                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4755


UNITED STATES OF AMERICA,

                Plaintiff − Appellee,

           v.

KEVIN GARCIA FUERTES, a/k/a Kerlin Esquivel−Fuentes, a/k/a
Flaco,

                Defendant − Appellant.



                            No. 13-4931


UNITED STATES OF AMERICA,

                Plaintiff − Appellee,

           v.

GERMAN DE JESUS VENTURA, a/k/a Chino, a/k/a Chalo, a/k/a
Pancho, a/k/a Chaco, a/k/a Oscar,

                Defendant − Appellant.



Appeals from the United States District Court for the District
of Maryland, at Baltimore.   William D. Quarles, Jr., District
Judge. (1:10−cr−00770−WDQ−2; 1:10−cr−00770−WDQ−1)


Argued:   May 13, 2015                    Decided:   August 18, 2015
Before KING and   KEENAN,   Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


No. 13-4755 affirmed; No. 13-4931 affirmed in part and vacated
and remanded in part by published opinion.    Senior Judge Davis
wrote the opinion, in which Judge King and Judge Keenan joined.


ARGUED: Nicholas J. Vitek, VITEK LAW LLC, Baltimore, Maryland;
Michael Daniel Montemarano, MICHAEL D. MONTEMARANO, P.A.,
Columbia, Maryland, for Appellants. Sujit Raman, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.    ON
BRIEF: Rod J. Rosenstein, United States Attorney, P. Michael
Cunningham, Rachel M. Yasser, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.




                                2
DAVIS, Senior Circuit Judge:

      These appeals arise from the prosecution of two members of

an enterprise engaged in interstate prostitution.                             Following a

two-week trial, a jury convicted Appellants Kevin Garcia Fuertes

(“Fuertes”)         and     German    de     Jesus        Ventura        (“Ventura”)      of

conspiracy      to     commit,      and    commission       of,     a    number     of   sex

trafficking         and   related     offenses.           On   appeal,       Fuertes     and

Ventura make four assertions of error, two individually and two

jointly, regarding evidentiary rulings, jury instructions, and

the sufficiency of the evidence.                 For the reasons stated below,

we affirm the Fuertes judgment in No. 13-4755.                               In Ventura’s

appeal, No. 13-4931, applying plain error review, we conclude

that the conviction under 18 U.S.C. § 924(c) for possession and

use   of   a    firearm      in   relation       to   a    crime        of   violence    was

erroneous because, we hold, sex trafficking by force, fraud, or

coercion,      in     violation      of     18    U.S.C.       §    1591(a),        is   not

categorically a crime of violence.                    Accordingly, we vacate the

conviction on Count Seven and remand for entry of judgment of

acquittal      on    that   count    but    we   otherwise         affirm     the   Ventura

judgment.

                                            I.

                                            A.

      The trial evidence was amply sufficient to permit the jury

to find the following facts.

                                             3
       By    early    2008,     Ventura    was    operating         brothels    in   the

Hispanic      community       in   Annapolis,     Maryland.           Fuertes    helped

Ventura run the brothels, as well as advertise the prostitution

business.      To maintain control over the sex trade, Fuertes and

Ventura     threatened       perceived     competitors       with    violence.       For

example, in March 2008, Ventura told Alberto Hernandez Campos

(“Campos”) about trouble he was having with another Annapolis-

area       pimp,     Ricardo       Humberto      “el    Pelon”        Rivas     Ramirez

(“Ramirez”).         Then, to emphasize the seriousness of the matter,

Fuertes showed Campos a handgun. 1

       Following this encounter, on September 13, 2008, Ramirez

was murdered.         Investigators learned that Ramirez had received

threatening phone calls from two different phone numbers (one

phone number ending in 5015, the other in 1397) some time prior

to his murder.        Police sought subscriber information for the two

phone      numbers,    and    entered     them   into   a    database     for    future

investigative purposes.

       On September 24, 2008, Fuertes was arrested following an

unrelated      traffic        violation.         When       he   provided       booking

information, Fuertes gave a phone number that matched the 5015


       1
       Ventura’s operation also adversely affected individuals
who happened simply to live in close proximity to the brothels.
One family began receiving threatening phone calls and had their
home and car vandalized after offering assistance to one of
Ventura’s prostitutes.


                                           4
number from which Ramirez had received threatening phone calls.

Fuertes was arrested again the next day, this time on an open

warrant.        At    the    time     of    this       arrest,      Fuertes    had     in   his

possession a cellular phone with the 5015 number, as well as

business cards advertising prostitution services.

       After    his     September      25        arrest,      Fuertes      consented      to   a

search of his home in Annapolis, where officers found evidence

that the residence was being used as a brothel.                               In the living

room, investigators found a cellular phone, which an occupant of

the    house    permitted       them        to       examine.        The     contacts       list

contained      the    1397     number       from          which    Ramirez    had    received

threatening calls.           Police also located a physical address book,

which listed two phone numbers for “Pancho”: the 1397 number, as

well   as   another      number       ending         in    0903.      After    obtaining       a

warrant,       police       learned        that      Ventura       was     listed    as     the

subscriber for the phone number ending in 0903.                                Witnesses in

the    investigation          eventually             identified          Ventura     by      the

aliases/nicknames of “Pancho” and “Chino,” among others.

       Suspecting that Ventura and Fuertes were responsible for

Ramirez’s      murder,       investigators            continued       to     monitor      their

activities.          Agents learned that Ventura operated brothels at

several locations in Annapolis, as well as in Easton, Maryland

and Portsmouth, Virginia.                  Ventura arranged for prostitutes to

work in the brothels from Monday through Sunday.                             Typically, the

                                                 5
women communicated with Ventura by phone, then traveled by bus

to   Washington,   D.C.,       where    they   met   Ventura,    or   one    of   his

employees, and drove to the brothel where they worked for the

week.     The   prostitutes        provided    fifteen      minutes   of    sex   for

thirty dollars, and were paid half of the gross receipts, less

expenses for food, hygiene products, and other expenses of the

trade.    One woman, Margarita Santiago Laona, testified that she

spoke with Ventura by telephone while she was in New Jersey, and

then traveled by bus to Washington, D.C., where he met her and

took her to a nearby brothel.

       Rebeca Duenas Franco (“Duenas”), another woman employed by

Ventura, had a particularly violent history with him.                        On the

one hand, he helped extricate her from the control of another

pimp.     He    also    had    a   relationship      with    Duenas—indeed,       she

believes he is the father of her son—and provided her with a

place to live.         On the other hand, Ventura compelled Duenas to

engage in prostitution by violence and threats of violence, and

held    her   against    her    will.     Ventura     reintroduced     Duenas      to

prostitution by giving her a box of condoms, telling her to “go

to work,” and beating her “several times” when she resisted.

J.A. 1186.      On one occasion, when Duenas refused to have sex

with an African-American client, Ventura beat her with a belt.

On another occasion, when Duenas refused to perform a sex act



                                          6
with        an   object,        Ventura       pushed   her    down       onto      rocky    ground. 2

Ventura also discharged a gun in her presence.                                      Unlike other

women working for Ventura, Duenas did not receive any money from

her services as a prostitute.

        At        trial,        Duenas        testified      that        Ventura         threatened

competitor          pimps,       including       Ramirez,         and    that      she     witnessed

Ventura and Fuertes celebrating Ramirez’s murder.                                       Duenas also

recounted an incident when Ventura assaulted a male employee who

threatened          to     go    to     the    police.        During       another         incident,

Ventura beat a prostitute who he believed had sent people to rob

one of his brothels.                    According to Duenas, Fuertes was present

when        Ventura      beat     the     prostitute,        as    well       as   at    least     one

occasion when Ventura beat her. 3

       On        March   25,     2009,        police   again      arrested         Fuertes    at    an

apartment in Annapolis, and found evidence that the residence

was being used as a brothel.                      During a protective sweep, police

found        Duenas      and     another       woman   hiding       in    a     bedroom      closet.


        2
       During the trial, Dr. Mary-Theresa Baker, a physician of
twenty-five years and then-director of the Baltimore Child Abuse
Center, testified about her forensic medical examination of
Duenas. Dr. Baker testified that Duenas’ explanations as to how
she received certain injuries were generally consistent with her
own observations during the examination.

        3
       On direct examination, Duenas indicated that Fuertes was
at the house when Ventura beat her with a belt.         But, on
redirect, she clarified that Fuertes had in fact witnessed the
beating.


                                                   7
Meanwhile, a search of Fuertes revealed $696 in cash, a wallet

with miscellaneous papers, including a piece of paper listing

the 0903 phone number associated with Ventura, and a cellphone.

Following his 2009 arrest, Fuertes relocated to Virginia because

he   had    been     entered     into    deportation      proceedings            by     the

Department of Homeland Security.

     On September 24, 2009, police arrested Ventura in Annapolis

on an open warrant from the District of Columbia.                     A search of

Ventura revealed $859 in cash and documents detailing how many

customers     each    prostitute        had   serviced    in    the   past            week.

Ventura    also     had    his   Maryland     driver’s    license,       a       Mexican

license that featured his picture but a different name, and two

cell phones.         Despite having two cell phones on his person,

Ventura told the police that he did not have a phone number.                             He

claimed that he had found one cell phone at the mall, and that

he was borrowing the other from a taxicab driver whose name he

did not know.        A later search revealed that one of the phones

had the 0903 number.

     Months       later,    on   February      17,    2010,    Annapolis          police

responded to a 911 call for a possible robbery.                    The call came

from a phone number which, police eventually learned, was the

number Ventura used after his 2009 arrest.                    The police located

the site of the robbery, which turned out to be another brothel

operated    by     Ventura.      Maximilliano        Zelaya    Repalo,       a    former

                                          8
employee of Ventura, testified at trial that he committed the

robbery      because       he   had   not     been      paid     for    his       work   at   the

brothel.

       In May 2010, police discovered that Ventura was operating

another brothel in Easton.                   On July 7, 2010, they executed a

search warrant at the brothel and arrested two individuals who

were        working        there.            Law       enforcement           continued         its

investigation, and on August 2, 2010, learned that Ventura was

transporting          a    prostitute        from      Maryland        to     a     brothel    in

Portsmouth.

       Back    in     Annapolis,        on       November       3,     2010,       several     men

believed to be operating at Ventura’s behest seriously assaulted

competitor-pimp            Hector      Fabian          Avila.           Law        enforcement,

therefore, decided to bring its investigation to a close, and on

November 15, 2010, arrested Ventura in his home.                                   Fuertes was

also charged but was not arrested at that time.

                                                 B.

       On    November       29,     2011,    a     federal      grand       jury    returned     a

superseding         indictment,        charging         Fuertes        and        Ventura     with

conspiracy to transport an individual in interstate commerce for

the purpose of prostitution, in violation of 18 U.S.C. § 371

(Count       One);        transportation          of    individuals           in     interstate

commerce for the purpose of prostitution, in violation of 18

U.S.C. § 2421 (Count Two); and sex trafficking by force, fraud,

                                                 9
or coercion, in violation of 18 U.S.C. § 1591(a) (Count Six).

Ventura was also separately charged with coercing or enticing an

individual to travel in interstate commerce for the purpose of

prostitution, in violation of 18 U.S.C. § 2422(a) (Count Three);

transportation        of   individuals       in   interstate        commerce     for    the

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

(Counts Four and Five); and possession and use of a firearm in

relation   to    a     crime    of    violence—namely,            sex   trafficking     by

force, fraud, or coercion—in violation of 18 U.S.C. § 924(c)

(Count Seven).

      After     the    district      court    denied     most      of   their    pretrial

motions, Fuertes and Ventura proceeded to trial.                        The jury found

Ventura guilty of all counts and Fuertes guilty of Count One and

that part of Count Six based on events occurring subsequent to

December 24, 2008.            It found Fuertes not guilty of Count Two.

The   district        court    denied      Fuertes     and    Ventura’s     post-trial

motions for judgment of acquittal or a new trial, and sentenced

Ventura to 420 months’ imprisonment and Fuertes to 235 months’

imprisonment.         These timely appeals followed.

                                            II.

                                             A.

      Fuertes and Ventura contend that the district court erred

in admitting evidence of violent acts and threats of violence

against competitor pimps because: (1) such evidence was offered

                                             10
for no purpose other than to establish their bad character; (2)

the evidence was not relevant, as it did not make it more likely

that they actually committed the sex trafficking offenses for

which   they   were     charged;        and    (3)    even    if     the    evidence    was

relevant, its probative value was far outweighed by the danger

of unfair prejudice.          We disagree.

     Rule 404(b) of the Federal Rules of Evidence “prohibits

evidence of ‘other crimes, wrongs, or acts’ solely to prove a

defendant’s bad character, but ‘[s]uch evidence . . . may be

admissible     for     other      purposes,          such    as     proof    of    motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.’”                    United States v. Byers, 649

F.3d 197, 206 (4th Cir. 2011) (quoting United States v. Basham,

561 F.3d 302, 326 (4th Cir. 2009)).                     The rule is “inclusive,”

“admitting     all    evidence     of    other       crimes    or    acts    except    that

which tends to prove only criminal disposition.”                            United States

v.   Young,    248     F.3d    260,     271–72        (4th    Cir.    2001)       (internal

quotation marks omitted).               To be admissible under Rule 404(b),

the proffered “bad acts” evidence must be “relevant to an issue

other than character,” “necessary to prove an element of the

crime charged,” “reliable,” and its “probative value must not be

substantially        outweighed    by    its       prejudicial       nature.”        United

States v. Rooks, 596 F.3d 204, 211 (4th Cir. 2010) (quoting

United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997)).                             The

                                              11
district court’s decision to admit the evidence is reviewed for

abuse of discretion.             United States v. Forrest, 429 F.3d 73, 79

(4th Cir. 2005).

       Applying the above standard, the district court did not

abuse its discretion in admitting evidence of violent acts and

threats of violence against competitor pimps.                        The evidence was

relevant     to     Fuertes          and   Ventura’s        familiarity          with      the

prostitution business, as well as their intent to participate in

that business.        In other words, Fuertes and Ventura’s attempts

to     intimidate     or        eliminate      others       involved       in        the   sex

trafficking       business           constituted      evidence        of        their      own

participation in that very business, and that they knowingly

conspired with each other to do so.                      Likewise, evidence that

Ventura    intimidated          a    family    that   had     attempted         to    help   a

prostitute    tended        to      establish      Ventura’s       connection         to   the

prostitute, the brothel at which she worked, the prostitution

business generally, and the underlying conspiracy out of which

the business thrived.

       Central to Appellants’ assertion of error is their argument

that     evidence     of         their     violent      acts       and     threats         was

“unnecessary” to prove any element of the Count One conspiracy

charge.      This    argument         is   misplaced.         As    explained         by   the

district     court,        to       find   Fuertes      and    Ventura          guilty       of

conspiracy, the jury had to find at least one overt act was

                                              12
committed in furtherance of the charged conspiracy.                   And among

the   overt   acts    charged       in    the   superseding   indictment    were

violent acts and threats of violence against competitors.                       In

particular, Count One alleged that, as part of the conspiracy,

Fuertes and Ventura “threatened to use and used violence against

those also engaged in prostitution activities within Maryland.”

J.A. 38–39.     Count One further alleged that, as part of the

conspiracy, Ventura “claimed responsibility for the murder of

multiple   competitor       pimps    in    order   to   intimidate    competitor

pimps and his own employees and female prostitutes.”                 J.A. 39.

      Finally, although the above-described evidence of violent

acts and threats may have been highly incriminating, Fuertes and

Ventura proffer no convincing reason why it was unreliable (and

thus lacking in probative force) or unfair.                   In light of the

substantial evidence that Fuertes and Ventura forced Duenas—a

young woman illegally present in the country with no English

skills and a third-grade education—into prostitution, there was

no “genuine risk” that the jury would be excited to “irrational

behavior” over threats of violence and acts of violence against

less sympathetic competitor pimps.               United States v. Hodge, 354

F.3d 305, 312 (4th Cir. 2004).             The evidence of threats and acts

of violence was no more “sensational or disturbing” than the sex

trafficking crimes with which Fuertes and Ventura were charged.

See Byers,    649    F.3d   at   210      (“Generally   speaking,    ‘bad   acts’

                                          13
evidence, admissible under Rule 404, is not barred by Rule 403

where    such    evidence   ‘did     not    involve       conduct    any    more

sensational     or   disturbing    than    the   crimes    with     which   [the

defendant] was charged.’” (quoting United States v. Boyd, 53

F.3d 631, 637 (4th Cir. 1995)).             Thus, in sum, the district

court’s decision to admit the evidence of violence and threats

of   violence    against    competitor      pimps   was     neither    legally

erroneous nor an abuse of discretion. 4


     4 In finding no reversible error in the district court’s
admission of the evidence, we need not delve into the
intrinsic/extrinsic inquiry advocated by the government at oral
argument. The government asserted during argument that, because
violent acts and threats of violence were charged as overt acts
in the superseding indictment, they were “intrinsic” to the
Count One conspiracy charge and for that reason alone were
admissible.    When questioned about what, if any, judicially
enforceable limitation existed on the government’s ability to
include overt acts in a proposed indictment, the government
pointed to the Grand Jury Clause of the Constitution’s Fifth
Amendment, while defense counsel pointed to the Due Process
Clause of that same amendment.   As an overt act in furtherance
of a conspiracy under 18 U.S.C. § 371 need not be alleged in an
indictment, see United States v. Janati, 374 F.3d 263, 270 (4th
Cir. 2004), it would be a strange rule of law that authorized a
district court to exclude such evidence upon objection at trial
only if it were not included in an indictment and thereby
“approved” by the grand jury.
     At all events, the intrinsic/extrinsic inquiry has ventured
far from where it began. See Milton Hirsch, “This New-Born Babe
an Infant Hercules”: The Doctrine of “Inextricably Intertwined”
Evidence in Florida’s Drug Wars, 25 Nova L. Rev. 279, 280 (2000)
(“[U]ntil about the year 1980, no one thought that evidence of
uncharged crimes could be rendered admissible by the simple
expedient of describing it as ‘inextricably intertwined’ with
evidence of the crime or crimes actually pleaded in the
indictment.”).   As pointed out by the D.C. Circuit, “it cannot
be that all evidence tending to prove the crime is part of the
(Continued)
                                     14
                                   B.

     Fuertes and Ventura argue that the district court erred in

permitting Dr. Baker to testify because: (1) her training and

experience were almost entirely with juveniles; and (2) she did

not provide an expert opinion but instead simply attempted to

bolster   Duenas’    credibility   concerning   the   source   of   the

latter’s injuries.    They are incorrect.

     Rule 702 of the Federal Rules of Evidence provides that

“[a] witness who is qualified as an expert by knowledge, skill,




crime.    If that were so, Rule 404(b) would be a nullity.”
United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000).
Yet, by characterizing evidence as “intrinsic,” federal courts,
including this one, have allowed prosecutors to introduce
evidence of uncharged bad acts free from Rule 404(b)’s
protections, including limiting jury instructions and advanced
notice of the government’s intent to introduce the evidence.
Fortunately, some courts have begun to recognize the harm caused
by granting federal prosecutors such unmitigated leeway.     See
United States v. Gorman, 613 F.3d 711, 719 (7th Cir. 2010)
(abandoning the “inextricable intertwinement doctrine” because
it “has outlived its usefulness” and “become overused, vague,
and quite unhelpful”); United States v. Green, 617 F.3d 233, 248
(3d Cir. 2010) (“[T]he inextricably intertwined test is vague,
overbroad, and prone to abuse, and we cannot ignore the danger
it poses to the vitality of Rule 404(b).”); Bowie, 232 F.3d at
927    (“[I]t    is   hard    to    see  what     function  this
[intrinsic/extrinsic] interpretation of Rule 404(b) performs.”);
see also United States v. Irving, 665 F.3d 1184, 1215 (10th Cir.
2011)    (Hartz,    J.,    concurring)   (stating     that  “the
intrinsic/extrinsic dichotomy serves no useful function and
consumes unnecessary attorney and judicial time and effort,” and
that “the distinction between intrinsic and extrinsic evidence
is unclear and confusing, and can lead to substituting
conclusions for analysis”).


                                   15
experience, training, or education may testify in the form of an

opinion or otherwise if”:

      (a) the expert’s scientific, technical, or other
      specialized knowledge will help the trier of fact to
      understand the evidence or to determine a fact in
      issue;

      (b) the       testimony    is    based   on    sufficient      facts    or
      data;

      (c)   the  testimony   is   the               product    of      reliable
      principles and methods; and

      (d) the expert has reliably applied the principles and
      methods to the facts of the case.

Fed. R. Evid. 702.       Where, as here, the expert testimony is of a

scientific nature, the district court serves, in essence, as

gatekeeper,     admitting       the    testimony     where    it     “‘is   not    only

relevant, but reliable.’”             United States v. Crisp, 324 F.3d 261,

265   (4th   Cir.    2003)   (quoting     Daubert      v.    Merrell    Dow   Pharm.,

Inc., 509 U.S. 579, 589 (1993)).

      The district court must exclude “expert testimony related

to matters which are obviously . . . within the common knowledge

of jurors.”      United States v. Lespier, 725 F.3d 437, 449 (4th

Cir. 2013) (internal quotation marks omitted).                         Thus, absent

“unusual circumstances,” the district court must exclude expert

testimony on issues of witness credibility.                    Id.     The district

court’s decision to admit expert testimony is reviewed for abuse

of discretion.        See United States v. Johnson, 617 F.3d 286, 292

(4th Cir. 2010).


                                          16
      Applying the above standard, the district court did not

abuse   its    discretion     in    permitting      Dr.    Baker,    who    had     ample

knowledge,      skill,     experience,      training,        and    education        with

regard to cutaneous findings of abuse, to testify as an expert.

A   physician      for   twenty-five     years,      Dr.    Baker    served    as    the

director      of   the    Baltimore      Child      Abuse    Center,        where    she

performed complete medical examinations and collected forensic

evidence for alleged cases of child abuse in Baltimore City.

Dr. Baker explained that, during a forensic examination, she

focuses particularly on cutaneous findings (the most common type

of child abuse findings), and that when she discovers an injury

to the skin, she can draw certain conclusions about the possible

source or cause of the injury.              Dr. Baker further testified that

she had examined more than 3,000 individuals where there was a

concern    of      possible       past   injury,       and    trained        pediatric

residents, nurse examiners, and staff doctors on how to perform

forensic examinations.             Finally, Dr. Baker testified that she

had been qualified to testify as an expert in over two dozen

cases, including cases in the District of Maryland.

      Fuertes      and   Ventura    take    issue     with    the    fact    that    Dr.

Baker’s    “experience      was    almost       entirely    with    juveniles,”       and

that her “training and experience were not in the formation and

treatment of adult scars.”           Defs.’ Br. at 47.             But, as explained

by Dr. Baker, “[o]ther than the extreme,” such as “very old

                                           17
people [who] have fragile skin” and “very young children [who]

are particularly prone [to] . . . things that can be mistaken

for abuse,” there is no distinction between adults and children

when it comes to cutaneous findings.                J.A. 1388.        In any event,

Fuertes    and   Ventura’s    objection       to   Dr.     Baker’s    training      and

experience goes to the weight, not the admissibility, of her

testimony, and counsel had the opportunity to cross-examine her

on these issues.     See Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir.

1993) (“The witness’ qualifications to render an expert opinion

are [] liberally judged by Rule 702.”).                    Likewise, Fuertes and

Ventura’s critique that Dr. Baker could not testify about when

Duenas sustained her injuries was appropriate fodder for cross-

examination.       The     fact   that    Dr.      Baker      could   not   reach    a

conclusion as to when Duenas was injured did not render the rest

of her testimony unhelpful or inadmissible.

     Turning to Fuertes and Ventura’s argument that Dr. Baker

merely provided an opinion as to whether Duenas was telling the

truth, this argument must be rejected.               Dr. Baker neither opined

on Duenas’ credibility, nor offered an opinion as to who caused

her injuries.     Cf. Scott v. Sears, Roebuck & Co., 789 F.2d 1052,

1054–56 (4th Cir. 1986) (determining that the district court

erred     in   admitting     expert      testimony       on    “human    factors”).

Rather, Dr. Baker’s testimony was offered to assist the jury in

determining whether there were signs and markings that Duenas

                                         18
had been physically injured.                   While Dr. Baker’s testimony tended

to corroborate Duenas’ account of how she sustained her injuries

(i.e., being hit with a belt or being pushed down onto rocky

ground),     the       mere        fact    that       expert        testimony      tends     to

corroborate the testimony of another witness is not grounds for

exclusion;       indeed,      it     is    surely         the   case     that    most    expert

opinion    evidence         proffered          by    litigants      is    paired    with    lay

evidence     that      is     in    some       fashion      supported       by   the     expert

opinion.     E.g., United States v. Gonzales–Flores, 701 F.3d 112,

115 (4th Cir. 2012) (testimony of confidential informant in drug

trafficking prosecution corroborated by forensic expert); Barbe

v.    McBride,      521      F.3d     443,          461    (4th     Cir.    2008)       (“[T]he

prosecution utilized its expert evidence to corroborate J.M.’s

trial testimony and thus buttress the allegation that Barbe had

indeed    sexually        abused      her.”).             Thus,    the   district       court’s

decision    to     admit      Dr.    Baker’s         expert       opinion    testimony     was

neither erroneous nor an abuse of discretion.

                                                C.

      Ventura asserts that the district court erred in denying

his   motion     for    judgment          of    acquittal         with   respect    to   Count

Seven, possession and use of a firearm in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c).                               He claims that

sex trafficking by force, fraud, or coercion, in violation of 18

U.S.C. § 1591(a), which served as the predicate offense for his

                                                19
§ 924(c) conviction, is not categorically a crime of violence.

We agree.

                                            1.

      As a preliminary matter, we must determine which standard

of   review   applies.       Ventura        asserts    that   de    novo    review    is

appropriate in light of his general Rule 29 motion for judgment

of acquittal.         See United States v. Green, 599 F.3d 360, 367

(4th Cir. 2010) (stating that the court reviews de novo the

district court’s denial of a motion for judgment of acquittal

pursuant to Rule 29 of the Federal Rules of Criminal Procedure).

He   argues    that    a    “broadly    stated”       motion       for   judgment     of

acquittal     is   “sufficient         to    preserve     the       full    range    of

challenges, whether stated or unstated, to the sufficiency of

the evidence.”         United States v. Hammoude, 51 F.3d 288, 291

(D.C. Cir. 1995).          And, here, because sex trafficking by force,

fraud, or coercion can never satisfy § 924(c)(3)’s definition of

a crime of violence, there is insufficient evidence to support

his conviction on Count Seven.

      The government, however, points out, correctly we think,

that Ventura’s objection is not about factual or evidentiary

sufficiency; rather, his argument is a purely legal one.                              As

explained     by   the     government,       Ventura    takes       issue   with     the

district court’s instruction to the jury regarding Count Seven—

in particular, its instruction that sex trafficking by force,

                                            20
fraud, or coercion is categorically a crime of violence.                                And,

because Ventura neither objected to the instruction nor argued

that Count Seven is not categorically a crime of violence, his

claim may be reviewed only for plain error.                        See, e.g., United

States v. Tillery, 702 F.3d 170, 175 (4th Cir. 2012) (“Because

[the    defendant]       did     not    object    to    the    jury     instructions      at

trial, we review the instructions for plain error.”).

       The government’s analysis is the correct one.                             Ventura’s

motion       for    judgment    of     acquittal,      which    dealt    only    with   the

sufficiency of the evidence, did not preserve a purely legal

challenge          to   the    jury     instruction       regarding          Count   Seven.

Accordingly, to prevail on appeal, Ventura must show: (1) there

was an error; (2) the error was “clear or obvious, rather than

subject to reasonable dispute;” (3) “the error affected [his]

substantial rights, which in the ordinary case means it affected

the outcome of the district court proceedings;” and (4) “the

error    seriously       affect[ed]       the    fairness,      integrity       or   public

reputation of judicial proceedings.”                     United States v. Marcus,

560 U.S. 258, 262 (2010) (internal quotation marks omitted).

                                            2.

        To    sustain     a    conviction    under      18     U.S.C.    §    924(c),    the

government must prove that the defendant (1) used or carried a

firearm and (2) did so during and in relation to a “crime of

violence.”          Section 924(c)(3) defines a “crime of violence” as

                                            21
“an offense that is a felony and—(A) has as an element the use,

attempted use, or threatened use of physical force against the

person    or    property          of    another,          or       (B)   that    by    its     nature,

involves    a       substantial         risk    that          physical       force         against   the

person or property of another may be used in the course of

committing          the    offense.”           18    U.S.C.          §   924(c)(3).            Section

924(c)(3)(A) is referred to as the “force clause,” while section

924(c)(3)(B) is called the “residual clause.”

      In determining whether an offense qualifies as a “crime of

violence” under either clause, the court may (depending on the

features       of    the        applicable     statute)             employ      the    “categorical

approach”       or        the    “modified          categorical           approach.”            “[T]he

modified approach serves a limited function: It helps effectuate

the   categorical           analysis      when           a    divisible         statute,       listing

potential offense elements in the alternative, renders opaque

which    element          played    a   part        in       the    defendant’s        conviction.”

Descamps v. United States, 133 S. Ct. 2276, 2283 (2013).                                             The

categorical approach, by contrast, applies when the defendant

was convicted of an offense under “an ‘indivisible’ statute—

i.e., one not containing alternative elements.”                                 Id. at 2281.

      A statute is indivisible when “the jury need not agree on

anything past the fact that the statute was violated.”                                          Rendon

v. Holder, 764 F.3d 1077, 1085 (9th Cir. 2014).                                   “Any statutory

phrase     that—explicitly               or     implicitly—refers                     to     multiple,

                                                22
alternative    means       of    commission        must      still    be    regarded     as

indivisible if the jurors need not agree on which method of

committing the offense the defendant used.”                          Id.     Thus, “mere

use of the disjunctive ‘or’ in the definition of a crime does

not automatically render it divisible.”                       Omargharib v. Holder,

775   F.3d   192,    194    (4th    Cir.     2014).          “Only    when     [the]    law

requires that in order to convict the defendant the jury must

unanimously    agree    that      he   committed       a     particular      substantive

offense contained within the disjunctively worded statute are we

able to conclude that the statute contains alternative elements

and not alternative means.”             Rendon, 764 F.3d at 1086 (emphasis

in    original).       Accordingly,          although        §    1591(a)      refers    to

alternative    means        of     commission,         it        contains    a     single,

indivisible    set     of       elements,        and   the       categorical      approach

applies.

      Under the “categorical approach,” the court “look[s] only

to the fact of conviction and the statutory definition of the []

offense.”     James v. United States, 550 U.S. 192, 202 (2007)

(internal quotation marks omitted), overruled on other grounds,

Johnson v. United States, 135 S. Ct. 2251 (2015).                                The court

does not consider the “particular facts disclosed by the record

of conviction.”        Id. (internal quotation marks omitted).                          “The

point of the categorical inquiry is not to determine whether the

defendant’s conduct could support a conviction for a crime of

                                            23
violence, but to determine whether the defendant was in fact

convicted of a crime that qualifies as a crime of violence.”

United States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir.

2013) (emphasis in original).

      Applying   the   above    test,    we      consider   first    whether      sex

trafficking by force, fraud, or coercion qualifies categorically

as a crime of violence under the force clause, § 924(c)(3)(A).

It does not.     After Descamps, when a statute defines an offense

using a single, indivisible set of elements that allows for both

violent and nonviolent means of commission, the offense is not a

categorical crime of violence.               Cf. United States v. Aparicio-

Soria, 740 F.3d 152, 157–58 (4th Cir. 2014) (en banc) (reasoning

that, because the Maryland offense of resisting arrest has a

single and indivisible set of elements that may be committed by

either   violent     or   nonviolent         means,   it    does    not     qualify

categorically as a crime of violence under U.S.S.G. § 2L1.2, the

reentry Guideline); United States v. Royal, 731 F.3d 333, 341–42

(4th Cir. 2013) (reasoning that, because the Maryland offense of

second-degree assault has an indivisible set of elements that

may be committed by either violent or nonviolent means, it does

not   qualify    categorically     as        a   “violent   felony”       under    §

924(e)(1)).      Accordingly, because § 1591(a) specifies that sex

trafficking     by   force,    fraud,    or      coercion   may     be    committed

nonviolently—i.e., through fraudulent means—the offense does not

                                        24
qualify      as    a    categorical         crime   of    violence     under     the    force

clause.

       Turning         to   the    residual    clause,        the   government    suggests

that sex trafficking is categorically a crime of violence under

§ 924(c)(3)(B) because, even where the defendant effects the

offense by means of fraud, there is still a substantial risk of

physical injury from the prostitute’s customers, or johns. 5                             This

argument         misapprehends        the     clear      language     of   the    residual

clause, which specifies that a felony is a crime of violence

when       it,   “by    its       nature,    involves     a    substantial       risk   that

physical force against the person or property of another may be

used in the course of committing the offense.”                              18 U.S.C. §

924(c)(3)(B) (emphasis added).                  The residual clause makes plain

       5
       We have considered the parties’ supplemental briefing
following the Supreme Court’s decision in Johnson v. United
States, 135 S. Ct. 2251 (2015). We note that in Johnson, id. at
2557-60, the Supreme Court held unconstitutionally vague the
version of the residual clause set forth in 18 U.S.C.
§ 924(e)(2)(B), but the Court had no occasion to review the
version of the residual clause set forth at 18 U.S.C. §
924(c)(3)(B), the one at issue in this case. The two
formulations, one requiring “conduct that presents a serious
potential risk of physical injury to another,” § 924(e)(2)(B),
the other requiring proof of “a felony . . . that by its nature
involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense,” § 924(c)(3)(B), are similarly worded
but not identically so.    For the reasons explained in text, we
find it unnecessary in this case to explore whether the Supreme
Court’s invalidation of the former provision applies as well to
the latter provision. See Ashwander v. Tenn. Valley Auth., 297
U.S. 288, 346–48 (1936) (setting forth the principle of
constitutional avoidance).


                                               25
(for all its erstwhile murkiness) that the relevant inquiry is

not whether there is a risk of any person using force in any way

tangentially related to an on-going offense, but rather whether

there is a substantial risk of the defendant doing so.

     The    government    nevertheless       relies     on      United    States    v.

Willoughby, 742 F.3d 229 (6th Cir. 2014), to argue that the risk

of force need not come from the defendant.                     In Willoughby, the

Sixth Circuit observed that:

     the act of causing a minor to engage in prostitution—
     even when the defendant’s act does itself not involve
     force—obviously does present a “serious potential risk
     of physical injury” to the victim.         U.S.S.G. §
     4B1.2(a)(2).   There is the risk of physical injury
     from the sex act itself; the risk of violence from
     johns, many of whom . . . are addicted to drugs; and,
     not least, the risk of violence from the pimps
     themselves.

Id. at 242.       But, unlike the present case, Willoughby involved

the more expansive definition of a crime of violence found in

U.S.S.G. § 4B1.2.        See id. (explaining that, under U.S.S.G. §

4B1.2, a “crime of violence” includes “any felony that has as an

element the use, attempted use, or threatened use of physical

force   against    the   person    of    another      or       is   burglary   of   a

dwelling, arson, or extortion, involves use of explosives, or

otherwise   involves     conduct   that      presents      a    serious   potential

risk of physical injury to another” (emphasis added) (internal

quotation marks omitted)).




                                        26
      In   analyzing       identical        language          to   that   contained      in   §

924(c)(3)(B), the Supreme Court has indicated that the relevant

inquiry in determining whether an offense qualifies as a crime

of violence is not simply whether there is a substantial risk of

physical injury.          See Leocal v. Ashcroft, 543 U.S. 1, 10–11 &

n.7 (2004) (deciphering the term “crime of violence” under 18

U.S.C. § 16).        Rather, the relevant inquiry is whether there is

a substantial risk that the defendant will use physical force

against    the    victim       in   completing          the    crime.      Id.;    see    also

United States v. Serafin, 562 F.3d 1105, 1110 (10th Cir. 2009)

(“[F]or an offense to qualify as a crime of violence under §

924(c)(3)(B),       we   must       ensure    the       statute      proscribes      conduct

which not only (1) involves a disregard of a substantial risk of

force against another—which, by itself, would only satisfy the §

4B1.2(a)(2) definition—but also (2) where such risk of force

arises during the course of committing the offense.” (emphasis

added)).     Thus,       for    example,      “[a]       burglary       would   be   covered

under § 16(b) not because the offense can be committed in a

generally reckless way or because someone may be injured, but

because burglary, by its nature, involves a substantial risk

that the burglar will use force against a victim in completing

the   crime.”       Leocal,         543    U.S.    at    10    (emphasis     added).          We

conclude,        therefore,         that     the        district        court     erred       in



                                             27
instructing the jury that sex trafficking by force, fraud, or

coercion is categorically a crime of violence.

       Having determined that the district court erred, we next

consider whether the error was clear or obvious.                        The government

argues    that      any   error     could   not   have     been    clear    or    obvious

because neither this Court nor the Supreme Court has determined

whether sex trafficking qualifies as a crime of violence under §

924(c).       Cf. United States v. Wynn, 684 F.3d 473, 480 (4th Cir.

2012) (concluding that, where the court never addressed an issue

and   the     other    circuits     were    split,      “the    issue     has   not   been

resolved plainly” (emphasis in original)).                        Descamps, however,

speaks directly to whether § 1591(a) qualifies categorically as

a crime of violence under § 924(c)’s force clause.                              Moreover,

despite the government’s argument to the contrary, it is of no

import that Descamps was decided after the jury verdict in this

case.     As the Supreme Court has said, “whether a legal question

was settled or unsettled at the time of trial, it is enough that

an    error    be   plain      at   the   time    of    appellate       consideration.”

Henderson      v.     United    States,     133    S.     Ct.     1121,    1130   (2013)

(internal quotation marks omitted).                    It is sufficient, in short,

that the district court’s error as to the force clause is plain

on appeal.

       Likewise, the district court’s error was plain as to the §

924(c)(3)(B) residual clause.                As stated above, we reject the

                                            28
government’s argument that sex trafficking by force, fraud, or

coercion qualifies as a categorical crime of violence under the

§    924(c)(3)(B)     residual           clause    because   prostitutes     face    a

substantial risk of physical injury from johns. 6                    Given the clear

language of the § 924(c)(3)(B) residual clause, and the Supreme

Court’s analysis in Leocal, the government cannot credibly claim

that       the   district        court     lacked      controlling     authority    in

interpreting § 924(c)(3)(B) and deciding whether sex trafficking

by   force,      fraud,     or    coercion        is   categorically    a   crime   of

       6
       At oral argument, the government did not advance the
position that the typical case of sex trafficking by force,
fraud, or coercion involves a substantial risk that the
defendant will use physical force as a means to commit the
offense.   See Oral Argument at 32:42, United States v. Fuertes
(No. 13-4755) (counsel referred the court to legislative
findings when questioned about why the government did not
advance a “typical case” argument).          Following argument,
however, the government submitted a letter pursuant to Federal
Rule of Appellate Procedure 28(j), contending that, under the
Eleventh Circuit’s decision in United States v. Keelan, 786 F.3d
865 (11th Cir. 2015), the “ordinary case” of sex trafficking
involves a substantial risk that the defendant will use physical
force.   Keelan has no bearing on this case.      In Keelan, the
Eleventh Circuit confronted whether 18 U.S.C. § 2422, which
“prohibits knowingly persuading, inducing, enticing, or coercing
a minor to engage in sexual activity,” is categorically a crime
of violence under 18 U.S.C. § 16(b).       Id. at 870 (emphasis
added). Critical to the court’s determination that the offense
did so qualify was the fact that the victim was a minor.     See
id. at 871 (“We [have] found that [i]n cases involving sex
crimes against minors, . . . there is always a substantial risk
that physical force will be used to ensure a child’s compliance
with an adult’s sexual demands.” (internal quotation marks
omitted)). In any event, we are not persuaded that the ordinary
case of sex trafficking by force, fraud, or coercion involves a
substantial risk that the defendant will use physical force as a
means to commit the offense.


                                             29
violence under that provision.               Cf. United States v. Carthorne,

726 F.3d 503, 516–17 (4th Cir. 2013), called into question in

part by Johnson v. United States, 135 S. Ct. 2251, 2560 (2015). 7

     Finally, we agree with Ventura that the district court’s

obvious error affected his substantial rights as well as the

fairness,       integrity,          and   public     reputation       of      judicial

proceedings.          Ventura cannot be guilty of violating § 924(c),

and yet he received an additional sixty months’ imprisonment for

this offense.             “[Five] years of a man’s life is not a trifling

thing.”        United States v. Ford, 88 F.3d 1350, 1356 (4th Cir.

1996).         We    simply     cannot    “require   a    man    to   serve    [five]

undeserved years in prison when [we] know[] that the sentence is

improper.”          Id.    Accordingly, because the district court plainly

erred in instructing the jury that sex trafficking by force,

fraud,    or    coercion       is   categorically    a   crime   of   violence,    we

vacate Ventura’s § 924(c) conviction, and remand for entry of

judgment of acquittal on that count and resentencing.




     7 Our opinion in United States v. Carthorne, 726 F.3d 503
(4th Cir. 2013), analyzed the career offender guideline,
U.S.S.G. § 4B1.2(a).    Id. at 510.    In that guideline, the
Sentencing Commission adopted verbatim the residual clause of
the Armed Career Criminal Act, which the Supreme Court
invalidated as fatally vague under the Fifth Amendment due
process clause.   Cf. Johnson, 135 S. Ct. at 2560 (discussing
Carthorne).


                                           30
                                           D.

      Fuertes argues that the district court erred in denying his

motion for judgment of acquittal on Count Six, as there was

insufficient    evidence      that    he    knew     or   recklessly    disregarded

that Duenas was coerced or forced to engage in commercial sex

acts. 8    We disagree.

      As    stated   above,   we     review     de    novo   a   district   court’s

denial of a motion for judgment of acquittal.                     Green, 599 F.3d

at   367.      “[A]ppellate     reversal        on    grounds    of    insufficient

evidence . . . will be confined to cases where the prosecution’s

failure is clear.”        Id. (internal quotation marks omitted).                   In

reviewing the sufficiency of the evidence, the relevant question

is whether, viewing the evidence in the light most favorable to

the government, “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”                        Id.

(internal     quotation    marks      omitted).           Put    another    way,     a

reviewing court “cannot set aside a jury’s verdict if it is

supported by substantial evidence when viewed in the light most

      8The district court instructed the jury that Fuertes was
guilty of sex trafficking by force, fraud, or coercion if: (1)
he   knowingly   recruited,   enticed,  harbored,   transported,
provided, or obtained a person (namely, Duenas) by any means, or
benefitted financially from participation in a venture engaged
in any such act; (2) he knew or recklessly disregarded that
force, fraud, or coercion would be used with respect to Duenas;
(3) he knew that Duenas would be engaged in a commercial sex
act; and (4) his conduct was in or affecting interstate
commerce.


                                           31
favorable to the government.”         United States v. Taylor, 659 F.3d

339, 343 (4th Cir. 2011).

     Here, a reasonable jury could have found that Fuertes knew

or recklessly disregarded that Duenas was forced or coerced to

commit commercial sex acts.          As pointed out by the government,

Fuertes does not dispute “the sufficiency of the evidence of his

participation    in   the    commercial      sex    enterprise      with   and   on

behalf of Ventura.”      Gov’t Br. at 43.           Nor does he dispute that

he was present at most, if not all, of the places where Duenas

provided sexual services on behalf of Ventura.                    Rather, Fuertes

disputes that he witnessed one occasion when Ventura beat her

with a belt.     Although Duenas indicated on direct examination

that Fuertes was in the same house (but not necessarily the same

room) when Ventura beat her with a belt, she clarified during

redirect   examination      that   Fuertes    had    in    fact    witnessed     the

beating.   Taking the facts in the light most favorable to the

government, a reasonable trier of fact could have found that

Fuertes witnessed Ventura beating Duenas, and that the beating,

combined with the level of Fuertes’ involvement in Ventura’s

prostitution    business,     constituted     proof       beyond    a   reasonable

doubt that Fuertes knew or recklessly disregarded that Duenas

was coerced or forced into prostitution.              Accordingly, we affirm

the district court’s denial of Fuertes’ motion for judgment of

acquittal on Count Six.

                                      32
                                III.

     For the reasons stated above, the judgment in No. 13-4755

is affirmed; the judgment in No. 13-4931 is affirmed in part and

vacated and remanded in part.

                                            No. 13-4755 AFFIRMED;
                                 No. 13-4931 AFFIRMED IN PART AND
                   VACATED AND REMANDED IN PART WITH INSTRUCTIONS




                                 33
