9th Circuit affirms prison term on Basa for sex trafficking

The U.S. Court of Appeals for the Ninth Circuit has affirmed the federal court’s sentence of 17.5-year imprisonment against Annette Nakatsukasa Basa for sex trafficking of children.

In an opinion penned by Circuit Judge Susan P. Graber, the appellate panel held that the enhancement under the U.S. Sentencing Guidelines for an offense that “involved the commission” of a sex act with a child, applies whether or not the defendant herself engaged in that act.

Graber said the panel held that U.S. District Court for the NMI Chief Judge Ramona V. Manglona did not engage in impermissible double-counting by applying two enhancements, which applies when a defendant unduly influenced a minor to engage in prohibited sexual conduct.

Graber said the panel held the district court permissibly declined to depart downward for reduced mental capacity under the U.S. Sentencing Guidelines.

In exchange for money and drugs, Basa provided housing for two 15-year-old girls and facilitated them having sex with adult men.

Basa pleaded guilty to sex trafficking of children.

On Dec. 5, 2014, Manglona sentenced the defendant to a term of 210 months in prison.

Basa, through counsel Steven P. Pixley, appealed, asking the Ninth Circuit to reverse the 17.5-year prison sentence.

Assistant U.S. attorneys Garth R. Backe and Ross K. Naughton appeared for the U.S. government at the hearing on appeal.

At the sentencing, Basa presented evidence that she suffers from significantly reduced mental capacity because of her intellectual disability, exacerbated by post-trauma stress disorder resulting from her own history of sexual abuse.

Manglona applied sentencing enhancements. The judge also denied defendant’s motion for a reduction in her sentence, reasoning that she had failed to demonstrate that her diminished capacity substantially contributed to the commission of the offense.

Pixley argues that the U.S. Sentencing Guidelines enhancement does not apply because she did not, herself, commit a sex act with either victim. Graber said this is an issue of first impression in the Ninth Circuit.

Pixley disputes Manglona’s rejection of Basa’s request for a downward departure on account of reduced mental capacity.

In affirming the sentence, Graber said the text of the Sentencing Guidelines is clear that it requires only that the offense as a whole “involved the commission” of a sex act; it does not specify that the defendant must have committed the sex act himself or herself.

Graber said when the specific offense characteristics require an act or status on the part of the defendant himself or herself, the Sentencing Guidelines plainly so state.

Graber said the Sentencing Guidelines also specify that, “specific offense characteristics…shall be determined on the basis of…all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant.”

In this case, the 9th Circuit judge said, Basa aided, abetted, counseled, commanded, induced, procured, or willfully caused the commission of a sex act with the minor victims.

Graber said Basa aided and abetted the sex acts in which the child victims engaged; she knew that her actions of encouraging, transporting, or coercing the victims would lead to sex acts and received payment for enabling the sex acts to occur.

For that reason, Graber said, defendant’s offense “involved the commission” of sex acts, and that Manglona properly applied the Sentencing Guidelines.

The 9th Circuit said Manglona permissibly declined to depart downward for reduced mental capacity.

Graber said Manglona relied on several factors to reach that conclusion.

Among other things, Graber said, Manglona found that Basa’s reduced mental capacity resulted in part from the voluntary use of illegal drugs.

“That finding is not clearly erroneous,” she pointed out.

Graber said Basa used deliberate and intelligent methods of carrying out the offense—such as using fake names and ages for the victims—which negated the inference that diminished capacity caused her to commit the offense.

Again, Graber said, those findings are not clearly erroneous.

Graber said because Manglona came to a reasonable conclusion, supported by evidence, she permissibly denied the motion for downward departure.

In Basa’s sentencing memorandum, Pixley claimed that the defendant was sexually abused by some police officers when she was young and that the abuse left her with a variety of psychological problems.