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Case Name:
Case Number: Date Filed: 
00-10204 02/02/01 



                                                     No. 00-10204
                                                     D.C. No.
v.                                                    CR-97-00038-01

Appeal from the United States District Court
for the Northern Mariana Islands
Alex R. Munson, Chief Judge, Presiding

Submitted December 13, 20001
San Francisco, California

Filed February 2, 2001

Before: Myron H. Bright,2 Stephen Reinhardt, and
Barry G. Silverman, Circuit Judges.

Opinion by Judge Reinhardt;
Dissent by Judge Silverman
1 The panel unanimously finds this case suitable for submission on the
record and briefs and without oral argument. Fed. R. App. P. 34(a)(2).

2 The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.



Peter C. Perez, Hagatna, Guam, for the defendant-appellant.

Gregory Baka, Assistant United States Attorney, Saipan, MP,
for the plaintiff-appellee.


REINHARDT, Circuit Judge:

Defendant-Appellant Elizabeth Castaneda appeals the sen-
tence imposed following her guilty plea to one count of trans-
portation of persons for illegal sexual activity in violation of
the Mann Act, 18 U.S.C. S 2421. Castaneda contests the dis-
trict court's imposition of a two-level "vulnerable victim"
enhancement under S 3A1.1(b) of the Sentencing Guidelines.
Adopting the approach taken by the First Circuit in a similar
case involving the application of S 3A1.1(b) to the Mann Act,
we hold that the district court erred in applying the enhance-


Castaneda co-owned the Mood & Music Night Club in Sai-
pan, Commonwealth of the Northern Mariana Islands, and
recruited waitresses and singers for her club from the Phillip-
pines. In 1997, three women (referred to throughout by their
initials, B.G.S.N., O.S.G., and L.V.S., to protect their privacy)
were hired at Castaneda's recruiting office in the Philippines
for jobs in the club ranging from waiting tables to singing.
Castaneda personally interviewed and hired B.G.S.N. and par-
ticipated in the hiring of the other women. Castaneda told the
applicants that the job included "greeting customers at the
door of the club with a kiss, sitting with the customers, and
perhaps holding their hands." The women were offered a sal-
ary of $3.05 per hour and a one-year contract in exchange for
a placement fee of 15,000 pesos (approximately $500). The
women signed a booklet entitled "Personnel Rules and Poli-
cies," which prohibited the employees from engaging in pros-
titution and stated that any employee who resigned prior to
the expiration of the contract would bear the cost of the return
airline fare back to the country of origin.

B.G.S.N. arrived in Saipan on July 5, 1997; O.S.G. and
L.V.S. arrived on July 24. According to the plea agreement:

      B.G.S.N and the other women employees were
      forced to line up for selection by male customers to
      accompany them to private "VIP rooms." There, the
      waitresses and singers employed at "Mood and
      Music" were made to provide sexual services, as
      defined in Title 6, Commonwealth Code, Section
      1341(e), for the customers, namely the `touching of
      any person by oneself or another, for the purpose of
      sexual arousal or gratification, aggression, degrada-
      tion, or other similar purpose.'

The men who chose to use these rooms were required to pay
$5.00 per hour and to purchase drinks which were delivered
every twenty minutes by the unselected waitresses. According
to the plea agreement, B.G.S.N. and the other women com-
plained on several occasions to the manager of the night club
and to Castaneda that "the men were groping them in the pri-
vate `VIP rooms,' and that this was not what they were hired
to do," but to no avail. The three women stopped working at
the Mood and Music Nightclub in August, 1997, when
B.G.S.N. filed a complaint with the FBI.

On November 13, 1997, Castaneda was indicted for the
transportation of B.G.S.N., O.S.G., and L.V.S. for purposes of
criminal sexual activity in violation of the Mann Act, 18
U.S.C. S 2421. On October 21, 1998, Castaneda pleaded
guilty to the count of the indictment relating to B.G.S.N. In
the plea agreement, the defendant and the government stipu-
lated that other than adjustments for her role as an organizer
and for acceptance of responsibility, and a possible downward
departure for substantial assistance to the government, no
other adjustments were appropriate. The plea agreement thus
contemplated a total offense level of 13. In its Presentence
Investigation Report (PSR), however, the U.S. Probation
office recommended an additional two-level vulnerable victim
enhancement pursuant to U.S.S.G. S 3A1.1(b).

Castaneda was sentenced on April 4, 2000. The district
judge denied Castaneda's motion objecting to the imposition
of the vulnerable victim enhancement and stated,

      I do believe that these victims were particularly vul-
      nerable. They had left their home in the Philippines.
      Some of them were married with children. And the
      reason they left home and their loved ones was to
      come to Saipan to get a job to be able to send money
      back home, and support their family. And in doing
      that, they borrowed great sums of money 15,000
      pesos to finance this. So I think that they were vul-
      nerable. They couldn't just pack up and go home.
      They financially were vulnerable to the position of
      the defendant in this case.

Including the two-level vulnerable victim enhancement, the
district court determined that the total offense level was 15,
resulting in a guideline range of 18 to 24 months. Castaneda
received a downward departure from the guideline range of
her offense for substantial assistance to the authorities, and
was sentenced to 12 months imprisonment.3  Castaneda timely
appealed her sentence.


In a challenge to a victim-related adjustment, this court
reviews a district court's construction, interpretation, and
application of the Sentencing Guidelines de novo. United
States v. Castellanos, 81 F.3d 108, 109 (9th Cir. 1996).
Related factual findings are reviewed for clear error. Id.
3 If the vulnerable victim enhancement had not been applied, Castaneda
would have had a total offense level of 13, with a guideline range of 12
to 18 months, prior to the downward departure.


Section 3A1.1(b) of the Sentencing Guidelines calls for a
two-level increase "[i]f the defendant knew or should have
known that a victim of the offense was a vulnerable victim."
U.S.S.G. S 3A1.1(b) (1998). The commentary accompanying
this section defines a "vulnerable victim" as one "who is
unusually vulnerable due to age, physical or mental condition,
or who is otherwise particularly susceptible to the criminal
conduct." U.S.S.G. S 3A1.1, cmt. n.2. The Application notes
further explain:

      Subsection (b) applies to offenses involving an
      unusually vulnerable victim in which the defendant
      knows or should have known of the victim's unusual
      vulnerability. The adjustment would apply, for
      example, in a fraud case in which the defendant mar-
      keted an ineffective cancer cure or in a robbery in
      which the defendant selected a handicapped victim.
      But it would not apply in a case in which the defen-
      dant sold fraudulent securities by mail to the general
      public and one of the victims happened to be senile.
      Similarly, for example, a bank teller is not an unusu-
      ally vulnerable victim solely by virtue of the teller's
      position in a bank.

U.S.S.G. S 3A1.1, cmt. n.2.

The theory behind the vulnerable victim enhancement is
that conduct against the particular victim or group of victims

is more blameworthy than the conduct of other offenders and
thus deserves greater punishment. See United States v. Castel-
lanos, 81 F.3d 108, 111 (9th Cir. 1996) (holding that the
enhancement is warranted where conduct against the victims
"render[s] the defendant's conduct more criminally
depraved."). Section 3A1.1(b), in effect, "codifies judicial dis-
cretion to impose harsher sentences on defendants who com-
mit similar crimes, but whose choice of victim identifies them

as deserving greater punishment." John Garry,"Why Me?
Application and Misapplication of S 3A1.1" 79 Cornell L.
Rev. 143, 147 (1993).

[1] An unusually vulnerable victim is one who is "less able
to resist than the typical victim of the offense of conviction."
United States v. Wetchie, 207 F.3d 632, 634 (9th Cir. 2000).
We recently noted that "[t]he appropriateness of conceptualiz-
ing the vulnerable adjustment in terms of victims who are
more vulnerable than the usual victims of the offense is con-
firmed by the rule that the adjustment should not apply when
vulnerability is already reflected in the offense guideline." See
Wetchie, 207 F.3d at 634 n.4. If the factor that makes the vic-
tim vulnerable is not "unusual" for victims of the offense, the
S 3A1.1(b) enhancement is not permitted.4 Thus, for example,
in United States v. Fontenot, 14 F.3d 1364 (9th Cir. 1994), we
held that the district court erred in applying S 3A1.1 to a
defendant who hired an assassin to kill his wife in violation
4 Section 3A1.1 does not, however, require that the victims be more vul-
nerable than the typical victims of the particular scheme or type of scheme
that is utilized. Thus, the commentary anticipated application in instances
"where the defendant marketed an ineffective cancer cure." U.S.S.G.
S 3A1.1 cmt. (n.2). We have noted that "nowhere in the cancer example
does it state that any individual victim purchasing such a cure must be
unusually vulnerable beyond the fact that he has cancer and is seeking a
cure. In other words, the Guidelines deem cancer patients, as a group, to
be unusually vulnerable vis a vis the general public to snake oil salesmen
promising cancer cures." United States v. O'Brien, 50 F.3d 751, 757 (9th
Cir. 1994) (quoting United States v. Brown, 7 F.3d 1155, 1161 n.3 (5th
Cir. 1993). The enhancement would apply in such a case because cancer
patients are more vulnerable than the general public to the statutory
offense of medical insurance fraud, but there is no need to show that any
of the victims are more vulnerable than the typical cancer patients who
would ordinarily be the victims of the specific scheme of marketing fake
cancer cures. If, however, the statutory offense were "marketing cancer
cures," then the fact that a cancer patient was the object of the fraud would
not justify imposition of the vulnerable victim enhancement. See U.S.S.G.
S 3A1.1 cmt. (n.2) (stating that the enhancement does not apply "if the
factor that makes the person a vulnerable victim is incorporated in the
offense guideline.").

of 18 U.S.C. S 1958, the federal statute prohibiting interstate
travel or use of the mail in relation to a murder for hire. The
district court imposed the vulnerable victim enhancement
because the defendant gave the hit man information about his
wife's lifestyle, personal habits, and health problems. We
found that S 3A1.1 did not apply because the victim "was no
more vulnerable than any other intended victim of a murder
for hire," noting that "[a]ny person contracting for a murder
for hire is likely to know the intended victim well. " Id. at

In United States v. Sabatino, 943 F.2d 94 (1st Cir. 1991),
the First Circuit specifically addressed the application of the
vulnerable victim enhancement to the prostitution provision
of the Mann Act.5 We adopt the well-reasoned analysis of the
First Circuit. In Sabatino, the district court applied S 3A1.1 to
the sentences of a husband and wife team convicted of violat-
ing the Mann Act by running an interstate escort service. The
district court based the enhancement on its finding that of the
prostitutes employed by the Sabatinos, some were only teen-
agers, two were mothers of small children, and many were out
of work and in need of a job. Id. at 103. The First Circuit held
that the vulnerable victim enhancement did not apply because
the Sabatinos' victims were not unusually vulnerable "given
the kind of victim that is typically involved in a Mann Act
5 Sabatino is the only circuit opinion to discuss the application of the
vulnerable victim enhancement to 18 U.S.C. S 2421, the adult prostitution
provision of the Mann Act. United States v. Johnson, 132 F.3d 1279 (9th
Cir. 1997), involved a different provision of the Mann Act, 18 U.S.C.
S 2423, which prohibits transportation of a minor with intent to engage in
sexual activity. In Johnson, we held that a Norwegian boy in a school
exchange program molested by his American host parent was a vulnerable
victim for the purposes of S 3A1.1. The court in Johnson made an individ-
ualized assessment of the boy's circumstances and found that a number of
factors, such as his isolation, cultural ignorance, and the fact that the
molester was his host parent, rendered him unusually vulnerable. Id. at
1285-86. The factors relied on by the Johnson  court are thus clearly not
typical of victims of the offense there in question.

violation and that Congress aimed to protect." Id. at 103. The
Sabatino court discussed the legislative history of the Mann
Act at length and concluded that "the Act embodied a pater-
nalistic attitude concerned with the protection of women and
girls who, because of their innocence, their hard lives, and
their vulnerability, were particularly susceptible to becoming
victims of unscrupulous men and women who would take
advantage of their situation for immoral purposes. " Id.6 The
First Circuit concluded that the "vulnerable" factors suggested
by the government -- that the victims were out of work and
needed a job, that some had small children and were them-
selves practically children, and that the combination of these
factors created an "economic dependency"-- were typical of
the victims the Mann Act was designed to protect, and there-
fore that a S 3A1.1 enhancement was inappropriate. Id.7
6 The dissent argues that the recent amendments to the Mann Act render
the legislative history of the original act irrelevant. However, as the First
Circuit pointed out in Sabatino, despite amendments and judicial interpre-
tations of the Act extending its application to other situations, "the stat-
ute's original and primary concern with the protection of the victims
remained unchanged." Sabatino, 943 F.32d at 103.
7 The dissent relies heavily on the argument that Castaneda tricked
B.G.S.N. into providing sexual services by misrepresentation: i.e., that she
would have a legitimate job in Saipan. However, both parties agree that
the district court did not rely on misrepresentation in applying the
enhancement. There was, in fact, a compelling legal reason not to do so.
At sentencing, the district judge stated:

      I do not believe that any victim is vulnerable because of the fact
      situation in this case that there were misrepresentations. I see that
      there could be two similarly situated people that one was vulnera-
      ble and one that wasn't under the same facts of the violation of
      the Commonwealth Code, S 1341. And I've said why, because of
      the vulnerability based on economic situations. So I think they're
      different things.

As a matter of law, it would have been improper for the district judge to
apply the adjustment on the basis of misrepresentation. The adjustment
may not be applied "if the factor that makes the person a vulnerable victim
is incorporated in the offense guideline." U.S.S.G. S 3A1.1 cmt. (n.2). One
element of the offense under S 2421 is that the sexual activity for which

[2] Just as in Sabatino, none of the "vulnerable" character-
istics of Castaneda's victims discussed by the district court--
indebtedness, low income, and lack of financial resources or
other options that would permit them to support themselves or
pay for their passage back to the Phillippines if they left the
club-- distinguish them from the typical victims of a Mann
Act violator.8 The only difference between Sabatino and the
case before us is that here the victims were transported inter-
nationally rather than within the United States. However, as
the court in Sabatino points out, the legislative history of the
the individual is transported is a crime. 18 U.S.C.S 2421. Castaneda
pleaded guilty to transporting B.G.S.N. for sexual activity in violation of
the Commonwealth Code's offense of sexual exploitation, which includes
using "misrepresentation" or "coercion" to cause a person to provide sex-
ual services for pay. 6 N. Mar. I. Code S1341(c), 1342 (1997). Misrepre-
sentation is thus incorporated in Castaneda's offense, and therefore could
not properly be considered in determining whether Castaneda's victims
were vulnerable.
8 The dissent states that Castaneda was "forced to participate in the pros-
titution activity." However, there is no evidence in the record suggesting
that the employees of the Mood & Music Club were physically forced to
engage in sexual activity. In fact, the district court explicitly ruled that "it
wasn't coercion and . . . there wasn't a gun put to their head. But I think
it was pretty coercive economically." The dissent quotes the statement in
the plea agreement that the women "were forced to line up for selection
by male customers." This appears to be simply an unfortunate choice of
words; the PSR states that the women were "instructed" to line up in front
of the male customers.

The dissent also states that as a nonresident alien worker under North-
ern Mariana Islands law, "she could not work elsewhere." In fact, upon the
filing of a valid labor complaint, a nonresident worker may be transferred
to a new employer. 3 N. Mar. I. Code S 4444(e)(5). If the women had left
Castaneda's club to work illegally for a different employer, they would
have been sent home. 3 N. Mar. I. Code SS 4434(g), 4437(e). Either way,
they were not, as the dissent suggests, "stranded in a foreign country" with
no option to find a different employer. Castaneda's victims were not more
vulnerable than women from other countries tricked into coming to the
mainland United States to engage in prostitution. Those women typically
not only do not have the funds to return home but also run the risk of
being taken into custody by the INS and quite possibly prosecuted as well.

Mann Act makes it clear that it was precisely such interna-
tional victims of prostitution whose problems underlay the
passage of the Act and who were the very class of victims that
the Act's provisions were designed to protect.

As the Sabatino court's review of the legislative history
reveals, "[t]he Act was enacted amidst reports [of] the impor-
tation of illegal aliens for prostitution and other immoral pur-
poses (or white slave traffic, which was in fact its original
name)." Id. (citing Report Before Congress by the U.S. Com-
missioner General of Immigration on the Repression of the
Trade in White Women, S.Doc. No. 196, 61st Cong., 2d Sess.
(1909), H.R. Rep. No. 47, 61st Cong., 2d Sess. (1909)). In
addition to the legislative history of the Mann Act discussed
by the First Circuit in Sabatino, a survey of the recent litera-
ture on human trafficking indicates that poverty, lack of finan-
cial resources, and inability to otherwise find a job or to return
to one's country are typical characteristics of victims of
forced prostitution rings. Reports of unemployed women, par-
ticularly in recent years from the former Soviet Union, accept-
ing offers of employment in the United States as "models,"
"dancers," and "waitresses" only to find that they have been
sold into prostitution are legion, as are stories of domestic
runaways with no source of income or support being lured
into sexual slavery. See, e.g., Christopher M. Pilkerton, "Traf-
fic Jam: Recommendations for Civil and Criminal Penalties to
Curb the Recent Trafficking of Women from Post-Cold War
Russia," 6 Mich. J. Gender & L. 221, 227-230 (1999); Becki
Young, "Trafficking of Humans Across United States Bor-
ders: How United States Laws Can be Used to Punish Traf-
fickers and Protect Victims," 13 Geo. Immigr. L.J. 73, 73-80
(1998); Susan Feanne Toepfer & Bryan Stuart Wells,"The
Worldwide Market for Sex: A Review of International and
Regional Legal Prohibitions Regarding Trafficking in
Women," 2 Mich. J. Gender & L. 83, 89-90 (1994).

Although the factors leading to the economic vulnerability
of Castaneda's victims are not always associated with victims

of a Mann Act violation, they are typically associated with
such an offense. See United States v. Footman , 66 F. Supp.2d
83, 96 (D. Mass. 1999) (finding that the vulnerable victim
enhancement does not apply because "homelessness " and
"economic exigency" are "typically associated" with a Mann
Act violation). If harsher penalties should be imposed for
Mann Act offenses of the type committed here, that must be
done on a basis provided by law, not through the improper use
of the vulnerable victim enhancement. Accordingly, we find
that the district court erred in applying that provision when
sentencing the defendant.


Castaneda's sentence is VACATED and REMANDED for
resentencing consistent with this opinion. The mandate shall
issue forthwith.


SILVERMAN, Circuit Judge, dissenting:

It is difficult to understand how the majority can equate (1)
a woman who is intentionally tricked into leaving her home
in a foreign country on the promise of a legitimate job, and
then -- in the words of the plea agreement --"forced to line
up for selection by male customers to accompany them to pri-
vate . . . rooms" and there, "made to provide sexual services,"
with (2) a professional prostitute who willingly agrees to
travel across state lines for the purpose of prostitution. Both
are covered by the Mann Act, but the majority holds that the
former is no more a "vulnerable victim" than the latter. This
is obviously wrong, and therefore, I respectfully dissent.

The majority derives its conclusion from the premise that
"economic hardship" is typical of women victims in Mann
Act cases. Even assuming that to be true, the majority com-

pletely overlooks the fact that this case involves much more
than ordinary economic vulnerability.

      - The victim in this case was tricked into leaving
      a foreign country on the promise of a legitimate job.

      - As a direct result of this deception, she was
      stranded in a foreign country and, as found by the
      district judge, "couldn't just pack up and go home."

      - Because the victim was an indentured nonresi-
      dent alien worker under Northern Mariana Islands
      law, she could not work elsewhere.9

      - She was forced to participate in the prostitution

In these important respects, this case is unlike any of the
cases cited as "typical" by the majority. In United States v.
Sabatino, 943 F.2d 94 (1st Cir. 1991), the women who
worked as prostitutes in the defendant's escort business did so
knowingly and willingly. They were interviewed, hired, and
then trained in "effective prostitution techniques". Id. at 97.
True, many of the women were unwed teenage mothers in
need of a job, but they were not deceived. They knew the job

Likewise, it may be true that "runaway status, homeless-
ness and economic exigency" are typical of some women and
9 Nonresident Workers Act, 3 N. Mar. I. Code SS 4411-4452 (Jan.
1997), (Add. 1-33). Under the Act, "the employment of nonresident work-
ers [is] temporary and generally limited to the duration of the specific job
or employment for which the alien was recruited. " Id. at S 4411(a), para.
2, (Add. 1). Such a worker "shall not be permitted to perform any services
or labor within the Commonwealth for any employer other than the
employer for whom the [Department of Labor and Immigration] has
approved an employment contract with such worker, . . ." Id. at S 4437(e),
(Add. 21-22).

girls who turn to prostitution, United States v. Footman, 66 F.
Supp. 2d 83, 96 (D. Mass. 1999), but the victim in the present
case did not turn to prostitution because of homelessness or
economic exigency. She did not turn to prostitution at all. The
victim was lured to Saipan on false pretenses, trapped there,
then forced to provide sexual services to the defendant's cus-
tomers. It is important to recognize that it was the defendant's
conduct, including her misrepresentations, that created the
economic plight in which the victim found herself. None of
the cases cited by the majority deals with anything remotely
resembling this scenario. This is an entirely different situa-

The legislative history quoted by the majority is interesting
but irrelevant. For one thing, the statute was completely
rewritten in 1986. The legislative history cited by the majority
concerns the original 1910 version. Whatever the intent may
have been in 1910 with respect to white slavery, the current
statutory language no longer speaks in terms of the transporta-
tion of "any woman or girl for the purpose of prostitution or
debauchery, or with intent and purpose to induce, entice, or
compel such woman or girl to become a prostitute or give her-
self up to debauchery, or to engage in any other immoral prac-
tice." White-Slave Traffic (Mann) Act, ch. 395, 36 Stat. 825
(1910). The statute now broadly prohibits the interstate trans-
portation of any individual (of either sex) with the intent that
such individual engage in prostitution or other sexual crime.
See 18 U.S.C. S 2421.

The present statutory language covers more than just white
slavery cases. It is broad enough to encompass the transporta-
tion of professional prostitutes as well as innocent victims. In
United States v. Pelton, 578 F.2d 701 (8th Cir. 1978), the
defendant was convicted of several Mann Act violations for
sending three professional call girls from St. Louis to Chicago
"to `work' [the] boat show", and for sending another call girl
from St. Louis "to work at Penny's Cozy Corner, a house of
prostitution in Winnemucca, Nevada." Id. at 705.

My colleagues in the majority would see no legal differ-
ence between the "victims" in Pelton and the unfortunate
woman in this case who was inveigled to leave her home and
come to a foreign country on the false promise of a legitimate
job. Because I do, I respectfully dissent.


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