United States v. Dedrick ( 2000 )

United States Court of Appeals
For the First Circuit
No. 99-2342
UNITED STATES OF AMERICA,
Appellee,
v.
ALAN LEE AMIRAULT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Selya and Lipez, Circuit Judges,
and Casellas,* District Judge.
Bjorn Lange, Assistant Federal Public Defender, for
appellant.
Jean B. Weld, Assistant United States Attorney, with whom
Paul M. Gagnon, United States Attorney, was on brief, for
appellee.
August 18, 2000
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*Of the District of Puerto Rico, sitting by designation.
SELYA, Circuit Judge. Defendant-appellant Alan Lee
Amirault pled guilty to possessing three items containing visual
depictions of minors engaged in sexually explicit conduct. See
18 U.S.C. § 2252(a)(4)(B) (1994) (current version at 18 U.S.C.
§ 2252(a)(4)(B)) (Supp. IV 1998)). After the district court
sentenced him to serve sixty months in prison, we vacated the
sentence. See United States v. Amirault, 173 F.3d 28 (1st Cir.
1999). At resentencing, the district court corrected its
original error, departed upward under USSG §5K2.0, and imposed
a forty-six month incarcerative term.1 Amirault appeals anew,
this time contesting the upward departure. We affirm.
I
We review departure decisions for abuse of discretion.
See United States v. Brewster, 127 F.3d 22, 25 (1st Cir. 1997).
When a departure occurs under the aegis of section 5K2.0, we
mount a tripartite inquiry. "First, we determine as a
theoretical matter whether the stated ground for departure is
permissible under the guidelines. If the ground is
theoretically appropriate, we next examine whether it finds
adequate factual support in the record. If so, we must probe
1The court appropriately employed the 1998 edition of the
United States Sentencing Guidelines. See United States v.
Harotunian, 920 F.2d 1040, 1041-42 (1st Cir. 1990). All
references herein are to that version.
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the degree of the departure in order to verify its
reasonableness." United States v. Dethlefs, 123 F.3d 39, 43-44
(1st Cir. 1997) (footnote and internal citations omitted).
In the case at hand, the lower court premised its
upward departure on a finding that the appellant had sexually
assaulted two of his sisters-in-law during their minority. The
appellant contests each of the elements of the Dethlefs inquiry.
We consider those three arguments seriatim. We then confront
the tag end of the appellant's asseverational array.
II
We deal expeditiously with the appellant's thesis that,
even if the sexual assaults occurred, they cannot support an
upward departure. This thesis rests on the premise that the
assaults happened many years before the offense of conviction
and, thus, were not "relevant conduct" under USSG §1B1.3. This
argument is a red herring.
In this case, the district court did not rest its
decision on a determination that the sexual assaults were
relevant conduct, but, rather, concluded that the acts warranted
an upward departure under section 5K2.0. In doing so, the court
drew an analogy to USSG §2G2.2, the guideline that deals with
trafficking in material involving the sexual exploitation of a
minor. One of the specific offense characteristics of the
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trafficking guideline mandates a five-level increase in the base
offense level "[i]f the defendant engaged in a pattern of
activity involving the sexual abuse or exploitation of a minor."
USSG §2G2.2(b)(4). The pattern of sexual abuse or exploitation
need not occur during the commission of the offense of
conviction in order to constitute this specific offense
characteristic. See id., comment. (n.1) (explaining that the
term "'[p]attern of activity involving the sexual abuse or
exploitation of a minor,'" as used in section 2G2.2(b)(4),
"means any combination of two or more separate instances of the
sexual abuse or sexual exploitation of a minor by the defendant,
whether or not the abuse or exploitation (A) occurred during the
course of the offense, (B) involved the same or different
victims, or (C) resulted in a conviction for such conduct").
This approach was sound. A sentencing court is free
to make suitable comparisons and draw plausible analogies in
considering whether to depart from the guideline sentencing
range. So it was here: although the guideline applicable to
the offense of conviction was section 2G2.4 (the possession
guideline), not section 2G2.2 (the trafficking guideline), see
Amirault, 173 F.3d at 35, the district court was entitled to
examine factors set out in section 2G2.2(b) in order to evaluate
the appropriateness of a departure. Simply because a specific
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offense characteristic is listed explicitly in one guideline but
not another does not mean that the factor may not be relevant to
the departure calculus in respect to an offense under the latter
guideline. See USSG §5K2.0, p.s. Finding, as we do, that the
lower court permissibly drew this analogy to USSG §2G2.2(b)(4)
confirms the suitability of the court's use of the sexual
assaults (if proven) as the cornerstone of the envisioned
departure.
The appellant's theory — that the district court
somehow was obliged to forgo the analogy and shape any such
departure around the contours of the relevant conduct guideline
— is jejune. The relevant conduct guideline is not directed
specifically at section 5K2.0 departures. Rather, its purpose
is to determine adjustments to the base offense level, taking
into account a defendant's overall behavior. See United States
v. Sanders, 982 F.2d 4, 10 (1st Cir. 1992). Adjustments and
departures are different species, dissimilar both in purpose and
kind. See, e.g., United States v. Ortiz-Santiago, 211 F.3d 146,
151 (1st Cir. 2000). Not surprisingly, therefore, upward
departures are allowed for acts of misconduct not resulting in
conviction, as long as those acts, whether or not relevant
conduct in the section 1B1.3 sense, relate meaningfully to the
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offense of conviction. See United States v. Kim, 896 F.2d 678,
684 (2d Cir. 1990).
This is such a case. The sexual assaults that the
sentencing court found the appellant had committed were part of
a pattern of sexual exploitation of the minor sisters-in-law
that included, inter alia, the taking of approximately forty
nude photographs and their retention in his child pornography
collection (for his sexual gratification). These snapshots not
only memorialized the assaults but also meaningfully related
them to the possession offense. Even if, as the appellant
contends, the snapshots were not "sexually explicit" under 18
U.S.C. § 2256(2) (1994), they nonetheless demonstrated rather
convincingly his prurient interest in sexualized images of
children. In fact, he admitted to the police and to the court
below that he kept these particular pictures secret and
masturbated with them. Because the retained photographs link
the appellant's conduct during the offense of conviction to the
earlier assaults, the assaults constituted an allowable ground
on which to premise an upward departure.
Battling on, the appellant insists that there exists
a temporal limit — in his words, a "temporal wall" — that
precludes the use of past conduct for sentence-enhancement
purposes, and that these two-decade-old incidents are too
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distant in time. To further this argument, he notes that the
sentencing guidelines themselves contain time limits on the use
of past convictions, see USSG §4A1.2(e), and cites cases that
question the propriety, in particular circumstances, of basing
sentence enhancements on unrelated, remote convictions, see,
e.g., United States v. Aymelek, 926 F.2d 64, 73 (1st Cir. 1991).
Yet, as the sentencing guidelines and the cases recognize, the
appropriateness of a temporal limit depends heavily on the
circumstances of the particular case. For example, even though
the sentencing guidelines generally restrict the use of dated
convictions, they do allow the sentencing court leeway to
consider such convictions if they provide "evidence of similar,
or serious dissimilar, criminal conduct." USSG §4A1.2, comment.
(n.8).
For the crime of trafficking in child pornography, the
Sentencing Commission has specifically addressed the propriety
of basing an upward departure on a dated pattern or incident of
sexual abuse or exploitation. The most pertinent guideline
commentary teaches, with an exception that has no bearing here,
that "[i]f the defendant engaged in the sexual abuse or
exploitation of a minor at any time (whether or not such abuse
or exploitation occurred during the course of the offense or
resulted in a conviction for such conduct) . . . an upward
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departure may be warranted." Id. §2G2.2, comment. (n.2)
(emphasis supplied). Having accepted the district court's
analogy to section 2G2.2, we see no reason to disregard this
commentary. It follows inexorably that there was no legal error
in the lower court's determination that the sexual assaults,
although occurring long ago, nevertheless could bear the weight
of an upward departure under section 5K2.0.
III
The appellant couples his challenge to the
appropriateness of the departure-justifying circumstance with a
challenge to the very existence of that circumstance. In this
vein, he maintains that the district court clearly erred in
finding that he had sexually assaulted his two sisters-in-law.
The appellant bases this remonstrance primarily on the two-
decade delay in the victims' revelations and the timing of those
revelations (they surfaced shortly after the commencement of his
divorce proceedings). He marries this attack to an attack on
the reliability of his supposed admissions to the police, noting
that the reported statements were neither recorded nor submitted
to him for signature and, in all events, were made in the
immediate aftermath of the turmoil engendered by his arrest.
Viewed in the abstract, these counter-arguments present
a plausible (although not inevitable) scenario different from
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that discerned by the district court. But plausibility is not
enough to carry the day. We review a sentencing court's
factfinding deferentially, mindful of that court's superior
coign of vantage. See Koon v. United States, 518 U.S. 81, 98
(1996); United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st
Cir. 1989). Give or take a few ruffles and flourishes, the
appellant hawks the same set of arguments here that he proffered
below. The sentencing court rejected those arguments, choosing
instead to credit the detailed accounts contained in the victim
impact statements and to take the appellant's initial admissions
of inappropriate contact at face value. The court found added
support for the occurrence of the sexual assaults in the
appellant's taking and retention of the nude photographs of his
sisters-in-law and credited the suggestion that the victims
failed to speak out earlier due to fear, shame, and
mortification.
There is no principled way that we can second-guess
these findings. Because the record adequately supports the
court's version of the controverted events, its rejection of the
appellant's subsequent disavowals cannot be clearly erroneous.
See United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990)
(stating that a sentencing court's determination cannot be
clearly erroneous "where there is more than one plausible view
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of the circumstances" and the court chooses among them). This
is especially so because the appellant's position hinges on
questions of credibility, and such questions are uniquely within
the competence of the sentencing court. See United States v.
Sandoval, 204 F.3d 283, 287 (1st Cir. 2000); United States v.
Conley, 156 F.3d 78, 85 (1st Cir. 1998).
IV
The appellant further contends that, even if the
district court had an appropriate, factually acceptable basis
for departing upward, the extent of the departure was excessive.
Because a sentencing court possesses considerable latitude in
fixing the degree of an unguided departure, contentions of this
sort usually face tough sledding in an appellate venue. This
case is no exception.
The court of appeals will interfere in the sentencing
court's determination of the extent of an unguided departure
only upon a showing that the court has committed a manifest
abuse of discretion. See Brewster, 127 F.3d at 31. In this
instance, the magnitude of the departure, standing alone, is
unremarkable. Although the district court departed upward by
nineteen months to a point approximately seventy percent above
the maximum permitted under the applicable guideline sentencing
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range,2 we have upheld more onerous upward departures where the
circumstances warranted. See, e.g., United States v. Rostoff,
53 F.3d 398, 411 (1st Cir. 1995) (collecting cases). Here,
moreover, the court sufficiently explained the extent of the
departure by drawing an analogy to USSG §2G2.2(b)(4), which
provides for a five-level increase in the applicable offense
level if there is a pattern of activity involving the sexual
abuse of a minor. The court fortified this explanation by a
further analogy to USSG §2A3.1 (covering criminal sexual abuse),
which if directly applicable (i) would have dictated an offense
level of twenty-seven — six levels higher than that calculated
for the appellant, even after taking the upward departure into
account — and (ii) would have yielded a sentencing range of
seventy to eighty-seven months. See USSG Ch.5, Pt.A (sentencing
table). The appellant's riposte — that he was sentenced as if
he had sexually penetrated his sisters-in-law, notwithstanding
the absence of any evidence of penetration — is a blustery
effort to distract attention from what really happened. In all
events, the charge comprises rank conjecture, wholly unsupported
by the record.
2The appellant's pre-departure sentencing range topped out
at twenty-seven months (offense level sixteen; criminal history
category I). The lower court departed upward by five levels and
imposed a forty-six month incarcerative sentence.
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V
The appellant has one more sheaf of arrows in his
quiver. He posits that the upward departure, even if otherwise
unimpugnable, violated his rights under the Ex Post Facto Clause
and the Due Process Clause. The government brands these claims
as waived.
We need not tarry over the waiver question. The
appellant raised this matched set of constitutional claims at
the original disposition hearing, but to no avail. He then
advanced them in his first appeal, but we found it unnecessary
to go down that road. See Amirault, 173 F.3d at 35. Although
the appellant did not reassert the claims at resentencing, he
did not explicitly renounce them. We decline to find waiver in
these circumstances. Cf. United States v. Ticchiarelli, 171
F.3d 24, 33 (1st Cir. 1999) ("Our waiver doctrine does not
require that a defendant, in order to preserve his rights on
appeal, raise every objection that might have been relevant if
the district court had not already rejected the defendant's
arguments.").
From the appellant's standpoint, however, this is a
Pyrrhic victory. The law (or a judicial decree) violates the Ex
Post Facto Clause if it "changes the punishment, and inflicts a
greater punishment, than the law annexed to the crime, when
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committed." Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798).
The appellant asserts that the upward departure worked such a
violation because it increased his sentence based on conduct
that happened twenty years earlier (before the inception of the
federal sentencing guidelines and before the date on which
possession of child pornography became a federal offense).
This construct is ingenious, but incorrect. The
Supreme Court recently declared "consideration of information
about the defendant's character and conduct at sentencing does
not result in 'punishment' for any offense other than the one of
which the defendant was convicted." Witte v. United States, 515
U.S. 389, 401 (1995). Thus, to the extent that the sentence
imposed on the appellant inflicted a harsher punishment, it did
so not with respect to the earlier sexual assaults but, rather,
with respect to his current crime: the possession of child
pornography. It follows inexorably that no ex post facto
problem exists. See Gryger v. Burke, 334 U.S. 728, 732 (1948)
(reasoning to this effect in holding that an habitual offender
statute does not violate the Ex Post Facto Clause); United
States v. Regan, 989 F.2d 44, 48 (1st Cir. 1993) (noting that
"[t]he guidelines' criminal history provisions are routinely
applied to increase sentences based upon convictions that
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occurred before the guidelines were adopted"); see also United
States v. Forbes, 16 F.3d 1294, 1302 (1st Cir. 1994).
In a related vein, the appellant contends that the
upward departure unconstitutionally deprived him of a statute-
of-limitations defense and effectively increased his punishment
by the use of temporally remote conduct for which he could no
longer have been prosecuted. This argument is shopworn.
It is by now firmly settled that a sentencing court may
consider as relevant conduct acts which could not be
independently prosecuted because of the passage of time. See
United States v. Valenti, 121 F.3d 327, 334 (7th Cir. 1997)
(collecting cases); see also United States v. Dolloph, 75 F.3d
35, 40 (1st Cir. 1996) (explaining that a sentencing court may
consider, as relevant conduct, acts that are not within the
court's jurisdiction to try). We hold that the same principle
obtains in the realm of departures: a sentencing court may
consider as a ground for departure under USSG §5K2.0 conduct
that could not be independently prosecuted because of the
passage of time.
Finally, the appellant maintains that if the sentencing
guidelines allow consideration of the sexual assaults, their
application violates due process. The appellant is wrong.
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From the standpoint of due process, a district court
properly may consider uncharged conduct at sentencing (as long
as that conduct either is admitted or reliably proved by a
preponderance of the evidence). See Witte, 515 U.S. at 401.
Even acquitted conduct may be so considered. See United States
v. Watts, 519 U.S. 148, 157 (1997) (per curiam); United States
v. Rodriguez, 112 F.3d 26, 31 (1st Cir. 1997); United States v.
Mocciola, 891 F.2d 13, 17 (1st Cir. 1989). Despite the
protracted length of time that passed between the sexual
assaults and the appellant's commission of the child pornography
offense, the Due Process Clause furnishes no basis for
prohibiting a sentencing court from assessing the impact of the
earlier conduct en route to determining the appropriateness vel
non of an upward departure.3
VI
3Although the appellant phrases this argument in terms of
the sentencing guidelines, we note that the adoption of the
guidelines did not materially alter a sentencing court's
historic discretion to consider "'the fullest information
possible concerning the defendant's life and characteristics.'"
Watts, 519 U.S. at 152 (quoting Williams v. New York, 337 U.S.
241, 247 (1949)); see also 18 U.S.C. § 3661 (1994) ("No
limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted of an
offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence.").
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We need go no further. Because the appellant was
lawfully sentenced the second time around, the judgment below
will be
Affirmed.
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