                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 02 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 09-50581

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00011-MMM-4

  v.
                                                 MEMORANDUM *
MIRNA JEANNETH VASQUE
VALENZUELA, AKA Mirriam, AKA
Jeanette Vasquez Valenzuela, AKA Mirna
Jeanette Vasque Valenzuela,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 09-50582

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00011-MMM-7

  v.

GABRIEL MENDEZ,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 09-50586

              Plaintiff - Appellee,              D.C. No. 2:07-cr-00011-MMM-1




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
 v.

GLADYS VASQUEZ VALENZUELA,

         Defendant - Appellant.



UNITED STATES OF AMERICA,                No. 09-50587

         Plaintiff - Appellee,           D.C. No. 2:07-cr-00011-MMM-8

 v.

MARIBEL RODRIGUEZ VASQUEZ,

         Defendant - Appellant.



UNITED STATES OF AMERICA,                No. 09-50611

         Plaintiff - Appellee,           D.C. No. 2:07-cr-00011-MMM-3

 v.

MARIA DE LOS ANGELES VICENTE,
AKA Angela,

         Defendant - Appellant.



              Appeal from the United States District Court
                 for the Central District of California
             Margaret M. Morrow, District Judge, Presiding

                 Argued and Submitted October 9, 2012
                         Pasadena, California



                                   2
Before:      PREGERSON and W. FLETCHER, Circuit Judges, and BENNETT,
             District Judge.**


      This appeal is from a month-long sex-trafficking and immigration trial. The

jury found all five defendants guilty of conspiracy, sex-trafficking, and

transportation of persons for purposes of prostitution. Testimony at trial recounted

that appellants and co-conspirators recruited impoverished minors and young

women from their home country of Guatemala with promises of well-paying jobs

in the United States. A minority of the girls who testified expected to work in

prostitution for a brief time to pay off their smuggling debts. Appellants and co-

conspirators arranged for the girls’ travel and paid the smugglers for the girls upon

arrival in the United States. Appellants then forced the girls to work for them as

prostitutes, using threats of force and witchcraft against the girls and their families,

brutal physical and sexual violence, economic and social dependence, as well as

lock and key to keep the girls from running away. After receiving a tip from a

driver working for the appellants, the FBI began an investigation ultimately

resulting in the arrest of nine co-conspirators. Four reached plea agreements; five

went to trial and now appeal both their convictions and sentences. We have

jurisdiction pursuant to 18 U.S.C. § 1291 and now affirm.


      **
            The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.

                                            3
                                     I. Rule 412

      The district court did not err in excluding evidence and prohibiting cross-

examination about victims’ possible prior acts of prostitution. We review a district

court’s interpretation of the Federal Rules of Evidence de novo and evidentiary

rulings for abuse of discretion. United States v. Waters, 627 F.3d 345, 351-52 (9th

Cir. 2010). We review de novo the question whether an evidentiary ruling violates

a defendant’s constitutional rights. Id. We are willing to assume that Federal Rule

of Evidence 412 applies to sex trafficking prosecutions. Appellants argue that the

district court incorrectly applied the constitutional exception to Rule 412 on the

ground that its order prohibiting cross-examination violated the confrontation

clause. However, Appellants cannot show the relevance of questions about prior

prostitution to either Appellants’ knowledge of the use of force, fraud, or coercion,

or the victims’ consent to work in prostitution. First, 18 U.S.C. § 1591(a), the

federal sex trafficking statute under which Appellants were convicted, does not

require that Appellants know at the time of recruitment whether force, fraud, or

coercion will later be used. They must only know at the time they commit any of

the predicate acts—recruiting, enticing, harboring, transporting, providing,

obtaining, or maintaining—that force, fraud, or coercion, or threats thereof will be

used to cause a person to engage in a commercial sex act. Thus, whether

appellants believed the victims were working in prostitution prior to coming to the

                                          4
United States and thus would willingly continue is irrelevant because there is

ample evidence that the victims did not continue to work willingly once in the

United States while the defendants harbored and maintained them with the

knowledge that force, fraud, or coercion would be used to cause the victims to

engage in commercial sex.

      Second, and for similar reasons, evidence of prior prostitution is irrelevant to

whether the victims consented to working as prostitutes. Even if some of the

victims consented initially, Appellants violated § 1591 by continuing to harbor and

maintain them once Appellants realized that force, fraud, or coercion (or threats

thereof) would have to be used to cause the girls to engage in a commercial sex act.

      The government’s questions about the victims’ prior employment and

general naivete upon arriving in the United States did not “open the door” because

it did not ask about the victims’ sexual histories.




                                       II. Batson

      The district court did not clearly err in finding that race was not a

substantially motivating factor in the government’s peremptory strike of a potential

juror. On a Batson claim, we review the trial court’s factual determination

concerning discriminatory intent for clear error. United States v. Steele, 298 F.3d

906, 910 (9th Cir. 2002).

                                           5
      The government provided a race-neutral explanation for its strike of an

African-American potential juror, based on her strong views about immigration,

and the defense offered no rebuttal. The record as a whole and a comparative juror

analysis reveal no reason to doubt the prosecution’s explanation. Ultimately, three

African-Americans sat on the jury.




                                 III. Jury Instructions

      The district court did not abuse its discretion in formulating the jury

instructions to explain the elements of the offense. We review “de novo whether a

jury instruction misstates the elements of a statutory crime,” but if “the instructions

fairly and adequately covered the elements of the offense we review the

instruction’s precise formulation for abuse of discretion.” United States v. Vallejo,

237 F.3d 1008, 1024 (9th Cir. 2001) (internal quotations omitted). If the appealing

party failed to object below to the jury instructions or withdrew its objection, we

review for plain error. United States v. Brooks, 508 F.3d 1205, 1208 (9th Cir.

2007) (failure to object); United States v. Davis, 36 F.3d 1424, 1431 (9th Cir.

1994) (objection withdrawn). The district court made clear that whatever

objections the parties had to the final version of the jury instructions should be

stated on the record at the final hearing. All of the defendants’ counsel stated that

they had no objections to Instruction 23 or 24. Appellants’ arguments that

                                           6
Instructions 23 and 24 shift the jury’s focus to force, fraud, and coercion rather

than the element of the defendants’ knowledge are unconvincing, given that all

parties agree that Instruction 20 correctly stated the elements of 28 U.S.C. §

1591(a).




                                    IV. Sentencing

      We review “the district court’s interpretation of the Sentencing Guidelines

de novo, the district court’s application of the Sentencing Guidelines to the facts of

[the] case for abuse of discretion, and the district court’s factual findings for clear

error.” United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005). The

abuse of discretion standard applies to all final sentencing decisions. United States

v. Carty, 520 F.3d 984, 993 (9th Cir. 2008). Where a defendant fails to object to a

guidelines adjustment at sentencing, we review for plain error. United States v.

Randall, 162 F.3d 557, 561 (9th Cir. 1998).

                               A. U.S.S.G. 2A3.1(b)(2)

      The district court did not abuse its discretion in finding that evidence that

two victims were between the ages of twelve and sixteen was reliable and applying

U.S.S.G. 2A3.1(b)(2). The evidence that one of the victims was only thirteen

when appellants recruited her to the United States is overwhelming. The evidence




                                            7
that the second victim was between the ages of twelve and sixteen is less

overwhelming but not insubstantial.

                              B. U.S.S.G. 2A3.1(b)(3)

      The district court did not misinterpret or misapply the Custody, Care and

Supervisory Enhancement under U.S.S.G. 2A3.1(b)(3). See United States v.

Swank, 676 F.3d 919, 922-24 (9th Cir. 2012).

                              C. U.S.S.G. 3A1.1(b)(1)

      The court did not err in finding the victims were unusually vulnerable under

U.S.S.G. 3A1.1(b)(1). Whether victims are unusually vulnerable is a factual

finding reviewed for clear error. United States v. Veerapol, 312 F.3d 1128, 1131-

32 (9th Cir. 2002). The district court found at sentencing that the victims were

predominantly poor, uneducated, far from home and without connections in the

United States, unable to speak English, and unwilling to go to the police for fear of

deportation. While the legislative findings of the Trafficking Victim Protection

Act, which includes § 1591, recognizes transnational trafficking as a problem and

notes that victims are often vulnerable, nothing suggests that the typical victim

reaches the level of vulnerability of the victims in this case. 22 U.S.C. § 7101.

                                 D. U.S.S.G. 3A1.3

      The district court did not err in finding Appellants physically restrained the

victims under U.S.S.G. 3A1.3. The application notes to 3A1.3 define “physical

                                          8
restraint” by reference to U.S.S.G. 1B1.1 cmt. 1(K), which lists keeping victims

under lock as an example of physical restraint. The record is replete with examples

of appellants keeping the victims under lock.

                                 E. U.S.S.G. 3C1.1

       The district court did not err in applying the obstruction of justice

enhancement, U.S.S.G. 3C1.1, to Gladys, Mirna, Maria, and Gabriel. The court

erred in applying the enhancement to Maribel, but the error was harmless. The

only evidence that Maribel obstructed justice involved her threats to victims to

keep them from going to the police before the investigation began. Maribel’s

threats all took place prior November 1, 2006, when the amendments to 3C1.1

became effective. The government’s argument that Maribel’s conspiracy charge

continued through December 2006 is unavailing because the enhancement applied

to Maribel’s § 1591 conviction. United States v. Castro, 972 F.2d 1107, 1112 (9th

Cir. 1992) (overruled on other grounds in United States v. Jimenez Recio, 537 U.S.

270 (2003)). This error, however, is harmless because it does not affect Maribel’s

final guidelines range. United States v. Cruz-Gramajo, 570 F.3d 1162, 1174 (9th

Cir. 2009).

                          F. Maria’s Use of Force or Fear

      We construe Maria’s appeal to include an appeal of the district court’s

application of U.S.S.G. 2A3.1(b)(1), the guideline for forcible sex conduct.

                                           9
However, Maria offers no argument in support of this part of her appeal. In any

event, the district court did not err for the record contains evidence of numerous

instances of Maria using force or fear.

                                  G. U.S.S.G. 3B1.1

      The district court did not err in finding that Gladys was a leader or organizer

of an extensive scheme under U.S.S.G. 3B1.1. There were over twenty

participants in Appellants’ conspiracy, far more than the five required for the four-

level enhancement. The record makes clear that Gladys directed or gave orders to

many of these participants.

                                   H. U.S.S.G. 3B1.2(b)

      The district court did not err in applying U.S.S.G. 3B1.2(b) to Maribel. Her

argument again relies on a misunderstanding of 28 U.S.C. § 1591(a). A

defendant’s role is not minor simply because she was not directly involved in the

transportation of a victim across international boundaries. A violation of § 1591(a)

can take place completely within the bounds of a single state. Transportation is not

even a required element of § 1591(a), but one of several possible ways to fulfill the

first element, assuming knowledge. The fact that Maribel did not personally

recruit or transport the victims across the U.S. border does not make her role

minor.

                                    I. U.S.S.G. 3E1.1(a)

                                          10
          The district court did not plainly err in failing to find that Gladys accepted

responsibility under U.S.S.G. 3E1.1(a). Gladys did not request from the district

court a reduction for acceptance of responsibility at trial. She argues on appeal that

because she would have accepted a “package deal” plea agreement had her co-

defendants agreed to accept it, she should receive the sentencing benefit of

accepting responsibility. In cases where a defendant wanted to plead guilty but

was unable to do so for some reason, the court should evaluate whether he or she

expressed genuine contrition. United States v. Johnson, 956 F.2d 894, 904-05,

opinion supplemented on denial of reh'g sub nom. United States v. Emelio, 969

F.2d 849 (9th Cir. 1992); United States v. McKinney, 15 F.3d 849, 852 (9th Cir.

1994). Gladys expressed little or no genuine contrition. Given that she did not

request the reduction, we decline to hold that the district court plainly erred. In any

event, any error would be harmless because Glady’s guidelines range would not

change.

                                 J. Substantive Reasonableness

       The district court’s sentences were substantively reasonable. After

considering each of the § 3553(a) factors, including any mitigating evidence

submitted by the defendants and length of sentences given nationwide for § 1591

violations, the court sentenced each defendant to a below-guidelines sentence. A




                                            11
well-reasoned, below-guidelines sentence normally is reasonable, United States v.

Bendtzen, 542 F.3d 722, 729 (9th Cir. 2008), and this case is no exception.

                                    K. Ex Post Facto Error

        The district court did not violate the ex post facto clause by applying the

amended version of § 1591(a) to Maria. Congress amended 28 U.S.C. § 1591 in

July 2006, adding a fifteen-year mandatory minimum. The jury found Maria guilty

of a § 1591(a) charge on the indictment dating from February 2006 to December

2006. Several witnesses at trial described Maria’s conduct during the fall of 2006

that clearly fulfills the elements of § 1591.

                                        V. Conclusion

        For the reasons above, we affirm the convictions and sentences of the

district court.

        AFFIRMED.




                                           12
