     Case: 12-20240       Document: 00512400496         Page: 1     Date Filed: 10/08/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          October 8, 2013

                                       No. 12-20240                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

MARIA ROJAS, also known as Nancy,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-116-1


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Maria Rojas pleaded guilty to one count of sex trafficking conspiracy, one
count of conspiracy to harbor illegal aliens for purposes of commercial advantage
and private financial gain, and one count of illegal reentry into the United States
by a previously deported alien. Her Sentencing Guidelines range was life in
prison, but the district court sentenced her to 192 months. Rojas appeals her
sentence, and we AFFIRM.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                       No. 12-20240

       Rojas argues first that the district court erroneously denied her a three-
point reduction in her offense level for acceptance of responsibility.                     She
contends that she should have received the reduction based on a written
statement acknowledging her ownership “of a place where there was prostitution
and some of the employees were illegal and I entered into the United States
illegally.” She argues that the district court denied her the adjustment because
she denied knowing that there were minors involved in the offense, but that such
knowledge was not a necessary element under the statute of conviction, 18
U.S.C. § 1591.
       In order to receive a reduction in the offense level the defendant must
“clearly demonstrate[ ] acceptance of responsibility for his offense.” U.S.S.G.
§ 3E1.1(a) (2011).1 The defendant bears the burden of demonstrating that the
reduction is warranted. United States v. Watson, 988 F.2d 544, 551 (5th Cir.
1993). The district court’s determination as to whether a defendant has accepted
responsibility is reviewed with even greater deference than the clearly erroneous
standard. United States v. Whitfield, 590 F.3d 325, 368–69 (5th Cir. 2009). We
will affirm the district court’s decision unless it is without foundation. United
States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008).
       Rojas was charged in and pleaded guilty to an indictment alleging that she
and her co-defendants engaged in a conspiracy to smuggle Mexican women and
girls into the United States and force them to work as prostitutes in a bar owned
and controlled by Rojas. The indictment specifically charged that the offense
involved minors. As part of the offense Rojas and the other defendants would
have the minors obtain false identification cards and alter their appearance in
order to look older. The presentence report (“PSR”) also contained information
showing that Rojas was a leader of the criminal offense, that she knew minor

       1
       All citations in this opinion to the Sentencing Guidelines refer to the 2011 version that
was applicable to Rojas’s offenses.

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                                  No. 12-20240

girls were working at the bar as prostitutes, and that she instructed them to
obtain false identification. Initially, some of the girls were smuggled into the
United States with the expectation of legitimate jobs but were coerced through
force or threats of force to work as prostitutes in order to repay a smuggling
debt. Later, Rojas and the other defendants arranged for Mexican pimps to
supply the women and girls, several of whom were beaten or threatened with
violence to them and their families. The fact that the offense involved forcing
minor girls to prostitute themselves was a significant component of the offense.
Yet, Rojas attempted to minimize her responsibility by contending that the girls
came to her of their own free will, by denying knowledge that they were minors,
and by denying that she hired any of the girls. “[A] defendant who falsely
denies, or frivolously contests, relevant conduct that the court determines to be
true has acted in a manner inconsistent with acceptance of responsibility.”
§ 3E1.1, cmt. n.1(A). Rojas fails to show that the district court’s denial of a
reduction for acceptance of responsibility was without foundation.            See
Juarez–Duarte, 513 F.3d at 211.
      Rojas next argues that the district court erroneously applied sentence
enhancements for (1) the knowing misrepresentation of a participant’s identity,
pursuant to U.S.S.G. § 2A3.1(b)(6), and (2) a victim’s sustaining serious bodily
injury, pursuant to U.S.S.G. § 2A3.1(b)(4).      “We review a district court’s
interpretation of the Sentencing Guidelines de novo and its factual findings for
clear error.” United States v. Nieto, 721 F.3d 357, 371 (5th Cir. 2013).
      We need not determine the applicability of the challenged sentence
enhancements, however. Assuming without deciding that the enhancements
were inapplicable, any resulting error was harmless because it did not affect
Rojas’s sentencing range. See United States v. Chon, 713 F.3d 812, 822 (5th Cir.
2013); United States v. Ramos, 71 F.3d 1150, 1158 n.27 (5th Cir. 1995).



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       Rojas’s offense of sex trafficking conspiracy involved more than one minor.
The Sentencing Guidelines instruct that in such cases the conduct for each
minor is to be treated as a separate count of conviction, and the counts are not
to be grouped together. U.S.S.G. § 2G1.3(d) & cmt. n.6. Because of this
directive, the probation officer treated the conduct for each of the five minor
participants alleged in count one of the indictment as a “pseudo count” and
determined the offense level for each count. This yielded the following adjusted
offense levels: pseudo count A, 42; pseudo count B, 38; pseudo count C, 42;
pseudo count D, 38; pseudo count E, 38. Pseudo counts A, B, and C included
two-level enhancements for misrepresentation, while only pseudo count A also
included a two-level enhancement for serious bodily injury.2
       The probation officer then made a multiple-count adjustment by taking the
highest offense level for the pseudo-counts and increasing that level by a number
corresponding to the number of “units” prescribed in the table found in U.S.S.G.
§ 3D1.4. The number of “units” from the table was five, which required that the
highest offense level (here 42) be increased by four levels. See § 3D1.4(a). This
resulted in a combined adjusted offense level of 46, but Rojas’s offense level was
treated as a level of 43 as required by the Guidelines. See U.S.S.G. Ch. 5, Pt. A
cmt. n.2 (“An offense level of more than 43 is to be treated as an offense level of
43.”). An offense level of 43, along with Rojas’s criminal history category of I,
yielded a Guidelines sentencing range of life.
       Even     assuming      that    the   misrepresentation        and    bodily    injury
enhancements should not have been applied, Rojas’s Guidelines range would not
have changed. Without the above noted enhancements, the offense levels for the
pseudo counts would have been as follows: pseudo count A, 38; pseudo count B,


       2
         Rojas incorrectly asserts in her brief that pseudo counts A and C included the bodily
injury enhancement. The additional two-level enhancement in pseudo count C was based on
the age of the victim, not serious bodily injury.

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                                  No. 12-20240

36; pseudo count C, 40; pseudo count D, 38; pseudo count E, 38. The number of
“units” (five) and the corresponding increase in the offense level (four) would
have both stayed the same. See § 3D1.4(a). Again taking the highest adjusted
offense level and adding the multiple-count adjustment from § 3D1.4, the
combined adjusted offense level would have been 40 plus four, or 44. But
because an offense level of 44 is above 43, Rojas’s offense level would still have
been treated as 43, and her Guidelines range would have remained at life. The
district court here sentenced Rojas below the Guidelines range to 192 months.
Because the Guidelines range would not have changed, the error, if any, was
harmless. See Chon, 713 F.3d at 822; Ramos, 71 F.3d at 1158 n.27.
      Finally, Rojas argues that her sentence was substantively unreasonable.
We review “the reasonableness of a sentence for abuse of discretion, whether it
is inside or outside the guidelines range.” United States v. Hernandez, 633 F.3d
370, 375 (5th Cir. 2011) (citing Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.
586, 597 (2007)). We determine the substantive reasonableness of a sentence
based on “the totality of the circumstances, granting deference to the district
court’s determination of the appropriate sentence based on the [18 U.S.C.]
§ 3553(a) factors.” United States v. McElwee, 646 F.3d 328, 337 (5th Cir. 2011)
(internal quotation marks and citations omitted).
      Rojas argues that her 192-month sentence, although below the Guidelines
range of life, was greater than necessary to comply with the purposes of
§ 3553(a) because she merely operated a bar where illegal aliens worked as
prostitutes, some of whom, unbeknownst to her, lied about their age. She points
out that she had zero criminal history points and will be deported after her term
of imprisonment. She argues further that her sentence was disproportionate to
the sentences of her co-defendants, who received sentences ranging from time
served to 48 months. She concludes that her sentence represents a clear error



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                                   No. 12-20240

of judgment by the district court in balancing the sentencing factors. We disagree.
      When, as here, the district court deviates from the Guidelines range, we
defer to the district court’s determination that the § 3553(a) factors warrant the
extent of the variance.     McElwee, 646 F.3d at 337.        A variance sentence
unreasonably fails to reflect the statutory sentencing factors set forth in
§ 3553(a) when it “(1) does not account for a factor that should have received
significant weight, (2) gives significant weight to an irrelevant or improper
factor, or (3) represents a clear error of judgment in balancing the sentencing
factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
      At sentencing, the Government asked for a sentence of twenty years, and
Rojas argued for a sentence between 108 months and 135 months. The district
court chose 192 months (16 years). Rojas objected that her sentence was greater
than necessary in light of the factors set out in § 3553(a). The district court
disagreed and explained in its oral colloquy and in its written statement of
reasons that it viewed Rojas’s offense as “an industrial operation” involving a
“calculated, streamlined process” of prostitution. The court distinguished the
offense from “fortuitous” commercial sex involving “some girls and a pimp.”
Instead, the court emphasized that Rojas’s offense involved “wholesale
importation” of illegal aliens specifically for purposes of prostitution. The court’s
comments show that it considered the nature and circumstances of the offense
to be a significant factor. See § 3553(a). Although the court did not specifically
discuss each of the § 3553(a) factors, it was not required to do so. See Smith, 440
F.3d at 707. The court here weighed all the § 3553(a) factors and specifically
indicated in its statement of reasons that the sentence was sufficient but not
greater than necessary to comply with the purposes of § 3553(a).
      The district court’s conclusions were well-supported by the factual basis
to which Rojas pleaded guilty and information contained in the PSR, both of
which showed that Rojas owned and controlled the bar where the prostitution

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was occurring. The women and minor girls were systematically smuggled into
the United States or supplied by Mexican pimps and coerced under threats of
harm to prostitute themselves.       Rojas and the other defendants made a
minimum of $15,000 per day on Fridays, Saturdays, and Sundays by charging
the girls for condoms and the use of rooms for sex. The defendants used an
elaborate system of managers to distance themselves from the day-to-day
operations of the endeavor, as well as lookouts to detect the presence of law
enforcement. The information also showed that Rojas was personally aware that
minors were working as prostitutes, tolerated their abuse, approved and
controlled whether or not they worked at the bar, and instructed them to get
false identification and change their appearance.
      Furthermore, Rojas was also a leader or organizer of the criminal offense,
and she concedes that she received the same sentence as her co-defendant
brother, who operated the bar along with her. The defendants who received
lesser sentences largely acted in lesser roles, such as lookouts. See Hernandez,
633 F.3d at 379 (noting that sentencing disparity alone is insufficient to render
a sentence substantively unreasonable).
      We are satisfied that the district court made an individualized assessment
of the case based on all the facts presented. See Gall, 552 U.S. at 50, 128 S. Ct.
at 597. Rojas’s arguments essentially amount to a disagreement with the
district court’s balancing of the sentencing factors, which is insufficient to show
that a sentence is unreasonable. See id. at 51 (explaining that appellate courts
will not re-weigh the sentencing factors). Rojas has not shown that the district
court failed to account for a factor that should have received significant weight,
gave significant weight to an irrelevant or improper factor, or committed a clear
error of judgment in balancing the sentencing factors when it sentenced her to
192 months instead of life in prison. See Smith, 440 F.3d at 708.
      AFFIRMED.

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