                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-28-2006

USA v. Keeney
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1869




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-1869


                           UNITED STATES OF AMERICA

                                           v.

                                CHRISTINE KEENEY,
                                             Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                              D.C. Crim. 04-cr-00193
                   District Judge: The Honorable Yvette Kane


                      Submitted Under Third Circuit LAR 34.1(a)
                                 February 10, 2006


         Before: SCIRICA, Chief Judge, BARRY and FISHER, Circuit Judges


                          (Opinion Filed: February 28, 2006)


                                       OPINION



BARRY, Circuit Judge

      Christine Keeney appeals the judgment of sentence and, more specifically, the

District Court’s application of the United States Sentencing Guidelines (“U.S.S.G.”). We
have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and will affirm.

       Appellant had ownership interests in massage parlors in Pennsylvania and

Maryland where sexual services were offered in exchange for money. On July 29, 2004,

she pled guilty to a violation of 18 U.S.C. § 1952(a)(3), which, upon conviction, sanctions

those who “travel[] in interstate or foreign commerce or uses the mail or any facility in

interstate or foreign commerce, with intent to – otherwise promote, manage, establish,

carry on, or facilitate the promotion, management, establishment, or carrying on, of any

unlawful activity. . . .” The underlying offenses were prostitution and money laundering.

       Prior to sentencing, appellant made efforts to assist law enforcement agents in their

investigations of similar businesses. Those efforts were fruitless. At her sentencing

hearing, appellant nevertheless raised the prospect of receiving credit under § 5K1.0 of

the Sentencing Guidelines for that assistance. She also objected to a four-level

adjustment for role in the offense, pursuant to § 3B1.1(a) of the Sentencing Guidelines.

The District Court applied the four-level adjustment and awarded a three-level reduction

for acceptance of responsibility. With a total offense level of 15 and a criminal history

category of I, appellant’s guideline range was 18 to 24 months. Her request for a

downward departure from that range under § 5K1.0 was denied, and she was sentenced to

18 months incarceration.

       Appellant argues, first, that the District Court failed to adequately consider the

sentencing factors set forth in 18 U.S.C. § 3553(a). That argument is unavailing. The

District Court calculated the applicable guideline range and found that the range, though

                                              2
advisory, did “a good job of reflecting all of the interests that need to be balanced here,”

such as “punishment, deterrence,” and “some sort of recognition on the community’s

behalf.” (A92) The District Court was required to do no more. See United States v.

Booker, 125 S. Ct. 738, 757 (2005) (“[The Federal Sentencing Act post-Booker] requires

a sentencing court to consider Guidelines ranges, but it permits the court to tailor the

sentence in light of other statutory concerns as well.”).

       Appellant argues, next, that in light of the facts of her case, the District Court

unreasonably declined to downward depart under § 5K2.0 of the Sentencing Guidelines.

Appellant never requested that the District Court do so, restricting her request to a

downward departure for substantial assistance under § 5K1.0. Accordingly, the argument

is waived.

       Finally, appellant argues that the District Court erred when it gave her a four-level

adjustment for role in the offense, an adjustment permitted “[i]f the defendant was an

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

otherwise extensive.” U.S.S.G. § 3B1.1(a).1 Appellant contends that the government was

required to demonstrate that “she engaged five or more others in interstate travel to

promote prostitution or money laundering.” (Appellant’s Br. at 25 (emphasis added))

She does not contend that the government failed to offer proof of the interstate commerce

element of 18 U.S.C. § 1952(a)(3), and cites no authority for reading that element into §


   1
     Appellant properly preserved this argument for appeal, and our review is plenary.
See United States v. Zats, 298 F.3d 182, 185 (3d Cir. 2002).
                                              3
3B1.1(a). Moreover, she “does not dispute . . . that five or more people worked at her

massage parlors and illegally performed sexual activity.” (Id.) We see no error in the

District Court’s conclusion that the four-level adjustment was warranted.2

       The judgment of sentence will be affirmed.




   2
    We reject appellant’s argument that, post-Booker, the adjustment must be supported
by proof beyond a reasonable doubt.
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