F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

T Y N I S H A M A R

I E H O R N B U C K L E , AKA My Nookie, AKA Nene, AKA No F eeling s, Defendant-Appellant

. N o. 12-10541

D.C. No. 2:11-cr-00327- MCE-1

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

T A M R E L L R E N A H O R N B U C K L E , Defendant-Appellant

. N o. 12-10615

D.C. No. 2:11-cr-00327- MCE-2

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California Morrison C. Eng land, J r., Chief District J u d g e, Presiding

Arg ued and Submitted March 10, 2015—San F rancisco, California

F iled April 21, 2015U N I T E D S T A T E S V

. H O R N B U C K L E 2

B efore: W illiam A. F letcher, Andre M. Davis *

,

and Morg an Christen, Circuit J udg es.

Opinion by J udg e Christen

SUMMARY * *

Crim inal Law

The panel affirmed sentences for sex trafficking o f children under 18 U.S.C. § 1591.

The panel held that application o f e n hancement under U.S.S.G. § 2G1.3(b)(4)(A) was not double counting because “commission of a sex act or sex ual 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. § 2 G1.3(b)(2)(B ) for undue influence. The panel held that the record supports the district court’s finding of undue influence for al l t h ree minors. The panel joined several other c ircuit s in h olding that where the record otherwise supports a district court’s factual finding o f undue influence, evidence of the minor victim’s willing n ess is insufficient to compel reversal of the dist r i c t c o urt’s finding

.

* T he H o n o r a b le A n d re M. Dav is, S en i o r Circu it J u d g e f or th e U .S. Co u rt o f A p peals f o r th e Fo u rth Circu i t, sittin g b y d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. H O R N B U C K L E 3

COUNSEL

B ruce L ocke (arg

u ed), Moss & L ocke, S acramento, C a l i f o rn i a , f o r D e f en d a n t

- A p p e l l a n t T y

n i s h a M a r i e Hornbuckle.

Erin J olene Radekin (arg ue d )

, L aw Office of Erin Radekin, Sacramento, California; Hay es H. Gable, I I I
, L aw Of f ice o f Hay es H. G abl e , I I I
, Sacramento, California, for D efendantAppellant Tamrell Rena Hornbuckle.

Camil A

. Skipper (arg

ued), Assistant United States Attorney
, Appellate Chief; B enjamin B

. W ag ner, U nited States Attorney ; Ky le Reardon and Matthew C. Steg man, Assistant United States Attorney s, E a stern District of California, Sacramento, California, for Plaintiff-Appellee.

OP INION

CHRI STEN, Circuit J udg e:

Ty nisha and Tamrell H ornbuckle are sisters who e ach pleaded g u ilty to two counts of sex trafficking of children under 1 8 U.S.C. § 1591. They challeng e t heir sentences in these consolidated appeals. T h e d istrict court held an

ex tensive evidentiary hearing a nd sent e n c e d Ty

nisha to 188 months and Tamrell to 151 months in prison. 1 T h e sentences included enhance ments under U.S.S.G. § 2G1.3(b)(4)(A), because sex acts were actually committed by the minors, a nd under U.S.S.G. § 2G1.3(b)(2)(B ), f o r undue influence. The

1 Fo r clarity

, w e u se f

i rst n am es to id en tif

y th e Ho rn b u ck le f

am ily

m em b ers.U N I T E D S T A T E S V

. H O R N B U C K L E 4

sisters a ppeal the application o f both e n h a n c e ments. W e affirm.

BACK G ROUND

I. F acts

Fr o m 2 008 to 2011, Ty nisha and Tamrell ran a prostitution ring with the he l p o f their sibling s L atrelle a nd Ch e rrelle Hornbuckle and their mother Tammy B rown. Ty nisha a nd Tamrell, w ho were then in their twenties, acted

as pimps who made m o n ey off adult and child prostitutes. These appeals arise from their interactions with three underag e v i c tims: P.H., who was 13 when she started working for the Hornbuckles; A.Hi., who was approx imately 15 o r 1 6; and A.He., who was 17. T y nisha p rimarily
manag ed the underag e p rostitutes while T amrell manag e d the adults, but on occasion Tamrell also arrang ed “dates” f or the minors. The three homeless minors who are the subject o f this case all lived with the H ornbuckles at one point, and they often performed sex a cts for c lients at L atrelle and Cherrelle’s home and in Tammy ’s g arag e.

P.H., A.Hi., and A .He. g ave a ll o f their earning s to Ty nisha and Tamrell, 2 who imposed d aily quotas o n them. A.He. had sex with ten to fifteen clients a day

. W h e never the victims said they did not want to work, Ty nisha told them to “[ j] ust do a few” because they had “bills to pay .” T h e g irls
g enerally g ot three to four hours of sleep per day because they were “[ a] lway s working .”

2 A .H e. in itially sp lit th e m o n ey ev en ly w ith T y n ish a, b u t th at

arran g em en t lasted o n ly a f ew day s b e fo r e T y n ish a said t h at it w as

“ s im pler” f o r h er to tak e all th e earn i n g s.U N I T E D S T A T E S V

. H O R N B U C K L E 5

Ty nisha hit, beat, choked, and kicked A.Hi. and P.H. for “[ a] ny thing an d every

thing ,” such as “acting out of line” o r dressing too slowly for work. P.H. in p articular would g et “[ a ] n y where from a slap to a f

ull-on beating ” if she did not bring back e noug h money f ro m a date. Tamrell also “smacked” and beat P.H. T he sisters had a practice of driving
to a d ead-end street and having o ther g irls hold the car doors shut w hile they y elled at, and “severely beat,” A.Hi. and P.H. Althoug h Ty

nisha never actually hit A.He., she threatened to “kill,” “beat,” and “punch” h er. On one occasio n , T y n i sha chased A.He. wi t h a steak k nife, p romising to “beat” a nd “stab” her.

On April 1, 2011, a confidential source informed the F B I that the three victims were w orking for the H o r n b u ckles a s prostitutes. Two u ndercover F B I ag ents se t up a date with P.H., who was arrested a fter she a g reed to the s ex acts a nd accepted money to p erform them. Tamrell arra n ge d the transaction for P.H. and drove her to t h e motel. The F B I subsequently q

uestioned Tamrell, Cherrelle

, T y nisha, a nd A.He. A.He. corroborated the informatio n s u p p lied by the confidential source. L ater, an u ndercover ag ent set up a date with A.Hi. and a

rrested her after she acce p t e d p a y ment to perform a sex act.

After w itnessing Ty

nisha, Tamrell, and L atrelle beat P.H. vicious ly once more, A .He. ag r eed to assist in the F B I ’s investig ation. I n May 2011, she wore a wire a n d r e c o r d ed Tamrell (but not Ty

nisha) discussing t he scope of the prostitution ring

, the violence inflicted on the victims, and the F B I investig ation g enerally

. The F B I also set up a fake date for A.He., from which Tamrell pocketed the earning s.U N I T E D S T A T E S V

. H O R N B U C K L E 6

I n J uly 2011, Ty

nisha and Tamrell were indic t e d a nd arrested on thirteen counts, ten of w h i c h were for sex trafficking o f children under 18 U.S.C. § 15 9 1

. 3 They both pleaded g uilty to the two counts that pertained to the s e x trafficking o f A.He. and A.Hi. I n ex chang e, the Government dropped the other charg es.

II. Sentencing P roceedings

The Presentence R eports (“PSRs”) identified advisory
g uidelines range s o f 151 to 188 months’ imprisonment for

3 1 8 U.S.C. § 1 59 1 (a) p ro v i d es:

W h oev er k n o w in g ly

—
(1 ) in o r af

f ectin g in terstate o r f

o reig n co m m erce,

o r w ith in th e s pecial m aritim e an d territo ria l j u risd i ctio n o f th e U n ited Sta t e s , recru its, en tices, h arb o rs, tran sp o rts, p ro v id es, o b tain s, o r m ain tain s b y an y m ean s a p erso n ; o r

(2 ) ben ef its, f in an cially o r b y receiv in g an y th in g of

v alu e, f ro m p articip atio n in a v en tu re w h ich h as

en g ag ed in an act d e s crib ed in v io latio n of
p arag rap h

(1 ),

k n o w i n g , o r in reck less d isreg ard o f th e f act, th at m ean s

o f f o rce, th reats o f f

o rce, f rau d

, co ercio n d escri b e d i n

su bsectio n (e)(2 ), o r an y co m b i n atio n o f su ch m ean s

w ill b e u sed to cau se th e perso n t o en g ag e i n a

co m m ercial sex act, o r th at th e p erso n h as n o t attain ed
t h e ag e o f 1 8 y ears an d w ill b e cau sed to en g ag e in a

co m m ercial sex act, sh all be p u n ish e d as p ro v id ed in

su bsectio n (b ).U N I T E D S T A T E S V

. H O R N B U C K L E 7

Tamrell a nd 188 to 235 months’ imprisonment for Ty nisha. 4 These rang e s included: ( 1) a two-level enhan c e ment under U.S.S.G. § 2G1.3(b)(2)(B ) for undue influence as applied to t w o of the minors; and (2) a two-level enhancement u n d e r U.S.S.G. § 2 G1.3(b)(4)(A) for actual commission of sex acts by all three minors. The H o rn b u ckles objected to the two enhancements. They arg ued in the district cour t , a s t hey do

on appeal, that apply ing § 2G1.2(b)(2)(B ) w as improper because they did not unduly influence the minors t o eng ag e in prostitution, and that apply ing § 2G1.3(b)(4)(A) constituted double counting

.

F ollowing the parties ’ arg u ments about the applicability of these enhancements, the court heard testimony from three witnesses: an adult prostitute who w o r k ed for the Hornbuckles, the Government’s ex pert on prostitution culture, and A.He.

The d istrict court ruled that the § 2 G 1

. 3 (b)(2)(B ) enhancement was a

ppropriate because t h e Hornbuckles

ex e r ted undue influence over the minors t o encourag e them
to eng a g e in prostitution. Althoug h the PSRs recommended the enhancement only for A.He. and P.H., the district court

4 W e d en y T y

n ish a’ s m o tio n to strik e th e p ag es o f th e Go v ern m en t ’s b rief th at recite f

acts d etailed in th e P S Rs, w h ich sh e claim s are n o t p art

o f th e reco rd

. D u r i n g t

h e len g t h y ev id en tiary h earin g , th e d istrict co u rt

ex p ressly a d o p ted th e P SRs t w ice an d d eterm i n ed th eir f in din g s to b e

co rrect. W e h av e rep eated ly h eld t h at su ch ad o ptio n is su f

f icien t to m ak e P SR f in d i n g s p art o f t

h e reco rd

. See Un ited Sta tes v. McCla in
, 3 0 F.3 d 1 1 7 2
, 1 17 4 (9 th Cir. 1 9 94 ); Un ited S ta tes v. Rig b y , 8 9 6 F.2 d 3 9 2
, 3 9 4 (9 th Cir. 1 9 9 0 ).U N I T E D S T A T E S V

. H O R N B U C K L E 8

emphasiz ed that it found undu e 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 dou ble counting

. T h e court concluded that a conviction under 18 U.S.C. § 1591 does not r eq u i r e commission of a sex act because it can be based on an ex chang e of money in anticipation of the sex act. Th e c o urt adopted the PSRs’ recommendations and imposed sentences of 188 months for Ty nisha and 151 months for Tamrell.

T he Hornbuckles timely appealed their sentences. W e have jurisdiction under 28 U.S.C. § 1291.

STANDARD OF REVIEW

“W e review the district court’s interpretatio n o f the Sentencing G uidelines de novo

. . . and the dis t ri ct court’s factual finding s for clear error.” U ni t e d States v. Swank

, 676 F .3d 919, 921 (9th Cir. 2012) (i n t e r nal quotation marks omitted). “W e have previously noted an intracircuit conflict

as to whether the standard o f r e v i e w f o r application of the Guidelines to the facts is de novo or abuse of discretion.” Id.
at 921–22. W e need not r esolve that conflict here because a s in o ther cases, “the choice of standard

. . . does not affect the

o u t c o m e of this case.” S ee id. at 922; U

nited States v. Y

i p ,

5 T h e P S R s d i d n ot reco m m en d th e u n d u e in f

lu en ce en h an cem en t f

or A .Hi. b ecau se sh e su

b m itted a state m en t claim i n g th at th e Ho rn b u ck les d id n o t in f

lu en ce h er to en g ag e in p ro stitu tio n

. B u t ev i d en ce ad m itted at th e sen ten cin g h earin g estab lish ed th at A .Hi. w as b eaten b y T y n ish a, an d th at sh e g av e h er earn in g s to th e Ho rn b u ck l es.U N I T E D S T A T E S V

. H O R N B U C K L E 9

592 F .3d 1035, 1038 (9th Cir. 2 010); United States v. Rivera
, 527 F .3d 891, 908 (9th Cir. 2008).

ANALYSIS

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

. § 2G 1.3(b)(4)(A).

I mpermissible double c ounting o c c urs when a court applies an enhancement f or a necessary element of the underly ing conviction. See United States v. Smith , 719 F .3d 1120, 1123–25 (9th Cir. 2013). The Hornbuckles arg ue that
t h e d i s t r i c t c o u r t i m p r o p e r l y a p p l i e d U

. S

. S

. G

. § 2G1.3(b)(4)(A) because a conviction for sex trafficking o f minors requires that the minors a ctually eng ag ed in sex acts. I f t h a t h a d been the c a se, we ag ree the district court would have erred by apply ing this enhancement. B ut the district
court did not double c ount this f actor, and i t s decision to apply the enhancement was proper under e i t h e r de novo o r abuse of discretion review.

U.S.S.G. § 2G1.3(b) provides for “ S p ecific Offense Characteristics” relating to crimes of “Promoting a Commercial Sex Act or Prohib i t ed Sex ual Conduct with a Minor.” Subsection (b)(4) provides: “I f (A ) t h e o ffense involved the commission of a sex a ct or sex ual contact; or (B ) subsection (a)(3) or (a ) ( 4 ) applies and the offense involved a commercial sex act , i n crease b y 2 levels.” (Emphasis add e d.) Case law makes clear that “commission of a sex a ct or s e x u a l contact” is not an element of aU N I T E D S T A T E S V

. H O R N B U C K L E 10

conviction u nder 1 8 U

. S

. C. § 1591. Thus, a pply ing subsection (b)(4)(A) did not constitute double counting

. 6

I n United States v. B rooks

, two appellants challeng ed the sufficiency of the evidence for th e ir sex trafficking conviction s u n d er 18 U.S.C. § 1 591(a). 610 F .3d 1186, 119 6 –97 (9th Cir. 2010). Even thoug h one of the v ictims

never actually e n ga ge d in a sex act, w e held that there was sufficient ev i d ence to support the convictions because “the

men had plans for [ that victi m ] t o b e caused to eng ag e in prostitution in the future.” I d. a t 1197. W e clarified that a conviction for sex t r a f

ficking of minors under 18 U .S.C. § 1591 d oes not require that the victim actually commit a sex act:

N.K. was not in fact c a u s e d to eng ag e in prostitution. The jury

, ho w e v e r, could infer that N.K. did not eng ag e in such acts si m ply because she still w a s very affected by the drug s s h e t o ok in Phoenix

. F urther, as we recently ex plained in another § 15 91(a) appeal,

[ w] hen an act of Cong ress requires knowledg e of a future a ction, it doe s n o t require knowle dg e in the sense of certainty a s to a

6 T h e Ho rn b u ck les co rrectly p oin t o u t th at in 2 0 0 7
, th e Sen ten ci n g Co m m i ssio n clarif

ied th at su b s e ctio n (b )(4 )(B ) “ d o es n ot ap p ly if th e d ef en d an t is co n

v icted u n d er 1 8 U.S.C. § 1 5 9 1 ” becau se su ch a co n v ictio n

“ n ecessarily in v o l v es a co m m ercial sex act.” B u t su

b sectio n s (b )(4 )(A )

an d (b )(4 )(B ) o f t

h is en h an cem en t are i n d ep en d en t p ro v isio n s co n n ected b y th e d isj u n ctiv e “ o r.” T h e Sen ten cin g Co m m issio n said n o th in g ab o u t

s ub sectio n (b )(4 )(A ), u n der w h ich th e d istrict co u rt ap plie d t h e

en h an cem en t h ere.U N I T E D S T A T E S V

. H O R N B U C K L E 11

f u ture act. W

hat the statute requires is tha t the defendant know in the sense of being

aware of an established modus o perandi that will in the future coerce a prostitute to engage in prostitution.

United States v. Todd

, 584 F .3d 788, 792 (9th Cir. 2009). T h is standard is sati sfied here

even thoug h N.K. did not ultimately eng ag e in
any acts of prostitution.

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

Our sister circuits ag r ee. I n United States v. W illoughby

, the Six th Circuit rejected the same a r g u ment the Hornbuckles make here:

W ill o u ghby arg ues that his § 1591(a) conviction alread y t ook this aspect of his conduct into account, because in his view the commission of a sex a c t was an element o f his offense. But every c ircuit to have reached the issue disagrees with him. The r elevant lang uag e in § 1 591(a) requir e s that the d e f e n d a n t k n o w i n g l y t a k e c e r t a i n actions—recruiting

, transporting

, or e nticing

, among others—knowing that the victim “will be caused to eng ag e in a commercial sex act.” 18 U.S.C. § 1591(a). And “[ t] he future verb
tense of the p hrase ‘ w ill be caused’—which precedes ‘to e n ga g e in a c o mmercial sex act’— indicates that a sex act does not have tooccur to satisfy the elements of the child-sextrafficking offense. T o conclude otherwiseU N I T E D S T A T E S V

. H O R N B U C K L E 12

e ra ses the meaning of ‘will be’ from t h e statutory tex t.” United States v. G arciaGonzalez , 714 F

. 3d 306, 312 (5th Cir. 2013). W illoughby’s offense was complete when he acted with the requisite knowledge—when he dropped SW o

f f at Tusin’s residence, for

e xa mp l e—and not at the moment o f penetration.

742 F .3d 229, 241 (6th Cir. 2014) (emphasis adde d) (citing United States v. Jungers
, 702 F .3d 1 066, 1073–7 4 ( 8 t h Cir. 2013); Brooks

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

v. A nderson

, 5 60 F

. 3d 275, 283 (5th Cir. 2009) (holding that enhancement for commission of sex acts did not constitute double c ounting of 18 U.S.C. § 1591 conviction). J ust as in W i l l o u g h b y a n d A n d e r s o n , a p p l y i n g U

. S

. S

. G

. § 2G1.3(b)(4)(A) h ere was n ot double counting because “commission of a sex act or sex ual contact” is not an element of the Hornbuckles’ convictions for sex traffic k i n g o f children under 18 U.S.C. § 1591.

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

. § 2G 1.3(b)(2)(B).

A. The r ecord supports the district court’s f inding of undue inf

luence f or all three m inors.

U.S.S.G. § 2G1.3(b)(2)(B ) provides: “I f

. . . a participant otherwise unduly influenced a minor to eng ag e in p rohibited

sex ual conduct, increase by 2 levels.” The comme n tary to this enhance m en t a dvises: “I n determining whether

s u b s e c tion (b)(2)(B ) applies, the c o u rt should closely c o n s i d e r the facts of the case to d e t ermine whether a participant’s i n fluence over the minor c ompromised the voluntarines s o fU N I T E D S T A T E S V

. H O R N B U C K L E 13

the min o r ’ s behavior. The voluntariness of the minor’s behavio r may be compromised without prohibited sex ual conduct occurring .” U .S. Sentencing Guidel i n e s Manual § 2G1.3 c mt. n.3(B ) (2014). B ecause the record ea s ily supports the district court’s finding of undue influence for all three minor victims, the a pplication of this enhancement was proper under both de novo and abuse of discretion review.

The Hornbuckles arg ue that the district court f ound undue influence because minors are incapable of consenting to sex

as a matter of law, and that under this faulty re a s o n i ng , the undue influence e nhancement will alway s apply when a minor i s caused to eng ag e in prostitution. This claim misrepresents the record. Althoug h the dist r i c t court did make a passing analog y to statutory rape, t h a t analog y was not the b asis for the court’s undue influence findi n g

. The district c ourt made its finding a fter conducting an evidentiary hearing and carefully considering the evidenc e o f the Hornbuckles’ violence, intimidation, and control:

I want the record to reflect that althoug h there

were pleas, there was a

. . . rather ex tensive and detailed ev identiary hearing that this Court sat throug h, includi ng the videotape that

was alluded to

. . . , and there we r e very compelling witnesses who testified during the course of that evidentiary hearing

.

The one t h i n g that I will say , which will apply to b oth Tamrell Hornbu c k l e a nd Ty nisha Hornbu c k le, is that this was an

ex tremely involved a

nd

, t o a certain ex tent, complex org a

niz ation that prey ed u

pon not ju s t y oung g irls or non-adults, but ex tremelyU N I T E D S T A T E S V

. H O R N B U C K L E 14

y oung , g oing as far as 13 y ears old, and that’s

an ex tremely troubling situation. I t did involve c oercion. I t did i nvolve phy sical altercations. I t involved the use of money

. I t involved a lot of different thing s that were here.

T h e record contains abundant evidence of und u e influence. At the evidentiary hearing

, both the adult prostitute and A.He. testified e x tensively to Ty nisha’s violence and ang er. A.He. stated that she felt she had no options b e c ause she had nowhere to g o, and that she was t e r r i f ied of T y nisha. Aside from the evidence of violence, A.He. also indicated that life was “[ v ] ery s t r essful,” the “whole family pressur[ ed] ” the minors, and not working was never an option.

There is ample evidence that T y nisha forced a l l three victims to work when they did not want to and controlled
every aspect of the minors’ lives, including time and place o f work, choice of clothing

, and access to money and food. The Government’s ex pert testified tha t i n the prostitution world, pimps maintain control by g u arding access to money , shelter, food, clothing

, and drug s. He also stated that althoug h often only “ one g irl is the main victim of the violence,

. . . the other
g irls see it.” This is an effective method of controlling the prostitutes who witness the violence. The tec h n iques a re particularly effective for “underag e g irls [ b e c a u se] it’s very difficult for these g irls to g et away and leave.”

W e further note that the record supports the fi n d i ng o f

u n d ue influence for both Ty nisha a n d Tamrell. Altho u gh
t h e r e is more evidence of Ty nisha’s violence, there is a lso evidence of T amrell a

b u sing the minors and pressuring themU N I T E D S T A T E S V

. H O R N B U C K L E 15

to work. However
, t h e Sentencing Guidelines allow

e n h a ncements to apply “in the case of a jointly u ndertak e n criminal activity

. . . , [ to] all reasonably foreseeable acts a nd

om i ssions of others in furtherance of the jointly undertaken

c r iminal activity .” U.S.S.G. § 1B 1.3(a)(1)(B ). Tamr e l l worked with Ty

nisha to prostitute the victims and could have reasonably f

o rese e n T y

nisha’s acts o f undue influence. F urther, the record contains evidence that Tamrell e x erted 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. E v i d e nce of the m inors’ w illingness does not

com pel reversal of

the district court’s f

inding.

The H ornbuckles arg ue that the d istrict court wrong ly found u n d u e influence because all three minors h ad previously e ng ag ed in prostitution vo l u n t a rily

. I n the Hornbuckles’ view, this history proves t h e y did n ot unduly influence the victims. W e reject this arg ument as a matter o f law and join several other circuits in h o l d i n g that where the record otherwise supports a district court’s factual finding o f undue influence, evidence of the minor victim’s willing n ess is insufficient to compel reversal.

Our c i r cu i t does not c u rrently have controlling case law

on the issue, but five other circuits have decided the question. These circuits have unanimously concluded that evidence o f

a victim’s willing ness is insufficient to com p e l a finding o f

no undue influence. See U nited S tates v. Reid

, 751 F .3d 763, 768 (6 t h C i r

. 2 014) ( “I t makes no d ifference that J .H. ‘was
not handcuffed to a b ed’ or ‘kidnapped off t h e s treet.’ The undue-influence enhancement ‘is not limited to force, fraud,

or coercion.’ I t also r e ac h e s ‘manipulating ’ and ‘prey ingU N I T E D S T A T E S V

. H O R N B U C K L E 16

upon’ a vulnerable victim—just what we have here.” (internal citations o m i t t e d ) ); U

nited S tates v. W atkins

, 667 F .3d 254, 265 (2d Cir. 2012) (affirming finding of undue influence, a nd ob s erving “that [ the victim] actively was pursuing a relationship w ith [ the d efendant] does not require a different conclusion”); U

nited States v. H

agen , 641 F .3d 268, 271 (8th Cir. 2011) (holding finding not clearly erroneous, d e s pite claim that “vict i m t r aveled freely with defendant”); United States v. Miller

, 601 F .3d 734, 7 3 7

– 38 (7th Cir. 2 010) (evidence o f victim’s willing n ess did not render finding o f undue influence clearly e rroneous); United S tates v. Lay
, 583 F .3d 436, 439 (6th Cir. 2009) (holding that the finding o f undue influence was not clearly erroneous, and observing that evidence of minor’s willing ness was “ c onsistent w ith a victim who has been influenced b y a sex ua l p redator”); Anderson

, 560 F .3d at 283 (finding of undue influence n ot clearly

erroneous even thoug h victims b eg a n eng ag ing in prostitution before they met defendant because evidence showed that the victims were afraid to leave him).

The views of these other circuits are en t i r ely consistent with our decision in Brooks

, where we touched upon a r elated issue. B rooks involved two u nderag e g irls who ran away from a residential treatment center. 610 F .3d at 1191. They eventually met B rooks, a pimp. I d

. at 1192. Knowing that they were minors, B ro o ks enlisted the g irls to work for him

as prostitutes. Id. B rooks was convicted for sex tr a f f i c king of m i n o r s u nder 18 U.S.C. § 1591. Id. at 1192–93. On appeal, B rooks challeng ed his sentence, arg uing that the district court erred by apply ing the U.S.S.G. § 2G1.3(b)(2)(B ) enhancement because there was evidence t he g irls h ad previously

eng ag ed in noncommercial sex

. I d. at 1199. W e rejected that arg

ument:U N I T E D S T A T E S V

. H O R N B U C K L E 17

“ [T] he victim’s w i llingness to engage in sexual activity is irrelevant, in m uch the same way that a minor’s consent to sexual activity does not mitigate the offense of statutory rape

or child m olestation. ” Nothing in the rec o r d
sug g ests that the g irls were inclined to eng ag e in c o m m ercial sex acts before they met Brooks and F ields, and counsel’s sug g estion at oral arg ument that the g irls were “g iving it
away ” is not well taken.

. . . [ T] he r ecord supports the conclusion that both F ields and B rooks unduly influenced the g irls to eng ag e in prostitution.

Id

. (alteration and citation omitted) ( first emphasis a dded) (quoting United States v. Dhingr a , 371 F .3d 557, 567–68 (9th Cir. 2004)). W e e mphasiz ed that there was evidence of undue influence b ecause “the g irls had no money , no job and,
as runaway s, nowhere to live.” Id.

T h e Hornbuckles correctly arg ue that Brooks i s disting uishable because “[ n] either of the g irls had eng ag ed in prostitution b e fore meeting B rooks.” See id. (emphasis added). We ag ree that B r o o k s i s n ot directly on point. I t established that the victims’ prior voluntary eng ag ement in noncommercial sex did not preclude a finding that defendants unduly inf

l u e n c ed them to eng ag e in commercial sex

. Id. Here, the q

u estion is whether the minors’ prior v o l u n tary eng ag ement in commercial sex p recluded a finding that the Hornbuckles unduly influenced them to eng a g e in commercial sex

. Our court has y e t to addr e ss this question. Having considered the parties’ arg uments, we now hold that

a minor’s prior, voluntary acts of prostitution do not precludeU N I T E D S T A T E S V

. H O R N B U C K L E 18

a finding that she or he was unduly i n fluenced to e ng ag e in subsequent a c t s o f prostitution. W e emphasiz e that the finding of undue influence is a fact-based inquiry in which we accord g r e at deference to the district court.

Here, all t h r e e victims eng ag ed in prostitution before

mee t i n g the Hornbuckles, and some o f them at least began working for the Hornbuckles voluntarily

. B ut as in Anderson

, this does not chang e the fact that once the victims b eg an working for the H ornbuckles, they w ere forced to meet daily
qu o tas, subjected to ong o ing phy sical and verbal abuse, pressured to w ork when they did n ot want to, a nd unable to leave due to fear and lack of resources. See 5 60 F .3d a t 283. The homeless vict i m s in this c ase depended o n the Hornbuckles for food, cloth ing

, money , and housing

. See Brooks

, 610 F .3d at 1 199 (“[ T] he g irls had no money , no job and, as runaway s, nowhere to live.”). T his reco r d s upports the district court’s conclusion that the Horn b uckles unduly influenced the victims to e n g a g e in pr o s t i t ution. 7 The

v i c t ims’ previous involvement in prostitution does not

overcome the record’s abundant showing of undue influence,

7 T h e H o rn b u ck les’ relian ce o n Un ited S t a tes v. Myers , 4 81 F.3 d 1 1 0 7 (8 th C ir. 2 0 0 7 ), is u n av ailin g

. In Myers
, a 1 5

- y ear- o l d v ictim f ell in lo v e

w ith th e 3 7- y ear- old d ef

en d an t an d ran aw ay w ith h im ; th e t w o en g ag ed in n u m ero u s sex acts to g eth er. Id

. at 1 1 0 9

. T h e v ictim testif ied th at sh e

en g ag ed in th e sex acts v o lu n tarily

. Id

. at 1 1 0 9, 1 1 1 2

. Myers is d istin g u ish ab l e becau se th e d istrict co u rt f o u n d n o u n d u e in f

lu en ce. Id

. at 1 1 1 2

. Rev i ew in g f

o r clear erro r, th e Eig h th Circu it af f irm ed th e d ist r i ct

co u rt’ s f actu al f in d in g b ecau s e it w as su

p p orted b y th e reco rd

. Id

. Myers is en tirely co n sisten t w ith o u r h o ld in g

. A s La y ex p lain s , t

h e s tan d ard of

rev iew m ak es a d i f

f eren ce: “ W h ere ev id en ce co u ld b e co n stru ed bo th f or

an d ag ain s t an arg u m en t th at th e m in o r w as n o t in f lu en ced , th e ap p ellate

co u rt d ef erred to th e d i st r i ct co u rt’ s f actu al f in d in g s on th e q u estio n .” 5 8 3 F.3 d at 4 46 (d iscu ssin g M yers ).U N I T E D S T A T E S V

. H O R N B U C K L E 19

and it does not justify

reversal under the clear error standard of review. S

ee Lay , 583 F .3d at 446.

CONCLUSION

W e AF F I RM the sentences imposed by the district court.

AF F IRMED.