                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                             No. 08-15704                 ELEVENTH CIRCUIT
                                                            AUGUST 14, 2009
                         Non-Argument Calendar
                                                           THOMAS K. KAHN
                       ________________________                CLERK

                D. C. Docket No. 07-00056-CR-4-RH-WCS

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

CARLOS ANDRES MONSALVE,
a.k.a. Toty,
a.k.a. Toti,
a.k.a. Sebastian,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      _________________________

                             (August 14, 2009)

Before TJOFLAT, HULL and PRYOR, Circuit Judges.

PER CURIAM:
      Defendant-Appellant Carlos Monsalve appeals his 240-month sentences for

multiple offenses involving the transporting, harboring, and importing of illegal

aliens for the purpose of prostitution. After review, we affirm.

                                 I. BACKGROUND

      On appeal, Monsalve challenges two of the district court’s advisory

guidelines calculations. Specifically, Monsalve appeals the district court’s fact

findings that (1) he caused two victims (“Victims 1 and 2”) to engage in sexual

acts by placing them “in fear,” which triggered a higher base offense level, and (2)

Victims 1 and 2 were vulnerable victims, which increased his base offense level by

two levels. We first review the procedural history and Monsalve’s offense conduct

on which the district court based these findings.

A. Indictment

      In 2007, Monsalve and four codefendants were indicted on 11 counts.

Count 1 charged Monsalve with conspiracy to defraud the United States, in

violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) and 18 U.S.C. § 371, with four objects

of the conspiracy: (1) knowing that force, fraud, and coercion would be used to

cause a person to engage in prostitution, transporting, recruiting, and harboring

such a person to receive a benefit; (2) transporting illegal aliens for the purpose of

commercial advantage and private financial gain; (3) knowingly importing female



                                           2
aliens and harboring them for purposes of prostitution; and (4) knowingly

transporting, or attempting to transport, aliens with the intent that they engage in

prostitution. The indictment also charged Monsalve with sex trafficking by force,

fraud, or coercion, in violation of 18 U.S.C. §§ 1591 and 2 (Counts 2, 3, and 4);

transporting and harboring illegal aliens, in violation of 8 U.S.C.

§ 1324(a)(1)(A)(iii), (B)(I) (Count 5); aiding and abetting the importation of aliens

for the purpose of engaging in prostitution, in violation of 8 U.S.C. § 1328 and 18

U.S.C. § 2 (Counts 6, 7, and 8); and aiding and abetting the transportation of aliens

for prostitution, in violation of 18 U.S.C. §§ 2421 and 2 (Counts 9, 10, and 11).

B. Plea and Offense Conduct

      Pursuant to a plea agreement, Monsalve pled guilty to Counts 1 and 5 to 11.

Monsalve admitted that he was guilty of Objects 2 through 4 of the Count 1

conspiracy charge. However, Monsalve specifically did not plead guilty to Object

1, which charged him with transporting, recruiting, and harboring a person while

knowing that force, fraud, and coercion would be used to cause that person to

engage in prostitution.

      Monsalve’s presentence investigation report (“PSI”) detailed his offense

conduct. In 2005, Monsalve and others began smuggling women into the United

States and making them work as prostitutes until they paid off their smuggling



                                           3
fees. Monsalve paid someone in Guatemala to recruit women to the United States

to work as prostitutes. Monsalve also used a contact in Costa Rica, who recruited

Colombian women for Monsalve and provided fraudulent passports and

identification cards. Most of the women knew they would work as prostitutes in

the United States, but Victims 1 and 2 were promised legitimate work.

       Monsalve charged the Guatemalan women a $15,000 to $16,000 smuggling

fee and the Colombian women a $20,000 smuggling fee.1 The women were

expected to work six to seven days a week and have sex with approximately 20 to

25 men a night. Monsalve typically charged customers $30 for 15 minutes of sex.

Monsalve and his group kept all of the proceeds and applied $15 of each

transaction to that woman’s smuggling debt. After a woman worked off her

smuggling debt, which generally took three to four months, the woman could

continue to work as a prostitute and keep $15 from each transaction.

       Monsalve ran the daily operation of the conspiracy, which operated out of

Tampa, Jacksonville, and Tallahassee, Florida. Each city had its own manager,

each of whom was indicted as a codefendant. The women rotated among cities on

a weekly basis. Monsalve and his codefendants provided residences for the

women, delivered them to customers, and transported them from city to city.


       1
         Testimony at Monsalve’s sentencing hearing indicated that these smuggling fees were
significantly higher than average.

                                               4
      Victims 1 and 2 were recruited from Guatemala and, unlike most of the other

women recruited, were promised high-paying, legitimate jobs in the United States

and assistance in becoming United States citizens. After being smuggled into the

United States and transported to Tallahassee, the women were picked up by Jorge

Melchor, one of Monsalve’s codefendants.2 Melchor told Victims 1 and 2 that

their job was to have sex with men in order to repay their debts and that they

should have been told that in Guatemala. On the day they arrived in Tallahassee,

Melchor drove Victims 1 and 2 to shop for clothes and then to various residences

where they had sex with numerous men.

      The next day, Melchor received a call from Monsalve. Melchor told

Monsalve that Victims 1 and 2 did not want to have sex with more men. Monsalve

talked to Victims 1 and 2 and insisted that they had to go back to work. Melchor

threatened the women that, if they attempted to flee, he would find them and bring

them back and that, if they went to the police, they would be deported. Victim 2

had sex with more men later that day. The following day, Victims 1 and 2 fled

from the Tallahassee house.

C. PSI’s Advisory Guidelines Calculation

      The PSI applied the multiple count aggregation rules under U.S.S.G.



      2
          Melchor was convicted, and his appeal is in the briefing stage.

                                                  5
§ 3D1.2 to determine Monsalve’s offense level.3 The PSI grouped Objects 2 and 3

of Count 1 and Counts 6 to 11 by victim for each of the 16 victims, providing 16

count groups, and calculated the offense levels for these 16 count groups under

§ 2G1.1.4 See U.S.S.G. §§ 2G1.1(d)(1), 3D1.2(b). The PSI also identified a 17th

count group, which addressed the conduct reflected in Object 4 of the conspiracy,

as well as Count 5, and calculated the offense level for this 17th count group under

§ 2L1.1.

       Monsalve’s challenges on appeal focus on count groups 1 and 2, which

addressed the conduct related to Victims 1 and 2. In calculating the offense level

for count groups 1 and 2, the PSI noted that § 2G1.1 set Monsalve’s base offense

level at 14. The PSI applied several enhancements under § 2G1.1, including a

four-level enhancement under § 2G1.1(b)(1) because Monsalve coerced Victims 1

and 2 into engaging in prostitution.5 The PSI initially determined that the adjusted

offense level for count groups 1 and 2 of the 17 count groups was 26.

       The § 2G1.1 enhancements and this initial adjusted offense level of 26

became irrelevant, however, when the PSI next reported that Monsalve caused


       3
           The PSI used the 2007 Sentencing Guidelines.
       4
       According to the PSI, the government identified at least 16 alien women with whom
defendant Monsalve was involved for the purpose of prostitution.
       5
        “Coercion” is defined in Application Note 2 of § 2G1.1 as conduct that “negates the
voluntariness of the victim.”

                                                6
Victims 1 and 2 to engage in a sexual act by placing them in fear.6 Based on this

finding, the PSI stated that the cross-reference in § 2G1.1(c)(1) applied and

required that § 2A3.1 be used to calculate Monsalve’s base offense level.7 Under

§ 2A3.1, Monsalve’s base offense level for count groups 1 and 2 was 30. The PSI

then recommended several enhancements, including a two-level, vulnerable-victim

enhancement under § 3A1.1(b). Monsalve’s final adjusted offense level for each

of count groups 1 and 2 was 38. Ultimately, after a two-level increase under

§ 3D1.4, Monsalve’s final, combined adjusted offense level was 40.8

       6
         Section 2G1.1, the guideline for the crime of promoting prostitution, includes a cross-
reference providing that, “[i]f the offense involved conduct described in 18 U.S.C. § 2241(a) or
(b) or 18 U.S.C. § 2242, apply § 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal
Sexual Abuse).” U.S.S.G. § 2G1.1(c)(1) (2007). For purposes of this cross-reference, conduct
described in 18 U.S.C. § 2242 includes an attempt to “engag[e] in, or caus[e] another person to
engage in, a sexual act with another person by threatening or placing the victim in fear (other
than by threatening or placing the victim in fear that any person will be subject to death, serious
bodily injury, or kidnapping).” Id. § 2G1.1 cmt. n.4(B)(i).
       7
         In United States v. Pipkins, 378 F.3d 1281, 1300-01 (11th Cir. 2004), vacated, 544 U.S.
902, 125 S. Ct. 1617 (2005), opinion reinstated by, 412 F.3d 1251 (11th Cir. 2005), this Court
distinguished the conduct that triggers the coercion enhancement under § 2G1.1(b)(1) from the
conduct that triggers the cross-reference in § 2G1.1(c)(1), as follows: “a pimp’s threatening a
prostitute to coerce her to stay in his custody would . . . satisfy the enhancement (which requires
prostitution plus coercion) but not the cross-reference (which requires coercion to perform a sex
act).” We also stated in Pipkins that, because the cross-reference would not always subsume the
enhancement, “some overlap in the enhancement and the cross-reference does not offend the
Sentencing Guidelines or any other law.” Id. at 1301. The mandatory language in the cross-
reference demanded that, “when there is this overlap, the judge must apply the cross-reference.”
Id.
       8
        Section 3D1.4 provides that:
       The combined offense level is determined by taking the offense level applicable
       to the Group with the highest offense level and increasing that offense level by
       the amount indicated in the following table:


                                                 7
      The PSI recommended a denial of any adjustment for acceptance of

responsibility because “[t]he defendant has failed to accept personal responsibility

for his involvement in the offense as required by § 3E1.1.”

D. Objections to the PSI

      Before sentencing, Monsalve objected to, inter alia, the preliminary four-

level enhancement under § 2G1.1(b)(1) and the application of the cross-reference

in § 2G1.1(c)(1) on the grounds that there was no coercion or fear.

      The government responded with excerpts from the testimony of Victims 1

and 2 at Melchor’s trial, which the government claimed demonstrated that

Monsalve placed Victims 1 and 2 in fear. At Melchor’s trial, Victim 1 testified

that she worked as a waitress in Guatemala and was led to believe that she could

continue to work as a waitress if she used a smuggler to enter the United States.

After smugglers helped Victim 1 enter the United States, her identity documents

were taken from her. Upon arriving in Tallahassee, Melchor informed Victim 1


              Number of Units      Increase in Offense Level
                     1                      none
                     1 1/2                  add 1 level
                     2                      add 2 levels
                     2 1/2 - 3              add 3 levels
                     3 1/2 -5               add 4 levels
                     More than 5            add 5 levels
      In determining the number of Units for purposes of this section:
      (a) Count as one Unit the Group with the highest offense level. Count one
      additional Unit for each Group that is equally serious . . . .


                                             8
that she had to work as a prostitute. That same day, she was taken to

approximately 10 residences and had sex with one to six men at each location.

       During that time, Victim 1 complained, and Melchor responded that she had

to have sex with more men before he would take her back home. Victims 1 and 2

did not tell Melchor that they had been promised jobs as waitresses because they

feared that Melchor would then watch them closely, making escape impossible.

After having sex with several men, Victim 1’s genitals hurt and Victim 2 was

bleeding. The next day, Victims 1 and 2 refused to go to work, and Melchor

telephoned Monsalve. Monsalve told the women that they had to keep working to

pay off their debts. Victim 2 went out and had sex with more men.9

E. Sentencing

       At sentencing, the government called Melchor to testify. Melchor stated that

he picked up Victims 1 and 2 when they arrived in Tallahassee and took them to

have sex with men. Afterwards, Victims 1 and 2 complained about having to work

as prostitutes. The two women told Melchor that they believed they were going to

work as waitresses. After he explained the real nature of the work, both women

agreed to do their best. Melchor remembered that one of the victims complained

and cried a lot about working as a prostitute and indicated that she did not want to


       9
        Victim 2’s testimony regarding the events described above was substantially similar to
Victim 1’s.

                                               9
work anymore, but on other occasions she stated that the work was tolerable

because of the money. When asked if Victims 1 and 2 told him that they thought

they would be working at a bar and not as prostitutes, Melchor stated that “at the

beginning, yeah, they all [come] in with that thought.” At some point, Monsalve

called Melchor, and Melchor informed Monsalve that Victims 1 and 2 were

complaining and did not want to work. Monsalve spoke directly to Victims 1 and

2, and both women started crying as soon as they spoke to Monsalve. Melchor

stated that he did not hear the conversation between Monsalve and Victims 1 and 2

because he left the room. The women fled after their conversation with

Monsalve.10

       The district court sustained Monsalve’s objections to the PSI’s denial of a

reduction for acceptance of responsibility but overruled Monsalve’s other

objections and adopted the PSI’s findings and calculations. Notably, the district

court found that: (1) the cross-reference in § 2G1.1(c)(1) applied because



       10
          The government also called Luz Ramos, a female codefendant of Monsalve and
Melchor. Ramos testified that her boyfriend supervised Monsalve’s operation in Jacksonville.
After Ramos’s arrest, Monsalve instructed her to say that he was not the boss of the
organization. When Ramos began cooperating with the government, Monsalve wrote letters to
her, reminding her that he knew where her daughter and other family were located. Ramos
stated that, upon receiving these letters, she feared for her family’s safety.
         On cross-examination, Ramos admitted that Monsalve never directly threatened her
daughter or family in Columbia. Ramos stated, however, that she knew that Monsalve’s wife,
who had cheated on him, was afraid of returning to Columbia because he “would do something
to her.”

                                             10
Monsalve’s telephone conversation with Victims 1 and 2 was “an attempt, at least,

to cause them to engage in sexual acts by placing them in fear”; (2) Monsalve’s

telephone comments were an overt, coercive act to make the women have sex,

against their wills, to pay off their debts; (3) Monsalve talked to the women

because they had “balked at engaging in sexual acts”; and (4) Victims 1 and 2 were

crying after talking to Monsalve. The district court adopted the PSI’s finding that

the women initially were coerced into prostitution because they: (1) did not find

out that they would be working as prostitutes until arriving in the United States

illegally; (2) did not know anyone in the United States; (3) did not speak English;

(4) had a $16,000 debt “hanging over [their] head[s]”; and (5) were threatened by

Melchor, who was working under Monsalve’s direction, that he would find them if

they fled and could have them deported.

      After granting a three-level reduction for acceptance of responsibility, the

district court found that Monsalve’s new adjusted offense level was 37. With

Monsalve’s criminal history category of I, his advisory guidelines range was 210 to

262 months’ imprisonment. Monsalve declined to present anything further

regarding the 18 U.S.C. § 3553(a) factors.

      The district court imposed a sentence of 240 months’ imprisonment.

Monsalve appeals.



                                          11
                                          II. DISCUSSION

       Monsalve first argues that the district court erred in applying the cross-

reference in § 2G1.1(c)(1) based on its finding of fear.11 Monsalve argues that any

finding by the district court regarding fear was based on equivocal and

contradictory evidence because he specifically did not plead guilty or stipulate to

Object 1 of Count 1.

       Neither the guidelines nor the statutes referenced by the guidelines (namely,

18 U.S.C. § 2242) define “fear.” However, our sister circuits have stated that

“[t]he definition of ‘fear,’ as used in 18 U.S.C. § 2242(1), is very broad.” United

States v. Castillo, 140 F.3d 874, 885 (10th Cir. 1998) (citing United States v.

Gavin, 959 F.2d 788, 791 (9th Cir. 1992)). “The element is satisfied when the

defendant’s actions implicitly place the victim in fear of some bodily harm.” Id.;

see also Gavin, 959 F.2d at 791 (stating that “the possible range of ‘fear,’ is very

large”).

       Here, we cannot say the district court clearly erred in its fact finding that

Monsalve placed Victims 1 and 2 in fear or in its application of the cross-reference


       11
          We review a district court’s interpretation of the Sentencing Guidelines de novo and its
factual findings for clear error. United States v. Vance, 494 F.3d 985, 994 (11th Cir. 2007).
        Monsalve uses the term “coercion” in referring both to the cross-reference in
§ 2G1.1(c)(1) and the enhancement in § 2G1.1(b)(1). We use the term “fear” in this discussion
to refer to the cross-reference because that is the term used by 18 U.S.C. § 2242, which is listed
in the cross-reference. See supra note 6; U.S.S.G. § 2G1.1(c)(1).

                                                12
in § 2G1.1(c)(1). The fact finding is supported by the record. Victims 1 and 2

came to the United States thinking they would be waitresses. After arriving in the

United States illegally, they were told they owed Monsalve a $16,000 smuggling

fee and that they must repay him by working as prostitutes. They had their

identification documents taken from them, spoke no English, and depended on

Monsalve and his associates for food, water, shelter, and clothing. Melchor, one of

Monsalve’s managers, threatened Victims 1 and 2 that he could have them

deported if they tried to escape. Moreover, Monsalve personally spoke to Victims

1 and 2 on the phone because they expressed to Melchor that they did not want to

continue to prostitute themselves. This conversation left Victims 1 and 2 in tears,

and Victim 2 slept with more men shortly thereafter. Because the district court’s

finding of fear satisfied the cross-reference requirement in § 2G1.1(c)(1), the

district court was required to apply § 2A3.1.12 See Pipkins, 378 F.3d at 1301.

       Monsalve also argues that the district court erred in applying the vulnerable-

victim enhancement under § 3A1.1(b) to count groups 1 and 2. Monsalve claims

that Victims 1 and 2 showed no susceptibility to criminal conduct and that he did

       12
          In his brief, Monsalve mainly argues that the district court erred in applying the four-
level enhancement for coercion under § 2G1.1(b)(1). However, the PSI’s calculations, which the
district court adopted, reset Monsalve’s base offense level in applying the cross-reference in §
2G1.1(c)(1), meaning the earlier coercion enhancement had no effect on Monsalve’s sentence.
Because we affirm the district court’s application of the cross-reference in § 2G1.1(c)(1) and use
of the offense level in § 2A3.1, Monsalve’s challenge to the coercion enhancement is academic,
and we need not address it.

                                               13
not select the victims due to their vulnerability to the offense. Moreover,

Monsalve asserts that it is error to rely solely on the victims’ illegal status as a sign

of their vulnerability because this status is a necessary element of the crime of alien

smuggling.

       Section 3A1.1(b) provides for a two-level enhancement “[i]f the defendant

knew or should have known that a victim of the offense was a vulnerable victim.”

U.S.S.G. § 3A1.1(b)(i). A “vulnerable victim” is “a person . . . who is unusually

vulnerable due to age, physical or mental condition, or who is otherwise

particularly susceptible to the criminal conduct.” Id. § 3A1.1 cmt. n.2(B). The

adjustment should be applied only when “the defendant selects his victim due to

the defendant’s perception of the victim’s vulnerability to the offense.” United

States v. Day, 405 F.3d 1293, 1296 (11th Cir. 2005) (quotation marks omitted)

(concluding that elderly victims were vulnerable not because of their age, per se,

but because the defendants repeatedly targeted the elderly individuals,

demonstrating that the defendants knew the victims were particularly vulnerable).

       The district court did not clearly err in finding that Victims 1 and 2 were

vulnerable and therefore applying the vulnerable-victim enhancement.13 The


       13
          We generally review de novo the application of the vulnerable-victim enhancement, but
the district court’s determination of a victim’s “vulnerability” is a factual finding given due
deference. United States v. Amedeo, 370 F.3d 1305, 1317 (11th Cir. 2004).
        Monsalve acknowledges that he did not object explicitly to the victim-related

                                              14
victims were vulnerable not because of being illegal aliens per se, but because they

had no identity papers, and thus would be unlikely to report criminal conduct to the

police, had no jobs or income for even basic necessities, making them susceptible

to criminal conduct for income, and spoke no English and had no family in the

United States or place to live other than what Monsalve provided, making them

vulnerable to pressure to engage in criminal conduct. And because Monsalve

repeatedly targeted women in Victim 1 and 2’s situation, the district court could

infer that Monsalve knew such victims were particularly vulnerable to criminal

conduct.

       For the foregoing reasons, we affirm Monsalve’s sentences of 240 months’

imprisonment.

       AFFIRMED.




adjustments under § 3A1.1(b), but argues that he implicitly did so by objecting to the application
of the § 2G1.1(c)(1) cross-reference, as the issue of coercion was common to both. Because we
discern no error under any standard of review, we need not address whether Monsalve’s
objection preserved the issue for appeal.

                                                15
