NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-50036
Plaintiff-Appellee, D.C. Nos. 3:20-cr-01700-TWR-1 v. 3:20-cr-01700-TWR
MICHAEL LADRE DUNBAR, MEMORANDUM* Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Todd W. Robinson, District Judge, Presiding
Argued and Submitted April 10, 2025 Pasadena, California
Before: BADE and SUNG, Circuit Judges, and SIMON,** District Judge.
Defendant-Appellant Michael Dunbar appeals his conviction and 235-month
prison sentence for (1) sex trafficking a child in violation of 18 U.S.C. § 1591(a),
and (2) transporting a minor in violation of 18 U.S.C. § 2423(a). We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. 1. Dunbar argues that the district court constructively amended the
indictment in his case by giving a jury instruction that “[i]f the government proves
beyond a reasonable doubt that [Dunbar] had a reasonable opportunity to observe
[the victim], the government need not prove that [Dunbar] knew or recklessly
disregarded the fact that [the victim] was under the age of 18.” As an initial
matter, we note that this instruction is legally correct. 18 U.S.C. § 1591(c); accord
United States v. Davis, 854 F.3d 601, 604 n.2 (9th Cir. 2017). Reviewing
Dunbar’s argument de novo,1 United States v. Ward, 747 F.3d 1184, 1188 (9th Cir.
2014), we hold that there was no constructive amendment.
Dunbar’s argument draws on our decision in Davis, but that case is easily
distinguished. In Davis, we held that an indictment that contained no mention of
the government’s ability to prove its case by showing that a defendant had a
reasonable opportunity to observe a victim was constructively amended when the
jury was instructed that the government could prove its case in that way. 854 F.3d
at 604–05. Here, Dunbar’s indictment contains language clearly based on
§ 1591(c); specifically, it charges him with “having had a reasonable opportunity
to observe” the victim. Therefore, Dunbar had ample notice that the government
1 The parties dispute whether Dunbar objected to the challenged jury instruction before the district court, and they therefore dispute the applicable standard of review. We agree with Dunbar that a fair reading of the transcript suggests that he did object before the district court, despite initially stating that he had no objection.
2 could prove its case under § 1591(c). See United States v. Miller, 471 U.S. 130,
135 (1985) (explaining that “‘notice’ related concerns” are “among the important
concerns underlying the requirement that criminal charges be set out in an
indictment”); United States v. Mickey, 897 F.3d 1173, 1177, 1183–84 (9th Cir.
2018) (holding that a defendant “had ample notice of the charges against him and
the jury was properly instructed on the nature of those charges,” and contrasting
the case with Davis). Dunbar’s grammatical argument that this clause is
parenthetical and therefore removable from the indictment is foreclosed by our
precedent. See United States v. Bettencourt, 614 F.2d 214, 219 (9th Cir. 1980)
(“[A] jury may convict on a finding of any of the elements of a disjunctively
defined offense, despite the grand jury’s choice of conjunctive language in the
indictment.” (emphasis added)).
2. Dunbar also argues that the district court erred by denying his motion
in limine to present his lack of knowledge that his victim was under 18 years old as
a defense to the second count of the indictment. The parties agree that we review
this issue de novo. Accord United States v. Alvirez, 831 F.3d 1115, 1120 (9th Cir.
2016).
A defendant’s knowledge of the age of a transportation victim is irrelevant
to determining guilt under 18 U.S.C. § 2423(a). See United States v. Taylor, 239
F.3d 994, 997 (9th Cir. 2001) (“Ignorance of the victim’s age provides no safe
3 harbor from the penalties in 18 U.S.C. § 2423(a).”). Thus, Dunbar’s argument that
Taylor does not explicitly prohibit an affirmative defense of lack of knowledge that
his victim is underage fails; if knowledge is not relevant to guilt, then lack of
knowledge is not an affirmative defense.
Dunbar’s argument that Taylor was supplanted by the addition of § 2423(g)
(2022) is also unpersuasive.2 By its own language, the affirmative defense
mentioned in § 2423(g) (2022) only applies to “a prosecution under this section
based on illicit sexual conduct as defined in subsection (f)(2).” § 2423(g) (2022)
(emphasis added). The phrase “illicit sexual conduct” is used in subsections (b),
(c), and (d) of § 2423 (2022)—it is not used in subsection (a), which is the
subsection under which Dunbar was convicted. We presume that this omission
reflects an intentional Congressional choice, see Loughrin v. United States, 573
U.S. 351, 358 (2014), and conclude that this affirmative defense is not applicable
to subsection (a).
Dunbar’s argument that United States v. Lindsay, 931 F.3d 852, 856 (9th
Cir. 2019), holds that the affirmative defense contained in § 2423(g) (2022) applies
to all subsections of § 2423 also fails. In Lindsay, we held that an affirmative
defense established by 18 U.S.C. § 2243(c)(1) “likely does not apply” to
2 The current version of 18 U.S.C. § 2423 moves the affirmative defense discussed here to subsection (i).
4 prosecutions brought under § 2423. Id. at 865. Specifically, we reasoned that “the
section 2243(c)(1) defense likely applies to section 2243(a) prosecutions, and the
section 2423(g) defense likely applies to section 2423 prosecutions, but the section
2243(c)(1) defense likely does not apply [to] section 2423 prosecutions.” Id.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 23-50036
Plaintiff-Appellee, D.C. Nos. 3:20-cr-01700-TWR-1 v. 3:20-cr-01700-TWR
MICHAEL LADRE DUNBAR, MEMORANDUM* Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Todd W. Robinson, District Judge, Presiding
Argued and Submitted April 10, 2025 Pasadena, California
Before: BADE and SUNG, Circuit Judges, and SIMON,** District Judge.
Defendant-Appellant Michael Dunbar appeals his conviction and 235-month
prison sentence for (1) sex trafficking a child in violation of 18 U.S.C. § 1591(a),
and (2) transporting a minor in violation of 18 U.S.C. § 2423(a). We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael H. Simon, United States District Judge for the District of Oregon, sitting by designation. 1. Dunbar argues that the district court constructively amended the
indictment in his case by giving a jury instruction that “[i]f the government proves
beyond a reasonable doubt that [Dunbar] had a reasonable opportunity to observe
[the victim], the government need not prove that [Dunbar] knew or recklessly
disregarded the fact that [the victim] was under the age of 18.” As an initial
matter, we note that this instruction is legally correct. 18 U.S.C. § 1591(c); accord
United States v. Davis, 854 F.3d 601, 604 n.2 (9th Cir. 2017). Reviewing
Dunbar’s argument de novo,1 United States v. Ward, 747 F.3d 1184, 1188 (9th Cir.
2014), we hold that there was no constructive amendment.
Dunbar’s argument draws on our decision in Davis, but that case is easily
distinguished. In Davis, we held that an indictment that contained no mention of
the government’s ability to prove its case by showing that a defendant had a
reasonable opportunity to observe a victim was constructively amended when the
jury was instructed that the government could prove its case in that way. 854 F.3d
at 604–05. Here, Dunbar’s indictment contains language clearly based on
§ 1591(c); specifically, it charges him with “having had a reasonable opportunity
to observe” the victim. Therefore, Dunbar had ample notice that the government
1 The parties dispute whether Dunbar objected to the challenged jury instruction before the district court, and they therefore dispute the applicable standard of review. We agree with Dunbar that a fair reading of the transcript suggests that he did object before the district court, despite initially stating that he had no objection.
2 could prove its case under § 1591(c). See United States v. Miller, 471 U.S. 130,
135 (1985) (explaining that “‘notice’ related concerns” are “among the important
concerns underlying the requirement that criminal charges be set out in an
indictment”); United States v. Mickey, 897 F.3d 1173, 1177, 1183–84 (9th Cir.
2018) (holding that a defendant “had ample notice of the charges against him and
the jury was properly instructed on the nature of those charges,” and contrasting
the case with Davis). Dunbar’s grammatical argument that this clause is
parenthetical and therefore removable from the indictment is foreclosed by our
precedent. See United States v. Bettencourt, 614 F.2d 214, 219 (9th Cir. 1980)
(“[A] jury may convict on a finding of any of the elements of a disjunctively
defined offense, despite the grand jury’s choice of conjunctive language in the
indictment.” (emphasis added)).
2. Dunbar also argues that the district court erred by denying his motion
in limine to present his lack of knowledge that his victim was under 18 years old as
a defense to the second count of the indictment. The parties agree that we review
this issue de novo. Accord United States v. Alvirez, 831 F.3d 1115, 1120 (9th Cir.
2016).
A defendant’s knowledge of the age of a transportation victim is irrelevant
to determining guilt under 18 U.S.C. § 2423(a). See United States v. Taylor, 239
F.3d 994, 997 (9th Cir. 2001) (“Ignorance of the victim’s age provides no safe
3 harbor from the penalties in 18 U.S.C. § 2423(a).”). Thus, Dunbar’s argument that
Taylor does not explicitly prohibit an affirmative defense of lack of knowledge that
his victim is underage fails; if knowledge is not relevant to guilt, then lack of
knowledge is not an affirmative defense.
Dunbar’s argument that Taylor was supplanted by the addition of § 2423(g)
(2022) is also unpersuasive.2 By its own language, the affirmative defense
mentioned in § 2423(g) (2022) only applies to “a prosecution under this section
based on illicit sexual conduct as defined in subsection (f)(2).” § 2423(g) (2022)
(emphasis added). The phrase “illicit sexual conduct” is used in subsections (b),
(c), and (d) of § 2423 (2022)—it is not used in subsection (a), which is the
subsection under which Dunbar was convicted. We presume that this omission
reflects an intentional Congressional choice, see Loughrin v. United States, 573
U.S. 351, 358 (2014), and conclude that this affirmative defense is not applicable
to subsection (a).
Dunbar’s argument that United States v. Lindsay, 931 F.3d 852, 856 (9th
Cir. 2019), holds that the affirmative defense contained in § 2423(g) (2022) applies
to all subsections of § 2423 also fails. In Lindsay, we held that an affirmative
defense established by 18 U.S.C. § 2243(c)(1) “likely does not apply” to
2 The current version of 18 U.S.C. § 2423 moves the affirmative defense discussed here to subsection (i).
4 prosecutions brought under § 2423. Id. at 865. Specifically, we reasoned that “the
section 2243(c)(1) defense likely applies to section 2243(a) prosecutions, and the
section 2423(g) defense likely applies to section 2423 prosecutions, but the section
2243(c)(1) defense likely does not apply [to] section 2423 prosecutions.” Id.
Dunbar latches on to the language that “the section 2423(g) defense likely applies
to section 2423 prosecutions,” but that language was plainly intended to draw a
distinction between § 2423 and § 2243, not to suggest as a matter of statutory
interpretation that § 2423(g) (2022) applies to each subsection of § 2423.
3. Next, Dunbar argues that the district court committed procedural error
by improperly applying the undue influence enhancement under the Sentencing
Guidelines. The Sentencing Guidelines “provide[] for a two-level upward
adjustment if a participant ‘unduly influenced a minor to engage in prohibited
sexual conduct.’” United States v. Smith, 719 F.3d 1120, 1123 (9th Cir. 2013)
(quoting U.S.S.G. § 2G1.3(b)(2)(B)). “[A]s a general rule, a district court’s
application of the Sentencing Guidelines to the facts of a given case should be
reviewed for abuse of discretion.” United States v. Gasca-Ruiz, 852 F.3d 1167,
1170 (9th Cir. 2017) (en banc).
Here, the district court did not abuse its discretion by applying a rebuttable
presumption that Dunbar unduly influenced the victim because he is more than ten
years older than her. U.S.S.G. § 2G1.3(b)(2)(B) cmt. 3(B). There is no legal basis
5 for Dunbar’s argument that this presumption was rebutted because he believed the
victim was 21 years old. Moreover, Dunbar has not identified any abuse of
discretion in the district court’s conclusion that he unduly influenced the victim by
purchasing drugs and alcohol for her and by recruiting her into prostitution.
4. Finally, Dunbar argues that the district court’s assessment of the 18
U.S.C. § 3553(a) factors relied on an “inaccurate assumption” that Dunbar was
aware the victim was a child. But the district court did not assume that Dunbar
knew that the victim was a minor. Rather, it found as a matter of fact that the
victim was “a 17-year-old child.” This finding was not clearly erroneous. See
United States v. Reyes, 772 F.3d 1152, 1157 (9th Cir. 2014).
AFFIRMED.3
3 Dunbar’s motion for an extension of time to file his reply brief is granted. Dkts. 66, 71. But we have repeatedly denied Dunbar’s motions to proceed pro se in this case. See Dkts. 32, 47. Accordingly, we decline to entertain any of Dunbar’s pro se motions or requests. See, e.g., Dkt. 52.