                                                          NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                 __________

                                 No. 09-1055
                                 __________

                       UNITED STATES OF AMERICA

                                      v.

                  DERICK PRICE, a/k/a Coleone, a/k/a Toone

                                       Derick Price, Appellant
                                 __________

                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
           (D.C. Criminal Nos. 1-05-cr-00443-004, 1-07-cr-00061-001)
                   District Judge: The Honorable Yvette Kane
                                   __________

                  Submitted Under Third Circuit LAR 34.1(a)
                               April 25, 2011

        BEFORE: BARRY, HARDIMAN, and NYGAARD, Circuit Judges.

                            (Filed: June 29, 2011)

                                 __________

                          OPINION OF THE COURT
                                __________

NYGAARD, Circuit Judge.
       Derick Price pleaded guilty to a conspiracy to transport individuals with intent to

engage in prostitution, coercing and enticing individuals to travel in interstate commerce

for prostitution, and interstate travel with intent to distribute proceeds of prostitution, in

violation of 18 U.S.C. §§ 371, 2421, 2422(a), and 1952(a). He also pleaded guilty to two

separate counts of transportation of a minor for purpose of engaging in prostitution, in

violation of 18 U.S.C. § 2421. The District Court sentenced Price to 228 months of

imprisonment, supervised release for life, a fine of $1,000 on each count, and an

assessment of $100 on each count. 1

       Quoting Price’s brief, he raises the following issues on appeal.

              I. Whether the District Court improperly applied the cross-
              reference and enhancements under U.S.S.G. § 2A3.1?

              II. Whether the District Court erred in applying any of the
              enhancements to the extent that they were based upon a
              finding of co-conspirator liability?

              III. Whether the District Court erred in applying the
              vulnerable victim enhancement?

              IV. Whether the District Court erred in applying the organizer
              or leadership enhancement?

              V. Whether Probation’s opinion as to the inapplicability of
              any 3553(a) factors was inappropriate legal advocacy and the
              District Court erred in adopting its findings when overruling
              Mr. Price’s objection?

              VI. Whether in its totality, the sentence imposed by the
              District Court was unreasonable?



1
 The District Court also sentenced Price to three years of supervised release on Count 1,
served concurrently.

                                               2
Brief of Appellant, p. 2. We will vacate the District Court’s judgment of sentence and

remand for resentencing because it erred by applying the leader/organizer enhancement.

We regard all other issues raised by Price to be meritless.

       The District Court established a base offense level according to the cross-reference

to U.S. Sentencing Guidelines Manual § 2A3.1 (2007). Price asserts that there was not

sufficient reliable evidence in the record to support the District Court’s use of the cross-

reference. He dismisses evidence that he physically abused individuals he prostituted.

Moreover, he treats as insignificant his guilty plea to conspiracy, which made all

reasonably foreseeable acts of co-conspirators in furtherance of the conspiracy. Price

maintains that none of the acts of his co-conspirators were foreseeable and cannot be

attributed to him. Yet, in addition to his general interaction with fellow “pimp partners”

in the conspiracy, the record indicates that a co-conspirator known for his brutality

trained Price to be a pimp. Moreover, the record established that the co-conspirators’

vast operation systematically forced the women and girls they victimized to continue

prostituting by creating an environment of fear and intimidation through a pervasive use

of coercion, manipulation and physical violence against them. Therefore, the District

Court reasonably concluded that the acts of the co-conspirators were foreseeable to Price,

and it did not err in deciding that Price’s acts and those of his co-conspirators were

sufficient to apply the cross-reference.

       He also makes a vague challenge to the District Court’s application of the four-

level special offense characteristic, pursuant to section 2A3.1(b)(1), on the basis that it is




                                              3
double counting. We disagree. The District Court properly applied the entire offense

guideline after the cross-reference, consistent with section 1B1.5.

       Regarding the vulnerable victim enhancements, Price and his co-conspirators

targeted numerous helpless victims, including a twelve year-old girl, and girls who were

homeless and/or from severely unstable families. These conditions were not incidental to

the victimization. The District Court found that, using this strategy, the conspiracy

prostituted over forty minors. This record supports the application of the enhancements

for vulnerable victims, pursuant to section 3A1.1(b)(1), and a large number of vulnerable

victims, pursuant to section 3A1.1(b)(2).

       Price also challenges the serious bodily injury enhancement under section

2A3.1(b)(4). The record indicates that the co-conspirators subjected the victims they

prostituted to pervasive physical violence, resulting in broken bones, deep lacerations,

and concussions. As a result, we do not find any merit in Price’s challenge to the District

Court’s application of this enhancement.

       We also easily dispose of Price’s claim that the probation office evinced a lack of

neutrality by stating in the Presentence Report that there did not appear to be any grounds

for a sentence outside of the Guidelines range. As Price concedes, the Rules state the

following:

              [(d)(1)] The presentence report must (A) identify all
              applicable guidelines and policy statements of the Sentencing
              Commission; . . . (D) identify any factor relevant to: (i) the
              appropriate kind of sentence, or (ii) the appropriate sentence
              within the applicable sentencing range. . . .[(d)(2)] (F) any
              other information that the court requires, including
              information relevant to the factors under 18 U.S.C. § 3553(a).


                                             4
Fed. R. Crim. P. 32(d). We find nothing in the Presentence Report that strays from these

requirements. Moreover, as a practical matter, the District Court’s sentence varied

downward from the Guidelines range, negating any claim of prejudice from the allegedly

biased report.

       Finally, we do conclude that the District Court improperly applied the

leader/organizer enhancement in calculating Price’s sentence. As we have previously

stated: “We note that, at a minimum, a criminal scheme must involve more than one

participant in order to be found otherwise extensive; there can be no less than the

defendant and one participant the defendant led or organized.” United States v. Helbling,

209 F.3d 226, 248 (3d Cir. 2000) (citing section § 3B1.1, Application Note 2). 2 At his

sentencing hearing, the District Judge said:

                 I find that although the defendant was not a leader among his
                 peers, he was a leader and organizer of nonparticipants and
                 that, as I have said, there were a large number of
                 nonparticipants, such that the application of the note for
                 otherwise extensive would apply to this defendant.




2
  Application Note 2 states: “To qualify for an adjustment under this section, the
defendant must have been the organizer, leader, manager, or supervisor of one or more
other participants. An upward departure may be warranted, however, in the case of a
defendant who did not organize, lead, manage, or supervise another participant, but who
nevertheless exercised management responsibility over the property, assets, or activities
of a criminal organization.” We note that while the first sentence refers to “adjustments”
to a Guidelines sentence, the second sentence of the Note, which eliminates the
requirement for evidence of leadership over another participant, appears to refer to
instances in which the government files a motion for an upward departure from the
Guidelines. No such motion was filed in the instant case.

                                               5
Sentencing Hearing 50, ECF No. 1794. With this clear statement that Price did not lead

any peers, and that he led or organized only nonparticipants, the District Court erred by

applying section 3B1.1(a) to enhance Price’s sentence. 3

       Accordingly, for the reasons stated above, we will vacate the judgment of sentence

of the District Court and remand for resentencing.




3
  Because our conclusion will require the District Court to resentence Price, we do not
reach the remaining issue on appeal regarding the unreasonableness of his sentence.

                                             6
