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
2

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.
3

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.
4

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 Annapolisarea 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.
5

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 
6

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 
7

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.
8

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 
9

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, 
10

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 
11

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 
12

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 
13

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’
14

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)
15

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”). 
16

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).
17

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 
18

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 crossexamination. 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 
19

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 
20

§ 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, 
21

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 
22

“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, 
23

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 
24

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. AparicioSoria, 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 
25

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). 
26

(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)). 
27

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 
28

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 
29

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.
30

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).
31

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 

 8 The 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.
32

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.
33

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