from the United States District Court for the Western
District of Oklahoma (D.C. No. 5:15-CR-00126-C-5)
Sanderford, Assistant Federal Public Defender, Denver,
Colorado, for Defendant-Appellant.
McKenzie Anderson, Assistant United States Attorney, Oklahoma
City, Oklahoma, for Plaintiff-Appellee.
MATHESON, EBEL, and PHILLIPS, Circuit Judges.
PHILLIPS, CIRCUIT JUDGE.
convicted Curtis A. Anthony of child-sex trafficking and
conspiracy to commit child-sex trafficking, in violation of
18 U.S.C. §§ 1591(a)(1), (b)(2), (c) and 1594(c).
The district court sentenced Anthony to the statutory
mandatory-minimum 10 years' imprisonment and ordered that
he pay restitution to the two child victims- R.W. and M.M-in
the amount of $327, 013.50 and $308, 233.50, respectively. On
appeal, Anthony contends that these amounts exceed actual
losses resulting from his two offenses of conviction. He
raises two issues with the restitution order: (i) that it
impermissibly compensates harms that R.W. suffered from an
earlier, unrelated sex-trafficking criminal enterprise run by
a different wrongdoer; and (ii) that, for his conspiracy
count, it compensates R.W.'s and M.M.'s harms beyond
a smaller conspiracy proved at trial (a subset of the broad,
charged conspiracy). We agree with Anthony on both issues,
but we disagree that he has established plain error on the
second issue. Thus, exercising jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a), we affirm the
district court's restitution order as covering the broad,
charged conspiracy, but we vacate the order and remand for a
recalculation of losses to ensure that no restitution is
awarded for harms that R.W. suffered during the earlier
and June 2014, when R.W. was 14 years old, a pimp named
William Johnson prostituted her in the Oklahoma City,
Oklahoma area. William pleaded guilty in 2015 to a federal
charge of sex trafficking a minor, was later sentenced to 30
years in prison, and was ordered to pay R.W. $900, 000 in
restitution. See Amended Judgment, United States
v. Johnson, No. CR 14-0341-F (W.D. Okla. Jan. 13, 2016),
ECF No. 83. In a victim-impact statement prepared for that
case, R.W. reported that William had taken her virginity, had
"beat the mess out of" her, and had
"brainwashed" her "into practically being a
slave." ROA vol. 2 at 70. R.W. described the
psychological effects of this abuse, including her not
"know[ing] how to act around people [her] age" and
feeling "no worth whatsoever." Id. at 71.
R.W. also reported numerous symptoms of psychological trauma
such as nightmares, fear for her safety, fear of being alone,
fear of adults and strangers, anxiety, depression, anger,
crying spells, and feelings of helplessness.
October 8, 2014, after law-enforcement officers rescued R.W.,
and she had returned home, she received Facebook messages
from another pimp, Maurice M. Johnson (no relation to
William) and one of his adult prostitutes, Chelsee A.
Griffin, offering to pick her up to "make money."
Id. vol. 3 at 345. After midnight on October 9,
Maurice picked up R.W., photographed her, and had a longtime
associate, Tonya Gay Gum, post the photos on websites
advertising escort services. For a share of the escort
revenue, Gum operated a "call center" with over
twenty publicly listed phone numbers-all of which forwarded
to two personal cell phones-through which she fielded
requests for sexual services and arranged for escorts to meet
with customers. Id. at 38-39. After using these
services to traffic R.W. for about two weeks, Maurice had her
recruit her friend, 15-year-old M.M., to work as a
prostitute. M.M. did so for about a week before law
enforcement halted the operation. In their time with Maurice,
R.W. and M.M. together brought in about $40, 000 from
evening of October 24, 2014, Anthony called one of Gum's
escort lines. Anthony stated only that he was "looking
for company" at his office. See id. at 254-55.
Gum sent R.W. to the office, but when she arrived, Anthony
couldn't locate his wallet, so he and R.W. drove to an
ATM to withdraw cash for the transaction. But Anthony was
unable to make a withdrawal without his wallet, so R.W. left
with Maurice, who had followed them to the ATM along with
M.M., Griffin, and two others. Minutes later, while the group
was heading back, Anthony called again and asked for R.W. to
return because he had located his wallet and now had cash.
Maurice turned around and drove R.W. back to Anthony's
office, this time sending M.M. in with her. Anthony paid the
girls to strip naked, touched their bodies, and stated that
he wanted to finish "the date with M.M."
Id. at 443. So R.W. gave M.M. a condom and waited
outside while M.M. and Anthony had sex for money.
October 27, 2014, law-enforcement officers, while running an
undercover-sting operation, located and rescued R.W. and M.M.
Maurice had kept the girls in a hotel room where he forced
them into commercial sex transactions. He and Gum split the
proceeds. Maurice used psychological manipulation, threats of
force, and physical abuse to control the girls. As R.W. later
testified, Maurice had treated her "[l]ike a slave,
basically." Id. at 446. Griffin also testified
that Maurice was a violent and dangerous man.
16, 2015, a federal grand jury sitting in the Western
District of Oklahoma indicted Anthony on
child-sex-trafficking charges. On January 6, 2016, the grand
jury returned a superseding indictment charging Anthony with:
(i) child-sex trafficking, in violation of 18 U.S.C. §
1591(a)(1), (b)(2), and (c); and (ii) conspiracy to commit
child-sex trafficking, in violation of 18 U.S.C. §
1594(c). The superseding indictment named as
coconspirators Anthony and two other adult customers-Trung N.
Duong and William M. Baker, both of whom pleaded guilty-who
had paid R.W. for sexual services. None of the three men knew
each other. Gum-who had pleaded guilty to the original
indictment-was named as an unindicted coconspirator. Maurice
was prosecuted in a separate action. See United States v.
Johnson, No. 14-CR-0342-C-1 (W.D. Okla. Aug. 6, 2019).
superseding indictment alleged a conspiracy spanning the time
that R.W. had spent with Maurice-from October 8 to 27, 2014.
The conspiracy's charged objective was "to operate
and perpetuate a prostitution enterprise that recruited,
enticed, provided, obtained, and maintained
minors." ROA vol. 1 at 65. The enterprise allegedly
benefited Maurice and Gum financially and benefited Duong,
Baker, and Anthony by enabling them to complete commercial
sex transactions. With R.W.'s and M.M.'s
prostitution earnings, Gum funded her escort business, and
Maurice recruited and controlled his prostitutes. The
superseding indictment alleged as specific "acts in
furtherance of the conspiracy" (i) Maurice's
recruitment of R.W. (but not M.M.); (ii) Maurice's making
R.W. available to Gum as a prostitute; and (iii) Gum's
arranging the commercial sex transactions for Duong, Baker,
and Anthony. See id. at 67-70.
mid-June 2017, Anthony went to trial. Both R.W. and M.M.
testified as government witnesses, as did Maurice, Gum, and
Duong. Gum testified that, in October 2014, she fielded over
10, 000 calls on her escort phone lines scheduling commercial
sex appointments. She testified about sending R.W. on four
calls during the alleged conspiracy: once to Baker, twice to
Duong, and once to Anthony. Maurice, meanwhile, testified
that he would meet Gum five to six times on a normal workday
to give her proceeds from completed
the close of the government's case-in-chief, Anthony
orally moved for a general judgment of acquittal under Rule
29 of the Federal Rules of Criminal Procedure. The district
court reserved decision until after the close of all the
evidence, at which point it denied the motion for the
substantive trafficking count. The next day, the court denied
the motion for the conspiracy count. Anthony did not renew
his Rule 29 motion at the end of trial.
19, 2017, the jury returned a guilty verdict on both counts.
On September 18, 2017, the government moved for restitution
awards totaling $530, 000 for R.W. And $510, 000 for M.M.,
including $300, 000 each for a lifetime of psychological
treatment, $200, 000 each for a lifetime of lost income, and
$30, 000 for R.W. and $10, 000 for M.M. for Maurice and
Gum's ill-gotten gains. The government requested that the
district court hold the coconspirators jointly and severally
liable for the full amounts. See 18 U.S.C. §
government submitted victim-impact statements to support its
request for restitution. For R.W., it submitted her statement
from William's case and a statement about psychological
trauma resulting from the instant conspiracy. In the latter
statement, R.W. expressed that she "look[s] at men
very different" and is "scared that all men
are like this." ROA vol. 2 at 67. She further reported
experiencing the same symptoms of psychological trauma that
she had reported in William's case. For M.M., the
government submitted a declaration from M.M.'s guardian
ad litem attesting that M.M.'s encounter with Anthony
"made her feel less than human, humiliated and
ashamed." Id. at 108. She also attested that
M.M. now experiences trouble concentrating and sleeping,
nightmares, and feelings of shame, sadness, and anger.
October 24, 2017, the district court sentenced Anthony to the
statutory mandatory-minimum term of ten years'
imprisonment, to be followed by five years' supervised
release. At the hearing, the court stated that, though it was
"not entering an order of restitution at this
time," it intended to order "joint and
several" restitution among the coconspirators.
Id. vol. 3A at 56. Anthony waived his right to
attend any future restitution hearing.
December 11, 2017, in a one-page response to the
government's restitution motion, Anthony argued that his
"role in the conspiracy to which he was convicted was
that he called an 'escort' line which sent R.W. and
M.M., minors, to his home [sic] for sexual services without
him knowing or having reason to know that they were
minors." Id. vol. 1 at 226. Anthony stressed
that "[t]his was a one-time event." Id.
Beyond that, Anthony simply adopted Duong's response and
surreply. Duong's response first faulted the government
for failing to disaggregate from the request for future
therapy costs the psychological harm that William had caused
R.W. long before the instant conspiracy had even begun.
Addressing lost future income, Duong's response argued
that the requested amount failed to account for R.W.'s
and M.M.'s abilities to increase their earning potential
by pursuing high-school or college degrees. And, finally,
Duong's response argued that Maurice and Gum should be
solely responsible to reimburse the victims for all money
obtained by prostituting them. In his surreply, Duong argued
that the court should apportion his restitution liability
under 18 U.S.C. § 3664(h) to reflect his "small
role" in the conspiracy. Id. vol. 2 at 210-11.
February 21, 2018, the district court granted in part the
government's motion for restitution. The court declined
to order that Anthony pay restitution for lost future income,
but it did require that he pay restitution for the estimated
$40, 000 that Maurice and Gum had earned from prostituting
R.W. and M.M., and for the full cost of R.W.'s and
M.M.'s anticipated future therapy expenses-totaling $327,
013.50 and $308, 233.50, respectively. The court held
Anthony, Gum, Duong, Baker, and Maurice jointly and severally
liable for the full awards. This appeal followed.
raises two issues on appeal. First, he argues that the
district court erred by ordering that he pay restitution for
losses that R.W. had sustained while with William, months
before the instant conspiracy. And second, he argues that the
district court erred by ordering restitution for all the
losses that R.W. and M.M. suffered during the charged
three-week conspiracy, when at most he had joined a subset of
that broad conspiracy by conspiring to obtain sexual services
one time, on October 24, 2014. In short, Anthony argues that
the district court erred by ordering restitution against him
for losses beyond those he caused.
The Restitution Statutes
may award restitution only as authorized by statute.
United States v. Gordon, 480 F.3d 1205, 1210 (10th
Cir. 2007). Here, the district court ordered that Anthony pay
restitution to R.W. and M.M. under the Mandatory Victims
Restitution Act (MVRA), 18 U.S.C. § 3663A, and the
Trafficking Victims Protection Reauthorization Act (TVPRA),
18 U.S.C. § 1593. Anthony argues that neither statute
authorizes the full restitution award against him, because
the award compensates the victims for losses that he did not
cause. We review de novo the district court's
interpretation of the restitution statutes, review for clear
error its factual findings, and review for abuse of
discretion the restitution amount. See United States v.
Camick, 796 F.3d 1206, 1223 (10th Cir. 2015); United
States v. Gallant, 537 F.3d 1202, 1247 (10th Cir. 2008).
A district court abuses its discretion if it orders a
restitution amount based on an "erroneous view of the
law or on a clearly erroneous assessment of the
evidence." United States v. Howard, 784 F.3d
745, 750 (10th Cir. 2015) (citation omitted).
may be ordered only for losses actually resulting from the
offense of conviction. United States v. West, 646
F.3d 745, 751 (10th Cir. 2011). So before ordering
restitution, the district court must determine whether the
victim's losses result from the offense of conviction.
See United States v. Zander, 794 F.3d 1220, 1233
(10th Cir. 2015). The government bears the burden of proving
the amount of loss by a preponderance of the evidence.
United States v. Galloway, 509 F.3d 1246, 1253 (10th
Cir. 2007). It "bears the same burden regarding the
subordinate question of what harms are properly included in
the loss ...