§215 Sexual Abuse, Kidnapping, Air Piracy, Threatening Communications
(U.S.S.G. §§2A3-6)
8th Circuit affirms upward variance for assault despite defendant’s mental health issues. (215)(741) Defendant pleaded guilty to making threats and assault. At sentencing, the court varied upward to 120 months. Defendant argued that the court should have varied downward because of his mental health issues. The Eighth Circuit found no error given the “stunning” damage defendant had caused and the threat he posed in the future. U.S. v. Feeback, __ F.4th __ (8th Cir. Nov. 28, 2022) No. 22-1307.
6th Circuit reverses within-guidelines sentence for failure to discuss § 3553(a) factors. (215)(742) Defendant was convicted of unlawful imprisonment and domestic assault in Indian country. His guidelines range was 360 to 2,412 months, and the district court sentenced him to 864 months. The Sixth Circuit reversed, finding that the district court did not attempt to justify his sentence in terms of the factors set forth in 18 U.S.C. § 3553(a) and stated only that defendant appeared to lack “moral guardrails.” U.S. v. Johnson, __ F.4th __ (6th Cir. Jan. 31, 2022) No. 19-2488.
6th Circuit holds guideline for unlawful restraint was most analogous to state unlawful imprisonment. (215) Defendant was convicted of unlawful imprisonment in Indian country, under Michigan Comp. Laws § 750.349b. At sentencing, the district court found the most analogous guideline was § 2A4.1 for unlawful restraint. On appeal, the Sixth Circuit rejected defendant’s argument that his Michigan offense was less serious than the federal offenses covered by § 2A4.1, noting that the Michigan offense carried a maximum sentence of 15 years. U.S. v. Johnson, __ F.4th __ (6th Cir. Jan. 31, 2022) No. 19-2488.
10th Circuit says mandatory life for aggravated sexual abuse does not violate Eighth Amendment. (140) (215) Defendant was convicted of aggravated sexual abuse for the second time and received a mandatory life sentence under 18 U.S.C. § 3559(e)(1). The Tenth Circuit found the sentence was proportional to the offense and did not violate the cruel and unusual punishments clause of the Eighth Amendment. U.S. v. Burtrum, __ F.4th __ (10th Cir. Dec. 20, 2021) No. 20-5091.
6th Circuit affirms within-guidelines kidnapping sentence despite mental health claim. (215)(742) Defendant pleaded guilty to kidnapping and firearms offenses, and was sentenced at the top of the guideline range, 192 months. On appeal, the Sixth Circuit ruled that the district court properly considered defendant’s mental health claims, and defendant failed to carry his burden to show that his guidelines sentence was unreasonable. U.S. v. Kerns, __ F.4th __ (6th Cir. Aug. 12, 2021) No. 20-1563.
10th Circuit says child sexual abuse enhancement does not require separate conviction. (215) Defendant pleaded guilty to abusive sexual conduct with a child under 12, in violation of 18 U.S.C. § 2244. The guideline for that offense, § 2A3.4(a)(1), requires an increase in offense level if “the offense involved conduct described in 18 U.S.C. § 2241(a) or (b),” the statute for aggravated sexual abuse. Defendant argued that the guideline required a conviction for violating § 2241. The Tenth Circuit rejected the argument, reasoning that it would make § 2A3.4(a)(1) useless. U.S. v. Platero, __ F.3d __ (10th Cir. May 6, 2021) No. 19-2193.
1st Circuit reverses where sexual abuser did not attempt to commit criminal sexual abuse. (215) Defendant pleaded guilty to sexually abusing one of his granddaughters, who was under 12. At sentencing, the district court applied the cross-reference in § 2A3.4 to § 2A3.1, finding that the offense involved “criminal sexual abuse or attempt to commit criminal sexual abuse.” Defendant objected that the government failed to show an attempt to commit sexual abuse because it focused on his other granddaughter, who was in a count of conviction. The First Circuit reversed, finding no showing that defendant engaged in attempted sexual abuse. The case was remanded with instructions to consider only the offense of conviction and relevant conduct. U.S. v. Castillo, __ F.3d __ (1st Cir. Nov. 25, 2020) No. 18-1966.
8th Circuit affirms within-guidelines life sentence for sexual abuse of minor. (215)(742) Defendant was convicted of aggravated sexual abuse of a minor based on his having sex with a 14-year-old girl. His guidelines range was life, and the district court sentenced him to life. Defendant argued that his sentence was substantively unreasonable and that he should have received the 30-year mandatory minimum sentence because he would be in his 80s when released and he would pose little danger of recidivating. The Eighth Circuit found the sentence was not substantively unreasonable, and the district court did not err in declining to grant a downward variance. U.S. v. Free, __ F.3d __ (8th Cir. Oct. 1, 2020) No. 19-3287.
7th Circuit upholds within-guidelines life sentence despite mitigation claims. (210)(215)(742) Defendant kidnapped a woman, raped her, set her on fire, and left her to die. He pleaded guilty to kidnapping, attempted murder, and using fire to commit a felony. While in pretrial detention, he threatened to kill a caseworker and pressed a homemade knife against her throat. At sentencing the district court imposed a guidelines sentence of life in prison. Defendant argued that his sentence was substantively unreasonable because the district court failed to address his acceptance of responsibility as a mitigating factor and instead based its sentence on aggravating factors. The Seventh Circuit found no error, noting that the district court “at least implicitly” considered defendant’s acceptance of responsibility by noting that defendant often minimized his role in his crimes. U.S. v. Clay, __ F.3d __ (7th Cir. Nov. 25, 2019) No. 19-1223.
7th Circuit says remand for resentencing should include counts not affected by appeal. (197)(215) Defendants were convicted of kidnapping and using or carrying a firearm during the kidnapping, in violation of 18 U.S.C. § 924(c). The Seventh Circuit vacated the § 924(c) convictions, but remanded for resentencing on all counts, noting that under Dean v. U.S., 137 S.Ct. 1170 (2017), the district court may consider a statutory mandatory minimum sentence in sentencing on other counts. Without the § 924(c) count, the district court would have the power to enhance the sentence on the other counts under § 2A4.1(b)(2). for use of a dangerous weapon. U.S. v. Brazier, __ F.3d __ (7th Cir. Aug. 12, 2019) No. 16-4258.
7th Circuit finds injuries to kidnapping victim were life threatening. (215) Defendant participated in a kidnapping in which the victim was shot in the arm and kicked and continually beaten, including in the head; alcohol was poured into the victim’s wounds and his injured arm was twisted. The victim survived the kidnapping. At sentencing for kidnapping, the district court applied a four-level enhancement under § 2A4.1(b) for inflicting “permanent or life-threatening injury.” On appeal, the Seventh Circuit agreed, finding that the injuries were life-threatening as defined by the commentary to § 2A4.1. U.S. v. Brazier, __ F.3d __ (7th Cir. Aug. 12, 2019) No, 16-4258.
6th Circuit says “pattern” of sexual conduct can include present offense. (215) Defendant was convicted of abusive sexual conduct. At sentencing, the district court added five levels under § 4B1.5(b)(1) for engaging in a “pattern” of prohibited sexual conduct. That commentary says two occasions are sufficient to show a pattern, and “[a]n occasion of prohibited sexual conduct may be considered … without regard to whether the occasion occurred … during the course of the instant offense.” The Sixth Circuit held that this commentary disposed of defendant’s argument that the district court erred by counting the offense of conviction as one of the occasions in which he engaged in prohibited sexual conduct with a minor. U.S. v. Wandahsega, __ F.3d __ (6th Cir May 21, 2019) No. 18-1187.
6th Circuit upholds assessment under Justice for Victims of Trafficking Act. (215)(630) At defendant’s sentencing for abusive sexual contact, the district court imposed a $5,000 special assessment under the Justice for Victims of Trafficking Act, 18 U.S.C. § 3014(a)(2). The JVTA requires a $5,000 assessment against a non-indigent defendant convicted of sexual abuse. A defendant has 20 years to pay the assessment. Defendant argued that he was indigent at the time of sentencing. Defendant pointed to his eligibility for court-appointed counsel, the fact that the district court found that he was unable to pay a fine, and his $30,000 in outstanding medical bills. The Sixth Circuit held that even if defendant was impoverished at sentencing, he had not demonstrated that he would not be able to pay the assessment over a 20-year period. U.S. v. Wandahsega, __ F.3d __ (6th Cir May 21, 2019) No. 18-1187.
6th Circuit applies presumption that sentence below guidelines is almost always reasonable. (215)(742) Defendant was convicted of abusive sexual contact based on conduct with his six-year-old son. His sentencing range was 360 months to life, but the district court varied downward to 288 months. On appeal, he argued that his sentence was excessive in light of the purposes of sentencing. The Sixth Circuit affirmed, finding that defendant failed to explain why his sentence was excessive, and applying a presumption that a sentence below the guidelines is almost always reasonable. U.S. v. Wandahsega, __ F.3d __ (6th Cir May 21, 2019) No. 18-1187.
6th Circuit allows use of acquitted conduct to set offense level for abusive sexual contact. (175)(215) Defendant was convicted of abusive sexual contact, which has a base offense level of 20 under 2A3.4(c)(1), but was acquitted of aggravated sexual abuse, which has base offense level of 30 under §2A3.1. Nevertheless, section 2A3.4(c)(1) says that if the offense involves “criminal sexual abuse,” the court should apply § 2A3.1. The district court found by a preponderance of the evidence that defendant had committed abusive sexual contact and therefore set defendant’s offense level under § 2A3.1. On appeal, defendant argued that the district court erred in relying on acquitted conduct to set his offense level. The Sixth Circuit rejected the argument, ruling that it was proper for the district court to rely on acquitted conduct at sentencing. U.S. v. Wandahsega, __ F.3d __ (6th Cir May 21, 2019) No. 18-1187.
2d Circuit reverses increase for violating state protection order, for lack of service. (215) Defendant pleaded guilty to cyberstalking, in violation of 18 U.S.C. § 2261A(2), and making hoax threats, in violation of 18 U.S.C. § 1038(a)(1). At sentencing, the court imposed a two-level enhancement under 2A6.2(b)(1)(A) because the offense involved violation of a court protection order. Defendant had been ordered to stay away by a state court in response to a petition from the victim. Defendant was never served with the order, but the district court found that defendant had notice of the order. After defendant’s sentencing, the Sentencing Commission amended the guidelines to provide that an order is valid only if the defendant had notice and an opportunity to be heard. Applying the amendment, the Second Circuit reversed, because defendant had not been served with the order. U.S. v. Thompson, __ F.3d __ (2d Cir. Apr. 10, 2019) No. 18-74.
8th Circuit upholds cross-reference to murder guideline. (215) Defendant struck his ex-girlfriend, forcibly put her in the trunk of her car, threatened her life on multiple occasions, and strangled her until she became unconscious. He pleaded guilty to kidnapping, in violation of 18 U.S.C. § 1201(a)(1). The guideline for that offense, § 2A4.1(a), states that if the kidnapping occurred in connection with another offense, the court should use the guideline for the other offense and add four levels for the kidnapping. The district court found that defendant kidnapped his ex-girlfriend in connection with an attempted murder. Under § 2A2.1(a)(1), murder has a base offense level of 33, and the district court applied that base offense level. The Eighth Circuit upheld the district court’s finding that defendant intended to kill his victim. U.S. v. Bryant, __ F.3d __ (8th Cir. Jan. 22, 2019) No. 17-3523.
8th Circuit upholds within-guidelines sentence for kidnapping. (215)(742) Defendant pleaded guilty to kidnapping his ex-girlfriend, in violation of 18 U.S.C. § 1201(a)(1). Defendant struck her, forced her into the trunk of her car, threatened her life, and strangled her until she became unconscious. His guidelines range was 360 months to life. The district court sentenced him to 360 months. The Eighth Circuit rejected defendant’s argument that the sentence was substantively unreasonable, finding that the district court properly found the circumstances of the kidnapping heinous and that defendant had a long history of abusive behavior toward women. The court rejected defendant’s claim that the district court relied on prior acts that had not resulted in convictions. U.S. v. Bryant, __ F.3d __ (8th Cir. Jan. 22, 2019) No. 17-3523.
2nd Circuit upholds stalking enhancement for threatened use of a dangerous weapon. (215) After meeting a woman in college, defendant stalked her for seven years. During the course of his conduct, defendant threatened to kill the victim with a knife. Based on this conduct, defendant was convicted of stalking, in violation of 18 U.S.C. § 2261A. The district court enhanced the sentence under § 2A6.2(b)(1)(D) because defendant threatened to use a dangerous weapon. The Second Circuit affirmed, finding that defendant threatened to harm the victim with a knife. The defendant need not display the weapon for the enhancement to apply, and the victim need not perceive the threat as credible. U.S. v. Yilmaz, __ F.3d __ (2d Cir. Dec. 13, 2018) No. 17-1827.
1st Circuit upholds ransom enhancement in kidnapping. (215) Defendant was convicted of conspiracy to kidnap, in violation of 18 U.S.C. § 1201. The guideline for that offense, § 2A4.1(b)(1), requires a 6-level increase in offense level if defendant made a ransom demand. Defendant argued that for the enhancement to apply, he must have made a ransom demand to someone other than the kidnapping victim, and he claimed that his ransom demand was made only to the victim. Reviewing for plain error, the First Circuit held that defendant had not showed that any binding precedent supported his interpretation of the guidelines. U.S. v. Romero, __ F.3d __ (1st Cir. Oct. 12, 2018) No. 17-1706.
7th Circuit says vulnerable victim increase for kidnapping minors was not double counting. (125)(215) (410) Blackwell stole cash and drugs from defendant. In retaliation, defendant kidnapped Blackwell’s younger brother and sister in Indiana and had them taken to Michigan and Kentucky. Defendant was convicted of conspiracy to commit kidnapping and kidnapping. He challenged for the first time on appeal a § 3A1.1 vulnerable victim enhancement, arguing that it amounted to improper double-counting because he was convicted of kidnapping two minors, who were deemed vulnerable victims. The Seventh Circuit found no error, plain or otherwise. The kidnapping guideline, § 2A4.1, applies generally to all kidnappings. No other offense characteristic that was applied under the guidelines accounted for the victims’ ages or vulnerability. U.S. v. Thomas, __ F.3d __ (7th Cir. July 26, 2018) No. 17-1002.
7th Circuit affirms despite error in applying restraint of victim enhancement. (125)(215)(410) Defendant was convicted of two counts of conspiracy to commit kidnapping and two counts of kidnapping. He argued for the first time on appeal that the district court erred in applying a § 3A1.3 restraint of victim enhancement. The Seventh Circuit agreed, because Application Note 2 says that the restraint enhancement does not apply to offenses covered by § 2A4.1, including kidnapping. Restraint of a victim was already accounted for in defendant’s base offense level. Nevertheless, the error was not “plain” because defendant’s guideline range would still have been life in prison, and the judge made clear that the life sentence he imposed was driven by his overall assessment of the sentencing factors under 18 U.S.C. § 3553(a). U.S. v. Thomas, __ F.3d __ (7th Cir. July 26, 2018) No. 17-1002.
5th Circuit upholds enhancement for beating teenage prostitution victim. (215) Defendant was convicted of charges based on his involvement in a ring that prostituted underage girls. Guideline §2A3.1(b)(1) provides for a four-level enhancement if “the offense involved conduct described in 18 U.S.C. §2241(a) or (b).” Section 2241(a) pertains to “knowingly caus[ing] another person to engage in a sexual act (1) by using force against that other person; or (2) by threatening or placing that other person in fear that any person will be subjected to … serious bodily injury.” The record and the PSR contain multiple examples of defendant’s viciously beating LA, one of the teenage victims. These incidents were sufficient to show that defendant used force against LA and placed her in fear that she would be subjected to serious bodily injury. Both the beatings and the fear of future harm caused LA to engage in commercial sex acts. Therefore, the Fifth Circuit held that the district court did not err in applying §2A3.1 to defendant. U.S. v. Lockhart, 844 F.3d 501 (5th Cir. 2016).
9th Circuit finds that enhancement applicable to sex offenders does not cause double counting. (125)(215) Defendant was convicted of causing a person under the age of 12 to engage in a sexual act, in violation of 18 U.S.C. §2244(a)(5), and committing a violation of §2244 involving a minor while being required to register as a sex offender, in violation of 18 U.S.C. §2260A. At sentencing, the district court found that defendant’s offense level should be set at 37 under §4B1.5, which imposes an enhanced offense level on certain recidivist sex offenders. The court also imposed the 10-year sentence required by §2260A. The Ninth Circuit held that the district court properly applied §4B1.5 and that application of §4B1.5 to defendants convicted under §2244(a)(5) and §2260A did not constitute impermissible double counting. U.S. v. Joey, __ F.3d__ (9th Cir. Jan. 19, 2017) No. 15-10096.
7th Circuit agrees that defendant “otherwise used” firearm in kidnapping. (215) Defendant was arrested after a day-long crime spree during which he robbed his uncle, kidnapped a 69 year-old farmer, stole multiple vehicles, and drove over rural roads at speeds exceeding 100 miles per hour. The district court imposed a two-level enhancement under §2A4.1(b)(3), for “otherwise us[ing]” a dangerous weapon in the kidnapping. The Seventh Circuit affirmed,. When defendant kidnapped the farmer, he took both a shotgun and handgun with him in the truck, placing the handgun in his lap. This dreated a “personalized threat of harm.” Defendant had previously threatened to kill the farmer, the farmer’s wife, and himself. The farmer would have understood the visible presence of the gun in defendant’s lap as communicating a continuing threat to harm him if he did not cooperate. U.S. v. Kruger, __ F.3d __ (7th Cir. Oct. 5, 2016) No. 15-3203.
1st Circuit remands to clarify if child victim’s out-of-court statements were reliable. (215) Defendant pled guilty to failing to register as a sex offender. The district court increased the base offense level by eight levels under §2A3.5(b)(1)(C) for commission of a sex offense against a minor while in failure-to-register status, based on evidence that defendant had molested his neighbor’s child. Defendant argued that there was insufficient evidence that he had committed a sex offense against a minor. The government contended that the transcript from the sexual abuse investigative interview, in which the child herself gave an account of the incident, gave the sentencing judge an adequate basis to find that defendant had molested the child. It argued that the child’s account was supported by police reports containing both the mother’s original statements to the police and defendant’s own statements during police questioning. Because the record did not reveal whether the district court found reliable the child’s out-of-court statement upon which the prosecution primarily relied, the First Circuit remanded for clarification. Some of the police reports that the government claimed were corroborative appeared at times to undermine, rather than verify, the child’s account. The district court did not address whether, in light of these discrepancies, the child’s interview statements were sufficiently reliable to support the conclusion that the alleged molestation occurred. U.S. v. Lacouture, 835 F.3d 187 (1st Cir. 2016).
8th Circuit says defendant waived challenge to increase for minor being in his care. (215)(310)(855) Defendant was convicted of sexual abuse of a minor and assault resulting in serious bodily injury, all occurring in Indian country. He challenged a §2A3.2(b)(1) enhancement based on the court’s finding that the minor was in his “custody, care or supervisory control.” The PSR recommended this adjustment based on evidence at trial that the minor lived with a relative and defendant, and that she considered defendant a “father figure.” At sentencing, defendant intentionally withdrew his objection to the four-level adjustment. The Eighth Circuit therefore found that he waived his claim of error. U.S. v. End of Harm, __ F.3d __ (8th Cir. July 15, 2016) No. 15-2150.
8th Circuit approves upward departure where death resulted from defendant’s assault. (215)(741) Defendant was convicted of sexual abuse of a minor and assault resulting in serious bodily injury, all occurring in Indian country. The district court departed upward from the guideline range of 151-188 months to a sentence of 293 months, citing in part §5K2.1, which authorizes a departure if death resulted from the defendant’s conduct. The district court found that “[t]he medical evidence was conclusive that [defendant’s] vicious assault … was the cause of [the victim’s] death.” The Eighth Circuit affirmed. Substantial evidence showed that defendant committed the assault. The coroner classified the victim’s death as homicide caused by blunt force trauma, and a surgeon described the force required to cause the victim’s injuries. U.S. v. End of Harm, __ F.3d __ (8th Cir. July 15, 2016) No. 15-2150.
8th Circuit holds abduction and physical restraint enhancements were not improper double counting. (125)(215)(410) Defendant was convicted of aggravated sexual abuse for holding his girlfriend against her will for three days, forcing her to have sex with him, and pushing her in front of a moving car when she tried to escape. The district court applied a four-level enhancement for abduction of the victim, under §2A3.1(b)(5), and a two-level upward adjustment for physical restraint, under §3A1.3. The Eighth Circuit found no improper double counting, because each applied to separate conduct. The abduction enhancement was based on defendant forcing the victim to return to defendant’s residence when he found her at a neighbor’s residence after she attempted to flee. He dragged her to “a different location,” not merely another room. The physical-restraint adjustment was based on the victim’s three-day confinement to defendant’s residence. When she tried to leave, defendant threatened and physically assaulted her. U.S. v. Strong, __ F.3d __ (8th Cir. June 27, 2016) No. 15-2083.
1st Circuit holds ransom enhancement was not impermissible double counting. (125)(215) Defendant pled guilty to conspiring to kidnap Doe and hold him for ransom. He argued that a six-level enhancement under section 2A4.1(b)(1) for making a ransom demand amounted to double counting because a ransom demand was already included in his conviction. The First Circuit rejected the double counting argument. The ransom demand was not an element of the crime of kidnapping, but was a fact added to the basic offense. It is an offense to kidnap for ransom and for “reward or otherwise.” Obtaining ransom is only one among other possibly illicit objectives of kidnapping. Treating the ransom objective as justification for enhancement was therefore not double counting, because it was based on a distinct set of facts. U.S. v. Acevedo, __ F.3d __ (1st Cir. June 2, 2016) No. 15-1378.
1st Circuit holds says use of firearm in kidnapping was foreseeable. (215) Defendant pled guilty to conspiring to kidnap Doe and hold him for ransom. The district court applied a two-level enhancement under §2A4.1(b)(3) for use of a firearm. Co-conspirator Moreno was armed with a gun when the conspirators dragged Doe from his car. Defendant argued that he could not have reasonably foreseen Moreno’s use of a gun. The First Circuit disagreed, and upheld the enhancement. The victim was seized from a car, where a struggle was obviously to be avoided, and where there was some risk that bystanders might try to interfere. A gun would promise efficiency, not only in the seizure itself, but in controlling Doe, since the plot called for him to be driven some distance and held for ransom. The ready foreseeability of the gun as a control device was confirmed by the undisputed fact that Moreno wielded the gun almost immediately upon leaving the van that defendant was driving. U.S. v. Acevedo, __ F.3d __ (1st Cir. June 2, 2016) No. 15-1378.
1st Circuit upholds ransom enhancement. (215) Defendant pled guilty to conspiring to kidnap Doe and hold him for ransom. He challenged a six-level increase under §2A4.1(b)(1) for making a ransom demand, arguing that there was no evidence that he knew about the demand or that it was reasonably foreseeable to him. The District court rejected the argument, and the First Circuit found no clear error. First, the indictment to which defendant pled guilty expressly charged him with conspiracy to kidnap for ransom, and the ransom demand was mentioned without objection during the plea colloquy. Moreover, the nature of the kidnapping showed how reasonably foreseeable the ransom demand must have been to defendant. Seizing an individual in broad daylight on a city street would be an inept way of gaining control over a victim one intends to kill. A more likely objective would be to profit. U.S. v. Acevedo, __ F.3d __ (1st Cir. June 2, 2016) No. 15-1378.
6th Circuit upholds cross-reference to kidnapping guideline. (215) Sixteen defendants, members of an Amish community, were convicted of crimes stemming from a spate of hair-cutting and beard-shearing attacks against other Amish individuals. The court started with the conspiracy guideline, §2X1.1, then followed a string of cross-references before applying §2A4.1, the kidnapping guideline. The jury determined that the defendants committed a generic state law form of kidnapping by restraining their victims in order to cut their beards. Section 2A4.1 applies to “[k]idnapping, [a]bduction, [u]nlawful [r]estraint.” The Sixth Circuit affirmed the application of the kidnapping guideline. State crimes that define kidnapping as the court did here qualify as “[k]idnapping, [a]bduction, [u]nlawful [r]estraint.” The fact that the appellate court previously reversed defendants’ hate crime convictions based on improper jury instructions did not matter. The district court found that defendants committed hate crimes, a finding that the court’s prior decision did not foreclose. U.S. v. Mullet, __ F.3d __ (6th Cir. May 4, 2016) No. 15-3212.
8th Circuit finds domestic violence guideline most analogous to strangulation offense. (215)(390) A jury convicted defendant of strangulation in violation of 18 U.S.C. §113(a)(8). At the time defendant committed the offense, the Sentencing Commission had promulgated a specific sentencing guideline. Following §2X5.1, the district court found that the domestic violence guideline, §2A6.2, was the most analogous to defendant’s offense of conviction and sentenced him to 41 months. The Eighth Circuit agreed that the domestic violence guideline was the most analogous because it was the only provision that accounted for the intimate relationship between the attacker and victim. The facts of defendant’s strangulation offense were consistent with domestic violence. Defendant and his victim were in an intimate relationship, lived together, and after defendant viciously attacked her, he kissed her, and told her he would “See [her] at home.” The existence of an intimate relationship between the attacker and victim was an aggravating circumstance unique to acts of domestic violence. U.S. v. Iceman, __ F.3d __ (8th Cir. May 2, 2016) No. 14-3833.
Supreme Court says sex offender need not update state registration when he leaves state. (215)(310) Under the Sex Offender Registration and Notification Act, a sex offender must update a sex offender registration if he moves. Defendant was a registered sex offender who moved from Kansas, where he had registered, to the Philippines, without updating his registration. The Supreme Court, in a unanimous decision by Justice Alito, held that SORNA did not require defendant to update his registration in Kansas once he departed the state for the Philippines. Nichols v. U.S., __ U.S. __, 136 S. Ct. __ (April 4, 2016).
4th Circuit reverses tier III sex offender status where statute did not require physical contact with child. (215) Defendant was convicted of failing to register as a sex offender. He had previously been convicted in New Jersey of endangering the welfare of a child, in violation of N.J. Stat. Ann. §2C:24-4(a). The district court sentenced defendant as a tier III sex offender, finding that the conduct underlying his New Jersey offense, penetrating the vagina of a five-year-old victim with his hand, was comparable to the offense of “abusive sexual contact … against a minor who has not attained the age of 13 years.” 42 U.S.C. §16911(4)(A). The Fourth Circuit held that Congress intended courts to use a categorical approach when the sex offender tier definition references a generic offense, with the exception of the specific circumstance regarding the victim’s age. Here, the New Jersey Supreme Court has made clear that actual or even attempted physical contact is not necessary for conviction under the statute. Thus, the offense did not qualify as a tier III offense. U.S. v. Berry, __ F.3d __ (7th Cir. Feb. 19, 2016) No. 14-4934.
Supreme Court requires 10-year sentence for child porn defendant with any sexual abuse prior. (215) (310) A conviction for possessing child pornography under 18 U.S.C. §§2252(a)(4) and 2252(b)(2), requires a 10-year minimum sentence if the defendant has a prior state conviction for a crime “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” Defendant argued that his prior conviction for sexual abuse did not qualify, because it did not “involve[e] a minor or ward.” The Supreme Court, in a 6-2 opinion by Justice Sotomayor, held that the phrase “involving a minor or ward” applies only to “abusive sexual conduct,” and not to “aggravated sexual abuse” or “sexual abuse.” As a result, defendant’s prior state conviction relating to sexual abuse of an adult triggered the mandatory minimum in section 2252(b)(2). Justice Kagan dissented in an opinion joined by Justice Breyer. Lockhart v. U.S., 577 U.S. __, 136 S. Ct. __ (Mar. 1, 2016).
2nd Circuit reverses increase for aggravated sexual abuse for inadequate findings. (215) Defendants operated two bars that also functioned as brothels. They hired undocumented aliens as “waitresses,” and forced them to drink alcohol until intoxicated, strip, be fondled and groped by customers, and have sex with customers. Defendants were convicted of sex trafficking, forced labor, and alien harboring and transportation charges. The Second Circuit reversed the district court ‘s across-the-board four-level increase for an offense that involved aggravated sexual abuse, as defined in 18 U.S.C. §2241. The government conceded that the district court “did not describe in detail the facts of aggravated sexual abuse involving each and every victim” but argued that “there was significant evidence at the trial that several victims were either forcibly raped by defendants or rendered so inebriated—often by force or threat of force—as to be functionally ‘unconscious. ‘“ However, the district court was required to “fully state[ ] the reasons for the sentence imposed,” and to make clear the basis for imposing the enhancement. The court’s failure to do so required a remand. U.S. v. Rivera, __ F.3d __ (2d Cir. Aug. 25, 2015) No. 13-2722.
1st Circuit rules Rhode Island first degree child molestation was not a Tier III offense. (215)(310) Defendant pled guilty to failing to register as a sex offender, 42 U.S.C. §16911(4). He was sentenced as a Tier III offender based on a prior Rhode Island conviction for first degree child molestation, R.I. Gen. Laws §11–37–8.1. The First Circuit reversed, holding that the Tier III designation was plain error. Tier III applies where the prior crimes are “comparable to or more severe than” two categories of enumerated offenses. §16911(4)(A): (1) sexual offenses against a child age 12 or under; and (2) sex offenses committed with force that results in additional harm, or against particularly vulnerable victims. The Rhode Island law broadly applies to a defendant who “engages in sexual penetration with a person fourteen (14) years of age or under.” The Rhode Island offense was indivisible, and therefore the comparison was limited to the elements of the crimes. Under this analysis, the Rhode Island statute was not “comparable to or more severe than” any offense in Tier III. U.S. v. Morales, __ F.3d __ (1st Cir. Aug. 27, 2015) No. 13-1999.
2nd Circuit rejects serious injury increase where criminal sexual abuse was already taken into account. (160)(215) Defendants operated two bars that also functioned as brothels. They hired undocumented aliens as “waitresses,” and forced them to drink alcohol until intoxicated, strip, be fondled and groped by customers, and have sex with customers. Defendants were convicted of sex trafficking, forced labor, and alien harboring and transportation charges. The Second Circuit held that the district court erred in imposing a two-level “serious injury” enhancement for every victim under §2A3.1(b)(4), based on evidence that the victims were raped. Note 1 to §2A3.1(b)(4) states that “ ‘serious bodily injury ‘ means conduct other than criminal sexual abuse, which is already taken into account in the base offense level.” Serious bodily injury is defined in Note 1(L) to §1B1.1 as “injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.”. On remand, the district court should consider whether the record supported applying this enhancement to any victim. U.S. v. Rivera, __ F.3d __ (2d Cir. Aug. 25, 2015) No. 13-2722.
1st Circuit finds pattern of activity based on series of threatening emails. (215) Defendant was convicted of two counts of interstate stalking with the intent to harm, or even kill, his estranged wife and her boyfriend, in violation of 18 U.S.C. §§2261A(1) and 2261(b)(5). The district court applied a two-level enhancement under §2A6.2(b)(1) for “a pattern of activity involving stalking, threatening, harassing, or assaulting the same victim,” because defendant threatened his wife in a series of emails through the spring of 2012. The First Circuit upheld the enhancement, agreeing that the series of emails was sufficient to support the pattern-of-activity enhancement. Although defendant argued that those threats should not count because they were made while he suffered from hypoglycemia, he did not show that the district court’s contrary factual finding was clear error. U.S. v. Lee, __ F.3d __ (1st Cir. June 12, 2015) No. 14-1042.
6th Circuit affirms increase in sex case for using force “as described in 18 U.S.C. §2241.” (215)(310) Defendant was convicted of sexually abusing his own children in a foreign place. He objected to the district court’s application of §2A3.1(b)(1), which instructs courts to increase the offense level by four if “the offense involved conduct described in 18 U.S.C. §2241(a) or (b).” Section 2241 includes the conduct of “using force” against another person, but defendant pointed out that §2241 is geographically limited to the “special maritime and territorial jurisdiction of the United States.” The Sixth Circuit upheld the enhancement because defendant “did, in fact, use force against the victim,” and the “conduct” described in §2241 is narrower than the “offense” described in §2241. Application Note 2(A) confirmed this plain reading by listing the conduct, including but not limited to using force, that qualifies for the enhancement. U.S. v. Al-Maliki, __ F.3d __ (6th Cir. May 27, 2015) No. 14-3386.
6th Circuit says sentence at bottom of guidelines for sexually abusing own children was not too high. (215) (310)(740) Defendant was convicted of sexually abusing his own children in a foreign place. The court sentenced him to concurrent terms of 292 months, which fell at the bottom of his guideline range. Defendant argued that the sentence was substantively unreasonable sentence because the court did not credit the positive conclusions in the psychology report. The Sixth Circuit disagreed. The report contained only one conclusion, and it was negative: “[B]ased on the overall results of this evaluation,” the report concluded that defendant’s “risk for future sexual acting out is considered to be moderate to high.” To reach that conclusion, the report considered a four-factor test in addition to his personality disorder and antisocial traits, history of instability, lack of insight and poor judgment, and unwillingness to accept responsibility for his action. The district court did not need to explain its decision to accept the report’s overall conclusion in any more detail than it did. The bottom-of-the-guidelines sentence was substantively reasonable. U.S. v. Al-Maliki, __ F.3d __ (6th Cir. May 27, 2015) No. 14-3386.
5th Circuit affirms increase for conduct evidencing intent to carry out Columbine-type threat. (215) While playing an online video game, defendant told other players that he was going to acquire guns, Molotov cocktails, and pipe bombs in order to reenact the Columbine school shooting at his high school. The Fifth Circuit upheld a six-level enhancement under §2A6.1(b)(1) for “conduct evidencing an intent to carry out [the] threat.” The district court heard testimony from two ex-girlfriends regarding defendant’s obsession with Columbine, his specific plans to recreate the Columbine attack, and his efforts to research and acquire materials that would be necessary to achieve his plans. The district court also heard testimony about two specific instances when defendant made, or attempted to make, bombs. Although defendant denied any actual intent to make a bomb, the district court rejected his testimony as “self-serving,” and found defendant’s former girlfriends more believable. The district court did not clearly err in finding that defendant obtained a copper pipe to make a pipe bomb and tested a home-made Molotov cocktail, and that these overt acts evidenced an intent to carry out the threat. U.S. v. Pillault, __ F.3d __ (5th Cir. Apr. 10, 2015) No. 14-60222.
5th Circuit approves upward variance for extreme threats during online video game. (215)(741) During an online video game, defendant told other players that he was going to acquire guns, Molotov cocktails, and pipe bombs in order to reenact the Columbine school shooting at his high school. He argued that his 72-month sentence, which was 48 months above the top of his guideline range, was substantively unreasonable. He noted that his threatening comments were made while he was playing a video game, and were part of a conversation between him and another player, who were both purposefully “provoking and goading one another.” The Fifth Circuit held that the sentence was reasonable. The district court heard each party’s description and characterization of the offense, and ultimately embraced the government’s argument that the nature and circumstances of the offense, specifically the extreme content of the threats, was an aggravating factor rather than a mitigating factor. The court did not abuse its discretion when it found that the nature of the threatened conduct outweighed the fact that the comments were made in an online context. U.S. v. Pillault, __ F.3d __ (5th Cir. Apr. 10, 2015) No. 14-60222.
9th Circuit vacates enhancement for reckless endangerment for use of laser pointer. (215) Defendant pleaded guilty to aiming a laser pointer at an aircraft, in violation of 18 U.S.C. §39A. At sentencing, the district court found that §2A5.2, applicable to Interference with a Flight Crew, was the most analogous guideline. The court enhanced defendant’s sentence by nine levels under §2A5.2(a)(2)(A) because defendant “recklessly endangered” an aircraft. The Ninth Circuit held that “the record is devoid of evidence” that defendant was aware of the risk he was creating by shining the laser pointer at an airplane and found the enhancement inapplicable. U.S. v. Gardenhire, __ F.3d __ (9th Cir. April 30, 2015) No. 13-50125.
10th Circuit uses categorical approach to determine defendant’s sex offender tier. (215)(310) Defendant pled guilty to violating the Sex Offender Registration and Notification Act (SORNA), and the district court sentenced him under guideline §2A3.5 as if he were a tier III sex offender. Under SORNA, a defendant’s tier classification is determined by comparing the defendant’s prior sex offense to statutory criteria. The Tenth Circuit held that a court should use a categorical approach to determine a defendant’s sex offender tier. This requires the court to compare the elements of the defendant’s sex offense to the statutory criteria. However, the court should use a circumstance-specific comparison for the limited purpose of determining the victim’s age. Here, the district court’s consideration of the facts relevant to the victim’s age was appropriate. However, it erred by employing a circumstance-specific approach for purposes of comparing defendant’s North Carolina offense with the federal crimes cross-referenced in §16911(4)(A). The federal statutes, §§2241, 2242, and 2244, each required physical contact. Defendant’s North Carolina offense did not. Therefore, defendant was not a tier III or tier II sex offender. By default, he was a tier I sex offender. U.S. v. White, __ F.3d __ (10th Cir. Apr. 6, 2015) No. 14-7031.
2nd Circuit reverses to reconsider deliberation in telephone call threatening President. (215) Defendant called the White House Comments Line and threatened to kill the President. The district court refused to grant her a four-level decrease under §2A6.1(b)(6) for a threat that did not involve deliberation, reasoning that the very act of calling the White House involved deliberation. The Second Circuit remanded for reconsideration of this issue. While defendant’s decision to call the White House to complain about a family law matter undoubtedly involved deliberation, the threat itself, delivered after two and a half minutes of communication categorized by the operator as “incoherent,” may not have involved deliberation of the sort to which §2A6.1(b)(6) refers. Because it appeared that the district court may have conflated the deliberation involved in making the phone call with the deliberation involved in communicating the specific threat against the President, the panel vacated the sentence and remanded for further consideration. U.S. v. Wright-Darrisaw, __ F.3d __ (2d Cir. Mar. 24, 2015) No. 14-1809-cr.
9th Circuit upholds increase for filing a single lien against multiple victims. (215) Under § 2A6.1(b)(2)(B), the guideline for filing a false lien against a government employee, a defendant is eligible for a two-level increase if the defendant filed multiple liens. The Ninth Circuit rejected defendant’s argument that the enhancement applies only when the defendant commits multiple offenses against the same victim; instead, the court of appeals held that the district court had properly applied it to defendant, who was convicted of 14 counts based on his attempt to file a lien against 14 different federal employees. U.S. v. Neal, __ F.3d __ (9th Cir. Jan. 12, 2015) No. 12-10454.
9th Circuit finds multiple count grouping increase was not improper double counting. (125)(215) Defendant was convicted under 18 U.S.C. § 1521 of attempting to file false liens against 14 federal employees. The district court increased defendant’s sentence under § 2A6.1(b)(2)(B) for attempting to file more than two false liens, and also under the grouping guideline, § 3D1.4, because the offense involved multiple counts. The Ninth Circuit held that the district court did not engage in improper double counting by applying both enhancements. U.S. v. Neal, __ F.3d __ (9th Cir. Jan. 12, 2015) No. 12-10454.
1st Circuit holds that increase for violating court protection order was not double counting. (215) Defendant repeatedly violated a protection order that barred him from approaching or communicating with his wife. In addition to attempting to communicate with her by telephone, mail, e-mail, text message, and Facebook, he also traveled to his in-laws’ home in Maine (where she was staying) and left a message for her on a tree in the yard. A federal jury convicted defendant of violating 18 U.S.C. § 2262(a)(1), (b)(5), which criminalizes interstate travel with the intent to engage in conduct that transgresses a court-imposed protection order. He was sentenced under § 2A6.2(a), which applies to an array of crimes involving stalking or domestic violence. Defendant argued that an enhancement under § 2A6.2(b)(1)(A) for violating a court protection order constituted impermissible double counting. The First Circuit disagreed. Neither § 2A6.2, nor its associated commentary, contained any prohibition against the use of the § 2A6.2(b)(1)(A) increase. The most logical conclusion was that the defendant’s base offense level accounted for the general nature of the offense of conviction as one of stalking or domestic violence, but did not account specifically for the violation of a court protection order; the two-level upward adjustment under § 2A6.2(b)(1)(A) bridged that gap. U.S. v. Fiume, 708 F.3d 59 (1st Cir. 2013).
1st Circuit approves upward departure based on seriousness of interstate stalking crimes. (215) During a protracted custody dispute with his estranged wife, defendant sent her a number of threatening messages and telephoned her sister and described in gruesome detail how he would murder both his wife and son. The First Circuit upheld a two-level upward departure for the unusual seriousness of his interstate stalking crime. The sentencing court properly gave weight to the number and horrific nature of defendant’s threats, the length of time over which the threats were made, and the meticulousness of defendant’s plotting. Even though an upward adjustment was made for defendant’s “pattern” of behavior, § 2A6.2(b)(1)(D), the atypical extent of this pattern and the aggravating factors supported the upward departure. The court’s upward criminal history departure from category I to IV was also warranted. The court considered defendant’s criminal contempt conviction, which was unrelated to the instant pattern of stalking, the additional mailing of a threatening letter while imprisoned, and the fact that defendant engaged in stalking while on pretrial release for a separate violent crime. U.S. v. Walker, 665 F.3d 212 (1st Cir. 2011).
1st Circuit holds that Maine convictions for unlawful sexual contact were violent felonies under ACCA. (215) Defendant argued that the district court erred in classifying his two 1993 convictions for unlawful sexual contact as violent felonies under the ACCA. 18 U.S.C. § 924(c)(1). He argued that because the Maine statute criminalized mere touching, among other things, the offense did not “pose a serious potential risk of physical injury.” The First Circuit disagreed, rejecting the argument that a sexual offense involving mere touching did not present such a risk. See U.S. v. Sherwood, 156 F.3d 219 (1st Cir. 1998). The fact that the Maine statute required at least a three-year spread in age between the perpetrator and the victim “heightens the dangers inherent in the conduct and thus, reinforced the conclusion that a violation of the Maine statute entails a serious potential risk of physical injury to another.” U.S. v. Richards, 456 F.3d 260 (1st Cir. 2006).
1st Circuit holds that defendant’s subjective belief that he could transmit infections supported increase for intent to harm. (215) Defendant sent threatening letters to various government employees who had been involved in his state criminal prosecution. Several of the letters were smeared with bodily substances (blood and excrement). Defendant was HIV positive and had been diagnosed with hepatitis B and C. In some of the notes he wrote things such as “My Aids infected body fluid. Enjoy.” Defendant challenged a six-level enhancement under § 2A6.1(b)(1) for conduct evincing an intent to carry out the threats, claiming that he sent the letters in order to remain in prison and that he never wished to harm the intended recipients. However, a government psychologist opined that defendant believed he might be able to harm his victims by including his blood and feces in the letters. The First Circuit held that defendant’s act of smearing his bodily substances on the threatening letters, combined with his subjective belief that this could transmit HIV and hepatitis to the letters’ recipients, supported the increase for conduct evidencing an intent to carry out the threats. Even if it was not actually possible to transmit the infections in this way, the application of the enhancement turns on a defendant’s subjective intent, without regard to factual impossibility. U.S. v. Dixon, 449 F.3d 194 (1st Cir. 2006).
1st Circuit applies increase for pattern of stalking, threatening, harassing or assaulting same victim. (215) Defendant pled guilty to under the Violence Against Women Act, 18 U.S.C. § 2262 to the interstate violation of a protective order. Section 2A6.2(b)(1)(D) provides for a two-level enhancement if the offense involved “a pattern of activity involving stalking, threatening, harassing, or assaulting the same victim.” Defendant argued that the conduct that resulted in his conviction, his journey to another state with his wife, was not an act of stalking, threatening, harassment or assault. The First Circuit affirmed the applicability of the enhancement. Whether the offense was an act of stalking, threatening, harassment or assault was not the question, but whether the act “involved” such a pattern. Here, defendant’s persistent abuse of his wife, consisting of at least two assaults and multiple threatening letters, constituted the proscribed pattern. The offense involved that pattern, because it consisted of the violation of a protective order whose only purpose was to protect the wife from that abusive behavior. Although defendant’s wife gave her consent to travel with defendant, she was still plainly a victim of his pattern of abuse. U.S. v. Robinson, 433 F.3d 31 (1st Cir. 2005).
1st Circuit rejects increase for placing kidnapped child into care of one without legal right in exchange for money. (215) Defendant kidnapped a man and his step-daughter, drove the girl to a house and left her with an accomplice, then took the man to a bar and demanded $500,000 for the girl’s safe return. Section 2A4.1(b)(6) provides for a three-level enhancement if “the victim is a minor and, in exchange for money … was placed in the care or custody of another person who has no legal right to such care or custody of the victim ….” The First Circuit held that the increase did not apply when a fellow conspirator in the hostage taking has retained the victim in his or her custody, and the consideration received is no more than the conspirator’s expected share of the ransom. The enhancement was intended to cover kidnapping-for-hire situations, where a child is kidnapped, by special order, to be turned over to the custody of a third party who has no custody rights and who has paid the kidnappers to do the job. There, the minor, in exchange for money or other consideration, is placed into the care of a third party who has no custody rights. It makes sense to add punishment for the kidnapper who, in such situations, never intends to return the child to her original home. U.S. v. Alvarez-Cuevas, 415 F.3d 121 (1st Cir. 2005).
1st Circuit says time for releasing kidnapping victim runs from abduction, not date defendant joined conspiracy. (215) Five days after the kidnapping victim was abducted, the victim was moved to defendant’s house. Five days after the move, and ten days after the abduction, the FBI rescued the victim. Guideline § 2A4.1(b) (4)(B) provides a one-level enhancement for a kidnapping in which the “victim was not released before seven days had elapsed.” Defendant argued that the increase did not apply to him because he joined the hostage-taking five days before the victim was rescued. See § 1B1.3(a)(1)(B) (excluding from a defendant’s relevant conduct the conduct of members of a conspiracy prior to the defendant joining the conspiracy). The First Circuit held that the enhancement was properly applied to defendant. First, there was sufficient evidence to show that defendant was involved in the hostage-taking before the victim was moved to his house. Second, the court would have been justified in departing upward under Note 2 to § 1B1.3(a)(1) (B), which authorizes departures where the exclusion of conduct occurring before defendant joined the conspiracy might not adequately reflect the defendant’s culpability. Third, even if defendant did not join the conspiracy before day five, the seven days was running from the moment of abduction. The guidelines speak to the release date of the victim, not to the length of time the defendant is involved in the kidnapping. Finally, the victim was rescued, not released. U.S. v. Lorenzo-Hernandez, 279 F.3d 19 (1st Cir. 2002).
1st Circuit upholds reliance on plea agreement stipulation to support cross-reference. (215) Guideline § 2A6.2 (Stalking or Domestic Violence) provides that if the offense involved conduct covered by another guideline, the court should apply that guideline if it would result in a higher offense level. The court relied on this cross-reference to apply the first-degree murder guideline, § 2A1.1, which carries a base offense level of 43. In her plea agreement, defendant stipulated both to this cross-reference and to the resulting offense level. The First Circuit upheld the district court’s reliance on the stipulation to apply the cross-reference to defendant. Although stipulations about legal issues are problematic, parties are usually bound by factual stipulations accepted by the court. Although this case involved stipulations to both legal and factual matters, defendant’s factual admissions alone were sufficient to justify the court’s use of the cross-reference. Defendant admitted crossing state lines to commit illegal acts against her boyfriend’s estranged wife, admitted seeing and hearing her boyfriend’s vicious murder of the wife’s brother, yet nonetheless lured another victim, the wife’s current boyfriend, into a place of imminent danger. The second murder was “a reasonably foreseeable act” in furtherance of the offenses of conviction. The district court had a plausible factual basis for cross-referencing the first-degree murder guideline. U.S. v. Teeter, 257 F.3d 14 (1st Cir. 2001).
1st Circuit says series of eight calls was not a single instance evidencing little or no deliberation. (215) Defendant pled guilty to making a threatening communication based on eight “prank” telephone calls he made to a missing children hotline. During the first call, defendant falsely told a hotline operator that he had abducted and sexually forced himself on his 14-year old stepdaughter. During the next seven calls, defendant described ways in which he had tortured and assaulted the girl since his last call. The First Circuit held that defendant was not entitled to a § 2A6.1(b)(2) reduction for an offense “involving a single instance evidencing little or no deliberation.” Defendant’s conduct did not involve “a single instance” since he made direct threats to kill the girl in at least two of the calls. Moreover, each “update” about the ongoing sexual torture was at least an implicit threat to continue torturing the girl. Defendant’s conduct also did not involve “little or no deliberation.” Defendant obtained the hotline number and called it eight different times, each time having to remember the number or look it up, dial the number, speak to the operator, remember the contents of his previous calls, and fabricate new details. U.S. v. Freeman, 176 F.3d 575 (1st Cir. 1999).
1st Circuit upholds cross reference to § 2G1.2 in sexual abuse case. (215) Defendant sexually abused two of his great nieces, ages 8 and 11, when they visited his house. Police found at his house sexually explicit photos of the girls, a video tape showing defendant in a sexual encounter with the 8-year old, and photos indicating that he had abused other young girls. He pled guilty to possessing child pornography, transporting minors for purposes of engaging in sexual activity, and possessing a prohibited firearm. The applicable guidelines, §§ 2G2.4 and 2G1.2, direct a court to apply § 2G1.2 if the defendant “transported a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” The First Circuit affirmed. Defendant’s claim that the photos were taken as a mere incident of the trips was not supported by any detailed factual arguments. Since defendant said little about the specific events, there was no basis for concluding that the court erred in relying on the presentence report. U.S. v. Dolloph, 75 F.3d 35 (1st Cir. 1996).
1st Circuit affirms upward departure based on extreme psychological harm suffered by child sexual abuse victim. (215) Defendant repeatedly molested his live-in girlfriend’s young daughter over a period of three years. The district court departed upward 65 months from the 235 months maximum guideline sentence and imposed three successive 100-month sentences. The departure was based on guideline § 5K2.3, extreme psychological injury to the victim, and guideline § 5K2.8, extreme conduct of the defendant. The 1st Circuit affirmed, finding that the factors mentioned by the district court warranted departure as a matter of law. The court rejected defendant’s contention that the four-level increase he received for abusing a victim under the age of 12 took into account the inherent psychological injury resulting to a young victim of sexual abuse. The departure was not based simply on age, but on the extreme harm inflicted on the victim. Not only did defendant continuously assault the girl, his abuse took particularly degrading and insulting forms. The victim suffered extreme stress, fear of physical harm to herself and her family, and guilt over these traumatic experiences. U.S. v. Ellis, 935 F.2d 385 (1st Cir. 1991).
1st Circuit increases offense level for threatening communications. (215) Defendant was charged with threatening a federal officer in violation of 18 U.S.C. § 115. He was allowed to pled guilty to a reduced charge of threatening to assault rather than threatening to murder the officer. The district court increased his offense level by six pursuant to § 2A6.1(b)(1) which provides that if the defendant “engaged in any conduct evidencing an intent to carry out such threat, increase by six levels.” The court found that the defendant had evidenced his intent to carry out the threat by brandishing a dangerous weapon (a screw driver). Although the parties stipulated that the offense level should not be increased, the 1st Circuit affirmed the six level increase, on the ground that it was reasonable to consider the screwdriver a “dangerous weapon.” The district court’s finding that the defendant engaged in conduct evidencing an intent to carry out a threat was not clearly erroneous. U.S. v. Jimenez-Otero, 898 F.2d 813 (1st Cir. 1990).
2nd Circuit says commission of sex offense, not conviction, triggers registration requirement. (215) Defendant pled guilty to failure to register as a sex offender, in violation of the Sex Offender Registration and Notification Act (SORNA). The district court applied an eight-level increase under § 2A3.5(b)(1)(C) for commission of a sex offense while in a failure-to-register status. Defendant had been charged with “lewd and lascivious conduct,” a sex offense under SORNA, for his attempt to force sexual contact with a 13-year-old girl. However, he ultimately pled guilty to “prohibited acts,” which is not categorically a sex offense. Defendant argued that the enhancement was inapplicable to the mere commission of a sex offense absent a conviction for that offense. The Second Circuit disagreed, and upheld the increase. Neither the guidelines nor SORNA make any reference to a conviction. The guidelines specify that the enhancement is triggered by the commission of an act. U.S. v. Lott, __ F.3d __ (2d Cir. Apr. 24, 2014) No. 12-5002-cr.
2nd Circuit applies sexual abuse guideline to foreign travel to engage in sex with minors. (215) Defendant was convicted of traveling outside the U.S. for the purpose of engaging in sexual acts with minors. The district court sentenced him under § 2A3.1 (Criminal Sexual Abuse), which requires a base offense level of 27, plus a 4-level enhancement if the victim had not attained the age of 12. Defendant argued that the court should have applied § 2A3.2 (Statutory Rape) which provides for a base offense level of 15, with no calibrations based on the minor’s age. The Second Circuit found no error. The Statutory Index specifies that a conviction under 18 U.S.C. § 2241(c) should be sentenced under § 2A3.1. For defendant’s other convictions under § 2423(b), the Statutory Index lists guidelines §§ 2A3.1, 2A3.2 and 2A3.3. Section 2A3.1 was the most appropriate for these counts since they involved the same transaction and the same or overlapping victims as the § 2241(c) count. Defendant clearly went to Mexico to engage in sex with young boys, and there was ample evidence that his preferred age group was six to 12-year-old boys. U.S. v. Irving, 554 F.3d 64 (2d Cir. 2009).
2nd Circuit says court need not compare defendant’s sentence to Commission’s statistics. (215) Defendant was convicted of traveling outside the U.S. for the purpose of engaging in sexual acts with minors, and child pornography charges. He challenged his 262-month sentence, arguing that the court erred in failing to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of the similar conduct.” 18 U.S.C. § 3553(a)(6). He argued that the district court was required to consider “statistics kept by the Sentencing Commission regarding sentences imposed locally and nationally on similarly situated offenders.” The Second Circuit upheld the guideline sentence, finding the district court was not required to consult the statistics provided by defendant. These statistics did not distinguish between defendants who committed crimes of sexual abuse against children and those who committed such crimes against adults. More importantly, concern about unwarranted disparities “is at a minimum when a sentence is within the Guidelines range.” U.S. v. Irving, 554 F.3d 64 (2d Cir. 2009).
2nd Circuit says government breached agreement by seeking increase for conduct known at time of agreement. (215) Defendant pled guilty to transmitting a threat in interstate commerce. His plea estimated defendant’s “likely” adjusted offense level as 10 “[b]ased on information known to [the government] at the time.” The PSR raised the possibility of a six-point enhancement under § 2A6.1(b)(1) for conduct evidencing an intent to carry out the threat, but found a insufficient factual basis for it. Upon reading the PSR, the government, now represented by a different Assistant U.S. Attorney, transcribed for the probation office a tape-recorded conversation in which defendant angrily indicated his intent to carry out this previously articulated threat. The probation office, in an addendum, then recommended the six-point enhancement. The government also submitted a letter to the court arguing in favor of the six-level enhancement recommended in the PSR, and it renewed this argument at sentencing. The Second Circuit held that the government breached the plea agreement by advocating the enhancement. The plea agreement stated that the government’s estimate of the defendant’s offense level was “based on information known to the Government at the time.” The information in the tape that served as the basis for the enhancement was known to the government at the time the plea agreement was signed. It was logical for defendant to believe that the government’s position would not be altered in the absence of new information, or simply because a new Assistant U.S. Attorney had taken over the case. U.S. v. Palladino, 347 F.3d 29 (2d Cir. 2003).
2nd Circuit applies use of force increase based on beating before sexual assault. (215) Defendant, a former New York City police officer, committed a vicious sexual assault on a man who was in police custody. The man was taken by another officer into the bathroom, where defendant kicked and punched him, then forced a broken broomstick into the victim’s rectum, causing severe internal injuries. The district court imposed an increase under § 2A3.1(b)(1) for the use of force because (a) defendant committed the sexual abuse through the use of force by pushing, kicking and punching the victim immediately before the assault, and (b) the force defendant used was sufficient to puncture the victim’s bladder and rectum. The Second Circuit upheld the first reason for the increase and rejected the second. Section 2A3.1(b)(1) is not aimed at more forceful assaults, but at uses of force that compel the victim’s submission to a sexual assault. The degree of injury to the victim is taken into account separately in § 2A3.1(b)(4). Thus, the fact that defendant inserted the stick particularly forcefully did not support the increase. However, the use of force increase was properly based on defendant’s “pushing, kicking and punching” the victim just before the assault; this abuse surely reduced defendant’s physical and emotional capacity to resist the assault. Moreover, defendant’s accomplice in the bathroom physically restrained the victim during the assault itself. U.S. v. Volpe, 224 F.3d 72 (2d Cir. 2000).
2nd Circuit holds that “in custody” and “color-of-law” increases were not double counting. (215) Defendant, a former New York City police officer, committed a vicious sexual assault on a black man who was in police custody. The criminal sexual abuse guideline provides an adjustment if “the victim was … in the custody, care or supervisory control of the defendant.” § 2A3.1(b)(3)(A). The civil rights guideline provides an adjustment if “the offense was committed under color of law.” § 2H1.1(b)(1)(B). The Second Circuit held that the imposition of both enhancements did not constitute double counting. The two adjustments address separate sentencing considerations. The color-of-law adjustment punishes abuse of authority, either actual or apparent, by an officer of the state. The in-custody adjustment, by contrast, punishes abuse of power over an individual in the officer’s physical and legal control. No impermissible counting occurs when a police officer, acting under color of law, is punished more severely for sexual abuse that occurred while the victim was also in his custody. U.S. v. Volpe, 224 F.3d 72 (2d Cir. 2000).
2nd Circuit finds repeated harassment was conduct evidencing intent to carry out threats. (215) For several years, defendant harassed and threatened former girlfriends, their family, and their employers. The Second Circuit affirmed a six-level enhancement under § 2A6.1(b)(1) for conduct evidencing an intent to carry out the threats. With regard to one former girlfriend, there were repeated phone calls to the woman and defendant’s threatening calls to the CEO of her employer. These calls took place after the December 1991 phone call for which defendant was convicted, when he threatened to break the former girlfriend’s legs and neck. With respect to threats to another former girlfriend’s father, the court noted a great deal of conduct showing an intent to carry out the threat, including calling family members, making a bomb threat to her employer, distributing derogatory materials about her to her employer and to a national medical board that was testing the woman, and breaking into her apartment. Although the bomb threat and break-in occurred before defendant’s calls to the father, the post-threat conduct sufficiently supported the enhancement. U.S. v. Morrison, 153 F.3d 34 (2d Cir. 1998).
2nd Circuit finds man who flew 4000 miles to former girlfriend’s home intended to carry out threats. (215) Defendant, a citizen of Germany, made threatening phone calls from Germany to his former girlfriend in the U.S. Several nights after the last of these calls, he was discovered in the woman’s backyard outside her bedroom window. The Second Circuit upheld a § 2A6.1(b)(1) enhancement for conduct evidencing an intent to carry out the threats. Although no weapons were found in defendant’s possession, he did, as threatened, make a nearly 4000 mile trip from Germany to the woman’s home. He had no permission to enter her property, and he was found lurking in her backyard at midnight. U.S. v. Berndt, 127 F.3d 251 (2d Cir. 1997).
2nd Circuit finds threatening communications guideline was most analogous for harassing ex-girlfriend. (215) Defendant was convicted of violating the Violence Against Women Act, 18 U.S.C. § 2262(a)(1), after he crossed state lines to continually threaten and harass a former girlfriend in violation of a protection order. There is no specific guideline applicable to a § 2266 offense, and the district court determined that the most analogous guideline was § 2A6.1, Threatening Communications. The Second Circuit agreed that § 2A6.1, rather than § 2B3.3 (Blackmail and Extortion), was the most analogous guideline. By its own terms, § 2B3.3 applies only where there clearly is no threat of violence to person or property. Here defendant constantly stalked and harassed the victim, threatened to kill any male with whom she might associate, and used force on at least two occasions to prevent her from leaving. Defendant was not entitled to a § 2A6.1(b)(2) reduction for no credible threats of violence. The reduction applies where the offense involved only a single instance evidencing little or no deliberation. Defendant’s success in finding the victim’s unlisted phone number and tracking her down in various places required substantial planning and deliberation. U.S. v. Casciano, 124 F.3d 106 (2d Cir. 1997).
2nd Circuit says meeting did not show intent to carry out threats because defendant did not initiate it. (215) Defendant threatened his former girlfriend and her son in a series of interstate phone calls made on May 5, 1995. Pursuant to FBI instructions, the girlfriend agreed to meet with defendant at a bus station near her home. Defendant was arrested by the FBI at a different bus station in the area. The PSR recommended a § 2A6.1(b)(1) enhancement for conduct evidencing an intent to carry out the threats based on his history of physically abusing the victim and because after his arrest, defendant offered a fellow inmate $5000 to kill the victim. The district court recognized that it could not rely on either of these grounds, but instead based the enhancement on defendant’s arrest in a town near the victim, coupled with the fact that defendant knew her address and phone number, after she had changed her number. The Second Circuit reversed, since the arranged meeting was not the result of defendant seeking out the victim to carry out his threats, but an FBI plan to arrest defendant. The district court correctly concluded that defendant’s solicitation of an inmate to kill the girlfriend would not support the enhancement because that conversation occurred well after defendant’s threatening phone calls. U.S. v. Sovie, 122 F.3d 122 (2d Cir. 1997).
2nd Circuit holds money was ransom even though kidnapper believed it was owed to him. (215) Two women were hired by drug traffickers to transport $300,000 to Colombia. They were robbed on the way to the airport. Defendant and two accomplices kidnapped the two women along with one woman’s roommate. Later, they released one woman, ordering her to return with the missing $300,000 or else they would kill the two remaining women. Defendant challenged a § 2A4.1(b)(1) enhancement for making a ransom demand since the money he demanded was owed to him. The Second Circuit upheld the ransom enhancement. There is nothing in the term’s ordinary usage (a consideration paid or demanded for the redemption of a captured person) that precludes ransom from consisting of a demand for a sum that the kidnapper believes is owed to him. U.S. v. Escobar-Posado, 112 F.3d 82 (2d Cir. 1997).
2nd Circuit reverses departure for psychological condition, nonpredatory nature, and rehabilitation. (215) Defendant pled guilty to knowingly receiving child pornography. The district court departed downward in light of defendant’s psychological condition, his limited involvement with child pornography, his nonpredatory nature, and his efforts towards rehabilitation. The Second Circuit reversed. The evidence did not support a finding that defendant suffered from an extraordinary mental or emotional condition. Defendant’s offense was not atypical; the Sentencing Commission clearly foresaw that § 2G2.2 would extend to a “mere passive offender” who has not engaged in large‑scale pornography distribution. The fact that defendant had never sexually abused children did not merit a departure. Section 2G2.2 contains an enhancement for individuals involved in the sexual abuse of a minor. Finally, there was no evidence that defendant had made “extraordinary efforts” at rehabilitation and there were no “objective indications” of defendant’s progress towards overcoming his condition. U.S. v. Barton, 76 F.3d 499 (2d Cir. 1996).
2nd Circuit reverses sentence for abusive sexual contact where jury found aggravated sexual abuse. (215) Defendant was convicted of abusive sexual contact and aggravated sexual abuse after attempting to force a co-worker to perform oral sex. The district court found the case atypical in that the force applied by defendant was directed at sexual contact rather than a sexual act. Therefore, the judge calculated defendant’s sentence under § 2A3.4 (abusive sexual contact), rather than § 2A3.1 (aggravated sexual abuse). The Second Circuit reversed, since the applicable statute clearly states that fellatio is a sexual act. More importantly, the judge attempted to sentence based on his view of the evidence rather than the jury’s. In convicting defendant, the jury necessarily found, beyond a reasonable doubt, that he had attempted to commit a sexual act by force. The district court could not then decide to sentence defendant for a lesser crime. U.S. v. Hourihan, 66 F.3d 458 (2d Cir. 1995).
2nd Circuit says buying guns when threats were sent showed intent to carry out threats. (215) From November 1990 until February 1992, defendants sent threatening letters to several people threatening to kill them. Many of the letters threatened to shoot the victim. The district court enhanced defendants’ sentences under § 2A6.1(b)(1) for conduct evidencing an intent to carry out the threats, based on weapons present in defendants’ house when they were arrested in March 1992. One defendant had purchased one of the guns in the fall of 1991 and had asked whether the seller could provide him with ammunition. The Second Circuit agreed that the purchasing of firearms during the period in which defendants were sending letters threatening to shoot people sufficiently evinced an intent to carry out their threats. U.S. v. Kirsh, 54 F.3d 1062 (2d Cir. 1995).
2nd Circuit holds that inability to carry out threat is not basis for downward departure. (215) While incarcerated, defendant sent threatening letters to a federal judge. The district court departed downward based on defendant’s present inability to carry out the threat, and the fact that he displayed this inability by putting his prison return address on the envelope. The 2nd Circuit held that defendant’s inability to carry out the threat, and his overt manifestation of that inability, were improper grounds for departure. Section 2A6.1(b)(1) provides for an enhancement where a defendant engages in conduct evidencing an intent to carry out a threat. Implicit in this is the consideration that certain defendants will be unable to execute their threats. Moreover, the fact that the recipient was made aware that defendant could not immediately carry out his threat was not sufficiently unusual that the court could conclude it was not factored into the guidelines. U.S. v. Malik, 16 F.3d 45 (2nd Cir. 1994).
2nd Circuit upholds application of specific offense characteristics for kidnapping despite acquittal. (215) Defendant was convicted of conspiracy to kidnap and acquitted of the substantive crime of kidnapping. The 2nd Circuit upheld use of the specific offense characteristics for kidnapping in guideline section 2A4.1. The provision applicable to inchoate offenses, section 2X1.1, states that the base offense level is the base offense level for the substantive offense, plus any adjustments from the guideline for any intended offense conduct that can be established with reasonably certainty. Thus, the district court used the kidnapping base offense level of 24, and applied enhancements for ransom and for committing the offense in furtherance of another crime. The fact that the jury acquitted defendant of the substantive crime of kidnapping did not establish that he withdrew from the conspiracy before the ransom demand or the facilitation of another crime. Moreover, the fact that he was acquitted did not mean he was entitled to the three level reduction under section 2X1.1(b). U.S. v. Patino, 962 F.2d 263 (2nd Cir. 1992).
2nd Circuit rules past conduct cannot be used to show defendant’s intent to carry out threat. (215) Defendant was involved in a fraudulent investment scheme in oil wells. After legal proceedings began, he sent a letter to several investors threatening that they would lose their interest in the wells unless they contributed to defendant’s legal defense fund. The district court found that defendant committed the offense of sending threatening communications, which carries a base offense level of 12 under guidelines § 2A6.1(a). The district court increased the offense level to 18 under guideline § 2A6.1(b)(1) because it found that defendant had engaged in conduct which evidenced an intent to carry out the threat. The 2nd Circuit reversed the six-level enhancement. The only evidence presented of defendant’s double-selling of the wells was related to actions which took place prior to the threatening letters. A person cannot take actions that will constitute proof of his intent to carry out a threat until after the threat has been made. Thus, defendant’s past conduct could not be used to show he intended to carry out his threat. U.S. v. Hornick, 942 F.2d 105 (2nd Cir. 1991).
3rd Circuit says departure may be based on congressional finding supporting guideline change. (215) Defendant induced a woman to move from New York to Pennsylvania so that he could engage in sexual conduct with the woman’s two-year-old daughter. He pleaded guilty to interstate transportation to engage in sex with a minor, in violation of 18 U.S.C. § 2241(c). At sentencing, the district court found that defendant had an offense level of 37. The court departed upward by five levels in part because post-offense amendments to the Guidelines showed that the applicable Guidelines did not sufficiently punish the offense. The Third Circuit held that the district court properly relied on the congressional finding behind the Guidelines amendments to determine that the Guidelines did not punish the offense adequately. U.S. v. King, 604 F.3d 125 (3d Cir. 2010).
3rd Circuit upholds departure in sexual abuse case based on pattern of sexually abusing minors. (215) Defendant sexually molested the two-year-old daughter of a woman he convinced to move from New York to Pennsylvania. He was convicted of interstate transportation to engage in sex with a minor, in violation of 18 U.S.C. § 2241(c). At sentencing, the district court departed upward in part because defendant’s pattern of sexually abusing minors, including his own daughter, placed his conduct outside the heartland. The Third Circuit upheld the departure, finding that the district court was not required to quantify the extent to which defendant sexually abused minors and that the record adequately established both that defendant had sexually abused minors and that he engaged in “online predation of minors.” The court agreed with the district court that defendant’s repeated abuse “creates social harm that is not addressed by a Guideline that applies to a single instance of abuse.” U.S. v. King, 604 F.3d 125 (3d Cir. 2010).
3rd Circuit finds 360-month sentence reasonable for abuse of young minor. (215) Defendant pleaded guilty to interstate transportation to engage in sex with a minor, in violation of 18 U.S.C. § 2241(c), based on his sexual abuse of a two-year-old girl who was in his care. After enhancements, defendant’s sentencing range was 37, and the district court departed upward by five levels based in part on defendant’s pattern of sexually abusing minors, including his own daughter. Defendant’s resulting sentencing range was 360 months to life, and the district court imposed a 360-month sentence. On appeal, defendant argued that the sentence was unreasonable because his conduct was less severe than that of the victim’s mother, who allowed others to sexually abuse the girl, with the result that the child contracted a sexually transmitted disease. The Third Circuit rejected this argument and held that the district court properly distinguished others involved in the sexual abuse of the girl. U.S. v. King, 604 F.3d 125 (3d Cir. 2010).
3rd Circuit finds no procedural error in 360-month sentence for sexual abuse of minor. (215) At defendant’s sentencing for interstate transportation to engage in sex with a minor, in violation of 18 U.S.C. § 2241(c), he argued that he had mental health problems and that the district court should consider the abuse he suffered as a child. The district court agreed that defendant had mental health issues, but imposed a sentence of 360 months. On appeal, defendant argued that the district court committed procedural error by failing to consider that he came from a “broken home” and had suffered sexual abuse as a child. The Third Circuit held that in light of defense counsel’s abbreviated discussion of defendant’s childhood, the district court did not commit procedural error by failing to address that issue in imposing sentence. U.S. v. King, 604 F.3d 125 (3d Cir. 2010).
3rd Circuit says defendant improperly sentenced for sexual abuse rather than sexual contact. (215) Defendant was convicted of transportation of a minor with intent to engage in criminal sexual activity. Guideline § 2A3.1 applies when a defendant engages in or attempts to engage in criminal sexual abuse, which is defined as knowingly engaging in a “sexual act” with a person between 12 and 16 who is at least four years younger than the defendant. Section 2A3.4 applies when a defendant engages in or attempts to engage in abusive sexual contact not amounting to a sexual act. The Third Circuit concluded that a sexual act requires skin-to-skin touching. In this case, where defendant pushed the victim’s head towards his penis, in an attempt to engage her in oral sex, defendant’s pants were still on. Because no skin-to-skin contact was possible, defendant should have been sentenced for sexual contact rather than sexual abuse. U.S. v. Hayward, 359 F.3d 631 (3d Cir. 2004).
3rd Circuit rejects downward departure for defendant who threatened to kill federal judge. (215) While in prison, defendant sent a letter threatening to kill a federal judge. He was frustrated regarding the way in which time that he spent in custody after arrest was taken into account in determining his federal sentence and a related state sentence. The district court departed downward for five reasons: (1) its difficulty in identifying the heartland of the offense because the Statutory Index listed numerous guidelines that might apply to violations of 18 U.S.C. § 115(a); (2) the fact that defendant was not particularly dangerous; (3) the fact that defendant might not even have violated § 115(a)(1)(B); (4) the sentencing expectations of previous judges in defendant’s case had been frustrated; and (5) defendant’s frustration over this situation. The Third Circuit held that the departure was an abuse of discretion. It was irrelevant that there is not one single guideline for all § 115(a) cases. The absence of evidence that a defendant was likely to carry out a threat is already taken into account in § 2A6.1, since an enhancement applies when the offense involved conduct showing an intent to carry out the threat. A departure based on the weakness of the evidence is inappropriate. While a defendant’s having previously served an “unfair” sentence is not a forbidden factor, the court abused its discretion in concluding that the events surrounding defendant’s prior state and federal sentences took his case outside the heartland. Finally, the fact that defendant was “provoked” to write the threatening letter was not a proper ground for departure. U.S. v. D’Amario, 350 F.3d 348 (3d Cir. 2003).
3rd Circuit holds that defendant seriously deliberated before making threat to airline. (215) Defendant telephoned an airline reservation office and threatened to blow up one of its planes in mid-air. He was convicted under 49 U.S.C. § 46507(1) of giving false information about carrying explosives on an aircraft. He argued that he was entitled to a four-level reduction under § 2A6.1 because his offense “involved a single instance evidencing little or no deliberation.” The Third Circuit held that the district court did not clearly err in finding that defendant seriously deliberated before acting, and thus was not entitled to the reduction. An FBI agent testified that defendant told him that he wanted to get a reaction from a air reservation agent, “and that he knew that a good terrorist would speak of explosives” to accomplish that goal.” Such a statement demonstrated sufficient deliberation to support the court’s decision to reject the reduction. U.S. v. Cothran, 286 F.3d 173 (3d Cir. 2002).
3rd Circuit holds that threatening communications guideline is most analogous for false threat to airline. (215) Defendant telephoned an airline reservation office and threatened to blow up one of its planes in mid-air. He was convicted under 49 U.S.C. § 46507(1) of giving false information about carrying explosives on an aircraft. Because there is no specific sentencing guideline for this offense, USSG § 2X5.1 directs that the most analogous guideline should be applied. The PSR recommended applying § 2K1.5 (Possessing Dangerous Weapons or Materials While Boarding or Aboard an Aircraft), which carries a base offense level of 9. The district court, however, applied § 2A6.1 (Threatening or Harassing Communications), which carries a base offense level of 12. The Third Circuit agreed that § 2A6.1 was the more analogous guideline. First, § 2A6.1 accurately embodied defendant’s conduct. Defendant was convicted of conveying a false threat, not of possessing dangerous weapons while on an aircraft. Moreover, there is a scienter element present in the base offense level of § 2A6.1 that is not present in the base offense level of § 2K5.1. A defendant sentenced pursuant to the base offense level of § 2A6.1 has knowingly conveyed a threat, while a defendant sentenced pursuant to the base offense level of § 2K1.5 has not boarded the aircraft knowing that he has a dangerous weapon. If such a boarding takes place with actual knowledge of the presence of dangerous weapons, the base offense level of 9 increases to 24. See § 2K1.5(b)(1). U.S. v. Cothran, 286 F.3d 173 (3d Cir. 2002).
3rd Circuit upholds departure based on prior similar sexual assault. (215) Defendant kidnapped a woman and sexually assaulted her over a period of days. Based on note 7 to § 2A3.1, the district court departed upward because defendant’s criminal history included a prior sentence for similar conduct—a 1983 state conviction for sexually assaulting a jogger at knifepoint. The Third Circuit held that defendant waived any challenge to this departure by admitting at sentencing that the commentary was applicable to him. Moreover, even if defendant properly preserved this argument, the departure was proper. His prior conviction for a similar offense involving sexual abuse was an “encouraged factor” for departure. This factor was not adequately considered in his criminal history because there is a qualitative difference between a conviction for any offense resulting in a term of imprisonment of more than one year, and a conviction for a prior sexual assault. U.S. v. Ward, 131 F.3d 335 (3d Cir. 1997).
3rd Circuit says request to check license plate showed intent to carry out threat. (215) Defendant left a threatening message on the voice mail of a postal inspector. Defendant asked his friend, a police officer, to run a check on the inspector’s license plate. The 3rd Circuit held that the request constituted conduct evidencing an intent to carry out the threats, under section 2A6.1. U.S. v. Green, 25 F.3d 206 (3rd Cir. 1994).
3rd Circuit upholds sentencing kidnapper under criminal sexual abuse guideline. (215) Defendant was convicted of kidnapping and related counts for abducting young boys or luring them back to his apartment, where he drugged them and then sexually abused them. The kidnapping guideline, section 2A4.1, states that if the victim was kidnapped to facilitate the commission of another offense, the guideline for such offense should be used if it results in a higher offense level. The 3rd Circuit affirmed that it was proper to sentence defendant under the guideline for criminal sexual abuse, section 2A3.1, even though he was never charged with that offense, and the federal court lacked jurisdiction to try him for it. There is no requirement that a defendant be convicted of conduct before the conduct may be considered in sentencing. A district court may consider uncharged, relevant state conduct as well as federal conduct. Once a jurisdictional basis existed over the kidnappings, then all relevant conduct could properly be considered in defendant’s sentence. U.S. v. Pollard, 986 F.2d 44 (3rd Cir. 1993).
4th Circuit upholds physical restraint increase for defendant convicted of forcible rape. (215) Defendant pled guilty to two counts of aggravated sexual abuse, in violation of 18 U.S.C. § 2241(a) (1) and (2), after he raped and then assisted another man in raping a woman on a U.S. naval base. The district court applied a two-level enhancement under § 3A1.3 for physical restraint of the victim. He argued that the physical restraint factor was taken into account through his offense guidelines, § 2A3.1, which required a four-level enhancement for the conduct described (forcible rape) in his statute of conviction. The Fourth Circuit upheld the application of the § 3A1.3 enhancement, rejecting defendant’s argument that the force element of forcible rape was equivalent to restraint. The statute required force “sufficient to overcome, restrain, or injure a person; or the use of a threat of harm sufficient to coerce or compel submission by the victim.” Under this definition, the force element may be satisfied without evidence of physical restraint similar to the examples. Thus, the use of force does not necessarily entail physical restraint, and unlawful restraint was not an element of the § 2241(a)(1) offense. U.S. v. Johnson, 492 F.3d 254 (4th Cir. 2007).
4th Circuit says single letter threatening several victim did not merit increase for multiple threats, but possible departure for multiple victims. (215) Defendant mailed a threatening letter to his wife in which he threatened the lives of his wife, “the man or men you are with,” and defendant’s three children. The Fourth Circuit held that a § 2A6.1(b)(2) enhancement for multiple threats was erroneous because his entire letter comprised a single threat, even though it was directed at multiple victims. Note 3 to § 2A6.1 clarifies that the phrase “more than two threats” under § 2A6.1(b)(2), refers to the number of threatening communications, not the number of victims threatened. However, Note 3 authorizes an upward departure where, as here, a single threatening communication names two or more victims. U.S. v. Stokes, 347 F.3d 103 (4th Cir. 2003).
4th Circuit says threatening letter showed substantial deliberation by defendant who had trouble reading and writing. (215) Defendant mailed a threatening letter to his wife in which he threatened the lives of his wife, “the man or men you are with,” and defendant’s three children. Section 2A6.1(b)(5) authorizes a downward adjustment if (a) no other adjustments under § 2A6.1 apply, and (b) the offense involved little or no deliberation.” The district court denied the reduction, finding that the letter reflected substantial deliberation. The Fourth Circuit agreed. Defendant must have expended great effort in writing the letter, because he had difficulty reading and writing. U.S. v. Stokes, 347 F.3d 103 (4th Cir. 2003).
4th Circuit finds that past abuse of victim showed defendant’s intent to carry out threats. (215) While in prison, defendant mailed threatening letters to his former girlfriend. The threatening communications guideline provides for a six-level enhancement if “the offense involved any conduct evidencing an intent to carry out such threat.” § 2A6.1(a)(1). The Fourth Circuit held that the § 2A6.1(b)(1) enhancement applies to prior conduct that does not qualify as relevant conduct, as long as the prior conduct is “substantially and directly connected” to the offense of conviction.” See Note 2 to § 2A6.1. Defendant’s past abuse and threats to his former girlfriend were sufficiently connected with his current offense to warrant the increase. Past violence and abuse by the defendant, particularly where the current threats refer to specific instances of such past conduct, may demonstrate that a defendant is not merely “blowing smoke.” Moreover, the victim’s involvement with defendant was essentially a three-year continuum of threatened violence and physical abuse that proceeded on a weekly basis until defendant was sent to prison. Defendant’s history of violence against the victim which continued unabated during their relationship clearly shed light on his intent to carry out his threats, and his specific reference to a few of these incidents clearly linked his past conduct with the fresh threats of harm made in the letters. U.S. v. Worrell, 313 F.3d 867 (4th Cir. 2002).
4th Circuit holds that statements were “threats” even though not communicated to victim. (215) While in prison, defendant attempted to mail his probation officer a threatening letter, and was convicted of threatening to murder a federal law enforcement officer. The district court applied a § 2A6.1(b)(2) increase for an offense involving more than two threats based on trial testimony by prison inmates who recounted instances where defendant had made hostile comments about his probation officer, and stated his intent to hurt the officer if he got out of jail. Defendant argued that that these statements to his fellow inmates were not threats because he did not communicate or intend to communicate them to their target, his probation officer. The Fourth Circuit held that the term “threat” has the same meaning in § 2A6.1(b)(2) as it has in the statutes criminalizing threats. Previous cases have held that a statement may qualify as a threat even if it is never communicated to the victim. See U.S. v. Patillo, 431 F.2d 293 (4th Cir. 1970). The failure to communicate a threat to its intended victim is not entirely irrelevant, because whether a threat was communicated to the victim may affect whether the threat could reasonably be perceived as an expression of genuine intent to inflict injury. Here, defendant’s statements to the other inmates could be treated as threats even though defendant did not communicate them to his probation officer. U.S. v. Spring, 305 F.3d 276 (4th Cir. 2002).
4th Circuit holds that increase for making two threats incompatible with selection of lower base offense level. (215) Section 2A6.1(a)(2) reduces a defendant’s base offense level from 12 to six “if the defendant is convicted of an offense under 47 U.S.C. § 223(a)(1)(C), (D), or (E) that did not involve a threat to injure a person or property.” Section 2A6.1(b)(2) provides for a two-level enhancement if the offense involved more than two threats. The Fourth Circuit held that the § 2A6.1(b)(2) enhancement for making two threats was inconsistent with the court’s selection of a base offense level of six for a threatening or harassing communication that did not involve a threat to injure a person or property. The offenses described in 47 U.S.C. § 223(a)(C), (D) or (E) do not require the actual making of threats as a statutory elements. Therefore, the phrase “did not involve a threat to injury a person or property” in § 2A6.1(a)(2) is a reference to relevant conduct. Given that “offense” in both § 2A6.1(a)(2) and § 2A6.1 (b)(2) includes relevant conduct, application of the subsection (b)(2) enhancement based upon a finding that the defendant made more than two threats was incompatible with selection of a base offense level of six under subsection (a)(2), because application of both provisions would require the district court to make contradictory factual findings. U.S. v. Brock, 211 F.3d 88 (4th Cir. 2000).
4th Circuit approves upward departure for death of kidnapping victim. (215) Defendant persuaded a young woman to accompany him in his car across states lines. He later killed her. He was convicted of kidnapping. The district court imposed a life sentence based either on a cross-reference to the murder guideline or an upward departure under § 5K2.1 for the death of the kidnapping victim. The Fourth Circuit affirmed the life sentence based on the § 5K2.1 departure. Death is an encouraged basis for departure and section 2A4.1 of the 1990 guidelines only took into account the very limited circumstances of a defendant who kidnaps an individual for the purpose of killing her. This is distinguishable from a defendant who kidnaps a victim for another reason and later forms the intent to kill. The extent of the departure was reasonable, because the court found defendant guilty of first-degree murder. U.S. v. Metre, 150 F.3d 339 (4th Cir. 1998).
4th Circuit affirms increases for smuggling aliens and holding them hostage. (215) Defendants were involved in smuggling Chinese nationals into the United States and holding them hostage until they paid a “transportation” fee. The Fourth Circuit, without discussion, upheld (1) a § 2A4.1(b)(6) enhancement because some of the Chinese nationals held hostage were minors, (2) a § 2A4.1(b)(2)(B) enhancement because a hostage suffered serious bodily injury, and (3) a § 2A4.1(b)(1) enhancement for demanding ransom. U.S. v. Chen, 131 F.3d 375 (4th Cir. 1997).
4th Circuit approves departure for assaulting wife and putting her in trunk for several days. (215) Defendant was convicted of kidnapping and interstate domestic violence after he assaulted his wife, placed her in the trunk of his car, and drove around with her for five or six days before taking her to a hospital. The district court departed upward as follows: (1) under § 5K2.2 because the victim suffered a massive, permanent and life threatening injury, (2) under § 5K2.8 and § 5K2.2 because of defendant’s extreme conduct, including depriving her of medical attention for a period of days and confining her in an automobile trunk, (3) under § 5K2.5 for massive economic losses to the victim, and (4) under § 5K2.4 for restraining the victim by binding her ankles after inflicting her massive injuries, and (5) for defendant’s use of an automobile when he was under a lifelong suspension of his driving privileges. The Fourth Circuit affirmed. The extent of the departure, to a life imprisonment sentence, was not an abuse of discretion. Absent torture, more serious injuries than those suffered by defendant’s wife were hard to imagine. Although defendant received a § 2A4.1(b)(2) enhancement for a permanent bodily injury, § 5K2.2 provides that a substantial departure may be appropriate when a major permanent disability is intentionally inflicted. U.S. v. Bailey, 112 F.3d 758 (4th Cir. 1997).
4th Circuit holds evidence of intent to carry out threat need not occur contemporaneously with threat. (215) Defendant was convicted of mailing threatening communications based on numerous letters he wrote. He received an enhancement under section 2A6.1(b)(1) for engaging in conduct evidencing an intent to carry out his threats. The 4th Circuit held that the enhancement may be based on any acts evidencing an intent to carry out the threats, whether committed before or after the threats. Thus, the district court properly considered defendant’s angry visit to his victim’s apartment on February 21, 1991, and his visit on July 15, 1991 after his release from prison, during which he vandalized her home and car. Moreover, the district court found that defendant had “stalked” his victim after July 22, 1991. The victim testified that some of the letters contained specific information concerning her whereabouts that could only have been obtained by watching her movements. U.S. v. Gary, 18 F.3d 1123 (4th Cir. 1994).
4th Circuit rejects sexually exploited minor’s lack of knowledge of videotaping as grounds for downward departure. (215) While on a camping trip with several children, defendant placed a video camera in his camper to record the children while they changed their clothes. He instructed them to take off their clothes, sit in certain positions, and examine themselves for ticks by spreading and examining their genitals. The children were unaware that the video camera was recording. The district court departed downward because the victims were not aware that they were being victimized until sometime after the events occurred. Thus, it reasoned that no harm was suffered and defendant’s conduct fell short of the sexual abuse required by the charging statute. The 4th Circuit rejected this as a ground for departure. Such a rationale improperly rejects Congressional belief that sexual exploitation of a minor in order to produce visual depictions constitutes a form of child abuse. The facts demonstrated that defendant victimized the children. Whether they were aware that he was videotaping them was irrelevant. U.S. v. Bell, 5 F.3d 64 (4th Cir. 1993).
4th Circuit upholds use of dangerous weapon in aggravated assault case despite claim of double counting. (215) Defendant pled guilty to aggravated assault. The district court refused to apply an enhancement under section 2A2.2(b)(2)(B) for use of a dangerous weapon because it believed it constituted impermissible double counting, since the guidelines define the base offense level of aggravated assault to include assault with a dangerous weapon. The 4th Circuit reversed, finding the district court’s view inconsistent with the language and structure of the guidelines. The crime of aggravated assault with a dangerous weapon with intent to do bodily injury will not always result in the four-level enhancement under section 2A2.2(b)(2)(B). The base offense level set by section 2A2.2 applies to this assault offense because it “involved” a dangerous weapon, but the four-level adjustment applies only if the defendant “used” the dangerous weapon. Moreover, an adjustment that clearly applies must be imposed unless the guidelines expressly exclude its applicability. The guidelines are explicit when double-counting is forbidden. U.S. v. Williams, 954 F.2d 204 (4th Cir. 1992).
4th Circuit uses conspiracy guideline where defendant conspired to kidnap, torture and kill child for “snuff” film. (215) Defendant was convicted of conspiracy to kidnap in connection with his plot to kidnap, sexually abuse, torture and finally kill a 12-year old boy for a “sex-snuff” film. Defendant received a 400-month sentence, and complained that although he was convicted of conspiracy to kidnap, he was sentenced as though he had committed first-degree murder. The 4th Circuit affirmed the sentence. The court correctly applied the conspiracy guideline, § 2X1.1, which references the guideline for the underlying offense — in this case the kidnapping guideline, § 2A4.1. Under § 2A4.1(5), since the kidnapping was intended to facilitate other offenses, sexual abuse and murder, the court was directed to apply the guideline for that offense. This resulted in an offense level of 43, which was reduced to 40 under § 2X1.1, since the intended crime was not completed. U.S. v. DePew, 932 F.2d 324 (4th Cir. 1991).
5th Circuit holds that victim with broken rib, bruised buttocks, and cuts suffered serious bodily injury. (215) Defendant, a member of a drug cartel, was convicted of kidnapping a drug dealer. During his 16-day detention, the dealer was threatened and brutalized. Defendant challenged a § 2A4.1(b)(2)(B) enhancement, claiming that although the victim was treated inhumanely and in a manner that shocked the conscience, he did not sustain “serious bodily injury.” The Fifth Circuit upheld the enhancement. The victim was assaulted repeatedly, resulting in a broken rib, bruised buttocks, and cuts behind the ears. It was plausible for the district court to conclude that these injuries involved “extreme pain” and therefore qualified as serious bodily injuries. U.S. v. Garza-Robles, 627 F.3d 161 (5th Cir. 2010).
5th Circuit says in absence of guidelines, it was plain error not to consider proposed guideline. (215) Defendant pled guilty to failing to register under the Sex Offender Registration and Notification Act, in violation of 18 U.S.C. § 2250. At the time of the offense, there was no guideline for this offense. Unaware that the Sentencing Commission had submitted a proposed guideline to Congress, the district court sentenced defendant to 60 months. The proposed guideline became effective November 1, 2007, as § 2A3.5. Under the proposed guideline, defendant’s sentencing range would have been 21-27 months. The Fifth Circuit held that the district court’s failure to consider the proposed guideline was plain error. Under the guidelines, if the offense is a felony for which no guideline has been promulgated, a district court should “apply the most analogous guideline.” § 2X5.1. In U.S. v. Armstead, 114 F.3d 504 (5th Cir. 1997), the court ruled that when there is a proposed guideline, the court should use the proposed guideline in determining the most analogous guideline for sentencing purposes. U.S. v. Sanchez, 527 F.3d 463 (5th Cir. 2008).
5th Circuit says in absence of guidelines, it was plain error not to consider proposed guideline. (215) Defendant pled guilty to failing to register under the Sex Offender Registration and Notification Act, in violation of 18 U.S.C. § 2250. At the time of the offense, there was no guideline for this offense. Unaware that the Sentencing Commission had submitted a proposed guideline to Congress, the district court sentenced defendant to 60 months. The proposed guideline became effective November 1, 2007, as § 2A3.5. Under the proposed guideline, defendant’s sentencing range would have been 21-27 months. The Fifth Circuit held that the district court’s failure to consider the proposed guideline was plain error. Under the guidelines, if the offense is a felony for which no guideline has been promulgated, a district court should “apply the most analogous guideline.” § 2X5.1. In U.S. v. Armstead, 114 F.3d 504 (5th Cir. 1997), the court ruled that when there is a proposed guideline, the court should use the proposed guideline in determining the most analogous guideline for sentencing purposes. U.S. v. Sanchez, 527 F.3d 463 (5th Cir. 2008).
5th Circuit says sexual abuse victim hospitalized overnight suffered serious bodily injury. (215) Defendant was convicted of aggravated sexual abuse on an Indian Reservation. He received a two-level increase under § 2A3.1(b)(4)(B) for the victim’s serious bodily injury. The Fifth Circuit affirmed. The police determined that the 52-year old victim needed to be taken to the hospital because of his physical condition. It was undisputed that he remained hospitalized overnight with a variety of medical complaints. Moreover, the victim’s fact was swollen as though he had been beaten. U.S. v. Bell, 367 F.3d 452 (5th Cir. 2004).
5th Circuit upholds use of criminal sexual abuse guideline based on co-defendant’s conduct. (215) Defendant and Gilley kidnapped a woman at gunpoint and forced her into her car. Gilley sexually assaulted and raped the woman while defendant drove the woman’s car. Defendant and Gilley then switched positions. With Gilley driving, defendant ordered to woman to perform sex acts with him, but Gilley warned defendant to wait until they reached Albuquerque so that passing drivers would not see them. Once they arrived in Albuquerque, defendant again announced his desire to rape the victim, but Gilley again intervened. The woman later escaped. Although defendant never sexually assaulted the victim, the Fifth Circuit held that he was properly sentenced under § 2A3.1, the criminal sexual abuse guideline, rather than § 2A4.1, the kidnapping guideline. An accomplice testified that defendant and Gilley declared their intent to steal a car from a woman whom they could also kidnap for the purpose of raping her. Defendant forced the woman into the car at gunpoint and restrained her by driving the car while Gilley sexually assaulted her. Defendant attempted to sexually assault the woman, and he stopped only because of Gilley’s fear of detection by passing drivers. The court properly concluded that defendant reasonably could foresee Gilley’s sexual assault on the victim and was liable for the assault under § 1B1.3(a)(1). U.S. v. Phipps, 319 F.3d 177 (5th Cir. 2003).
5th Circuit applies abduction increase where defendant tricked young girl to move to new location. (215) Defendant tricked one of the girls at his lodging facility into going with him by the trees near the playground by asking her to find a place to go “pottie.” Once there, he coerced her to touch his penis. When others approached, he tricked her into selecting a new place for him to go to the bathroom. She suggested that he go by some garbage dumpsters located on the property. Once in the area, defendant forced her to perform oral sex on him. Guideline § 2A3.1(b)(5) provides for a four-level increase if the sexual abuse victim was “abducted.” The commentary defines “abducted” to mean “that a victim was forced to accompany an offender to a different location.” Note 1(a) to § 1B1.1. Defendant argued that “forced to accompany” is a requirement that the force or coercion be physical. The Fifth Circuit held that the term “forced to accompany” includes cases where the force applied was by means of “veiled coercion” rather than brute physical strength, at least in a situation where the victim is easily overcome by veiled coercion. Here, defendant “abducted the victim by appealing to a seven-year old sense of obedience to adults and because of her inability to make assessments of that kind.” Using “veiled coercion, he was able to isolate the victim by dominating her lack of intellectual ability, and also by appealing to the credulous nature of a seven-year old.” U.S. v. Hefferon, 314 F.3d 211 (5th Cir. 2002).
5th Circuit approves upward departure for multiple acts of abuse of the same victim. (215) Defendant tricked one of the girls at his lodging facility into going with him by the trees near the playground by asking her to find a place to go “pottie.” Once there, he coerced her to touch his penis. When others approached, he tricked her into selecting a new place for him to go to the bathroom. She suggested that he go by some garbage dumpsters located on the property. Once in the area, defendant forced her to perform oral sex on him. At the time of sentencing, Note 5 to § 2A3.1 provided that if a defendant is convicted of an act of criminal sexual abuse, but the court determines that the offense involved multiple acts of criminal sexual abuse, an upward departure may be warranted. Pursuant to this comment, the court departed upward by two levels. The Fifth Circuit found no error, agreeing that the offense at issue involved multiple acts of criminal sexual abuse of the same victim. U.S. v. Hefferon, 314 F.3d 211 (5th Cir. 2002).
5th Circuit applies § 2A3.1 where defendant stipulated to facts that constituted aggravated sexual abuse. (215) Defendant pled guilty to traveling interstate for purposes of engaging in a sexual act with a juvenile, in violation of 18 U.S.C. § 2423(b). Although the parties agreed that § 2G1.1 should apply to defendant, the district court sentenced him under § 2A3.1, as directed by Appendix A. Defendant argued that § 2A3.1 applies only to the actual or attempted commission of an aggravated sexual abuse, and that here, the crime was impossible to actually commit because the juvenile victim was fictional. The government argued that § 2A3.1 was correctly applied because defendant stipulated to conduct that violated 18 U.S.C. § 2241, aggravated sexual abuse. Defendant stipulated that he traveled across state line with the intention of engaging in sexual acts with a 10-year old boy. The Fifth Circuit agreed that because defendant stipulated to facts that constituted aggravated sexual abuse, then pursuant to § 1B.2, he could be sentenced under § 2A3.1. U.S. v. Rhodes, 253 F.3d 800 (5th Cir. 2001).
5th Circuit says forcible rape conviction not necessary for cross-reference to criminal sexual abuse guideline. (215) Defendant was convicted of transporting his 13-year old daughter to Mexico and raping her. Guideline § 2A3.2(c)(1), the guideline for sexual abuse of a minor, provides that if the offense involved criminal sexual abuse, the court should apply § 2A3.1, the guideline for criminal sexual abuse. Defendant argued that the use of the cross-reference was improper because he was not convicted of forcible rape and because any alleged rape occurred in a foreign country. The Fifth Circuit upheld the use of the cross-reference, holding that a conviction of forcible rape and the commission of such rape within the U.S. are not requisites for the application of the cross-reference. U.S. v. Garcia-Lopez, 234 F.3d 217 (5th Cir. 2000).
5th Circuit rejects commentary as inconsistent with kidnapping guideline. (215) Defendants abducted a woman, and attempted to kill her before leaving her by the side of the road. Section 2A4.1(b)(7)(B) says where another offense is committed during a kidnapping, the court must apply the “offense guideline applicable to that offense.” Defendant’s “other offense” was attempted murder. However, note 5 to § 2A4.1 says that “if the offense involved a kidnapping during which a participant attempted to murder the victim under circumstances that would have constituted first degree murder had death occurred, the offense referenced under subsection (b)(7) would be the offense of first degree murder.” The Fifth Circuit ruled that note 5 was inconsistent with the dictates of § 2A4.1(b)(7)(B), and should not be followed. Section 2A4.1(b)(7)(B) directs courts to cross reference the guideline applicable to the crime the defendant actually committed. By directing courts to cross reference the first degree murder guideline in cases of attempted murder, application note 5 violates the clear mandate of the guideline it interprets. Under Stinson v. United States, 508 U.S. 36 (1993), if the commentary and the guideline are inconsistent, the guideline should be followed. U.S. v. Smith, 184 F.3d 415 (5th Cir. 1999).
5th Circuit holds that overt act needed to show intent to carry out threats. (215) Defendant, a prison inmate, wrote several letters threatening various people in the legal community in Amarillo, Texas. The district court applied a § 2B6.1(1)(1) enhancement for conduct evidencing an intent to carry out his threats, finding that defendant’s repeated threats to the same victim supported the enhancement. The Fifth Circuit disagreed, joining the majority of circuit courts that have required that a defendant engage in some form of overt act before sustaining a § 2A6.1(b)(1) enhancement. Holding that threats are enough to support a § 2A6.1(b)(1) enhancement would contradict the plain language of the guideline. The fact that defendant wrote multiple threatening letters, and the content and nature of the letters, did not justify the enhancement. Although defendant’s threats were extremely violent and one of the letters was signed in blood, these acts were merely threats and not conduct evidencing an intent to carry out a threat. U.S. v. Goynes, 175 F.3d 350 (5th Cir. 1999).
5th Circuit rejects guideline for consensual sexual abuse of ward where defendant stipulated force was used. (215) Defendant, the warden of a jail, raped an inmate and then lied to investigators about the incident. He pled guilty to violating the inmate’s civil rights and making a false official statement. Although the PSR recommended sentencing under § 2A3.1 (criminal sexual abuse), the district court sentenced defendant using § 2A3.3, which normally is applied to consensual criminal sexual abuse of a ward. The court thought that § 2A3.1 was unduly harsh because the civil rights count was only a misdemeanor that had a maximum penalty of one year and the other count was a collateral offense. The Fifth Circuit ruled that the court should have used § 2A3.1 rather than § 2A3.3. The crime’s classification as a misdemeanor with a one-year sentence was irrelevant. When a defendant is sentenced on multiple counts under a single indictment, the court uses the combined offense level. The total punishment can be more than the maximum statutory penalty for any particular offense. Looking to the underlying offense to which the defendant stipulated, defendant’s offense was analogous to a violation of § 2241, the forcible rape statute, because he used actual force against his victim. He also caused the victim to engage in a sexual act by placing her in fear within the meaning of § 2242 because of his power over her. U.S. v. Lucas, 157 F.3d 998 (5th Cir. 1998).
5th Circuit refuses § 2A6.1(b)(2) reduction for single threatening letter to probation officer. (215) While in jail, defendant mailed a threatening letter to his probation officer. He was convicted of threatening to assault a federal probation officer. The Fifth Circuit upheld the denial of a § 2A6.1(b)(2) reduction for actions that were “a single instance evidencing little or no deliberation.” Defendant’s actions involved the deliberate securing of stationery and postage, the composition of a letter, the search for an address, and the act of taking the letter to be mailed. It was not a spontaneous, momentary action done out of opportunity or impulse. The fact that this was a single letter did not justify the reduction. U.S. v. Stevenson, 126 F.3d 662 (5th Cir. 1997).
5th Circuit agrees that dangerous weapon was used in kidnapping. (215) The Fifth Circuit upheld a § 2A4.1(b)(3) enhancement for use of a dangerous weapon in a kidnapping. The government presented evidence that one victim was hit with a gun and that the other had a gun put to his back. U.S. v. Gaytan, 74 F.3d 545 (5th Cir. 1996).
5th Circuit holds that victim who seemed more dead than alive suffered serious bodily injury. (215) Defendants beat a kidnapping victim with a wooden stick, threw him in the trunk of a car, and drove around with the victim in the trunk. At one point, one defendant told another defendant that he thought the victim was dead. The 5th Circuit upheld an enhancement under section 2A4.1(b)(2)(B) for inflicting serious bodily harm. The district court did not commit clear error in concluding that the victim’s numerous lacerations and other injuries rose to the level of serious bodily injury. One defendant had recognized that the victim seemed more dead than alive. A third defendant deserved the enhancement, even if he did not participate in inflicting the injuries. This defendant plotted with the other defendants at the beginning of the conspiracy and traveled in the car with the victim in the trunk, knowing the victim needed medical attention. U.S. v. Davis, 19 F.3d 166 (5th Cir. 1994).
5th Circuit says wooden stick and gun used to beat kidnap victim was a dangerous weapon. (215) Defendants beat a kidnapping victim with a wooden stick and a gun, threw him in the trunk of a car, and drove around with the victim in the trunk. The 5th Circuit upheld the finding that the wooden stick and gun were dangerous weapons under application note 1(d) to section 1B1.1. The wooden stick served as a dangerous weapon because of its characteristics (a rather large stick of manzanita wood, a hard wood used to make bird cages) and the manner in which it was used by one defendant (to beat the victim on his head, arms and legs.) Although two other defendants did not inflict major injuries with either the stick or the gun, they could have reasonably foreseen the way in which the first defendant used the stick. They also used the stick and gun in ways that intimidated the victim. Thus, an enhancement under § 2A4.1(b)(3) for using a dangerous weapon was justified. U.S. v. Davis, 19 F.3d 166 (5th Cir. 1994).
5th Circuit holds that abduction enhancement is not double counting for defendant convicted of kidnapping. (215) Defendant was convicted of kidnapping. Because he committed another offense (rape) during the kidnapping, guideline section 2A4.1(b)(7) required him to be sentenced under section 2A3.1, the criminal sexual abuse guideline. He argued that enhancing his sentence under section 2A3.1(b)(5) for abduction of his victim constituted improper double counting, reasoning that the court already took the kidnapping offense into account when it began its calculations with section 2A4.1, the kidnapping guideline. The 5th Circuit found no double counting. Defendant’s interpretation ignored section 1B1.5, which expressly provides that the entire guideline shall be applied upon reference from another guideline. U.S. v. Anderson, 5 F.3d 795 (5th Cir. 1993).
5th Circuit sentences defendant for co-defendant’s sexual abuse of kidnapping victim. (215) Defendant pled guilty to aiding and abetting his co-defendant in kidnapping a woman. During the kidnapping, the co-defendant raped the woman several times. Because the co-defendant committed “another offense” during the kidnapping under § 2A4.1(b)(7), defendant was sentenced under § 2A3.1, the criminal sexual abuse guideline. Defendant argued that because he did not personally commit any sexual offense, and was “virtually unaware” of it, he should not be accountable for it. The 5th Circuit held that defendant was liable as an aider and abettor for the relevant conduct of defendant. The court rejected as untimely defendant’s claim that the enhancement was improper because he could not have been convicted of the federal crime of sexual abuse or aggravated sexual abuse. Moreover, the claim had no merit. Nothing in the commentary suggests that the term “another offense” was limited to violations of federal law. U.S. v. Anderson, 5 F.3d 795 (5th Cir. 1993).
5th Circuit holds firearm enhancement not double counting even though conviction was for firearm offense. (215) Defendant was convicted of possession of a firearm by a felon. Because the weapon was used in a kidnapping, under sections 2K2.1(c)(1) and 2X1.1 he was sentenced under section 2A4.1, the kidnapping guideline. The 5th Circuit held that an enhancement for use of a firearm during the kidnapping, under §2A4.1(b)(3), did not constitute double jeopardy or impermissible double counting. There was no double jeopardy since there was a single prosecution, and the sentence was within legislatively intended limits. Double counting is only impermissible if the guideline expressly forbids it. Here, the guidelines did not expressly forbid enhancement of defendant’s base offense level for use of a weapon when his base offense level was already enhanced for possessing a weapon in committing an offense. U.S. v. Gonzales, 996 F.2d 88 (5th Cir. 1993).
5th Circuit affirms use of murder guideline in sentencing kidnappers. (215) Defendants went to the home of Wright to collect a drug debt. While there, one defendant killed a young man who worked for Wright, and then defendants kidnapped Wright’s female companion and their three-year old son, purportedly as ransom for the drug debt. However, the woman and her son were killed because they were witnesses to the other killing. Defendants were convicted of kidnapping. Guideline § 2A4.1(b)(5)(B) provides that under certain circumstances if the victim was kidnapped to facilitate the commission of another offense, a court is to apply the guideline for such other offense. The 5th Circuit affirmed that defendants kidnapped the mother and child to facilitate their murders, and that defendants were properly sentenced under the guideline for murder. Even if the kidnapping was originally planned to facilitate the collection of the drug debt, once the first murder occurred, it became necessary to cover up the murder. U.S. v. Jackson, 978 F.2d 903 (5th Cir. 1992).
5th Circuit upholds enhancement for both ransom demand and extortion. (215) Defendant’s base offense level was increased by six levels under § 2A4.1(b)(1) for committing the offense of kidnapping when a ransom demand was made, and by four levels under § 2A4.1(b)(5) for committing the offense of kidnapping to facilitate the commission of another offense (extortion). Defendant argued that enhancing his offense level once for the ransom demand and again for extortion amounted to a double penalty for the same conduct. The 5th Circuit upheld the double enhancement. The guidelines are explicit when double counting is forbidden, and nothing in the guidelines prohibited a double enhancement in this situation. U.S. v. Rocha, 916 F.2d 219 (5th Cir. 1990).
5th Circuit upholds increase in offense level for defendant who brandished gun and threatened others involved in kidnapping scheme. (215) Defendant kidnapped a two-year old boy. While holding the boy in a house in Mexico, defendant waved a gun during an argument and warned others involved in the plot that “anyone going to the police would have to deal with her.” Defendant received a two point increase in her offense level for using a gun in the kidnapping. Although merely brandishing a gun does not constitute use, the 5th Circuit found that defendant’s threat to the others involved in the scheme, combined with her waving of the gun, constituted using the gun in the commission of the kidnapping, since it was sufficient to intimidate the others involved in the plot and enabled her to cross the U.S. border without police pursuit. U.S. v. De La Rosa, 911 F.2d 985 (5th Cir. 1990).
5th Circuit holds death of kidnapping victim is proper grounds for departure. (215) Defendant was convicted of kidnapping and the district court departed upward from the guidelines and imposed a 30 year sentence on the ground that the defendant was a career offender under § 4B1.1. The 5th Circuit affirmed the sentence on the ground that § 5K2.1 permits a departure from the applicable range if death resulted. Thus, it stated that it need not decide whether the district court properly found that the defendant was a career offender. U.S. v. Melton, 883 F.2d 336 (5th Cir. 1989).
6th Circuit reverses classification of defendant as Tier III sex offender. (215) Defendant pled guilty to failing to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA). Guideline § 2A3.5 provides three possible base offense levels for a failure to register offense: (1) 16, for Tier III offenders; (2) 14, for Tier II offenders, or (3) 12, for Tier I offenders. The Sixth Circuit ruled that the district court plainly erred in finding that defendant was a Tier III offender, i.e., a sex offender whose offense is comparable to or more severe than “aggravated sexual abuse or sexual abuse.” Defendant’s 1998 Indiana sexual-battery offenses were not, at least as far as the record revealed, “comparable or more severe than” sexual abuse. The Indiana sexual-battery statute did not require a “sexual act,” as defined in 18 U.S.C. § 2246(2). The Indiana statute prohibited all forced, sexually motivated touching, whether of the genitalia or not, and whether through the clothing or not. There were no other facts that would support the court’s conclusion that defendant “was required to register as a Tier III offender.” U.S. v. Stock, 685 F.3d 621 (6th Cir. 2012).
6th Circuit denies reduction for voluntarily correcting failure to register as sex offender. (215) Defendant pled guilty to failing to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA). Guideline § 2A3.5(b)(2)(A) provides for a three-level reduction for “voluntarily … correct[ing] the failure to register.” The Sixth Circuit held that the district court properly denied defendant’s request for the § 2A3.5(b)(2)(A) reduction. Before defendant admitted his sex-offender status to Tennessee police, those officers had already learned from a records check that defendant was a sex offender, and they required defendant to complete the sex-offender registration before he could be released. That finding, which was supported by the testimony of two witnesses, was not clearly erroneous. The district court did not clearly err when it found that defendant’s contrary recollection – that he was released from custody before his failure to register was discovered, but then prepared the document and returned it to the sheriff’s office 30 or so minutes later – was “simply incredible.” U.S. v. Stock, 685 F.3d 621 (6th Cir. 2012).
6th Circuit approves upward variance for mailing threatening letter containing a white powder. (215) Defendant sent six threatening letters to the federal district judge who had sentenced him to prison for fraud. One of the letters contained a white powder, which was later determined to be a harmless artificial sweetener. Defendant pled guilty to committing a hoax involving a biological weapon, under 18 U.S.C. § 1038(a)(1). The guidelines recommended a sentence of 30-37 months, but the district court varied upward and sentenced defendant to 60 months. The Sixth Circuit found no error in the upward variance. The court discussed the serious effect of defendant’s crime on the operation of the government. Although this circumstance was addressed in the guidelines, this did not prevent the court from considering it under § 3553(a), so long as the court explained why the circumstance warranted additional weight in the defendant’s sentence. Here, defendant’s offense involved more than just a single act against a government official – his white powder hoax was part of a series of letters that threatened the life of a district judge. U.S. v. Nixon, 664 F.3d 624 (6th Cir. 2011).
6th Circuit increases sex offense level based on fictional seven-year-old created by undercover officer. (215) An undercover officer posed as a mother of two daughters whom she offered up for sex with defendant. One of the fictional daughters was 7 years old and the other was 12. Defendant traveled from Delaware to Ohio to meet and engage in sexual activity with all three fictional females. The district court applied a four-level enhancement under § 2A3.1(b)(2) for a victim under the age of 12. Defendant agreed that an undercover agent can be a “victim” under the Guidelines, but argued that the enhancement only applies when the officer actually impersonates an underage individual. Here, the officer posed as both the mother and the 12-year old during phone conversations, but not as the 7-year old. The Sixth Circuit disagreed. Note 1 defines the term “victim” to include an undercover officer. The note does not limit the definition of a “victim” to exclude a fictional character not impersonated by the officer. U.S. v. Angwin, 560 F.3d 549 (6th Cir. 2009).
6th Circuit holds that court did not provide sufficiently compelling justification for 206% upward variance. (215) Defendant pled guilty to traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with two minors. Because defendant was convicted of a sex crime and had one previous sex offense conviction, the district court applied § 4B1.5, “Repeat and Dangerous Sex Offender Against Minors.” This increased his offense level to 32 and his criminal history category to V, and resulted in a guideline range of 188-235 months. The court imposed a sentence of 720 months, the statutory maximum. The Sixth Circuit reversed, holding that the district court did not provide sufficiently compelling justification for the 206% upward variance. The primary ground for the variance – that the court wanted to prevent defendant from ever committing this crime again – did not distinguish defendant from other repeat sex offenders. The Sentencing Commission promulgated § 4B1.5(a) for individuals with at least one prior sex offense conviction. By relying on a problem common to all repeat sex offenders and failing to offer meaningful distinctions between the risk that defendant posed to the public and the risk that other sex offenders posed, the court left little room to distinguish between defendant and other sex offenders with an even more serious background (for example, those who do not accept responsibility or use violence or weapons to commit the offense, or have multiple prior convictions). U.S. v. Poynter, 495 F.3d 349 (6th Cir. 2007).
6th Circuit holds that §2A3.1 applies to crossing state line for purpose of having sex with a minor. (215) Defendant was convicted of traveling across state lines to have sex with a minor under the age of 12. The Statutory Index directs a court to three guidelines, §§2A3.1, 2A3.2, and 2A3.3. The Sixth Circuit held that §2A3.1 was the most applicable to defendant’s offense. Section 2A3.3 was clearly inapplicable. Section 2A3.1 was more applicable than §2A3.2 because it involved victims under 12. Moreover, the district court properly applied the specific offense characteristic of a victim under the age of 12, even though the victim was fictional. The enhancement was not double counting. The plain language of the guideline mandates this result. The base offense level in §2A3.1 did not account for the age of the victim. U.S. v. Hochschild, 442 F.3d 974 (6th Cir. 2006).
6th Circuit says increase for unduly influencing minor does not apply where victim was undercover officer. (215) Defendant used the Internet to attempt to get an undercover agent posing as a 14-year old girl to meet him for sexual activity. The district court imposed a § 2A3.2(b)(2)(B) increase for unduly influencing a minor to engage in prohibited sexual conduct. The Sixth Circuit, noting the circuit split on this issue, held that § 2A3.2(b)(2)(B) increase was not available in cases where the victim was an undercover law enforcement officer representing himself to be a child under the age of 16. The dictionary definition of “undue influence” suggests that there must be an actual person who is affected in some way. An undercover officer who is not at all persuaded in thought or in deed, therefore, cannot be “unduly influenced.” While the guidelines specifically define victim to include undercover agents posing as underage children, this definition should not apply in provisions in which such a definition does not make sense. Reading into the guideline a different standard, as the Eleventh Circuit did in U.S. v. Root, 296 F.3d 1222 (11th Cir. 2002), abrogation recognized by U.S. v. Daniels, 685 F.3d 1237 (11th Cir. 2012) (applying enhancement where defendant “displays an abuse of superior knowledge, influence and resources”), “comes perilously close to judicial rewriting of the guidelines.” The court found it unnecessary to hold that § 2A3.2(b)(2)(B) is inapplicable in all attempt cases. Compare U.S. v. Mitchell, 353 F.3d 522 (7th Cir. 2003). U.S. v. Chriswell, 401 F.3d 459 (6th Cir. 2005).
6th Circuit upholds use of sexual abuse guideline for kidnapper. (215) Defendant and an accomplice were convicted of kidnapping, in violation of 18 U.S.C. § 1201(a)(5), after abducting a U.S. postal employee, holding her captive for four hours, and taking turns sexually assaulting her. The kidnapping guideline provides that if another offense was committed during the kidnapping , the court should apply the guideline for that offense if it would result in a higher offense level. See U.S.S.G. § 2A4.1(b)(7)(A). The Sixth Circuit held that the district court properly followed the cross-reference to sentence defendant under § 2A3.1, the sexual abuse guideline. The Sentencing Commission’s intent to apply the higher of the two guidelines is unmistakable. U.S. v. Cole, 359 F.3d 420 (6th Cir. 2004).
6th Circuit holds that kidnapping increase was not improper where kidnapper sentenced under sexual abuse guideline. (215) Defendant and an accomplice were convicted of kidnapping after abducting a U.S. postal employee and holding her captive for four hours, taking turns sexually assaulting her. Following the cross-reference in § 2A4.1(b)(7), they were sentenced under the criminal sexual abuse guideline, § 2A3.1. The Sixth Circuit held that a four-level enhancement under § 2A3.1(b)(5) because the victim was abducted did not constitute improper double counting. Although defendant was convicted of kidnapping, he was sentenced under the sexual abuse guideline. The enhancement was necessary to account for the act of kidnapping. U.S. v. Cole, 359 F.3d 420 (6th Cir. 2004).
6th Circuit holds that combination of injuries amounted to life-threatening bodily injury. (215) Defendant, a truck driver, was convicted of interstate domestic abuse after he inflicted several beatings on his wife during an interstate trip. The district court applied a six-level enhancement under § 2A2.2(b)(3) for the infliction of permanent of life-threatening bodily injury. The court reviewed the extensive injuries sustained by defendant’s wife and emphasized the fractured finger, the cracked tooth and substantial contusions and bruises as depicted in various photographs. The court also recounted the testimony from witnesses that the victim literally crawled into the distribution center at the end of the trip with very visible injuries together with spatial disorientation. While the court was not persuaded that the victim’s kidney problems were caused by the assault, the court concluded that the combination of the various conditions together with severe bleeding, bruising and broken bones could reasonably be viewed as amounting to a life-threatening bodily injury. The Sixth Circuit ruled that this finding was not clearly erroneous. U.S. v. Baggett, 342 F.3d 536 (6th Cir. 2003).
6th Circuit upholds increase for intending to carry out threatening communication. (215) Defendant left threatening email and phone messages for a former girlfriend, her mother, and her employer. The district court applied a six-level enhancement under U.S.S.G. § 2A6.1(b)(1) for conduct evidencing an intent to carry out his threats. The court considered six factors: (1) the extraordinary persistence of defendant in sending email and voice mail messages; (2) the continuing undertone of threatening and extraordinary angry language in the messages; (3) the temporal proximity of his purchase of a firearm to the making of the threats; (4) his separate purchase of ammunition; (5) the fact that the firearm could be loaded within a matter of seconds; and (6) the gun defendant purchased is usually purchased for concealment and personal protection, not target practice. The Sixth Circuit affirmed the enhancement. The district court properly concluded that the .32 caliber semi-automatic handgun purchased by defendant was not purchased for target practice, but in connection with the threats he made against his victims. The threats contained exceedingly vulgar, angry, and threatening language. Consideration of the tone of the threats, viewed in conjunction with defendant’s other overt conduct, was proper. The court considered not only the nature and number of threats, but also defendant’s overt acts of purchasing a handgun and separately purchasing the requisite ammunition. U.S. v. Newell, 309 F.3d 396 (6th Cir. 2002).
6th Circuit enhances for use of force or dangerous weapon in kidnapping and molesting boys. (215) Defendant kidnapped a 12-year old boy and his 2-year old brother, and over a two week period, he repeatedly molested the 12-year old. The Sixth Circuit affirmed a § 2A3.1(b)(1) enhancement for using force or displaying a dangerous weapon during the crime because defendant brandished a razor mounted on a make-shift handle. The razor must be considered a dangerous weapon under § 1B1.1. The conduct also involved force. The 12-year old was forced into a submissive position and molested repeatedly by a larger adult who covered his eyes with cardboard and duct tape. The 12-year old was trying to protect his younger sibling who was also in defendant’s control. U.S. v. Weekley, 130 F.3d 747 (6th Cir. 1997).
6th Circuit rejects departure based on unlawful restraint of victim. (215) While living with and working for a senior citizen, defendant gained access to the woman’s credit cards and used them without her permission. Defendant handled the mail and kept the credit card statements from the victim. She also admitted that she denied the victim access to family members against the victim’s wishes. She pled guilty to unauthorized use of a credit card. The district court departed upward by four levels by analogy to § 2A4.1(b)(7)(B), after finding that the victim was unlawfully restrained. The 6th Circuit reversed, finding defendant’s conduct did not rise to the level of unlawful restraint within the meaning of § 2A4.1(b)(7)(B). Based on the language of the section and the background commentary, the court found that the term “unlawful restraint” was designed to cover physical or forcible restraint of a victim. Such restraint was lacking here. U.S. v. Gray, 16 F.3d 681 (6th Cir. 1994).
6th Circuit upholds sentence under sexual abuse guideline for defendants convicted of kidnapping. (215) Defendants argued that their sentences under the sexual abuse guideline were unlawful because they were convicted only of kidnapping. The 6th Circuit affirmed. Under section 2A4.1(5), where a victim is kidnapped to facilitate the commission of another offense, and the offense level for the other offense is greater than the offense level for kidnapping, the court must apply the higher offense level. Here, the kidnapping facilitated criminal sexual abuse, which has a higher offense level than kidnapping alone. U.S. v. Tipton, 11 F.3d 602 (6th Cir. 1993).
6th Circuit upholds use of force enhancement for aggravated sexual abuse. (215) Defendant pled guilty to aggravated sexual abuse by force and sexual abuse of a minor. He argued that an upward adjustment for the use of force under section 2A3.1(b)(1) was improper because the base offense level adequately accounts for the use of force which is inherent in all sexual abuse cases. The 6th Circuit rejected this argument. Defendant was not correct in his assertion that the enhancement would always apply. In cases involving sexual abuse as opposed to aggravated sexual abuse or attempted aggravated sexual abuse, the enhancement might not apply. The court agreed with the 8th Circuit’s conclusion in U.S. v. Amos, 952 F.2d 992 (8th Cir. 1991) that in cases in which the evidence is sufficient to sustain a conviction of aggravated sexual abuse by force, the adjustment will apply. U.S. v. Graves, 4 F.3d 450 (6th Cir. 1993).
6th Circuit holds that defendant’s intention to cause life-threatening injury was not speculative. (215) Defendant planned to kidnap the owners of two jewelry stores, possibly murder them, and then rob their stores. Section 2X1.1 (Attempt, Solicitation or Conspiracy) dictated the use of the base offense level from the guideline for the object offense, which in this case was kidnapping. The district refused to apply a four level increase under section 2A4.1(b)(2) for “life threatening bodily injury,” finding such an assumption to be too speculative. The 6th Circuit found that defendant’s intent to inflict life-threatening bodily injury was not speculative, since the jury found that defendant intended to murder several people as part of his plan. U.S. v. Holmes, 975 F.2d 275 (6th Cir. 1992).
6th Circuit affirms that purpose of kidnapping was robbery, not murder. (215) Police uncovered a plot to kidnap the owners of two jewelry stores, possibly murder them, and then rob their stores. Defendant was sentenced under section 2X1.1 (Attempt, Solicitation or Conspiracy), which dictates the use of the base offense level from the guideline for the object offense. The introduction to Chapter 3 directs a court to use the offense level for the most serious offense, i.e., kidnapping. Section 2A4.1(b)(5) states that if the victim was kidnapped to facilitate the commission of another offense, the guideline for the other offense should be applied if it would result in a higher base offense level. The government argued that defendant intended to commit murder. The 6th Circuit rejected this, since the kidnapping was not meant to facilitate the commission of a murder. Rather, defendant’s notes indicated that his goal was to rob the jewelry stores, and the kidnapping and murder were meant to facilitate the commission of the robbery. U.S. v. Holmes, 975 F.2d 275 (6th Cir. 1992).
6th Circuit affirms upward departure for defendant who kidnapped child so that he could eventually marry her. (215) Defendant developed a strange obsessive relationship with a young child that he babysat. When the parents attempted to end the relationship by moving, defendant kidnapped the three-year-old girl, intending to marry her when she turned 13. The district court departed upward because (a) the kidnapping was of a specific victim for a specific purpose, and (b) defendant intended to complete the crime, and no matter what the period of incarceration might be, he intended to find the child so that she could help her fulfill her “destiny.” The 6th Circuit affirmed the upward departure. Federal kidnapping generally encompasses three types of kidnapping, none of which described defendant’s crime. Defendant’s admitted purpose in kidnapping the child was to possess her and keep her from her parents, which is indisputably rare and sufficiently aggravating to warrant a departure. U.S. v. Patrick, 935 F.2d 758 (6th Cir. 1991).
7th Circuit reverses enhancement for committing a sex offense while on failure to register status. (215) Defendant pled guilty to failing to register as a sex offender. Based on the testimony of defendant’s former girlfriend, the district court imposed a § 2A3.5(b)(1)(A) enhancement for committing a sex offense while on failure to register status. She testified that although she did not want defendant to perform oral sex on her on the date in questions, he did anyway but did not use force. The Seventh Circuit reversed, holding that because the crimes of criminal sexual assault and abuse in Illinois required the use or threat of force in such a situation, defendant should not have received the enhancement. While the ex-girlfriend may not have wanted defendant to perform oral sex on her, her testimony at the hearing did not support a finding that he used any force or threat of force in doing so. U.S. v. Johnson, 743 F.3d 196 (7th Cir. 2014).
7th Circuit rules that ransom demand must be made to a third party. (215) Defendant and seven confederates held a drug dealer captive for more than 12 hours while they robbed his home, transported him across state lines, and demanded money and drugs. Defendant challenged the court’s finding under § 2A4.1(b)(1) that during the crime “a ransom demand … was made.” The Seventh Circuit held that § 2A4.1(b)(1) may be applied only if kidnappers’ demands for “money or other consideration” reach someone other than the captured person. Because the demands made by defendant’s group did not reach a third party, the panel reversed the enhancement. U.S. v. Reynolds, 714 F.3d 1039 (7th Cir. 2013).
7th Circuit affirms below-guideline sentence for threats as not unreasonably high. (215) Defendant met a woman while working as a serviceman in her home, pursued her, and eventually left threatening telephone messages for her, her divorce attorney, and several others. His guideline range was 33-41 months, and the district court imposed a below-guidelines sentence of 24 months. Nonetheless defendant appealed, arguing that the 24-month sentence was substantively unreasonable. The 7th Circuit upheld the sentence. The district court properly considered the sentencing factors in 18 U.S.C. § 3553(a) and adequately explained their application to defendant’s case. The sentence was entitled to a presumption of reasonableness, and it was not unreasonably high. Defendant’s actions were “disturbing and frightening,” particularly because he continued to scare his victims even after being warned by the FBI; investigators found maps of his victims’ locations in defendant’s house; and he resisted arrest. The district court considered these arguments and gave defendant a below-guidelines sentence. The sentence was neither excessive nor unreasonable. U.S. v. Lemke, 693 F.3d 731 (7th Cir. 2012).
7th Circuit affirms upward variance because court should have applied cross-reference to assault guideline. (215) Defendant pled guilty to traveling across state lines to engage in illicit sexual conduct. Section 2G1.3 includes a cross-reference to § 2A3.1 “[i]f the offense involved conduct described in 18 U.S.C. § 2241 or § 2242.” The district court found insufficient evidence to support the cross-reference, but found that the circumstances of the offense justified an above-guidelines sentence of 135 months. The Seventh Circuit held that the sentence was reasonable, since the district court actually understated defendant’s guidelines range by not applying the cross-reference to § 2A3.1. The district court assumed that the cross-reference required the government to prove that defendant used physical force or threats of extreme harm. However, § 2242 only requires the defendant to threaten or place the victim in fear. There was ample evidence of this. The district court found that defendant had coerced the girl’s participation despite her resistance to his efforts to undress her, her crying, and her ten or more protests that she did not want to participate. The child testified that she was scared from the first moment she saw defendant, that she thought he might have a weapon, and that she was scared throughout the entire encounter. U.S. v. Henzel, 668 F.3d 972 (7th Cir. 2012).
7th Circuit upholds guideline sentence for kidnapping. (215) Defendant committed a kidnapping to extract payment of a drug debt, holding the victim for two days before federal agents rescued her. The district court calculated a guideline range of 168-210 months, and sentenced defendant to 168 months. The Seventh Circuit rejected defendant’s argument that the district court did not adequately address the mitigating facts he raised at sentencing. The court’s explanation “was brief but adequate, enough to demonstrate that the court engaged in ‘meaningful consideration of § 3553(a) factors.'” The judge explained several times that the guidelines were discretionary and that the § 3553(a) sentencing factors were guiding his discretion. The judge reviewed the § 3553(a) factors, with particular emphasis on the seriousness of the offense, as well as the need for specific and general deterrence. The 168-month sentence was also substantively reasonable. Although defendant did not plan the kidnapping, his role was not minor. He forcibly abducted the victim, drove her across state lines, and stood watch during her two days of captivity. U.S. v. Vizcarra, 668 F.3d 516 (7th Cir. 2012).
7th Circuit says double counting is improper only if barred by guidelines. (215) Defendant committed kidnapping for ransom to extract payment of a drug debt. He argued that a six-level increase under § 2A4.1(b)(1) for kidnapping demanding a ransom was impermissible double counting because the underlying offense involved a ransom demand. The Seventh Circuit held, contrary to implications in U.S. v. Bell, 598 F.3d 366 (7th Cir.2010), that there is no general prohibition against double counting in the guidelines. The default rule is that the same conduct may determine the base offense level and also trigger the cumulative application of enhancements and adjustments, unless a specific guideline instructs otherwise. See § 1B1.1 Note 4. Here, the guidelines require the application of the § 2A4.1(b)(1) enhancement when the kidnapper demands a ransom, and nothing in the text of this guideline or its application notes suggested that the enhancement did not apply to defendant’s situation. U.S. v. Vizcarra, 668 F.3d 516 (7th Cir. 2012).
7th Circuit affirms below-guidelines sentence for failing to register as sex offender. (215) Defendant, previously convicted of forced sodomy, pled guilty to failing to register as a sex offender, in violation of the Sex offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250. The recommended sentencing range was 24-30 months in prison and five years to life of supervised release. Although the district court sentenced defendant to a below-guidelines sentence of 18 months’ imprisonment and a 20-year supervised release term that was within the guidelines, defendant challenged his sentence as unreasonable. The Seventh Circuit ruled that defendant did not overcome the presumptive reasonableness of his sentence. Although the district court found that defendant was not dangerous and that he maintained steady employment, the court also noted that defendant committed a very serious sex offense and intentionally refused to register as a sex offender for seven years. Then, while out on bond for failing to register as a sex offender, defendant again changed residences without updating his registration. U.S. v. Taylor, 644 F.3d 573 (7th Cir. 2011).
7th Circuit affirms modified categorical approach to determine prior sodomy conviction. (215) Defendant, previously convicted of forced sodomy, pled guilty to failing to register as a sex offender, in violation of the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250. To calculate the advisory Guidelines range for a violation of SORNA, the judge must first determine the defendant’s tier classification. See U.S.S.G. § 2A3.5. The judge usually accomplishes this task by using a categorical approach to examine the elements of the statute under which the defendant was convicted. Because the statute of conviction prohibited all sodomy, whether consensual, forcible, or involving a child, the judge here used a modified categorical approach and examined the charging document to determine the type of sodomy to which defendant pleaded guilty. The Seventh Circuit upheld the district court’s use of the modified categorical approach. A judge may examine a limited set of additional materials – such as the charging instrument in this case – to determine the portion of 10 U.S.C. § 925 to which a defendant pled guilty. U.S. v. Taylor, 644 F.3d 573 (7th Cir. 2011).
7th Circuit says increase for police officer’s use of body armor and abuse of trust were not double counting. (125) Defendant, a police officer, was involved in a corruption scheme between drug dealers and cops. Section 3B1.5(2) provides for a two-level enhancement if the offense involved the use of body armor, and a four-level enhancement if the defendant used body armor during the offense. Defendant admitted that he wore his bulletproof vest during a home invasion to steal drugs and money from a rival drug dealer’s home. The Seventh Circuit held that the district court correctly applied the four-level enhancement for using body armor during the offense. The application of the body armor enhancement and an enhancement for abuse of trust under § 3B1.3 was not improper double counting. The district court rejected defendant’s argument that he used body armor only to make it look like he was a legitimate officer engaged in legitimate law enforcement. The court drew the reasonable inference that the body armor was being used for its primary purpose – protection. U.S. v. Haynes, 582 F.3d 686 (7th Cir. 2009), abrogated as to double counting by U.S.v. Vizcarra, 668 F.3d 516 (7th Cir. 2012).
7th Circuit upholds enhancement for unduly influencing minor to engage in prostitution. (215) Defendant was convicted of transporting a minor in interstate commerce for purposes of prostitution, in violation of 18 U.S.C. § 2423(a). The Seventh Circuit upheld a § 2A3.2(b)(2) enhancement for “unduly influence[ing] the victim to engage in prohibited sexual conduct.” The district court applied the increase because defendant was “the one” or was “one of the people” who helped involve the victim with prostitution. This finding was supported by the record. Defendant was a 42-year-old man and the victim was a 14-year-old girl at the time of the crime. The victim testified to the grand jury that she had never worked in prostitution before the defendant encouraged her to try. Moreover, the victim was destitute and penniless when defendant began urging her to travel to Chicago with him to engage in Internet-based prostitution, making her more vulnerable to his influence. U.S. v. Patterson, 576 F.3d 431 (7th Cir. 2009).
7th Circuit affirms 480-month guideline sentence where kidnapping victim was killed. (215) Defendant and a co-conspirator were convicted of kidnapping and conspiracy to commit kidnapping. His guideline range was 360 months to life, and the court sentenced him to 480 months. The Seventh Circuit upheld the sentence as reasonable. The record supported the court’s finding that it was defendant, rather than his co-conspirator, who struck the blow that killed the victim. The court credited the co-conspirator’s statement because it “fit the facts and evidence” while defendant’s statement did not. Sentences that fall within the Guideline range are presumptively reasonable, and defendant did not meet his burden to show an abuse of discretion. The court explicitly weighed the facts of the case in light of the §3553(a) factors. It considered a number of factors that could potentially counsel a lower sentence, including the fact that defendant did not intend to kill the victim, had no prior criminal record and had been a model prisoner while incarcerated. U.S. v. Busara, 551 F.3d 669 (7th Cir. 2008).
7th Circuit upholds 480-month sentence for white supremacist who plotted to kill federal judge. (215) Defendant was convicted by a jury of obstructing justice and soliciting a crime of violence in connection with his resistance to a judgment entered against his white supremacist organization and his involvement in a plot to have the judge murdered. His offense level of 45, combined with his criminal history category of VI, resulted in an advisory guideline sentence of life imprisonment. The Seventh Circuit held that the 480-month sentence imposed was reasonable. Defendant’s sentence was within the properly calculated guideline range and thus was presumptively reasonable. Defendant’s claim that the government had a role in the offense amounted to a claim of sentencing entrapment. The government overcomes an alleged entrapment defense by establishing that the defendant was predisposed to commit the offense charged. Here, defendant asserted that he would not have solicited the judge’s murder if not for the government’s involvement, but he did not establish that the government, through the confidential informant, used “extraordinary inducements” to elicit criminal activity. The court considered the other factors mentioned by defendant (lack of prior criminal record, law school graduate, and his father was retired police officer) and found that the guideline sentence was still proper. U.S. v. Hale, 448 F.3d 971 (7th Cir. 2006).
7th Circuit finds sufficient evidence that offense involved victims younger than 12 years old. (215) Defendant and a partner founded a resort in Mexico for pedophiles. The Seventh Circuit upheld a § 2A3.1(b)(2) (A) increase for victims who were younger than 12 year old. Although none of the resort’s guests acknowledged having engaged in sexual relations with children below age 12, and no witnesses had identified a boy below the age of 12 who engaged in sexual activity with hotel guests, multiple witnesses testified that boys as young as seven or eight stayed at the hotel. There was ample testimony that the street children recruited to stay at the hotel were expected to acquiesce in the sexual appetites of the hotel guests in exchange for food, shelter, and other things defendant promised them. U.S. v. Julian, 427 F.3d 471 (7th Cir. 2005).
7th Circuit holds that defendant did not withdraw from pedophile conspiracy prior to increase in statutory maximum. (215) Defendant was convicted of conspiring to travel in foreign commerce with the intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b) and (e). On October 30, 1998, Congress amended § 2423 to increase the maximum penalty from 10 to 15 years. The indictment alleged that the conspiracy ran from January 1998 until February 1999, and there was no dispute that the conspiracy continued beyond October 30, 1998. The resort that defendant and his partner started in Mexico for pedophiles continued beyond that date, the partner remained in charge of the hotel, and customers continued to patronize it. The Seventh Circuit held that the application of the higher statutory maximum did not violate the Ex Post Facto Clause – no reasonable jury would have found that defendant withdrew from the conspiracy prior to October 30. To withdraw from a conspiracy, defendant must take some affirmative act to defeat or disavow the criminal aim of the conspiracy. There was no such affirmative act by defendant. Although defendant no longer lent his financial support to the hotel after that date, and his partner sensed a “coolness” from defendant, these were passive acts of disengagement, and did not signal an overt disavowal of the conspiracy. Defendant’s name remained on the lease, and his partner remained in possession of defendant’s ATM card. U.S. v. Julian, 427 F.3d 471 (7th Cir. 2005).
7th Circuit upholds increase for making more than two threats. (215) Defendant pled guilty to using a telephone to make a threatening communication, in violation of 18 U.S.C. § 844(e). The indictment charged that defendant made two bomb threats, but at sentencing the judge determined that the undisputed evidence demonstrated that defendant had made three separate threats, so he applied § 2A6.1(b)(2), for an offense involving “more than two threats.” Defendant challenged this increase on a legal, rather than a factual basis, so therefore the case was unaffected by Blakely v. Washington, 124 S.Ct. 2531 (2004). The Seventh Circuit found it unnecessary to decide whether in a proper case the number of threats might turn on more than the number of communications. It was undisputed that there were three telephone calls, each containing a recorded message threatening that a bomb was planted. Defendant had to show that at least one of the calls he made was not a “communication,” or for some other reason did not qualify as a threat, and he was unable to do so. Defendant provided no legal authority for the proposition that either the second or third call was de minimus. U.S. v. Frazer, 391 F.3d 866 (7th Cir. 2004).
7th Circuit holds that undue influence cannot occur where no prohibited sexual conduct took place. (215) Defendant met an undercover agent posing as a 14-year old girl in a chat room. During several conversations, defendant arranged to meet the “girl” at a hotel for sex. Guideline § 2A3.2(b)(2)(B) provides for a two-level enhancement where the defendant unduly influenced a minor under the age of 16 to engage in prohibited sexual conduct. Defendant argued that this increase cannot apply when the victim is imaginary (i.e. an undercover agent posing as a minor) and no sexual conduct has occurred. The Seventh Circuit agreed that under the “plain language” of the guideline, the increase does not apply where the participant had either failed in his attempt to influence the victim or where the two otherwise had not engaged in prohibited sexual conduct. Thus, the enhancement does not apply in the case of an undercover sting, because where no prohibited sexual conduct has occurred, there has been no undue influence. Judge Easterbrook dissented. U.S. v. Mitchell, 353 F.3d 552 (7th Cir. 2003).
7th Circuit denies reduction where threat was made in “eerie, cool, calm and collected manner.” (215) Defendant, a federal prisoner about to be flown to a different prison, became involved in an altercation with officers, and had be restrained and carried onto the plane. During the flight, after he calmed down, he told one of the officers involved in restraining him that when he left prison he would kill the officer and his wife and children. At that time, defendant had only a short period to serve on his sentence. He was convicted of assaulting a federal officer and knowingly threatening to kill a federal official. Guideline § 2A6.1(b)(4) provides for a four-level reduction in offense level if the threat “involved a single instance evidencing little or no deliberation.” The district court refused to apply the reduction because at the time defendant made the threat, he was no longer agitated and shouting, and that he made the threatening statement in an “eerie, cool, calm and collected manner.” The Seventh Circuit found no clear error. U.S. v. Xavier, 310 F.3d 1025 (7th Cir. 2002).
7th Circuit departs upward for numerous threatening letters, psychological injury, and humiliation of victims. (215) Defendant wrote between 100 and 300 threatening letters to a couple, their neighbors, and the husband’s employer. The letters were “extremely vile,” and described in graphic detail the horrible things that defendant planned to do to the couple and their niece. The Seventh Circuit approved an upward departure based on three factors. First, there were at least 100 (and possibly as many as 300) letters sent. An application note to § 2A6.1 suggests an upward departure where “substantially more than two threatening communications to the same victim” are sent. Section 5K2.3 permits a departure if the victim suffered psychological injury “much more serious” than normal from the commission of the offense. The victims testified as to their fear, humiliation and embarrassment. They changed their behavior, becoming much more cautious than they had been. An inference that they suffered psychological injury was clear from the record. Finally, § 5K2.8 authorizes an upward departure if the defendant’s conduct was “unusually … degrading to the victim.” The judge found that the letters were “terrible.” The humiliation to the victims increased because of the messages on the outside of the envelopes and the letters sent to the neighbors. U.S. v. Bohanon, 290 F.3d 869 (7th Cir. 2002).
7th Circuit approves increase for conduct evidencing intent to carry out threats. (215) Defendant wrote between 100 and 300 threatening letters to a couple, their neighbors, and the husband’s employer. The letters were “extremely vile,” and described in graphic detail the horrible things that defendant planned to do to the couple and their niece. He was convicted of multiple counts of mailing threatening communications. The Seventh Circuit affirmed a § 2A6.1(a)(1) increase for conduct evidencing an intent to carry out the threats in the letters. Several of the letters went far beyond rambling ruminations on defendant’s hatred for his victims. For instance, in one letter, defendant referenced the location where, and the manner in which, he intended to harm the niece. The level of detail in this letter – referencing, for example, a place where the niece routinely stood – provided an indication that defendant had moved beyond mere “talk” to “talk which evidences an intent to act.” In addition to the letters themselves, the judge noted that defendant had a prior conviction for unlawful carrying of a weapon, and thus another basis for concluding that he might just resort to the use of dangerous weapons. The adjustment was also supported by facts in the record that the judge did not explicitly mention: during the time the threats were being made, defendant requested information about a 50-caliber semiautomatic pistol, and in 1988, he had been present during the shooting of a friend. U.S. v. Bohanon, 290 F.3d 869 (7th Cir. 2002).
7th Circuit holds that application of increase for fictional victim was not plain error. (215) Defendant was convicted of attempting to solicit a minor via the Internet and telephone to engage in prohibited sexual contact. The “minor” actually was an undercover agent posing as a 14-year old boy. Section 2A3.1(b)(2)(B) authorizes a two-level enhancement for victims between the ages of 12 and 16. Defendant claimed for the first time on appeal that the increase was improper because there was no real or actual victim. The term “victim” in § 2A3.1(b)(2)(B) is not defined, and defendant submitted that he could not locate any case authority for applying § 2A3.1(b)(2)(3) to a “fictional” victim. Given the lack of case authority, the Seventh Circuit concluded that defendant could not demonstrate that the error, if any, was plain. U.S. v. Angle, 234 F.3d 326 (7th Cir. 2000) (en banc).
7th Circuit remands where court’s findings were insufficient to justify cross-reference. (215) Defendant was convicted of attempting to solicit a minor via the Internet and telephone to engage in prohibited sexual contact, in violation of 18 U.S.C. § 2422(b). Section 2G1.1(c)(2) states that if the offense involved criminal sexual abuse, the court should apply § 2A3.1. Defendant challenged the court’s application of this cross-reference, claiming his conduct did not involve criminal sexual abuse, attempted criminal sexual abuse, or assault with intent to commit criminal sexual abuse. The Seventh Circuit ruled that the application of the cross-reference may be based on all relevant conduct, not simply the offense of conviction. However, here the district court did not render any particularized findings as to whether defendant engaged in activity that reasonably amounted to criminal sexual abuse or attempted abuse as defined by the statutes. Because defendant’s challenge to the enhancement went unanswered, the panel remanded for a redetermination of whether the cross-reference to the sexual abuse guideline was applicable. U.S. v. Angle, 234 F.3d 326 (7th Cir. 2000) (en banc).
7th Circuit applies criminal sexual abuse guideline where boy kidnapped by psychological means. (215) Defendant, a 36-year old male, met a 12-year old boy on the Internet, traveled from Florida to the boy’s home in the Chicago area, and convinced the boy to run away with him to Florida. The two were found by police in Kentucky on a bus headed for Florida. Defendant’s conviction for transporting a minor with intent to engage in criminal sexual activity referred the district court to § 2G1.2, which contains a cross-reference to § 2A3.1 for offenses involving criminal sexual abuse or attempted criminal sexual abuse. Defendant argued that he should not have been sentenced under the criminal sexual abuse guideline because he never used, attempted, or threatened to use force on the boy. The district court found that defendant’s use of “psychological force” in kidnapping the boy was sufficient. The Seventh Circuit held that defendant’s actions warranted use of the criminal sexual abuse guideline. The jury’s verdict established defendant’s intent to have the boy engage in a sexual act, and defendant took substantial steps toward that end. To sentence defendant under the statutory rape guideline would unduly diminish the seriousness of his conduct. U.S. v. Romero, 189 F.3d 576 (7th Cir. 1999).
7th Circuit bars using unrelated criminal history to find intent to carry out threats. (215) Defendant sent five death threats to a state prosecutor who had prosecuted him for armed robbery. He was convicted of two counts of mailing threatening communications. The district court applied a § 2A6.1(b)(1) enhancement for conduct evidencing an intent to carry out the threat. The court relied on the fact that defendant was a violent man, the letters to the prosecutor were of a “very violent nature,” and defendant told an investigator that he would “take a battery charge” if he saw the prosecutor on the street. Amendment 549, effective after defendant’s sentencing, permits a court to consider earlier conduct that is “substantially and directly connected to the offense.” The Seventh Circuit ruled that the district court erred when it considered defendant’s criminal history in applying § 2A6.1(b)(1). The only crime arguably related to the current offense was the armed robbery for which the victim prosecuted defendant. The armed robbery, however, was not “substantially and directly connected” to the current crime because it was not aimed at the recipient of the threats. The court did, however, properly consider the three uncharged threatening letters. The court also properly considered defendant’s comment to the investigator that he would “take a battery charge” if he saw the prosecutor on the street. U.S. v. Thomas, 155 F.3d 833 (7th Cir. 1998).
7th Circuit uses criminal sexual abuse guideline for rapes of 12 and 13-year old girls. (215) Defendants traveled across state lines with three 12- and 13-year old girls. Over a several day period, defendants threatened and repeatedly raped the girls and forced them to have sex with other men. The Seventh Circuit upheld the use of § 2A3.1 (criminal sexual abuse) guideline rather than § 2A3.2 (statutory rape) or § 2A3.3 (criminal sexual abuse of a ward). Defendants used force and threats, including rape, against the victims. U.S. v. Vang, 128 F.3d 1065 (7th Cir. 1997).
7th Circuit applies extortion guideline to conspiracy to intimidate owner in dispute with labor union. (215) Defendant was a member of a Chicago crime syndicate. The Seventh Circuit upheld the application of § 2B3.2 (extortion) rather than § 2A6.1 (making a threatening communication) for his conviction for conspiring to intimidate the owner of a chain of theaters involved in a labor union dispute. Section 2B3.2 applies if there was any threat that reasonably could be interpreted as one to injure a person or physically damage property. There was little doubt that property damage, and likely personal injury, was contemplated when the conspirators threw gasoline, a Molotov cocktail, and two grenades on the roof of one theater. U.S. v. Zizzo, 120 F.3d 1338 (7th Cir. 1997).
7th Circuit finds nature of threats, weapon, and past abuse showed intent to carry out threat. (215) Defendant, who lived in Seattle, left a threatening message on the answering machine of a woman in Chicago who used to work for him as a prostitute. He threatened to kill her and her husband with his “street sweeper.” He also stated her address in the message and said he could have his cousins in Chicago kill her for him. The Seventh Circuit affirmed a § 2A6.1(b)(1) enhancement for an intent to carry out the threat based on the nature of defendant’s threats, his possession of the weapon he specifically referred to in the threat, and his past physical abuse of the woman. Defendant directly connected his threat to a weapon the woman knew he owned. When he was arrested in Seattle following the recorded call, defendant had a semi-automatic pistol in the waistband of his pants and three loaded magazines in his pocket. This showed an easy ability to carry out the threatened violence. Moreover, defendant was a violent man who often used force in his long relationship with the woman. U.S. v. Carter, 111 F.3d 509 (7th Cir. 1997).
7th Circuit holds that gun used to force kidnapping victim into car was “otherwise used”. (215) Defendant was involved in an armed kidnapping. The kidnappers forced the victim into a car and held him at gunpoint during a trip across state lines. The court imposed a § 2A4.1(b)(3) enhancement for use of a dangerous weapon. A dangerous weapon is used if a firearm is discharged or a dangerous weapon is “otherwise used.” Note 1(g) to § 1B1.10 defines “otherwise used” as more than brandishing, displaying or possessing a firearm. The Seventh Circuit agreed that the gun was “used” under § 2A4.1(b)(3). Brandishing means to shake or wave the weapon menacingly. There is a qualitative difference between pointing or waving a gun and leveling the weapon at the head of a victim with a specific threat that noncompliance will result in the discharge of the weapon. U.S. v. Hernandez, 106 F.3d 737 (7th Cir. 1997).
7th Circuit directs court to reconsider whether threat involved little or no deliberation. (215) One day after the federal building in Oklahoma City was bombed, defendant made a bomb threat to the federal building in Springfield, Illinois. No bomb was ever found. The district court denied defendant a § 2A6.1(b)(2) reduction for an offense involving only a single instance evidencing little or no deliberation. Because defendant was at the federal building that morning and was aware of the heightened security measures that had been adopted, the court inferred that defendant deliberated about whether to make the threat for some length of time before actually making it. The Seventh Circuit remanded for reconsideration of the § 2A6.1(b)(2) reduction. The court’s conclusion that defendant deliberated all morning about the threat was speculative, particularly because part of the time defendant was seen in the vicinity of the federal building he was talking to another bystander about matters that had nothing to do with the bomb threat. U.S. v. Horton, 98 F.3d 313 (7th Cir. 1996).
7th Circuit examines connection between conduct and threats rather than timing. (215) Defendant sent threatening communications to his ex‑wife’s new husband and several others involved in his divorce or whom he suspected were persecuting him. When he was arrested, he blurted out that he wrote the letters and that if they gave him any more time, he would carry out the threats. Several months earlier he had shot out the windows of the new husband’s car and truck. Based on the shooting and the statements defendant made after his arrest, the district court imposed a § 2A6.1(b)(1) enhancement for conduct evidencing an intent to carry out the threats. The Seventh Circuit affirmed, holding that the court properly considered conduct that occurred prior to the threats. Rather than focusing on the timing, a court should assess the connection between the threats and the conduct at issue. In some cases there will be little connection; in others, a threatening letter may be only part of a long course of harassing behavior. Here, the threatening letters were closely connected to the shooting incident that occurred several months earlier–the letter to the husband mentioned the incident. The district court also properly considered defendant’s reiteration of his threats after his arrest. U.S. v. Sullivan, 75 F.3d 297 (7th Cir. 1996).
7th Circuit holds that stepfather need not have legal custody of abuse victim to warrant § 2A3.1(b)(3) enhancement. (215) Defendant sexually molested his stepdaughter. The Seventh Circuit affirmed a § 2A3.1(b)(3) enhancement for abuse by a custodian, even though defendant did not have legal custody of the victim. The commentary calls for a broad definition of custody, including both temporary and permanent control. As the victim’s stepfather, defendant had sufficient custody over the victim to warrant the enhancement. U.S. v. Wimberly, 60 F.3d 281 (7th Cir. 1995).
7th Circuit says enhancement for victim under 12 was not double counting. (215) Defendant was convicted of sexually molesting a child under 12 years of age. He argued that an § 2A3.1(b)(2) enhancement for a victim under 12 was double counting, since his underlying conviction was for sexual abuse of a child under 12. The Seventh Circuit found that the enhancement was not double counting, since § 2A3.1 also applies to an offense that does not require the victim to be under 12. Guideline § 2A3.1 applies to both 18 U.S.C. § 2241 (sexual act with child under 12) and § 2242. Section 2242 does not require the victim to be under 12. The enhancements in § 2A3.1(b) accounts for more egregious conduct, including abuse of a person under 12. U.S. v. Wimberly, 60 F.3d 281 (7th Cir. 1995).
7th Circuit holds that defendant showed intent to carry out threat to kill the president. (215) Defendant pled guilty to threatening the president of the United States. The 7th Circuit upheld a six level enhancement under section 2A6.1(b)(1) for engaging in conduct evidencing an intent to carry out such threat. Defendant had identified the type of guns he would use, had contacted people in an effort to locate the guns, and had specific plans for getting money to pay for them. He had also recruited club members to assist in his plan. The fact that his words and deeds were meant to impress others or to compensate for low self-esteem, and that many of his plans were unrealistic did not rule out the possibility that he would act on them. U.S. v. Sauerwein, 5 F.3d 275 (7th Cir. 1993).
7th Circuit upholds application of section 2A6.1 to threats to assault IRS agent. (215) Defendant was convicted of violating 18 U.S.C. section 115(a)(a)(B) for threatening to assault an IRS agent with the intent to interfere with her official duties. The 7th Circuit affirmed the application of guideline section 2A6.1 to the offense rather than section 2A2.3. Although the commentary to section 2A2.3 lists 18 U.S.C. section 115(a) as a statute to which it applies and section 2A6.1 does not, section 2A6.1, which applies to threatening communications, was clearly more applicable than section 2A2.3, which applies to minor assaults. U.S. v. Pacione, 950 F.2d 1348 (7th Cir. 1991).
7th Circuit finds that district court applied improper guideline in extortion case. (215) Defendant hired two burly men to assist him in collecting legitimate business debts. The two men used violent methods. The district court found that the two men should not be sentenced under guideline § 2E2.1 (Making, Financing or Collecting an Extortionate Extension of Credit) because there was no evidence of loan-sharking or organized crime activity. Accordingly he sentenced them under the lesser § 2B3.2 (Extortion). The 7th Circuit disagreed with the finding that there was no organized criminal activity. The two men were involved in a crudely organized ongoing pattern of violence in order to collect extensions of credit: they circulated business cards, threatened two customers, and made repeated phone calls. The fact that the debts were legitimate, and that the two men did not extend the credit themselves did not remove them from the scope of § 2E2.1. The 7th Circuit also found that the defendant who hired them was improperly sentenced under guideline § 2A6.1 (Threatening Communications). The defendant was not part of the violence, but he did participate in and benefit from the extortion. Therefore, he should have been sentenced under the more serious § 2B3.2 (Extortion). U.S. v. Bigelow, 914 F.2d 966 (7th Cir. 1990).
7th Circuit upholds four level increase for kidnapping to facilitate the commission of another offense. (215) Defendant argued that his escape had been completed prior to the kidnappings that occurred twenty-four hours after the escape. The 7th Circuit rejected the argument, noting that § 1B1.3(a)(1) of the guidelines defines relevant conduct for purposes of the kidnapping guideline as “all acts and omissions .ÿ.ÿ. in the course of attempting to avoid detection or responsibility for that offense.” The court agreed with the district court that the kidnappings were committed in the course of defendant’s attempts to avoid apprehension after his escape. U.S. v. White, 903 F.2d 457 (7th Cir. 1990).
7th Circuit rejects claim that defendant released his victims within 24 hours of the kidnappings. (215) The first kidnapping victim leaped from her automobile while it was traveling 55 m.p.h. on a freeway to escape from the defendant. The second victim, a man in his sixties in poor health, was left tied up in an Indianapolis hotel room. The 7th Circuit rejected the defendant’s argument that these facts demonstrated he had “released” each of the victims within 24 hours of their kidnapping. U.S. v. White, 903 F.2d 457 (7th Cir. 1990).
7th Circuit holds that adjustment for “restraint of victim” in kidnapping case was not plain error. (215) Defendant argued that it was improper to apply a two level increase for restraint of the victim under § 3A1.3 in a kidnapping case. However, he failed to raise the issue in the district court, so the 7th Circuit applied the “plain error” standard. Ruling that a “colorable” argument could be made that the “restraint of the victim” adjustment could apply in a kidnapping case, the 7th Circuit held that the district court’s application of the adjustment in this case was neither “conspicuous error” nor “palpably wrong.” U.S. v. White, 903 F.2d 457 (7th Cir. 1990).
8th Circuit applies sexual abuse guideline where defendant used force against minor. (215) A jury found defendant guilty of receiving child pornography, enticement of a minor to engage in illicit sexual activities, and production of child pornography. Guideline section 2G1.3(c) (3) provides a cross-reference to the criminal sexual abuse guideline, 2A3.1, if the offense involved conduct described in 18 U.S.C. § 2241 or § 2242. Here, the Eighth Circuit agreed with the district court that defendant used sufficient force for the court to apply § 2A3.1. Defendant knowingly caused the minor to engage in a sexual act by placing her in fear when he picked her up, drove to an isolated place, did not stop his sexual advances after her initial efforts to resist, and told her to do something for him. U.S. v. Reynolds, 720 F.3d 665 (8th Cir. 013).
8th Circuit approves upward variance based on extent and persistence of defendant’s harassment. (215) Defendant pled guilty to multiple counts of sending and mailing threatening communications to an FBI agent who had investigated defendant in connection with threats she made against an airline. Her guideline range was 120-150 months, but the district court varied upward and sentenced her to 180 months. Defendant contended that the district court gave undue consideration to the victim’s law enforcement status and not enough to her mental illness. The Eighth Circuit held that the district court did not abuse its discretion in varying upward. Defendant’s PSR revealed a 30-year history of criminal conduct. She threatened the agent over an extended period of time and made graphic and violent threats, which also targeted his family. She continued her behavior before sentencing and showed no remorse, demonstrating an intent to continue her harassment. Given the extent and persistence of defendant’s conduct, the district court did not abuse its discretion in varying upward and imposing a 180-month sentence. U.S. v. Hutterer, 706 F.3d 921 (8th Cir. 2013).
8th Circuit approves variance based on finding that defendant committed murder. (215) Defendant threatened, via the Internet, the sister of his estranged wife. The district court found by a preponderance of the evidence that defendant had actually murdered his wife, and varied upward from a guideline range of 6-12 months to the statutory maximum of 60 months. Defendant argued for the first time on appeal that his alleged murder of his wife was not related to his threat to kill her sister, and should not have been considered. The Eighth Circuit ruled that the district court did not err, plainly or otherwise, in varying upward based on its finding that defendant murdered his wife. The murder constituted criminal misconduct. Like other prior criminal conduct, whether or not related to the offense of conviction, it was part of “the history and characteristics of the defendant” that the district court “shall consider” in imposing an appropriate sentence, 18 U.S.C. § 3553(a)(1). It also might be relevant in a particular case to the factors enumerated in § 3553(a)(2). The 60-month sentence was not unreasonable. U.S. v. Waller, 689 F.3d 947 (8th Cir. 2012).
8th Circuit rules 120-month sentence for failing to register as sex offender did not violate Eighth Amendment. (215) Defendant pled guilty to violating the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a). His guideline range was 18-24 months, but the district court sentenced him to 120 months. The Eighth Circuit rejected his argument that the sentence was grossly disproportionate to his crime, in violation of the Eighth Amendment. Defendant’s offense was more serious than simply failing to “fill out the proper registration forms within the proper time period.” He fraudulently registered an address at which he never resided. He hid his actual location from the police, and hid his sex offender history from the family that housed him. When defendant was arrested lurking around a school, he had in his possession numerous personal items he had taken from the 14-year-old girl who lived at the house where he lived. Defendant’s failure to properly register led to the type of situation that SORNA was enacted to prevent. The context of defendant’s most recent arrest, when combined with his criminal history, which included rape and attempted rape, supported the sentence. U.S. v. Martin, 677 F.3d 818 (8th Cir. 2012).
8th Circuit holds that any error in relying on government exhibits was harmless. (215) Defendant was convicted of making a threatening phone call to destroy a building by fire or explosives. The district court departed upward under § 4A1.3 and § 5K2.21 to the statutory maximum sentence of 120 months. Defendant argued that the district court procedurally erred by considering various government exhibits as reliable proof of his previous arson activity. The Eighth Circuit agreed that the contested exhibits were not reliable proof of defendant’s criminal history—they merely described fires that were tangentially related to defendant, if related at all. All but one of the contested exhibits deemed the reported fires accidental. However, the district court received the exhibits “for whatever relevance they have.” Therefore, the panel presumed that the court only considered the exhibits that corroborated the criminal conduct described in the PSR, and did not consider the exhibits that were irrelevant to defendant’s uncharged criminal conduct. Based on the totality of the evidence, the court concluded that the advisory guideline range did not reflect defendant’s criminal history, his likelihood to recidivate, or his escalating violent behavior. U.S. v. Gant, 663 F.3d 1023 (8th Cir. 2011).
8th Circuit applies cross-reference to kidnapping guideline in domestic violence case. (215) Defendant pled guilty to interstate domestic violence and being a felon in possession of a firearm after he took his wife by gunpoint across state lines. The Eighth Circuit held that the district court properly applied a cross-reference in § 2A6.2(c)(1) to the kidnapping guideline. Defendant took his wife from her place of employment against her will in a vehicle. Once in the vehicle, he detained her at gunpoint, striking her in the face twice and firing his gun outside the window in front of her. He then forced her to call her mother to lie about her safety and her willingness to leave with defendant. Finally, he forced her to make a similar call to the police, and he did not terminate the escapade until the police apprehended him at an out-of-state motel. These facts were sufficient to support the § 2A6.2(c)(1) cross-reference. U.S. v. Douglas, 646 F.3d 1134 (8th Cir. 2011).
8th Circuit double counts prior conviction in criminal history and in qualifying as sex offender. (215) Defendant pled guilty to failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). He qualified as a sex offender based on a 2000 conviction for sexually assaulting a nine-year old Colorado girl. The district court calculated his base offense level under § 2A3.5 as 16 because defendant was a Tier III offender. Defendant argued that the district court impermissibly double-counted his sexual assault conviction by including it in both his base offense level and his criminal history category. The Eighth Circuit found no impermissible double counting. The offense level for failing to register as a sex offender was based on the nature of the sexual conduct in the prior conviction. The criminal history was not based on the nature of the prior conviction, but the length of incarceration and the conviction’s age. U.S. v. Myers, 598 F.3d 474 (8th Cir. 2010).
8th Circuit affirms defendant’s sentence as Tier III sex-offender. (215) In 1995, defendant was convicted in Illinois of aggravated sexual assault, sentenced to eight years, and ordered to register as a sex offender. In 2008, defendant was found living in Arkansas where he was not registered as a sex offender, as required by the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16901. The court sentenced him as a Tier III sex-offender under § 2A3.5(a)(1). Defendant argued that because his Illinois offense predated SORNA, he technically was never “required to register” as any particular tier of offender, and that under the rule of lenity, his base offense level should be computed using the lowest tier, Tier I. The Eighth Circuit disagreed, ruling that the district court properly followed the Guidelines by comparing defendant’s underlying Illinois conviction to the crimes listed in § 16911(4)(A)(i). The panel also rejected defendant’s separate argument that § 2A3.5(a)(1) does not apply to defendants who were sentenced and required to register as sex offenders before the creation of SORNA and the tier system. U.S. v. Lowry, 595 F.3d 863 (8th Cir. 2010).
8th Circuit upholds within-Guidelines sentence for mailing threatening communications. (215) Defendant pleaded guilty to mailing threatening communications to a federal judge, in violation of 18 U.S.C. § 876(c). At sentencing, the district court calculated his Guideline range at 51 to 63 months. The court stated that it had read the report of defendant’s mental competency examination, which had found defendant competent, and it discussed defendant’s mental health history. The court imposed a 53-month sentence. On appeal, the Eighth Circuit rejected defendant’s contention that the district court should have explicitly referred at sentencing to defendant’s psychiatric history and held that the sentence was substantively reasonable. U.S. v. Wood, 587 F.3d 882 (8th Cir. 2009).
8th Circuit applies aggravated sexual abuse enhancement, despite acquittal. (215) Defendant and a friend were convicted of sexually abusing a Native American woman. The district court applied a four-level enhancement under § 2A3.1(b)(1), for conduct described in 18 U.S.C. § 2241(A). The jury had acquitted defendants of aggravated sexual abuse in violation of § 2241(a), but the district court found that the offense of conviction – sexual abuse in violation of 18 U.S.C. § 2242(2) – involved conduct described in § 2241(a). The Eighth Circuit affirmed. The victim testified at trial that defendant used a cucumber to penetrate her vagina. She further testified that defendant used force in abusing her sexually, both by holding her against the bed, with his knees on her shoulders, and by head-butting her on the nose. In light of this testimony, the district court did not clearly err in finding that defendant’s offense involved conduct described in § 2241(a), and that a four-level enhancement under § 2A3.1(b)(1) was proper. U.S. v. Papakee, 573 F.3d 569 (8th Cir. 2009).
8th Circuit rejects downward variance for mother who forced nine-year old to submit to sexual abuse. (215) Defendant repeatedly restrained and compelled her nine-year-old daughter to submit to the sexual gratification of a pedophile in exchange for $20. In U.S. v. Kane, 470 F.3d 1277 (8th Cir. 2006), cert. granted, vacated Kane v. U.S., 552 U.S. 1088 , 128 S.Ct. 861 (2008), the Eighth Circuit reversed a 120-month sentence as unreasonable. On reconsideration in light of Gall, the Eighth Circuit again vacated the sentence, ruling that the court committed procedural error by failing to adequately explain the chosen sentence or support the degree of variance. Nothing supported the court’s finding that defendant was unlikely to repeat this type of crime. There was no evidence linking defendant’s past substance abuse or mental health issues to her crimes, and no indication that defendant was influenced by the pedophile. A defendant’s post-sentencing rehabilitation is an impermissible ground for a downward variance. Even if the pedophile was more culpable than defendant, this was not, by itself, sufficient justification for defendant’s unusually lenient sentence. Also, given the horrifying nature of defendant’s conduct, the court had “serious concerns” about the substantive reasonableness of defendant’s 120-month sentence. U.S. v. Kane, 552 F.3d 748 (8th Cir. 2009), vacated by Kane v. U.S., 131 S.Ct. 1597 (2011), and adhered to in part on reconsideration by U.S. v. Kane, 639 F.3d 1121 (8th Cir. 2011).
8th Circuit holds minors were in “custody and care” of “big brother” when guardian was not home. (215) Defendant lived with his mother, his mother’s three other biological children, and several other children of whom his mother was the guardian. He was convicted of sexually abusing three children living with his mother. He argued that the district court erred in finding that the minors were in his “custody, care, or supervisory control,” as required for a §2A3.1(b)(3)(A) increase. The Eighth Circuit affirmed the increase. Defendant lived with the victims. Each of the victims testified they considered defendant to be a “big brother.” Defendant was between 14 and 21 years old during the relevant time periods, and the victims were between four and 11 years old. At the time of the abuse, the victims’ guardian had left the children alone in the house with defendant. Defendant was in control of the victims when their guardian was not at home. U.S. v. Wright, 540 F.3d 833 (8th Cir. 2008).
8th Circuit says applying sexual abuse cross reference did not require clear and convincing evidence. (215) Defendant was convicted of sexual abuse of a minor, in violation of 18 U.S.C. § 2243(a). He was acquitted of engaging or attempting to engage in a sexual act with a person who was physically incapable of consenting, in violation of 18 U.S.C. § 2242(2). The sexual abuse of a minor offense would normally result in a base offense level of 18 under § 2A3.2(c). However, the court applied a cross-reference to § 2A3.1, which applies if conduct proscribed under § 2242 is part of the offense. This raised his offense level to 30. Defendant was acquitted of the charges under § 2242, but the district court found that the minor’s inebriated state made her incapable of appraising the nature of the sexual act and physically incapable of consenting. The Eighth Circuit upheld the application of the cross-reference, rejecting defendant’s claim that the increase was so great as to require clear and convincing evidence of the existence of the conduct relied upon to enhance the sentence. The increase was not so extreme as to require the higher standard of proof. U.S. v. Tyndall, 521 F.3d 877 (8th Cir. 2008).
8th Circuit applies repeat sex offender increase for pattern of conduct in present conviction. (215) Section 4B1.5 provides for a five-level enhancement for a “Repeat and Dangerous Sex Offender Against Minors.” Defendant argued that a § 4B1.5 increase requires a prior conviction for a sex offense against a minor and that the sentencing court cannot rely solely on conduct involved in the present offense. The Eighth Circuit rejected the argument, holding that subsection (b) does not require a prior conviction, and can apply when the only pattern of conduct is in the present offense. Subsection (a) only applies if the defendant committed the current offense “subsequent to sustaining at least one sex offense conviction.” Because subsection (b) applies specifically when subsection (a) does not, the plain language of the Guidelines supported the view that subsection (b) applies when a defendant has no prior sex offense conviction. U.S. v. Rojas, 520 F.3d 876 (8th Cir. 2008).
8th Circuit applies increase for defendant’s threat to kill himself if child reported sexual abuse. (215) Defendant was convicted of sexually abusing his former girlfriend’s two daughter, and physically assaulting the younger of the two gifts. Section 2A3.1(b)(1) calls for a four-level enhancement if the offense involved “knowingly causing another person to engage in a sexual act … by threatening or placing that other person in fear that any person will be subject to death, serious bodily injury, or kidnapping.” 18 U.S.C. § 2241(a)(2). Defendant told one of the girls that he would kill himself if she disclosed the sexual abuse. The Eighth Circuit held that the threat of suicide satisfied the requirements of § 2241(a)(2). Especially in the case of a child-victim, an offender’s threat of suicide is a particularly heinous tool to coerce compliance and secrecy. Defendant was not a stranger to the victim, but a father-figure, a one-time member of the family home, and the father of the victim’s younger siblings. Placing the responsibility for the possible death of the offender on the child-victim’s shoulder’s was precisely the kind of threatening and coercive conduct that § 2A3.1(b) (1) and 18 U.S.C. § 2241(a)(2) intend to target. U.S. v. Rojas, 520 F.3d 876 (8th Cir. 2008).
8th Circuit upholds variance for conduct that did not qualify for § 2A6.1(b)(1) increase. (215) Defendant sent an exceptionally graphic threatening letter from his prison cell to a U.S. district judge. When confronted by federal agents, defendant admitted he wrote the letter, expressed his intent and willingness to carry out the threat, claimed he could cause harm to the judge from prison, and stated he had a murder-for-hire plan in place. The district court refused to apply a six-level enhancement under § 2A6.1(b)(1) for conduct evidencing an intent to carry out the threat, because that enhancement only applies to conduct before or during the offense. However, the court thought this limitation was wrong, and considered defendant’s post-offense statement in granting a § 3553(a) variance. Defendant’s guidelines range was 37-46 months, but court sentenced him to 84 months. The Eighth Circuit affirmed. The cases relied by defendant—holding that extraordinary variances require extraordinary circumstances—have been overruled by the Supreme Court’s decision in Gall. If defendant had expressed his intent to carry out the threat contemporaneously with making the threat, he would have been subject to a 6-level increase. The district court’s conclusion that defendant’s conduct was just as bad as that encompassed by § 2A6.1(b)(1), and thus deserving of a similar sentence, was logical and reasonable. U.S. v. Austad, 519 F.3d 431 (8th Cir. 2008).
8th Circuit finds 40 percent downward variance resulted in a reasonable sentence. (215) While serving a prison sentence for mailing threatening letters, defendant mailed additional threatening letters to a federal judge and defendant’s public defender. The district court found that the case fell outside the heartland, but concluded that a departure under § 5K2.13 was not authorized because the offense “clearly involved a serious threat of violence.” Nonetheless, the court found that it could depart under § 5K2.0. Based on the same circumstances, the court alternatively found that a non-guidelines sentence was appropriate. The Eighth Circuit held that the § 5K2.0 departure was not proper. The Sentencing Commission adequately considered reduced mental capacity when it formulated § 5K2.13, so this foreclosed consideration of diminished mental capacity under § 5K2.0. The error, however, was harmless, because the alternative ground for the sentence, a variance based on the § 3553(a) factors, supported the sentence. The 60-month sentence, which represented a 40 percent variance from the guideline range of 100-125 months, was reasonable. The court reviewed each § 3553(a) factor, and based the variance on a number of findings. U.S. v. Myers, 503 F.3d 676 (8th Cir. 2007).
8th Circuit says defendant’s responsibility for minor victim during visits shows she was in defendant’s care. (215) The guideline for offenses involving sexual abuse of a minor, § 2A3.1(b)(3)(A), provides for a two-level enhancement if the victim is in the “care, custody, or control” of the defendant. A defendant has “care, custody, or control” if the victim has been “entrusted” to him. Defendant was convicted of sexually abusing a girl over a three-year period when she was eight to eleven years’ old. The victim was a regular overnight guest at the home of defendant and his wife. Testifying in his own defense, defendant said he cared for the victim during her visits and that the victim accused him because he made her do chores around the house. The Eighth Circuit held that the evidence sufficiently showed that defendant shared responsibility with his wife for the care of the victim during her visits and that the victim was under defendant’s “care, custody, or control.” U.S. v. Kenyon, 481 F.3d 1054 (8th Cir. 2007).
8th Circuit upholds use of acquitted conduct to apply sexual abuse cross-reference. (215) Defendant was convicted of one count of aggravated sexual abuse, 18 U.S.C. §§ 1153, 2241(c) and 2246(2)(A), and three counts of the lesser-included offense of abusive sexual contact, 18 U.S.C. § 2244. The convictions arose from the alleged abuse of his two children. Section 2A3.4(c)(1) states that if the offense involved criminal sexual abuse, a court should apply § 2A3.1. The Eighth Circuit held that the district court properly applied the § 2A3.4(c)(1) cross-reference to § 2A3.1, the criminal sexual abuse guideline, even though the jury only convicted defendant of the lesser-included offense of abusive sexual contact. There was there was sufficient evidence at trial of acts punishable under § 2241 for aggravated sexual abuse. Acquitted conduct may be used for sentencing purposes if proved by a preponderance of the evidence. U.S. v. No-Neck, 472 F.3d 1048 (8th Cir. 2007).
8th Circuit upholds large sentencing increase upon resentencing in light of Booker. (215) Several months before his release from prison, defendant sent letters to a North Dakota federal district court, the city of Fargo, North Dakota, the Governor of North Dakota, and the President of the United States, proclaiming “a formal declaration of war on the city of Fargo” and threatening violence and the use of bombs against the city of Fargo and anyone within its city limits. The court initially sentenced defendant to 140 months’ imprisonment, but on remand after the appellate court rejected all of the grounds of departure, and in light of Booker, the court resentenced defendant to 360 months. The Eighth Circuit held that the 360-month sentence was reasonable. Defendant was a career offender, and his criminal history indicated that he was “resistant to authority” and that previous attempts to deter him from criminal conduct had been unsuccessful. Defendant admitted to federal agents that he made the threats, explained what weapons would be used and how he would carry out the attack, and declared he was willing to die if necessary. The court adequately considered the § 3553(a) factors. It did not appear that the court believed the appellate opinion required the district court to sentence defendant within the advisory guideline range. The opinion only rejected the court’s stated reasons for a downward departure, it did not prohibit the court from granting a downward variance if the court believed such a variance was warranted based on its consideration of the § 3553(a) factors. U.S. v. McMorrow, 471 F.3d 921 (8th Cir. 2006).
8th Circuit holds that enhancement for age of victim and repeat sexual offender was not impermissible double counting. (215) Defendant was convicted of four counts of aggravated sexual abuse. He received an enhancement under § 2A3.1(b)(2)(B) for the age of the victim and under § 4B1.5(b)(1) for being a repeat sexual offender. The Eighth Circuit found no improper double counting. The enhancements account for different kinds of harms. U.S. v. Jones, 440 F.3d 927 (8th Cir. 2006).
8th Circuit agrees that defendant used force to sexually abuse minor. (215) Defendant pled guilty to sexual abuse of a minor, in violation of 18 U.S.C. 1153, 2243(a). The Eighth Circuit upheld the use of the § 2A3.2(c) cross-reference for criminal sexual abuse, agreeing that defendant used force. The government can show criminal sexual abuse by proving force “sufficient to overcome, restrain, or injure a person; of the use of a threat or harm sufficient to coerce or compel submission by the victim.” Here, the victim testified that the intercourse was not consensual, and that defendant restrained her by holding her hands above her head. She further testified that she tried to fight him away and that she protested several times. The victim’s cousin, who was in another part of the trailer, confirmed that she heard the victim yell “don’t,” “ow,” and “stop.” U.S. v. Searby, 439 F.3d 961 (8th Cir. 2006).
8th Circuit upholds increase for conduct evidencing intent to carry out threats. (215) Defendant pled guilty to making a willful threat by telephone, in violation of 18 U.S.C. § 844(e). Section 2A6.1(b)(1) applies when a threat offense involved any conduct evidencing an intent to carry out such threat. In the plea agreement, defendant admitted that he called his stepfather on November 16 and said, “I’m going to put you down,” unless the stepfather paid money owed to defendant’s mother within two weeks. Fifteen days later, a residence and 250 bales of hay owned by the stepfather were destroyed by suspicious fires. The day after the fires, defendant called the victim and said in a recorded conversation, “give her what you owe her or you’ll have nothing left,” and “You got a week. Bye.” The Eighth Circuit held that the district court did not clearly err in finding that the facts admitted in the plea agreement reflected conduct evidencing an intent to carry defendant’s repeated threats. The panel affirmed the § 2A6.1(b)(1) enhancement. U.S. v. Reynolds, 432 F.3d 821 (8th Cir. 2005).
8th Circuit finds insufficient evidence to support use of sexual abuse guideline. (215) Defendant unlawfully touched a 15-year-old girl while she was passed out in her bedroom after a night of heavy drinking. The abusive sexual contact guideline, § 2A3.4, directed the court to apply § 2A3.1, if the offense conduct constituted criminal sexual abuse, as opposed to abusive sexual conduct. The critical difference here between criminal sexual abuse and abusive sexual contact turned on whether defendant touched the victim’s genitalia directly or through her clothing. Although the PSR noted that defendant pulled the victim’s pants down and touched her vagina with his fingers, defendant objected to this portion of the PSR. At sentencing, an FBI agent testified that defendant admitted that he rubbed the victim’s vagina with his fingers. The Eighth Circuit found insufficient evidence to support the use of the criminal sexual abuse guideline. The district court relied not only on the agent’s testimony in making the critical determination that defendant directly touched the victim, but also relied on the objected-to paragraphs of the PSR that were not supported by any evidence in the record. The district court’s factual finding that defendant committed a “sexual act” was tainted by the erroneous finding that defendant removed the victim’s pants. However, there was no evidence that defendant removed her pants other than the PSR, which is not evidence. U.S. v. Poor Bear, 359 F.3d 1038 (8th Cir. 2004).
8th Circuit rejects upward departure in false anthrax case for disruption of government function and threat to public safety. (215) Defendant called a 911 operator and stated that anthrax was in one of the local schools. At sentencing, the district court departed upward based on (1) the disruption of governmental functions; (2) the significant danger to the public heath and safety; (3) defendant’s recidivist tendencies; and (4) the timing of the offense. The Eighth Circuit reversed. Section 2K2.7 permits a departure based on a “significant disruption of a government function.” While there was evidence of a disruption (law enforcement were dispatched to the local post office and school to intercept mail), evidence concerning the significance of the disruption was not in the record. Moreover, § 2A6.1(b)(4)(A) already provided for an increase if government functions are disrupted, and the court chose not to apply that enhancement. Thus, the court implicitly found the governmental functions of the school and mail delivery system were not disrupted to a substantial degree. The facts in the record did not support a departure under § 5K2.14 for threatening national security or public health. Defendant’s threat was empty. While the response to an empty threat might endanger the public, that was not the case here. Finally, it was unclear how the timing of the offense affected the court’s reasoning. U.S. v. Cole, 357 F.3d 780 (8th Cir. 2004).
8th Circuit says threatening statements made in chat room was not entitled to “single instance” reduction. (215) Defendant was convicted of making threats against the President of the United States. Guideline § 2A6.1(b)(5) authorizes a four-level decrease for threatening communications if no other adjustments apply and “the offense involved a single instance evidencing little or no deliberation.” The Eighth Circuit held that defendant was not entitled to the reduction. Defendant communicated his threat about burning the President to different people on different occasions, specifically, in the chat room, by fax to the White House, and in person to three individuals at different times. U.S. v. Humphreys, 352 F.3d 1175 (8th Cir. 2003).
8th Circuit holds that rape victim who was hospitalized suffered serious bodily injury. (215) Defendant sexually assaulted a woman who had passed out on his bed. The victim suffered a rectal laceration that needed to be repaired at the hospital; she compared the pain of having defendant’s fist in her vagina to the pain of giving birth; her scalp was bruised by him restraining her by her hair; and she was hospitalized overnight. The Eighth Circuit upheld a serious bodily-injury enhancement under § 2A3.1(b)(4)(B). The victim’s description of the pain she experienced qualified as “extreme physical pain” within the meaning of Note 1(i) to § 1B1.1. Her overnight hospitalization also qualified as “medical intervention” within the meaning of that note. The victim’s rectal laceration was akin to types of serious bodily injury recognized in aggravated sexual abuse cases. See, e.g. U.S. v. Kills in Water, 293 F.3d 432 (8th Cir. 2002). U.S. v. Long Turkey, 342 F.3d 856 (8th Cir. 2003).
8th Circuit says 14-year old rape victim who became pregnant, had difficult delivery, and suffered stress disorders suffered serious bodily injury. (215) Defendant raped a 14-year old babysitter, who became pregnant and gave birth as a result. The district court applied a two-level enhancement under § 2A3.1(b)(4) for serious bodily injury. On appeal an Eighth Circuit panel concluded that the court had erred by basing the increase on a provision in Note 1(j) to § 1B1.1 deeming serious bodily injury to occur where the conduct constituted criminal sexual abuse, but ruled that the record was incomplete as to the other definitions of serious bodily injury in the note. On remand, the district court reimposed the same sentence after making specific findings basing the enhancement for serious bodily injury on extreme physical pain, protracted impairment, and the necessity for medical intervention. The Eighth Circuit ruled that the extensive findings made by the district court on remand supported the increase. The victim suffered extreme physical pain during her labor and delivery, which was made difficult by her small frame, and resulted in severe hemorrhaging. Her depression and post-traumatic stress disorder were well documented and lasted from the time of the rape in October 1999 until at least March 2001, constituting a protracted impairment of the function of her mental faculty. U.S. v. Guy, 340 F.3d 655 (8th Cir. 2003).
8th Circuit upholds multiple enhancements for defendant who sexually assaulted 10-year old girl. (215) Defendant received permission from a 10-year old girl’s parents to take the girl on an overnight trip to Texas. While in Texas, he attempted to sexually assault the girl, and she asked him to take her home. The next day, instead of returning the girl to her home in Kansas, defendant drove to a rural campground in Arkansas where he sexually assaulted the girl. The Eighth Circuit affirmed an increase under § 2A3.1(b)(3)(A) because the girl was in defendant’s “custody, care, or supervisory control.” The girl’s parents entrusted her to defendant, as a friend of the family, creating a relationship of temporary custody and care based upon trust. The court also properly applied a four-level increase under § 2A3.1(b)(5) because the victim was “abducted.” While defendant had permission to take the girl to Texas, the abduction occurred when the girl asked to be taken home, consistent with her mother’s consent, and defendant instead took her to an Arkansas campground for the purpose of sexual assault. Enhancements for the abduction under § 2A3.1(b)(5) and for the use of force under § 2A3.1(b)(1) were not improper double counting. Defendant abducted the girl to Arkansas, thereby increasing the likelihood of sexual assault, and then punched her in the face when she tried to resist his assault, thereby increasing the severity of the assault. U.S. v. Brown, 330 F.3d 1073 (8th Cir. 2003).
8th Circuit holds that defendant’s actions evidenced intent to carry out threats. (215) Defendant sent threatening and vulgar email and telephone messages to a woman he met over the Internet. The messages included threats to murder the woman’s two children, to put pictures of her children on pornographic web sites, and to send letters to the woman’s neighbors. Defendant was convicted of interstate stalking and sending threatening communications. The Eighth Circuit upheld an increase under § 2A6.1(b)(1) for “conduct evidencing an intent to carry out such threat.” Defendant obtained the woman’s home address and telephone number, information that she did not provide to him. Defendant also sought and obtained driving directions and a map with a route leading directly to the woman’s house. Additionally, defendant carried out other threats he made, including posting pornographic and detailed information about the woman’s children on sexually-explicit web sites and sending letters to the woman’s neighbors. These actions evidenced an intent to carry out his threats. U.S. v. Rose, 315 F.3d 956 (8th Cir. 2003).
8th Circuit says holding knife against victim’s leg to induce cooperation was “use” of dangerous weapon. (215) Armed with a knife, defendant entered a car occupied by a mother and her 10-month old daughter and made the mother drive them from Missouri to Arkansas. He challenged a § 2A4.1(b)(3) enhancement for “using” a dangerous weapon, claiming he merely “brandished” or “displayed” the knife. However, the mother testified under oath that when defendant entered the car, he had a knife in his left hand which he placed on her leg and said, “don’t say anything just drive.” When they stopped at a gas station and she balked at leaving the car to pump gas, defendant pointed the knife at her infant daughter and said, “you don’t care about her either, you don’t care about your daughter?” In the context of a § 2B3.1(B)(2)(d) enhancement, the court has held placing a knife against a person’s throat to facilitate cooperation with a robbery constituted use of a dangerous weapon. Likewise, the Eighth Circuit concluding that defendant’s holding a knife against the mother’s leg to facilitate her cooperation with the carjacking constituted use of a dangerous weapon. This conclusion was reinforced by defendant’s later act of pointing the knife at the baby to secure the mother’s cooperation. U.S. v. Coyle, 309 F.3d 1071 (8th Cir. 2002).
8th Circuit upholds increase for “father figure” who abused children in his care. (215) Defendant was convicted of abusive sexual contact with a minor less than 12 years old in violation of 18 U.S.C. § 1153 and 2244(a)(2) & (c). The district court increased his offense level by two levels under § 2A3.4(b)(3), because the victim was “in the custody, care, or supervisory control of the defendant.” On appeal, the Eighth Circuit affirmed, holding that defendant was a “father figure” to the children of the woman with whom he lived, and they referred to him as “dad.” Thus, looking at “the actual relationship that existed between the defendant and the victim,” U.S.C.G. § 2A3.4, comment. (n.4), the Eighth Circuit found no clear error in imposing the two level enhancement. U.S. v. Miller, 293 F.3d 468 (8th Cir. 2002).
8th Circuit holds that rape victim’s physical and mental injuries constituted “serious bodily injury.” (215) Defendant pled guilty to aggravated sexual abuse in violation of 18 U.S.C. §§ 2241(a)(1) and 2246(2). During the course of the rape, as defendant held her down, a co-defendant bit the victim on her neck, arm and stomach. As a result of the rape, the 13-year old victim suffered abrasions and irritation of the vagina and multiple areas of acute disruption of the hymen, all consistent with a penetrating injury. Months later, the victim attempted suicide and was treated at a psychiatric care facility. She continued to experience recurring nightmares and took medication for them. She also received ongoing psychological counseling. The Eighth Circuit affirmed a § 2A3.1(b)(4)(B) increase for serious bodily injury. The court did not automatically apply the increase, but relied on the victim’s bite marks, her physical trauma, her continued psychological problems, and her ongoing need for psychological counseling. Although defendant claimed that the victim only received injuries that were “normal” for rape victims, the district court concluded that “these injuries are in addition to what anyone would sustain from a forcible rape. This is one of the more outrageous sexual assaults that I have seen.” U.S. v. Kills in Water, 293 F.3d 432 (8th Cir. 2002).
8th Circuit finds abduction where victim voluntarily went to trailer but defendant forced her inside. (215) Defendant pled guilty to aggravated sexual abuse, in violation of 18 U.S.C. §§ 2241(a)(1), and received a § 2A3.1(b)(5) enhancement for abducting the victim. Note 1(a) to § 1B1.1 explains that abduction “means that a victim was forced to accompany an offender to a different location.” Defendant argued that the victim voluntarily accompanied him to the trailer where the rape occurred. However, the district court made a specific factual finding that, although the victim was not forced to accompany defendant to the trailer, defendant forced her inside the trailer. Moreover, the force used by the defendant to get the victim inside the trailer included chasing her, picking her up by the waist, dragging her to the trailer, and lifting her up stairs and inside the trailer, despite her resistance. In drawing this conclusion, the court reasonably relied on the testimony of the pretrial services officer, who reviewed the FBI and police reports and interviewed the victim, defendant, and co-defendant. The Eighth Circuit held that the district court did not clearly err in determining that defendant forced the victim into the trailer just prior to the rape. These actions constituted an abduction within the meaning of the guidelines. U.S. v. Kills in Water, 293 F.3d 432 (8th Cir. 2002).
8th Circuit applies criminal sexual abuse guideline for abuse of prostitute. (215) Defendant was convicted of being part of an extensive interstate conspiracy involving the recruitment, transportation, control and abuse of prostitutes. The Eighth Circuit upheld the district court’s decision to sentence defendant under the guideline for criminal sexual abuse, § 2A3.1, which carries an offense level of 27, rather than the guideline for promoting prostitution, § 2G1.1, which carries an offense level of 14. The court found there were repeated instances of sexual abuse. One victim testified that following defendant’s abusive attacks on her, he often would attempt to make up by forcing her to have sex with him. Regardless of whether defendant’s admitted sexual abuse of the victim occurred in the context of a “domestic” relationship or not, it still constituted criminal sexual abuse. U.S. v. Evans, 285 F.3d 664 (8th Cir. 2002).
8th Circuit upholds serious bodily injury enhancement. (215) Defendant participated in an extensive interstate conspiracy involving the recruitment, transportation, control and abuse of prostitutes. The district court applied a § 2A3.1(b) (4)(B) enhancement due to the serious bodily injury to one of the prostitutes. “Serious bodily injury” is defined as “injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation.” See Note 1(j) to § 1B1.1. The injuries suffered by one prostitute included breaking her wrist with a boot, dislocating her shoulder, and a bloody attack on her head with an object, for which she was taken to a hospital, and which left her with cuts and bruises. The Eighth Circuit held that the district court did not err in applying the serious bodily injury increase. U.S. v. Evans, 285 F.3d 664 (8th Cir. 2002).
8th Circuit says “deeming provision” cannot support bodily injury increase for criminal sexual abuse defendant. (215) Defendant pled guilty to criminal sexual abuse under 18 U.S.C. § 2241(c) for forcibly raping a 14-year old girl. The district court applied a § 2A3.1(b)(4)(B) increase for serious bodily injury to the victim. Application note 1(j) to § 1B1.1 defines “serious bodily injury” as “injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty…. In addition ‘serious bodily injury’ is deemed to have occurred if the offense involved conduct constituting criminal sexual abuse under 18 U.S.C. § 2241 or § 2242 ….” However, the commentary to § 2A3.1 provides that serious bodily injury means “conduct other than criminal sexual abuse, which already is taken into account in the base offense level under subsection (a).” The Eighth Circuit concluded that the deeming provision, in combination with the restriction in § 2A3.1, was intended to make the serious bodily injury increase automatically available if the offender’s conduct underlying his conviction for another type of offense also involved criminal sexual abuse. A court cannot, as the court did here, use the deeming provision to increase the sentence for a defendant convicted of criminal sexual abuse. Although the court also rested its enhancement on the victim’s “protracted impairment,” the court failed to make specific factual findings, and the case was remanded. U.S. v. Guy, 282 F.3d 991 (8th Cir. 2002).
8th Circuit holds that sexual abuse victim’s possible promiscuity did not warrant downward departure. (215) Defendant pled guilty to sexual abuse of a minor more than four years younger than himself. During the proceedings, the parties learned that the victim had a sexually transmitted disease, which he could not have contracted from defendant. The district court then departed downward, noting that the victim’s disease was usually developed by those with a number of sexual encounters with various partners, and that this case was “in a different category than a consensual act between two people where there isn’t a pattern or history of sexual contact at least by the victim.” The Eighth Circuit reversed. Although victim misconduct or provocation is an encouraged downward departure factor, it is not ordinarily sufficient to warrant a departure in the context of § 2A3 criminal sexual abuse. USSG § 5K2.10. Furthermore, because § 2A3.2 applies to consensual sexual acts that would be lawful but the age of the victim, it already takes into account a victim’s willingness to engage in the act. The victim’s sexually-transmitted disease had nothing to do with the offense for which defendant was sentenced. Moreover, the victim’s possible promiscuity did not justify a departure. The heartland of the criminal sexual abuse is not the statutory rape of a chaste minor. U.S. v. Sheridan, 270 F.3d 669 (8th Cir. 2001).
8th Circuit rules disparity between abuse victim and defendant was insufficient to establish use of force. (215) While alone in the bathroom with a 21-month child, defendant placed his penis in the child’s mouth for about ten seconds. The district court applied a § 2A3.1(b) (1) increase for using force contemporaneous with the sexual abuse. The Eighth Circuit reversed. The record contained no evidence that defendant threatened the child in a physical or verbal manner. The only factor suggesting the use of force was the size difference between defendant and the child. However, size difference alone cannot establish use of force under § 2A3.1(b)(1). U.S. v. Blue, 255 F.3d 609 (8th Cir. 2001).
8th Circuit holds the child abuse victim was not in defendant’s custody or control. (215) Defendant and others drank heavily at a home containing seven adults and three children. While the mother of a 21-month old child was awaking from a stupor, defendant sexually abused the child in the bathroom. The district court applied a § 2A3.1(b)(3)(A) increase because the victim was in the “custody, care, or supervisory control of the defendant.” The court noted that the victim and his mother had lived with the defendant for a six-month period a year before the incident and that defendant regarded the victim as his grandson. The Eighth Circuit reversed. A defendant is in a custodial position under § 2A3.1(b)(3)(A) when he “is a person the victim trusts or to whom the victim is entrusted.” Defendant was never entrusted with custody of the child. The government did not introduce any evidence that the victim trusted defendant or perceived him as his grandfather. None of the witnesses at the jury trial referred to defendant as the child’s grandfather or testified that he had greater access to the victim because of his relationship with the child’s grandmother. U.S. v. Blue, 255 F.3d 609 (8th Cir. 2001).
8th Circuit upholds enhancement for victim being in defendant’s custody, care, or control. (215) Defendant was convicted of abusive sexual contact. The Eighth Circuit affirmed a § 2A3.4(b)(3) enhancement for the victim being in defendant’s custody, care, or supervision. The victim’s mother and defendant’s companion testified that defendant and his companion were supposed to be babysitting the victim when the abusive contact occurred. U.S. v. Voice, 200 F.3d 584 (8th Cir. 2000).
8th Circuit says defendant did not release abused kidnap victim. (215) Defendant beat up his then girlfriend and a friend who tried to intervene. He forcibly dragged the girlfriend to his car, and beat her when she tried to raise her head. He made several stops at a convenience store and a fast food drive-through. The girlfriend testified that she did not attempt to run because she had nowhere to go and was afraid of being beaten by defendant. Defendant had warned her not to attempt to run. They rented a hotel room and defendant placed two chairs in front of the door. He did not threaten or restrain the girlfriend, but she did not attempt to escape. The next morning defendant drove the girlfriend to a gas station where she entered alone and purchased a drink and sunglasses to hide her black eyes. She made no attempt to escape or alert authorities. The Eighth Circuit upheld the district court’s refusal to grant a § 2A4.1(b) (4)(C) reduction for release of a kidnap victim within 24 hours. Although the girlfriend was left alone on two occasions, the district court reasonably determined in light of the severe nature of defendant’s abusive behavior that the victim was not in a position — physically, mentally or emotionally — to flee. Although defendant’s control had slackened, he did not release or abandon his prisoner. U.S. v. Sickinger, 179 F.3d 1091 (8th Cir. 1999).
8th Circuit rejects enhancement for injury to kidnapping victim’s friend. (215) Defendant beat his then girlfriend. When Wilson, the girlfriend’s friend, tried to get him to stop, he seized Wilson’s hair, threw her to the ground and kicked her in the face twice, shattering bones in her eye socket and breaking her nose and sinuses. He then forcibly abducted his girlfriend. Section 2A4.1(b)(2) provides for a four-level enhancement if “the victim sustained permanent or life-threatening injury.” The Eighth Circuit reversed a § 2A4.1(b)(2) enhancement based on the injuries suffered by Wilson. Section 2A4.1 requires injury to the victim of the kidnapping, not to persons suffering collateral injury during the kidnapping who are not themselves abducted. The references in § 2A4.1 to “the victim” are clearly references to persons who have been abducted. However, the district court may, on resentencing, consider whether an upward departure is appropriate under § 5K2.0 based on Wilson’s injuries. U.S. v. Sickinger, 179 F.3d 1091 (8th Cir. 1999).
8th Circuit says kidnapping guideline allowed consideration of sexual assault committed outside Indian country. (215) Defendant confronted his estranged wife outside her home on Indian land, dragged her from her car, and kicked and beat her repeatedly. Brandishing a knife, he forced her into the passenger side of her car and abducted her at knifepoint to an abandoned house not on Indian land, where he handcuffed and raped her before returning her to her house. He was convicted of kidnapping, assault, and interstate domestic abuse. Under § 2A4.1(b)(7)(A), when another offense is committed during a kidnapping, the sentencing court is to apply the offense level for the other offense if it is higher than 23, the base offense level for kidnapping. The court used the base offense level for criminal sexual abuse, which is 27. Defendant argued that the offense level for criminal sexual abuse could not be applied here because the federal government had no jurisdiction over the sexual assault, which he committed outside of Indian country. The Eighth Circuit disagreed. The guidelines specifically direct the sentencing court to consider state and local offenses when applying § 2A4.1(b)(7). U.S. v. Cree, 166 F.3d 1270 (8th Cir. 1999).
8th Circuit upholds dangerous weapon and permanent injury enhancements. (215) Defendant confronted his estranged wife outside her home, dragged her from her car, and kicked and beat her repeatedly. Brandishing a knife, he forced her into the passenger side of her car and abducted her at knifepoint to an abandoned house, where he handcuffed and raped her before returning her to her house. His wife was treated for injuries, including a cut on her face that required 17 stitches and left a scar still visible at defendant’s trial seven months later, a broken tooth that required extraction, and bruises all over her body. The Eighth Circuit affirmed enhancements under § 2A3.1(b)(1) for use of a dangerous weapon and under § 2A3.1(b)(4)(A) for inflicting a permanent injury. Based on the victim’s testimony, the district court justifiably found that a weapon was used to cut the victim’s face and that the results of that cut met the permanence requirements of the guidelines. U.S. v. Cree, 166 F.3d 1270 (8th Cir. 1999).
8th Circuit allows sentencing judge to credit government experts over defense expert. (215) Defendant’s 17-month daughter suffered injuries to her thigh bone and one leg, and her perineum, the area between the vagina and the anus, was seriously torn. Despite defendant’s claim that the injuries occurred when the family car accidentally rolled over the girl, defendant was convicted of aggravated sexual abuse. Defendant challenged a § 2A3.1(b)(1) enhancement for use of force and a § 2A3.1(b)(4)(B) enhancement for causing serious bodily injury. At sentencing, he called an expert witness who had not testified at trial. The expert testified that the child’s injuries, and the force exerted on her body, were likely caused by an automobile accident, as defendant had testified at trial. The Eighth Circuit affirmed the enhancements. The sentencing judge found the trial testimony of three other experts more convincing. This is the kind of decision properly left to the trier of fact. U.S. v. Bruguier, 161 F.3d 1145 (8th Cir. 1998).
8th Circuit holds defendant sexually exploited teenaged kidnapping victim. (215) Defendant kidnapped the 15-year old sister of his wife from a small town in Mexico, transported her to another town in Mexico, kept her there for three weeks, and then took her to Nebraska. At some point in Nebraska, defendant had sexual intercourse with the girl. The Eighth Circuit affirmed a § 2A4.1(b)(5) enhancement for sexually exploiting a victim. At the time defendant and the girl had intercourse, she had been forcibly detained for at least three weeks, transported to a foreign country where she did not speak the language, and subjected to various threats against herself and her family. Although defendant contended that the girl knew she could deny his requests because she had successfully done so in Mexico, the girl testified that she consented to the intercourse in Nebraska because she “was more afraid” than she had been in Mexico. U.S. v. Hernandez-Orozco, 151 F.3d 866 (8th Cir. 1998).
8th Circuit finds insufficient evidence of use of threat or force in sexual abuse. (215) Defendant sexually abused a ten-year old girl whose family lived at his house. The girl reported that he had removed her clothes although she did not want him to do so, and that defendant had “hurt” her. After her family relocated, defendant told her he would hurt her or her mother if she told anyone what had happened. The Eighth Circuit found insufficient evidence in the record to support a § 2A3.4(a) enhancement for use of force. The use of force must be contemporaneous with the commission of the alleged offense. Defendant’s threat occurred about one month after the incident. The only evidence in the record arguably connoting the use of force at the time of the offense was the victim’s testimony that defendant removed her clothes although she did not want him to, and sexually assaulted her, hurting her. However, there was no evidence regarding defendant’s size in relation to the victim, the victim’s (perceived) ability to escape the sexual attack, or what exactly the victim meant when she said defendant “hurt” her. U.S. v. Crow, 148 F.3d 1048 (8th Cir. 1998).
8th Circuit upholds use of § 2A6.1 for threatening Congresswoman. (215) Defendant sent threatening letters to a U.S. Congresswoman. The Eighth Circuit held that he was properly sentenced under § 2A6.1, Threatening Communications. Defendant was convicted of threatening to assault a member of Congress, in violation of 18 U.S.C. § 115(a)(1)(B) and (b)(4). Appendix A to the guidelines cross-references these statutory provisions with § 2A6.1. U.S. v. McKinney, 88 F.3d 551 (8th Cir. 1996), overruled on other grounds by U.S. v. LeBrun, 363 F.3d 715 (8th Cir. 2004).
8th Circuit finds court did not rely on contested facts to impose use of force enhancement. (215) Defendant pled guilty to aggravated sexual abuse. The Eighth Circuit affirmed a § 2A3.1(b)(1) enhancement for using force and threats to commit the offense. The district court did not rely on contested facts from the PSR. Defendant objected to the factual statements in paragraphs four and five of the PSR. The district court relied on the unchallenged factual allegations in paragraphs six, seven and ten, which showed that defendant forced the victim to perform various sexual acts, that he threatened her with retaliation if she told anyone about the abuse, and that the victim feared retaliation by defendant. The use of force enhancement was proper. U.S. v. LaRoche, 83 F.3d 958 (8th Cir. 1996).
8th Circuit agrees that defendant engaged in conduct evidencing intent to carry out threat. (215) Defendant mailed threatening letters to the prosecutor and district court judge who handled an earlier case against him. The Eighth Circuit affirmed an § 2A6.1(b)(1) enhancement for conduct evidencing an intent to carrying out the threats. The district court considered the language of the threatening letters, defendant’s conduct, and statements he made to a fellow inmate. The threats continued even after trial. Defendant cited only one case, in which the district court failed to make an express finding that defendant had engaged in conduct evidencing an intent to carry out the threat. The district court here fully considered the evidence and found the increase appropriate. The court’s conclusion was supported by the evidence. U.S. v. Bellrichard, 62 F.3d 1046 (8th Cir. 1995).
8th Circuit says defendant’s threats were more than a single instance involving no deliberation. (215) Defendant pled guilty to threatening the life of the president. The 8th Circuit held that defendant was not entitled a § 2A6.1(b) reduction for conduct involving a single instance evidencing little or no deliberation. Defendant communicated his threat on more than one occasion to different people. He communicated the threats over the telephone, in writing, in statements to the Secret Service, and in statements to the press. He added and subtracted details as he issued his various statements. U.S. v. Fann, 41 F.3d 240 (8th Cir. 1994).
8th Circuit holds that abduction does not require physical force. (215) Defendant raped and sodomized a mentally-retarded nine-year old girl. He challenged an enhancement under § 2A3.1(b)(5) for abducting his victim, claiming he did not use physical force. The 8th Circuit held that abduction does not require physical force. Note 1(a) to § 1B1.1 says that “abducted” means that a victim was forced to accompany an offender to a different location. “Forced” does not necessarily imply a physical assault. “Force” should be given its ordinary meaning of overcoming the will of another. Here, the facts supported the inference that defendant took the victim out of town against her will. The victim was unable to communicate effectively or understand the meaning of conversation. She lived a half block from the store where she was last seen, she rarely had been outside of town, she habitually visited the store, and was occasionally escorted home by employees. U.S. v. Saknikent, 30 F.3d 1012 (8th Cir. 1994).
8th Circuit relies on therapist’s testimony to affirm use of force enhancement. (215) Defendant pled guilty to abusive sexual contact with a child under 12. The 8th Circuit upheld an enhancement under section 2A3.4(a)(1) for using force or a threat, based upon the testimony of an experienced child therapist who provided the victim with 80 to 100 hours of counseling and therapy. The statements were corroborated in part by defendant’s later testimony, by medical records, and by the victim’s public conduct. The foundation laid might well have made the statements admissible at a trial, which strongly suggested that the testimony was sufficiently reliable to be considered at sentencing. Although defendant denied the victim’s accusations, and defense put on evidence attacking the victim’s credibility, the sentencing court’s decision to credit the therapist’s testimony was “virtually unreviewable” on appeal. U.S. v. Knife, 9 F.3d 705 (8th Cir. 1993).
8th Circuit holds that use of force and abduction enhancements apply to sexual abuse crime. (215) The 8th Circuit rejected defendant’s claim that enhancements under §2A3.1(b)(1) and (b)(5) for use of force and abduction do not apply to the crime of sexual abuse. §2A3.1 applies to both sexual abuse and aggravated sexual abuse, and nothing in the guideline or its commentary limits the use of force and abduction enhancements to defendants convicted of aggravated sexual abuse. U.S. v. Bald Eagle, 997 F.3d 1234 (8th Cir. 1993).
8th Circuit holds adult’s threats to young child constituted use of force. (215) The 8th Circuit affirmed an enhancement under §2A3.1(b)(1) for the use of force for a defendant who sexually abused a 10-year old child. Defendant had told the child that if she told her mother about the incidents, he would tell her mother about a “dirty book” that she had found. The child stated that she never said no because she knew defendant would punish her for saying no to him. Defendant was almost six feet tall and weighed about 200 pounds. He had been abusing the girl since she was about five years old. The apparent disparity in size between defendant and the victim, in combination with defendant’s repeated threats of disclosure to the child’s mother of the “dirty book” found by the child, was sufficient to sustain the enhancement. U.S. v. Bordeaux, 997 F.2d 419 (8th Cir. 1993).
8th Circuit finds enhancements for kidnapping and vulnerable victim were not double counting. (215) Defendant, convicted of kidnapping, received a four level enhancement under the 1990 version of §2A4.1(b)(5) because he kidnapped his victim to facilitate another offense (sexual abuse of a minor). The 5th Circuit rejected the claim that a vulnerable victim enhancement under §3A1.1 based on the age of the victim constituted double counting. The kidnapping guideline, §4A1.1, does refer to age, and thus the computation of defendant’s initial base offense level did not incorporate age as a factor. The §2A4.1(b)(5) enhancement also did not incorporate the age of the victim, as it would have applied if defendant had kidnapped any person to facilitate another offense. There would be no double counting even if defendant were sentenced under the 1991 version of section 2A4.1(b)(5), which applies when a kidnapper sexually abuses his victim. The 1991 version is also age-neutral. U.S. v. Coates, 996 F.2d 939 (8th Cir. 1993).
8th Circuit says conviction for aggravated sexual abuse is grounds for use of force enhancement. (215) Defendant was convicted of aggravated sexual abuse in violation of 18 U.S.C. section 2241(a)(1). The 8th Circuit affirmed an enhancement for use of force under section 2A3.1(b)(1), since evidence sufficient for a conviction under section 2241(a)(1) is sufficient to sustain the application of an enhancement for the use of the force under the guidelines. U.S. v. Norquay, 987 F.2d 475 (8th Cir. 1993), abrogated on other grounds by U.S. v. Thomas, 20 F.3d 817 (8th Cir. 1994).
8th Circuit rules pregnancy resulting from forcible rape is not bodily injury, but may justify departure. (215) Defendant raped a 15-year old girl who became pregnant as a result. The 8th Circuit affirmed the district court’s determination that a pregnancy resulting from a forcible rape was not a bodily injury justifying enhancement under section 2A3.1(b)(4). However, it also found that such a pregnancy was a proper grounds for an upward departure under section 5K2.0. The court rejected the sentencing court’s conclusion that the sentencing commission must have considered rape induced pregnancy in formulating the guidelines but did not include any sanctions for it. The case was remanded for the district court to consider the government’s motion for a departure on its merits. U.S. v. Yankton, 986 F.2d 1225 (8th Cir. 1993).
8th Circuit upholds enhancement for sexually abusing a child less than 12 years old. (215) Defendant was convicted of aggravated sexual assault under 18 U.S.C. section 2241(c) for sexually abusing a child under the age of 12. The 8th Circuit rejected defendant’s contention that an enhancement under section 2A3.1 based on the victim’s young age was double counting. Although the age of the victim is an element of the offense under section 2241(c), guideline section 2A3.1 applies to offenses under section 2241 and to simple sexual assault under 18 U.S.C. section 2242. The application notes clearly state that the base offense level under section 2A3.1 represents sexual abuse as set forth in 18 U.S.C. section 2242. The sentencing commission obviously intended that the age of the victim and other elements of aggravated sexual assault be addressed through enhancements of the base offense level. U.S. v. Balfany, 965 F.2d 575 (8th Cir. 1992).
8th Circuit reverses court’s failure to enhance where defendant had custody and control of sexual abuse victim. (215) The 8th Circuit found that the district court erroneously failed to enhance defendant’s sentence under section 2A3.1(b)(3) based upon his custody or control of a child which he sexually abused. Defendant and the child’s mother lived together as husband and wife. Although they often disciplined their own children, testimony showed that they shared many household responsibilities, including caring for the children. During at least one of the assaults, the child was in defendant’s sole custody and care. Moreover, the purposes underlying the enhancement applied in this case. Defendant was a member of the child’s household, and effectively was the child’s stepfather. Defendant not only abused the child, but he abused his relationship and the child’s trust. Consequently, the potential for greater and prolonged psychological damage to the abused child existed. Senior Judge Heaney dissented. U.S. v. Balfany, 965 F.2d 575 (8th Cir. 1992).
8th Circuit affirms that threat to beat child with a belt justified enhancement under 2A3.1(b)(1). (215) The 8th Circuit affirmed an enhancement under guideline section 2A3.1(b)(1) based upon the district court’s finding that defendant caused a child to engage in a sexual act by threatening the child with serious bodily injury. The child’s aunt testified that the child told her that defendant had threatened to kill her mother and sister if she told anyone about the abuse. However, even without this hearsay evidence there was sufficient evidence to support the enhancement. The child testified that defendant threatened to beat her with a belt if she told anyone about the abuse. Although on its face this might not appear to be a threat of serious bodily injury, the threat must be viewed in the context of being made to an eight-year old child, not an adult. Moreover, it was reasonable to infer that defendant made the threat not only to prevent detection of his wrongdoing, but also to facilitate future assaults. U.S. v. Balfany, 965 F.2d 575 (8th Cir. 1992).
8th Circuit affirms that defendant had temporary custody of sexual abuse victim. (215) The 8th Circuit affirmed an enhancement under section 2A3.1 because the sexual abuse victim was in defendant’s custody or control at the time of the abuse. Although defendant presented witnesses who testified that they had not seen defendant alone with the child, the child’s mother testified that defendant was sometimes left alone with the child. At one point the mother invited defendant to abuse the child, but this did not alter the fact that defendant had custody or control of the child. Defendant was a close friend of the child’s mother and eventually became the child’s stepfather. Although the child did not live with them and may have only met defendant a few times, defendant was certainly no stranger to the child. Defendant abused his relationship to the child and hence, the potential for greater and prolonged psychological damage to the child existed. U.S. v. Crane, 965 F.2d 586 (8th Cir. 1992).
8th Circuit rules enhancement for use of force applies to offense of sexual abuse by force. (215) Defendant was convicted of aggravated sexual abuse by force. The district court refused to apply an upward adjustment for use of force under section 2A3.1(b)(1) because it believed the guidelines adequately took into account the force inherent in the offense. The 8th Circuit reversed, ruling that for the adjustment to apply, the government need not show a greater degree of force than necessary to sustain the conviction. U.S. v. Amos, 952 F.2d 992 (8th Cir. 1991), abrogated on other grounds by U.S. v. Allery, 175 F.3d 610 (8th Cir. 1999).
8th Circuit affirms enhancements for engaging in conduct evidencing intent to carry out threat and obstruction of justice. (215) Defendant told the mother of a thirteen-year-old girl that he was returning to Nebraska to take the girl away, and that she had been “bought and paid for.” When he returned to Nebraska, he told friends that the authorities were looking for him and that he wanted to paint his car so it would not be recognized. He asked them to hide him until 3:08 p.m. when school let out. Defendant eventually pled guilty to transmitting in interstate commerce a telephone communication containing a threat to kidnap. While incarcerated, defendant attempted to place numerous collect calls to the girl’s residence. Defendant denied that he intended to kidnap the girl. The 8th Circuit upheld an enhancement under section 2A6.1(a) for engaging in conduct evidencing an intent to carry out the threat, and under section 3C1.1 for obstruction of justice. Judge Heaney, dissenting in part, did not believe defendant’s phone calls after his arrest constituted an attempt to obstruct justice. Since the girl’s family never accepted the calls, the court could only speculate as to why defendant called. U.S. v. Hill, 943 F.2d 873 (8th Cir. 1991).
8th Circuit holds that young age of sexual abuse victim may justify upward departure. (215) Defendant pled guilty to two counts of abusive sexual contact with a seven-year old victim. The court departed upward from 8 to 12 months under § 5K2.2 (physical injury) and 5K2.3 (psychological injury), because the victim was “a very young child of seven years,” and “suffered extensively as a result of the abusive sexual contact.” The 8th Circuit held that departure was not justified under the two sections cited by the district court, but ruled that under the version of the guidelines in effect prior to November 1, 1990, it would be proper to base a departure on the very young age of the victim. Effective November 1, 1990, guideline § 2A3.4 was amended to require a four or six level increase if the victim was under the age of 12. This is an indication that the prior version of the guidelines did not adequately address this aspect of defendant’s crime. Noting that a four-month departure would be justified by the victim’s young age, the court nevertheless remanded the case for the district court to consider a departure based only upon the victim’s age. U.S. v. Morin, 935 F.2d 143 (8th Cir. 1991).
8th Circuit upholds enhancement despite defendant’s alleged belief that sexual assault victim was at least 16. (215) Defendant argued that the district court misapplied guideline § 2A3.1(b)(2)(B), which mandates a two-level increase in offense level if the sexual assault victim was under the age of 16. Defendant contended that since the sexual abuse of a minor statute provides as a defense the defendant’s reasonable belief that the victim was at least 16, by analogy, so must the guidelines. The 8th Circuit rejected this argument. Nothing in § 2A3.1(b)(2)(B) suggests the existence of such an exception. Moreover, this defense applies only to sexual abuse of a minor, while defendant was also charged with aggravated sexual assault. Arcoren v. U.S., 929 F.2d 1235 (8th Cir. 1991).
8th Circuit holds that restraint of victim not is a specific offense characteristic of criminal sexual assault. (215) Guideline § 3A1.3 provides for a two-level increase in offense level if a victim was physically restrained in the course of the offense, except where such restraint is an element of the offense, specifically incorporated into the base offense level, or listed as a specific offense characteristic. Defendant was sentenced for criminal sexual abuse under guideline § 2A3.1. He contended that restraint of the victim is a specific offense characteristic mandating a four-level increase in offense level when force is used. The 8th Circuit rejected this argument. Although “physically restrained” requires the use of force, the use of force does not necessarily entail physical restraint. Arcoren v. U.S., 929 F.2d 1235 (8th Cir. 1991).
8th Circuit upholds sentencing defendant convicted of incest under criminal sexual assault guideline. (215) Defendant pled guilty to incest within Indian country. Because the guidelines do not contain a specific offense guideline for incest, under guideline § 2X5.1 the district court was directed to apply the guideline most analogous to defendant’s offense. The 8th Circuit upheld the district court’s determination that guideline § 2A3.1, criminal sexual abuse, was the most analogous. The district court looked to the underlying circumstances and found that defendant’s offense involved several nonconsensual acts of sexual intercourse. This finding was not clearly erroneous. U.S. v. Clown, 925 F.2d 270 (8th Cir. 1991).
8th Circuit upholds sentence for abusive sexual contact with use of force. (215) Defendant was convicted of 18 U.S.C. § 2241(a)(1), abusive sexual contact, with regard to his 7-year-old step-daughter. The 8th Circuit upheld an enhancement under guideline § 2A3.4(b)(1) because the defendant told the victim he would kill her father if she told anyone. The court held that the enhancement for force or threat was consistent with the guidelines and with the underlying statute. U.S. v. Fire Thunder, 908 F.2d 272 (8th Cir. 1990).
8th Circuit upholds consecutive sentences in sexual abuse case. (215) Defendant was convicted of abusive sexual contact involving two minor victims in violation of 18 U.S.C. § 2241(a)(1). The 8th Circuit upheld consecutive sentences noting that the offenses did not involve the same victim or the same act. They were not lesser included offenses of each other, nor was either offense a sentencing characteristic of the other. Finally, the court noted that the offense levels for these offenses were not determined on the basis of total harm or loss involved, like for example, drug offenses. U.S. v. Fire Thunder, 908 F.2d 272 (8th Cir. 1990).
8th Circuit reverses four level increase in assault case because it was based on misinformation. (215) Defendant was convicted of forcible rape and carnal abuse but acquitted of kidnapping. The court relied on the prosecution’s erroneous summation to give a four level increase for use of force. In addition, the court increased four levels for abduction based puon misinformation by the prosecutor. The 8th Circuit held that the misinformation regarding use of force was not material because there was sufficient evidence to sustain defendant’s conviction under 18 U.S.C. § 2241(a). However, the victim had refuted at trial the statements used to justify the increase for abduction. Because this misinformation was material, the case was remanded to the district court to determine whether the upward departure was justified. The circuit court noted that the court could only consider information that has “sufficient indicia of reliability to support probable accuracy.” (Guidelines § 6A1.3(a)). U.S. v. Eagle Thunder, 893 F.2d 950 (8th Cir. 1990).
9th Circuit, in amended opinion, says sex offender’s prior offense was not Tier III offense. (215) Defendant was convicted of failing to register as a sex offender, in violation of 18 U.S.C. § 2250. The sentence for that offense depends in part on the “tier” in which the defendant’s prior sex offense falls. A “tier III sex offender” is defined to mean a felony sex offender whose prior offense “is comparable to or more severe than…aggravated sexual abuse or sexual abuse.” The conviction that caused defendant to have to register as a sex offender was a violation of Oregon Revised Stat. § 263.425, which makes it a crime to engage in sexual intercourse when the victim does not consent. Defendant pleaded guilty to having sex with a girl who could not consent because she was 15 years of age and intoxicated. The Ninth Circuit initially held that the district court properly characterized defendant’s prior offense as a Tier III sex offense because the offense was similar to sexual abuse under federal law. In an amended opinion, the court held that the Oregon statute was categorically overbroad and cannot serve as a sentencing predicate under the federal provision defining a Tier III offense. U.S. v. Cabrera-Gutierrez, __ F.3d __ (9th Cir. March 17, 2014) No.12-30223.
9th Circuit reverses increase for unconvicted acts that were not relevant conduct. (215) The guideline for mailing a threatening communication, § 2A6.1(b)(4), requires a four-level enhancement in offense level if the defendant’s conduct resulted in substantial government expenditures. The district court imposed this enhancement based on conduct for which defendant was not convicted. Judge Clifton, joined by Judges Reinhardt and N.R. Smith, held that the district court erred because defendant’s acts were not relevant conduct under guideline § 1B1.3(a)(2) which provides that other acts may be considered part of the same “course of conduct or common scheme or plan” only if the other acts must be “grouped” with the conviction offense under guideline § 3D1.2(d). Here, the acts on which the enhancement was based would not have been grouped with the counts on which defendant was convicted, because they involved different victims and different acts. U.S. v. Keyser, 704 F.3d 631 (9th Cir. 2012).
9th Circuit affirms increase where sexual abuse victim was in defendant’s “care and control.” (215) Defendant sexually abused his wife’s seven-year-old niece, after the girl had been left in the care of defendant and his wife by the girl’s mother for a few days. At sentencing, the district court found that defendant was equally responsible with his wife for the girl’s care, and therefore increased the sentence by two levels under § 2A3.1(b)(3) because the girl was in defendant’s “custody, care, and supervisory control.” On appeal, the Ninth Circuit affirmed, noting that defendant shared caretaking responsibilities with his wife for the other two children in the house, and prepared food for all of them. Thus the girl was under his care and supervisory control. U.S. v. Swank, 676 F.3d 919 (9th Cir. 2012).
9th Circuit upholds within-Guidelines sentence for engaging in sex act without consent. (215) Defendant was convicted of knowingly engaging in a sexual act with a person who was physically incapable of declining participation, in violation of 18 U.S.C. § 2242(2). The district court imposed a within-guidelines sentence of 130 months. It reasoned that defendant committed a serious crime, had caused serious harm to the victim, and that his past criminal history and attitude showed that he posed a danger to the community. On appeal, the Ninth Circuit held that the sentence was substantively reasonable. U.S. v. Fasthorse, 639 F.3d 1182 (9th Cir. 2011).
9th Circuit upholds sentence for sex trafficking despite lack of jury findings. (215) In U.S. v. Todd, 584 F.3d 788 (9th Cir. 2009), the defendant was convicted of violating 18 U.S.C. § 1591 by recruiting women to engage in commercial sex acts knowing that force, fraud, or coercion would be used to cause the person to engage in the sex act. In its initial decision, the Ninth Circuit found that the statute required the jury to find that defendant’s offense had been effected by fraud, force, or coercion to justify a sentence above 15 years. Because, the court found, the jury had not made the requisite finding, the court concluded that the district court erred in imposing a 26-year sentence. In an amended opinion issued on November 15, 2010, the Ninth Circuit deleted the portion of its opinion finding that jury findings were necessary to support a sentence above 15 years and simply found that the evidence was sufficient to support defendant’s sentence. U.S. v. Todd, 627 F.3d 329 (9th Cir. 2010).
9th Circuit, en banc, relies on uncertified docket sheet to find prior offense involved sexual abuse. (215) A defendant convicted of sexual abuse of a minor, in violation of 18 U.S.C. § 2252, is subject to an enhanced sentence if he has a prior state conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.” Defendant had a prior conviction for child abuse in Maryland under a statute that defined “child abuse” to include both sexual abuse and physical abuse. Because the government conceded that the Maryland statute reached conduct that did not relate to sexual abuse, the Ninth Circuit, sitting en banc, found that it did not qualify as a predicate offense under § 2252A. The court held, however, that the district court properly relied on the uncertified docket sheet from the Maryland court in which defendant was convicted and sentenced to find beyond a reasonable doubt that defendant’s prior conviction related to sexual abuse. U.S. v. Strickland, 601 F.3d 963 (9th Cir. 2010).
9th Circuit says amendment to sexual enticement of minor guideline is retroactive. (215) Defendant had a series of on-line sexual conversations with a person whom he thought to be a minor female. During the conversations, defendant arranged to meet the “minor” to have sex. In fact, the “minor” was an FBI agent masquerading as a minor, and defendant was arrested when he arrived for the sexual encounter. Based on that conduct, defendant was convicted of enticing a minor to engage in sexual activity, in violation of 18 U.S.C. § 2242(b). At the time of defendant’s conduct, § 2G1.3(b)(2) (B) required a two-level enhancement if the defendant “otherwise unduly influenced a minor to engage in prohibited sexual conduct.” While defendant’s appeal was pending, the Sentencing Commission amended § 2G1.3(b)(2)(B) to state that it does not apply when the “minor” is actually an undercover officer. The Ninth Circuit held that this amendment should apply retroactively to defendant’s sentence. U.S. v. Christensen, 598 F.3d 1201 (9th Cir. 2010).
9th Circuit upholds life sentence for sexual exploitation of minor after prior conviction. (215) Defendant was convicted of sexual exploitation of a minor, in violation of 18 U.S.C. § 2251(a). That statute provides for a 25 to 50 year sentence if the defendant has a prior state conviction for specified sex offenses, including offenses that do not involve minors. Under 18 U.S.C. § 3559(e)(1), a person convicted of a “Federal sex offense” shall be sentenced to life imprisonment if he has a prior sex conviction in which the victim was a minor. Section 3559 defines the term “Federal sex offense” to include offenses under § 2251. Defendant had a prior conviction under Montana law for knowingly subjecting a minor under the age of 14 to sexual contact without consent. Relying on § 3559(e)(1), the district court sentenced him to life in prison. The Ninth Circuit held that the district court properly relied on Section 3559(e)(1) to sentence defendant to life in prison. U.S. v. Gallenardo, 579 F.3d 1076 (9th Cir. 2009).
9th Circuit says “categorical approach” not required to determine if sex offender must register. (215) The Sex Offender Registration and Notification Act, 42 U.S.C. § 16912 (SORNA), requires that “sex offenders” must register with a state sex offender registry. A person is a “sex offender” if he or she committed a “sex offense,” a term defined to include, among other things, an offense involving “conduct that by its nature is a sex offense against a minor.” A sex offender who fails to register may be imprisoned up to ten years. Defendant pleaded guilty to importing an alien into the U.S. for the purpose of prostitution, in violation of 8 U.S.C. § 1328. In her plea agreement, defendant admitted that she induced a minor to come to Guam with the intent to have the minor engage in prostitution. The Ninth Circuit held that the determination whether an offense is a “sex offense” does not require a categorical approach; instead, a court may look to the facts of the defendant’s offense to determine whether a given statutory violation is a “sex offense.” Looking at the facts to which defendant admitted, the court found that defendant committed a “sex offense” and was subject to the registration requirement. U.S. v. Mi Kyung Byun, 539 F.3d 982 (9th Cir. 2008).
9th Circuit says enhancement for endangering aircraft does not require actual harm to aircraft. (215) Defendant was convicted of interference with a flight crew, in violation of 49 U.S.C. § 46504, based on his behavior on a flight. During the flight, defendant claimed to be having a heart attack, but refused to sit down and demanded that the plane land. Defendant became upset, said, “I have a bomb” and began opening overhead bins and pulling out bags. At that point, the cabin erupted in chaos and several passengers subdued defendant. At some point, defendant also tried to get into an emergency exit row, causing passengers to fear that he would try to open the exit door in flight. At sentencing, the court assessed a nine-point offense-level enhancement under § 2A5.2(a)(2) because defendant’s offense recklessly endangered the safety of the aircraft. The Ninth Circuit upheld the enhancement, finding that conduct that results in diversion of the aircraft or instills fear in other passengers and the crew may trigger the enhancement and that defendant’s conduct fell within the enhancement. U.S. v. Gonzalez, 492 F.3d 1031 (9th Cir. 2007).
9th Circuit requires clear-and-convincing proof for enhancement for endangering aircraft. (215) The guideline for the offense of interfering with a flight crew, § 2A5.2, sets a base offense level of nine and requires a nine-level enhancement if the offense recklessly endangered the safety of the aircraft. The Ninth Circuit held that facts supporting the application of the nine-level enhancement must be proved by clear and convincing evidence because the enhancement more than doubles the sentence that the defendant otherwise would have received. The court held, however, that failure to apply the clear-and-convincing standard was not plain error. U.S. v. Gonzalez, 492 F.3d 1031 (9th Cir. 2007).
9th Circuit upholds restitution to pay for schooling for foreign child sex abuse victims. (215) Defendant traveled to a foreign country to have sex with minors. At his sentencing for offenses arising out of this conduct, the district court ordered him to pay restitution to cover the cost of schooling and vocational training for the victims of his offenses, including costs related to assistance from a social worker. Defendant objected that his conduct was not the cause of the victims’ need for schooling or training. The Ninth Circuit held that the district court acted within its discretion in calculating the restitution award. The court noted that as a result of defendant’s conduct, many of the victims stopped attending school or started cutting classes and that the embarrassment suffered by the children in their community required special educational arrangements. U.S. v. Doe, 488 F.3d 1154 (9th Cir. 2007).
9th Circuit upholds substantial increase in sentence for false terrorism threat. (215) Defendant called federal authorities and falsely told them that a terrorist group was planning an attack on a shopping mall in Los Angeles. Law enforcement agencies took the threat seriously, and substantial resources were directed at investigating the threat and preventing the attack. Press coverage of the threat resulted in a substantial loss of business to the shopping mall. Defendant was convicted of making a false threat, in violation of 18 U.S.C. § 844(e). Defendant’s sentencing range was 12-18 months, but the district court imposed a 60-month sentence because of the seriousness of defendant’s offense, the importance of deterring others, the harm caused, the disruption of government functions, and defendant’s history of petty offenses. The Ninth Circuit held that the 60-month sentence was reasonable. U.S. v. Mohamed, 459 F.3d 979 (9th Cir. 2006).
9th Circuit upholds use of cross-reference for sex crimes based on dismissed relevant conduct for which federal jurisdiction lacking. (215) Defendant pleaded guilty to Class C and Class D felonies involving child pornography and sexual abuse of a minor. In return for his plea, the government dismissed Class A felonies involving sexual abuse of a minor. At sentencing, the court applied the cross-reference in § 2G2.2(c)(1) on the basis of the dismissed conduct, including conduct that the federal government may have lacked jurisdiction to prosecute. As a result, defendant was sentenced under the guideline for the more serious felonies. The Ninth Circuit held that the court properly applied the cross-reference based on dismissed conduct, including conduct over which the district court lacked jurisdiction. U.S. v. Speelman, 431 F.3d 1226 (9th Cir. 2005).
9th Circuit finds no improper double counting in use of enhancement based on age of victim in sex offense. (215) The guideline for some sex offenses, § 2A3.1(b) (2)(A), provides for a four-level increase in offense level if the victim had not attained the age of 12. Defendant argued that application of that guideline to his conviction for aggravated sexual abuse of a minor under 12, in violation of 18 U.S.C. § 2241(c), constituted impermissible double counting. Because § 2A3.1 applies to offenses other than those involving minors under the age of 12, the Ninth Circuit held that application of § 2A3.1(b)(2)(A) to defendant’s offense was not impermissible double counting. U.S. v. Speelman, 431 F.3d 1226 (9th Cir. 2005).
9th Circuit finds no Booker violation where jury must have found fact that supported enhancement. (215) Defendant was convicted of violating 18 U.S.C. § 2261(a)(2), which makes it a crime to force an intimate partner to travel in interstate commerce and in the course of that conduct commit a crime of violence on the partner. The indictment charged that while forcing his companion to travel in interstate commerce, he sexually assaulted her. Although the jury was not required to find that defendant sexually assaulted the woman, it was required to find that defendant committed a “crime of violence,” and the sexual assault was the only crime of violence on which the jury heard testimony. Defendant’s sentence under the Sentencing Guidelines was enhanced based on his commission of the sexual assault. The Ninth Circuit held that the jury must have found that defendant committed a sexual assault and therefore that his Sixth Amendment rights under U.S. v. Booker, 543 U.S. 220 (2005), had not been violated by his enhanced sentence. U.S. v. Dowd, 417 F.3d 1080 (9th Cir. 2005).
9th Circuit upholds finding that defendant acted recklessly in interfering with flight crew. (215) During an airline flight, defendant went into a lavatory and lit a cigarette. When flight attendants responded to the smoke alarm, defendant threatened to sue the airline, then stated that he or his people would “kill all Americans.” Defendant was convicted of interfering with a flight crew by intimidation in violation of 49 U.S.C. § 46504. The guideline for that offense, § 2A5.2, requires a higher offense level for defendants who acted recklessly. The district court found that defendant acted recklessly, and the Ninth Circuit agreed that smoking on the plane, obstreperous behavior, and threats were a gross deviation from a standard of ordinary care. U.S. v. Naghani, 361 F.3d 1255 (9th Cir. 2004).
9th Circuit holds that conspiracy to take multiple hostages should be treated as multiple offenses for grouping. (215) Defendant was convicted of conspiracy to commit hostage taking, in violation of 18 U.S.C. § 1203. The evidence at trial showed that he took 23 illegal aliens hostage and held them for ransom. Guideline 1B1.2 provides that a conspiracy to commit multiple offenses should be treated as a separate count of conspiracy for each offense that the defendant conspired to commit. The grouping rules, § 3D1.2, contain a similar provision. The Ninth Circuit held that a conspiracy to take several hostages should be treated as separate offenses committed against separate victims for purposes of §§ 1B1.2 and 3D1.2. U.S. v. Melchor-Zaragoza, 351 F.3d 925 (9th Cir. 2003).
9th Circuit holds that ransom enhancement applies to all demands for money. (215) The kidnapping guideline, § 2A4.1(b)(1) provides for a six-level enhancement if defendants made a ransom demand during the kidnapping. Defendants smuggled illegal aliens across the border for a fee, then held the aliens against their will until the aliens’ families paid the fee. Based on this conduct, they were convicted of hostage taking, in violation of 18 U.S.C. § 1203. The district court declined to impose the ransom enhancement because defendants had demanded only the agreed fee and not an additional payment. On the government’s appeal, the Ninth Circuit held that the ransom enhancement applies anytime a defendant demands money from a third party for release of a victim, regardless of whether that money is already owed to the defendant. U.S. v. Sierra-Velasquez, 310 F.3d 1217 (9th Cir. 2002).
9th Circuit applies cross-reference to criminal sexual abuse for kidnapping involving sexual abuse. (215) Defendant committed criminal sexual abuse during a kidnapping. When a defendant commits another offense during a kidnapping, § 2A4.1(b)(7)(A) requires the sentencing court to use the offense level for the other offense if that guideline contains an adjustment for kidnapping and it would result in a higher offense level than the kidnapping guideline. The guideline for criminal sexual abuse, § 2A3.1, contains a specific enhancement for instances of abuse where the victim was abducted. Applying that guideline, including the abduction enhancement and an enhancement for committing the sexual assault by force or threat, resulted in an offense level higher than that yielded by the kidnapping guideline. The Ninth Circuit held that the district court properly used the criminal sexual abuse guideline instead of the kidnapping guideline, even though the kidnapping guideline also contains a separate provision, § 2A4.1(b)(5), for kidnapping involving the sexual exploitation of the victim. The enhanced offense level under the criminal sexual abuse guideline was higher than the offense level produced by the kidnapping guideline. U.S. v. Michaud, 268 F.3d 728 (9th Cir. 2001).
9th Circuit finds defendant used “physical force” to commit sexual abuse of a minor. (215) The Ninth Circuit affirmed using the cross-reference in USSG § 3A2.2(c)(1) to apply § 2A3.1 because the district judge concluded that the defendant used force during his sexual abuse of the victim. The court noted that defendant was six feet tall and weighed over 200 pounds. Therefore it was a “reasonable conclusion” that when he moved his 12 year-old victim’s head up and down on his penis, grabbed her hand above her head, and “got on top of her,” he used “physical force … sufficient to overcome, restrain or injure” her. U.S. v. Archdale, 229 F.3d 861 (9th Cir. 2000).
9th Circuit counts sex offenses separately, refusing to group them. (215) Defendant argued that the district court erred in imposing consecutive sentences for his convictions of sexual abuse of a minor under 18 U.S.C. § 2243(a) and abusive sexual contact with a minor under § 2244(a)(3) because both involved the same victim and substantially the same harm. Thus, he claimed they should have been grouped together and a single sentence imposed. The Ninth Circuit rejected the argument, noting that guideline § 3D1.2(d) specifically excludes offenses in Chapter 2, Part A of the guidelines, including defendant’s convictions. Thus, the grouping sought by the defendant was not permitted by the guidelines. U.S. v. Archdale, 229 F.3d 861 (9th Cir. 2000).
9th Circuit says cross-reference and increase for use of force in sex case was not improper double counting. (215) The district court applied the cross-reference in § 2A3.1, because defendant’s offense involved “criminal sexual abuse as defined in 18 U.S.C. § 2241 or § 2242.” In addition, his sentence was increased by four levels under § 2A3.1(b)(1) because he used force against the victim. The Ninth Circuit found no improper double counting because the use of force is not a defined element of the crime of sexual abuse under § 2242, and it is therefore possible to be sentenced under § 2A3.1 for an offense not involving the use of force. Accordingly, “such behavior may be used to enhance the offense level, for in this situation, the guideline’s base offense level would not necessarily have been set to capture the full extent of the wrongfulness of such behavior.” U.S. v. Archdale, 229 F.3d 861 (9th Cir. 2000).
9th Circuit requires “clear and convincing” evidence for 9-level kidnapping increase. (215) Defendant was convicted of being an undocumented immigrant in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5). At sentencing, the government argued that defendant committed the offense during an uncharged kidnapping. The district court applied the preponderance of the evidence standard and increased defendant’s sentence by 9 levels for the uncharged kidnapping. On appeal, the Ninth Circuit reversed, relying on its recent decision in U.S. v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999), which held that “clear and convincing evidence” was required before the defendant’s sentence could be increased by seven levels, based on violent activity for which he was acquitted. In Hopper, the 7-level adjustment increased the sentencing range from 24-30 months to 63-78 months. In the present case, the 9-level increase for the uncharged kidnapping increased the sentencing range from 21-27 months to 57-71 months, and the district court sentenced him to 57 months. The district court’s failure to apply the clear and convincing evidence standard required reversal. U.S. v. Mezas de Jesus, 217 F.3d 638 (9th Cir. 2000).
9th Circuit upholds using cross-reference to guideline for sexual abuse for “date rape.” (215) Defendant drove a fellow employee to dinner at McDonalds, and on the way back they both were drinking. He parked, they kissed, she passed out, and he raped her despite her protestations in a semi-conscious state. He pleaded guilty to abusive sexual contact in violation of 18 U.S.C. §§ 1153(a) and 2244(a)(2) and was sentenced to 36 months in custody. Defendant argued that he should have been sentenced under the guideline for abusive sexual contact, § 2A3.4. Instead the district court applied the cross-reference to the guideline for aggravated sexual abuse, §2A3.1, because the offense involved “criminal sexual abuse (as defined in 18 U.S.C. §§ 2241 or 2242).” On appeal, the Ninth Circuit affirmed, holding that the cross-reference was expressly designed to require that courts consider the more serious conduct. Defendant retained the benefit of his plea bargain because this sentence was limited to the statutory maximum applicable to the offense of conviction, i.e., three years. U.S. v. Morgan, 164 F.3d 1235 (9th Cir. 1999).
9th Circuit upholds ban on sexually oriented materials as a condition of supervised release. (215) Defendant was convicted of sexually abusing a six-year old girl, in violation of 18 U.S.C. §§ 1153, 2244(a)(1) and 2246. At sentencing, the district court imposed the following conditions of supervised release: (1) that defendant not have contact with children under the age of 18 unless approved by his probation officers; (2) that he not loiter within 100 feet of schoolyards, parks, playgrounds, arcades or other places primarily used by children under the age of 18; and (3) that he not possess any sexually stimulating or sexually oriented material deemed inappropriate by his probation officer and/or treatment staff, or patronize any place where such material or entertainment is available. The Ninth Circuit rejected defendant’s argument that the third condition violated his First Amendment rights, finding it was sufficiently related to the goal of “protect[ing] the public from further crimes of the defendant.” 18 U.S.C. § 3553(a)(2) (C). The court also upheld the condition that defendant not have unapproved contact with children or loiter in places primarily used by children. U.S. v. Bee, 162 F.3d 1232 (9th Cir. 1998).
9th Circuit finds obstruction where defendant caused two-day delay in locating kidnapped child. (215) Defendant and her brother lured their eleven-year-old niece from her foster parent’s home, drove her to the Las Vegas airport and put her on a plane to Florida under a false name. When defendant was questioned by the FBI, she adamantly denied any knowledge of the child’s disappearance and falsely stated that her brother was not involved in the disappearance. In addition, she suggested that the girl’s biological father had kidnapped her. On the same day, defendant told her relatives in Florida to move the girl to a friend’s home to evade the police. After repeated questioning, defendant eventually helped the police to find the girl two days after she was kidnapped. Defendant pled guilty to conspiracy to commit an international parental kidnapping of a minor, and her sentence was increased by two levels for obstruction of justice under § 3C1.1. On appeal, the Ninth Circuit affirmed, holding that defendant’s purposeful conduct “created an actual impediment or obstruction to the government’s efforts to locate” the girl. Although a two-day delay in an investigation may not always warrant an obstruction enhancement, “the delay in this case placed the well being of a child at risk.” U.S. v. McNally, 159 F.3d 1215 (9th Cir. 1998).
9th Circuit uses robbery guideline in kidnapping case without reduction for releasing victims. (215) Defendants kidnapped a sixteen-year-old boy and his six-year-old niece and then committed robbery by taking the boy’s pickup truck and driving with the children to Utah where they were released within 24 hours. The kidnapping guideline, 2A4.1(b)(7) says that if the victim was kidnapped in connection with another offense, the guideline for the other offense should be applied if it includes an adjustment for kidnapping. Therefore the district court applied the robbery guideline, because it includes an adjustment for kidnapping in 2B3.1(b)(4)(A). This also resulted in a higher base offense level, and the court refused to reduce the offense level by one level for release of the victims within 24 hours, because that reduction applies only to the kidnapping guideline. On appeal, the Ninth Circuit affirmed, holding that under § 1B1.5, a cross-reference refers to the entire offense guideline, and does not permit the court to return to the original guideline for additional adjustments. U.S. v. Ortega-Reyes, 105 F.3d 1260 (9th Cir. 1997).
9th Circuit applies attempted sexual abuse guideline for travel to engage in sex act with juvenile. (215) Responding to a “sting operation” defendant traveled from Spokane, Washington to Portland, Oregon to meet with a federal agent posing as a “mother” who wanted someone to teach her children sexual matters. Defendant described the various sexual acts he intended to engage in with the purported three minor children. This discussion lasted forty-five minutes and was video and audio taped. Defendant pled guilty to three counts of traveling with intent to engage in a sexual act with a juvenile, in violation of 18 U.S.C. § 2434(b). The district court found that guideline § 2A3.1, Attempt to Commit Criminal Sexual Abuse, was the most analogous guideline. Defendant argued that the court should have applied § 2A3.2 which applies where the victims are between 12 and 16 years old because one of the fictional victims was represented to be 12 years old. The Ninth Circuit affirmed the use of § 2A3.1, noting that the district court took into account the absence of real victims by declining to add specific offense characteristics. U.S. v. Butler, 92 F.3d 960 (9th Cir. 1996).
9th Circuit refuses to “group” attempted sexual abuse counts despite fictional “victims.” (215) Defendant was caught in a “sting” operation when he attempted to meet with three fictional juveniles to engage in sexual abuse. He argued that the three counts of conviction should have been “grouped” under § 3D1.2 because there were no real victims, so the only victim was society. The Ninth Circuit rejected the argument, noting that sexual abuse offenses are specifically excluded from the grouping provisions of § 3D1.2(d). In addition, if the victims had been available, they, rather than society in general would have been harmed. Therefore this was a crime against specific victims. Moreover these were crimes of violence and due to their dangerous nature, attempts are treated the same as completed criminal acts. Therefore grouping was not appropriate. U.S. v. Butler, 92 F.3d 960 (9th Cir. 1996).
9th Circuit upholds revocation of supervised release for child abuse. (215) A condition of defendant’s supervised release was that he remain law abiding. Under the supervised release statute, 18 U.S.C. § 3583(e)(3) the court need only find a violation by a “preponderance of the evidence.” Here, the court found that defendant had touched two minor girls in a manner that would constitute a crime under 18 U.S.C. § 2246. A preponderance of the evidence supported the district court’s conclusion and therefore the revocation of supervised release was affirmed. U.S. v. Lomayaoma, 86 F.3d 142 (9th Cir. 1996).
9th Circuit reverses where sentence was analogized to count prosecutor agreed not to charge. (215) In exchange for defendant’s guilty plea to sexually abusing a minor, the government dismissed four other counts and agreed not to seek a superseding indictment charging aggravated sexual abuse. Although the Ninth Circuit generally forbids considering dismissed counts in sentencing, U.S. v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990), defendant agreed to waive that protection as to the conduct in the dismissed counts of sexual abuse. At sentencing, the district court analogized this conduct to aggravated sexual abuse, and the Ninth Circuit reversed, holding that this deprived defendant of the benefit of his bargain. On remand, the district court again based its sentence in part on an analogy to aggravated sexual abuse, and the Ninth Circuit reversed again. However, the court upheld several other grounds for departure, on which the district court could rely on remand. U.S. v. Chatlin, 51 F.3d 869 (9th Cir. 1995).
9th Circuit permits departure in sexual abuse case for extreme repetitive conduct and psychological injury. (215) Defendant pled guilty to one count of sexual abuse of a 13-year-old girl, and the court found by a preponderance that he had also repeatedly sexually abused his 11-year-old stepdaughter. The Ninth Circuit held that the guidelines permitted departures in this case based on “extreme conduct” under § 5K2.8, “extreme psychological injury” under § 5K2.3, and “repetitive conduct,” which has been recognized as a basis for departure under § 5K2.0. The defendant’s conduct and its effect on the victims was more extreme than is “normal” is sexual abuse cases. However, the extent of the departure was based in part on an analogy to aggravated sexual abuse. This deprived the defendant of the benefit of his plea bargain, and required resentencing. U.S. v. Chatlin, 51 F.3d 869 (9th Cir. 1995).
9th Circuit finds threats to NAACP and Jews were not “single instance” with little deliberation. (215) Defendant wrote two “letters” consisting almost entirely of racial epithets and derogatory language. One was mailed to the NAACP and contained racial epithets, and the was mailed to a Jewish Congregation and contained anti-Semitic epithets. Defendant admitted writing both letters, explaining that he had written and mailed them early one morning while drunk. Defendant pled guilty to two counts of mailing a threatening communication, in violation of 18 U.S.C. § 876. At sentencing, the district court refused to find that defendant’s conduct consisted of a “single instance evidencing little or no deliberation,” which would have reduced the offense level by four levels under § 2A6.1(b)(2). On appeal, the 9th Circuit affirmed, agreeing that the letters were sufficiently different that they did not constitute a single instance. Judge Reinhardt dissented at length. U.S. v. Sanders, 41 F.3d 480 (9th Cir. 1994).
9th Circuit finds conduct showed intent to carry out threat to kill the President. (215) The guidelines require a 6 level enhancement for threatening the President if the defendant “engaged in any conduct evidencing an intent to carry out such threat.” U.S.S.G. §2A6.1(b)(1) The 9th Circuit rejected U.S. v. Hornick, 942 F.2d 105, 108 (2nd Cir. 1991) which held that the “conduct needed to show an intent to carry out a threat must occur either contemporaneously with, or after the threat.” In this case, defendant’s theft of a gun and trip to Washington D.C. to kill President Bush before he made the threat were “too relevant to ignore.” Moreover, after arrest, defendant stated he would “kill President Bush some other time.” He sent post cards and letters to friends and relatives stating he wanted to kill President Bush, and was armed with two large knives when arrested. U.S. v. Hines, 26 F.3d 1469 (9th Cir. 1994).
9th Circuit upholds six level upward departure where President was victim of threats. (215) Under U.S.S.G. §3A1.2(a) a court may apply a three level enhancement if the victim of the threat is a law enforcement or corrections officer. The commentary states that certain high level officials, e.g., the President and Vice-President, are not expressly covered by this section and therefore the court should depart upward at least three levels in such cases. Here, the district court departed upward by six levels. The 9th Circuit found this was not unreasonable in light of the court’s detailed explanation for the departure. U.S. v. Hines, 26 F.3d 1469 (9th Cir. 1994).
9th Circuit upholds official victim increase over double counting objection. (215) Defendant was convicted of threatening federal officials in violation of 18 U.S.C. § 115(a)(1)(B). The district court used guideline section 2A6.1 (threatening communications) and increased the offense level under § 3A1.2 because the offense involved an official victim. The 9th Circuit affirmed, finding that the official victim status was not incorporated in the offense level and is only expressly excluded if §2A2.4 is the guideline used to sentence the defendant. No impermissible double counting occurred. In determining double counting, the proper comparison is between the applicable guideline provisions, not the guidelines and the criminal code. U.S. v. Williams, 14 F.3d 30 (9th Cir. 1994).
9th Circuit sustains upward departure under 1991 guidelines where President was the victim. (215) For almost a year, defendant waged a “campaign of harassment and intimidation” against several interracially married couples. One of the counts to which he pled guilty involved sending a letter threatening the President which he signed in the name of one of the victims. The district court departed upward in part because the President was the victim. The 9th Circuit affirmed this basis for departure because the applicable guideline, §2A6.1, does not specify any victims at all and the 1991 version of the official victim guideline, §3A1.2, did not cover the President as a victim. The court noted the current version of §3A1.2 covers the President and also suggest an upward departure if the President is the victim. The departure here was less than the increase defendant could have received under the current guidelines. U.S. v. McAninch, 994 F.2d 1380 (9th Cir. 1993)
9th Circuit finds sufficient evidence that defendant used force in committing sexual abuse. (215) Guideline section 2A3.4(a)(1) provides for an offense level of 16 if the sexual abuse was committed by the means set forth in 18 U.S.C. section 2241(a) or (b). This includes the use of force. Relying on U.S. v. Fire Thunder, 908 F.2d 272, 274 (8th Cir. 1990), and U.S. v. Lauck, 905 F.2d 15, 18 (2d Cir. 1990), the 9th Circuit held that the force requirement is met when the “sexual contact resulted from a restraint upon the other person that was sufficient that the other person could not escape the sexual contact.” Here, the evidence was sufficient that the 63-year old defendant used force in sexually abusing his 12-year-old victim. U.S. v. Fulton, 987 F.2d 631 (9th Cir. 1993).
9th Circuit finds contemporaneous aggravated assaults should be grouped together. (215) Defendant was convicted of two counts of aggravated sexual abuse after twice raping his victim. Defendant first dragged the victim out of his vehicle and raped her on the ground. Immediately thereafter he made her move to the hood of the car where he raped her again. The district court found the two counts were separate and not “grouped” for sentencing purposes. The 9th Circuit reversed, finding the commentary to section 3D1.2(b) focuses on the timing of assaultive conduct and requires grouping of multiple but contemporaneous assaultive offenses. The two rapes were contemporaneous. The majority also found “good reason” to amend the guidelines to avoid giving defendants a “free rape.” The concurring judge objected to placing too much emphasis on elapsed time and found the proper inquiry is whether the two counts were connected by a common criminal objective. Here there was a single course of conduct with a common criminal objective and the counts should have been grouped. U.S. v. Sneezer, 983 F.2d 920 (9th Cir. 1992).
9th Circuit upholds enhancement for sexually abusing eight-year-old victim in defendant’s custody. (215) U.S.S.G. section 2A3.1(b)(3)(1990) provides a two level enhancement “if the victim is in the custody, care, or supervisory control of the defendant.” When the victim trusts or is entrusted to the defendant, this enhancement is appropriate. The defendant was convicted for two counts of sexually abusing the eight year old daughter of his common-law wife. The defendant was present at the victim’s birth, they lived together and he had helped raise her. At the time of the second incident no one else was present at their home. The 9th Circuit held that under these facts the “victim was in the custody, care, or supervisory control of the defendant” and the enhancement was proper. U.S. v. Castro-Romero, 964 F.2d 942 (9th Cir. 1992).
9th Circuit upholds enhancement for bodily injury in sexual abuse case. (215) Defendant was convicted of aggravated sexual abuse under 18 U.S.C. section 2241(c) for repeated sexual assaults on a nine year old girl who he infected with genital Herpes as a result of the assaults. A district court found that the victim had sustained permanent or life threatening bodily injury within the meaning of section 2A3.1(b)(4)(A) and therefore increased the offense level by four levels. On appeal, the 9th Circuit affirmed, noting that Herpes is a permanent sexually transmitted disease which “has obvious and detrimental impacts on a person’s lifestyle and relationships.” Moreover, as the district court found, “the recurring nature of this particular disease” would be a “constant and recurring reminder of the abusive act itself.” U.S. v. James, 957 F.2d. 679 (9th Cir. 1992).
9th Circuit affirms using offense level in section 2A6.1 for defendant who made threatening anti-Semitic phone calls. (215) Defendant and his co-conspirators made threatening, anti-Semitic telephone calls to a Jewish businessman, and pled guilty to conspiring to interfere with federally protected activities. Defendant was sentenced under section 2H1.3(a), which carries an offense level of 2 plus the offense level applicable to the underlying offense. The 9th Circuit held that the underlying offense, making threatening phone calls, was covered by guideline section 2A6.1. That section applies to violations of 18 U.S.C. section 875(c), making threatening phone calls in interstate commerce. The court said that although defendant’s phone calls were not made in interstate commerce, once jurisdiction is established over the offense of conviction, such jurisdictional requirements are irrelevant in computing a sentence. Thus, 18 U.S.C. section 875(c) constituted an underlying offense and section 2A6.1 was the appropriate guideline section to apply. U.S. v. Byrd, 954 F.2d 586 (9th Cir. 1992).
10th Circuit holds increases for use of force and physical restraint were improper double counting. (215) Defendants participated in a brutal beating and sexual assault that came at the end of a bout of heavy drinking. They both pled guilty to a single charge of aggravated sexual abuse, in violation of 18 U.S.C. § 2241(a)(1). They argued that the district court erred by applying both a § 2A3.1(b)(1) enhancement for the use of force, and a § 3A1.3 enhancement for the restraint of the victim. The Tenth Circuit agreed. Under circuit precedent, it was impossible to commit the offense of aggravated sexual abuse under § 2241(a)(1) without also applying force that, in this circuit, constituted physical restraint of the victim. U.S. v. Joe, 696 F.3d 1066 (10th Cir. 2012).
10th Circuit bases enhancement on number of threatening calls, not number of threats. (215) Defendant was convicted of two counts of using a cell phone to convey false information about alleged attempts to blow up certain buildings. The district court applied a § 2A6.1(b)(2) enhancement for an offense involving more than two threats. Defendant argued that his calls to 911 made only one or two distinct threats. However, under § 2A5.1(b)(2) the increase is based on the number of threatening communications. Here, the jury found defendant responsible for three threatening 911 calls. Therefore, the Tenth Circuit held that defendant qualified for the enhancement. U.S. v. Parker, 551 F.3d 1167 (10th Cir. 2008).
10th Circuit approves upward variance for mentally ill defendant who presented danger to public. (215) Defendant was a mentally-ill inmate convicted of threatening to harm the President, threatening to kill a juror, and falsely telling the judge that another inmate intended to kill his sentencing judge. Relying on 18 U.S.C. §3553(a)(2)(C), the need to protect the public from defendant’s further crimes, the judge sentenced defendant to the statutory maximum on all counts, 240 months. His guideline range had been 84-105 months. The Tenth Circuit upheld the sentence as reasonable. The district court more than adequately explained its conclusion that defendant presented a risk to the public, citing a plethora of bizarre and violent events dating back to defendant’s early youth. Because defendant was only 21 at the time of sentencing, his behavior as a juvenile was quite relevant. The extent of the variance, while unusually large, was not unreasonable. Nonetheless, the court expressed concern about using upward variances to increase incarceration time for those whose risk to the public is caused by mental health problems. U.S. v. Pinson, 542 F.3d 822 (10th Cir. 2008).
10th Circuit holds that 16-year old victim was minor for § 4B1.5(b) enhancement purposes. (215) Defendant was convicted of five counts of aggravated sexual abuse against his 16-year old niece, in violation of 18 U.S.C. § 2241(a). Section 4B1.5(b) requires a five-level enhancement if a defendant has perpetrated a “covered sex crime” and defendant engaged in a pattern of activity involving prohibited sexual conduct. Defendant argued that he did not commit a covered sex crime because his offense of conviction was not perpetrated against a person under the age of 16. Although Note 1 to § 4B1.5(b) defines a “minor” as “an individual who has not … attained the age of 18 years” defendant asked the court to go beyond the text of the guideline, pointing to certain crimes which define a minor as between 12 and 16. The Tenth Circuit found no error. The guideline provides a conclusive definition of “minor.” U.S. v. Cerno, 529 F.3d 926 (10th Cir. 2008).
10th Circuit holds that court erred by refusing to consider amount of force defendant used in assault. (215) Defendant was convicted of five counts of aggravated sexual abuse against his 16-year old niece, in violation of 18 U.S.C. § 2241(a). At sentencing, the district court refused to consider the degree of force defendant used to perpetrate the assaults, stating that it was “not permitted to use a comparative analysis to say, well, this is not as great a force as many other sex abuse cases include.” The Tenth Circuit held that the court committed procedural error by refusing as a matter of law to consider the relative amount of force defendant used to commit the assaults. While the court’s statement correctly reflected what the statute of conviction requires, sentencing law does not foreclose a court’s consideration of the specific nature and circumstances of the offense conduct. In fact, § 3553(a) mandates that a court consider the “nature and circumstances of the offense” in fashioning a sentence. U.S. v. Cerno, 529 F.3d 926 (10th Cir. 2008).
10th Circuit applies § 2A6.1 even though defendant was acquitted of sending threatening letter. (215) Defendant was convicted of conspiracy to impede or injure an officer, 18 U.S.C. § 372, based on his involvement in sending a threatening letter to an assistant U.S. attorney who was prosecuting members of a white supremacy group. Defendant was acquitted of mailing a threatening communication, 18 U.S.C. § 876. The offense of conviction § 372, does not have an assigned Sentencing Guidelines section, so § 2X5.1 directed the court to apply “the most analogous offense guideline.” The Tenth Circuit held that § 2A6.1, which applies to threatening or harassing communications, was the most applicable guideline, rather than § 2A2.4, which applies to efforts to obstruct or impede officers or employees of the U.S. by force. Section 2A6.1 better captured the element of a letter seeking to threaten or intimidate a public official. While § 2A2.4 incorporates the fact that the victim was a governmental officer, and § 2A6.1 does not, the official victim enhancement, § 3A1.2, expressly applies to § 2A6.1 and not § 2A2.4. Although defendant was acquitted of mailing a threatening communication, this did not affect the “most analogous guideline” inquiry. U.S. v. Rakes, 510 F.3d 1280 (10th Cir. 2007).
10th Circuit rejects bodily injury increase based on red mark on head and small laceration on mouth. (215) While incarcerated as a federal inmate, defendant struck an officer twice with his fist, once on the mouth and once on the forehead. As a result of the assault, the officer sustained a small laceration on the inside of his mouth and a red mark on his forehead. The Tenth Circuit reversed a two-level bodily injury increase under § 2A2.4. The Sentencing Guidelines limits the definition of “bodily injury” to those that are “significant.” Note 1(B) to § 1B1.1. In every reported case where a bodily injury increase has been upheld against a challenge based on the significance of the injury, the record demonstrated injuries that were more severe than those here, were painful and lasting, or were for a type for which medial treatment would ordinarily be sought. The officer’s head injury consisted only of a red mark, without any reported swelling, bleeding, or bruising. Such a mark was not, in and of itself, necessarily painful or obvious. As for the oral cut, the court took judicial notice that oral injuries do not heal quickly. However, oral injuries come in all varieties, and the court only had before it the PSR’s cursory description of a “small laceration” and two photos of the officer’s head, which were of such poor quality that they did not support the court’s finding. U.S. v. Mejia-Canales, 467 F.3d 1280 (10th Cir. 2006).
10th Circuit holds that court’s mandatory application of the guidelines was not reversible. (215) Defendant was convicted of sexually assaulting a person under the age of 12. He argued that the court committed plain error under U.S. v. Booker, 543 U.S. 220 (2005) by enhancing his sentence based upon judicial fact-finding. The finding, that defendant had care and custody over the victim, resulted in a two-level increase under § 2A3.1(b)(3)(A). The Tenth Circuit held that the court’s mandatory application of the guidelines, while error, was not reversible. First, there was no constitutional error. Booker made it clear that it is the actual sentence, not the sentencing range, that must be increased based upon judicial finding in order to violate the Sixth Amendment. Defendant’s 135-month sentence still fell within the range applicable without the enhancement. Treating the guidelines as mandatory, regardless of whether the defendant is sentenced under § 3553(b)(1) or (b)(2), is error. However, defendant could not meet the fourth prong of plain error review – i.e. that failure to correct the forfeited error would seriously affect the fairness, integrity or public reputation of judicial proceedings. This prong is only met “in those rare cases in which core notions of justice are offended.” U.S. v. Yazzie, 407 F.3d 1139 (10th Cir. 2005).
10th Circuit applies increase for using computer to find organization that arranged fantasy sex tours. (215) Defendant corresponded by email with an organization that arranged “fantasy tours” for those who wished to engage in sex with children. The organization was actually a law enforcement sting operation. Defendant was arrested after traveling from Alabama to Colorado to have sex with a 12-year old boy. Section 2A3.2(b)(3)(B) provides a two-level increase if the defendant used “a computer or Internet-access device … to … facilitate transportation or travel, by the victim or a participant, to engage in prohibited sexual conduct.” Defendant argued that he did not purchase his tickets online and made other arrangements for the “fantasy tour” by phone, and thus did not use the computer to facilitate his travel. The Tenth Circuit found that “arranging the place and time of a tryst clearly constitutes ‘facilitation’ of transportation or travel,” and concluded that “enough of the logistics of the trip were negotiated by e-mail” to support the § 2A3.2(b)(3)(B) increase. Moreover, the computer made it substantially easier for him to find and book a “fantasy tour” as well as negotiate the details of the trop. “It would be “inconsistent with Congress’s broad intent to let offenders evade the enhancement simply by working out the logistics of an internet-arranged tryst offline.” U.S. v. McGraw, 351 F.3d 443 (10th Cir. 2003).
10th Circuit says computer increase applies where undercover officer poses as someone with control of fictitious child. (215) Guideline § 2A3.2(b)(3)(B) provides for a two-level increase if the defendant used a computer to “facilitate transportation or travel, by the victim or a participant, to engage in prohibited sexual conduct.” (emphasis added). Note 1 defines a “victim” as “(A) an individual who, except as provided in subdivision (B), had not attained the age of 16 years, or (B) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 16 years.” Relying on Note 1, the district court ruled that the § 2A3.2(b)(3) increase did not apply to cases in which there was neither an actual minor victim nor an undercover officer posing as one. The Tenth Circuit disagreed, since subsection (B) applies in cases involving travel by “the victim or a participant.” A “participant” is a person who is criminally responsible for the commission of the offense. See Note 1 to § 3B1.1 (cross-referenced in § 2A3.2(b)(3). Defendant was a participant, and it was his travel that was facilitated, not the victim’s, even though there was no victim. Judge Brorby dissented. U.S. v. Robertson, 350 F.3d 1109 (10th Cir. 2003).
10th Circuit rejects need for independent jurisdiction to apply cross-reference to sexual assault guideline. (215) Defendant and Albert kidnapped a woman who had given them a ride in her car. At one point, defendant drove the car while Albert raped the woman in the back seat at knifepoint. Defendant and Albert then traded places, and defendant forced the victim to fondle his penis. Albert later stabbed the victim at least five times and then they forced her out of the car. The Tenth Circuit upheld the use of the criminal sexual abuse guideline, § 2A3.1, rather than the guideline for kidnapping, § 2A4.1. The court properly determined by a preponderance of the evidence that the sexual assault of the victim was reasonably foreseeable and jointly undertaken. Following Albert’s sexual assault of the victim, defendant exploited the victim for his own sexual gratification. Defendant also argued that the cross-reference to § 2A3.1 was in error because § 2A3.1(b)(1) requires that the offense be committed “by the means set forth in 18 U.S.C. § 2441(a) or (b),” and he was not charged or convicted of a violation of § 2241. The panel ruled that independent federal jurisdiction was not required for the cross-reference to apply. Once a jurisdictional basis existed over the kidnapping, the district court could properly consider all relevant conduct. U.S. v. Monroe, 259 F.3d 1220 (10th Cir. 2001).
10th Circuit applies sexual abuse guideline rather than attempt guideline. (215) Defendant was convicted of crossing state lines with the intent to engage in a sexual act with a six-year old girl, in violation of 18 U.S.C. § 2241(c). He challenged the court’s application of § 2A3.1, contending that his offense level should have been calculated under § 2X1.1, the attempt guideline. The Tenth Circuit rejected this argument, which stemmed from the faulty premise that § 2241(c) criminalizes behavior at the point in time of the crossing of the state line. Because at the time of crossing, defendant made no attempt to engage in a sexual act with a child, he believed § 2X1.1 was the applicable guideline. However, defendant was not convicted of crossing state line while holding impure thoughts, but rather, he was convicted of the crossing of state line with the intent to engage or attempt to engage in a sexual act with a child. The district court did not err in calculating defendant’s offense level under § 2A3.1. U.S. v. Cryar, 232 F.3d 1318 (10th Cir. 2000).
10th Circuit finds defendant used force in aggravated assault on 10-year old. (215) Defendant was convicted of the aggravated sexual abuse of his 10-year old stepchild. He challenged a § 2A3.1(b)(1) use of force enhancement, contending that he did not use “the brute force associated with rape.” The Tenth Circuit held that the § 2A3.1(b)(1) use of force increase is justified by the factual finding that the perpetrator used “‘such physical force as is sufficient to overcome, restrain, or injure a person; or the use of a threat of harm sufficient to coerce or compel submission by the victim.’” Thus, the enhancement is appropriate when “the sexual contact resulted from a restraint upon the other person that was sufficient that the other person could not escape the sexual contact.” Force may be inferred by such facts as disparity in size between victim and assailant, or disparity in coercive power, such as between an adult and child. Here, defendant was in his late 20s and weighed 190 pounds. His victim was ten years old and weighed 70 pounds. In one incident, the victim attempted to evade defendant by sliding into the crack of her bed, whereupon defendant grabbed her arm and made her lay next to him on the bed. Defendant assaulted her despite her strong verbal protestation. She also stated that she would try to kick defendant and push him away, but he would push her against the wall. This was sufficient to support the use of force increase. U.S. v. Reyes Pena, 216 F.3d 1204 (10th Cir. 2000).
10th Circuit holds that enhancements for age of victim and use of force was not double counting. (215) Defendant pled guilty to the aggravated sexual abuse of his 10-year old stepchild. He argued that a § 2A3.1(b)(1) enhancement for the use of force and a § 2A3.1(b)(2)(A) enhancement for a victim under 12 years of age was double counting, because the use of force is implicit for a victim under 12. The Tenth Circuit rejected the double counting argument, finding the increases served distinct purposes and were aimed at different harms. Section 2A3.1(b)(2)(A) punishes sexual contact with a child under the age of 12, since such children are incapable of giving effective legal consent. Section 2A3.1(b)(1) punishes the actual use of force used to overbear the will of another in perpetrating aggravated sexual abuse. Not every instance of sexual contact with a child under 12 involves actual physical force. There is a distinction between legal and factual consent. The victim here was incapable of legal consent, due to her age, and did not give factual consent, evidenced by the fact that defendant had to use actual physical force to overcome her resistance. U.S. v. Reyes Pena, 216 F.3d 1204 (10th Cir. 2000).
10th Circuit relies on testimony related to acquitted counts. (215) Defendant was indicted on three counts of threatening a federal law enforcement officer. One count was based on a recorded conversation with a cooperating co-conspirator, and the other two counts were based on threats defendant allegedly made to the co-conspirator on two other occasions. A jury convicted defendant of the count involving the threat documented on tape, and acquitted him of the other two counts. In additional to testifying about the threats, the co-conspirator also testified at trial that: (1) defendant asked the co-conspirator to purchase ammunition for his gun and drive to the police department to case the site; (2) defendant devised a detailed plan for killing the detective; and (3) defendant exchanged a .38 revolver for a .380 semi-automatic weapon to increase his firepower in a potential shootout with the detective. The district court applied a § 2A6.1(b)(1) enhancement for conduct showing an intent to carry out his threats. Defendant argued that the court relied on testimony that the jury did not find credible. The Tenth Circuit held that the sentencing court’s reliance on testimony related to acquitted counts did not constitute error. A sentencing court has discretion to make credibility determinations for sentencing purposes. U.S. v. Martin, 163 F.3d 1212 (10th Cir. 1998).
10th Circuit rejects downward departure in child molestation case. (215) Defendant was convicted of transporting a minor relative across state lines and molesting her. The minor, who was 12 at the time of trial, testified to two incidents, one occurring when she was 7 or 8, and the other when she was 10. The district court departed downward because there was no significant physical or psychological harm to the victim, the victim forgave defendant, and there was a delay in prosecution. The Tenth Circuit reversed. Contrary to the court’s finding of no harm, the victim required 17 counseling sessions for her and/or her family, and she might require additional therapy. The psychological harm was typical of offenses involving molestation of children under 12 by their relatives. The lack of physical harm was clearly within the heartland of cases under § 2A3.4. Penetration would have been a sexual act that would constitute criminal sexual abuse under § 2A3.1. Forgiveness by a 12-year old victim has no legal consequence. There was no delay in prosecution. The offense occurred in November 1993, the victim came forward in March 1994. Defendant was indicted in February 1995 and convicted September 1995. Discovery of child molestation by relatives often involves some delay and difficulties in bringing a successful prosecution. U.S. v. Meacham, 115 F.3d 1488 (10th Cir. 1997).
10th Circuit holds court should have applied cross reference for abusive sexual contact. (215) Defendant was convicted of transporting a minor in interstate commerce intending that she engage in sexual activity. The PSR calculated the applicable guideline range as level 22, applying § 2G1.2(a), (b)(2) and (b)(4). The Tenth Circuit found that the court should have applied § 2G1.2(c)(3)’s cross-reference directing the court to apply § 2A3.4 (abusive sexual contact) because the offense did not have as its purpose “producing a visual depiction” under § 2G1.2(c) (1), and did not involve attempted or completed “criminal sexual abuse” under § 2G1.2(c)(2). Nor did it include transportation for prostitution under § 2G1.2(c)(3). Defendant’s conduct with the child constituted “sexual contact” under federal law and thus came within the scope of § 2A3.4. Under that section, defendant’s base offense level was 10, enhanced to level 16 under § 2A3.4(b)(1) because the victim was less than 12 years old, and enhanced another two levels under § 2A3.4(b)(3) because the victim was in the custody of the defendant. Thus, defendant’s offense level was 18, not 22. U.S. v. Meacham, 115 F.3d 1488 (10th Cir. 1997).
10th Circuit denies reduction where defendant repeated threats to former girlfriend. (215) After the end of tumultuous relationship, defendant repeatedly called, mailed letters to and sent flowers to his former girlfriend. He was convicted of using a telephone to communicate a threat after leaving a threatening message on her new boyfriend’s answering machine. The Tenth Circuit rejected defendant’s claim that he was entitled to a § 2A6.1(b)(2) reduction for an offense involving a single instance evidencing little or no deliberation. Defendant had also phoned his former girlfriend and repeated the threats he had made to the new boyfriend. U.S. v. Edgin, 92 F.3d 1044 (10th Cir. 1996).
10th Circuit upholds consideration of uncharged abuse, rejects consideration of victim’s age. (215) Defendant admitted having sexual intercourse with his stepdaughter on about 75 occasions over the previous four years, beginning when she was 12 years old. He was charged with three counts of sexual abuse of a minor and pled guilty to one count. The district court departed upward based on the numerous criminal acts and the age of the victim. The Tenth Circuit held that the court properly considered the dismissed and uncharged conduct, but found that the age of the victim was already adequately considered by the guidelines. Nothing in the plea agreement prevented the district court from considering uncharged misconduct at sentencing. The court did not consider the victim’s pregnancy and abortion as grounds for departure. It used it only as a reason to sentence defendant at the high end of the range. However, consideration of the victim’s age was improper because § 2A3.2 already accounts for it. The guideline applies to violations of a statute that prohibits sexual acts with another person of a specified age. U.S. v. Big Medicine, 73 F.3d 994 (10th Cir. 1995).
10th Circuit sentences defendant based on stipulation to aggravated incest. (215) Defendant pled guilty to knowingly engaging in a sexual act with a minor on federal property. He stipulated that the child victim was his 13-year old daughter and that she gave birth as a result of the sexual act. Defendant argued that the court erred in sentencing him for the offense of aggravated incest since he did not plead guilty to incest. The Tenth Circuit held that defendant was properly sentenced for aggravated incest based on his stipulations. When a stipulation as part of a plea agreement establishes facts that prove a more serious offense than the offense of conviction, the court is to apply the guideline most applicable to the most serious offense established. The sentence is limited to the maximum authorized by the statute under which the defendant is convicted. The district court properly consulted Kansas law to determine defendant’s offense for sentencing purposes. Aggravated incest in Kansas requires the offender to knowingly engage in a prohibited sexual act with a person under 18 who the offender knows is biologically related. Defendant stipulated that he knowingly engaged in sexual intercourse with his 13-year old biological daughter. U.S. v. Passi, 62 F.3d 1278 (10th Cir. 1995).
10th Circuit says aggravated incest is violent crime under § 2A3.1. (215) Defendant stipulated that he committed an aggravated incest by engaging in sexual intercourse with his 13-year old biological daughter. He argued that the court should have sentenced him under § 2A3.2, rather than under § 2A3.1. The Tenth Circuit upheld the application of § 2A3.1, since aggravated incest is properly characterized as a violent crime. Section 2A3.2 applies to sexual acts with a minor that would be lawful but for the age of the victim. Sexual relations with one’s biological daughter is illegal under state law regardless of the victim’s age. Section 2A3.1 addresses sexual offenses that are crimes of violence. Defendant’s offense was a violent crime under § 2A3.1. Not only was the victim under 14, but she reported to investigators that defendant used intimidation and threats to force himself sexually upon her. U.S. v. Passi, 62 F.3d 1278 (10th Cir. 1995).220
10th Circuit rules victim was in defendant’s care where all adults in household had custodial responsibility for child. (215) Defendant pled guilty to sexual contact with a minor under the age of 12. He was a member of a large household which included four generations of family members. He was the husband of the victim’s grandmother. On occasion when the child’s parents were absent from the house, the child was left in the custody of “all of the adults” in the home, including defendant. On the afternoon of the crime, the great-grandmother and defendant were home with the child. The 10th Circuit upheld a section 2A3.4(b)(3) enhancement based on defendant’s custody, care or supervisory control of the victim. It made no difference that another person shared responsibility for the care of the victim. It was significant that the victim was taught by her mother to obey those who were watching her or were older than she. This, coupled with defendant’s general supervisory authority over the child, justified the enhancement. U.S. v. Chasenah, 23 F.3d 337 (10th Cir. 1994).
10th Circuit holds that use of force enhancement applies to all 18 U.S.C. § 2241 convictions. (215) Defendant was convicted of forcible rape in violation of 18 U.S.C. § 2241(a)(1). The district court declined to impose a use of force enhancement under § 2A3.1(b)(1), finding defendant’s actions were not at a level or degree that would justify the enhancement. The 10th Circuit reversed, holding that the enhancement is mandatory for all defendants convicted under 18 U.S.C. § 2241. The official commentary notes that the base offense level represents sexual abuse as set forth in § 2242, and that the enhancement applies for use of force, threat of death, serious bodily injury or kidnapping, or certain other means defined in § 2241. U.S. v. Talk, 13 F.3d 369 (10th Cir. 1993).
10th Circuit says defendant was reckless in drinking before flight. (215) Defendant was convicted of various charges when, while drunk on an airplane, he intimidated and then sexually abused a flight attendant. The district court imposed an enhancement under section 2A5.2(a)(2) for acting recklessly, applying the definition of reckless found in section 2A1.4. Defendant did not challenge the definition, but only the determination that he possessed the “foreknowledge” required for recklessness. The 10th Circuit upheld the enhancement. Defendant had a fear of flying which made him nervous and edgy, and he was aware that alcohol sometimes made him violent and abusive. He must have been aware that the combination of intoxication and air travel could lead to dangerous consequences. The psychiatrist’s testimony that defendant had not acted in a premeditated fashion did not mean that he did not act in a reckless manner. U.S. v. Jenny, 7 F.3d 953 (10th Cir. 1993).
10th Circuit affirms application of higher base offense level in kidnapping offense. (215) Guideline section 2A4.1(b)(5), the kidnapping guideline, provides that if the victim was kidnapped to facilitate another offense, and that offense level is greater, the other guideline should be applied. Defendant conceded that his victim was kidnapped to facilitate the commission of sexual abuse and extortion, and the guideline for sexual abuse would be higher. But he contended that because his kidnapping was intended to facilitate two other offenses, the section was ambiguous, and therefore the rule of lenity should be applied. The 10th Circuit found that section 2A4.1(b)(5) was not ambiguous. This is not changed by the fact that the defendant committed two offenses in connection with the kidnapping. A defendant’s commission of a second additional offense cannot relieve him from responsibility for the more serious of the offenses. U.S. v. Galloway, 963 F.2d 1388 (10th Cir. 1992).
10th Circuit affirms enhancement for abduction of sexual abuse victim. (215) Defendant was convicted of kidnapping, but because the kidnapping was committed to facilitate the commission of another offense, sexual abuse, guideline section 2A4.1 directed that defendant be sentenced under section 2A3.1, the sexual abuse guideline. He contended that an enhancement under section 2A3.1(b)(5) for abduction of the victim was improper because abduction of the victim was inherent in the crime of kidnapping. The 10th Circuit upheld the enhancement, because the base offense level for sexual abuse was determined without regard to whether or not the victim was abducted. Guideline section 1B1.5 states that an instruction to apply another guideline refers to the entire guideline, i.e. the base offense level plus all applicable specific offense characteristics and cross references. U.S. v. Galloway, 963 F.2d 1388 (10th Cir. 1992).
10th Circuit rejects double counting claim to enhancement based upon sexual abuse victim’s age. (215) Defendant pled no contest to unlawfully engaging in sexual contact with a 10-year old child, in violation of 18 U.S.C. section 2244(a)(1). He received a six-level enhancement under guideline section 2A3.4(b)(1) because the victim was under the age of 12. The 10th Circuit affirmed, rejecting defendant’s argument that the age of the victim was already factored into defendant’s initial base offense level. A similar double counting argument was rejected by the court in U.S. v. Ransom, 942 F.2d 775 (10th Cir. 1991). Under Ransom, even if the “under the age of 12” factor is present in determining a defendant’s base offense level, this will not preclude a further enhancement where the victim of the sexual act is under the age of 12. U.S. v. Ward, 957 F.2d 737 (10th Cir. 1992).
10th Circuit holds most analogous offense for false reports to airline was possessing dangerous weapons while boarding aircraft. (215) Defendant was convicted of making two false reports to an airline, in violation of 49 U.S.C. section 1472(m), for claiming that his ex-wife’s suitor was on board carrying a handgun and explosives. There is no sentencing guideline for that offense. The 10th Circuit reversed the district court’s application of guideline section 2A6.1 (Threatening Communications), holding that section 2K1.5 (Possessing Dangerous Weapons While Boarding an Aircraft) was the most analogous guideline. The offense of threatening communications is committed by making threats against a President, foreign dignitaries and a former President, or using the mail to make a threat. Defendant’s conduct did not implicate any of these crimes. A closer parallel existed between his crime and the offense of carrying weapons aboard an aircraft. U.S. v. Norman, 951 F.2d 1182 (10th Cir. 1991).
10th Circuit finds no double counting in consideration of statutory rape victim’s age. (215) Defendant was convicted of the statutory rape of a girl under the age of 12. He was sentenced under guideline § 2A3.1, which carries a base offense level of 27. He contended it was impermissible double counting for the district court to then add four points to his offense level under guideline § 2A3.1(b)(2)(A) because the victim was under the age of 12. The 10th Circuit rejected this argument. First, the district court clearly applied the guidelines in the manner contemplated by the Sentencing Commission. Second, it disagreed with defendant’s contention that the Sentencing Commission fully incorporated the age of the victim into the base offense level for § 2A3.1. The guideline applies to engaging in a sexual act with any person who is incapable of understanding the nature of the conduct. Although a child under the age of 12 is clearly such a person, the court could not say that the Sentencing Commission necessarily set a base offense level that reflected all of the harm caused by engaging in sexual conduct with a child under 12. U.S. v. Ransom, 942 F.2d 775 (10th Cir. 1991).
11th Circuit permits use of kidnapping and murder guidelines in torture case despite treaty. (215) Defendant was convicted under the Torture Act, 18 U.S.C. § 2340, of committing numerous acts of torture and other atrocities in Liberia between 1999 and 2003, during the presidency of his father. He argued that his 97-month sentence was invalid because the Convention Against Torture, 1465 U.N.T.S. 85 (the CAT), prohibited the district court from sentencing him for acts other than torture. The Eighth Circuit disagreed – defendant was not sentenced for kidnapping or murder, he was only sentenced for committing torture. The Sentencing Guidelines instructed the court to use the same sentencing range for a violation of the Torture Act as the range applicable to a conviction for kidnapping. Similarly, the murders defendant committed were used by the district court only to assist it in calculating the applicable advisory guideline range for torture. U.S. v. Belfast, 611 F.3d 783 (11th Cir. 2010).
11th Circuit permits use of kidnapping and murder guidelines in torture case despite treaty. (215) Defendant was convicted under the Torture Act, 18 U.S.C. § 2340, of committing numerous acts of torture and other atrocities in Liberia between 1999 and 2003, during the presidency of his father. He argued that his 97-month sentence was invalid because the Convention Against Torture, 1465 U.N.T.S. 85 (the CAT), prohibited the district court from sentencing him for acts other than torture. The Eighth Circuit disagreed – defendant was not sentenced for kidnapping or murder, he was only sentenced for committing torture. The Sentencing Guidelines instructed the court to use the same sentencing range for a violation of the Torture Act as the range applicable to a conviction for kidnapping. Similarly, the murders defendant committed were used by the district court only to assist it in calculating the applicable advisory guideline range for torture. U.S. v. Belfast, 611 F.3d 783 (11th Cir. 2010).
11th Circuit holds that flight attendant who set fire in plane lavatory endangered safety of aircraft. (215) Defendant was a flight attendant who set fire to a lavatory in a plane while it was in the air. Section 2A5.2(a)(1) provides for a base offense level of 30, “if the offense involved intentionally endangering the safety of … an airport or an aircraft.” Defendant argued that his conduct only amounted to a reckless endangerment, meriting a base offense level of 18 under § 2A5.2(a)(2). He pointed to the government’s theory at trial that he set the fire and reported it because he wanted to return to Atlanta, or because he wanted to be viewed as a hero. Under either theory, defendant contended that the government did not demonstrate that defendant intended to compromise the integrity of the plane itself. The Eleventh Circuit upheld the use of § 2A5.2(a)(1), ruling that the district court did not clearly err in finding that a flight attendant who intentionally sets fire to an aircraft with the purpose of causing an emergency landing has intentionally endangered the safety of the aircraft. In addition to the immediate risk posed by the fire, the safety of the aircraft was further endangered by the necessity of undertaking an emergency landing. U.S. v. Lamons, 532 F.3d 1251 (11th Cir. 2008).
11th Circuit holds that threat to use weapon of mass destruction against government property was not a “serious violent felony.” (215) Defendant mailed a letter to a federal courthouse referencing anthrax several times and containing a harmless powder that resembled anthrax. He pled guilty to threatening to use a weapon of mass destruction against federal government property, in violation of 18 U.S.C. 2332(a)(3). The district court applied a life sentence under § 3559(c), finding that the offense was a “serious violent felony.” The offense is not one of the crimes enumerated in § 3559(c)(2)(F)(i) as a serious violent felony. The Eleventh Circuit held that an anthrax threat to a federal building does not “by its nature, involve a substantial risk that physical force against the person of another may be used in the course of committing the offense,” § 3559(c) (2)(F)(ii), and therefore, it did not qualify as a serious violent felony. Under the offense charged, the only force threatened was against property, not against a person. The risk of physical harm presented by threatening a federal building with anthrax is “not the natural outcome of an illegal use of force.” This result is supported by the fact that in 2004 (after defendant was indicted), Congress passed 18 U.S.C. § 1038, entitled “False information and Hoaxes” which specifically covers sending an anthrax hoax letter. If neither serious bodily injury nor death occurs, the maximum term of imprisonment under the new statute would be five years. U.S. v. Evans, 478 F.3d 1332 (11th Cir. 2007).
11th Circuit holds that threatening letter to judge claiming to contain anthrax caused substantial disruption of government function. (215) Defendant mailed a threatening letter to a judge. The letter was in an envelope filled with white powder that the letter said was anthrax (but which turned out to be talcum powder). The Eleventh Circuit affirmed a § 2A6.1(b)(4) increase for substantially disrupting public or governmental function. Defendant’s threatening letter resulted in closing half a floor of the state courthouse for two hours and the suspension of judicial business involving the targeted judge for longer than that. The letter also resulted in an interruption of judicial business involving another judge whose chambers were located in the same building. During that time, the hazardous materials unit responded to the emergency and an officer and the judge’s secretary were placed under quarantine while the FBI determined whether the white powder from the envelope contained anthrax. In addition, the sheriff’s department had to place an officer on a 24-hour security detail to protect the judge. Afterwards, she had to spend many hours speaking with the FBI and U.S. Attorney’s office about the case. U.S. v. Dudley, 463 F.3d 1221 (11th Cir. 2006).
11th Circuit holds that “substantial interference enhancement was not double counting. (215) Defendant mailed to a judge a threatening letter that contained a white powder that purported to be anthrax. He argued that a § 2A6.1(b) increase for substantially disrupting public or governmental functions constituted impermissible double counting because he also received an enhancement under § 3A1.2(b) based on the victim’s status as a judge. The Eleventh Circuit found that the application of both enhancements did not constitute double counting. The harm resulting from the victim’s status as a judge, which was accounted for under § 3A1.2(b), flowed from the need to protect the sanctity of law and the fabric of our society. The harm resulting from the substantial disruption was conceptually distinct, and involved the judges being prevent from fulfilling their duties for a period of time and also diverting other officials and officers from their other duties. U.S. v. Dudley, 463 F.3d 1221 (11th Cir. 2006).
11th Circuit agrees that envelope containing two threatening letters involved two different threats. (215) On September 13, defendant mailed a threatening letter to a federal judge. On September 19, defendant mailed a second envelope containing a letter which made references to blowing up a federal building and killing “all feds.” Inside the envelope was another envelope containing yet another letter threatening to kidnap the judge’s kids and blow up his car. The inner envelope also containing a white powder, later identified as a cleaning substance. The Eleventh Circuit affirmed a § 2A6.1(b)(2) increase for an offense that involved more than two threats. There were two mailings but the second mailing contained at least two distinct threats in two letters in two envelopes. Thus, defendant made at least three distinct threats. U.S. v. Scott, 441 F.3d 1322 (11th Cir. 2006).
11th Circuit holds that statement to FBI agents was not conduct evidencing intent to carry out threat. (215) Defendant mailed several threatening letters to a federal judge. When FBI agents asked him if he really intended to kill the judge when released from prison, defendant told them: “There are a lot of people that I want to do something to, but I have not made up my mind when or where I will do it.” Defendant refused to clarify the statement. The Eleventh Circuit reversed a § 2A6.1(b)(1) increase, holding that defendant’s statement to the FBI did not amount to “conduct evidencing an intent to carry out” the threat. It was not conduct before or during the criminal offense but simply an answer given by defendant while in custody and in response to an investigator’s question and it occurred after the crime had been completed. U.S. v. Scott, 441 F.3d 1322 (11th Cir. 2006).
11th Circuit says court imposing post-Booker sentence need not specifically address and analyze each § 3553 factor. (215) Defendant was convicted of a variety of charges relating to his correspondence with, and eventual travel to, an undercover agent posing as a parent willing to have other adults have sex with his children. His guidelines range was 135-168 months’ imprisonment. The district court rejected defendant’s request for a sentence below the advisory guidelines range, and imposed a 135-month sentence. The Eleventh Circuit affirmed. The district court considered the § 3553(a) factors, although the court did not specifically address and analyze each of the factors defendant raised. Nothing in Booker or elsewhere requires the district court state on the record that it has explicitly considered each of the 3553(a) factors or to discuss each of these factors. The 135-month sentence, which was at the bottom of the guideline range, was reasonable. U.S. v. Scott, 426 F.3d 1324 (11th Cir. 2005).
11th Circuit applies increase for fictitious victim under the age of 12. (215) Defendant traveling to another state to have sex with an 11-year old, who turned out to be fictitious. The “stepfather” of the fictitious victim was actually an undercover agent. The Eleventh Circuit affirmed a § 2B3.1(b)(2)(A) increase for a victim less than 12 years old. The fact that the victim was fictitious was irrelevant to the application of the enhancement. So long as the statute or guideline proscribes attempts in the same manner that it proscribes completed acts, the application is proper. U.S. v. Lebovitz, 401 F.3d 1263 (11th Cir. 2005).
11th Circuit holds that criminal sexual abuse guideline was proper even though victim was fictitious. (215) Defendant pled guilty to traveling in interstate commerce with the intent to have sex with a minor, in violation of 18 U.S.C. § 2423(b) and to possession child pornography, in violation of 18 U.S.C. § 2252A. The district court ruled that § 2A3.1 (Criminal Sexual Abuse) was the “most appropriate” guideline; defendant contended that § 2A3.2 (Criminal Sexual Abuse of a Ward) was the “most appropriate” guideline. However, § 2A3.2 states that the court should apply § 2A3.1 if the offense “involved criminal sexual abuse … as defined by 18 U.S.C. § 2241 or § 2242.” The only reason defendant gave for avoiding the clear effect of the cross-reference to § 2A3.1 was that his victim was fictitious. However, that was of no real consequence in determining the most appropriate based offense guideline. Defendant’s intent and conduct were clear – he clearly told the undercover agent that he wished to have sex with the agent’s 11-year old daughter. Traveling to another state to have sex with an 11-year old is attempted criminal sexual abuse. U.S. v. Lebovitz, 401 F.3d 1263 (11th Cir. 2005).
11th Circuit approves extreme conduct departure for HIV positive defendant who had sex with minor. (215) Defendant, a 47-year old male, traveled to another state to have sex with two minor girls he had met on the Internet. He took the first victim to a motel room where they engaged in multiple sexual acts. At the time, defendant was aware that he was infected with the HIV virus, but he never informed the victim of this fact. He was arrested before he could meet the second victim. The Eleventh Circuit upheld an upward departure under §§ 5K2.8 and 5K2.0 based on defendant’s extreme conduct. Knowingly subjecting an adolescent to a communicable and potentially fatal, incurable disease through several sexual acts, and neglecting to notify her of his condition, was “unusually heinous, cruel, brutal, or degrading.” The panel was unable to identify another reported federal case in which an HIV-infected defendant actually sought out, and was successful in securing, sexual contact with at least one minor. Defendant’s actions were incredibly risky and dangerous, and presented circumstances not accounted for in the applicable guidelines. U.S. v. Blas, 360 F.3d 1268 (11th Cir. 2004).
11th Circuit applies ransom enhancement even though defendant was captured before he could deliver note. (215) Defendant was involved in the abduction of a woman and her two children. The woman was forced to contact her husband by both cell phone and letter, although the letter was never mailed due to authorities’ rescue of the victims and the conspirators’ arrests. The Eleventh Circuit affirmed a § 2A4.1(b)(1) enhancement for a ransom demand, even though the demand was never made. In U.S. v. Ferreira, 275 F.3d 1020 (11th Cir. 2001), defendants’ co-conspirators advanced precisely the same argument. The court upheld the ransom increase since it could be determined “with reasonable certainty” that the random demand would have been made but for the kidnappers’ capture. The factual circumstances here were literally identical, and therefore Ferreira was binding. U.S. v. Torrealba, 339 F.3d 1238 (11th Cir. 2003).
11th Circuit divides conviction for conspiracy to commit hostage taking into three groups. (215) Defendant was involved in the abduction of a woman and her two children. The district court divided his single conspiracy conviction into three different groups for sentencing purposes based on the three victims of his crimes. The Eleventh Circuit affirmed. Note 8 to § 3D1.2 plainly contemplates treating the three kidnapping victims separately in order to adequately capture the full extent of defendant’s criminal behavior. U.S. v. Torrealba, 339 F.3d 1238 (11th Cir. 2003).
11th Circuit says defendant was properly sentenced for attempted sexual act, not attempted sexual contact. (215) Defendant asked a 13-year old girl he had met in an Internet chat room to meet him to engage in sexual activity. The “girl” was actually an undercover Secret Service agent. Defendant was convicted of using the Internet to persuade a minor to engage in illegal sexual activity, in violation of 18 U.S.C. § 2422. The Eleventh Circuit held that the district court properly sentenced defendant under § 2A3.2 (“Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts”). Defendant’s attempt to have oral sex with a 13-year old girl was an attempted “sexual act” and not merely attempted “sexual contact.” Since § 2A3.4, the guideline applicable to Abusive Sexual Contact, excludes any conduct that is a “sexual act,” it was not applicable to defendant. U.S. v. Panfil, 338 F.3d 1299 (11th Cir. 2003).
11th Circuit applies ransom increase even though defendants were captured before they could make demand. (215) Defendants kidnapped a woman and her two children. During the victims’ four and one half day captivity, the woman was required to use her cellular phone to make a series of calls to her husband, requesting that he meet with one of the kidnappers. By tracing the phone calls, the FBI was able to locate the house at which the victims were being held, and the family was rescued. Among other evidence in the house, police found a torn letter addressed to the husband, stating that if the husband did not turn over all of his money, he and his family would be killed. The district court applied a six-level increase under § 2A4.1(b)(1), which applies “[i]f a ransom demand or demand upon the government was made” in the course of a kidnapping or abduction. Defendant argued that the enhancement was improper because the ransom note was never delivered to the victim’s husband, and that § 2A4.1(b)(1) requires that a ransom demand “was made.” The Eleventh Circuit disagreed. Application Note 5 to § 2A4.1 states that “[i]n the case of a conspiracy, attempt, or solicitation to kidnap, § 2X1.1 … requires that the court apply any adjustment that can be determined with reasonably certainty.” Because the phone calls to the husband coupled with the letter made it “reasonably certain” that defendants would have made a ransom demand if doing so had been feasible, the ransom enhancement was proper. U.S. v. Ferreira, 275 F.3d 1020 (11th Cir. 2001).
11th Circuit holds that ransom includes demand for money kidnappers believed is owed them. (215) Defendants were convicted of racketeering charges. The district court found beyond a reasonable doubt that the government had proven that defendants conspired to kidnap Catano as part of a scheme to force Catano to pay $220,000 that defendants believed Catano owed them. The Eleventh Circuit upheld the use of the kidnapping guideline since the district court found beyond a reasonable doubt that defendants were guilty of conspiracy to commit kidnapping. The court further held that the district court correctly applied a § 2A4.1(b)(1) ransom enhancement, even though defendants believed the victim owed them the money. Black’s Law Dictionary defines ransom as “[t]he money, price, or consideration paid or demanded for redemption of a kidnapped person or persons; a payment that releases from captivity.” Nothing in that definition excludes previously-owed money. U.S. v. DiGiorgio, 193 F.3d 1175 (11th Cir. 1999).
11th Circuit uses preponderance to decide if kidnapper sexually abused victim. (215) Defendant kidnapped a woman from a gas station, drove her across state lines, and raped her. He argued that cross-referencing from the kidnapping guideline, § 2A4.1(b)(7) to the sexual abuse guideline, § 2A3.1(a), requires a higher standard of proof than a preponderance of the evidence. He also claimed that the proof here did not meet even the preponderance standard. The Eleventh Circuit held that the district court properly applied the preponderance standard to determine if defendant had sexually abused his victim. Applying § 2A3.1’s enhancement for abduction did not constitute improper double counting. Double counting under separate guidelines is permitted if the Sentencing Commission intended that result and each section is conceptually separate. The kidnapping provision specifically requires that if the cross-referenced guideline does not include an adjustment for kidnapping, the court should add four levels to the base offense level. Moreover, kidnapping and sexual abuse are conceptually separate. U.S. v. Lewis, 115 F.3d 1531 (11th Cir. 1997).
11th Circuit says conduct was sufficient to show intent to carry out threats. (215) Defendant stalked his former high school girlfriend and her family over a period of 20 years. He was convicted of sending threatening communications through the mail. The Eleventh Circuit upheld the consideration of pre‑threat conduct to justify a § 2A6.1(b)(1) enhancement for conduct evidencing an intent to carry out the threats. Despite the victim family’s repeated attempts to evade defendant by moving and changing their telephone number, defendant managed to locate them every time. Over the years, the woman’s husband saw defendant surveilling his home, and many of defendant’s letters described the family’s activities in detail. Defendant called the family numerous times, had taken several personal trips to the area, and had even hired a private investigator to obtain information about them. In 1982, he went to their home with a handgun, and told his wife that he had an opportunity to shoot the victim’s husband but had chosen not to do so. Moreover, defendant had solicited his former cellmate to murder the woman and her husband. U.S. v. Taylor, 88 F.3d 938 (11th Cir. 1996).
11th Circuit approves enhancement of sentence for threatening President. (215) In January 1994, defendant drove to Washington, D.C. to assassinate the President. He went to the Mall in Washington each day of his trip, intending to shoot while the President was jogging. However, he discovered the President was in Russia. On January 18, he returned home and sold his gun. On January 29, he told a neighbor about his journey and about his desire to kill the President. Defendant was convicted of threatening to kill the President. The district court imposed a § 2A6.1(b)(1) enhancement for conduct evidencing an intent to carry out the threat. The Eleventh Circuit affirmed, disagreeing with U.S. v. Hornick, 942 F.2d 105 (2d Cir. 1991), and holding that pre-threat conduct may be used to show a defendant’s intent to carry out a threat. Here, defendant never deviated from his plan to kill the President; he was just denied the opportunity. Based on his previous conduct, there was every reason to believe that he intended to act on his threats. U.S. v. Barbour, 70 F.3d 580 (11th Cir. 1995).
11th Circuit holds that pointing gun in order to intimidate a person constitutes use of a weapon. (215) Defendant and his partner robbed a restaurant, stole a gun, broke into a home, held a woman at gunpoint until her husband returned, and then forced the husband to drive them across the state line. Defendant challenged a section 2A4.1(b)(3) enhancement for using a dangerous weapon during the course of the kidnapping, contending he did no more than brandish the weapon. The 11th Circuit upheld the enhancement based on the partner’s actions. The partner leveled a gun at the woman’s head and told her he would kill her if she did not do as she was told. Pointing a dangerous weapon at a specific person in order to intimidate them is more than mere “brandishing” and constitutes use of the weapon for purposes of § 2A4.1(b)(3). Defendant was responsible for the actions of his partner-in-crime under § 1B1.3(a)(1). U.S. v. Gordon, 19 F.3d 1387 (11th Cir. 1994).
11th Circuit finds no evidence that defendant engaged in conduct evidencing intent to carry out threats. (215) Defendant received a six-level increase under guideline section 2A6.1(a), which applies where a defendant is convicted of communicating a threat in interstate commerce, and then engages in any conduct evidencing an intent to carry out that threat. The 11th Circuit reversed. Although defendant had purchased numerous firearms and ammunition several months prior to making a threatening phone call to his former supervisor, there was no evidence connecting the two actions. Defendant had made a similarly threatening phone call the year before “because he felt like it.” The reasonable conclusion from the record was that defendant made this phone call for the same reason, and had no intent of carrying out the threat. U.S. v. Philibert, 947 F.2d 1467 (11th Cir. 1991), implied overruling recognized by U.S. v. Bonner, 85 F.3d 522 (11th Cir. 1996).
11th Circuit holds that killing of kidnapping victim within 24 hours allows for increase of offense level for failure to release victim within 30 days. (215) Defendant kidnapped an individual and killed him within 24 hours. At the sentencing hearing, the court enhanced his offense level 2 points under § 2A4.1(b)(4)(A) because he failed to release the victim within 30 days. The defendant appealed the enhancement, claiming that the guidelines do not state that murdering the victim means that the victim was not released within 30 days. The 11th Circuit affirmed. First, it found that the enhancement was proper because the court could have departed upwards due to the death of the victim (see § 5K2.1). Secondly, applying the enhancement here comports with the stated purpose of the provision, to provide an incentive to the kidnapper to release the victim. U.S. v. Gaddy, 894 F.2d 1307 (11th Cir. 1990).
D.C. Circuit affirms upward variance in sexual assault case. (215) Defendant, a high-ranking CIA official working in the U.S. Embassy in Algeria, drugged and then sexually abused an Algerian woman. He was indicted in the U.S., failed to appear for a hearing, and eventually was found in a motel under the influence of drugs and carrying a loaded gun. He pled guilty to abusive sexual contact and possession of a firearm by an unlawful user of a controlled substance. He requested a below-guidelines sentence based on his “dual diagnoses” of substance abuse and mental problems. Instead, the court varied up from his 27-33 month guideline range and sentenced defendant to 65 months. The D.C. Circuit held that the court adequately explained its reasons for the upward variance. The court referenced, among other facts, that defendant was a high-level representative with diplomatic immunity, that he took advantage of his victim’s religion in sexually abusing her, that the victim impact statement was “overwhelming to read” and that defendant’s conduct in resisting arrest showed that he posed a danger to himself and others. The 65-month sentence was substantively reasonable. U.S. v. Warren, 700 F.3d 528 (D.C. Cir. 2012).
D.C. Circuit rules cross-reference in kidnapping commentary is inconsistent with guideline. (215) The district court grouped together defendant’s offenses relating to the kidnapping and attempted murder of a young woman. Section 2A4.1(b)(7)(B) says that if another offense was committed during the kidnapping, the court should cross-reference the guideline applicable to other offense if it would result in a greater offense level. Note 5 to § 2A4.1 states that if the offense involved a conspiracy to kidnap for the purpose of committing murder, or if an offense involved a kidnapping during which a participant attempted to murder the victim under circumstances that would have constituted first-degree murder, subsection (b)(7) would reference the first-degree murder guideline and result in an offense level of 43. The D.C. Circuit rejected Note 5 as inconsistent with § 2A4.1(7)(B), which expressly directs the court to cross-reference the guideline applicable the crime actually committed. See also U.S. v. Smith, 184 F.3d 415 (5th Cir. 1999). In this case, the other crime actually committed was attempted murder. Under Stinson v. U.S., 508 U.S. 36 (1993), “if the commentary and the guidelines it interprets are inconsistent in that following one will result in violating the dictates of the other, the Sentencing Reform Act itself commands compliance with the guideline.” Because the guideline and not the commentary controlled, the district court erred in cross-referencing the first-degree murder guideline. U.S. v. Fields, 242 F.3d 393 (D.C. Cir. 2001), on rehearing en banc, U.S. v. Fields, 251 F.3d 1041 (D.C. Cir. 2001).
D.C. Circuit says photo of gun pointed at victim combined with phoned threat constituted “use” of gun. (215) Defendants informed the kidnapping victim’s mother that her son was in custody and would be tortured or killed unless she paid a ransom. During a subsequent phone call, the mother was directed to a photo that showed the son blindfolded with a gun held to his head. The D.C. Circuit held that the pointing of a gun at the victim’s head, combined with the threat to the victim’s safety directed at his mother, constituted “use” of a firearm under §1B1.1, note 1(g), and § 2A4.1(b) (3). Virtually all of the circuits to address the question have held that where a dangerous weapon is pointed at a person and some further verbal threat accompanies the pointing of the weapon, an enhancement for the use of the weapon is justified. The key consideration is whether the weapon was pointed at a specific person in an effort to create fear so as to facilitate compliance with a demand, and ultimately to facilitate the commission of the crime. The fact that in the present case the gun and the threats were directed at two different people in two different locations at two different times did not diminish the culpable “use” at issue. U.S. v. Yelverton, 197 F.3d 531 (D.C. Cir. 1999).
Minnesota district court holds that enhancement for physical restraint was improper where defendant did not succeed in tying the victim’s hands. (215) Defendant pled guilty to abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1). The district court rejected his argument that the guideline for sexual abuse, 2A3.4 included the use of “physical restraint.” The court ruled that a two level enhancement for restraint of the victim pursuant to U.S.S.G. 3A1.3 would be proper in appropriate circumstances. However, the court ruled that because the defendant never succeeded in tying up his victim, an adjustment for restraint of the victim was not appropriate. U.S. v. Myers, 733 F.Supp. 1307 (D. Minn. 1990).
Commission implements statutory changes for assault, sexual abuse, stalking, domestic violence, harassment, and human trafficking. (215) The Commission implemented the Violence Against Women Reauthorization Act of 2013 (Pub. L. No. 113–4), by providing references to the assault guidelines for new and expanded criminal offenses involving assault, sexual abuse, stalking, domestic violence, harassment, and human trafficking. The changes apply to assaults within the special maritime and territorial jurisdiction of the United States (18 U.S.C. § 113), assaults in Indian Country (18 U.S.C. § 1153), interstate domestic violence and stalking (18 U.S.C. §§ 2261, 2261A, and 2262), international marriage brokers (8 U.S.C. § 1375a), transportation of minors for sexual purposes (18 U.S.C. § 2423), and unlawful conduct with respect to immigration documents (18 U.S.C. §1597). Proposed Amendment 2, effective Nov. 1, 2014.
Commission provides two-level increase for inciting threats to family members of federal officials. (215) In response to Section 209 of the Court Security Improvement Act of 2007, Pub.L. 110–177, the Commission amended §2A6.1 to provide a new two-level enhancement if a defendant convicted under 18 U.S.C. § 115 knew or should have known that the public threatening communication created a substantial risk of inciting others to violate 18 U.S.C. § 115 (Impeding federal officials by threats to family members). The amendment also amended the Statutory Index to add other guideline references for 18 U.S.C. § 1513 (Retaliating against a witness, victim, or an informant), i.e., §§2A1.1 (First Degree Murder), 2A1.2 (Second Degree Murder), 2A1.3 (Voluntary Manslaughter), 2A2.1 (Assault with Intent to Commit Murder; Attempted Murder), 2A2.2 (Aggravated Assault), 2A2.3 (Minor Assault), and 2B1.1, in addition to §2J1.2 (Obstruction of Justice). In addition, 18 U.S.C. § 1512 (Tampering with a witness, victim, or an informant), which covers a similar range of conduct, including killing or attempting to kill a witness and using physical force against a witness, is referenced to the same Chapter Two, Part A guidelines. Amendment 729, effective November 1, 2009.
Commission resolves “undue influence” conflict in rape cases involving minors. (215). The cases have been in conflict about the applicability of the “undue influence” enhancement at subsection (b)(2)(B) (ii) of §2A3.2 (Statutory Rape) and at subsection (b)(2)(B) of §2G1.3 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor). The Commission made it clear that the “undue influence” increase applies to attempts, by amending the Commentary in §§2A3.2 and 2G1.3 to provide that “[t]he voluntariness of the minor’s behavior may be compromised without prohibited sexual conduct occurring.” On the other hand, the Commission amended the Commentary to §§2A3.2 and 2G1.3 to make it clear that the “undue influence” enhancement does not apply if the only “minor” involved in the offense is an undercover law enforcement officer. Three circuits had expressed different views on these two issues. Compare U.S. v. Root, 296 F.3d 1222, 1234 (11th Cir. 2002), abrogation recognized by U.S. v. Daniels, 685 F.3d 1237 (11th Cir. 2012) (undue influence enhancement in §2A3.2 can apply to attempted sexual conduct, including where the only “victim” is an undercover law enforcement officer), and U.S. v. Vance, 494 F.3d 985, 996 (11th Cir. 2007), superseded by statute as stated in U.S. v. Jerchower, 631 F.3d 1181 (11th Cir. 2011) (undue influence enhancement in §2G1.3 can apply where minor is fictitious), with U.S. v. Mitchell, 353 F.3d 552, 554, 557 (7th Cir. 2003) (undue influence enhancement in §2A3.2 “cannot apply in the case of an attempt where the victim is an undercover police officer”) and U.S. v. Chriswell, 401 F.3d 459, 469 (6th Cir. 2005) (undue influence enhancement in §2A3.2 “is not applicable in cases where the victim is an undercover agent representing himself to be a child under the age of sixteen” but leaving open the possibility that it can apply in other instances of attempted sexual conduct). Amendment 732, effective November 1, 2009.
Commission increases penalties for child sex offenses. (215) The Adam Walsh Child Protection and Safety Act of 2006 increased the penalties for sex offenses. First, the Act amended 18 U.S.C. § 2241(c) to add a new 30-year mandatory minimum for aggravated sexual abuse of a child. In response, the Commission increased the base offense level at § 2A3.1 from level 30 to level 38. Second, the Act increased the statutory maximum under 18 U.S.C. § 2243(b) for sexual abuse of a person in official detention, so the Commission increased the base offense level in § 2A3.3 from 12 to 14. Third in response to a new subsection (a)(5) to 18 U.S.C. § 2244, the Commission increased the minimum offense level in the age enhancement in subsection (b)(1) of § 2A3.4 from level 20 to level 22. Fourth, the Act created a new offense under 18 U.S.C. § 2250(a) for failure to register as a sex offender, so the Commission created a new guideline, § 2A3.5, with three alternative base offense levels. Fifth, the Act created new aggravated offenses in 18 U.S.C. § 2250(c) and 2260A for committing various offenses while in a failure to register status, so the Commission adopted a new guideline at § 2A3.6 to cover this. Sixth, the Act added a 15-year mandatory minimum under 18 U.S.C. § 1591(b)(1) for sex trafficking of an adult by force, fraud, or coercion, so the Commission provided a new base offense level of 34 in § 2G1.1 for such convictions. Seventh, the Act added 10 and 15-year mandatory minimums under 18 U.S.C. § 1591(b) (1) for sex trafficking of children, so the Commission provided alternative base offense levels in § 2G1.3 for these statutes. Eighth, the Act created a new section, 18 U.S.C. § 2257A, adopting new recordkeeping obligations for visual depiction of simulated sexually explicit conduct, which the Commission referenced to § 2G2.5. Ninth, the Act created a new offense in 18 U.S.C. § 2252A(g) prohibiting engaging in child exploitation enterprises, for which the Commission set the base offense level at 35. Tenth, the Act increased the statutory maximum in 18 U.S.C. § 2252B(b) for knowingly using a misleading domain name with the intent to deceive a minor into viewing material harmful to minors on the Internet. In response, the Commission expanded the scope of subsection (b)(2) of § 2G3.1. Eleventh, the Act added a new provision in 18 U.S.C. § 1001 for making materially false or fraudulent statements that relate to sex offenses, so the Commission added a new specific offense characteristic at subsection (b)(1)(A) of § 2J1.2. Amendment 701, effective November 1, 2007.
Commission increases penalties for repeat child sex offenders. (215) In response to the Protection of Children from Sexual Predators Act of 1998, the Commission created a new guideline, § 4B1.5, that creates a tiered approach to punishing repeat child sex offenders. The first tier, in § 4B1.5(a), subjects a repeat child sex offender to the greater of the offense level determined under Chapters 2 and 3 or the offense level obtained from a table that, like the career offender table in § 4B1.1, bases the applicable offense level on the statutory maximum for the offense. In addition, the defendant’s criminal history category is increased to not less than Category V. The amendment also modifies § 5D1.2 to provide that the recommended term of supervised release for a defendant convicted of a sex crime is the maximum term authorized by statute. Finally, the amendment modifies § 2A3.2 to provide increased penalties for individuals who travel to meet or transport minors for illegal sexual activity. Amendment 615, effective November 1, 2001.
Commission increases penalties for stalking and domestic violence. (215) The Victims of Trafficking and Violence Protection Act of 2000 amended 18 U.S.C. §§ 2261, 2261A, and 2262 to broaden the reach of those statutes to include international travel to stalk, commit domestic violence or violate a protective order. Section 2261A was also amended to protect intimate partners of the person stalked and to prohibit the use of the mail or any facility of interstate or foreign commerce to commit a stalking offense. In response, the Commission referenced the new “stalking by mail” offense to § 2A6.2 (Stalking or Domestic Violence), and increased the base offense level from level 14 to level 18. The amendment also conformed the definition of “stalking” in Application Note 1 of § 2A6.2 to the statutory changes made by the Act. Amendment 616, effective November 1, 2001.
Commission proposes to change stalking and domestic violence guidelines. (215) The proposed amendment addresses § 1107 of the Victims of Trafficking and Violence Act of 2000, Pub. L. 106-386. That section amends 18 U.S.C. §§ 2261, 2261A, and 2262 to broaden the reach of these statutes to include international travel to stalk, commit domestic violence, or violate a protective order. Section 2261A also is amended to broaden the category of persons protected by this statute to include intimate partners of the person. The proposed amendment increases the base offense level in § 2A6.2 and has a cross-reference to § 1B1.5. 2001 Proposed Amendment 6.
Commission proposes to increase penalties for transporting minors for sex. (215) Pursuant to a Congressional directive, the Commission proposes a number of offense level increases in § 2A3.2, the “statutory rape” guideline, and in § 2A3.4, the abusive sexual contact guideline, to increase the penalties for transporting minors for prostitution or other prohibited sexual conduct. In addition, the Commission proposes to amend the guideline covering the production of child pornography, § 2G2.1, to provide additional enhancements for the production of sadistic or masochistic material, serious bodily injury, and the trafficking in produced materials. 2001 Proposed Amendment 5C.
Commission proposes to increase penalties for sexual predators. (215) In the Protection of Children from Sexual Predators Act of 1998, Pub. L. 105-314, Congress directed the Commission to increase the penalties where the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor. The proposed amendment offers four options that could be used either in combination or alone to implement the directive. In addition, the proposal amends the guideline covering terms of supervised release in § 5D1.2 to provide that the term of supervised release for a defendant convicted of a sex crime shall be the maximum term authorized by statute. 2001 Proposed Amendment 5A.
Articles Discuss Sex Offender Treatment and Sentencing (215) In a series of articles in the Federal Sentencing Reporter, Eric Lotke argues that community notification statutes do not serve their intended purpose. Hans-Jorg Albrecht describes the treatment of sex offenders in Germany, while D.A. Thomas does the same for England. Anne Wall reviews sex offender sentencing in Minnesota, and Roxann Lieb and Scott Matson cover trends in Washington state. Ralph Hendrix and Brent Warberg evaluate sex offender “treatment courts.” H.J.C. van Marle assesses the treatment of sex offenders in the Netherlands. Pamela Montgomery discusses the Sentencing Commission’s statistics on sentences for federal sex offenders. Finally, Michael D. Gordon and John M. Sands evaluate issues arising in plea negotiations for sexual offenses under the guidelines. Nora V. Demleitner, Editor, Sex Offender Sentencing and Treatment, 10 Fed. Sent. Rptr. 59 (1997).
Commission adds anti-stalking guidelines. (215) First, the Commission added a new guideline, § 2A6.2, to address the new offense of interstate stalking, 18 U.S.C. § 2261A, which was enacted in section 1069 of the National Defense Authorization Act for Fiscal Year 1997, Pub. L. 104-201, 110 Stat. 2422. Second, the Commission brought the offenses of interstate domestic violence, 18 U.S.C. § 2261, and interstate violation of a protection order, 18 U.S.C. § 2262, under the ambit of the new guideline, § 2A6.2. Third, the amendment added an enhancement to § 2A2.2 (Aggravated Assault), if the offense involved the violation of a court protection order. Fourth, the Commission incorporated several new harassing communications offenses, 47 U.S.C. § 223(a)(1)(C)-(E), which were enacted in section 502 of the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56 into § 2A6.1 (Threatening Communications). Fifth, the Commission added an application note to both § 2A6.1 and § 2A6.2 to adopt the Eleventh Circuit’s view in U.S. v. Taylor, 88 F.3d 938 (11th Cir. 1996) that conduct which occurred prior to the offense can be considered if the prior conduct is substantially connected to the offense. Amendment 549, effective November 1, 1997.
Commission strengthens sexual abuse guidelines. (215) In Amendment 2, effective November 1, 1995 the Commission authorized an upward departure under §2A3 if a victim was sexually abused by more than one participant, or if the defendant’s criminal history includes a prior sentence for conduct similar to the instant offense. The Commission noted that it has prepared a report to Congress analyzing federal rape sentences and obtaining comment from independent experts. (See, Report to Congress: Analyses of Penalties for Federal Rape Cases, March 13, 1995). Proposed 1995 Guideline Amendments, 60 Federal Register 25074.
Act enhances sentences for sex offenses. (215) The Violent Crime Control Act of 1994, in § 40111, adds a new § 2247 to Title 18 doubling the maximum term of imprisonment for defendants who commit federal sex offenses “after one or more prior convictions under the laws of any state relating to aggravated sexual abuse, sexual abuse, or abusive sexual contact have become final.” Section 40113 requires the court to impose restitution for all sex crimes.