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In Re: Sealed Case

December 21, 2012

IN RE: SEALED CASE


Appeal from the United States District Court for the District of Columbia (No. 1:09-cr-00213-01)

The opinion of the court was delivered by: Karen Lecraft Henderson, Circuit Judge:

Argued November 8, 2012

Before: SENTELLE, Chief Judge, HENDERSON, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.

After signing a plea agreement, the appellant pleaded guilty to four counts of seX trafficking of children, see 18 U.S.C. § 1591(a)(1). At sentencing the district court imposed a term of imprisonment and also ordered the appellant to pay a total of $3,892,055 in restitution to the four victims. The appellant challenges the restitution order; the government argues, however, that he waived his right to appeal the restitution order. While we conclude the appellant did not waive his right to appeal the restitution order, we reject his merits argument and affirm the district court.

I.

From 2006 through 2009, the appellant prostituted four underage females: S.H., T.S., M.S. and A.L. He prostituted S.H. from approximately March 1, 2008 through August 2008; T.S. from approximately March 13, 2006 through May 15, 2009; M.S. from approximately May 17, 2009 through May 30, 2009; and A.L from approximately May 27, 2009 through May 30, 2009. He did so by transporting each victim from his residence in Temple Hills, Maryland into the District of Columbia, where the four exchanged sex for money.

The government indicted the appellant on September 1, 2009. On December 11, 2009, he signed a ten-page plea agreement. The agreement provides that the appellant "agrees to admit guilt and enter a plea of guilty to . . . four counts of violating 18 U.S.C. § 1591 (Sex Trafficking of Children)." Appendix (A) 24. Section Eleven of the plea agreement provides that "pursuant to 18 U.S.C. §§ 1593 and 3664, it is mandatory that the Court order [the appellant] to make restitution for the full amount of any victims' compensable losses" and that any contested restitution issue may be litigated at sentencing or at a subsequent hearing. A 28.

Section Twelve of the plea agreement includes the following appeal waiver:

[The appellant] is aware that federal law, specifically 18 U.S.C. § 3742, affords [him] the right to appeal the sentence in this case. [He] is aware that in the event that sentence is imposed upon consideration of the Sentencing Guidelines rather than in accordance with Section Two [i.e. if the Court rejects the plea agreement], the Government's factual stipulations and predictions about the calculation of the sentencing guidelines are not binding on the sentencing judge. Knowing that, [the appellant] waives the right to appeal his sentence or the manner in which it was determined pursuant to 18 U.S.C. § 3742, except to the extent that (a) the Court sentences [him] to a period of imprisonment longer than the statutory maximum, or (b) the Court departs upward from the applicable Sentencing Guideline range pursuant to the provisions of U.S.S.G. § 5K.2 or based on a consideration of the sentencing factors set forth in 18 U.S.C. § 3553(a). Further, [he] reserves the right to make a collateral attack upon [his] sentence pursuant to 28 U.S.C. § 2255, if new and currently unavailable information becomes known to him. In agreeing to this waiver, [the appellant] is aware that [his] sentence has yet to be determined by the Court. Realizing the uncertainty in estimating what sentence the Court ultimately will impose, [the appellant] knowingly and willingly waives [his] right to appeal the sentence, to the extent noted above, in exchange for the concessions made by the Government in this Agreement.

A 29.

On December 31, 2009, the appellant pleaded guilty before a magistrate judge, who accepted the plea agreement.

On November 1, 2010, the district court sentenced the appellant to 240 months' imprisonment.

The district court also held separate evidentiary hearings on January 21 and February 3, 2011 to calculate the amount of restitution the appellant owed the four minors. Before the hearings, the court received (1) mental health assessments (MHAs) prepared by psychologist C. David Missar (Missar) for each of the four; and (2) a report from the four minors' guardian ad litem.

Missar's MHAs were based on his reviews of each victim's mental health records and other relevant records, as well as his interviews of A.L and S.H. Missar did not interview M.S. or T.S. because M.S. had disappeared and T.S.'s family did not respond to Missar's attempts to contact them. Based on this information, Missar diagnosed each victim with various mental health and substance abuse problems, including Post-Traumatic Stress Disorder (PTSD). Missar recognized that some of the victims' mental health and substance abuse problems predated their association with the appellant but he concluded there was "little doubt" that the appellant had "exacerbated" any pre-existing mental health problems. A 222, 226, 230, 242. Additionally, the fact that each victim was a minor prostitute working for the appellant created "tremendous additional emotional traumas" for each. A 222, 226, 230, 242. Missar concluded that each victim required "significant mental health services, in different stages and to differing degrees, for the rest of her life," ...


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