                                                                                           FILED
                                                                                       Mar 14, 2013
                                                                                DEBORAH S. HUNT, Clerk
                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 13a0262n.06

                                           No. 12-5108

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
         Plaintiff-Appellee                        )
                                                   )
v.                                                 )     ON APPEAL FROM THE UNITED
                                                   )     STATES DISTRICT COURT FOR THE
CHARLES KIZER,                                     )     WESTERN DISTRICT OF TENNESSEE
                                                   )
         Defendant-Appellant.                      )
                                                   )
                                                   )



BEFORE:         MERRITT, CLAY, and GRIFFIN, Circuit Judges.

         MERRITT, Circuit Judge. This criminal case challenges a defendant’s sentence under the

theories of due process, double counting, and substantive unreasonableness. For the reasons set forth

below, we reject those arguments and AFFIRM the district court’s sentence of 120 months.

                                              I. Facts

         In August 2010, Charles Kizer enticed an 18-year-old crack addict identified as A.W. into

a world of prostitution with promises to feed her drug habit. She prostituted herself in Knoxville,

Memphis, and West Memphis, Arkansas, and gave Kizer all of the proceeds. He, in turn, gave her

crack.
No. 12-5108
United States v. Kizer

       At sentencing, an FBI agent testified that Kizer kept A.W. in his control through fear and

intimidation. He kept an axe under the seat of his truck and threatened to decapitate her. He locked

her in his Memphis home, and when she tried to run away, she faced physical violence.

       On September 1, 2010, Kizer dropped A.W. off at a gas station. A.W. seized the few minutes

alone and immediately called 911. She told police Kizer had forgotten his gun and went to go get

it. When he returned to the area, Memphis police arrested Kizer. Recorded telephone calls reveal

that Kizer called another prostitute from jail three times and asked her to make sure A.W. stayed

away from court so his case might be dismissed.

       Kizer was charged with two counts of sex trafficking by force, fraud, and coercion in

violation of 18 U.S.C. § 1591(a), three counts of interstate transportation for the purpose of

prostitution in violation of the Mann Act, 18 U.S.C. § 2421, and one forfeiture count. On August

31, 2011, Kizer pleaded guilty to one of the Mann Act counts in exchange for dismissal of the

remaining counts.

                                    A. Guidelines Calculation

       At sentencing, the district court turned to the applicable guidelines calculation. First, the

court looked to Section 2G1.1, the section titled “Promoting a Commercial Sex Act or Prohibited

Sexual Conduct with an Individual Other than a Minor.” Under this section, Kizer had a base

offense level of 14. However, the district court found that the cross reference in section (c) applied

because the offense involved criminal sexual abuse. The district court found that “A.W. did not

spend all of this time with Mr. Kizer willingly, that she was subject to physical intimidation and

threats of bodily harm from Mr. Kizer . . . and that she was in an atmosphere of violence and

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United States v. Kizer

intimidation that caused her to remain where she was against her will.” Sent. Tr. at 67-69. The

district court made this finding by a preponderance of the evidence.

       The cross reference instructs the sentencing judge to then apply Section 2A3.1. Thus, instead

of a base offense level of 14, Kizer now faced a base offense level of 30. Under Section 2A3.1(b)(1),

the district court should apply a 4-level enhancement if the offense involved aggravated sexual

abuse. The district court found that Kizer committed aggravated sexual abuse due to the force and

threats against A.W. The judge stated, “I don’t have any trouble concluding what he caused her to

do which was to engage in sexual acts with others and that he used force to do so in various ways

over a long period of time and that he put her in fear that she be subject to death or serious bodily

injury.” Sent. Tr. at 79. After additional adjustments for acceptance of responsibility, abduction,

obstruction of justice, and vulnerable victim, the district court determined that the adjusted offense

level was 40, with a criminal history category of IV. Id. Accordingly, Kizer faced 360 months to

life in prison with a statutory maximum of 120 months.

                                       B. § 3553(a) Factors

       The district court spoke of the “very, very serious” nature of the crime and stated that the

facts were convincing that “A.W. was kept within an atmosphere of violence and she was afraid to

leave.” Sent. Tr. at 115. The court then detailed Kizer’s previous criminal history and noted that

he had a “long history of violence against women.” Id. at 117. The judge stated, “There’s a strong

need for deterrence in this case, general deterrence, to discourage people from abusing young women

and recruiting them into prostitution and holding them against their will and threatening them.

There’s a strong need to protect the public.” Id. at 119-20. Although the court found that “a higher

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United States v. Kizer

sentence would probably be appropriate based on these facts,” the court sentenced Kizer to the

prescribed statutory maximum of 120 months in custody, followed by three years of supervised

release. Id. at 121.

        Kizer timely appealed his sentence, alleging that the district court’s findings using a

preponderance-of-the-evidence standard violated due process; that the application of the cross

reference and the enhancement constituted impermissible double counting; and that the sentence is

substantively unreasonable.

                                             II. Analysis

                                           A. Due Process

        Kizer first asserts that the district court erred in using the preponderance-of-the-evidence

standard to find facts that significantly enhanced his guidelines range. This Court has consistently

held that the preponderance standard is appropriate when applied to sentencing factors, and thus, the

district court did not err in applying this standard. See, e.g., United States v. Lobbins, 297 F. App’x.

473 (6th Cir. 2008); United States v. Brika, 487 F.3d 450 (6th Cir. 2007).

        Kizer argues that McMillan v. Pennsylvania, 477 U.S. 79 (1986), controls this case and

stands for the proposition that a higher standard of proof, i.e., a clear and convincing standard,

should be applied in cases where sentencing factors cause a dramatic increase in a guidelines range.

McMillan, however, examined a state sentencing scheme and held that the application of a

preponderance standard to sentencing factors, rather than elements of an offense, was constitutional.

Id. at 91. McMillan did imply that sometimes a higher standard may be warranted, but only in such



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United States v. Kizer

rare cases where the sentencing enhancement in question is “a tail which wags the dog of the

substantive offense.” Id. at 88.

       This is not such a case. The cross reference for sexual abuse and enhancement for aggravated

sexual abuse directly reflect the conduct of the underlying offense. McMillan does not require a

higher standard of proof simply because that conduct renders a higher guidelines range.

       United States v. Brika, 487 F.3d 450 (6th Cir. 2007), confronts this issue. There, the

defendant claimed a due process violation because the district court drastically increased his

guidelines range based on conduct presented to but not found by the jury. Brika rejected the use of

a higher standard of proof simply because the enhancement would significantly increase the

defendant’s sentence. Id. at 461 (citing United States v. Graham, 275 F.3d 490, 517 (6th Cir. 2001)).

The Brika opinion characterized its holding as one that reaffirmed our prior cases and

“reformulate[d] them in Booker terms.” Id. We explained that post-Booker, the only constraint on

a sentencing judge is the statutory maximum and minimum and the sentencing statutes. Id. Thus,

we held that defendant Brika was only entitled to a “reasonable sentence within the statutory range”

and that the due process argument “misses the mark.” Id. Brika further held that “while we reaffirm

our earlier holding that due process does not require sentencing courts to employ a standard higher

than preponderance-of-the-evidence, even in cases dealing with large enhancements, we also hold

such challenges should be viewed through the lens of Booker reasonableness rather than that of due

process.” Id. at 462 (internal citations omitted).

       Following Brika, Kizer was entitled to a reasonable sentence within the statutory range. As

we explain in Part II.C., he received one. Unfortunately for Kizer, his abusive conduct in trafficking

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United States v. Kizer

A.W. across state lines triggered the cross reference and the enhancement, but the resulting increase

in the base offense level did not violate his due process rights and did not render his sentence

unreasonable. The district court appropriately used the preponderance-of-the-evidence standard.

The consequential dramatic increase in the base offense level is simply a result of Kizer’s conduct,

rather than the unconstitutional application of a sentencing factor that became “the tail that wagged

the dog of the actual offense.”1 See McMillan, 477 U.S. at 88.

                                       B. Double Counting

       Kizer argues that the district court’s application of the cross reference under Section 2G1.1

and the four-level enhancement under Section 2A3.1 constitutes impermissible double counting.

The cross reference applies if the court finds conduct described in 18 U.S.C. 2241(a) or (b) or 18

U.S.C. § 2242, the sexual abuse or aggravated sexual abuse statutes. The four-level enhancement

under Section 2A3.1(b)(1) applies if the court finds conduct described in 18 U.S.C. § 2241(a) or (b),

the aggravated sexual abuse statute.




       1
         Furthermore, contrary to Kizer’s assertion, this result and the holding in Brika is not
abrogated in any way by United States v. O’Brien, __ U.S. __, 130 S. Ct. 2169 (2010). O’Brien
confronted the narrow issue of the appropriate standard of proof in determining an element of an
offense for specific statutory provisions contained in § 924, the section that dictates a machine gun
enhancement. See Deatrick v. Sherry, 451 F. App’x 562, 565-66 (6th Cir. 2011). In United States
v. Henry, 455 F. App’x. 655, 658 (6th Cir. 2012), a case involving both enhancements and cross
references, we rejected the argument that O’Brien now demands a higher standard of proof, writing,
“The case did not address the cross-reference issue and did not involve any of the pertinent issues
addressed in Brika . . . there is no reason to overturn this court’s precedent in Brika.”

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        When reviewing the district court’s application of the Sentencing Guidelines, we review the

district court’s factual findings for clear error and mixed questions of law and fact de novo. United

States v. Tolbert, 668 F.3d 798, 800 (6th Cir. 2012).

        Impermissible double counting occurs when precisely the same aspect of a defendant’s

conduct factors into his sentence in two separate ways. United States v. Farrow, 198 F.3d 179, 193

(6th Cir. 1999). But no double counting occurs if the defendant is punished for distinct aspects of

his conduct. United States v. Moon, 513 F.3d 527, 542 (6th Cir. 2008). Double counting is allowed

“where it appears that Congress or the Sentencing Commission intended to attach multiple penalties

to the same conduct.” Farrow, 193 F.3d at 194. Further, “no double counting occurs where,

although the conduct underlying two enhancements is the same, a single guideline provision requires

the district court to increase the defendant’s sentence based on different aspects of the defendant’s

conduct.” United States v. Perkins, 89 F.3d 303, 310 (6th Cir. 1996). Impermissible double

counting renders a sentence procedurally unreasonable. United States v. Battaglia, 642 F.3d 348,

351 (6th Cir. 2010).

        In United States v. Morris, 2012 WL 3519006 (6th Cir. Aug. 16, 2012), we considered the

same enhancement at issue in this case. Morris considered whether a defendant, found guilty by a

jury of aggravated sexual abuse, could also face a four-level enhancement for conduct described in

18 U.S.C. § 2241(a), the “by force or threat” section of the aggravated sexual abuse statute. Id. at

* 15. Morris found that there was no double counting, stating, “It was the sexual abuse that resulted

in a level of thirty and only the aggravated nature of that offense resulted in the four level increase.”

Id.

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United States v. Kizer

        This case is not only squarely on point with Morris, but presents an even stronger case for

applying both the cross-reference and the enhancement. In Morris both were applied because one

factor differed from the other in degree; in other words, different aspects of the conduct led to the

use of both enhancements. In this case one could characterize the issue as entirely different conduct,

because there was both force, and the threat of harm. (See R. 83, Sentencing Transcript, May 29,

2012, at 87-92.) Accordingly, if Morris allows a district court to apply both simply on the basis that

there are different aspects to the conduct, then on these facts there is an a fortiori argument for

applying both the cross-reference and the enhancement.

        Our sister circuits have considered this very issue and have also concluded that double

counting is not present in these cases. For example, in United States v. Scott, 434 F. App’x 103, 106

(3d Cir. 2011), the district court applied the cross reference in Section 2G1.1 because the defendant

lured women into prostitution and created “an environment of fear and dependence through the use

of threats of violence, actual violence, and various forms of manipulation against them.” The district

court then applied the four-level special offense characteristic enhancement for aggravated sexual

abuse under Section 2A3.1(b)(1). Id. The Third Circuit found this calculation to be appropriate

because it was consistent with Section 1B1.5. Id. at 107. In addition, the Ninth Circuit reached the

same result regarding the same cross reference and four-level enhancement in United States v.

Archdale, 229 F.3d 861, 869 (9th Cir. 2000), concluding, “Had the Sentencing Commission wanted

to preclude double counting under the circumstances presented here, it could have done so. It did

not.”



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No. 12-5108
United States v. Kizer

        Here, the Guidelines instruct that the cross reference should apply if the offense involved

conduct contained in 18 U.S.C. § 2241(a) or (b) or 18 U.S.C. § 2242. Under 18 U.S.C. § 2242, a

person commits sexual abuse by knowingly “caus[ing] another person to engage in a sexual act by

threatening or placing that other person in fear.” The district court specifically found that Kizer held

A.W. against her will, forced her to engage in prostitution, and physically intimidated and threatened

her. Thus, the cross reference was appropriately applied.

        The district court, after applying the cross reference and finding the new base offense level

to be 30, then applied the specific offense characteristic enhancement based on the aggravated nature

of the sexual abuse, specifically the force and threats. In doing so, Kizer was not punished for

precisely the same aspect of his conduct, but rather for the sexual abuse and then for the aggravated

nature of the sexual abuse. Just as the Ninth Circuit concluded in Archdale, the Sentencing

Commission must have intended to punish defendants in this way using both the cross reference and

the enhancement, and we do not find that these punishments for distinct aspects of conduct constitute

impermissible double counting.

                                C. Substantive Unreasonableness

        Kizer claims that his sentence of 120 months is substantively unreasonable. He specifically

asserts that the sentence is too long because A.W. was already a crack user when she met Kizer and

that Kizer suffered from a difficult upbringing and bouts of depression and psychosis.

        This Court reviews the substantive reasonableness of a sentence for an abuse of discretion.

United States v. Richards, 659 F.3d 527, 549 (6th Cir. 2011). District courts have wide discretion

in fashioning sentences. See, e.g., United States v. Guthrie, 557 F.3d 243, 256 (6th Cir. 2009)

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(“District courts enjoy discretion in sentencing based on their ring-side perspective on the sentencing

hearing and experience over time in sentencing other individuals. Accordingly, we do not presume

to read the mind of a sentencing judge, on a search for impropriety.”). A sentence may be

substantively unreasonable if the district court “selects the sentence arbitrarily, bases the sentence

on impermissible factors, fails to consider pertinent § 3553(a) factors, or gives an unreasonable

amount of weight to any pertinent factor.” United States v. Vowell, 516 F.3d 503, 510 (6th Cir.

2008).

         The district court addressed all of the defense’s mitigation arguments in great detail,

including Kizer’s history of mental illness and difficult upbringing. The court also carefully recited

its reasons for imposing the statutory maximum, including the deterrence aspect of the sentence, as

well as the need to protect the public. In fact, the district court even suggested that a harsher

sentence may be warranted considering the egregious nature of the conduct. Still, the district court

imposed a sentence within the guidelines range—the statutory maximum—and did not abuse its

discretion in doing so.

                                          III. Conclusion

         When the district court sentenced Charles Kizer, it took into account the nature of his

underlying offense and found by a preponderance of the evidence that Kizer engaged in sexual abuse

and aggravated sexual abuse of A.W. by forcing her into prostitution and keeping her under his

control through intimidation, abuse, and threats. The district court correctly applied the sentencing

enhancements and considered the § 3553(a) factors closely to fashion an appropriate sentence in this

case. Accordingly, the judgment of the district court is AFFIRMED.

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