                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                      No. 11-2083
                                      __________

                           UNITED STATES OF AMERICA

                                           v.

                                 KENNETH BRITTON
                                      a/k/a KB
                                    a/k/a Kalgon

                                     Kenneth Britton,
                                                Appellant
                                      __________

                   On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
              (D.C. Criminal No. 1-05-cr-00443-006; 1-06-cr-00091-001)
                        District Judge: Honorable Yvette Kane
                                     __________

                            Argued on April 8, 2014
    Before: FISHER and SCIRICA, Circuit Judges, and MARIANI,* District Judge.

                                 (Filed: May 29, 2014)

Ronald A. Krauss, Esq. ARGUED
Office of Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101
             Counsel for Appellant


*
 The Honorable Robert D. Mariani, District Judge for the United States District Court for
the Middle District of Pennsylvania, sitting by designation.
Peter J. Smith, United States Attorney
Stephen R. Cerutti, II, Chief of Criminal Appeals
Gordon A.D. Zubrod, Senior Litigation Counsel ARGUED
Office of the United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
              Counsel for Appellee
                                       __________

                               OPINION OF THE COURT
                                     __________

MARIANI, District Judge.

       Kenneth Britton appeals the judgment of the United States District Court for the

Middle District of Pennsylvania sentencing him to 210 months’ imprisonment following

his guilty plea to multiple conspiracy counts for his involvement in an interstate

prostitution ring. For the reasons that follow, we will affirm.

                                              I.

       Because we write primarily for the parties, who are familiar with the facts and the

proceedings in this case, we will revisit them only briefly. Britton acted as a “pimp” in a

prostitution ring, which occurred from February 2001 to December 2005, involved

sixteen coconspirators and over 152 individuals, and spanned across several states. He

sold the sexual services of young girls who often “had poor home lives, had dropped out

of school, had been sexually abused, and had dismal hope for the future.” Sealed App. 6.

       One prostitute in the organization, Tana Adkins, carried the label of Britton’s

“bottom bitch.” “Bottom bitches” are “prostitutes in charge of a pimp’s other prostitutes,

responsible for the recruitment, training, collection of earnings, forwarding the earnings


                                              2
to the pimp, and oversight of other prostitutes.” Id. In addition, “[w]hen called upon to do

so, the ‘bottom bitch’ will defend her territory against other prostitutes and will attack

‘renegades,’ that is, prostitutes who work without a pimp.” Id. As a result of her role in

the prostitution ring, Adkins pled guilty to violating 18 U.S.C. § 371 for conspiracy to

engage in interstate prostitution pursuant to a 33-count Superseding Indictment issued by

a federal grand jury on December 8, 2005. Id. at 3.

       The Superseding Indictment named fifteen other individuals involved in the

prostitution conspiracy, including Britton. On March 1, 2006, Britton was again indicted

and charged for acts occurring in 2002, including sex trafficking of minors and interstate

transportation of a juvenile. These new charges were consolidated into the Superseding

Indictment. On September 21, 2007, Britton pled guilty to violation of 18 U.S.C. § 371

for conspiracy to use interstate transportation with intent to engage in prostitution in

violation of 18 U.S.C. § 2421; coercion and enticement in violation of 18 U.S.C. § 2422;

and interstate travel in aid of prostitution in violation of 18 U.S.C. § 1952. He also pled

guilty to sex trafficking of minors in violation of 18 U.S.C. § 1591 for the acts occurring

in 2002.

       In Britton’s plea agreement, the Government agreed that “[u]pon completion of

the cooperation, if the United States believes the defendant has provided ‘substantial

assistance’ pursuant to § 5K1.1 of the United States Sentencing Guidelines, the United

States may request the Court to depart below the guideline range.” Supp. App. (“S.A.”)

157. At sentencing, the parties noted that Britton had begun cooperating with the

Government in another case, but that his cooperation was “not complete.” S.A. 226.

                                              3
Accordingly, the Government concluded that Britton had not provided sufficient

assistance to warrant a presentence downward departure under U.S.S.G. § 5K1.1.

However, the Government noted that a post-sentence departure under Rule 35(b) of the

Federal Rules of Criminal Procedure for Britton’s substantial assistance could be

forthcoming. S.A. 226-27.

       On January 21, 2009, the District Court sentenced Britton to 300 months’

imprisonment. Within a year of sentencing, after Britton testified against another

individual, the Government filed a post-sentence motion for downward departure under

Rule 35(b). The District Court granted the motion and reduced Britton’s sentence to 210

months’ imprisonment. At sentencing, the District Court applied the 2007 Sentencing

Guidelines to all of the conspiracy counts. The 2007 Guidelines included a 2004

amendment, resulting in a harsher penalty for Britton’s 2002 crimes, which had been

incorporated into the conspiracy ending in 2005. Britton now appeals.1

                                             II.

       On appeal, Britton contends that the District Court (1) erred by applying a four-

level enhancement for his role as “organizer or leader of a criminal activity”; (2) plainly

erred in allowing the Government to defer a motion for a downward departure for

presentence substantial assistance until after sentencing; and (3) erred by applying the

2007 Sentencing Guidelines in violation of the ex post facto clause. We address each of

Britton’s arguments in turn.


1
 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C § 1291.
                                             4
                                             A.

       Britton first argues that the District Court erred by assigning him a four-level

enhancement for his role as an “organizer or leader” in the prostitution ring. “We review

a District Court’s factual determinations underlying the application of the sentencing

guidelines for clear error.” United States v. Helbling, 209 F.3d 226, 242-43 (3d Cir.

2000). “[W]e exercise plenary review over legal questions involving the proper

interpretation and application of the sentencing guidelines.” Id. at 243. “We may affirm

the rulings of the District Court for any proper reason that appears on the record even

where not relied on by it.” United States v. Perez, 280 F.3d 318, 337 (3d Cir. 2002).

       Under U.S.S.G. § 3B1.1(a), a four-level enhancement is proper “[i]f the defendant

was an organizer or leader of a criminal activity that involved five or more participants or

was otherwise extensive.” To qualify as “otherwise extensive,” a criminal scheme must

involve “no less than the defendant and one participant the defendant led or organized.”

Helbling, 209 F.3d at 248 (citing U.S.S.G. § 3B1.1 app. n.2).2 “A ‘participant’ is a person

who is criminally responsible for the commission of the offense, but need not have been

convicted.” U.S.S.G. § 3B1.1 app. n.1. Victims, including prostitutes, are often deemed

“nonparticipants.” See id. (defining nonparticipants); U.S.S.G. § 2G1.1 n.1 (defining

victims). A victim “is considered a participant only if that victim assisted in the

promoting of a commercial sex act or prohibited sexual conduct in respect to another

victim.” U.S.S.G. § 2G1.1 n.3.


2
 The test also requires qualifying “nonparticipants.” Both parties agree that the nine or
more prostitutes under Britton’s control satisfy the “nonparticipants” prong.
                                              5
       The record reveals that Tana Adkins qualifies as a “participant” led or organized

by Britton because she assisted in promoting prohibited sexual conduct with respect to

other victims. See U.S.S.G. § 2G1.1 n.3; United States v. Evans, 272 F.3d 1069, 1089

(8th Cir. 2001) (citing U.S.S.G. § 2G1.1) (holding that a prostitute qualified as a

“participant” because she “served as a trainer for [a] minor prostitute”). As a result of her

role as Britton’s “bottom bitch,” Adkins pled guilty to conspiracy to engage in interstate

prostitution. As a coconspirator, Adkins qualifies as a participant because she was

“criminally responsible for the commission of the offense.” See U.S.S.G. § 3B1.1 app.

n.1; United States v. Levine, 983 F.2d 165, 168 (10th Cir. 1992) (holding that four

individuals who had been recruited by the defendant-organizer and who pled guilty as

codefendants were participants “sufficient to satisfy § 3B1.1”). Accordingly, the District

Court did not err in applying a four-level sentence enhancement for Britton’s role as an

organizer or leader in the prostitution ring.

                                                B.

       Britton next argues that the Government improperly deferred making a

presentence motion for downward departure under U.S.S.G. § 5K1.1 until after

sentencing. Because Britton did not previously raise this argument, we review for plain

error. See United States v. Vazquez-Lebron, 582 F.3d 443, 446 (3d Cir. 2009). “Plain

error requires the defendant to demonstrate that the district court committed an error that

is plain and that affect[s] substantial rights.” Id. (internal quotation marks omitted).

       The Government has “a power, not a duty, to file a [substantial-assistance]

motion.” Wade v. United States, 504 U.S. 181, 185 (1992). It abuses this power “only if

                                                6
the refusal was based on bad faith, if a plea agreement otherwise required the government

to consider offering a § 5K1.1 departure motion, or on an unconstitutional motive.”

United States v. Holman, 168 F.3d 655, 661 (3d Cir. 1999). Section 5K1.1 permits a

district court to grant a downward departure “[u]pon motion of the government stating

that the defendant has provided substantial assistance.” U.S.S.G. § 5K1.1. To determine

the appropriate sentence reduction, the court considers several factors, including “the

government’s evaluation of the assistance rendered” and “the timeliness of the

defendant’s assistance.” Id. In addition, under Rule 35(b), the government may move for

a downward departure “if the defendant, after sentencing, provided substantial

assistance.” Fed. R. Crim. P. 35(b) (emphasis added).

       Here, the Government’s decision to bring a post-sentence Rule 35(b) motion rather

than a presentence § 5K1.1 motion was not improper. The Government did not defer

bringing a § 5K1.1 motion; it expressly declined to make one given Britton’s incomplete

presentence participation. At sentencing, counsel for both parties discussed the potential

for future participation and a corresponding motion under Rule 35(b) after completion of

Britton’s assistance. This complied with the plea agreement, which only gave rise to the

Government’s obligation to move for downward departure “[u]pon completion of the

cooperation.” S.A. 157; see also U.S.S.G. § 5K1.1 (listing factors including “the

timeliness of the defendant’s assistance”). Moreover, to the extent Britton argues that his

incomplete presentence assistance compelled the Government to bring, and the District

Court to consider, a presentence departure motion under § 5K1.1, that argument must

fail. See Fed. R. Crim. P. 35(b)(3) (emphasizing that the court “may consider the

                                             7
defendant’s presentence assistance” to determine whether a post-sentence departure is

warranted). Thus, the Government was not obligated to bring a presentence § 5K1.1

motion and the District Court did not plainly err by granting the Government’s post-

sentence Rule 35(b) motion.

                                              C.

       Finally, Britton argues that the District Court violated the ex post facto clause of

the Constitution by applying the 2007 Sentencing Guidelines to his 2002 crimes. We

exercise plenary review over legal interpretations of the Guidelines. United States v.

Siddons, 660 F.3d 699, 703 (3d Cir. 2011). The ex post facto clause generally precludes

the application of a Guideline that retroactively increases the punishment for a

defendant’s crimes. Peugh v. United States, 133 S. Ct. 2072, 2081 (2013). The date of the

last overt act in a conspiracy as a whole, rather than the last overt act by the defendant, is

the controlling date for ex post facto clause purposes. United States v. Rosa, 891 F.2d

1063, 1068-69 (3d Cir. 1989).3

       Here, Britton’s 2002 crimes were incorporated into the conspiracy, which ended in

2005. The District Court applied the 2007 Guidelines to all of the conspiracy counts

because the Guidelines did not materially change between 2005 and 2007. The 2007

Guidelines reflected a 2004 amendment that resulted in a harsher penalty when applied to


3
 “Under the substantive law of conspiracy in this Circuit, one who willfully enters an
agreement to commit a crime remains a participant in the agreement unless and until he
communicates or otherwise objectively manifests a decision to renounce the agreement.”
Rosa, 891 F.2d at 1069 (citation omitted). Britton presents no evidence that he
affirmatively renounced his participation before the conspiracy ended in 2005.

                                              8
Britton’s 2002 crimes. Under Rosa, this did not violate the ex post facto clause because

the last overt act in the conspiracy occurred in 2005, after the 2004 amendment. See

Rosa, 891 F.2d at 1065. Thus, the District Court did not err in applying the 2007

Guidelines.4

                                            III.

       We have considered all of the arguments advanced by the parties and conclude

that no further discussion is necessary. The judgment of the District Court will be

affirmed.




4
  We find no merit in Britton’s argument that the Supreme Court’s decision in Peugh
invalidates the application of Rosa. In Peugh, the Court held that, although the Guidelines
are now advisory and not mandatory, the ex post facto clause still applies to a retroactive
application of a harsher Guidelines range. 133 S. Ct. at 2084. Nothing in Peugh supports
Britton’s counterintuitive argument that rules existing and constitutionally permissible
when the Guidelines were mandatory violate the ex post facto clause because the
Guidelines are now advisory. We will not hold so here. Nor will we revisit our sound
precedent in Rosa.

                                             9
