                                                                             FILED
                            NOT FOR PUBLICATION
                                                                              JUN 06 2016
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 11-10089

              Plaintiff - Appellee,               D.C. No. 2:09-cr-00533-FCD-1

 v.
                                                  MEMORANDUM*
DEANDRE LORNELL BROWN,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Eastern District of California
               Frank C. Damrell, Jr., Senior District Judge, Presiding

                         Argued and Submitted May 9, 2016
                             San Francisco, California

Before: WARDLAW, PAEZ, and BEA, Circuit Judges.

      After a jury trial, Deandre Brown was convicted of one count of conspiracy

to commit sex trafficking of children in violation of 18 U.S.C. § 371, two counts of

sex trafficking of children in violation of 18 U.S.C. § 1591(a)(1), and two counts

of participating in a sex trafficking venture in violation of 18 U.S.C. § 1591(a)(2).



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
He appeals his conviction and 360-month prison sentence. We affirm the

conviction, but we vacate the sentence and remand for resentencing.

1.    The district court did not plainly err by qualifying Detective Stigerts as an

expert based on his experience and training, and by admitting his expert testimony

regarding pimping and prostitution culture. See United States v. Brooks, 610 F.3d

1186, 1195-96 (9th Cir. 2010).

      We held in United States v. Vera, however, that when a law enforcement

officer provides both expert testimony and lay opinions based on his investigation

of the defendant’s wrongful conduct, “the jury must be instructed on how to

appropriately evaluate each form of testimony offered by the officer.” 770 F.3d

1232, 1235 (9th Cir. 2014). Because Detective Stigerts offered both expert and lay

opinion, the district court plainly erred in failing to give such an instruction. See

id. at 1246. The failure to clearly delineate for the jury which opinions were based

on Stigerts’s experience and training and which were based on his investigation of

Brown compounded the error. See United States v. Torralba-Mendia, 784 F.3d

652, 658 (9th Cir. 2015).

      We are unable to conclude, however, that these errors affected Brown’s

substantial rights. In Vera, the challenged testimony comprised nearly the “sole

evidence” of a key contested issue. 770 F.3d at 1246. Here, by contrast,


                                          -2-
considerable evidence supported the verdict apart from Stigerts’s challenged

testimony. In closing argument, Brown’s counsel emphasized that the two

important questions were whether Brown used force to induce the victims into

prostitution and whether Brown knew the victims were underage. But, little of

Stigerts’s testimony was necessary to establish the age of the victims, or that

Brown used force against them. Both victims testified to Brown’s violent acts, as

did Brittney Beacham. Their testimony was corroborated by photographs and the

testimony of medical professionals and other officers. And all three women

testified that they feared Brown. On this record, Brown fails to demonstrate that

the plain error prejudiced him. See United States v. Olano, 507 U.S. 725, 734

(1993).

2.    Brown’s other assignments of trial error do not require reversal whether

considered individually or cumulatively. See United States v. Wilkes, 662 F.3d

524, 543 (9th Cir. 2011) (“[I]n contrast to this circuit’s cases that reversed a

defendant’s convictions based on cumulative error, the government in this case

presented ample evidence of Wilkes’s guilt.”).

3.    By contrast, Brown’s sentence must be vacated. As the government

concedes, the district court failed to ensure that Brown read and discussed the

presentence report (“PSR”) with his trial counsel as required by Federal Rule of


                                          -3-
Criminal Procedure 32(i)(1)(A),1 an error we have called “deplorable and easily

avoided.” United States v. Sustaita, 1 F.3d 950, 954 (9th Cir. 1993). Because

Brown represents that his trial counsel never reviewed or discussed the PSR with

him, and because he identifies factual errors in the PSR that may have influenced

the district court’s imposition of sentence, we cannot conclude that “it is clear that

no prejudice resulted” from the Rule 32 violation. Sustaita, 1 F.3d at 954.

      Moreover, the term of incarceration imposed violated the so-called

parsimony principle that a criminal sentence be “sufficient, but not greater than

necessary” to serve the purposes codified in 18 U.S.C. § 3553(a)(2). United States

v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc) (quoting 18 U.S.C.

§ 3553(a)). In an exchange with Brown at sentencing, the district court stated,

“Whether it’s 300 or 360 months, sir, you’re going to spend most of your adult life

in prison until you’re in your fifties. The difference is 20 years versus – 25 years

versus 30 years, which is not significant.” To the contrary, “[a]uthority does not

suggest that a minimal amount of additional time in prison cannot constitute

prejudice.” Glover v. United States, 531 U.S. 198, 203 (2001). If the district court

believed the difference between potential sentences was insignificant, parsimony

      1
       Rule 32(i)(1)(A) states that the district court “must verify that the defendant
and the defendant’s attorney have read and discussed the presentence report and
any addendum to the report.”

                                          -4-
required that the lesser sentence be imposed. We hold that the violations of Rule

32 and § 3553(a) require vacating Brown’s sentence and remanding for

resentencing.

4.    Because we vacate Brown’s sentence, we do not reach the other challenges

to his sentence.

      AFFIRMED IN PART; VACATED IN PART; and REMANDED.




                                        -5-
