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United States v. Hornbuckle

United States Court of Appeals, Ninth Circuit

April 21, 2015

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
TYNISHA MARIE HORNBUCKLE, AKA My Nookie, AKA Nene, AKA No Feelings, Defendant-Appellant

Argued and Submitted March 10, 2015, San Francisco, California

Appeal from the United States District Court for the Eastern District of California. D.C. No. 2:11-cr-00327-MCE-1, D.C. No. 2:11-cr-00327-MCE-2. Morrison C. England, Jr., Chief District Judge, Presiding.

AFFIRMED.

SUMMARY[*]

Criminal Law

The panel affirmed sentences for sex trafficking of children under 18 U.S.C. § 1591.

The panel held that application of enhancement under U.S.S.G. § 2G1.3(b)(4)(A) was not double counting because " commission of a sex act or sexual contact" is not an element of a conviction under § 1591.

The panel held that the district court properly applied an enhancement under U.S.S.G. § 2G1.3(b)(2)(B) for undue influence. The panel held that the record supports the district court's finding of undue influence for all three minors. The panel joined several other circuits in holding that where the record otherwise supports a district court's factual finding of undue influence, evidence of the minor victim's willingness is insufficient to compel reversal of the district court's finding.

Bruce Locke (argued), Moss & Locke, Sacramento, California, for Defendant-Appellant Tynisha Marie Hornbuckle.

Erin Jolene Radekin (argued), Law Office of Erin Radekin, Sacramento, California; Hayes H. Gable, III, Law Office of Hayes H. Gable, III, Sacramento, California, for Defendant-Appellant Tamrell Rena Hornbuckle.

Camil A. Skipper (argued), Assistant United States Attorney, Appellate Chief; Benjamin B. Wagner, United States Attorney; Kyle Reardon and Matthew C. Stegman, Assistant United States Attorneys, Eastern District of California, Sacramento, California, for Plaintiff-Appellee.

Before: William A. Fletcher, Andre M. Davis[**], and Morgan Christen, Circuit Judges.

OPINION

Page 550

Morgan Christen, Circuit Judge.

Tynisha and Tamrell Hornbuckle are sisters who each pleaded guilty to two counts of sex trafficking of children under

Page 551

18 U.S.C. § 1591. They challenge their sentences in these consolidated appeals. The district court held an extensive evidentiary hearing and sentenced Tynisha to 188 months and Tamrell to 151 months in prison.[1] The sentences included enhancements under U.S.S.G. § 2G1.3(b)(4)(A), because sex acts were actually committed by the minors, and under U.S.S.G. § 2G1.3(b)(2)(B), for undue influence. The sisters appeal the application of both enhancements. We affirm.

BACKGROUND

I. Facts

From 2008 to 2011, Tynisha and Tamrell ran a prostitution ring with the help of their siblings Latrelle and Cherrelle Hornbuckle and their mother Tammy Brown. Tynisha and Tamrell, who were then in their twenties, acted as pimps who made money off adult and child prostitutes. These appeals arise from their interactions with three underage victims: P.H., who was 13 when she started working for the Hornbuckles; A.Hi., who was approximately 15 or 16; and A.He., who was 17. Tynisha primarily managed the underage prostitutes while Tamrell managed the adults, but on occasion Tamrell also arranged " dates" for the minors. The three homeless minors who are the subject of this case all lived with the Hornbuckles at one point, and they often performed sex acts for clients at Latrelle and Cherrelle's home and in Tammy's garage.

P.H., A.Hi., and A.He. gave all of their earnings to Tynisha and Tamrell,[2] who imposed daily quotas on them. A.He. had sex with ten to fifteen clients a day. Whenever the victims said they did not want to work, Tynisha told them to " [j]ust do a few" because they had " bills to pay." The girls generally got three to four hours of sleep per day because they were " [a]lways working."

Tynisha hit, beat, choked, and kicked A.Hi. and P.H. for " [a]nything and everything," such as " acting out of line" or dressing too slowly for work. P.H. in particular would get " [a]nywhere from a slap to a full-on beating" if she did not bring back enough money from a date. Tamrell also " smacked" and beat P.H. The sisters had a practice of driving to a dead-end street and having other girls hold the car doors shut while they yelled at, and " severely beat," A.Hi. and P.H. Although Tynisha never actually hit A.He., she threatened to " kill," " beat," and " punch" her. On one occasion, Tynisha chased A.He. ...


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