                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        August 29, 2007
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court



    U N ITED STA TES O F A M ER ICA,

              Plaintiff-Appellee,

     v.                                                   No. 06-6363
                                                  (D.C. No. CR-05-00011-01-L)
    BRA ND ON KEITH H ILL,                                (W .D. Okla.)

              Defendant-Appellant.



                              OR D ER AND JUDGM ENT *


Before HA RTZ, Circuit Judge, BROR BY, Senior Circuit Judge and
T YM K O VIC H, Circuit Judge.




          The district court convicted Brandon Keith Hill of various federal crimes

on evidence that he w as a pimp, running a ring of prostitutes (some of w hom were

minors) whom he transported across state lines from Oklahoma to Texas, Florida,

and Colorado. Hill was convicted in count one of a superceding indictment of




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
operating a business enterprise involving prostitution through coercion and by

relying on a facility in interstate commerce to further that enterprise in violation

of various state laws and 18 U.S.C. §§ 2421 and 2422. He was also convicted

under count one of engaging in interstate travel or transportation in aid of a

racketeering enterprise in violation of 18 U.S.C. § 1952. Hill does not appeal

these convictions.

      He does, however, appeal his conviction on counts two through six for

knowingly transporting various females in interstate commerce with the intent

that the females engage in prostitution in violation of 18 U.S.C. § 2421, and for

aiding and abetting such activity in violation of 18 U.S.C. § 2. Hill contends that

the evidence was insufficient to convict him on these charges. He also argues

that his sentence was excessive and unreasonable.

      Our jurisdiction arises under 28 U.S.C. § 1291. Because a rational fact

finder could easily have found that Hill either transported or aided and abetted the

transportation of females in interstate commerce for the purpose of prostitution,

the convictions on counts two through six are affirmed. W e agree with both

parties that the sentence imposed here constitutes plain error. W e therefore

remand this case to the district court with instructions to vacate the sentence and

to re-sentence Hill in accordance with this order and judgment.




                                          -2-
Sufficiency of the Evidence

      W e review a challenge based on insufficiency of the evidence de novo,

viewing all evidence in the light most favorable to the government. United States

v. Robinson, 435 F.3d 1244, 1250 (10th Cir. 2006). In doing so “we examine all

of the evidence and the reasonable inferences to be drawn from that evidence to

determine whether any rational [fact finder] could have found the elements of the

crime beyond a reasonable doubt.” Id. (quotation omitted).

      Hill argues that the government failed to prove he actually transported

individuals in interstate commerce for the purpose of prostitution. Hill ignores

the fact, however, that he was also charged and convicted of aiding and abetting

such activity in violation of 18 U.S.C. § 2. Further, in cases of this type, “intent,

motive and purpose of an accused may be proved by circumstantial evidence and

the environment and conduct of the parties within a reasonable time before and

after the transportation may be considered.” Johnson v. United States, 380 F.2d

810, 811 (10th Cir. 1967). Applying this standard, we are left with no doubt as to

the sufficiency of the evidence.

      W hile H ill is correct that the record fails to establish that he literally

“transported” the women across state lines, see United States v. Footman,

215 F.3d 145, 153 (1st Cir. 2000), there is abundant evidence that, as an aider and

abetter, H ill “caused” the women to be so transported in order to facilitate their

prostitution, id. Because an aider and abettor is deemed to be a principal under

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the law, United States v. Cooper, 375 F.3d 1041, 1049 (10th Cir. 2004), Hill was

properly convicted on counts two through six.

Sentencing error

      In reliance on an erroneous pre-sentence report which mistakenly calculated

Hill’s guideline range at 188 to 235 months, the district court sentenced Hill to

210 months imprisonment. The error arose when the pre-sentence report treated

tw o of the victims as minors when, in fact, both were adults. Compare United

States Sentencing Guidelines M anual (USSG ) § 2G1.3 (2005) (applicable when

the victim is a minor) with U.S.S.G. § 2G1.1 (applicable w hen the victim is not a

minor). W hen properly recalculated, the correct guideline range was 151-188

months. As mentioned above, the government, with necessary but still

appreciated candor, concedes this error. 1

      Because H ill did not object to the m ethod by which the district court

arrived at his sentence, we review only for plain error. United States v.

Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir. 2006), cert. denied, 127 S. Ct. 3043

(2007). “Plain error occurs when there is (1) error, (2) that is plain, which

(3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. at 1222 (quotation

omitted).

1
      W hile w e appreciate the government’s approach, we note that a party’s
concession on a matter of law does not bind this court. United States v. Osuna,
189 F.3d 1289, 1295 n.7 (10th Cir. 1999).

                                          -4-
      Under this framew ork, it is clear that the district court erred in calculating

Hill’s sentence based on a faulty understanding of the age of tw o of the victims.

The error was also plain because it is clear and obvious under current law that

U.S.S.G. § 2G1.3 applies only when the victim is a minor. See United States v.

Johnson, 520 U.S. 461, 467-68 (1997) (defining “plain” error); see also U.S.S.G .

§ 2G1.3 and cmt. n.1 (dealing strictly with offenses involving minors who are

defined, inter alia, as “individuals who have not attained the age of 18 years”).

The error here also affected substantial rights because it “affected the outcome of

the district court proceedings” resulting in a sentence beyond the applicable

guideline range and rendering the sentence illegal. United States v. Olano,

507 U.S. 725, 734 (1993); United States v. Brown, 316 F.3d 1151, 1160 n.4

(10th Cir. 2003). And, finally, this court has discretion to correct the error if Hill

persuades us that the plain error here “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Olano, 507 U.S. at 736 (quotation

omitted). Because the error resulted in a sentence at least twenty-two months

above the guideline maximum, the plain error satisfies this fourth prong of Olano,

and we will exercise our discretion to correct it. See Brown, 316 F.3d at 1161

(collecting cases).




                                          -5-
      W e AFFIRM Hill’s convictions but REVERSE and REM AND for the

district court to vacate the sentence and to re-sentence Hill in accordance with

this order and judgment.

                                               Entered for the Court



                                               W ade Brorby
                                               Senior Circuit Judge




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