UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-4654
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAPHNE PRATT,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Columbia. Terry L. Wooten, Senior District Judge. (3:16-cr-00207-TLW-2)
Submitted: July 21, 2020 Decided: July 27, 2020
Before MOTZ, KEENAN, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David Alan Brown, Sr., DABROWNLAW LLC, Rock Hill, South Carolina, for Appellant. James Hunter May, Assistant United States Attorney, OFFICE OF THE UNITED STATES OF AMERICA, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Daphne Pratt pled guilty, pursuant to a written plea agreement, to conspiracy to
engage in child sex trafficking, in violation of 18 U.S.C. §§ 1591(a), 1594(c) (2018). The
district court sentenced Pratt to 120 months’ imprisonment. On appeal, counsel has filed
a brief pursuant to Anders v. California, 368 U.S. 738 (1967), asserting that there are no
meritorious issues for appeal, but questioning whether 18 U.S.C. § 1591(a), (c) (2018) is
constitutional, whether Pratt is entitled to additional good time credits under the First Step
Act, and whether trial counsel was ineffective. Pratt filed a pro se supplemental brief
raising a Fourth Amendment challenge to a search warrant executed at her home and raising
ineffective assistance of counsel. The Government elected not to file a brief and does not
seek to enforce the appeal waiver in Pratt’s plea agreement. ∗ Finding no error, we affirm.
First, counsel challenges the constitutional validity of 18 U.S.C. § 1591(a), (c). This
constitutional challenge is not foreclosed by Pratt’s plea agreement. See Class v. United
States, 138 S. Ct. 798 (2018) (holding that a guilty plea by itself does not bar a criminal
defendant from challenging the constitutionality of the statute of conviction). A defendant
is guilty of sex trafficking children if she “knowingly . . . recruits, entices, harbors,
transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a
person . . . knowing, or, . . . in reckless disregard of the fact . . . that the person has not
∗ Because the Government has not asserted the appeal waiver as a bar to this appeal, we may consider the issues raised by counsel and conduct an independent review of the record pursuant to Anders. See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).
2 attained the age of 18 years and will be caused to engage in a commercial sex act.” 18
U.S.C. § 1591(a). In a case where the defendant “had a reasonable opportunity to observe
the [minor], the Government need not prove that the defendant knew, or recklessly
disregarded the fact, that the person had not attained the age of 18 years.” 18 U.S.C. §
1591(c).
Pratt argues that 18 U.S.C. § 1591(c)’s alternative scienter requirement that a
defendant had a “reasonable opportunity to observe” the minor imposes strict liability on a
defendant regarding a victim’s age, relieving the Government of its burden to prove that
the defendant knew the victim was under the age of 18. Pratt argues that this “strict
liability” violates the Due Process Clause. We disagree. Pratt’s argument conflates the
concepts of mens rea—which is an element of the crime—and burden of proof—the
“measure of how convincing the government’s evidence must be to establish an element
of the crime.” United States v. Mozie, 752 F.3d 1271, 1281–82 (11th Cir. 2014).
“Section 1591 does not actually impose strict liability because the statute,
throughout its revisions, has retained a traditional scienter requirement of knowledge that
the victim will be caused to engage in a commercial sex act.” United States v. Whyte, 928
F.3d 1317, 1330–31 (11th Cir. 2019), cert. denied, 140 S. Ct. 875 (2020) (internal quotation
marks omitted). Proof of a victim’s age “is distinct from the Government’s independent
burden of proving beyond a reasonable doubt that a defendant was knowingly involved in
a commercial sex act.” United States v. Copeland, 820 F.3d 809, 812 n.6 (5th Cir. 2016).
“Congress can—and often does—reduce or eliminate scienter requiring knowledge
of a minor victim’s age in sex crimes.” Id. at 814. And “Congress may dislodge the
3 presumption that an element requires proof of a culpable mental state.” Whyte, 928 F.3d
at 1330. Therefore, although Ҥ 1591(c) imposes strict liability with regard to the
defendant’s awareness of the victim’s age,” United States v. Robinson, 702 F.3d 22, 39 (2d
Cir. 2012), the statute does not violate the Due Process Clause because the Government
must still prove all of its elements beyond a reasonable doubt. In any event, here, Pratt
admitted, during the Fed. R. Crim. P. 11 hearing, that she knew that one of the young girls
was under the age of 18. Pratt also concurred with the summary of the guilty plea
agreement’s factual basis, which asserted that she had actual knowledge, at the time of the
offense, that a victim of the scheme was under the age of 18. We therefore find Pratt’s
constitutional challenge to her conviction without merit.
In her supplemental pro se brief, Pratt also raised a Fourth Amendment violation.
She challenges the validity of a search of her residence. By pleading guilty, Pratt waived
the right to contest any nonjurisdictional defect in the proceedings conducted prior to the
entry of the plea, including constitutional violations. See Tollett v. Henderson, 411 U.S.
258, 267 (1973). Accordingly, Pratt’s Fourth Amendment claim is foreclosed.
Finally, Pratt contends that trial counsel was ineffective for failing to challenge the
denial of a three-level reduction for acceptance of responsibility under U.S. Sentencing
Guidelines Manual § 3E1.1 (2016). She contends that the court erroneously relied on her
pre-indictment and pre-plea agreement conduct to deny the reduction. Claims of
ineffective assistance generally are not addressed on direct appeal unless “ineffectiveness
conclusively appears on the face of the record.” United States v. Faulls, 821 F.3d 502,
507-08 (4th Cir. 2016). To succeed on a claim of ineffective assistance of counsel, the
4 movant bears the burden to “show that counsel’s performance was [constitutionally]
deficient” and “that the deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-4654
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAPHNE PRATT,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Columbia. Terry L. Wooten, Senior District Judge. (3:16-cr-00207-TLW-2)
Submitted: July 21, 2020 Decided: July 27, 2020
Before MOTZ, KEENAN, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David Alan Brown, Sr., DABROWNLAW LLC, Rock Hill, South Carolina, for Appellant. James Hunter May, Assistant United States Attorney, OFFICE OF THE UNITED STATES OF AMERICA, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Daphne Pratt pled guilty, pursuant to a written plea agreement, to conspiracy to
engage in child sex trafficking, in violation of 18 U.S.C. §§ 1591(a), 1594(c) (2018). The
district court sentenced Pratt to 120 months’ imprisonment. On appeal, counsel has filed
a brief pursuant to Anders v. California, 368 U.S. 738 (1967), asserting that there are no
meritorious issues for appeal, but questioning whether 18 U.S.C. § 1591(a), (c) (2018) is
constitutional, whether Pratt is entitled to additional good time credits under the First Step
Act, and whether trial counsel was ineffective. Pratt filed a pro se supplemental brief
raising a Fourth Amendment challenge to a search warrant executed at her home and raising
ineffective assistance of counsel. The Government elected not to file a brief and does not
seek to enforce the appeal waiver in Pratt’s plea agreement. ∗ Finding no error, we affirm.
First, counsel challenges the constitutional validity of 18 U.S.C. § 1591(a), (c). This
constitutional challenge is not foreclosed by Pratt’s plea agreement. See Class v. United
States, 138 S. Ct. 798 (2018) (holding that a guilty plea by itself does not bar a criminal
defendant from challenging the constitutionality of the statute of conviction). A defendant
is guilty of sex trafficking children if she “knowingly . . . recruits, entices, harbors,
transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a
person . . . knowing, or, . . . in reckless disregard of the fact . . . that the person has not
∗ Because the Government has not asserted the appeal waiver as a bar to this appeal, we may consider the issues raised by counsel and conduct an independent review of the record pursuant to Anders. See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007).
2 attained the age of 18 years and will be caused to engage in a commercial sex act.” 18
U.S.C. § 1591(a). In a case where the defendant “had a reasonable opportunity to observe
the [minor], the Government need not prove that the defendant knew, or recklessly
disregarded the fact, that the person had not attained the age of 18 years.” 18 U.S.C. §
1591(c).
Pratt argues that 18 U.S.C. § 1591(c)’s alternative scienter requirement that a
defendant had a “reasonable opportunity to observe” the minor imposes strict liability on a
defendant regarding a victim’s age, relieving the Government of its burden to prove that
the defendant knew the victim was under the age of 18. Pratt argues that this “strict
liability” violates the Due Process Clause. We disagree. Pratt’s argument conflates the
concepts of mens rea—which is an element of the crime—and burden of proof—the
“measure of how convincing the government’s evidence must be to establish an element
of the crime.” United States v. Mozie, 752 F.3d 1271, 1281–82 (11th Cir. 2014).
“Section 1591 does not actually impose strict liability because the statute,
throughout its revisions, has retained a traditional scienter requirement of knowledge that
the victim will be caused to engage in a commercial sex act.” United States v. Whyte, 928
F.3d 1317, 1330–31 (11th Cir. 2019), cert. denied, 140 S. Ct. 875 (2020) (internal quotation
marks omitted). Proof of a victim’s age “is distinct from the Government’s independent
burden of proving beyond a reasonable doubt that a defendant was knowingly involved in
a commercial sex act.” United States v. Copeland, 820 F.3d 809, 812 n.6 (5th Cir. 2016).
“Congress can—and often does—reduce or eliminate scienter requiring knowledge
of a minor victim’s age in sex crimes.” Id. at 814. And “Congress may dislodge the
3 presumption that an element requires proof of a culpable mental state.” Whyte, 928 F.3d
at 1330. Therefore, although Ҥ 1591(c) imposes strict liability with regard to the
defendant’s awareness of the victim’s age,” United States v. Robinson, 702 F.3d 22, 39 (2d
Cir. 2012), the statute does not violate the Due Process Clause because the Government
must still prove all of its elements beyond a reasonable doubt. In any event, here, Pratt
admitted, during the Fed. R. Crim. P. 11 hearing, that she knew that one of the young girls
was under the age of 18. Pratt also concurred with the summary of the guilty plea
agreement’s factual basis, which asserted that she had actual knowledge, at the time of the
offense, that a victim of the scheme was under the age of 18. We therefore find Pratt’s
constitutional challenge to her conviction without merit.
In her supplemental pro se brief, Pratt also raised a Fourth Amendment violation.
She challenges the validity of a search of her residence. By pleading guilty, Pratt waived
the right to contest any nonjurisdictional defect in the proceedings conducted prior to the
entry of the plea, including constitutional violations. See Tollett v. Henderson, 411 U.S.
258, 267 (1973). Accordingly, Pratt’s Fourth Amendment claim is foreclosed.
Finally, Pratt contends that trial counsel was ineffective for failing to challenge the
denial of a three-level reduction for acceptance of responsibility under U.S. Sentencing
Guidelines Manual § 3E1.1 (2016). She contends that the court erroneously relied on her
pre-indictment and pre-plea agreement conduct to deny the reduction. Claims of
ineffective assistance generally are not addressed on direct appeal unless “ineffectiveness
conclusively appears on the face of the record.” United States v. Faulls, 821 F.3d 502,
507-08 (4th Cir. 2016). To succeed on a claim of ineffective assistance of counsel, the
4 movant bears the burden to “show that counsel’s performance was [constitutionally]
deficient” and “that the deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). In the context of a guilty plea, a defendant must
demonstrate a reasonable probability that, but for counsel’s errors, she would have
proceeded to trial. Lee v. United States, 137 S. Ct. 1958, 1965 (2017).
A defendant qualifies for a two-level reduction for acceptance of responsibility if
she enters into “a plea of guilty prior to the commencement of trial combined with
truthfully admitting the conduct comprising the offense of conviction, and truthfully
admitting or not falsely denying any additional relevant conduct for which [she] is
accountable under § 1B1.3.” USSG § 3E1.1, cmt. n.3. However, “conduct resulting in an
enhancement [for obstruction of justice] ordinarily indicates that the defendant has not
accepted responsibility for h[er] criminal conduct.” USSG § 3E1.1, cmt. n.4. An
obstruction of justice enhancement is proper when “the defendant . . . attempted to obstruct
or impede, the administration of justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction . . . .” USSG § 3C1.1.
The record indicates that the court applied a two-level obstruction of justice
enhancement to Pratt’s sentence because, while under investigation for the instant offense,
Pratt attempted to intimidate and influence two Government witnesses to change their trial
testimony. The record before us does not conclusively establish ineffective assistance of
counsel, and we conclude that these claims should be raised, if at all, in a § 2255 motion.
See Faulls, 821 F.3d at 507-08.
5 Lastly, we decline to address Pratt’s entitlement to additional good time credits
under the First Step Act, 132 Stat. 5194, § 102(b) because she has failed to exhaust her
administrative remedies and has not challenged the calculation or award of such credits by
the Bureau of Prisons in a petition for habeas corpus in the district court. See 18 U.S.C.
§ 3624(b)(1) (2018). Therefore, an adjudication of credits at this juncture is premature.
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Pratt, in writing, of the right to petition the Supreme
Court of the United States for further review. If Pratt requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then counsel may move in this
court for leave to withdraw from representation. Counsel’s motion must state that a copy
thereof was served on Pratt.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED