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United States v. Sweargin

United States Court of Appeals, Tenth Circuit

August 28, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MARKELL QUASHUN SWEARGIN, Defendant-Appellant.

          Appeal from the United States District Court for the District of New Mexico (D.C. No. 5:17-CR-02402-JTM-1)

          Jane Greek, Assistant Federal Public Defender (Stephen P. McCue, Federal Public Defender, District of New Mexico, with her on the briefs), Las Cruces, New Mexico, for Defendant-Appellant Markell Quashun Sweargin.

          Marisa A. Ong, Assistant United States Attorney (John C. Anderson, United States Attorney, District of New Mexico, with her on the brief), Las Cruces, New Mexico, for Plaintiff-Appellee United States of America.

          Before TYMKOVICH, BALDOCK, and CARSON, Circuit Judges.

          CARSON, CIRCUIT JUDGE.

         In this case, we address the meaning of "coercive" behavior in the context of United States Sentencing Guideline § 2G1.1(b)(1). That Guideline provides a four-level enhancement when a defendant uses coercion in promoting a commercial sex act. Defendant Markell Quashun Sweargin ("Defendant") (1) posted a sex video of the Victim when she attempted to no longer engage in prostitution; (2) forced her to post provocative photos online; and (3) beat her for refusing to have sex with a person who answered an advertisement on a prostitution-focused website. Because these acts demonstrate that Defendant impressed his power over the Victim and the Victim knew she would face negative consequences for failing to succumb to Defendant's pressure, we conclude that Defendant did, in fact, coerce her. Accordingly, we affirm.

         I.

         Hobbs, New Mexico law enforcement officer Jeremy Kirk responded to a domestic disturbance call at a local hotel. Upon arrival, Kirk approached a crying, scared, shaking woman. That woman-the Victim in this case-told Kirk that Defendant showed up in her room, became angry, and started an argument. Defendant escalated the argument by punching her, choking her, and refusing to let her leave the hotel room. Kirk observed that the Victim's neck was red and that she had fresh scratches and scrapes on the side of her neck and chest. Law enforcement then arrested Defendant for battery on a household member.

         Law enforcement interviewed the Victim at the police department near the time of the arrest. The Victim told police that she, Defendant, and a minor female had come to Hobbs from Lubbock, Texas to go to the casino. The Victim said that once in Hobbs, Defendant had hinted that she should prostitute herself. The Victim balked at the idea and told Defendant as much. Following the exchange, Defendant and the minor female left the hotel room to go to a fast food restaurant. Shortly after they had left, a man knocked on the Victim's hotel room door. The Victim let him in the room. The man immediately asked the Victim what she would do for $80. She replied that she would do nothing. The man then said, "That's not what your ad says," and left. The Victim told law enforcement that she believed Defendant had made an ad for her on backpage.com-a website which, at the time of the events in question, was often used to promote prostitution. When Defendant returned to the hotel room and learned that the Victim had not made a deal with the man, he became angry, punched and choked her.

         Law enforcement also seized two cell phones at the time of Defendant's arrest. The Victim told law enforcement that Defendant had used one of the phones strictly to contact people who were responding to advertisements for women.

         Local law enforcement referred the case to the United States Department of Homeland Security for federal prosecution. Evidence on the cell phone revealed that from May 2017 through June 2017, Defendant had pressured the Victim to engage in prostitution. Defendant blackmailed the Victim by threatening to post a sex video of them online if she refused to prostitute herself. In addition, the Victim informed law enforcement that Defendant had taken provocative photos of her and had forced her to have those photos online.

         Defendant pleaded guilty to an Information charging him with knowingly transporting a person in interstate commerce from the State of Texas to the State of New Mexico with the intent that the person engage in prostitution in violation of New Mexico Statute § 30-9-2 in violation of 18 U.S.C. § 2421(a). In his presentence report, the probation officer recommended that the district court apply a four-level enhancement pursuant to Guideline § 2G1.1(b)(1) because Defendant used fraud or coercion while promoting a commercial sex act.

         Defendant challenged the four-level enhancement for coercion under Guideline § 2G1.1(b)(1). In his objection to the presentence report, Defendant included an unsworn "statement of the offense" from the Victim's counsel. Defendant additionally directed the district court to an unsworn, written statement from the Victim. In these statements, she claimed that she had acted voluntarily, that the argument at the hotel had not been about prostitution, that Defendant did not choke her, and that Defendant had not coerced or forced her into any activity. The Victim additionally said that she loved Defendant and that she was expecting his child. A federal agent testified during a hearing that the Victim was uncooperative during the federal investigation by taking blame for the situation and saying that "she made it up."

         The district court overruled Defendant's objection. The district court credited the testimony of the government witnesses about what happened the evening of the arrest. The district court likewise concluded that the Victim's assertion that she had fabricated the physical abuse in her initial statement was less persuasive because it was inconsistent with the evidence and because her desire to have Defendant released from custody cut against her credibility. The district court then held that both the threat to post the sex video online and the physical assault established coercion. The district court said that although the circumstances surrounding the sex video occurred prior to the trip to the casino, they were not so remote in time for the court to conclude that they had nothing to do with the charged criminal activity. A federal agent testified that she believed that Defendant and the Victim's communications regarding the video were related to prostitution, and the district court credited the ...


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