           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        December 21, 2007

                                     No. 06-10936                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

MI NA MALCOLM, also known as Sora

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                           USDC No. 3:05-CR-229-ALL


Before GARWOOD, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
       Mi Na Malcolm pleaded guilty to four counts of a seven-count superseding
indictment charging her with, inter alia, conspiracy to hold or harbor aliens for
purposes of prostitution, in violation of 8 U.S.C. § 1328 and 18 U.S.C. § 371;
harboring illegal aliens for commercial advantage and financial gain, in violation
of 8 U.S.C. § 1324(a)(1)(A), (B)(i), and attempting to transport funds in excess of
$10,000 without filing the required report, in violation of 31 U.S.C. §


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                       No. 06-10936

5316(a)(1)(A), 5332(a). The Presentence Report (PSR) and the factual resumè
to which Malcolm admitted set forth, inter alia, that Malcolm paid smuggling
fees for Korean women brought into the United States; that the women were
required to work in one of Malcolm’s sexually-oriented businesses as prostitutes
in order to repay the smuggling debt; and that their movements were monitored
and their freedom restricted.
       The PSR included a four-level fraud or coercion enhancement pursuant to
U.S.S.G. § 2G1.1 on the basis that the offense involved coercing fifteen victims
to engage in prostitution.1 After grouping, the range was 78 to 97 months,
subject to a maximum of five years on counts one and six and ten years on count
four. The district court concluded that an upward departure to 120 months was
warranted because, among other reasons, the offense involved at least fifteen
aliens, the aliens were brought into the country and harbored for the purposes
of engaging in prostitution, and the aliens were monitored constantly and
required to be available at all times for prostitution.
       Malcolm first argues that the district court committed Sixth Amendment
error under United States v. Booker, 543 U.S. 220 (2005), by applying the section
2G1.1 enhancement based on facts neither admitted by her nor proved beyond
a reasonable doubt.2 Malcolm’s argument is without merit. Booker eliminated
any Sixth Amendment error caused by judicial factfinding with respect to
sentencing by rendering the Sentencing Guidelines advisory rather than

       1
         Malcolm claims that this enhancement was based solely on actions taken against
“Victim No. 1,” but paragraph 33 of the PSR clearly states that the enhancements made with
respect to “Victim No. 1” were also being made with respect to “Victim Nos. 2 through 15.”


       2
          Malcolm also argues that she was unable to rebut the U.S.S.G. § 2G1.1(b)
enhancement because the PSR did not identify “Victim No. 1.” But, as stated above, paragraph
33 of the PSR clearly states that the enhancement for coercion pursuant to U.S.S.G. § 2G1.1(b)
was made with respect to all fifteen victims, so Malcolm's argument that she could not rebut
the PSR because she did not know which victim was being coerced is without merit.


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mandatory. See United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005).
Malcolm was sentenced in July 2006, under this advisory sentencing regime.
Accordingly, there was no Sixth Amendment Booker error arising out of the
district court’s factfinding. See United States v. Johnson, 445 F.3d 793, 797-98
(5th Cir. 2006).     To the extent that Malcolm contends that there was an
insufficient evidentiary basis for the adjustment, Malcolm failed to deny or rebut
any of the information in the PSR and she admitted facts that supported the
enhancement. Thus, Malcolm has not shown any clear error in the district
court’s findings. See United States v. Solis-Garcia, 420 F.3d 511, 513-14 (5th
Cir. 2005).3
       Malcolm next challenges the district court’s upward departure, arguing
that the case did not fall outside the heartland of cases because the factors on
which the court relied were taken into account by the Guidelines. After Booker,
our reasonableness review of an upward departure entails an abuse-of-discretion
standard. See United States v. Saldana, 427 F.3d 298, 310 (5th Cir. 2005). A
sentencing court does not abuse its discretion in deciding to upwardly depart
when its reasons for doing so (1) advance the objectives set forth in 18 U.S.C. §
3553(a)(2); and (2) are justified by the facts of the case. Id. The PSR and the
court cited, inter alia, evidence that the offense involved more than ten aliens
and that they were harbored for the purpose of engaging in serious criminal
activity. These factors are grounds for a departure under the Guidelines. See


       3
         Assuming arguendo that the enhancement under U.S.S.G. § 2G1.1(b) was erroneous,
it would not have had any impact on the calculation of Malcolm's guideline range because it
was under Count 1, which was grouped separately from Counts 4 and 6 and when Counts are
grouped separately the Guidelines instruct us to use the higher of the two groups when
calculating the Guideline range. U.S.S.G. § 3D1.4. The total offense level for Count 1 was 22
with the enhancement and it would have been 18 without the enhancement. The total offense
level for Counts 4 and 6 was 26, which is higher than for Count 1 in either case, so this was
the offense level that was used to calculate Malcolm's Guideline range. Therefore, even
assuming there was error in applying a U.S.S.G. § 2G1.1(b) enhancement, that error was
harmless because it had no impact on her Guideline range.

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U.S.S.G. § 2G1.1, comment. (n.6) (upward departure may be warranted if offense
involves more than ten aliens); U.S.S.G. § 2L1.1, comment (n.3) (upward
departure may be warranted if aliens are harbored knowing that the aliens
would be engaged in serious criminal behavior).          In addition, the court
reasonably could have found that the degree of coercion present, which,
according to the court, effectively constituted enslavement, was such that the
case was outside the heartland. See Saldana, 427 F.3d at 312; see also U.S.S.G.
§ 5K2.0(a)(3). Finally, the court could have concluded that the sentencing
objectives of punishment, deterrence, and protecting the public warranted a
departure. Accordingly, we find no abuse of discretion in the district court’s
decision to depart.
      Malcolm contends in a conclusory manner that deposition testimony of two
of the fifteen victims negates the factors relied on by the court for a departure.
She did not offer (or refer to) this evidence (or call it to the attention of the
probation officer) at (or before) sentencing and she makes no explanation of her
failure to do so, although the depositions were taken nearly seven months before
sentencing. Further, she fails to cite any particular portion of that testimony nor
does she provide any legal or factual analysis. Thus, she has abandoned any
such argument by failing to brief it adequately. See United States v. Torres-
Aguilar, 352 F.3d 934, 936 n.2 (5th Cir. 2003); see also FED. R. APP. P. 28(a). In
any event, in light of her own admissions at rearraignment and the unrebutted
information set out in the PSR, Malcolm has failed to demonstrate an abuse of
discretion.
      For the foregoing reasons, the judgment of the district court is
                                  AFFIRMED.




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