FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TYNISHA MARIE HORNBUCKLE,

AKA My Nookie, AKA Nene, AKA

No Feelings,

Defendant-Appellant.

No. 12-10541

D.C. No.

2:11-cr-00327-

MCE-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TAMRELL RENA HORNBUCKLE,

Defendant-Appellant.

No. 12-10615

D.C. No.

2:11-cr-00327-

MCE-2

OPINION

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Jr., Chief District Judge, Presiding

Argued and Submitted

March 10, 2015—San Francisco, California

Filed April 21, 2015
2 UNITED STATES V. HORNBUCKLE

Before: William A. Fletcher, Andre M. Davis*,

and Morgan Christen, Circuit Judges.

Opinion by Judge Christen

SUMMARY**

Criminal Law

The panel affirmed sentences for sex trafficking of

children under 18 U.S.C. § 1591.

The panel held that application of enhancement under

U.S.S.G. § 2G1.3(b)(4)(A) was not double counting because

“commission of a sex act or sexual contact” is not an element

of a conviction under § 1591.

The panel held that the district court properly applied an

enhancement under U.S.S.G. § 2G1.3(b)(2)(B) for undue

influence. The panel held that the record supports the district

court’s finding of undue influence for all three minors. The

panel joined several other circuits in holding that where the

record otherwise supports a district court’s factual finding of

undue influence, evidence of the minor victim’s willingness

is insufficient to compel reversal of the district court’s

finding.

* The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.

Court of Appeals for the Fourth Circuit, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. HORNBUCKLE 3

COUNSEL

Bruce Locke (argued), Moss & Locke, Sacramento,

California, for Defendant-Appellant Tynisha Marie

Hornbuckle.

Erin Jolene Radekin (argued), Law Office of Erin Radekin,

Sacramento, California; Hayes H. Gable, III, Law Office of

Hayes H. Gable, III, Sacramento, California, for DefendantAppellant Tamrell Rena Hornbuckle.

Camil A. Skipper (argued), Assistant United States Attorney,

Appellate Chief; Benjamin B. Wagner, United States

Attorney; Kyle Reardon and Matthew C. Stegman, Assistant

United States Attorneys, Eastern District of California,

Sacramento, California, for Plaintiff-Appellee.

OPINION

CHRISTEN, Circuit Judge:

Tynisha and Tamrell Hornbuckle are sisters who each

pleaded guilty to two counts of sex trafficking of children

under 18 U.S.C. § 1591. They challenge their sentences in

these consolidated appeals. The district court held an

extensive evidentiary hearing and sentenced Tynisha to 188

months and Tamrell to 151 months in prison.1 The sentences

included enhancements under U.S.S.G. § 2G1.3(b)(4)(A),

because sex acts were actually committed by the minors, and

under U.S.S.G. § 2G1.3(b)(2)(B), for undue influence. The

1 For clarity, we use first names to identify the Hornbuckle family

members.
4 UNITED STATES V. HORNBUCKLE

sisters appeal the application of both enhancements. We

affirm.

BACKGROUND

I. Facts

From 2008 to 2011, Tynisha and Tamrell ran a

prostitution ring with the help of their siblings Latrelle and

Cherrelle Hornbuckle and their mother Tammy Brown. 

Tynisha and Tamrell, who were then in their twenties, acted

as pimps who made money off adult and child prostitutes. 

These appeals arise from their interactions with three

underage victims: P.H., who was 13 when she started

working for the Hornbuckles; A.Hi., who was approximately

15 or 16; and A.He., who was 17. Tynisha primarily

managed the underage prostitutes while Tamrell managed the

adults, but on occasion Tamrell also arranged “dates” for the

minors. The three homeless minors who are the subject of

this case all lived with the Hornbuckles at one point, and they

often performed sex acts for clients at Latrelle and Cherrelle’s

home and in Tammy’s garage.

P.H., A.Hi., and A.He. gave all of their earnings to

Tynisha and Tamrell,2 who imposed daily quotas on them. 

A.He. had sex with ten to fifteen clients a day. Whenever the

victims said they did not want to work, Tynisha told them to

“[j]ust do a few” because they had “bills to pay.” The girls

generally got three to four hours of sleep per day because

they were “[a]lways working.”

2 A.He. initially split the money evenly with Tynisha, but that

arrangement lasted only a few days before Tynisha said that it was

“simpler” for her to take all the earnings.
UNITED STATES V. HORNBUCKLE 5

Tynisha hit, beat, choked, and kicked A.Hi. and P.H. for

“[a]nything and everything,” such as “acting out of line” or

dressing too slowly for work. P.H. in particular would get

“[a]nywhere from a slap to a full-on beating” if she did not

bring back enough money from a date. Tamrell also

“smacked” and beat P.H. The sisters had a practice of driving

to a dead-end street and having other girls hold the car doors

shut while they yelled at, and “severely beat,” A.Hi. and P.H.

Although Tynisha never actually hit A.He., she threatened to

“kill,” “beat,” and “punch” her. On one occasion, Tynisha

chased A.He. with a steak knife, promising to “beat” and

“stab” her.

On April 1, 2011, a confidential source informed the FBI

that the three victims were working for the Hornbuckles as

prostitutes. Two undercover FBI agents set up a date with

P.H., who was arrested after she agreed to the sex acts and

accepted money to perform them. Tamrell arranged the

transaction for P.H. and drove her to the motel. The FBI

subsequently questioned Tamrell, Cherrelle, Tynisha, and

A.He. A.He. corroborated the information supplied by the

confidential source. Later, an undercover agent set up a date

with A.Hi. and arrested her after she accepted payment to

perform a sex act.

After witnessing Tynisha, Tamrell, and Latrelle beat P.H.

viciously once more, A.He. agreed to assist in the FBI’s

investigation. In May 2011, she wore a wire and recorded

Tamrell (but not Tynisha) discussing the scope of the

prostitution ring, the violence inflicted on the victims, and the

FBI investigation generally. The FBI also set up a fake date

for A.He., from which Tamrell pocketed the earnings.
6 UNITED STATES V. HORNBUCKLE

In July 2011, Tynisha and Tamrell were indicted and

arrested on thirteen counts, ten of which were for sex

trafficking of children under 18 U.S.C. § 1591.

3 They both

pleaded guilty to the two counts that pertained to the sex

trafficking of A.He. and A.Hi. In exchange, the Government

dropped the other charges.

II. Sentencing Proceedings

The Presentence Reports (“PSRs”) identified advisory

guidelines ranges of 151 to 188 months’ imprisonment for

 

3

 18 U.S.C. § 1591(a) provides:

Whoever knowingly—

(1) in or affecting interstate or foreign commerce,

or within the special maritime and territorial

jurisdiction of the United States, recruits, entices,

harbors, transports, provides, obtains, or maintains

by any means a person; or

(2) benefits, financially or by receiving anything of

value, from participation in a venture which has

engaged in an act described in violation of

paragraph (1),

knowing, or in reckless disregard ofthe fact, that means

of force, threats of force, fraud, coercion described in

subsection (e)(2), or any combination of such means

will be used to cause the person to engage in a

commercial sex act, or that the person has not attained

the age of 18 years and will be caused to engage in a

commercial sex act, shall be punished as provided in

subsection (b).
UNITED STATES V. HORNBUCKLE 7

Tamrell and 188 to 235 months’ imprisonment for Tynisha.4

These ranges included: (1) a two-level enhancement under

U.S.S.G. § 2G1.3(b)(2)(B) for undue influence as applied to

two of the minors; and (2) a two-level enhancement under

U.S.S.G. § 2G1.3(b)(4)(A) for actual commission of sex acts

by all three minors. The Hornbuckles objected to the two

enhancements. They argued in the district court, as they do

on appeal, that applying § 2G1.2(b)(2)(B) was improper

because they did not unduly influence the minors to engage

in prostitution, and that applying § 2G1.3(b)(4)(A)

constituted double counting.

Following the parties’ arguments about the applicability

of these enhancements, the court heard testimony from three

witnesses: an adult prostitute who worked for the

Hornbuckles, the Government’s expert on prostitution

culture, and A.He.

The district court ruled that the § 2G1.3(b)(2)(B)

enhancement was appropriate because the Hornbuckles

exerted undue influence over the minors to encourage them

to engage in prostitution. Although the PSRs recommended

the enhancement only for A.He. and P.H., the district court

4 We deny Tynisha’s motion to strike the pages of the Government’s

brief that recite facts detailed in the PSRs, which she claims are not part

of the record. During the lengthy evidentiary hearing, the district court

expressly adopted the PSRs twice and determined their findings to be

correct. We have repeatedly held that such adoption is sufficient to make

PSR findings part of the record. See United States v. McClain, 30 F.3d

1172, 1174 (9thCir. 1994); United States v. Rigby, 896 F.2d 392, 394 (9th

Cir. 1990).
8 UNITED STATES V. HORNBUCKLE

emphasized that it found undue influence for all three

victims.5

The court also accepted the recommendation to apply the

§ 2G1.3(b)(4)(A) enhancement, ruling there was no double

counting. The court concluded that a conviction under

18 U.S.C. § 1591 does not require commission of a sex act

because it can be based on an exchange of money in

anticipation of the sex act. The court adopted the PSRs’

recommendations and imposed sentences of 188 months for

Tynisha and 151 months for Tamrell.

The Hornbuckles timely appealed their sentences. We

have jurisdiction under 28 U.S.C. § 1291.

STANDARD OF REVIEW

“We review the district court’s interpretation of the

Sentencing Guidelines de novo . . . and the district court’s

factual findings for clear error.” United States v. Swank,

676 F.3d 919, 921 (9th Cir. 2012) (internal quotation marks

omitted). “We have previously noted an intracircuit conflict

as to whether the standard of review for application of the

Guidelines to the facts is de novo or abuse of discretion.” Id.

at 921–22. We need not resolve that conflict here because as

in other cases, “the choice of standard . . . does not affect the

outcome of this case.” See id. at 922; United States v. Yip,

5 The PSRs did not recommend the undue influence enhancement for

A.Hi. because she submitted a statement claiming that the Hornbuckles

did not influence her to engage in prostitution. But evidence admitted at

the sentencing hearing established that A.Hi. was beaten by Tynisha, and

that she gave her earnings to the Hornbuckles.
UNITED STATES V. HORNBUCKLE 9

592 F.3d 1035, 1038 (9th Cir. 2010); United States v. Rivera,

527 F.3d 891, 908 (9th Cir. 2008).

ANALYSIS

I. The district court properly applied U.S.S.G.

§ 2G1.3(b)(4)(A).

Impermissible double counting occurs when a court

applies an enhancement for a necessary element of the

underlying conviction. See United States v. Smith, 719 F.3d

1120, 1123–25 (9th Cir. 2013). The Hornbuckles argue that

the district court improperly applied U.S.S.G.

§ 2G1.3(b)(4)(A) because a conviction for sex trafficking of

minors requires that the minors actually engaged in sex acts. 

If that had been the case, we agree the district court would

have erred by applying this enhancement. But the district

court did not double count this factor, and its decision to

apply the enhancement was proper under either de novo or

abuse of discretion review.

U.S.S.G. § 2G1.3(b) provides for “Specific Offense

Characteristics” relating to crimes of “Promoting a

Commercial Sex Act or Prohibited Sexual Conduct with a

Minor.” Subsection (b)(4) provides: “If (A) the offense

involved the commission of a sex act or sexual contact; or

(B) subsection (a)(3) or (a)(4) applies and the offense

involved a commercial sex act, increase by 2 levels.” 

(Emphasis added.) Case law makes clear that “commission

of a sex act or sexual contact” is not an element of a
10 UNITED STATES V. HORNBUCKLE

conviction under 18 U.S.C. § 1591. Thus, applying

subsection (b)(4)(A) did not constitute double counting.

6

In United States v. Brooks, two appellants challenged the

sufficiency of the evidence for their sex trafficking

convictions under 18 U.S.C. § 1591(a). 610 F.3d 1186,

1196–97 (9th Cir. 2010). Even though one of the victims

never actually engaged in a sex act, we held that there was

sufficient evidence to support the convictions because “the

men had plans for [that victim] to be caused to engage in

prostitution in the future.” Id. at 1197. We clarified that a

conviction for sex trafficking of minors under 18 U.S.C.

§ 1591 does not require that the victim actually commit a sex

act:

N.K. was not in fact caused to engage in

prostitution. The jury, however, could infer

that N.K. did not engage in such acts simply

because she still was very affected by the

drugs she took in Phoenix. Further, as we

recently explained in another § 1591(a)

appeal,

[w]hen an act of Congress requires knowledge

of a future action, it does not require

knowledge in the sense of certainty as to a

6 The Hornbuckles correctly point out that in 2007, the Sentencing

Commission clarified that subsection (b)(4)(B) “does not apply if the

defendant is convicted under 18 U.S.C. § 1591” because such a conviction

“necessarily involves a commercial sex act.” But subsections (b)(4)(A)

and (b)(4)(B) of this enhancement are independent provisions connected

by the disjunctive “or.” The Sentencing Commission said nothing about

subsection (b)(4)(A), under which the district court applied the

enhancement here.
UNITED STATES V. HORNBUCKLE 11

future act. What the statute requires is that

the defendant know in the sense of being

aware of an established modus operandi that

will in the future coerce a prostitute to engage

in prostitution.

United States v. Todd, 584 F.3d 788, 792 (9th

Cir. 2009). This standard is satisfied here

even though N.K. did not ultimately engage in

any acts of prostitution.

Id. at 1197 n.4 (emphasis added).

Our sister circuits agree. In United States v. Willoughby,

the Sixth Circuit rejected the same argument the Hornbuckles

make here:

Willoughby argues that his § 1591(a)

conviction already took this aspect of his

conduct into account, because in his view the

commission of a sex act was an element of his

offense. But every circuit to have reached the

issue disagrees with him. The relevant

language in § 1591(a) requires that the

defendant knowingly take certain

actions—recruiting, transporting, or enticing,

among others—knowing that the victim “will

be caused to engage in a commercial sex act.”

18 U.S.C. § 1591(a). And “[t]he future verb

tense of the phrase ‘will be caused’—which

precedes ‘to engage in a commercial sex

act’—indicates that a sex act does not have to

occur to satisfy the elements of the child-sextrafficking offense. To conclude otherwise
12 UNITED STATES V. HORNBUCKLE

erases the meaning of ‘will be’ from the

statutory text.” United States v. GarciaGonzalez, 714 F.3d 306, 312 (5th Cir. 2013). 

Willoughby’s offense was complete when he

acted with the requisite knowledge—when he

dropped SW off at Tusin’s residence, for

example—and not at the moment of

penetration.

742 F.3d 229, 241 (6th Cir. 2014) (emphasis added) (citing

United States v. Jungers, 702 F.3d 1066, 1073–74 (8th Cir.

2013); Brooks, 610 F.3d at 1197 n.4); see also United States

v. Anderson, 560 F.3d 275, 283 (5th Cir. 2009) (holding that

enhancement for commission of sex acts did not constitute

double counting of 18 U.S.C. § 1591 conviction). Just as in

Willoughby and Anderson, applying U.S.S.G.

§ 2G1.3(b)(4)(A) here was not double counting because

“commission of a sex act or sexual contact” is not an element

of the Hornbuckles’ convictions for sex trafficking of

children under 18 U.S.C. § 1591.

II. The district court properly applied U.S.S.G.

§ 2G1.3(b)(2)(B).

A. The record supports the district court’s finding of

undue influence for all three minors.

U.S.S.G. § 2G1.3(b)(2)(B) provides: “If . . . a participant

otherwise unduly influenced a minor to engage in prohibited

sexual conduct, increase by 2 levels.” The commentary to

this enhancement advises: “In determining whether

subsection (b)(2)(B) applies, the court should closelyconsider

the facts of the case to determine whether a participant’s

influence over the minor compromised the voluntariness of
UNITED STATES V. HORNBUCKLE 13

the minor’s behavior. The voluntariness of the minor’s

behavior may be compromised without prohibited sexual

conduct occurring.” U.S. Sentencing Guidelines Manual

§ 2G1.3 cmt. n.3(B) (2014). Because the record easily

supports the district court’s finding of undue influence for all

three minor victims, the application of this enhancement was

proper under both de novo and abuse of discretion review.

The Hornbuckles argue that the district court found undue

influence because minors are incapable of consenting to sex

as a matter of law, and that under this faulty reasoning, the

undue influence enhancement will always apply when a

minor is caused to engage in prostitution. This claim

misrepresents the record. Although the district court did

make a passing analogy to statutory rape, that analogy was

not the basis for the court’s undue influence finding. The

district court made its finding after conducting an evidentiary

hearing and carefully considering the evidence of the

Hornbuckles’ violence, intimidation, and control:

I want the record to reflect that although there

were pleas, there was a . . . rather extensive

and detailed evidentiary hearing that this

Court sat through, including the videotape that

was alluded to . . . , and there were very

compelling witnesses who testified during the

course of that evidentiary hearing.

The one thing that I will say, which will

apply to both Tamrell Hornbuckle and

Tynisha Hornbuckle, is that this was an

extremely involved and, to a certain extent,

complex organization that preyed upon not

just young girls or non-adults, but extremely
14 UNITED STATES V. HORNBUCKLE

young, going as far as 13 years old, and that’s

an extremely troubling situation. It did

involve coercion. It did involve physical

altercations. It involved the use of money. It

involved a lot of different things that were

here.

The record contains abundant evidence of undue

influence. At the evidentiary hearing, both the adult

prostitute and A.He. testified extensively to Tynisha’s

violence and anger. A.He. stated that she felt she had no

options because she had nowhere to go, and that she was

terrified of Tynisha. Aside from the evidence of violence,

A.He. also indicated that life was “[v]ery stressful,” the

“whole family pressur[ed]” the minors, and not working was

never an option.

There is ample evidence that Tynisha forced all three

victims to work when they did not want to and controlled

every aspect of the minors’ lives, including time and place of

work, choice of clothing, and access to money and food. The

Government’s expert testified that in the prostitution world,

pimps maintain control by guarding access to money, shelter,

food, clothing, and drugs. He also stated that although often

only “one girl is the main victim of the violence, . . . the other

girls see it.” This is an effective method of controlling the

prostitutes who witness the violence. The techniques are

particularly effective for “underage girls [because] it’s very

difficult for these girls to get away and leave.”

We further note that the record supports the finding of

undue influence for both Tynisha and Tamrell. Although

there is more evidence of Tynisha’s violence, there is also

evidence of Tamrell abusing the minors and pressuring them
UNITED STATES V. HORNBUCKLE 15

to work. However, the Sentencing Guidelines allow

enhancements to apply “in the case of a jointly undertaken

criminal activity . . . , [to] all reasonably foreseeable acts and

omissions of others in furtherance of the jointly undertaken

criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). Tamrell

worked with Tynisha to prostitute the victims and could have

reasonably foreseen Tynisha’s acts of undue influence. 

Further, the record contains evidence that Tamrell exerted

undue influence on the minors herself. The district court

therefore properly applied U.S.S.G. § 2G1.3(b)(2)(B) to her

sentence.

B. Evidence of the minors’ willingness does not

compel reversal of the district court’s finding.

The Hornbuckles argue that the district court wrongly

found undue influence because all three minors had

previously engaged in prostitution voluntarily. In the

Hornbuckles’ view, this history proves they did not unduly

influence the victims. We reject this argument as a matter of

law and join several other circuits in holding that where the

record otherwise supports a district court’s factual finding of

undue influence, evidence of the minor victim’s willingness

is insufficient to compel reversal.

Our circuit does not currently have controlling case law

on the issue, but five other circuits have decided the question. 

These circuits have unanimously concluded that evidence of

a victim’s willingness is insufficient to compel a finding of

no undue influence. See United States v. Reid, 751 F.3d 763,

768 (6th Cir. 2014) (“It makes no difference that J.H. ‘was

not handcuffed to a bed’ or ‘kidnapped off the street.’ The

undue-influence enhancement ‘is not limited to force, fraud,

or coercion.’ It also reaches ‘manipulating’ and ‘preying
16 UNITED STATES V. HORNBUCKLE

upon’ a vulnerable victim—just what we have here.” (internal

citations omitted)); United States v. Watkins, 667 F.3d 254,

265 (2d Cir. 2012) (affirming finding of undue influence, and

observing “that [the victim] actively was pursuing a

relationship with [the defendant] does not require a different

conclusion”); United States v. Hagen, 641 F.3d 268, 271 (8th

Cir. 2011) (holding finding not clearly erroneous, despite

claim that “victim traveled freely with defendant”); United

States v. Miller, 601 F.3d 734, 737–38 (7th Cir. 2010)

(evidence of victim’s willingness did not render finding of

undue influence clearly erroneous); United States v. Lay,

583 F.3d 436, 439 (6th Cir. 2009) (holding that the finding of

undue influence was not clearlyerroneous, and observing that

evidence of minor’s willingness was “consistent with a victim

who has been influenced by a sexual predator”); Anderson,

560 F.3d at 283 (finding of undue influence not clearly

erroneous even though victims began engaging in prostitution

before they met defendant because evidence showed that the

victims were afraid to leave him).

The views of these other circuits are entirely consistent

with our decision in Brooks, where we touched upon a related

issue. Brooks involved two underage girls who ran away

from a residential treatment center. 610 F.3d at 1191. They

eventually met Brooks, a pimp. Id. at 1192. Knowing that

they were minors, Brooks enlisted the girls to work for him

as prostitutes. Id. Brooks was convicted for sex trafficking

of minors under 18 U.S.C. § 1591. Id. at 1192–93. On

appeal, Brooks challenged his sentence, arguing that the

district court erred by applying the U.S.S.G. § 2G1.3(b)(2)(B)

enhancement because there was evidence the girls had

previously engaged in noncommercial sex. Id. at 1199. We

rejected that argument:
UNITED STATES V. HORNBUCKLE 17

“[T]he victim’s willingness to engage in

sexual activity is irrelevant, in much the same

way that a minor’s consent to sexual activity

does not mitigate the offense of statutory rape

or child molestation.” Nothing in the record

suggests that the girls were inclined to engage

in commercial sex acts before they met

Brooks and Fields, and counsel’s suggestion

at oral argument that the girls were “giving it

away” is not well taken.

. . . [T]he record supports the conclusion

that both Fields and Brooks unduly influenced

the girls to engage in prostitution.

Id. (alteration and citation omitted) (first emphasis added)

(quoting United States v. Dhingra, 371 F.3d 557, 567–68

(9th Cir. 2004)). We emphasized that there was evidence of

undue influence because “the girls had no money, no job and,

as runaways, nowhere to live.” Id.

The Hornbuckles correctly argue that Brooks is

distinguishable because “[n]either of the girls had engaged in

prostitution before meeting Brooks.” See id. (emphasis

added). We agree that Brooks is not directly on point. It

established that the victims’ prior voluntary engagement in

noncommercial sex did not preclude a finding that defendants

unduly influenced them to engage in commercial sex. Id.

Here, the question is whether the minors’ prior voluntary

engagement in commercial sex precluded a finding that the

Hornbuckles unduly influenced them to engage in

commercial sex. Our court has yet to address this question. 

Having considered the parties’ arguments, we now hold that

a minor’s prior, voluntary acts of prostitution do not preclude
18 UNITED STATES V. HORNBUCKLE

a finding that she or he was unduly influenced to engage in

subsequent acts of prostitution. We emphasize that the

finding of undue influence is a fact-based inquiry in which we

accord great deference to the district court.

Here, all three victims engaged in prostitution before

meeting the Hornbuckles, and some of them at least began

working for the Hornbuckles voluntarily. But as in Anderson,

this does not change the fact that once the victims began

working for the Hornbuckles, they were forced to meet daily

quotas, subjected to ongoing physical and verbal abuse,

pressured to work when they did not want to, and unable to

leave due to fear and lack of resources. See 560 F.3d at 283. 

The homeless victims in this case depended on the

Hornbuckles for food, clothing, money, and housing. See

Brooks, 610 F.3d at 1199 (“[T]he girls had no money, no job

and, as runaways, nowhere to live.”). This record supports

the district court’s conclusion that the Hornbuckles unduly

influenced the victims to engage in prostitution.7 The

victims’ previous involvement in prostitution does not

overcome the record’s abundant showing of undue influence,

 

7 The Hornbuckles’ reliance on United States v. Myers, 481 F.3d 1107

(8th Cir. 2007), is unavailing. In Myers, a 15-year-old victim fell in love

with the 37-year-old defendant and ran away with him; the two engaged

in numerous sex acts together. Id. at 1109. The victim testified that she

engaged in the sex acts voluntarily. Id. at 1109, 1112. Myers is

distinguishable because the district court found no undue influence. Id. at

1112. Reviewing for clear error, the Eighth Circuit affirmed the district

court’s factual finding because it was supported by the record. Id. Myers

is entirely consistent with our holding. As Lay explains, the standard of

review makes a difference: “Where evidence could be construed both for

and against an argument that the minor was not influenced, the appellate

court deferred to the district court’s factual findings on the question.” 

583 F.3d at 446 (discussing Myers).
UNITED STATES V. HORNBUCKLE 19

and it does not justify reversal under the clear error standard

of review. See Lay, 583 F.3d at 446.

CONCLUSION

We AFFIRM the sentences imposed by the district court.

AFFIRMED.