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United States v. McMillian

United States Court of Appeals, Seventh Circuit

January 27, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
TYRONE MCMILLIAN, Defendant-Appellant

Argued December 9, 2014.

Page 445

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:11-cr-00193-CNC-1 -- Charles N. Clevert, Jr., Judge.

For United States of America, Plaintiff - Appellee: Joseph R. Wall, Attorney, Office of The United States Attorney, Milwaukee, WI.

For Tyrone Mcmillian, also known as: HK, Defendant - Appellant: Peter W. Henderson, Attorney, John C. Taylor, Attorney, Office of The Federal Public Defender, Urbana, IL.

Before POSNER, RIPPLE, and KANNE, Circuit Judges.

OPINION

Page 446

Posner, Circuit Judge.

A jury convicted the defendant after a one-week jury trial of four counts of violating 18 U.S.C. § 1591(a), which mainly, so far as relates to this case, punishes anyone who " knowingly--(1) in or affecting interstate ... commerce ... recruits ... a person ... knowing, or in reckless disregard of the fact ... that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act." If convicted the defendant is to be imprisoned " for not less than 10 years or for life." § 1591(b)(2). One of the defendant's recruits had attained the age of 18 (in fact was 19), and as to her the government had also to prove, and did prove, that the defendant used " force, threats of force, fraud, [or] coercion ... or any combination of such means" against her. § 1591(a). The sentencing range for that offense is 15 years to life, see id. and § 1591(b)(1), as is the range if the victim is under 14, id., but none of the defendant's recruits was that young.

The defendant was convicted under other statutes as well as 18 U.S.C. § 1591, but we can skip them, as they did not affect his sentence. His guidelines range was life imprisonment (a range rather than a point because the length of a prisoner's life can't be determined at the time of sentencing), but the judge imposed a below-guideline sentence of 30 years.

Page 447

The defendant had recruited a young woman--the 19-year-old--and three girls to engage in prostitution. Two of the girls were 16 and the third was 17. Mainly he had enticed all four by false promises of love and money, though he also used violence on occasion, particularly against the oldest, Jessica, for various infractions such as disobeying him or talking too loudly. She assumed he would be even more violent if she tried to stop working as a prostitute for him, as she wanted to do.

He had transported all four of his recruits across state lines to engage in prostitution and thus had operated his prostitution ring in interstate commerce. Relying on Bond v. United States, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2013), he argues that section 1591 reaches only involuntary prostitution akin to slavery and not " ordinary" pimping and pandering, but there is no basis for so limited an interpretation. His further argument that the four recruits were volunteers and thus not " caused" by him to engage in prostitution overlooks the absence of any evidence that had he not recruited them they would still have become prostitutes. By enticing them, buying them cellphones, taking photos of them and posting advertisements on Craigslist for their services as prostitutes, instructing them on how to take calls and deal with Johns, and then driving them to and from their " dates" with their customers, the defendant caused them to engage in prostitution. He used both force and fraud on Jessica, and his use of fraud was alone enough to establish a violation of section 1591(a) with respect to her, even though she was older than 18. As for possible long-term effects on his recruits from their employment by him as prostitutes, however, the evidence is sparse and inconclusive.

The defendant could have been sentenced to life in prison, and, since he was only 31 when sentenced, his 30-year sentence although very long is not even a de facto life sentence. But he argues that it is invalid as a ...


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