                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4816


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JEREMY NAUGHTON, a/k/a Jerms Black,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     J. Frederick Motz, Senior District
Judge. (8:12-cr-00229-JFM-1)


Argued:   May 13, 2015                     Decided:   September 2, 2015


Before KING and    KEENAN,   Circuit    Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished
opinion.   Judge Keenan wrote the opinion, in which Judge King
and Senior Judge Davis joined.


ARGUED: Meghan Suzanne Skelton, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant.      Sujit Raman,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee. ON BRIEF: James Wyda, Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for
Appellant.   Rod J. Rosenstein, United States Attorney, Mark W.
Crooks, Paul Budlow, Assistant United States Attorneys, James D.
Houghton, Student Law Clerk, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
BARBARA MILANO KEENAN, Circuit Judge:

       Jeremy Naughton was convicted by a jury of numerous charges

arising from his involvement in an interstate sex trafficking

enterprise.          On appeal, Naughton challenges: (1) the district

court’s    denial      of     his   motions       to    suppress      certain       evidence

obtained      from    two     warrantless        searches       of    an    apartment       he

formerly      occupied;       and     (2)   his    conviction         under    18    U.S.C.

§ 924(c) for brandishing a firearm in furtherance of a crime of

violence,      namely,      conspiracy       to        commit   sex    trafficking          in

violation of 18 U.S.C. § 1594(c).

       Upon our review, we affirm the district court’s denial of

Naughton’s     motions        to    suppress.          We   hold     that     one    of    the

searches was conducted lawfully based on the police officers’

reasonable belief that Naughton had abandoned any interest in

the apartment.          With respect to the other search, we conclude

that any error in admitting into evidence certain items seized

was    harmless      beyond    a    reasonable     doubt.          However,     we   vacate

Naughton’s conviction under Section 924(c), because we conclude

that    the    district       court    plainly         erred    in    determining         that

conspiracy to commit sex trafficking qualifies as a crime of

violence.




                                             3
                                            I.

      We    begin     by    describing      the    facts       relevant       to    the     two

searches at issue in this appeal.                 Because      the     district           court

denied     Naughton’s       motions    to    suppress       the    evidence         obtained

during these searches, we construe the evidence in the light

most favorable to the government.                      United States v. Montieth,

662 F.3d 660, 664 (4th Cir. 2011) (quotation marks and citation

omitted).

      The   first     search    took    place      on    September      22,        2010    (the

September       search),      after    an        unidentified         woman        placed    a

telephone call to a “911 operator” in Brooklyn, New York, to

report     an   ongoing     incident     at      322    Marcus    Garvey       Boulevard,

Apartment       2R   (the   apartment,      or     Naughton’s        apartment).            The

government later offered evidence establishing that Naughton had

leased and had lived in this apartment.

      The   unidentified       caller       stated      that    she    had     received       a

“text message” on her cellular telephone from a female friend

who reported that she was being held against her will in the

apartment by a man in possession of a firearm.                          The caller did

not identify herself, her friend, or the perpetrator, and did

not   provide        any    additional        information         to    the        emergency

operator.

      When the officers arrived at the apartment building, the

external door to the building was open, and the officers entered

                                            4
the   building     and   climbed       the    stairs     to     the    second-floor

apartment.      The officers “constantly knock[ed]” on the apartment

door for about three minutes, while identifying themselves as

police.      No one responded.

      The officers did not observe any obvious criminal activity

outside the building, nor did they see or hear anything unusual

in the area of the apartment.                Additionally, the officers did

not attempt to communicate with neighbors to inquire about the

reported     incident.    After    a    few    minutes    had    passed,      several

officers climbed the fire escape to enter the apartment through

a window.

      Upon    entering   the   apartment,       the    officers       found   no   one

inside. 1     The officers seized a handgun and ammunition that were

lying on a counter in plain view.

      Officers searched the same apartment again on June 2, 2011

(the June search), after two Assistant United States Attorneys

from Maryland, a detective from the Montgomery County, Maryland

Police Department, and a detective from the New York City Police

Department went to the apartment to obtain a photograph of the

building.      When the four individuals (the officers) arrived at

the apartment building, an officer rang several of “the buzzers”



      1 Law enforcement officers later determined that the
telephone call to the emergency services operator was a hoax.



                                         5
in an effort to enter the locked exterior door of the building.

A woman dressed in a bathrobe responded to the front door of the

building.      After the woman identified herself as the landlord

and superintendent of the building, the officers did not ask her

to produce verifying identification.

       The woman informed the officers that Naughton’s apartment

“was    vacant,”   that   she   had   not   seen   Naughton   in   “a   couple

weeks,” and that he had been evicted.              She explained that she

had arranged for the apartment to be cleaned the next day, and

that the locks to the apartment had been changed.              Although the

woman did not have the new keys to the apartment, she attempted

to contact her sister, the other co-landlord of the building who

allegedly retained the new keys, but did not succeed in reaching

her.

       Although the door to the apartment was locked, two officers

entered the landlord’s apartment at her suggestion, climbed up

the    fire   escape,   and   entered   Naughton’s   apartment     through   a

window.       The apartment was “dirty” and “in disarray,” and the

officers discovered and seized numerous items, including used

condoms and women’s clothing.

       Following further investigation into Naughton’s involvement

in an interstate sex trafficking enterprise, a grand jury issued

a 16-count superseding indictment charging Naughton with: one

count of conspiracy to commit sex trafficking, in violation of

                                        6
18 U.S.C. § 1594(c) (count 1); one count of using, carrying, and

brandishing    a   firearm       during     and    in    relation     to   a   crime    of

violence, in violation of 18 U.S.C. § 924(c) (count 2); six

counts of sex trafficking, in violation of 18 U.S.C. § 1591

(counts 3, 4, 6, 8, 11, and 12); six counts of transporting an

individual to engage in prostitution, in violation of 18 U.S.C.

§   2421   (counts     5,   7,    9,    10,       13,    and   16);    one     count   of

kidnapping, in violation of 18 U.S.C. § 1201(a)(1) (count 14);

and one count of possession of a firearm by a convicted felon,

in violation of 18 U.S.C. § 922(g)(1) (count 15).

     Before trial, Naughton moved to suppress the firearm and

ammunition seized during the September search, as well as the

items seized during the June search.                     After the district court

held an evidentiary hearing, the court denied Naughton’s motions

to suppress.

     Following a 14-day trial in which seven victims and former

prostitutes testified as part of the government’s case, a jury

convicted Naughton of most of the charges, acquitting him only

of the charges in counts 3, 11, 14, and 15.                     The district court

imposed    a   total    sentence       of    36     years’     imprisonment,       which

included a consecutive sentence of 84 months’ imprisonment on

count 2 for brandishing a firearm in furtherance of a crime of

violence.      The     district    court        denied    Naughton’s       motions     for

judgment of acquittal.       This appeal followed.

                                            7
                                         II.

      On appeal, Naughton challenges the district court’s denial

of his motions to suppress evidence seized in the two searches

of the apartment.          He also challenges his conviction under count

2,   for    brandishing       a   firearm    in     furtherance        of    a   crime    of

violence in violation of 18 U.S.C. § 924(c).

                                            A.

      We first address Naughton’s arguments relating to the two

searches.        In considering a district court’s denial of motions

to suppress evidence, we review the court’s legal conclusions de

novo and its factual findings for clear error.                              Montieth, 662

F.3d at 664.

                                            i.

      Naughton argues that the June search of the apartment was

an unreasonable search in violation of the Fourth Amendment and

that,      therefore,   the       district       court    erred   in    admitting        the

evidence seized during the search.                       Naughton contends that he

maintained a protected privacy interest in the apartment because

he had not been issued an order of eviction before the time of

the search.         Accordingly, Naughton asserts that the officers

violated his Fourth Amendment rights by entering his apartment

without      a   warrant    and    without       his     consent.       Naughton       also

maintains        that   the       officers       unreasonably       relied        on     the

representations made by the purported landlord that Naughton had

                                             8
abandoned    his       interest   in     the    apartment.          We    disagree    with

Naughton’s arguments.

      The Fourth Amendment guarantees the right of individuals

“to be secure in their persons, houses, papers, and effects,”

and    affords         protection       from     “unreasonable            searches     and

seizures.”         U.S.    Const.      amend.    IV.        These      Fourth   Amendment

protections extend to an individual occupying a residence under

a lease.         United States v. Stevenson, 396 F.3d 538, 546 (4th

Cir. 2005) (citing Chapman v. United States, 365 U.S. 610, 616-

17 (1961)).       Thus, a landlord or building owner typically cannot

consent     to     a    warrantless      search        of    a   tenant’s       leasehold

property.    Chapman, 365 U.S. at 616-17.

      Generally, a search of an individual’s residence conducted

without a warrant and without proper consent is unreasonable,

based on the individual’s reasonable expectation of privacy in

his   residence.          Kyllo   v.    United    States,        533     U.S.   27,   31-33

(2001).     However, when an individual “voluntarily abandons his

privacy    interest       in   property,        his    subjective        expectation    of

privacy becomes unreasonable, and he is precluded from seeking

to suppress evidence seized from it.”                       Stevenson, 396 F.3d at

546; see also United States v. Hoey, 983 F.2d 890, 892 (8th Cir.

1993) (“The warrantless search of abandoned property does not

constitute an unreasonable search”).



                                           9
      In   determining       whether    an    individual       has     abandoned   his

privacy interest in this context, we focus not simply on whether

“all formal property rights have been relinquished.”                        Stevenson,

396 F.3d at 546.         Instead, we consider all the objective facts

available to the officers at the time of the search, and any

surrounding circumstances such as whether the tenant has paid

the rent due, whether the tenant has communicated an intent to

abandon the premises, and whether the tenant has vacated the

property.      Id. at 546-47; United States v. James, 534 F.3d 868,

873 (8th Cir. 2008).

      In     the   present     case,    we     conclude       that    the    objective

evidence     available    to    the    officers      showed    that     Naughton   had

abandoned his privacy interest in the apartment, despite the

fact that his tenancy had not formally expired at the time of

the   June    search.         Most    notably,       the    district     court   found

credible the officers’ testimony that the woman who identified

herself as Naughton’s landlord had told the officers that the

apartment had been vacant for two weeks, and that the locks on

the apartment had been changed.                We discern no clear error in

the district court’s factual findings.                     See Montieth, 662 F.3d

at 664.

      Additionally,      we    conclude       that    the    record    supports    the

district     court’s     determination        that    the     officers      reasonably

believed that they were speaking to the landlord, and that she

                                         10
had provided reliable information regarding Naughton’s intent to

vacate   his   apartment      on    a     permanent    basis.         When   the     woman

answered the door to the building wearing a bathrobe, providing

circumstantial evidence that the woman lived in the building,

she also identified herself as the landlord.                        She was able to

answer questions about where Naughton’s apartment was located,

when she last had seen Naughton, and the statements he had made

regarding his intent to vacate the apartment.

      The woman further informed the officers that Naughton had

been evicted, that he had “taken what [personal property] he

wanted and left the rest,” and that the apartment was scheduled

to be cleaned the next day.                Moreover, the woman attempted, in

the officers’ presence, to contact her sister and co-landlord to

obtain a key to the apartment.                   Thus, the fact that the woman

did   not   have   a    key   to    the    apartment    did     not    undermine       the

reliability of her representations to the officers.                            Based on

these circumstances, we hold that the district court did not err

in    concluding       that   the    officers       reasonably        relied    on    her

representations        indicating        that     Naughton    had      abandoned      his

privacy interest in the apartment.

      Our conclusion is not altered by the fact that the officers

were able to see inside the apartment through a window before

entering, and observed several items including some furniture

and personal belongings.                Not only did the woman identifying

                                            11
herself as the landlord inform the officers that Naughton had

told her that he had removed what belongings he wanted, but the

officers       also      saw    that   the   apartment      was    “in   disarray”      and

“dirty.”           See United States v. Harrison, 689 F.3d 301, 311 (3d

Cir. 2012) (observing that the fact that the inside of a house

was dilapidated or “trashed,” in conjunction with a “rundown”

exterior, provided probative evidence of abandonment).

     The totality of the circumstances therefore supported the

district           court’s      determination        that   the      officers     had    a

reasonable basis for concluding that Naughton had abandoned his

tenancy, thereby permitting the officers to enter the apartment

without        a     search     warrant      and    without       Naughton’s    consent.

Accordingly, we hold that the district court did not err in

denying Naughton’s motion to suppress the items seized during

the June search.

                                              ii.

     Naughton            next   argues    that      the   district      court   erred   in

refusing to suppress the firearm and ammunition seized during

the September search of the apartment, which the police entered

based     on       the    information        they    received      in    the    anonymous

telephone call.              Citing Kerman v. City of New York, 261 F.3d

229, 236 (2d Cir. 2001), Naughton contends that because the “911

call” and the surrounding circumstances did not manifest any

indicia to support the reliability of the caller’s statement,

                                              12
the    officers      were    not    justified      in     entering     his    apartment

without a warrant.

       Although the government contends that the officers properly

entered the apartment to investigate the report of imminent harm

to a victim, the government alternatively maintains that we need

not    decide    this     issue    because       the    admission     of     the    seized

firearm and ammunition was harmless beyond a reasonable doubt.

See Chapman v. California, 386 U.S. 18, 24 (1967).                             We agree

with the government’s harmless error analysis.

       We will assume, without deciding, that the September search

violated      Naughton’s      Fourth      Amendment      rights.      Before       we   may

conclude      that    a   constitutional         error    was    harmless      beyond     a

reasonable doubt, we must determine based on the entire record

that    the     error       “did   not     contribute”         to   the    defendant’s

convictions.         United States v. Holness, 706 F.3d 579, 598 (4th

Cir. 2013) (citation omitted); see also United States v. Abu

Ali, 528 F.3d 210, 256 (4th Cir. 2008) (we must “be able to say

with fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error”) (citation omitted).

This   standard      is     more   rigorous      than    determining       whether      the

evidence      was    sufficient      to    support       the    convictions        in   the

absence of the erroneously admitted evidence.                       Holness, 706 F.3d

at 598.

                                            13
      The    record    before    us     contains     overwhelming          evidence

detailing Naughton’s use of firearms during the course of his

sex   trafficking     operation,      rendering     the       admission      of     the

firearm     and   ammunition    harmless    beyond       a    reasonable      doubt.

Several      victim    prostitutes       involved        in     Naughton’s          sex

trafficking enterprise testified against him, and most of these

victims described Naughton’s regular use of firearms, including

both a handgun similar to the one seized during the September

search as well as a larger machine gun.

      These victims stated that Naughton routinely possessed a

firearm in his waistband, in the console of his car, in the

trunk of his car, and in his apartment.             One victim related that

Naughton kept a firearm with him “at all times.”                  Also, multiple

victims described incidents in which Naughton had used a gun in

their presence.

      One    victim   testified       regarding     an       incident   in        which

Naughton carried a machine gun into a room and set it down on

the dresser.       According to that witness, Naughton had stated

that the gun was “for silly bitches like” her, causing her to

believe that he would kill her if she tried to leave.                        Another

victim identified a machine gun in a photograph, indicating that

Naughton had maintained possession of the gun in her presence.

      The evidence also included a video and numerous photographs

depicting Naughton brandishing firearms, including both handguns

                                       14
and machine guns.           In addition, the government introduced into

evidence audio recordings in which Naughton referred to his use

of firearms in relation to his sex trafficking enterprise.

       In light of this voluminous evidence linking Naughton’s use

of firearms to his sex trafficking operation, we conclude that

the handgun and ammunition displayed at the trial, which were

seized   in     the   September     search,    could    not     have   affected    the

jury’s   ultimate      findings     of   guilt.        Although    the    government

referred to the firearm and ammunition during closing arguments,

these    references     were    minor    in   relation     to    the   overwhelming

testimonial and photographic evidence.                 Therefore, we hold that

any error resulting from the admission of evidence seized in the

September search was harmless beyond a reasonable doubt.

                                         B.

       Finally, we address Naughton’s challenge to his conviction

under count 2, for brandishing a firearm in furtherance of a

crime    of     violence,    in     violation     of    Section 924(c).           This

conviction was based on the predicate offense of conspiracy to

commit sex trafficking by force, fraud or coercion, in violation

of    Section    1594(c).         Naughton    contends    that     this   predicate

offense does not qualify categorically as a crime of violence

and   that,     therefore,     we   should    vacate    his     conviction   on    the

brandishing charge.



                                         15
     In   response,    the   government          argues    that    conspiracy    to

commit sex trafficking qualifies as a crime of violence under

Section 924(c), because the crime necessarily involves a grave

risk that a defendant or others will use physical force against

the victims of the crime.         We disagree with this argument, which

is   foreclosed   by   our   recent      decision         in   United   States   v.

Fuertes, Nos. 13-4755, 13-4931, 2015 U.S. App. LEXIS 14475 (4th

Cir. Aug. 18, 2015). 2

     As an initial matter, we observe that Naughton’s objection

in the district court relating to count 2 was limited to his

motion for judgment of acquittal challenging the sufficiency of

the evidence.      As we explained in Fuertes, such a motion does

not preserve a purely legal argument such as the one presented

here.     See   Fuertes,   2015   U.S.     App.    LEXIS       14475,   at   *21-22.

Accordingly, we review for plain error Naughton’s challenge to

his conviction under count 2.              Id.     (citing United States v.

Tillery, 702 F.3d 170, 175 (4th Cir. 2012)).                    To prevail under



     2 The government also asserts that Naughton waived his
argument regarding count 2, because his own proposed jury
instruction assumed that conspiracy to commit sex trafficking
qualified as a crime of violence. We disagree. Waiver is “the
intentional relinquishment or abandonment of a known right.”
United States v. Robinson, 744 F.3d 293, 298 (4th Cir. 2014)
(citation omitted).    In the context of this case, Naughton’s
proposed jury instruction did not qualify as the identification
of an issue, followed by explicit withdrawal of that issue, so
as to constitute waiver. See id.



                                      16
the plain error standard of review, Naughton must show that the

district     court   erred,      that     the    error    was      “clear       or   obvious,

rather    than     subject     to     reasonable        dispute,”        that    the     error

affected     Naughton’s        substantial       rights,          and   that     the     error

“seriously        affect[ed]        the    fairness,          integrity         or     public

reputation of judicial proceedings.”                     United States v. Marcus,

560 U.S. 258, 262 (2010).

     We therefore turn to address the issue whether the district

court     erred     in    concluding       that        conspiracy         to    commit     sex

trafficking, in violation of 18 U.S.C. § 1594(c), qualifies as a

crime of violence under 18 U.S.C. § 924(c).                               Section 1594(c)

establishes a crime for conspiracy to violate 18 U.S.C. § 1591.

Section 1591       generally     prohibits        an    individual        from       affecting

interstate        commerce       by       enticing,          providing,          obtaining,

recruiting, harboring, transporting, or maintaining a person, or

benefitting from such conduct, by “means of force, threats of

force, fraud, coercion, or any combination of such means . . .

to   cause    the    person      to     engage    in     a    commercial         sex     act.”

§ 1591(a) (emphasis added).

     As    relevant       to   this     case,    to     prove      a    conviction       under

Section 924(c),          the   government       needed       to    show    that      Naughton

knowingly possessed, used, carried, or brandished a firearm in

furtherance of a crime of violence.                       Under the definition in

Section 924(c), a “crime of violence” is a felony that

                                           17
       (A) has as an element the use, attempted use, or
       threatened use of physical force against the person or
       property of another [the force clause], or

       (B) that by its nature, involves a substantial risk
       that physical force against the person or property of
       another may be used in the course of committing the
       offense [the residual clause].

18 U.S.C. § 924(c)(3).

       Our inquiry whether the predicate offense qualifies as a

crime of violence does not permit our review of the conduct

underlying Naughton’s conviction, but allows us to consider only

“the       statutory      definition      of   the    []    crime     and    the   fact   of

conviction to determine whether the conduct criminalized by the

statute, including the most innocent conduct, qualifies as a

‘crime of violence.’”               United States v. Royal, 731 F.3d 333,

341-42 (4th Cir. 2013).                  If any one of the available means of

violating         the    statute    is    non-violent,       under     the    categorical

approach      the       offense    is    not   a    crime   of   violence     within      the

meaning      of    the    force    clause      irrespective      of    the    defendant’s

actual conduct. 3           Descamps v. United States, 133 S. Ct. 2276,

2285-86 (2013); Fuertes, 2015 U.S. App. LEXIS 14475, at *23-25.

Similarly, if we conclude that the elements of conspiracy to

       3
       The categorical approach applies only to “indivisible
statutes.”   Under Descamps v. United States, 133 S. Ct. 2276
(2013), a statute is divisible only if it “comprises multiple,
alternative versions of the crime” by “list[ing] multiple,
alternative elements.” 133 S. Ct. at 2284-85. As we explained
in Fuertes, Section 1591 is an indivisible statute.   Fuertes,
2015 U.S. App. LEXIS 14475, at *24.



                                               18
commit sex trafficking do not involve a substantial risk that

the perpetrator of the crime will use physical force against the

victim, then the crime categorically does not qualify as a crime

of violence under the residual clause.                See Fuertes, 2015 U.S.

App. LEXIS 14475, at *26-29.

       In   Fuertes,     we   held     that   because      the     crime     of    sex

trafficking under Section 1591 can be committed by force or by

fraud or coercion, the offense does not have “as an element the

use,    attempted      use,   or    threatened     use    of     physical     force”

required by the force clause.           Id. at *25-26.         We also held that

sex trafficking does not qualify as a crime of violence under

the    residual     clause,        because    in   the     ordinary        case,    a

perpetrator’s possible conduct under the elements of the offense

includes     several     different     ways    that      the     crime     could    be

committed in a non-violent manner.            See id. at *28-31, 31 n.6.

       Although the predicate offense at issue here involves a

conspiracy to commit sex trafficking, rather than the actual

crime of sex trafficking, that distinction does not alter our

analysis or our application of the holding in Fuertes, because a

conspiracy cannot be “divorced from its violent [or nonviolent]

objective.”     See United States v. White, 571 F.3d 365, 373 (4th

Cir. 2009) (holding that conspiracy to commit robbery with a

dangerous weapon involves a violent object of the conspiracy and

is a crime of violence under Section 924(e)).                      Therefore, we

                                        19
hold       that   the   district   court   erred   in   determining   that

conspiracy to commit sex trafficking qualified as a crime of

violence under Section 924(c).

       We also conclude, as explained in Fuertes, that this error

was plain.         Fuertes, 2015 U.S. App. LEXIS 14475, at *29-31.

With respect to the force clause, the Supreme Court’s holding in

Descamps made clear that because one of the means of violating

Section 1591 is non-violent, the offense does not qualify as a

crime of violence.         Descamps, 133 S. Ct. at 2285-86; see also

Fuertes, 2015 U.S. App. LEXIS 14475, at *29-30 (explaining that

although Descamps had not been decided at the time of trial, the

error became plain on appeal in accordance with Henderson v.

United States, 133 S. Ct. 1121, 1130 (2013)).             Similarly, with

respect to the residual clause, because sex trafficking can be

committed by force, fraud, or coercion, the offense plainly does

not categorically involve a substantial risk that the defendant

will use physical force in the course of committing the offense. 4

Fuertes, 2015 U.S. App. LEXIS 14475, at *29-31, 31 n.6.


       4
       The parties in this case submitted supplemental briefing
on the potential impact of Johnson v. United States, 135 S. Ct.
2551 (2015), in which the Supreme Court held that the residual
clause   set    forth   in   18    U.S.C.   § 924(e)(2)(B)   was
unconstitutionally vague.   The residual clause struck down in
Johnson contains similar but not identical language to the
residual clause at issue in the present case under 18 U.S.C.
§ 924(c)(3)(B).    However, we need not examine whether the
holding in Johnson impacts the constitutionality of the residual
(Continued)
                                      20
     Finally,       we   hold    that      this       error    affected      Naughton’s

substantial    rights     as     well     as    the    fairness,     integrity,      and

public     reputation    of     judicial        proceedings,       because       Naughton

received an additional sentence of 84 months’ imprisonment based

on his erroneous conviction under Section 924(c).                        See Fuertes,

2015 U.S. App. LEXIS 14475, at *31-32.                         Accordingly, because

conspiracy    to    commit      sex    trafficking          does   not   categorically

qualify as a crime of violence, we vacate Naughton’s conviction

under Section 924(c), and remand the remaining convictions to

the district court for resentencing.



                                          III.

     For    these    reasons,        we   affirm      Naughton’s      convictions     on

counts 1, 4, 5, 6, 7, 8, 9, 10, 12, 13, and 16.                              We vacate

Naughton’s    conviction        on    count     2,    for    brandishing     a    firearm

during a crime of violence in violation of 18 U.S.C. § 924(c).




clause here, because we invalidate application of that clause on
the separate basis that a perpetrator’s possible conduct under
the elements of sex trafficking includes several different ways
that the crime could be committed in a non-violent manner. See
Fuertes, 2015 U.S. App. LEXIS 14475, at *26-27 n.5 (citing the
principle   of  constitutional   avoidance  in   accordance  with
Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346-48 (1936)).



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Accordingly, we remand the remaining convictions to the district

court for resentencing.

                                               AFFIRMED IN PART,
                                                VACATED IN PART,
                                                    AND REMANDED




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