                                         PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               ____________

                    No. 19-1172
                   ____________

         UNITED STATES OF AMERICA

                         v.

           JAMIELL SIMS a/k/a “Millz”,
                               Appellant
                 ____________

   On Appeal from the United States District Court
       for the Middle District of Pennsylvania
             (D.C. No. 3-15-cr-00214-008)
   District Judge: Honorable Malachy E. Mannion
                    ____________

            Argued September 11, 2019

Before: HARDIMAN, GREENAWAY, JR., and BIBAS,
                Circuit Judges.

               (Filed: April 24, 2020)
Enid W. Harris [Argued]
Park Office Building
400 Third Ave., Suite 111
Kingston, PA 18704

      Attorney for Appellant

David J. Freed
Francis P. Sempa [Argued]
Office of the United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503

      Attorney for Appellee

                       ____________

                 OPINION OF THE COURT
                      ____________



HARDIMAN, Circuit Judge.

       This appeal presents a legal question arising under the
United States Sentencing Guidelines: What is the base offense
level for conspiracy to commit sex trafficking by force, fraud,
or coercion in violation of 18 U.S.C. § 1594(c)? We hold that
level 34 applies.




                               2
                               I

        Between 2011 and 2014, Appellant Jamiell Sims was a
member of the “Black P-Stones,” an interstate gang that
trafficked drugs and women. In his capacity as a “respect[ed]”
member of the gang, Sims prostituted women online and
provided them security while they worked. App. 73. He also
collected money from the women and supplied them with
drugs. Sims and his fellow gang members used force and
coercion to trap women in a vicious cycle of drug addiction and
prostitution.

       Sims eventually pleaded guilty to, inter alia, one count
of conspiracy to commit sex trafficking by force, fraud, or
coercion in violation of 18 U.S.C. § 1594(c). In its Presentence
Investigation Report, the Probation Office assigned Sims a
base offense level of 34 for the conspiracy offense. The
Government agreed with that calculation, but Sims requested a
base offense level of 14, which the Court of Appeals for the
Ninth Circuit had applied to the same crime in the case of
United States v. Wei Lin, 841 F.3d 823 (9th Cir. 2016).

        The District Court agreed with the Government and the
Probation Office, opining that the Ninth Circuit’s decision in
Wei Lin “defies the written words of the Guidelines. It defies
logic.” App. 32. According to the District Court, when a
conspiracy offense (like Sims’s conviction under 18 U.S.C.
§ 1594(c)) is not covered by a specific section of the
Sentencing Guidelines, then § 2X1.1 of the Guidelines applies.
That section requires courts to apply the base offense level for
the substantive offense underlying the conspiracy. U.S.S.G.
§ 2X1.1(a). And because the substantive offenses underlying
Sims’s conspiracy conviction were 18 U.S.C. § 1591(a) and
(b)(1), Guidelines § 2G1.1(a)(1) mandated a base offense level




                               3
of 34. When the District Court combined that base offense level
(after some adjustments not at issue here) with Sims’s criminal
history category of IV, his advisory Guidelines range was 151–
188 months’ imprisonment. The District Court imposed a
sentence at the bottom of the Guidelines range and Sims filed
this timely appeal. 1

                               II

                               A

        The Sentencing Guidelines explicitly provide base
offense levels for many federal crimes. But some crimes—
including the conspiracy at issue in this appeal—have not been
directly assigned a base offense level. For conspiracy offenses
not covered by a specific guideline, sentencing judges must use
the following progression to calculate the base offense level.

        At first, the judge turns to Guidelines § 1B1.2, which
explains: “[i]f the offense involved a conspiracy, attempt, or
solicitation, refer to §2X1.1 (Attempt, Solicitation, or
Conspiracy) as well as the guideline referenced in the Statutory
Index for the substantive offense.” U.S.S.G. § 1B1.2(a) & cmt.
n.1. Conspiracy under § 1594(c) is not covered by a specific
guideline in the Statutory Index, so courts must follow § 2X1.1
to determine the appropriate base offense level. See United
States v. Boney, 769 F.3d 153, 162–63 (3d Cir. 2014).

       1
        The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a). We review the District Court’s interpretation
of the Guidelines de novo. United States v. Aquino, 555 F.3d
124, 127 (3d Cir. 2009).




                               4
Section 2X1.1(a), in turn, directs courts to apply “[t]he base
offense level from the guideline for the substantive offense.”
U.S.S.G. § 2X1.1(a); United States v. Wright, 642 F.3d 148,
151 n.2 (3d Cir. 2011).

       After determining the substantive offense underlying
the conspiracy, the judge must apply the base offense level
associated therewith. In this appeal, Sims pleaded guilty to
violating § 1594(c) by conspiring to violate § 1591(a) and
(b)(1). Guidelines § 2G1.1(a) applies to violations of those
substantive offenses and provides for a base offense level of 34
if the “offense of conviction” is § 1591(b)(1) or 14
“otherwise.” U.S.S.G. § 2G1.1(a)(1)–(2). The base offense
level of 34 for the substantive offense therefore applies to
Sims’s conviction under § 1594(c).

                               B

       Sims’s heavy reliance on Wei Lin does not alter our
conclusion. There, the Ninth Circuit interpreted
§ 2G1.1(a)(1)’s reference to a defendant’s “offense of
conviction” to mean that a base offense level of 34 applies only
to defendants “actually convicted of an offense subject to the
punishment provided in 18 U.S.C. § 1591(b)(1).” Wei Lin, 841
F.3d at 826 (emphasis added). The court emphasized that Wei
Lin’s plea agreement and judgment did not mention
§ 1591(b)(1). Id. at 825. Instead, he pleaded guilty to violating
§ 1594(c) with the underlying substantive offense being
§ 1591(a). Id. But Sims pleaded guilty to conspiring to violate
both § 1591(a) and (b)(1), so his reliance on that portion of Wei
Lin is misplaced.

      Moreover, following the Ninth Circuit’s Wei Lin opinion
would lead to absurd results. Consider the following example.




                               5
A defendant convicted of a substantive sex trafficking offense
involving force, fraud, or coercion in the Ninth Circuit will
receive a base offense level of 34, while a defendant convicted
of a substantive labor trafficking offense will receive a base
offense level of 22. Compare U.S.S.G. § 2G1.1(a)(1), with
U.S.S.G. § 2H4.1(a)(1). This is unsurprising because sex
trafficking is an especially pernicious form of labor trafficking.
Yet a defendant convicted of a sex trafficking conspiracy in the
Ninth Circuit will receive a base offense level of just 14 while
a defendant convicted of a labor trafficking conspiracy will still
receive a base offense level of 22. Compare U.S.S.G.
§ 2G1.1(a)(2), with U.S.S.G. § 2H4.1(a)(1). For defendants
with a criminal history category of I, it would mean an advisory
imprisonment range of only 15 to 21 months for a sex
trafficking conspiracy but an advisory imprisonment range of
41 to 51 months for a labor trafficking conspiracy. And for
someone like Sims—whose criminal history was IV—it would
mean an advisory imprisonment range of only 27 to 33 months
instead of a range of 63 to 78 months.

       This incongruity is further revealed when one considers
facts common to cases involving violations of § 1594(c). This
case is a prime example. Sims contributed to the forced
prostitution, abuse, and drug addiction of numerous young
women. He was a “respect[ed]” member of a gang that “sexed”
women into its employ by forcing them to have sex with a
succession of gang members and accepts men into the gang
only after they endure a twenty-one-second beating from five
others. App. 69, 73. Given these facts, we are unpersuaded by
Sims’s reliance on Wei Lin and think it inconceivable that the
Sentencing Commission designed a system that would
recommend punishing forced labor conspiracies more than
twice as harshly as forced sex-labor conspiracies.




                                6
                               III

       Sims disagrees with the District Court’s finding that his
base offense level was 34 by reverting to the fact that he was
convicted of violating 18 U.S.C. § 1594(c). He argues that
applying a base offense level of 34 is contrary to the plain
language of § 2G1.1. This approach fails for several reasons.

       First, § 2G1.1 cannot be interpreted in isolation. When
that section is considered in context, it’s clear that applying
anything other than a base offense level of 34 would
contravene the Guidelines progression as a whole. Sims was
convicted of conspiring to commit the offenses in § 1591(a)
and (b)(1). So the base offense level in Guidelines
§ 2G1.1(a)(1) applies because that section specifically
references convictions under § 1591(b)(1). See U.S.S.G.
§ 2X1.1, cmt. n. 2 (“Under §2X1.1(a), the base offense level
will be the same as that for the substantive offense.”).
Section 2X1.1 does not—as Sims’s approach suggests—
instruct courts to apply the “Guidelines section” for the
substantive offense. Instead, it requires courts to apply the
“base offense level” for the substantive offense. U.S.S.G.
§ 2X1.1(a). The “base offense level” applicable to the
substantive offenses underlying Sims’s conviction is 34.
U.S.S.G. § 2G1.1(a)(1). So the base offense level for Sims’s
conspiracy conviction under § 1594(c) is likewise 34.

       Second, Sims argues that § 2G1.1(a)(1) is not the proper
Guidelines subsection because § 1591(b)(1) “was never
specifically indicated as the object of the conspiracy.” Sims Br.
10. The record states otherwise. Sims pleaded guilty to
conspiring with others “knowing and in reckless disregard of
the fact that force, threats of force, fraud, and coercion would
be used to cause [several victims] to engage in a commercial




                               7
sex act, in violation of 18 U.S.C. Section 1591(a) and (b)(1).”
Supp. App. 10–11.

         Third, Sims’s approach fails to recognize that
§ 1591(b)(1) is not a standalone offense; rather, it’s the
punishment for violating § 1591(a) “if the offense was effected
by means of force, threats of force, fraud, or coercion.” 18
U.S.C. § 1591(b)(1). As one district court astutely noted, “[i]f
the Court interpreted ‘offense of conviction’ [in Guidelines
§ 2G1.1] literally, a base offense level of 34 would never be
proper because the offense of conviction would always be 18
U.S.C. § 1591(a), not (b)(1).” United States v. Yanchun Li,
2013 WL 638601, at *2 (D. N. Mar. I. 2013) (citing United
States v. Todd, 627 F.3d 329, 334 (9th Cir. 2010) (“Section
(b) . . . does not create a new crime. It specifies the penalties
for each of the crimes set out in (a).”)).2

        Finally, the Guidelines definition also supports our
conclusion. “Offense of conviction” is defined as “the offense
conduct charged in the count of the indictment or information
of which the defendant was convicted.” U.S.S.G. § 1B1.2(a).
True, Wei Lin did not read § 1B1.2(a) as a “general
definition.” 841 F.3d at 826. But we presume that the
Sentencing Commission intended the phrase “offense of
conviction” to mean the same thing throughout the Guidelines.
See, e.g., Pereira v. Sessions, 138 S. Ct. 2105, 2115 (2018);

       2
          Even if Sims had pleaded guilty only to conspiring to
violate § 1591(a), § 2G1.1(a)(1) still would apply.
Subsections 1591(a) and (b)(1) are inextricably linked because
(b)(1) is the punishment for violations of (a)(1). So convictions
under § 1594(c) for conspiracy to violate § 1591(a) by means
of force, threats of force, fraud, or coercion always subject a
defendant to a base offense level of 34.




                               8
United States v. Gregory, 345 F.3d 225, 229 n.2 (3d Cir. 2003)
(applying the presumption of consistent usage when
interpreting the Sentencing Guidelines); see also United
States v. Murillo, 933 F.2d 195, 199 (3d Cir. 1991) (holding
that the phrases “the offense,” “offense of conviction,” and
“instant offense” in the Sentencing Guidelines encompass “all
conduct in furtherance of the offense of conviction”).

        The count of the Second Superseding Indictment to
which Sims pleaded guilty charged him with conspiring with
others to use “force, threats of force, fraud, and coercion” to
cause numerous young women “to engage in a commercial sex
act.” Supp. App. 10–11. And the relevant conduct in
§ 1591(b)(1) is sex trafficking through “means of force, threats
of force, fraud, or coercion[,] . . . or [] any combination of such
means.” Sims’s offense conduct is identical to that proscribed
conduct in § 1591(b)(1). So the appropriate base offense level
for his conspiracy conviction is 34.

                         *      *       *

        We agree with the District Court’s Guidelines
calculation. Conspiracy convictions under 18 U.S.C. § 1594(c)
require the sentencing court to determine the base offense level
for the substantive offense. Sims conspired to violate 18 U.S.C.
§ 1591(a) and (b)(1), so his base offense level was 34 under the
applicable Guideline (§ 2G1.1). We will affirm Sims’s
judgment of sentence.




                                9
