No. 95-8001.United States Court of Appeals, Tenth Circuit.
Filed December 29, 1995.
Page 995
Appeal from the United States District Court for the District of Wyoming.
(D.C. No. 94-CR-84)
Submitted on the briefs:
David D. Freudenthal, United States Attorney, John R. Green, Assistant United States Attorney, District of Wyoming, Cheyenne, Wyoming, for Plaintiff-Appellee.
Corinne A. Miller, Casper, Wyoming, for Defendant-Appellant.
Before SEYMOUR, Chief Judge, McKAY, and EBEL, Circuit Judges.
SEYMOUR, Chief Circuit Judge.
[1] Horace Joseph Big Medicine pled guilty to one count of sexual abuse of a minor in violation of 18 U.S.C. § 2243(a) and 1153. In sentencing Big Medicine, the district court upwardly departed from the Sentencing Guidelines, and Big Medicine challenges the departure on appeal. Because we conclude that one of the bases for the upward departure was improper, we vacate the sentence and remand for resentencing.[1]Page 996
I.
[2] In May 1994, Big Medicine’s stepdaughter disclosed that Big Medicine and she had engaged in sexual intercourse and that she was pregnant. At the time, the stepdaughter was fifteen years old and was living with her mother and Big Medicine on the Wind River Indian Reservation in Wyoming. Following initiation of an investigation, Big Medicine admitted that he had had sexual intercourse with his stepdaughter on about seventy-five occasions over the previous four years, beginning when she was twelve years old. A grand jury indicted Big Medicine on three counts of sexual abuse of a minor in violation of 18 U.S.C. § 2243(a) and 1153. Big Medicine initially pled not guilty, but later agreed to plead guilty to one of the counts as part of a plea agreement. In the plea agreement, which the district court accepted, Big Medicine acknowledged he understood that the government would seek a sentence at the highest level allowable pursuant to the United States Sentencing Commission Guidelines Manual (hereinafter Guidelines). He also acknowledged the government would seek an upward departure outside the applicable Guidelines range.[2]
II.
[6] We apply a three-step process in reviewing the propriety of a district court’s decision to depart upward from the Guidelines. United States v. Okane, 52 F.3d 828, 831 (10th Cir. 1995); United States v. White, 893 F.2d 276, 277 (10th Cir. 1990). First, we examine the recor de novo to determine whether the circumstances cited by the district court justify departure. Okane, 52 F.3d at 831. Second, we assess under the clearly erroneous standard whether the record contains a factual basis to support the circumstances relied upon by the district court. Id.
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Finally, we determine whether the degree of departure was reasonable. Id. On appeal, Big Medicine does not challenge the factual bases for the upward departure. He contends that the circumstances did not justify departure and that the degree of departure was not reasonable.
[7] Big Medicine argues that the district court’s consideration of uncharged conduct to increase his sentence through its multi-count analysis was improper for two reasons. First, he contends that in the plea bargain he pled guilty to only one act of statutory rape and did not stipulate to the other seventy-four acts to which he admitted. He argues that because he did not stipulate to the other acts, and in fact pled guilty to one count only in exchange for dismissal of the other two counts, the court violated the plea agreement by sentencing him based on the uncharged conduct and dismissed charges. See, e.g., United States v. Castro-Cervantes, 927 F.2d 1079, 1082 (9th Cir. 1990). Second, he contends that under United States v. Zamarripa, 905 F.2d 337, 342 (10th Cir. 1990), the district court could not use the multi-count analysis to sentence him to more time (forty-six months) than it could have sentenced him had he been convicted of all three counts contained in the original indictment (which he claims is a maximum of thirty-seven months). [8] Big Medicine’s arguments are based on his contention that the court relied solely on the charges dismissed as part of the plea bargain as the basis for the upward departure, as was the case i Castro-Cervantes, 927 F.2d at 1082. We see the court’s multi-count departure analysis differently. [9] When a defendant stipulates to misconduct in a plea agreement, he must be sentenced as if he had been convicted of this misconduct See Zamarripa, 905 F.2d at 341. However, the reverse — that unstipulated misconduct cannot increase a sentence — is obviously not true. Id. at 341-42 (adopting discussion of “means by which misconduct not resulting in conviction may be factored into the district court’s sentencing decision” stated in United States v. Kim, 896 F.2d 678, 682-85 (2d Cir. 1990)). Guidelines Section(s) 5K2.0, which the district court used here, allows uncharged misconduct to support an upward departure Zamarripa, 905 F.2d at 341. The government need prove such misconduct only by a preponderance of the evidence. United States v. Sapp, 53 F.3d 1100, 1104 (10th Cir. 1995). [10] Nothing in the plea agreement prevented the district court from considering uncharged misconduct in sentencing. The agreement simply did not address this issue.[4] Thus, the sentence did not violate the plea agreement or make it an “empty bargain,” as Big Medicine contends. [11] Big Medicine is incorrect that the district court’s departure would have been different had it been based on only the seventy-two instances of the “never charged” criminal sexual abuse without consideration of the two charged but dismissed instances. Although the district court in fact considered all seventy-five acts of misconduct to which Big Medicine admitted, the inclusion of the two dismissed counts did not make a difference in the multi-count analysis. Because acts of criminal sexual abuse are excluded from being grouped together under the multi-count analysis, each act counts separately as one unit. SeeSection(s) 3D1.2 commentary application note 4, ex. (5) (rape of same victim on separate days not subject to grouping). For anything more than five units, the increase is five levels. Regardless of whether the precise number of units here was seventy-two, seventy-four or seventy-five, the multi-count analysis would remain the same.[5] [12] Big Medicine’s second argument regarding the district court’s consideration of uncharged misconduct fails for the same reason. This argument is apparently based on his contention that had he been convicted of the three counts contained in the original indictment, the multi-count analysis would
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have resulted in an increase of only three levels instead of five. See Guidelines Section(s) 3D1.4. Had this been the case, however, the court still could have considered the other seventy-two instances of uncharged misconduct in departing upward and could have arrived at the same five-level increase as it did here. Big Medicine did not “receive more time on a `departure’ than he could have received had he been convicted of the crimes leading the judge to depart.” Zamarripa, 905 F.2d at 342
(quotation omitted).
covers violations of section 2243(a), and the commentary to Section(s)2A3.2 states that it “applies to sexual acts that would be lawful but for the age of the victim.” [15] In determining that an offense level increase for the victim’s age was appropriate, the district court relied on Guidelines Section(s) 2A3.1(b)(2)(B) to add two levels.[6] However, Section(s) 2A3.1 applies to violations of statutes (18 U.S.C. §§ 2241, 2242) for which the victim’s age is not a consideration. Similarly, Section(s) 2A3.4 covers violations of 18 U.S.C. § 2244, abusive sexual contact, and also contains a provision in subsection (b)(2) for increasing the offense level in some circumstances based on the age of the victim. The background section of the commentary to Section(s) 2A3.4 states that “[t]he enhancement under subsection (b)(2) does not apply, however, where the base offense level is determined under subsection (a)(3) because an element of the offense to which that offense level applies is that the victim had attained the age of twelve years but had not attained the age of sixteen years.” Cf. United States v. Plaza-Garcia, 914 F.2d 345, 347 (1st Cir. 1990)(“Guideline Section(s) 3A1.1 provides for a two-level increase if the victim is `unusually vulnerable due to age;’ but it also states that no increase is warranted if `the offense guideline specifically incorporates this factor.'”). [16] We are persuaded that Guidelines Section(s) 2A3.2 already considers the victim’s age because it applies to violations of a statute that prohibits sexual acts with another person of a specified age. Age is thus an aggravating circumstance adequately considered by the Sentencing Commission, and the district court should not have used it to increase Big Medicine’s sentence. Although we affirm the court’s use of uncharged misconduct to depart upwardly, the court’s improper reliance on the victim’s age as a departure factor requires that we remand for resentencing. Zamarripa, 905 F.2d at 342. We do not address the reasonableness of the degree of departure. [17] The case is REMANDED to the district court with instructions to VACATE the sentence and RESENTENCE Big Medicine in light of this opinion.
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