United States v. Pennington

78 F.4th 955

UNITED STATES of America, Plaintiff-Appellee, v. David PENNINGTON, Defendant-Appellant.

No. 22-5181

United States Court of Appeals, Sixth Circuit

Argued: June 15, 2023

Decided and Filed: August 21, 2023

Appeal from the United States District Court for the Eastern District of Kentucky at London. No. 6:19-cr-00074-7—Claria Horn Boom, District Judge.

ARGUED: Stephen Ross Johnson, RITCHIE, DAVIES, JOHNSON & STOVALL, P.C., Knoxville, Tennessee, for Appellant. John Patrick Grant, UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee. ON BRIEF: Stephen Ross Johnson, Catalina L. C. Goodwin, RITCHIE, DAVIES, JOHNSON & STOVALL, P.C., Knoxville, Tennessee, for Appellant. John Patrick Grant, Charles P. Wisdom, Jr., UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.

Before: MOORE, CLAY, and NALBANDIAN, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

While facing charges for violating 18 U.S.C. § 1594(c), Defendant David Pennington improperly communicated with witnesses in the case against him. Pennington's § 1594(c) charge alleged that he participated in a conspiracy to engage in human trafficking in violation of 18 U.S.C. § 1591(a)(1), 1591(b)(1). The government then charged Pennington with witness tampering, in violation of 18 U.S.C. § 1512(b)(1), and dismissed the § 1594(c) conspiracy charge when Pennington pleaded guilty to the witness-tampering charge. When the district court sentenced Pennington, it applied the U.S. Sentencing Guideline that corresponds with his witness-tampering conviction, which prompted a series of cross-references to other guidelines. The final guideline in that chain, U.S.S.G. § 2G1.1, applies to certain human-trafficking offenses and supplies two possible base-offense levels. U.S. Sent'g Guidelines Manual § 2G1.1(a) (U.S. Sent'g Comm'n 2021). Subsection (a)(1) provides a base-offense level of "34, if the offense of conviction is 18 U.S.C. § 1591(b)(1)"; subsection (a)(2) provides a base-offense level of "14, otherwise." U.S.S.G. § 2G1.1(a)(1)-(2). Despite the fact that Pennington had not been convicted of violating 18 U.S.C. § 1591(b)(1), and no other guideline permitted a court to treat Pennington as if he had been, the district court used subsection (a)(1)'s base-offense level of thirty-four as its starting point. This was an error. Accordingly, we VACATE Pennington's sentence and REMAND to the district court for resentencing under the properly calculated Guidelines range.

I. BACKGROUND

A. CONSPIRACY TO ENGANGE IN HUMAN TRAFFICKING

On November 21, 2019, the grand jury indicted Defendant David Pennington, charging him with one count of violating 18 U.S.C. § 1594(c). Title 18 U.S.C. § 1594(c) establishes criminal liability for "[w]hoever conspires with another to violate section 1591." Count one of the indictment alleged that Pennington had conspired to engage in human trafficking in violation of 18 U.S.C. § 1591(a)(1) and (b)(1). R. 51 (First Superseding Indictment at 1-2) (Page ID #207-08). Relevant here, under 18 U.S.C. § 1591(a)(1):

Whoever knowingly . . . in or affecting interstate or foreign commerce . . . recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person . . . knowing, or . . . in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act . . . shall be punished as provided in subsection (b).

"[I]f the offense was effected by means of force, threats of force, fraud, or coercion," § 1591(b)(1) establishes a fifteen-year mandatory-minimum term of incarceration.

According to the indictment, the conspiracy ran from around September 2015 through October 2019. R. 51 (First Superseding Indictment at 1-2) (Page ID #207-08). In essence, Logan Ray Towery and numerous other individuals ran overlapping human-trafficking and drug-distribution operations. R. 539 (PSR ¶ 7) (Page ID #2762). The government alleged that Pennington "knew his neighbor Logan Ray Towery to prostitute young women" and that Pennington "paid several young women for sexual acts." R. 579 (Rearraignment Proceeding Hr'g Tr. at 31) (Page ID #3051).

B. WITNESSES TAMPERING

A magistrate judge granted Pennington pretrial release as he awaited trial for his § 1594(c) conspiracy charge subject to certain conditions of release. R. 96 (Minute Order) (Page ID #333); R. 97 (Order Setting Conditions of Release 1-3) (Page ID #334-36). One condition barred Pennington from "all contact, direct[ ] or indirect[ ], with any person who is or may be a victim or witness in the investigation or prosecution . . . ." R. 97 (Order Setting Conditions of Release 2) (Page ID #335). Pennington violated this condition by communicating with two of the victims who were witnesses in the case against him. R. 565 (Bond Revocation Hr'g Tr. at 7-8, 11, 26) (Page ID #2861-62, 2865, 2880). Pennington and the government stipulated to the pretrial-release violation, and Pennington contested only whether home incarceration or detention was appropriate. Id. at 3, 34-35 (Page ID #2857, 2888-89). According to the magistrate judge, "Pennington admitted contact in various ways with two victims in the case beginning (as to one victim) on the same day of his release and continuing up until his arrest in August 2020. Pennington communicated both in-person and electronically with one victim before and after that victim's stay in jail. He had in-person contact with a second victim." R. 277 (Mag. J. Findings at 2) (Page ID #984). The government characterized Pennington's contact with one victim as "veiled threats." R. 565 (Bond Revocation Hr'g Tr. at 26) (Page ID #2880). The government described evidence of Pennington telling one victim that law enforcement considered her a victim, telling her the questions he expected his counsel to ask her during cross examination in his criminal trial followed by answers to those questions, id. at 25 (Page ID #2879), calling her a liar and "insinuat[ing] that people are starting to identify her as a rat," id. at 26 (Page ID #2880), and offering gifts to the victim, id.; see also R. 579 (Rearraignment Hr'g Tr. at 30-32) (Page ID #3050-52). The magistrate judge ordered Pennington to remain in custody pending trial. R. 565 (Bond Revocation Hr'g Tr. at 45) (Page ID #2897).

In light of this conduct, on September 22, 2021, the government charged Pennington with witness tampering, in violation of 18 U.S.C. § 1512(b)(1), and violation of his pretrial-release conditions, in violation of 18 U.S.C. § 3147. R. 473 (Fourth Superseding Indictment at 3-4) (Page ID #2527-28). Shortly thereafter, Pennington pleaded guilty to the witness-tampering charge and the government dismissed all remaining charges against him—including the § 1594(c) conspiracy charge.¹ R. 491 (Plea Agreement ¶¶ 1-2) (Page ID #2573); R. 579 (Rearraignment Hr'g Tr. at 33) (Page ID #3053); R. 571 (Sentencing Hr'g Tr. at 13) (Page ID #2958) (granting the government's motion to dismiss the remaining charges). The plea agreement did not specify the applicable guidelines, the underlying offense level, or the criminal-history points to be used to calculate Pennington's sentence. R. 491 (Plea Agreement ¶¶ 5-6) (Page ID #2574-75).

C. SENTENCING

Ahead of Pennington's sentencing hearing for his witness-tampering conviction, the U.S. Probation Office filed a presentence investigation report ("PSR"). R. 539 (PSR) (Page ID #2759-88). The PSR identified a base-offense level of twenty-eight. Id. ¶ 79 (Page ID #2774). As elaborated upon below, the PSR arrived at twenty-eight by cross referencing among multiple guidelines to reach U.S.S.G. § 2G1.1, the guideline that applies to certain types of human trafficking. Id. The PSR applied the higher of U.S.S.G. § 2G1.1(a)'s two alternative base-offense levels. See id. Guideline § 2G1.1(a)'s higher base-offense level of thirty-four is to be used "if the offense of conviction is 18 U.S.C. § 1591(b)(1)," but otherwise, fourteen is the appropriate base-offense level. U.S.S.G. § 2G1.1(a)(1)-(2). The PSR then subtracted six levels pursuant to one of the cross-referenced guideline's instructions and arrived at a base-offense level of twenty-eight. R. 539 (PSR ¶ 79) (Page ID #2774). The PSR then subtracted another three levels because of Pennington's acceptance of responsibility, bringing Pennington's total-offense level to twenty-five, id. ¶¶ 86-87 (Page ID #2774-75). The PSR identified a criminal-history category of I. Id. ¶ 93 (Page ID #2775). Accordingly, the PSR produced a Guidelines range of fifty-seven to seventy-one months of imprisonment, and one to three years of supervised release. Id. ¶¶ 113, 116 (Page ID #2779).

Pennington filed comments and requests for corrections to the PSR. R. 539 (PSR at 25-30) (Page ID #2783-88). According to the addendum to the PSR, Pennington's counsel "advised there are no objections to the presentence report that impact the guidelines calculation." Id. at 25 (Page ID #2783). His counsel conveyed to the probation officer that Pennington "emphasized and maintains his position that he was not criminally involved with Towery's human trafficking organization," and that he "fully acknowledges having sex with Towery's victims but denies any criminal responsibility for human trafficking." Id. Counsel filed a correction addressing this point. Id. at 29-30 (Page ID #2787-88). In response to the request for correction, the two addenda to the PSR stated that the "report does not hold Pennington responsible for being convicted of human trafficking." Id. at 25, 27 (Page ID #2783, 2785).

At sentencing, the district court used the same Guidelines calculation and range contained in the PSR. R. 571 (Sentencing Hr'g Tr. at 9) (Page ID #2954). The district court explained that it "beg[a]n at a base offense level of a 28, and that's under [§] 2[G1].1(a)(1),² which is the human...