                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-4692


UNITED STATES OF AMERICA,

                        Plaintiff – Appellee,

          v.

RANDOLPH JOHNSON SPAIN,

                        Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:14-cr-00021-F-1)


Submitted:   November 21, 2016              Decided:   December 20, 2016


Before NIEMEYER and      TRAXLER,   Circuit     Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed in part, vacated in part and remanded by unpublished
per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, Acting United States Attorney,
Jennifer P. May-Parker, Barbara D. Kocher, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     A    federal     jury    convicted    Randolph       Johnson      Spain    of    two

counts     of    interstate      transportation       of        an    individual      for

purposes    of    prostitution,      in    violation       of    18    U.S.C.   § 2421

(2012).         The   district     court        upwardly    departed       from       the

Guidelines range and sentenced Spain to the statutory maximum of

240 months of imprisonment, and he now appeals.                       For the reasons

that follow, we affirm the convictions, but vacate the sentence

and remand.

     Spain first challenges the sufficiency of the evidence for

the second count of conviction.                 We review a district court’s

decision to deny a Fed. R. Crim. P. 29 motion for a judgment of

acquittal de novo.           United States v. Smith, 451 F.3d 209, 216

(4th Cir. 2006).       A defendant challenging the sufficiency of the

evidence faces a heavy burden.                 United States v. Beidler, 110

F.3d 1064, 1067 (4th Cir. 1997).                   In determining whether the

evidence is sufficient to support a conviction, we determine

“whether    there     is     substantial       evidence    in    the    record,      when

viewed in the light most favorable to the government, to support

the conviction.”           United States v. Palacios, 677 F.3d 234, 248

(4th Cir. 2012) (internal quotation marks omitted).                       Substantial

evidence is “evidence that a reasonable finder of fact could

accept as adequate and sufficient to support a conclusion of a

defendant’s guilt beyond a reasonable doubt.”                          Id. (internal

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quotation      marks        omitted).       Furthermore,            “[d]eterminations          of

credibility are within the sole province of the jury and are not

susceptible to judicial review.”                   Id. (internal quotation marks

omitted).

        Section        2421(a)      prohibits        knowingly            transporting       any

individual        in     interstate        commerce          with    intent          that   such

individual engage in prostitution or any sexual activity that

constitutes       a    criminal      offense.           18   U.S.C.        § 2421(a).         The

intent that the individual engage in prostitution, however, need

not be the defendant’s sole motivation for the interstate travel

where    prostitution          is    the    predominate        purpose          of    the   trip.

Dingess v. United States, 315 F.2d 238, 239 (4th Cir. 1963).                                  We

have thoroughly reviewed the record and conclude that there was

sufficient evidence to support the jury’s verdict of guilt on

the second count.

        Spain also argues that the district court erred in applying

a cross-reference under the Sentencing Guidelines and that this

error violated his Sixth Amendment right to a jury trial.                                      We

review a sentence for abuse of discretion, determining whether

the     sentence       is    procedurally         and    substantively               reasonable.

United States v. Heath, 559 F.3d 263, 266 (4th Cir. 2009).                                    In

so    doing,      we    first       examine    the      sentence          for    “significant

procedural        error,”        including        “failing           to     calculate        (or

improperly        calculating)        the     Guidelines        range,          treating      the

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Guidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a)       [(2012)]    factors,             selecting      a    sentence    based     on

clearly erroneous facts, or failing to adequately explain the

chosen    sentence”.        Gall    v.        United      States,      552    U.S.   38,   51

(2007).        We then “‘consider the substantive reasonableness of

the sentence imposed.’”             United States v. Evans, 526 F.3d 155,

161 (4th Cir. 2008) (quoting Gall, 552 U.S. at 51).

      In addition, in reviewing the district court’s calculations

under    the    Guidelines,       “we    review         the    district      court’s   legal

conclusions de novo and its factual findings for clear error.”

United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010)

(internal quotation marks omitted).                       We will “find clear error

only if, on the entire evidence, we are left with the definite

and     firm    conviction    that           a       mistake   has     been     committed.”

Manigan, 592 F.3d at 631 (internal quotation marks omitted).

      Section 2G1.1(c) of the Guidelines provides that a district

court should apply U.S. Sentencing Guidelines § 2A3.1 (2015) in

determining the offense level if the offense involved conduct

described      in   18   U.S.C.    § 2242            (2012).        USSG   § 2G1.1(c).      A

defendant is guilty of violating § 2242 if he knowingly causes

another    person    to    engage       in       a   sexual    act    by   threatening     or

placing that other person in fear.                       18 U.S.C. § 2242(1).          Based

on our review of the record, we conclude that the district court

did not err in applying this cross-reference in calculating the

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advisory Guidelines range.              Moreover, as Spain concedes in his

reply     brief,       his     constitutional        argument        is    foreclosed      by

binding circuit precedent.              See United States v. Benkahla, 530

F.3d 300, 312 (4th Cir. 2008) (“Sentencing judges may find facts

relevant to determining a Guidelines range by a preponderance of

the evidence, so long as that Guidelines sentence is treated as

advisory and falls within the statutory maximum authorized by

the jury’s verdict.”).

        Finally, Spain argues that the court erred in awarding two

criminal history points each to his 2011 Virginia conviction

consisting of four counts of prostitution and his 2013 North

Carolina conviction for assault because these convictions were

on appeal.         The Government has conceded the error and joins

Spain    in   requesting        that   we     vacate    Spain’s       sentence.         With

respect to Spain’s North Carolina conviction, the district court

should have awarded that conviction only one criminal history

point because it was on appeal.                     See United States v. Martin,

378 F.3d 353, 355-60 (4th Cir. 2004).                    The Virginia conviction,

however, was not on appeal.                 Spain appealed the 2011 Virginia

conviction       and     the    presentence        report    makes        clear    that    he

pleaded guilty to one of the four prostitution charges while on

appeal in the state circuit court.                     However, as the Government

points    out,     the    district     court       awarded     two    criminal      history

points    each     for    (1)    the   2011       conviction    for       four    counts   of

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prostitution as well as (2) the 2011 Virginia conviction for one

of those counts that resulted from Spain’s appeal to the state

circuit    court.      As    these   are       not    separate   convictions,    the

district     court     double-counted          them     in   calculating    Spain’s

criminal history.

      We are unable to determine on the record that this error

was harmless. *       Cf. United States v. Savillon-Matute, 636 F.3d

119, 123 (4th Cir. 2011) (to determine that incorrect Guidelines

calculation was harmless, appellate court must determine that

district court would have reached the same result if Guidelines

had   been   properly       calculated     and       sentence    would   have   been

reasonable).        Accordingly, we affirm Spain’s convictions, but

vacate the sentence and remand for proceedings consistent with

this opinion.        We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before this court and argument would not aid in the decisional

process.



                                                                AFFIRMED IN PART;
                                                     VACATED IN PART AND REMANDED




      *We express no opinion on the substantive reasonableness of
the sentence that the district court imposed.



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