USA v. Ernesto Cortes-Castro, et al

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-15539
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-20005-ASG-4
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
ERNESTO CORTES-CASTRO,
Defendant-Appellant.
________________________
No. 11-15682
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cr-20005-ASG-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
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ALBERTO CORTES-CASTRO,
Defendant-Appellant.
________________________
No. 11-15892
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cr-20005-ASG-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISRAEL CORTES-MORALES,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
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(March 7, 2013)
Before WILSON, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Ernesto Cortes-Castro, Alberto Cortes-Castro, and Israel Cortes-Morales
appeal their sentences of 180 months of imprisonment for conspiring to traffic
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women to engage in commercial sex acts by force or coercion. 18 U.S.C.
§ 1594(c). Ernesto, Alberto, and Israel challenge the reasonableness of their
sentences and the award of restitution. We affirm.
The Department of Homeland Security learned that Ernesto, Alberto, Israel,
and a coconspirator were smuggling women from Mexico into the United States,
where they were forced to become prostitutes. A grand jury returned a superseding
indictment that charged Ernesto, Alberto, and Israel with conspiring to traffic
women for prostitution by force or coercion, id., and with trafficking V.D. for
prostitution by force or coercion, id. §§ 2, 1591(a), (b), and that charged Ernesto
with trafficking C.E. for prostitution by force or coercion, id., and with
transporting C.E. in interstate and foreign commerce with the intent that she
engage in prostitution, id. §§ 2, 2421.
Ernesto, Alberto, and Israel entered identical agreements to plead guilty to
the charge of conspiracy in exchange for the dismissal of their other charges. The
plea agreements contained joint recommendations that the district court calculate
the defendants’ sentences using a base offense of 34, United States Sentencing
Guidelines Manual § 2G1.1(a)(1) (Nov. 2010); that they receive a three-point
reduction for their acceptance of responsibility, id. § 3E1.1(a); and that they
receive a sentence within the advisory guidelines range. The agreement provided
that the district court could depart from the advisory guidelines range and impose a
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sentence up to the maximum statutory sentence of imprisonment for life. The
district court accepted the defendants’ guilty pleas and adopted the
recommendation to apply section 2G1.1.
The factual proffer submitted with the plea agreements stated that, between
2002 and December 2010, Ernesto, Alberto, Israel, and others “agreed to establish
a sex trafficking and prostitution business in the United States,” in which “women
would be transported from Mexico . . . into the United States,” where they “would
be prostituted in exchange for money.” Ernesto, Alberto, and Israel “kep[t] and
controll[ed] some of the money that sex clients paid” and they “agreed to use
various means of fraud, force, threats of force, and coercion to cause the women to
engage in prostitution.” The defendants “agreed to transport women to have sex
with clients or to have the women delivered to brothels” where they “would stay . .
. for a week or two having sex with clients.” The women were “required to have
sex with between 20 and 40 men each night,” and “[e]ach client paid about $30 for
15 minutes of sex.” The defendants “kept some money and sent the rest to family
members in Mexico via international money wire services.” “[T]he defendants[]
and co-conspirators[] often discussed their prostitution business, how to increase
profits, and how to control their prostitutes.”
The factual proffer stated that “[s]everal victims” of the conspiracy “would
have testified at trial” about how Ernesto, Alberto, and Israel snared their victims.
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The defendants “would romantically court their victims in Mexico” and, after
“establish[ing] emotional connections,” they would urge the women to “mov[e] to
the United States for a better life” and often alluded to “marriage and children,”
and “[s]ometimes, they even married the women and impregnated them.” The
defendants encouraged the women to find jobs in the United States and, after
smuggling them into the country, they “learned that . . . [they had] to become
prostitutes and give the defendants the proceeds.” None of the women “sp[oke]
English, had [any] family in [the United States], [or] had [any] money or
immigration papers.” And the defendants admitted to using various means to force
the women to engage in prostitution. “[O]n several occasions, [the women] were
ordered not to speak with each other or not to leave the house”; “[t]hey were
threatened with being abandoned”; [t]hey were psychologically humiliated”; and
“they were harmed or received threats of harm.”
The defendants’ presentence investigation reports provided that Ernesto,
Alberto, and Israel “all equally engaged in the . . . scheme to traffic immigrant
women” who “were often forced to have sex with up to 40 men, usually Mexican
migrant workers, per night for as little as $25 per man.” The reports described
how, in 1999, Israel kidnapped S.J.G., forced her to marry him, and smuggled her
to New York, where she was forced to work as a prostitute, beaten, and remained
penniless. S.J.G. lived with Israel, Ernesto, and Alberto and two women who
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similarly had been smuggled into the country to work as prostitutes to
undocumented migrant farm workers in New York and in Florida. The three
women were not permitted to speak to each other or leave the house alone, and
S.J.G. saw Ernesto and Alberto abuse other prostitutes by punching, kicking, and
beating them and dragging them down stairs. S.J.G. tried to escape, but Israel
caught her, beat her, and locked her in the basement. Israel allowed S.J.G. to visit
Mexico for two weeks, but when she stayed longer, Israel kidnapped her,
impregnated her, and threatened to take her baby if she did not return to her former
life. After a few years, Israel agreed to divorce S.J.G., and she lived in Miami,
where she learned about “stash houses” where the defendants concealed their
prostitutes. The report also described how Israel transported another victim, V.D.,
to 10 different locations, where she was required to have sex with 30 to 40
immigrant workers, and how Ernesto and Alberto transported V.D., on three
different occasions, to houses where she was forced to have sex with 20 to 25
clients at each location. V.D. received a portion of the money for each act of
prostitution. The report mentioned the amount of loss inflicted on four victims: 1)
$93,000 by E.G.C.; 2) $310,000 by L.L.S.; 3) $345,000 by D.V.R.; and 4)
$311,200 by C.E.
The presentence reports determined the defendants’ advisory guideline range
based on 13 victims, but later the reports were revised to reflect the decision to
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calculate the guidelines range based on one victim. The initial presentence reports
provided an adjusted offense level of 40, see U.S.S.G. §§ 2G1.1(c), 2A3.1,
3D1.4(a), and an advisory guidelines range between 292 and 365 months of
imprisonment. The revised reports used an adjusted offense level of 31 and, with a
criminal history of I, provided an advisory guidelines range between 108 and 135
months of imprisonment.
The defendants and the government requested that the district court impose
sentences at the high end of the revised guidelines range. The government
presented testimony from six victims about the physical, psychological, and
monetary effects of the defendants’ crimes. For example, S.J.G. testified about
being forced to perform oral sex on migrant workers who had “feces on their
genitals” and being beaten so violently on one occasion that she suffered a loss of
eyesight and had to undergo surgery to salvage her vision. In response to the
defendants’ objections, the district court said that, “while [it could] consider [the
testimonies of the women] as victim statements, they [did] not rise to the level of
evidence, so [its] primary concern . . . [was] the factual proffer and the presentence
report.”
The district court varied upward from the revised guidelines range and
sentenced each defendant to 180 months of imprisonment. The district court
explained that the defendants’ conduct was “unusually heinous, cruel, brutal and
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degrading to each of the victims involved”; “the recommendation for sentencing
[was] insufficient to address the nature and degree of each of [the sentencing]
factors”; and the sentence recommended did not “afford[] adequate deterrence to
the serious crime of human trafficking for prostitution.” The district court stated
that it gave “significant weight” to the nature and circumstances of the defendants’
crimes and their histories, 18 U.S.C. § 3553(a)(1), and to deterring “the serious
crime of human trafficking for prostitution,” id. § 3553(a)(2)(B).
Later, the government submitted a memorandum in support of its request for
restitution contending that the amount of loss to each victim should be based on the
profit derived from her forced prostitution, plus any specific damages, and less any
compensation received. Five victims submitted declarations detailing how they
calculated their amounts of loss. In the declarations, S.G.J. requested $257,300,
L.L.S. requested $310,000, C.E. requested $211,200, D.V.R. requested $316,800,
and V.D. requested $607,600.
The defendants did not respond to the memorandum or the declarations. At
the restitution hearing, the government revised downward most of the loss amounts
requested by the victims and supported its calculations with information from the
factual proffer, the presentence reports, and the victims’ declarations. The
government requested loss amounts for only five victims: $153,300 for S.J.G.;
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$310,000 for L.L.S.; $154,400 for C.E.; $299,200 for D.V.R.; and $322,300 for
V.D.
The district court credited the calculations of the government and awarded
restitution of $1,239,200. The district court explained that restitution was
mandated by statute and, “even if . . . discretionary, given the very significant
circumstances of this offense[,] . . . restitution [was] required here to address the
full amount of the victims’ losses.” The defendants argued that the victims had
exaggerated their losses and that their testimonies and declarations were
inconsistent with statements they gave shortly after their release, but the district
court found that the declarations were reliable and credible because they were
consistent with the factual proffer, the presentence reports, and the victims’
testimonies. The district court also found that any inconsistencies in the victims’
earlier statements were attributable to “still [being] under the influence of the
trauma of [the crimes] and perceived threats of family members.”
The district court did not abuse its discretion by sentencing Ernesto, Alberto,
and Israel to terms 45 months above the high end of their revised advisory
guidelines range. The defendants enslaved, demeaned, and debased immigrant
women. The defendants forced their victims for several years to perform sexual
activities daily for up to forty men, and they controlled their victims through
mental intimidation, maltreatment, and violent physical abuse. The district court
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reasonably determined that a sentence above the revised guidelines range was
required to address the abhorrent nature and protracted duration of the defendants’
crimes and to dissuade them from abusing women in the future. Id. § 3553(a)(1),
(a)(2)(B); see United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (“The
weight to be accorded any given [section] 3553(a) factor is a matter committed to
the sound discretion of the district court.”). The defendants argue that the upward
variance resulted in an “impermissible double-counting” of conduct accounted for
under section 2A3.1 of the guidelines, but the district court applied section
2G1.1(a)(1) of the guidelines and, in any event, it reasonably could rely on the
egregious circumstances of the defendants’ crimes in fashioning an appropriate
sentence, see United States v. Amedeo, 487 F.3d 823, 833–34 (11th Cir. 2007).
The sentences of 180 months of imprisonment, which were well below the
maximum statutory penalty of imprisonment for life, were reasonable. See United
States v. Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005).
The district court also did not err in ordering the defendants to pay
restitution. By statute, the district court had to compensate these victims of sex
trafficking in an amount equaling “the greater of the gross income or value to the
defendant of the victim’s services or labor” and for their losses attributable to
medical services, necessary transportation, housing, child care expenses, and
“other losses suffered . . . as a proximate result of the offense.” Id. §§ 1593(a),
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1593(b)(3), 1593(c), 2259(b)(3). And the district court did not clearly err in
crediting the victims’ declarations or determining the amount of restitution based
on the defendants’ admissions to information in the factual proffer and the
presentence report. See United States v. Beckles, 565 F.3d 832, 844 (11th Cir.
2009). Alberto argues that the order of restitution rewards the victims for their
illegal activities, but this argument is preposterous given that his victims were
enslaved and forced to prostitute. The victims of the defendants’ sex trafficking
crimes were entitled to be “made whole for their losses.” United States v. Huff,
609 F.3d 1240, 1249 (11th Cir. 2010) (quoting United States v. Arutunoff, 1 F.3d
1112, 1121 (10th Cir. 1993)).
We AFFIRM the sentences imposed on Ernesto and Alberto Cortes-Castro
and Israel Cortes-Morales.
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