United States v. Jesse Lewis

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 28, 2019
• Docket: 14-15596
• Status: Unpublished

Opinion

Case: 14-15596 Date Filed: 02/28/2019 Page: 1 of 42

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 14-15596 ________________________

D.C. Docket No. 0:14-cr-60080-JEM-1

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JESSE LEWIS,

Defendant - Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(February 28, 2019)

Before MARCUS, JILL PRYOR and SILER, * Circuit Judges.

PER CURIAM:

* The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge for the Sixth Circuit, sitting by designation. Case: 14-15596 Date Filed: 02/28/2019 Page: 2 of 42

A jury convicted Jesse Lewis of two counts of sex trafficking by force,

threats of force, fraud, and/or coercion, in violation of 18 U.S.C. § 1591(a), and

one count of using, carrying, and possessing a firearm in furtherance of a crime of

violence and brandishing that firearm, in violation of 18 U.S.C. § 924(c)(1)(A),

(c)(3)(B). On appeal, Lewis challenges the impanelment of a juror and the

admission of various of items of evidence. He also argues that the district court

abused its discretion by denying him a continuance to present a witness, that the

government’s improper remarks in its closing argument deprived him of a fair trial,

that his conviction under § 924(c) is invalid on statutory and constitutional

grounds, and that cumulative error tainted his trial. Finally, he argues that the

district court made numerous errors in sentencing him. Having thoroughly

reviewed the record, and with the benefit of oral argument, we affirm.

I. FACTUAL BACKGROUND

A. Lewis’s Trafficking of Tracie Bertie (Counts 1 and 3)

Lewis met Tracie Bertie in July 2010, shortly after she lost her job as a

nanny. At the time, Bertie was a Brazilian national present in the United States

who had overstayed her visa. She and Lewis soon entered a relationship, and she

moved in with him. Lewis told Bertie he could get her a dancing job. Bertie did

not realize that Lewis wanted her to prostitute herself until he drove her to a

client’s house. Lewis gave Bertie condoms and told her to have sex with the client.

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Bertie, though afraid, did what she was told. Lewis arranged additional

prostitution appointments for Bertie; after initially allowing her to keep the

earnings, he later began to pocket them himself, telling Bertie he was saving the

money for her. Lewis set the prices for Bertie’s prostitution appointments.

Lewis booked Bertie a room at a Red Roof Inn in Broward County, Florida,

where for about two months she met clients and spent time alone. Lewis and an

associate of his named Sadé Patterson arranged prostitution appointments for

Bertie. A Red Roof employee named Fausto Silva, whom Bertie befriended, once

observed a bruise on Bertie’s arm, but never asked her about it. Bertie and Silva

spoke regularly, but when Lewis’s car approached, Bertie would tell Silva that she

had to leave and would run up to her room.

Bertie told Lewis she did not want to sleep with strangers for money; he

responded that she could not leave and that he would punish her if she refused. He

told Bertie that, for each prostitution appointment she had to receive payment first,

must use condoms whenever having sex, and could not kiss another man or look at

his eyes. When Bertie disobeyed Lewis, he would call her names, choke her, and

pull her hair. Lewis also monitored Bertie’s phone, required her to seek his

permission before going anywhere, and took her passport, which he returned only

when he was satisfied that she would behave as he wanted.

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Bertie regularly slept with at least five clients a day and had over 100 client

appointments during her time under Lewis’s control. The appointments included

two, which Lewis arranged, with a client she knew only as “Master,” a man who

locked Bertie in his house, forced her to ingest cocaine, and pulled her hair. The

second time Bertie saw Master, she was accompanied by a fellow prostitute named

China. Lewis knew Master scared Bertie, but he forced her to see Master anyway.

Bertie and Lewis moved to a house in North Miami. Once, Bertie tried to

escape, but Lewis discovered her plans. He choked her, called her names,

threatened to cut and kill her, hit her on the head with a gun, and pointed the gun at

her face. Lewis locked Bertie in the trunk of his car and told her he would find and

kill her brother. She found the trunk’s release button and escaped, but Lewis found

her before she could contact the police, ordered her back into the car, and drove her

back to the house. A neighbor, observing the scene, called the police, who arrived

at Lewis’s house. Lewis instructed Bertie to lie to the police, threatening to kill her

brother if she did not obey. Bertie complied, telling the police she had been

running down the street because her grandmother had died and she had gone

temporarily crazy. The police left after observing no bruises on Bertie and having

received her assurance that she was safe. Lewis locked Bertie in a room for two

days, letting her leave only under supervision.

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Bertie and China were arrested together in Miami Beach in December 2010

after China propositioned an undercover police officer. An immigration hold was

placed on Bertie, and she was detained at the Broward Transitional Center. While

awaiting deportation proceedings, she told her attorney and later federal law

enforcement officials about her captivity under Lewis. When Lewis visited Bertie

while she was in custody, she did not tell him about her meetings with law

enforcement, as she feared he might harm her brother. The government eventually

dropped the immigration charges against Bertie, released her from custody, granted

her legal status, and allowed her to remain in the United States. Law enforcement

officials told Bertie not to contact Lewis upon her release. She nonetheless went

back to Lewis and slept with him—in part, she explained, because she felt lost and

afraid, and in part so that he would not harm her brother.

B. Lewis’s Trafficking of Kimberly Askinazi (Count 2)

Askinazi met Lewis in June 2013. At the time, she was addicted to Dilaudid

and had financial troubles. Accompanied by a woman named Diamond, Lewis

approached Askinazi outside a pharmacy in Tampa and told her he could help her

if she helped him. Believing Lewis would help her to obtain drugs, Askinazi got

into his car. Lewis bought Dilaudid pills, giving Askinazi half of one pill and

keeping the rest. The three went to a hotel, where Lewis and Diamond took photos

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of Askinazi for an advertisement on Backpage.com, but the ad garnered no

response.

Lewis and Diamond left Tampa for Broward County, bringing Askinazi with

them, because they had been unsuccessful in finding customers in Tampa.

Askinazi witnessed Lewis hit and attempt to choke Diamond, but she chose to not

leave because Lewis was providing her with her pills. The three checked into

another hotel. Lewis posted another Backpage.com ad, which garnered several

responses. Lewis required Askinazi to follow certain rules of conduct at all times:

she had to call him Daddy, look down in public, refrain from disrespecting him,

refrain from touching the beads he wore around his neck, and refrain from

blocking her face when he hit her. Lewis once slapped Askinazi for addressing

him as “you,” and then choked her when she did it again. When Askinazi flinched,

he hit her yet again. Askinazi also observed Lewis beat Diamond for what Lewis

perceived as disrespectful conduct.

Lewis and Askinazi later moved to a Sheraton hotel, where they stayed with

a prostitute named Lala. Lewis became upset when Askinazi and Lala spoke with

one another too frequently. He hit Askinazi twice, causing her tooth to loosen and

later fall out, and choked her for disrespecting him. Lewis posted another

Backpage.com ad, and Askinazi met and slept with several clients, earning $100-

150 per encounter. Lewis kept Askinazi’s money, cell phone, identification, and

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pills. Although Askinazi did not want to prostitute herself, she feared Lewis would

harm or kill her if she refused.

Askinazi escaped from the Sheraton early one morning after Lewis had

fallen asleep. She called 911 and told the dispatcher that she had run away from a

pimp. A Sheriff’s Deputy picked Askinazi up and took her to a rape treatment

center.

C. Lewis’s Trial

The government filed a three-count indictment against Lewis in the Southern

District of Florida. Count 1 charged Lewis with sex trafficking of Bertie by force,

fraud, or coercion under 18 U.S.C. § 1591(a)(1) and (b)(1). Count 2 alleged the

same with respect to Askinazi. Count 3 charged Lewis with using, carrying,

possessing, and brandishing a firearm during and in relation to Count 1, in

violation of 18 U.S.C. § 924(c)(1)(A), (c)(3)(B).

Before trial, Lewis moved to suppress evidence from cell phones that he

alleged were seized in an unconstitutional search of his hotel room. The district

court granted the motion, prohibiting the introduction of evidence recovered from

the phones. The government moved in limine to preclude Lewis from asking

Askinazi about (1) pending criminal charges against her for possession of narcotics

and drug paraphernalia arising out of her arrest on August 25, 2014—weeks before

the trial in this case began—and (2) her potential prostitution activity after the time

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alleged in the indictment, including the appearance of her photograph and phone

number on a Backpage.com ad dated August 23, 2014. Lewis moved for leave to

introduce evidence of Askinazi’s subsequent prostitution activity as relevant to

show she engaged in prostitution for him voluntarily, without coercion. The

district court entered an order denying Lewis’s motion and granting the

government’s motion.

Lewis’s trial counsel asserted in his opening statement that the evidence

would show Askinazi “had been prostituting herself like for most of her adult

life . . . us[ing] sex for drugs.” Doc. 128 at 33.1 The government objected, and the

district court sustained the objection. Askinazi testified that she was unfamiliar

with the Backpage.com ad posted while she, Diamond, and Lewis were in Tampa;

when Lewis’s trial counsel persisted in asking Askinazi about it, the government

objected, and the district court sustained the objection.

After the jury was selected, but before the rest of the venire was dismissed or

the jury was sworn, one juror, Houshiar Fayaz, told the district court that as a

Muslim he could not be involved with anything involving prostitution because

“certain sections of the Quran . . . say[] that prostitution is basically punishable by

death.” Id. at 5. The district court told Fayaz, “[T]he law that as it is presently

written prohibits prostitution, so I don’t think that we’re going to be asking you to

1 All citations to “Doc. #” refer to numbered entries on the district court’s docket.

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approve it or to condone it in any way.” Id. at 6. The court asked Fayaz if he

could “follow the instructions of the court on the law and do your best to give us a

fair and impartial verdict,” and Lewis’s trial counsel asked if Fayaz could “be fair

and impartial in listening to this case.” Id. Fayaz responded “Yes” to both

inquiries. Id.

At trial, the government introduced evidence that, in 2013, Lewis had been

arrested on and found guilty of two prostitution-related charges under Florida law,

unrelated to the conduct charged here, on which adjudication had been withheld.

An undercover police detective testified that he had arrested Lewis and a prostitute

at a hotel after responding to a Backpage.com ad. The detective testified that he

had recovered from Lewis a small pistol loaded with a single bullet, for which

Lewis had a permit, and that the police had seized Lewis’s phone and, after

obtaining a warrant, searched its contents and downloaded all of its photographs

and data.

The government presented psychologist Dr. Steven Gold to testify as an

expert in trauma psychology. Gold testified on the general characteristics of,

psychological underpinnings of, and trauma associated with forced prostitution,

including the manner of control and intimidation that abusers tend to exercise over

their victims. Gold also said that abusive pimps sometimes groom prostitutes, and

that an abuse victim may return to an abuser due to an emotional bond formed

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through trauma. Gold acknowledged that he had met neither Askinazi nor Bertie,

nor read any reports about them.

The government also presented the testimony of a pimp named Michael

Eutsey, who said that Lewis had once called him on the phone and offered to sell

him China’s sexual services. Eutsey testified that he declined Lewis’s offer, and

that roughly an hour later, Lewis arrived at his house with China and another man,

who fired a gun. Eutsey also testified as to common business practices among

pimps, including as to the manner in which aggressive pimps maintain control over

their prostitutes.

After the government presented its case, Lewis’s trial counsel sought a

continuance of three hours and nine minutes to secure the attendance of Sadé

Patterson, who was undergoing a dental procedure at the time. Lewis had failed to

subpoena Patterson or otherwise secure her attendance. Lewis’s counsel proffered

to the court that Patterson would offer exculpatory testimony about Lewis’s

relationship with Askinazi—namely, that she had observed Lewis and Askinazi

together, that Lewis had not been forcing Askinazi to prostitute herself, and that

Askinazi had seemed happy with Lewis. Lewis told the district court that he had

asked his counsel to secure Patterson’s attendance two days earlier. The district

court denied Lewis a continuance.

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Lewis presented no defense, and the jury returned a verdict of guilty on all

counts. At sentencing, Lewis told the court that he was unprepared and needed

new counsel, asserting ongoing conflicts with his trial counsel. The probation

office prepared a presentence investigation report (“PSR”) for Lewis,

recommending a sentencing range of 324-405 months for Counts 1 and 2 and a

consecutive seven-year term for Count 3. The district court imposed a 444-month

sentence with lifetime supervised release to follow—360 months for Counts 1 and

2, and 84 months for Count 3.

This is Lewis’s appeal.

II. STANDARDS OF REVIEW

We review questions of constitutional law and statutory construction de

novo. United States v. Ibarguen-Mosquera, 634 F.3d 1370, 1383 (11th Cir. 2011);

United States v. Brown, 364 F.3d 1266, 1268 (11th Cir. 2004). We review

unpreserved challenges, however, for plain error. United States v. Turner, 474

F.3d 1265, 1275 (11th Cir. 2007). “Under the plain error standard, the defendant

must show that (1) an error occurred; (2) the error was plain; (3) it affected his

substantial rights; and (4) it seriously affected the fairness of the judicial

proceedings.” United States v. Flanders, 752 F.3d 1317, 1333 (11th Cir. 2014).

An error is plain when it “is obvious and is clear under current law.” United States

v. Carpenter, 803 F.3d 1224, 1238 (11th Cir. 2015) (internal quotation marks

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omitted). “Where neither the Supreme Court nor this Court has ever resolved an

issue, and other circuits are split on it, there can be no plain error in regard to that

issue.” Id. at 1238-39 (alteration adopted) (internal quotation marks omitted).

“We review evidentiary rulings for abuse of discretion. An abuse of

discretion occurs if the district court applies an incorrect legal standard or makes

findings of fact that are clearly erroneous.” United States v. Wilk, 572 F.3d 1229,

1234 (11th Cir. 2009) (citations omitted). A district court also abuses its discretion

by “ma[king] a clear error of judgment.” United States v. Frazier, 387 F.3d 1244,

1259 (11th Cir. 2004) (en banc). But “where . . . a defendant fails to preserve an

evidentiary ruling by contemporaneously objecting, our review is only for plain

error.” United States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007).

“The decision whether to continue a trial is committed to the sound

discretion of the district court,” and we review the denial of a continuance for

abuse of that discretion. United States v. Cross, 928 F.2d 1030, 1048-49 (11th Cir.

1991).

“The Court reviews a prosecutorial misconduct claim de novo because it is a

mixed question of law and fact.” United States v. Eckhardt, 466 F.3d 938, 947

(11th Cir. 2006). But we review unpreserved claims of prosecutorial misconduct

for plain error. United States v. Flanders, 752 F.3d 1317, 1332-33 (11th Cir.

2014).

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We review the total prejudicial effect of cumulative error de novo to

determine whether reversal is warranted, considering both preserved and

unpreserved errors. United States v. Dohan, 508 F.3d 989, 993 (11th Cir. 2007).

A preserved error of constitutional magnitude that occurs during the presentation

of a case to a jury requires that we reverse and remand for a new trial unless the

government can prove that the error was harmless beyond a reasonable doubt.

Arizona v. Fulminante, 499 U.S. 279, 295-96 (1991) (citing Chapman v.

California, 386 U.S. 18, 24 (1967)); United States v. Margarita Garcia, 906 F.3d

1255, 1263 (11th Cir. 2018). “Where . . . a district court conducts an inquiry into

the merits of a criminal defendant’s motion for new counsel, we review [its] ruling

for abuse of discretion.” United States v. Calderon, 127 F.3d 1314, 1343 (11th

Cir. 1997).

“The district court’s interpretation of the sentencing guidelines is subject to

de novo review on appeal, while its factual findings must be accepted unless

clearly erroneous.” United States v. Ellis, 419 F.3d 1189, 1192 (11th Cir. 2005)

(emphasis added) (internal quotation marks omitted). But unpreserved sentencing

challenges are reviewed only for plain error. United States v. Beckles, 565 F.3d

832, 842 (11th Cir. 2009).

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III. ANALYSIS

A. The District Court Did Not Impanel A Biased Juror.

Lewis argues that the district court erred in impaneling a juror whose

religion required that involvement with prostitution be punished by death. A

juror’s religious beliefs do not render him incapable of impartial service, however,

so long as he can set those beliefs aside when necessary to render a verdict based

on the evidence presented. Here, juror Fayaz assured the court that he could render

a fair and impartial verdict, and we see no basis in the record to conclude

otherwise. The district court thus did not err in impaneling the juror.

The Sixth Amendment requires that “[i]n all criminal prosecutions, the

accused shall enjoy the right to a speedy and public trial, by an impartial jury.”

U.S. Const. amend. VI. “The constitutional standard of fairness requires that a

defendant have a panel of impartial, indifferent jurors.” Murphy v. Florida, 421

U.S. 794, 799 (1975) (internal quotation marks omitted). “It is sufficient [to satisfy

this standard] if the juror can lay aside his impression or opinion and render a

verdict based on the evidence presented in court.” Id. at 800 (internal quotation

marks omitted). “[T]he seating of any juror who should have been dismissed for

cause . . . require[s] reversal.” United States v. Martinez-Salazar, 528 U.S. 304,

316 (2000).

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Fayaz told the district court that his religious beliefs mandate death as

punishment for involvement with prostitution. The district court told Fayaz that he

need not “support[,] . . . condone[,] . . . or hav[e] anything to do with” prostitution;

then asked whether Fayaz could “follow the instructions of the court on the law

and do [his] best to [return] a fair and impartial verdict.” Doc. 128 at 6. Fayaz

responded with an unambiguous “Yes.” Id. Although “[a] juror’s assurances that

he is equal to this task cannot be dispositive,” Lewis has failed to demonstrate by

evidence “the actual existence of such an opinion in the mind of the juror as will

raise the presumption of partiality.” Murphy, 421 U.S. at 800 (internal quotation

marks omitted). The record gives us no reason to doubt Fayaz discharged his

duties faithfully and impartially. In light of Fayaz’s assurance that in reaching a

verdict he would lay aside any personal or religious objections to Lewis’s conduct,

we will not indulge in baseless speculation that he could not or would not do so.

The district court thus did not err in impaneling Fayaz.

B. The District Court Did Not Err in Admitting Two Photographs Purportedly Recovered from Unconstitutionally-Seized Cell Phones.

Lewis argues that the district court erred in admitting two photographs that

he asserts the government obtained through an unconstitutional search. Under the

Fourth Amendment, “[t]he right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, shall not be

violated.” U.S. Const. amend. IV. “[C]ourts must suppress evidence obtained in 15 Case: 14-15596 Date Filed: 02/28/2019 Page: 16 of 42

violation of the Fourth Amendment.” United States v. Gilbert, 942 F.2d 1537,

1541 (11th Cir. 1991). “The burden is on the movant to make specific factual

allegations of illegality, to produce evidence, and to persuade the court that the

evidence should be suppressed.” United States v. Evans, 572 F.2d 455, 486 (5th

Cir. 1978). “[U]nsubstantiated speculation[,] . . . standing alone, fails to meet even

[a] defendant’s initial burden of persuading the court that the evidence should be

suppressed.” United States v. Nixon, 918 F.2d 895, 904 (11th Cir. 1990).

It is undisputed that the June 27, 2013 hotel room search and the seizure of

several phones found in Lewis’s possession violated Lewis’s Fourth Amendment

rights. Lewis offered no evidence, however, that the government found the

photographs whose admission he challenges on the unconstitutionally-seized

phones, and so he has failed to meet his burden of showing that the district court

should have excluded them. See Nixon, 918 F.2d at 904; Evans, 572 F.2d at 486.

The district court did not err in admitting the photographs.

C. The District Court’s Evidentiary Rulings Do Not Warrant Reversal or a New Trial.

Lewis argues that the district court admitted several items of evidence in

violation of the Federal Rules of Evidence. The district court properly admitted

each challenged item except for evidence of Lewis’s prior prostitution offense,

which was inadmissible. However, Lewis fails to show that the admission of this

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evidence prejudiced him given the overwhelming evidence against him. None of

the district court’s admissibility decisions warrants reversal or a new trial.

1. Dr. Gold’s Testimony

Lewis argues that the district court plainly erred in admitting Dr. Gold’s

expert testimony on the psychology of trauma because it was unrelated to the facts

of the case and unduly prejudicial. Gold’s testimony assisted the jury in

understanding the psychological and emotional relationships that prostitutes form

with pimps; for this reason, the district court did not err in admitting it.

“A witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise if” four

requirements are met:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. “The court may exclude relevant evidence if its probative value

is substantially outweighed by a danger of . . . unfair prejudice, confusing the

issues, misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Fed. R. Evid. 403.

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Lewis argues that because the government offered no evidence that he,

Askinazi, or Bertie had traits or engaged in behaviors that Gold described as

typical of the pimp-prostitute relationship, Gold’s testimony failed to satisfy Rule

702, as it did not assist the jury in understanding the evidence or determining a fact

in issue. He also argues that because Gold had never spoken to either Askinazi or

Bertie and had read no reports about them or this case, his testimony did not apply

reliable principles and methods to the facts of the case. Both arguments fail for the

same reason: Rule 702 allows an expert witness “to opine about a complicated

matter without any firsthand knowledge of the facts in the case.” Frazier, 387 F.3d

at 1260; see also Fed. R. Evid. 702 advisory committee’s note to 2000 amendment

(“[A]n expert [may] educate the factfinder about general principles, without ever

attempting to apply these principles to the specific facts of the case.”). Gold’s

testimony could have helped the jury to contextualize Askinazi’s and Bertie’s

relationships with Lewis and understand the trauma Lewis inflicted on them—

subjects that likely are beyond an ordinary juror’s knowledge or experience. See

United States v. Taylor, 239 F.3d 994, 998 (9th Cir. 2001) (“[T]he relationship

between prostitutes and pimps is not the subject of common knowledge. . . . A trier

of fact who is in the dark about that relationship may be unprepared to assess the

veracity of an alleged pimp, prostitute, or other witness testifying about

prostitution.”). Any prejudice Lewis experienced from the testimony’s admission

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did not substantially outweigh its value. The district court did not, therefore, err in

admitting Gold’s testimony.

2. Eutsey’s Business Practices Testimony

Lewis argues that the district court plainly erred in admitting Eutsey’s

testimony as to his business practices as a pimp. Lewis asserts that this testimony

was irrelevant and unduly prejudicial. “Evidence is relevant if: (a) it has any

tendency to make a fact more or less probable than it would be without the

evidence; and (b) the fact is of consequence in determining the action.” Fed. R.

Evid. 401. Evidence satisfies this test, even if it does not demonstrate the ultimate

fact sought to be proven, if it constitutes “a step on one evidentiary route to the

ultimate fact.” Old Chief v. United States, 519 U.S. 172, 179 (1997). Eutsey’s

testimony as to his business practices, and those of pimps generally, was relevant

inasmuch as it corroborated and contextualized Bertie and Askinazi’s testimony

about Lewis’s exploitation of their weaknesses to recruit, groom, and control them.

By showing that Lewis’s methods for manipulating prostitutes were common

practice among pimps, Eutsey’s testimony could have assisted the jury in

understanding that such conduct likely was part of the charged forced prostitution

schemes. The district court did not err in admitting Eutsey’s testimony.

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3. Eutsey’s Testimony that Lewis Attempted to Sell Him An Underage Prostitute and Brought a Gunman to His Home

Lewis argues the district court plainly erred in admitting Eutsey’s testimony

that Lewis tried to sell him China’s sexual services2 and came to his home with

China and a second man, who fired a gun, because such testimony was irrelevant

and unduly prejudicial. Eutsey’s testimony was relevant because it demonstrated

that Lewis served as China’s pimp, and that fact in turn buttressed Bertie’s

testimony that when she and China were arrested together, they both were under

Lewis’s control. See Fed. R. Evid. 401. Any danger of unfair prejudice from

Eutsey’s testimony did not substantially outweigh its probative value. See Fed. R.

Evid. 403. The district court thus did not err in admitting it.

4. Undated Photo of Lewis Holding a Gun

Lewis argues that the district court plainly erred in admitting into evidence

an undated photograph of him holding a firearm. 3 Evidence that Lewis possessed a

firearm at some unknown time and in some unknown context, he says, was

irrelevant to the charged offenses and unduly prejudicial. The photograph was

relevant, the government argued, because it tended to corroborate Bertie’s

2 Lewis asserts Eutsey testified that Lewis offered to transfer ownership of China to him, but this misconstrues the record, which shows that Eutsey testified Lewis merely sought to sell him China’s sexual services. 3 We have already rejected Lewis’s Fourth Amendment challenge to the photograph’s admission. See supra Part III.B

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testimony that Lewis frequently carried a firearm, which in turn corroborated her

testimony that she feared Lewis because he beat her with a firearm, held a firearm

to her head, and threatened her with a firearm. See Fed. R. Evid. 401. Lewis says

the photograph lacked relevance because Bertie did not testify that (1) Lewis used

the depicted firearm in committing a charged offense, (2) she was present when the

photograph was taken, or (3) she knew when or in what context the photograph

was taken. But these arguments go only to how much probative value the

photograph had, not whether it had any relevance at all. See id. (“Evidence is

relevant if . . . it has any tendency to make a [consequential] fact more or less

probable than it would be without the evidence . . . .” (emphasis added)). Any

danger of undue prejudice from the photograph did not substantially outweigh its

probative value, see Fed. R. Evid. 403; the district court did not err in admitting it.

5. Lewis’s State Court Convictions on Two Prostitution-Related Charges and Evidence of Lewis’s Firearm Possession

Lewis argues that the district court erred in admitting evidence that he was

arrested on and found guilty of two extrinsic prostitution-related offenses under

Florida law—evidence he says was irrelevant except for the forbidden purpose of

proving his bad character. But even if we assume the district court erred in

admitting this evidence, Lewis cannot show that he suffered any prejudice as a

result in light of the overwhelming evidence against him; any error the district

court committed thus does not warrant reversal or a new trial. Lewis also argues

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that the district court erred in admitting evidence that he possessed a firearm at the

time he was arrested for the Florida offenses given the arrest’s temporal

remoteness from the timeframe charged in Count 3. We have held similar

evidence to be admissible under circumstances involving wider gaps in time than

the gap at issue here. The district court thus did not err in admitting evidence of

Lewis’s extrinsic gun possession.

“Evidence of a[n extrinsic] crime, wrong, or other act is not admissible to

prove a person’s character in order to show that on a particular occasion the person

acted in accordance with the character.” Fed. R. Evid. 404(b)(1). Such “evidence

may be admissible for another purpose,” such as to prove intent. Fed. R. Evid.

404(b)(2). Evidence is admissible under this exception if, among other things, it is

“relevant to an issue other than the defendant’s character.” United States v.

Matthews, 431 F.3d 1296, 1310-11 (11th Cir. 2005) (internal quotation marks

omitted). “To establish relevance . . . where testimony is offered as proof of

intent, . . . the extrinsic offense [must] require[] the same intent as the charged

offense.” United States v. Dickerson, 248 F.3d 1036, 1047 (11th Cir. 2001)

(internal quotation marks omitted).

The government argues that Lewis’s 2013 arrest and convictions for the

Florida prostitution offenses were relevant to prove his intent as to the § 1591(a)

charges in Counts 1 and 2. Assuming the Florida prostitution offenses did not

22 Case: 14-15596 Date Filed: 02/28/2019 Page: 23 of 42

require “the same intent,” id., as the § 1591(a) offenses,4 the district court’s error in

admitting evidence of those extrinsic offenses was harmless. Lewis fails to explain

how the evidence’s admission prejudiced him, nor could he plausibly do so in light

of the overwhelming evidence introduced against him, so the Florida judgment’s

admission does not warrant reversal or a new trial.

Lewis further argues that the district court erred in admitting evidence that

he possessed a firearm at the time of his arrest on the Florida prostitution offenses.

Such evidence, he says, was irrelevant and unduly prejudicial given the arrest’s

remoteness in time from Count 3, the charged firearm offense, which occurred in

2010. Evidence of Lewis’s firearm possession at the time of his arrest on the

Florida charges was relevant because it tended to show that Lewis carried a firearm

in connection with pimping-related activities, a fact which tends to corroborate

Bertie’s testimony that Lewis used a firearm to coerce her to engage in

prostitution. See Fed. R. Evid. 401. We have approved, as proper exercises of a

district court’s broad discretion under the Federal Rules of Evidence, admission of

extrinsic bad acts evidence of conduct or events further removed in time from

4 The Florida statutes under which Lewis had been found guilty made it unlawful “for any person with reasonable belief or knowing another person is engaged in prostitution to live or derive support or maintenance in whole or in part from what is believed to be the earnings or proceeds of such person’s prostitution” and “[t]o aid, abet, or participate in” prostitution. Fla. Stat. §§ 796.05(1), 796.07(2)(h). Unlike 18 U.S.C. § 1591(a), these statutes do not require a mens rea of “know[ledge] or . . . reckless disregard of the fact, that means of force, threats of force, fraud, [enumerated types of] coercion . . . or any combination of such means will be used to cause the person to engage in a commercial sex act.” 18 U.S.C. § 1591(a).

23 Case: 14-15596 Date Filed: 02/28/2019 Page: 24 of 42

charged conduct than the evidence at issue here. See, e.g., United States v.

Lampley, 68 F.3d 1296, 1300 (11th Cir. 1995) (determining that the district court

did not abuse its discretion under Rule 403 in admitting evidence of approximately

15-year-old marijuana transactions); United States v. Pessefall, 27 F.3d 511, 516

(11th Cir. 1994) (“While the extrinsic act occurred some eight years earlier than

the charged crime, it is not too remote [under Rule 404(b)] in light of the

government’s heavy burden of proving [the defendant’s] intent to conspire to

possess with intent to distribute cocaine.”). 5 Any danger of unfair prejudice the

firearm possession evidence posed did not substantially outweigh the evidence’s

probative value. See Fed. R. Evid. 403. The district court thus did not err in

admitting evidence of Lewis’s prior firearm possession.

D. The District Court Appropriately Excluded Evidence and a Portion of Lewis’s Opening Statement Relating to Askinazi’s Prostitution History.

Lewis argues the district court violated the Confrontation Clause and abused

its discretion under Rule 403 by excluding evidence—and prohibiting mention—of

Askinazi’s subsequent prostitution activity, which he asserts was relevant to show

5 Lewis argues these cases are distinguishable because they involved “inherently unlawful” activity, whereas this case involves firearm possession, a constitutionally-protected right. Appellant’s Reply Br. at 18-19. That distinction has no bearing on whether the firearm possession evidence was relevant to prove Lewis’s intent as to Count 3. In any event, we have never construed the Second Amendment to protect a person’s prerogative to use or carry a firearm “during and in relation to any crime of violence,” 18 U.S.C. § 924(c)(1)(A).

24 Case: 14-15596 Date Filed: 02/28/2019 Page: 25 of 42

that their relationship was consensual.6 Such evidence had little probative value,

as the activity in question occurred over a year after Lewis’s indictment, and it

could have been used to harass and embarrass Askinazi. The district court did not

violate the Confrontation Clause or abuse its discretion under Rule 403 in

excluding evidence and prohibiting mention of Askinazi’s subsequent prostitution

activity.

“Trial judges retain wide latitude” under the Confrontation Clause “to

impose reasonable limits on testimony based on concerns about, among other

things, harassment.” United States v. Culver, 598 F.3d 740, 749 (11th Cir. 2010)

(alterations adopted) (internal quotation marks omitted). “Limitations on a

defendant’s constitutional right to present evidence are permissible unless they are

arbitrary or disproportionate to the purposes they are designed to serve.” Id.

(internal quotation marks omitted). The “exclusion of evidence of [a witness’s]

prior sexual history [i]s not arbitrary or disproportionate” when “admission of such

evidence would have confused the jury and harassed [the victim], and the evidence

[was] marginally relevant at best.” Id.

Evidence that Askinazi had engaged in prostitution activity over thirteen

months after Lewis’s indictment was “marginally relevant at best” to whether her

6 He specifically argues the district court erred in sustaining an objection to his opening statement, in which he alleged that Askinazi “had been prostituting herself like for most of her adult life” and “uses sex for drugs.” Doc. 128 at 33.

25 Case: 14-15596 Date Filed: 02/28/2019 Page: 26 of 42

relationship with Lewis was coercive or consensual. Id. Moreover, Lewis could

have used this evidence to “harass[]” and embarrass Askinazi. Id. Such evidence

also could have “[c]ould have confused the jury,” Culver, 598 F.3d at 749, as to

which of Askinazi’s prostitution activities were and were not at issue in the case.

As such, the district court’s exclusion of such evidence did not violate Lewis’s

rights under the Confrontation Clause. For the same reasons, the district court did

not abuse its discretion in excluding the evidence, or in prohibiting Lewis from

mentioning Askinazi’s subsequent prostitution activity, based on its determination

that a danger of unfair prejudice substantially outweighed any probative value that

the evidence or discussion of the incident may have had. We affirm the district

court’s exclusion of evidence relating to, and prohibition on mentioning,

Askinazi’s August 2014 prostitution.7

7 Lewis also argues that the district court erred in sustaining an objection to his cross- examination of Askinazi. At trial, the following exchange occurred: Q. And what—are you familiar with these ads? A. No, sir. Q. You know about them, don't you? A. No. Q. No? THE GOVERNMENT: Objection, Your Honor. THE COURT: Sustained. Doc. 128 at 93. Lewis says the district court sustained the government’s objection because he had asked Askinazi about her August 2014 prostitution. The sequence of questioning, however, shows that the district court sustained the objection because Lewis badgered Askinazi by asking the same question three times. Lewis argues that the district court should have allowed the 26 Case: 14-15596 Date Filed: 02/28/2019 Page: 27 of 42

E. The District Court Did Not Abuse Its Discretion in Denying Lewis a Continuance to Present a Witness.

Lewis argues that the district court abused its discretion in denying his

motion for a continuance of three hours and nine minutes to present Sadé Patterson

as a witness. 8 Lewis did not exercise diligence in securing Patterson’s attendance,

however, and his proffer as to the expected contents of her testimony was

nonspecific and, even if credited, showed the testimony would have had little

exculpatory value. The district court thus did not abuse its discretion in denying

Lewis’s motion for a continuance.

“[C]riminal defendants must be afforded the opportunity to present evidence

in their favor.” United States v. Hurn, 368 F.3d 1359, 1362 (11th Cir. 2004). But

this right is subject to “essential limitations” as “[t]he trial process would be a

shambles if either party had an absolute right to control the time and content of his

witnesses’ testimony.” Taylor v. Illinois, 484 U.S. 400, 410-11 (1988). “The

decision whether to continue a trial is committed to the sound discretion of the

district court,” based on

questioning to continue because Askinazi was giving false testimony, but this assertion is speculative and unsubstantiated. 8 Lewis argues that the district court “committed fundamental error” in denying his motion for a continuance. Appellant’s Br. at 51. We construe this as an argument that the district court abused its discretion, given that the abuse of discretion standard governs our review of a district court’s denial of a motion for a continuance. See Cross, 928 F.2d at 1048.

27 Case: 14-15596 Date Filed: 02/28/2019 Page: 28 of 42

(1) the diligence of the defense in interviewing the witness and procuring her testimony; (2) the probability of obtaining the testimony within a reasonable time; (3) the specificity with which the defense was able to describe the witness’s expected knowledge or testimony; and (4) the degree to which such testimony was expected to be favorable to the accused, and the unique or cumulative nature of the testimony. Cross, 928 F.2d at 1048.

Lewis was not diligent in procuring Patterson’s testimony. He informed his

trial counsel that he wanted Patterson to testify at most two days before moving for

a continuance,9 and he failed to subpoena her or otherwise secure her availability. 10

Cf. United States v. Alejandro, 118 F.3d 1518, 1523 (11th Cir. 1997) (“If the

appellant regarded [the witness’s] testimony as important, due diligence required

that a subpoena be issued to secure his attendance[,] . . . [and] that he ascertain

whether or not the government intended to call [the witness] before the last day of

a three-day trial.”). Moreover, Lewis’s proffer as to Patterson’s expected

testimony—that when she observed Lewis and Azkinasi together, Lewis never

coerced Askinazi to prostitute herself, and that Askinazi seemed happy—lacked

specificity, and in any event had relatively little exculpatory value. Though Lewis

9 In moving for a continuance, Lewis’s trial counsel represented to the district court that Lewis had only informed him that he wanted Patterson to testify that morning; Lewis contended that he brought the matter to his trial counsel’s attention two days beforehand. We assume the truth of Lewis’s version of the facts for the purpose of our analysis. 10 The government named Patterson as an anticipated witness on the first day but never called her to take the stand.

28 Case: 14-15596 Date Filed: 02/28/2019 Page: 29 of 42

sought only a brief continuance, we cannot say that the district court abused its

discretion in denying one.

F. The Government’s Closing Argument Did Not Prejudice Lewis’s Substantial Rights.

Lewis argues that the government made improper remarks during its closing

argument that deprived him of a fair trial and thus require reversal. To establish

prosecutorial misconduct, a closing argument must, “in the context of the entire

trial and in light of any curative instruction,” United States v. Chirinos, 112 F.3d

1089, 1098 (11th Cir. 1997), (1) “be improper” and (2) “prejudicially affect the

substantial rights of the defendant,” United States v. Eckhardt, 466 F.3d 938, 947

(11th Cir. 2006) (internal quotation marks omitted). “[A]ny possible prejudice . . .

resulting from the prosecutor’s closing argument [is] cured by instructions from the

district judge that the lawyers’ arguments [are] not evidence and that the jury [is]

to decide the case solely on the evidence presented at trial.” United States v.

Bailey, 123 F.3d 1381, 1402 (11th Cir. 1997).

The government’s remarks during closing argument that Lewis contends

were improper include its assertions that (1) Lewis’s conduct fit within general

pimping practices Eutsey had described, (2) Dr. Gold’s testimony explained why

Bertie had formed an emotional bond with Lewis, and (3) Lewis had attempted to

sell an underage prostitute. Lewis also contends that the government improperly 29 Case: 14-15596 Date Filed: 02/28/2019 Page: 30 of 42

held up before the jury a photograph of him brandishing a firearm. We have

already explained that the district court did not err in admitting Eutsey’s and

Gold’s testimony or the photograph of Lewis brandishing a firearm. Because this

evidence was properly admitted, the government did not behave improperly by

referencing it in its closing remarks.

Lewis further argues that the government falsely asserted in closing that

Bertie had repeatedly testified that Lewis held a gun to her head, when in fact she

had testified to only one such incident. A review of the record shows that the

government in fact said that Bertie had testified repeatedly about a single incident

in which Lewis had held a gun to her, not that Lewis held a gun to her on multiple

occasions. The government’s statement accurately described Bertie’s testimony.

Lewis also argues that the government incorrectly told the jury that it could

find him guilty on Count 3 regardless of whether he brandished a firearm in

trafficking Bertie. Count 3 charged Lewis with “knowingly, during and in relation

to a crime of violence, us[ing] and carry[ing] a firearm and possess[ing] a firearm

in furtherance of” his sex trafficking of Bertie, as well as “brandish[ing]” the

firearm. Doc. 16 at 1-2; see 18 U.S.C. § 924(c)(1)(A). To use, carry, and possess

a firearm “in furtherance of” sex trafficking, id., reaches conduct beyond requiring

a victim to prostitute herself at gunpoint. The government told the jury:

I don’t want you to get mistaken back there and think that he has to hold a gun to her head and say hey, go and have sex with this guy right now. 30 Case: 14-15596 Date Filed: 02/28/2019 Page: 31 of 42

That’s not it. It’s during the course of that he’s with her, this is one of the ways that he committed the crime.

Doc. 133 at 51-52. This statement accurately described Count 3’s elements.

Finally, Lewis says the government improperly vouched for Askinazi’s and

Bertie’s credibility, denigrated the defense’s integrity, and exhorted the jurors to

convict Lewis based on the government’s personal opinion of his guilt. The

government’s arguments in closing “were legitimate commentary in context of the

evidence against [Lewis] presented at trial.” Bailey, 123 F.3d at 1402. And “any

possible prejudice to [Lewis] resulting from the [government’s] closing argument

was cured by instructions from the district judge that the lawyers’ arguments were

not evidence and that the jury was to decide the case solely on the evidence

presented at trial.” Id. Under these circumstances, Lewis cannot show that the

government’s closing argument prejudiced his substantial rights.

The district court committed no abuse of discretion in denying Lewis’s

motion for a new trial.

G. Lewis’s Conviction for Using, Carrying, Possessing, and Brandishing a Firearm in Connection with a Crime of Violence Was Not Plainly Erroneous.

Lewis argues that his conviction for Count 3—using, carrying, possessing,

and brandishing a firearm during and in relation to a crime of violence, in violation

of 18 U.S.C. § 924(c)(1)(A) and (c)(3)(B)—is plainly erroneous because

§ 924(c)(3)(B)’s definition of a “crime of violence” did not reach his predicate sex

31 Case: 14-15596 Date Filed: 02/28/2019 Page: 32 of 42

trafficking offense and is unconstitutionally vague. Binding precedent forecloses

Lewis’s vagueness challenge. Further, although that precedent introduced a new

element for a conviction under § 924(c)(3)(B), and that element was not submitted

to Lewis’s jury, the error was harmless beyond a reasonable doubt. We therefore

affirm Lewis’s conviction.

Title 18 U.S.C. § 924(c) imposes a minimum term of imprisonment of five

years, to run consecutively to any other term, upon a person “who, during and in

relation to any crime of violence . . . uses or carries a firearm, or . . . in furtherance

of any such crime, possesses a firearm,” and seven years upon one who

“brandishe[s]” the firearm. 18 U.S.C. § 924(c)(1)(A)(i), (ii). Under

§ 924(c)(3)(B), the term “crime of violence” encompasses “an offense that is a

felony and . . . that by its nature, involves a substantial risk that physical force

against the person or property of another may be used in the course of committing

the offense.” Id. § 924(c)(3)(B). In Johnson v. United States, the Supreme Court

struck as unconstitutionally vague a similar definition contained in a similar

statute, the Armed Career Criminal Act, 18 U.S.C. § 924(e). Johnson, 135 S. Ct.

2551, 2563 (2015). Lewis argues that, under Johnson, § 924(c)(3)(B)’s definition

is unconstitutionally vague. In Ovalles v. United States, however, this Court sitting

en banc upheld § 924(c)(3)(B) against a vagueness challenge by concluding that its

text “prescribes a conduct-based approach, pursuant to which the crime-of-

32 Case: 14-15596 Date Filed: 02/28/2019 Page: 33 of 42

violence determination should be made by reference to the actual facts and

circumstances underlying a defendant’s offense.” Ovalles v. United States, 905

F.3d 1231, 1234 (11th Cir. 2018) (en banc). Under this conduct-based approach,

the defendant must admit, or the jury must find beyond a reasonable doubt, that the

defendant’s actual conduct “by its nature, involves a substantial risk that physical

force against the person or property of another may be used in the course of

committing the offense.” 18 U.S.C. § 924(c)(3)(B); see Ovalles, 905 F.3d at 1250

& n.8.

Although Lewis’s vagueness challenge fails under Ovalles, we must inquire

further because the en banc court overruled our prior panel precedent, which had

required that we take a categorical approach to the “crime of violence” definition

in § 924(c)(3)(B). See id. at 1252. At the time of Lewis’s jury trial, it was this

categorical, not the conduct-based, approach that applied. Accordingly, the district

court did not submit to the jury the question of whether Lewis’s conduct satisfied

the “crime of violence” definition. We now know from Ovalles that the district

court’s failure to do so was plainly erroneous. But that does not end our inquiry.

If the government can prove, beyond a reasonable doubt, that Lewis’s actual

offense conduct satisfied § 924(c)’s risk standard, then the error was harmless. See

Fulminante, 499 U.S. at 295-96; see also Neder v. United States, 527 U.S. 1, 9-10

(1999) (explaining that “an instruction that omits an element of the offense does

33 Case: 14-15596 Date Filed: 02/28/2019 Page: 34 of 42

not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle

for determining guilt or innocence,” provided the error was harmless).

The government has satisfied its burden to show harmless error. 11 As we

explained above, the government’s evidence established that when Bertie

disobeyed Lewis, he would choke her and pull her hair. Once, when Bertie

attempted to escape from Lewis’s house, Lewis choked her, threatened to cut and

kill her, hit her on the head with a gun, and pointed the gun at her face. He also

locked Bertie in the trunk of his car and threatened to kill her brother. This is not a

case in which a gun merely was present; rather, this is one in which the gun was

used to effect violent force against another person. Nor is it a case in which “the

record contains evidence that could rationally lead to a contrary finding with

respect to the [substantial risk] element.” Neder, 527 U.S. at 19. Although defense

counsel argued that Lewis did nothing more than persuade Bertie to engage in

prostitution via nonviolent means, the evidence demonstrates to the contrary—that,

had the jury been asked to decide whether Lewis’s conduct “involve[d] a

substantial risk that physical force . . . may be used,” 18 U.S.C. § 924(c)(3)(B), it

would have found “a very real ‘risk’ that physical force ‘may’ be used—just, as it

turns out, it was,” Ovalles, 905 F.3d at 1253. The district court’s error in failing to

11 After Ovalles issued, we ordered the parties to file supplemental briefs on the impact of that case and whether the government could demonstrate harmless error. The parties filed and we have considered those briefs.

34 Case: 14-15596 Date Filed: 02/28/2019 Page: 35 of 42

instruct the jury on the “substantial risk” element therefore was harmless. And

because it was harmless, Lewis cannot show that the plain error affected his

substantial rights. Flanders, 752 F.3d at 1333.

We thus affirm Lewis’s conviction under § 924(c).12

H. Cumulative Error Did Not Deprive Lewis of a Fair Trial.

Lewis argues that the cumulative effect of the district court’s errors deprived

him of a fair trial even if no error individually warrants reversal. “Even where

individual judicial errors or prosecutorial misconduct may not be sufficient to

warrant reversal alone, we may consider the cumulative effects of errors to

determine if the defendant has been denied a fair trial.” United States v. Lopez,

590 F.3d 1238, 1258 (11th Cir. 2009). “In addressing a claim of cumulative error,

we must examine the trial as a whole to determine whether the appellant was

afforded a fundamentally fair trial.” Id. (internal quotation marks omitted).

Having determined that the district court committed only two errors—admitting

evidence of Lewis’s arrest on and judgment of guilt for two prostitution-related

offenses and failing to instruct the jury on § 924(c)(3)(B)’s “substantial risk”

12 Because we conclude that Lewis’s § 1591(a) conviction falls within § 924(c)(3)(B)’s definition of “crime of violence” and that that definition is not unconstitutionally vague, we need not consider whether Lewis’s § 1591(a) conviction also qualifies as a crime of violence under § 924(c)(3)(A).

35 Case: 14-15596 Date Filed: 02/28/2019 Page: 36 of 42

standards—and that both errors were harmless, we conclude based on our review

of the trial as a whole that cumulative error did not deny Lewis a fair trial.

I. The District Court Did Not Err in Sentencing Lewis.

Finally, Lewis argues that the district court erred in several respects in

sentencing him. He says the district court (1) failed to verify that his trial counsel

reviewed the PSR with him, (2) conflated facts regarding Askinazi and Bertie in

imposing a four-level abduction enhancement, (3) failed to calculate his sentencing

range under the Sentencing Guidelines, and (4) erroneously denied his motion for

substitution of counsel. The district court acted within its discretion in denying

Lewis’s request for new counsel at sentencing, and any errors it committed with

respect to the PSR, abduction enhancement, or guidelines range calculation were

not plain or did not affect Lewis’s substantial rights. We thus affirm Lewis’s

sentence in all respects.

1. Failure to Verify that Lewis Had Reviewed the PSR with Trial Counsel

Lewis argues that the district court erred in failing to verify at the sentencing

hearing that he had reviewed the PSR with his trial counsel. Because Lewis did

not raise objections at the sentencing hearing, we review for plain error. Beckles,

565 F.3d at 842. “At sentencing, the court . . . must verify that the defendant and

the defendant’s attorney have read and discussed the presentence report and any

addendum to the report.” Fed. R. Crim. P. 32(i)(1)(A). There is no dispute that the

36 Case: 14-15596 Date Filed: 02/28/2019 Page: 37 of 42

district court failed to verify at the sentencing hearing whether Lewis had reviewed

the PSR with his trial counsel. Lewis cannot establish plain error, however, as he

has failed to show that the district court’s error affected his substantial rights.

Lewis has neither offered meritorious PSR objections that his counsel did not raise

nor shown “a reasonable probability that the court would have imposed a lower

sentence” had it ascertained whether he had reviewed the PSR with counsel. See

United States v. Arias-Izquierdo, 449 F.3d 1168, 1190 (11th Cir. 2006). For these

reasons, the district court’s failure to verify that Lewis had reviewed the PSR with

his trial counsel does not warrant resentencing.

2. Erroneous Imposition of Abduction Enhancement

Lewis argues the district court erred in imposing a sentence enhancement for

abduction based on an inaccurate recollection of facts. “When the government

seeks to apply an enhancement under the Sentencing Guidelines over a defendant’s

factual objection, it has the burden of introducing sufficient and reliable evidence

to prove the necessary facts by a preponderance of the evidence.” United States v.

Washington, 714 F.3d 1358, 1361 (11th Cir. 2013) (internal quotation marks

omitted). The district court imposed a four-level sentence enhancement for Lewis

having abducted Askinazi. In fact, it was Bertie, not Askinazi, who testified that

Lewis had abducted her. The district court plainly conflated Askinazi’s and

Bertie’s testimonies in imposing the sentence enhancement. It is just as clear,

37 Case: 14-15596 Date Filed: 02/28/2019 Page: 38 of 42

however, that its error did not affect Lewis’s substantial rights. The district court

said

I can’t remember them by [name] but . . . . I do consider the fact that after she escaped and was running around the streets and she was taken back to the place, that even though she did tell the police that she was fine and that she was not in danger, I believe that her testimony was very clear that she was intimidated and frightened by him and that she said that because of that. And I consider that to be an abduction.

Doc. 134 at 7-8. The district court’s recollection of the trial testimony matched

Bertie’s description of the aftermath of her attempt to escape Lewis’s custody.

There can be no doubt that the district court would have imposed the same four-

level enhancement had it remembered Lewis had abducted Bertie, not Askinazi.

Because the district court based its decision to impose the abduction enhancement

on an accurate recollection of the evidence, its misidentification of Lewis’s victim

does not warrant resentencing.

3. Failure to Calculate Guidelines Range

Lewis argues the district court erred by failing to calculate the applicable

Sentencing Guidelines range prior to imposing his sentence. A district court “must

adequately explain the chosen sentence to allow for meaningful appellate review

and to promote the perception of fair sentencing.” Gall v. United States, 552 U.S.

38, 50 (2007). It commits “significant procedural error” by “failing to calculate (or

improperly calculating) the Guidelines range.” Id. at 51. Lewis did not object at

the sentencing hearing, so we review for plain error only. Beckles, 565 F.3d at

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842. The record belies Lewis’s claim that the district court failed to calculate his

guidelines range. At Lewis’s sentencing hearing, the district court stated that it had

“considered . . . the presentence report which contains the advisory guidelines” and

would impose a sentence “within the advisory guideline range.” Doc. 134 at 17-

18. These statements demonstrate that the district court consciously adopted and

applied the guidelines range set forth in the PSR. It did not state a numerical

guidelines range on the record at the sentencing hearing, but neither the Supreme

Court nor this Court has ever held in a published decision that such an omission is

erroneous. Thus, even if the district court erred, it did not do so plainly. See

Carpenter, 803 F.3d at 1238-39. And even if it plainly erred, Lewis fails to show

the error affected his substantial rights: he does not argue that the district court

applied an incorrect guidelines range and offers no reason to believe his sentence

would have been lower had the district court stated the proper guidelines range on

the record during the sentencing hearing. For these reasons, the district court’s

calculation of Lewis’s guidelines range does not warrant resentencing.

4. Denial of Lewis’s Request for Substitution of Counsel

Finally, Lewis argues that the district court abused its discretion in denying

his motion for substitution of counsel at his sentencing hearing. District judges,

however, have broad discretion in granting or denying such motions, and although

Lewis asserts dissatisfaction with decisions his trial counsel made, he identifies no

39 Case: 14-15596 Date Filed: 02/28/2019 Page: 40 of 42

fundamental problems with his trial counsel’s performance that render the denial of

his motion an abuse of discretion. We thus affirm the district court.

“Although an indigent criminal defendant has a right to be represented by

counsel, he does not have a right to be represented by a particular lawyer, or to

demand a different appointed lawyer except for good cause.” United States v.

Young, 482 F.2d 993, 995 (5th Cir. 1973). “Good cause . . . means a fundamental

problem, such as a conflict of interest, a complete breakdown in communication or

an irreconcilable conflict which leads to an apparently unjust verdict.” United

States v. Garey, 540 F.3d 1253, 1263 (11th Cir. 2008) (en banc) (internal quotation

marks omitted). In reviewing a district court’s decision concerning a defendant’s

motion for new counsel, we consider “1) the timeliness of the motion; 2) the

adequacy of the court’s inquiry into merits of the motion; and 3) whether the

conflict was so great that it resulted in a total lack of communication between the

defendant and his counsel thereby preventing an adequate defense.” Calderon, 127

F.3d at 1343. “Good cause for substitution of counsel cannot be determined solely

according to the subjective standard of what the defendant perceives. . . . A

defendant’s general loss of confidence or trust in his counsel, standing alone, is not

sufficient.” Thomas v. Wainwright, 767 F.2d 738, 742 (11th Cir. 1985) (citation

omitted) (internal quotation marks omitted). “Unless a Sixth Amendment violation

is shown, whether to appoint a different lawyer for an indigent criminal defendant

40 Case: 14-15596 Date Filed: 02/28/2019 Page: 41 of 42

who expresses dissatisfaction with his court-appointed counsel is a matter

committed to the sound discretion of the district court.” Young, 482 F.2d at 995.

Lewis does not contend that his trial counsel’s representation of him created

a conflict of interest or resulted in a “complete breakdown in communication.”

Garey, 540 F.3d at 1263. Instead, he alleges that his trial counsel failed to (1)

ensure Lewis’s participation in the presentencing investigation or review the PSR

with him, (2) correct the district court’s conflation of facts regarding Askinazi and

Bertie when the court imposed the abduction enhancement, or (3) challenge

various rulings the district court made. 13 None of these purported deficiencies rises

13 Lewis asserts that other unspecified conflicts also impeded his ability to communicate with his trial counsel and prepare for the sentencing hearing, but he does not explain the nature of these supposed conflicts. “Abandonment of an issue can . . . occur when passing references appear in the argument section of an opening brief” as “mere background to the appellant’s main arguments or when they are buried within those arguments.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682 (11th Cir. 2014) (internal quotation marks omitted). Lewis’s “passing references” to unspecified conflicts with his trial counsel are “mere background to” and “buried within” his “main arguments” that his trial counsel did not ensure his participation in the presentencing investigation, review the PSR with him, or correct the district court’s conflation of facts with respect to Askinazi and Bertie in imposing the abduction enhancement—they amount to “nothing more than conclusory assertions.” Id. Lewis thus abandoned any argument he may have had with respect to these unspecified alleged conflicts. Additionally, Lewis argues, for the first time on appeal in his reply brief, that his trial counsel failed to challenge at sentencing: (1) the admission of a written statement by Askinazi— whose absence the government did not explain—which deprived Lewis of an opportunity for cross-examination, as well as (2) the imposition of a seven-year sentence on Count 3 on the ground that § 924(c)(3)(B) does not reach his sex trafficking offense and is unconstitutional. “We decline to address an argument advanced by an appellant for the first time in a reply brief.” Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 844 (11th Cir. 2008). Moreover, Lewis has abandoned his argument as to the written statement Askinazi submitted by offering mere “passing references” to it, Sapuppo, 739 F.3d at 682, and cannot show prejudice from his trial counsel’s failure to challenge his sentence under Count 3, as those arguments are without merit for reasons we have explained, see supra Part III.G.

41 Case: 14-15596 Date Filed: 02/28/2019 Page: 42 of 42

to the level of “an irreconcilable conflict,” much less one “which leads to an

apparently unjust verdict.” Id. And, as we have already explained, neither the trial

counsel’s failure to review the PSR with Lewis or correct the district court’s

conflation of facts affected Lewis’s sentence. Though it is undisputed that Lewis

timely moved for substitution of counsel, it is also undisputed that “the district

judge heard the reasons for [Lewis’s] dissatisfaction with trial counsel before

ruling on the motion.” Calderon, 127 F.3d at 1343. The district judge reviewed

multiple filings in which Lewis expressed grievances with his trial counsel and

invited Lewis to reargue the issue at sentencing. Given these considerations, we

cannot say the district court abused its discretion in denying Lewis’s motion for

substitution of counsel.

IV. CONCLUSION

We affirm Lewis’s convictions and sentence in all respects.

AFFIRMED.