United States Court of Appeals

For the Eighth Circuit

___________________________

No. 19-1153

___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Mark Phillip Carter, II

lllllllllllllllllllllDefendant - Appellant

------------------------------

Human Trafficking Institute

lllllllllllllllllllllAmicus on Behalf of Appellee(s)

 ___________________________

No. 19-1172

___________________________

 United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Breeanna Lynae Brown, also known as BB

lllllllllllllllllllllDefendant - Appellant

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Human Trafficking Institute

lllllllllllllllllllllAmicus on Behalf of Appellee(s)

 ___________________________

No. 19-1177

___________________________

 United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Sarina Ann Williams

lllllllllllllllllllllDefendant - Appellant

------------------------------

Human Trafficking Institute

lllllllllllllllllllllAmicus on Behalf of Appellee(s)

 ___________________________

No. 19-1344

___________________________

 United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Ronzell Montez Williams, also known as LV

lllllllllllllllllllllDefendant - Appellant

------------------------------

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Human Trafficking Institute

lllllllllllllllllllllAmicus on Behalf of Appellee(s)

 ___________________________

No. 19-1345

___________________________

 United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Darren O. Coleman, also known as DC

lllllllllllllllllllllDefendant - Appellant

------------------------------

Human Trafficking Institute

lllllllllllllllllllllAmicus on Behalf of Appellee(s)

 ____________

Appeals from United States District Court 

for the Southern District of Iowa - Des Moines

 ____________

 Submitted: March 12, 2020

 Filed: May 29, 2020

____________

Before ERICKSON, GRASZ, and KOBES, Circuit Judges. 

____________

KOBES, Circuit Judge.

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This case involves five defendants: Mark Philip Carter II, Darren O. Coleman,

Sarina Ann Williams, Ronzell Montez Williams, and Breeanna Lynae Brown. All

were members of a prostitution and sex trafficking conspiracy based in Iowa. Each

pleaded guilty to at least one charged offense, and all appeal their sentences. We

affirm.

I.

Carter was charged with several counts related to conspiracy to engage in sex

trafficking and prostitution of five victims. He pleaded guilty to sex trafficking

children. 18 U.S.C. § 1591(a)(1) & (b)(2). Coleman was charged with several counts

relating to conspiracy to engage in sex trafficking and prostitution of two victims. He

pleaded guilty to assisting an individual to engage in prostitution, 18 U.S.C.

§ 2422(a), and to coercing and enticing an individual to engage in prostitution, 18

U.S.C. § 1591(a)(1), (a)(2), & (b)(1). 

Prior to sentencing, both Carter and Coleman filed extensive objections to their

presentence investigation reports. Carter argued that his PSR contained information

about counts dismissed as part of his plea agreement and wrongly increased his

offense level for “unduly influenc[ing] a minor to engage in prohibited sexual

conduct,” U.S.S.G. § 2G1.3(b)(2)(B), and for “the commission of a sex act or sexual

contact,” U.S.S.G. § 2G1.3(b)(4)(A). Coleman claimed that his Guidelines range was

improperly enhanced by additional victims when he had not pleaded guilty to conduct

involving those victims. The district court1

 overruled these objections and made

factual findings before imposing their sentences. Carter and Coleman were sentenced

to 175 and 300 months in prison, respectively.

1

 The Honorable John A. Jarvey, Chief Judge, United States District Court for

the Southern District of Iowa.

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Sarina pleaded guilty as charged to interstate transportation of an individual to

engage in prostitution, 18 U.S.C. § 2421, and conspiracy to engage in sex trafficking

by force, fraud, or coercion, 18 U.S.C. § 1594(c). The indictment described the

conspiracy as one “to cause ‘Victim 4’ to engage in a commercial sex act, in violation

of 18 U.S.C. § 1591(a)(1), (a)(2) & (b)(1).” 

Ronzell and Brown also pleaded guilty to charges under § 1594(c), and the

indictment described their offenses in the same way as Sarina’s except they conspired

to traffic a different victim. Based on the conspiracy charges, the district court set a

base offense level of 34 for all three defendants. The district court sentenced Sarina

to 135 months in prison, Ronzell to 36 months, and Brown to 50 months. Each was

sentenced below their Guidelines range—Ronzell and Brown significantly so.

II.

Carter and Coleman both argue that the district court erred when applying

enhancements to their offense levels. We review the district court’s construction and

application of the Guidelines de novo and its factual findings for clear error. United

States v. Cordy, 560 F.3d 808, 817 (8th Cir. 2009).

A.

Carter argues that the district court erred when it applied an enhancement for

exerting “undue influence” over Minor Victim A. See U.S.S.G. § 2G1.3(b)(2)(B). 

Whether a defendant unduly influenced a victim is a factual question subject to clear

error review. See United States v. Hagen, 641 F.3d 268, 270 (8th Cir. 2011). The key

question is “whether a participant’s influence over the minor compromised the

voluntariness of the minor’s behavior.” U.S.S.G. § 2G1.3(b)(2)(B) cmt. 3(B). 

At sentencing, the evidence showed Carter had physically abused Minor Victim

A. In one instance, he told her to get out of his car and then drove away while she

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was still getting out, hurting her and causing her to fall. Carter’s co-defendant

proffered that he saw Carter hit Minor Victim A. Another victim reported seeing

pictures of Minor Victim A’s face when her “eye was black, literally, like black, it

was swollen shut; her nose was bleeding” as a result of an altercation with Carter. 

Carter also emotionally abused Minor Victim A. He would get angry with her when

she wouldn’t “go on a date” he had arranged. Based on this evidence and given that

Carter was nine years older than Minor Victim A, the district court did not clearly err

when it found that Carter unduly influenced her and compromised the voluntariness

of her behavior. 

B.

Carter next argues that the district court erred by applying the enhancement for

an offense involving “the commission of a sex act or sexual contact.” See U.S.S.G.

§ 2G1.3(b)(4)(A). The Guidelines authorize a two-level increase if “the offense

involved the commission of a sex act or sexual contact,” id., or if the offense was not

one under 18 U.S.C. § 1591(b) and “ involved a commercial sex act,” U.S.S.G.

§ 2G1.3(b)(4)(B). Carter does not dispute that sex acts occurred. Rather, he makes

the purely legal argument that the enhancement should not apply because his offense

under § 1591(b)(1) involved commercial sex acts, which he views as only enhancing

convictions under different statutes. Any other reading, he argues, would reduce the

special rule for commercial sex acts to “mere surplusage.”

We disagree. Section 2G1.3(b)(4)(A) imposes a two-level increase for any

offense to which § 2G1.3 applies that “involved the commission of a sex act or sexual

contact.” Because Carter’s offense falls under § 2G1.3 and involved the commission

of a sex act, the enhancement applies. This reading does not render § 2G1.3(b)(4)(B)

“mere surplusage.” Where (b)(4)(A) applies to offenses that“involved the commission

of a sex act or sexual contact,” (b)(4)(B) applies only to offenses other than those

under § 1591(b) but is triggered wherever the offense “involved a commercial sex

act.” Because it does not require “the commission of” a commercial sex act, the

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(b)(4)(B) enhancement may be applied, for example, in a case where someone

attempts to coerce a minor into committing a commercial sex act, but no sex act

ultimately occurs. See 18 U.S.C. § 2422(b) (prohibiting, subject to jurisdictional

elements, coercion of minors to engage in criminal sexual activities). The district

court properly applied the enhancement here.

C.

Both Carter and Coleman challenge their enhancements for promoting

commercial sex acts with additional victims (Victims 1 and 2 in Carter’s case,

Victims 5 through 9 in Coleman’s). They argue that because they did not plead guilty

to any charges involving those additional victims and because they objected to the

facts related to those victims in their PSRs, it was inappropriate for the district court

to consider those victims at sentencing.

Both U.S.S.G. § 2G1.3(d), which applies to Carter, and § 2G1.1(d), which

applies to Coleman, prescribe how to account for additional victims. Under these

provisions, where the “relevant conduct of an offense of conviction” includes

promoting a commercial sex act with respect to additional individuals, whether or not

those individuals are referenced in the count of conviction, each victim is treated as

though they were represented by a separate count.” U.S.S.G. §§ 2G1.1 cmt. 5, 2G1.3

cmt. 6. “Relevant conduct” includes “all acts and omissions committed, aided,

abetted, counseled, commanded, induced, procured, or willfully caused by the

defendant . . . that occurred during the commission of the offense of conviction.” 

U.S.S.G. § 1B1.3(a)(1)(A).

Coleman’s additional victims are relevant conduct under this definition. 

Although the charges relating to these victims were dismissed, they still may be

considered to enhance Coleman’s sentence. See United States v. Williams, 879 F.2d

454, 457 (8th Cir. 1989). The broad language in § 1B1.3 “indicates the Sentencing

Commission’s intent to give courts the discretion to consider a broad range of

-7-
conduct in making adjustments,” and so we have declined to infer a limitation

precluding courts from considering conduct related to dismissed counts. Id. 

The claim that Coleman’s enhancement lacked supporting factual findings also

fails. The district court made the findings necessary to apply the enhancements to

Coleman and, to the extent that he argues that his plea agreement forbids the

attribution of additional victims, he is mistaken. Coleman’s plea agreement left the

Government free to “make whatever comment and evidentiary offer [it] deem[s]

appropriate at the time of sentencing,” notwithstanding the dismissal of the counts

directly related to these victims.

All of the above would apply equally to Carter, but for one important

difference between the Guidelines provisions at issue. Section 2G1.3(d), unlike

§ 2G1.1(d), specifies that the additional victims used to enhance a sentence under that

section must be minors, and Carter’s were not. Carter therefore argues that his

sentence should not have been enhanced under § 2G1.3(d). Carter first identified this

issue in his reply brief and so we can decline to consider it. United States v. Head,

340 F.3d 628, 630 n.4 (8th Cir. 2003). We do so here, because it is clear from the

record that the district court would have given Carter the same sentence regardless

of his Guidelines recommendation.

III.

Coleman makes two arguments that we cannot consider on appeal. First, he

argues that the district court should not have followed U.S.S.G. § 2G1.1(a)(1) to

apply a base offense level of 34 to his conviction for coercing an individual to engage

in prostitution. In his view, this provision sets up an excessive disparity not based on

empirical data between the base level for offenses under 18 U.S.C. § 1591(b)(1) and

those under all other statutes. 

-8-
We do not consider policy arguments about the Guidelines on appeal. United

States v. Riehl, 779 F.3d 776, 778 (8th Cir. 2015) (per curiam). District courts are

free to vary from the Guidelines based on them, but it is not an abuse of discretion for

a district court to decline to do so. United States v. Sharkey, 895 F.3d 1077, 1082

(8th Cir. 2018).

Second, Coleman argues that the district court erred when it denied his motion

for a downward departure for overrepresented criminal history under U.S.S.G.

§ 4A1.3(b)(1). We do not have authority to review that decision because the district

court recognized it had the power to depart downward and Coleman does not argue

it had an unconstitutional motive for failing to do so. United States v. Woods, 596

F.3d 445, 449 (8th Cir. 2010).

IV.

Finally, both Coleman and Carter argue the district court committed procedural

error at sentencing and their sentences were substantively unreasonable. We first

assess whether the district court committed significant procedural error. United

States v. Williams, 624 F.3d 889, 896 (8th Cir. 2010). If we find none, we review the

substantive reasonableness of the sentences, applying a deferential abuse of discretion

standard. United States v. Stoner, 795 F.3d 883, 884 (8th Cir. 2015). 

Both Coleman and Carter argue the district court procedurally erred by relying

but never ruling on objected to facts in their PSRs. See United States v. Feemster,

572 F.3d 455, 461 (8th Cir. 2009) (en banc) (A district court commits procedural

error if it sentences “based on clearly erroneous facts.”). Nothing in the record

supports this argument. The district court made factual findings at Carter’s

sentencing that supported its conclusion that he behaved in a “depraved” way and that

society needed protection from him. Carter has failed to identify any moment during

his sentencing when the district court relied on still-disputed facts. See Carter Sent.

Tr. 33. The record is even clearer in Coleman’s case. The district court overruled all

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his objections to the PSR and found that it was “factually accurate as to all material

matters” and sentenced him based on that finding. Coleman Sent. Tr. 87–88.

Coleman claims that his sentence is substantively unreasonable because the

district court failed to account for his history and characteristics and considered his

co-defendants’ actions in setting his sentence.2

 A sentence may be substantively

unreasonable if a district court fails to consider a relevant factor that deserves

significant weight, gives significant weight to an inappropriate factor, or commits a

clear error of judgment in weighing the appropriate factors. Stoner, 795 F.3d at 884. 

Again, Coleman’s argument finds no support in the record. In fact, the court

considered each § 3553(a) factor, specifically mentioned Coleman’s criminal history,

and grappled with the “astounding depravity” of Coleman’s conduct. We also note

that Coleman’s sentence is below his Guidelines range. It is “nearly inconceivable”

that it could be substantively unreasonable. United States v. Lazarski, 560 F.3d 731,

733 (8th Cir. 2009).

V.

Sarina, Ronzell, and Brown all object to the base offense level of 34 for their

convictions for conspiracy to engage in sex trafficking by force, fraud, or coercion,

in violation of 18 U.S.C. § 1594(c). We review the proper construction of the

Guidelines de novo. Cordy, 560 F.3d at 817.

2

 Carter also claims that his sentence is substantively unreasonable, Carter Br.

30, but for support he primarily rehashes his argument that the district court wrongly

considered objected-to portions of his PSR. He also claims his sentence was

substantively unreasonable because the district court failed to explain its sentence in

a way that would facilitate our review. Id. at 34–35. This is really a claim of

procedural error, see Feemster, 572 F.3d at 463, and in any case the district court

provided an adequate explanation of its reasons.

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Conspiracies punished under § 1594(c) are not covered by a specific offense

Guideline, so we begin with the catch-all provision at U.S.S.G. § 2X1.1. Section

2X1.1(a) sets the base offense level for a conspiracy conviction not covered by a

specific Guideline as the “base offense level from the guideline for the [underlying]

substantive offense.” The indictment lists the underlying substantive offense for all

three of these defendants as 18 U.S.C. § 1591(a)(1), (a)(2), & (b)(1). For those

offenses, we refer to § 2G1.1, which prescribes a base offense level of 34 “if the

offense of conviction is 18 U.S.C. § 1591(b)(1)” and 14 if “otherwise.” Because the

underlying substantive offense for all three defendants is § 1591(b)(1) and the

applicable Guidelines provision (§ 2X1.1) directs that we treat these defendants as

though they were convicted under § 1591(b)(1), we conclude the district court

correctly assigned all three of these defendants base offense levels of 34. See United

States v. Sims, 957 F.3d 362, 363 (3d Cir. 2020) (following the same steps to reach

a base offense level of 34). 

The defendants suggest otherwise. Noting that § 2G1.1 directs that the base

offense level for any convictions other than those under § 1591(b)(1) should be 14,

they argue they should have received the lower base offense level for their

convictions under § 1594(c). This argument only works if we read § 2G1.1 in

isolation, but we cannot do that. Section 2G1.1 is not the applicable Guideline for

convictions under § 1594(c). We only get there through § 2X1.1, so we must read

§ 2G1.1 in light of § 2X1.1. Even if that were not the case, the specific guidance

from § 2X1.1 comports with the general rule that “[u]nless otherwise specified, an

express direction to apply a particular factor only if the defendant was convicted of

a particular statute includes the determination of the offense level where the

defendant was convicted of conspiracy . . . in respect to that particular statute.” 

U.S.S.G. § 1B1.3, cmt. 7. Following both general interpretive principles for the

Guidelines and the specific provisions at issue here, the district court assigned the

correct base offense levels.

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The defendants rely on United States v. Wei Lin, 841 F.3d 823 (9th Cir. 2016)

to support their reading of § 2G1.1. In Wei Lin, the Ninth Circuit held that the base

offense level of 34 applied only in cases where defendants were subject to the

statutory 15-year mandatory minimum sentence described in § 1591(b)(1). Id. at 826. 

Because conspiracies under § 1594(c) are not subject to those minimums, the Wei Lin

rule prevents any conspiracy conviction from receiving a base offense level of 34.

We do not believe Wei Lin should govern our decision here. See Sims, 957

F.3d at 364 (noting that applying Wei Lin “lead[s] to absurd results”). The Ninth

Circuit arrived at its rule based on what it believed was “most likely what the

Sentencing Commission intended.” Id. at 827. Because the base offense level of 34

in § 2G1.1(a)(1) was created in response to Congress adding the 15-year mandatory

minimum for trafficking victims under 14 years old, the Wei Lin court concluded that

“the Commission likely intended § 2G1.1(a)(1) to apply only when the defendant

received a fifteen-year mandatory minimum sentence.” Id. Compelling as this

history might be, “[w]hen construing the Guidelines, we look first to the plain

language, and where that is unambiguous we need look no further.” United States v.

Bah, 439 F.3d 423, 427 (8th Cir. 2006). And here, where the applicable Guidelines

provision directs us to apply the provisions of § 2G1.1(a)(1) as though these

defendants were convicted of violating § 1591(b)(1), we find no ambiguity.3

* * *

Finding no error in the defendants’ sentences, we affirm.

_____________________________

3

 The application of the Guidelines is clearer here than it was in Wei Lin. Wei

Lin’s indictment only charged conspiracy to violate § 1591(a) and the conduct at

issue would have qualified him, had he been convicted of the substantive offense, for

sentencing under § 1591(b)(1). 841 F.3d at 825. By contrast, each of these three

defendants were charged with conspiring to violate § 1591(b)(1) itself. We need look

no further than the indictment and U.S.S.G. §§ 2X1.1 & 2G1.1 to properly set the

base offense levels for these defendants.

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