sentence for procedural and substantive reasonableness under a

deferential abuse-of-discretion standard.                 See Gall v. United

States, 552 U.S. 38, 51 (2007).                 We must defer to the district

court and affirm a reasonable sentence, even if we would have

imposed something different.           See United States v. McNeill, 598

F.3d 161, 166 (4th Cir. 2010).              In reviewing a variant sentence,

“we consider whether the sentencing court acted reasonably both

with respect to its decision to impose such a sentence and with

respect    to    the   extent   of   the    divergence   from   the    sentencing

range.”     United States v. Hernandez-Villanueva, 473 F.3d 118,

123 (4th Cir. 2007).

     Washington first contends that the district court did not

consider        the    advisory      sentencing       range     in     the   PSR.

Specifically, he argues that the district court’s presentencing

notice shows that the court ignored the Guidelines because it

issued the notice before the PSR was filed.

     This argument misconstrues the facts.                In its notice, the

district court explained that it would “consider sentencing Mr.

Washington outside of the guideline range.”                J.A. 411 (emphasis

added).    Contrary to Washington’s assertion, the notice does not

suggest that the district court decided to sentence Washington

outside of the Guidelines before it reviewed the PSR.                   Moreover,

at the sentencing hearing, the court discussed the contents of

the PSR and adopted the report’s factual findings.                   Based on our

                                           12
review of the record, we find that the district court considered

Washington’s         advisory     sentencing      range      before     imposing      its

sentence.

       Washington also argues that the district court improperly

focused on R.C.’s age and vulnerability to justify the upward

variance.       He emphasizes that he only knew R.C. for a short

time, believed that she was an adult, and did not introduce her

to prostitution or drugs.

       We    find    no   abuse   of    discretion      in   the   district      court’s

consideration        of   these    factors.       Indeed,     the     district      court

recognized that R.C. had used drugs and engaged in prostitution

before meeting Washington, but it explained:

       It is tragic because the victim herself was clearly,
       as Mr. Washington just pointed out -- and I think as
       Mr. Hood referred to -- she was already a young lady
       who was in deep trouble.         She was already a
       prostitute. . . . She was a crack addict. But, in a
       sense, in a very, very real sense, that vulnerability
       is what opened her up to be a victim in this
       offense. . . .   She was abused.  She was addicted to
       crack.   And I am amazed how Mr. Washington saw that
       and honed in on that.

J.A.   575.         The   district      court   also    specifically      noted     that

Washington’s         belief     that    R.C.    was    nineteen       years   old    “is

something in his favor.”              J.A. 576.

       The    district        court     carefully      considered      the    advisory

sentencing      range     and     the    relevant      sentencing      factors      under

§ 3553(a).          For example, the court emphasized that Washington


                                           13
manipulated R.C., took provocative pictures of her, pocketed her

money, threatened her, and had sex with her.

       The court ultimately concluded that the advisory sentencing

range       neither       provided       adequate          deterrence         nor     adequately

protected the public.              In summarizing its reasons for the 240-

month prison sentence, the court emphasized that Washington was

unrepentant, that he bragged about his criminal drug activity,

and that he used his intelligence for “evil” purposes.                                         J.A.

582.        Moreover,      the    court     relied         on     Washington’s            extensive

criminal       history,          which     included             adult    convictions            for

possession of crack cocaine, possession of marijuana, possession

of a weapon during the commission of a felony, theft, failure to

appear,      and     vandalism,      as    well       as    serious      drug        trafficking

charges.      In fact, every year from the age of nineteen until the

date of Washington’s sentencing in this case, Washington either

committed at least one crime or was incarcerated.                                    The record

thus provides ample support for the district court’s decision to

impose an upward variance.

       We     also    hold       that     the        extent       of    the     variance        was

reasonable.          The advisory sentencing range was between 135 and

168    months’       imprisonment,        and        the    district      court           sentenced

Washington      to    a    term    of     240    months.           The   court        reasonably

concluded that this variance was necessary to deter Washington

from    committing         future       crimes       and     to    protect          the    public.

                                                14
Although    the    sentence    imposed     is   approximately     one-and-a-half

times longer than the high end of the advisory range, it is well

below the statutory maximum of life imprisonment and “serves the

§ 3553(a) factors.”          See Hernandez-Villanueva, 473 F.3d at 123

(holding    that    a   sentence     three      times    the   high   end    of   the

advisory    sentencing       range   was      reasonable).       We   decline     to

disturb the district court’s chosen sentence.



                                       III.

     For    the    reasons    given,     we     affirm   the   district     court’s

judgment.

                                                                            AFFIRMED




                                         15
