from the United States District Court for the District of New
Mexico (D.C. No. 5:17-CR-02402-JTM-1)
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.
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.
TYMKOVICH, BALDOCK, and CARSON, Circuit Judges.
CARSON, CIRCUIT JUDGE.
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.
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.
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.
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.
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.
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
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."
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 ...