United States v. Joe , 696 F.3d 1066 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
October 16, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 11-4001
v.
(D.C. No. 2:09-CR-00920-TS-3)
JOHNSON JOE,
Defendant - Appellant.
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 11-4058
v.
(D.C. No. 2:09-CR-00920-TS-1)
CYNTHIA BITSUIE JONES,
Defendant - Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
Elizabeth L. Harris of Jacobs Chase, LLC, Denver, Colorado, for Appellant Joe.
Scott Keith Wilson, Assistant Federal Public Defender (Steven B. Killpack,
Federal Public Defender, (Kathryn N. Nester, Federal Public Defender, on the
reply brief), Bretta Pirie, Federal Public Defender’s Office, with him on the
brief), Salt Lake City, Utah, for Appellant Jones.
Elizabethanne C. Stevens, Assistant United States Attorney (Carlie Christensen,
United States Attorney, with her on the brief), Salt Lake City, Utah, for Appellee.
Before LUCERO, HOLLOWAY and TYMKOVICH, Circuit Judges. *
HOLLOWAY, Circuit Judge.
These two direct criminal appeals arise from the same incident and have
one sentencing issue in common. Accordingly, we address them together. The
crime in which the two Defendants-Appellants participated included a brutal
beating and sexual assault that came at the end of a bout of heavy drinking. Mr.
Joe and Ms. Jones each eventually entered a guilty plea to a single charge of
aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(1).
Because the incident occurred on the Navajo Reservation and both
Defendants are enrolled members of the Navajo Nation, the district court had
jurisdiction under 18 U.S.C. § 3242. We have jurisdiction on appeal under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1).
*
After examining the appellate record, this three-judge panel unanimously
determined that oral argument would not be of material assistance in the
determination of appeal no. 11-4001, and therefore honored Defendant-Appellant
Johnson Joe’s request to submit the case on the briefs. See Fed. R. App. P. 34(a);
10th Cir. R. 34.1(G). Mr. Joe’s case is therefore ordered submitted without oral
argument.
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I
The victim of the attack, C.B., was looking for a job in Montezuma Creek,
Utah, when she encountered Mr. Joe, whom she knew because they had worked
together previously. They decided to drink together and soon met Ms. Jones, who
was with her two children, 21-year-old Michael Whitehorse and his seventeen-
year-old sister, A.W. The five decided to drink together and bought a total of 66
cans of beer. Using Ms. Jones’s truck and the victim’s car, they drove to a place
a few miles from town and by midnight had drunk all the beer.
At that point, the victim walked off to urinate while all the others left in
Ms. Jones’s truck. However, the four returned only a few minutes later. After
Ms. Jones had made some disparaging remarks to C.B., Ms. Jones and her
daughter A.W. started punching the victim. They continued the attack, punching
and then kicking the victim when she fell to the ground. C.B. would later be
treated for 32 separate contusions, lacerations, and abrasions.
While C.B. was on the ground and helpless from the beating and kicking,
A.W. held her arms while Ms. Jones removed her clothing. Jones then ordered
her son, Mr. Whitehorse, to rape C.B. He was unable to do so, but did touch
C.B.’s genital area. Ms. Jones mocked her son for being unable to perform and
ordered Mr. Joe to rape C.B. (Briefs for both sides say that Ms. Jones “directed”
or “ordered” the others to assault the victim with no further explanation of her
authority.) Meanwhile, C.B. called to Mr. Joe to help her. Instead, however, Mr.
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Joe laid on top of the victim and penetrated her vagina with his fingers. A.W. and
Ms. Jones held C.B.’s arms down during the entire assault.
At some point, C.B. lost consciousness. She awoke naked and alone in the
frigid December night. She managed to gather her clothes and start her car
without the missing keys, and she then drove to a hospital.
II
As noted, both Mr. Joe and Ms. Jones eventually entered guilty pleas to the
first count of the indictment, which alleged aggravated sexual abuse. 1 Michael
Whitehorse also pleaded guilty, although to a lesser charge of abusive sexual
contact in violation of 18 U.S.C. § 2244(a)(1). After the guilty pleas, the district
court directed the preparation of a presentence report (PSR) for each of them. In
both cases, the PSR recommended that the offense level be increased by four
under U.S.S.G. § 2A3.1(b)(1) because the offense involved the use of force
against the victim. 2 In the case of Ms. Jones, the PSR also recommended that her
1
The indictment stated two counts: Count I charged Cynthia Bitsuie
[Jones], Michael Whitehorse, and Johnson Joe, enrolled members of the Navajo
Nation, while within Indian Country, with using force against C.B., causing C.B.
to engage in a sexual act, and aiding and abetting therein, all in violation of 18
U.S.C. § 2241(a)(1), 18 U.S.C. § 1153(a), and 18 U.S.C. § 2.
Count II charged the same three Defendants, all enrolled members of the
Navajo Nation, within Indian Country, with knowing assault on C.B. causing
serious bodily injury in violation of 18 U.S.C. § 113(a)(6), 18 U.S.C. § 1153(a),
and 18 U.S.C. § 2.
2
In both cases the PSR also applied a two-level enhancement under
U.S.S.G. § 2A3.1(b)(1) because the victim sustained serious bodily injury. That
(continued...)
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offense level be further increased by two under U.S.S.G. § 3A1.3 because the
victim had been restrained during the offense. In the case of Mr. Joe, the
government objected to the PSR because it did not include an enhancement for the
restraint of the victim.
Neither Defendant contested the facts underlying these recommendations,
i.e., that force had been used and that the victim had been restrained. Both
Defendants, however, objected to the recommendation (that of the PSR in the case
of Ms. Jones and of the government in the case of Mr. Joe) to apply both the use-
of-force and the restraint-of-the-victim enhancements. The district judge
overruled these objections in both cases.
In Ms. Jones’s case, the PSR found that the applicable sentencing range
under the advisory Guidelines was 168 to 210 months of imprisonment. The
district judge decided to vary downward from that range and sentenced her to 140
months’ imprisonment. In Mr. Joe’s case, the PSR found that the applicable
Guidelines range was 125 to 168 months, but with the restraint-of-the-victim
enhancement added by the court, the resulting advisory Guideline range was the
same as for Ms. Jones – 168 to 210 months. The district judge again decided to
vary downward from that range and sentenced Mr. Joe to 110 months’
imprisonment. Both Defendants were also sentenced to a life term of supervised
2
(...continued)
enhancement has not been challenged.
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release to commence upon their release from incarceration. Neither Defendant
objected to this provision of extended supervised release.
III
On appeal, both Mr. Joe and Ms. Jones contend that the district court erred
by applying both the enhancement for the use of force and the enhancement for
the restraint of the victim. We apply the de novo standard of review because the
issue is one of interpretation of the Guidelines. See United States v. Rojas, 531
F.3d 1203, 1207 (10th Cir. 2008).
In the appeal of Mr. Joe, the government contends that we should review
this issue only for plain error because it says that the argument Mr. Joe makes on
appeal was not raised in the district court. We conclude that the argument raised
in the district court was substantively the same as this argument now asserted on
appeal. This argument is essentially an objection to double counting, a term we
spell out below. We note that in a memorandum submitted to the district court
covering several issues, Mr. Joe’s counsel clearly rejected the government’s
contention that the restraint-of-the-victim enhancement should apply in his case.
In support of his opposition to the government’s contention on this enhancement,
Mr. Joe’s attorney stated, inter alia:
In any event, the Application Notes to Section 3A1.3 also state that
the adjustment should not be applied “where the offense guideline
specifically incorporates this factor, or where the unlawful restraint
of a victim is an element of the offense itself . . . .” The unlawful
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restraint is both an element of the charged offense and specifically
incorporated by the offense guideline.
I Supp. Rec. at 27. Thus we are convinced that the essence of the double
counting objection was asserted. Therefore, we reject the government’s
contention that we should review only for plain error on this issue.
We note for clarification that most cases from our court dealing with the
issue of “double counting” in the context of sentencing enhancements employ an
analysis different from the one we apply here. This court has often said that
impermissible “double counting” occurs “when the same conduct on the part of
the defendant is used to support separate increases under separate enhancement
provisions which necessarily overlap, are indistinct, and serve identical
purposes.” United States v. Reyes Pena, 216 F.3d 1204, 1209 (10th Cir. 2000).
But we have also recognized that the Guidelines themselves provide an alternative
principle of double counting, and our analysis here is based on that alternative
principle to which we now turn.
In United States v. Coldren, 359 F.3d 1253, 1256 (10th Cir. 2004), we
noted: “Of course, if a particular guideline specifically speaks to double
counting, such an instruction would be controlling.” We must determine whether
such an instruction exists here and prohibits the “double counting” underlying the
calculation of Defendants’ offense levels. In this connection, the Guidelines
instruct courts not to apply the restraint-of-the-victim enhancement “where the
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offense guideline specifically incorporates this factor, or where the unlawful
restraint of a victim is an element of the offense itself (e.g., this adjustment does
not apply to offenses covered by § 2A4.1 (Kidnapping, Abduction, Unlawful
Restraint)).” U.S.S.G. § 3A1.3, cmt. n.2. 3
Accordingly, we must consider whether the restraint-of-the-victim
enhancement is specifically incorporated in the use-of-force enhancement or
whether physical restraint – as our cases have construed the term – is an element
of the crime of aggravated sexual abuse, which is charged against the Defendants
here. If either situation exists, the restraint-of-the-victim enhancement should not
have been applied. U.S.S.G. § 3A1.3, cmt. n.2. This issue requires that we
carefully examine the restraint-of-the-victim enhancement.
First, however, we must consider what it means for one Guideline
enhancement to specifically incorporate another enhancement. The government
contends that we should examine only the express language of the offense
guideline. We reject the invitation to so narrowly confine our analysis of the
applicable guideline.
In Coldren, we undertook a different analysis. Mr. Coldren had been
convicted of being a felon in possession of a firearm. He challenged the
sentencing judge’s decision to enhance his offense level both for assaulting a
3
In each of these cases, the PSR used the 2009 edition of the Guidelines
Manual, and we will do so on appeal.
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police officer by pointing a rifle at him during commission of the crime, and for
using the weapon in connection with another felony. The Coldren panel noted
that the Guidelines commentary directed sentencing courts not to apply the
assault-of-a-police-officer enhancement of U.S.S.G. § 3A1.2 “if the offense
guideline specifically incorporates this factor.” 359 F.3d at 1256 (quoting
U.S.S.G. § 3A1.2 cmt. n.2). Rather than proceeding next to examine the language
of the offense guideline, however, Coldren immediately refined and restated the
issue: We said that the inquiry was whether “the offense conduct . . . specifically
addresses whether the defendant assaulted a law enforcement officer . . . .” Id.
(emphasis added; emphasis in original removed). We proceeded to examine and
discuss the scope of application of the enhancements at issue, but we did not
simply examine the language of the enhancements to determine if the words of
one were “specifically incorporated” in the other.
Not only is Coldren binding precedent on the question of how to analyze
the specific incorporation issue, but the alternative approach for which the
government argues is impracticable. This is because the offense guideline for the
crime of conviction at issue here is (not atypically) extremely terse:
(a) Base Offense Level:
(1) 38, if the defendant was convicted under 18 U.S.C. §
2241(c); or
(2) 30, otherwise.
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U.S.S.G. § 2A3.1(a). The use-of-force enhancement in U.S.S.G. § 2A3.1(b)(1) is
not even apparent on the face of that subsection, which says only that the offense
level is to be increased by four if “the offense involved conduct described in 18
U.S.C. § 2241(a) or (b).” 4
Accordingly, adapting the Coldren approach to the instant case we must
determine whether the offense conduct specifically addressed whether the victim
was physically restrained. The offense conduct here was aggravated sexual
assault, committed with the use of force. We have held that this use-of-force
enhancement 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. That is, a force 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.
United States v. Reyes Pena, 216 F.3d 1204, 1211 (10th Cir. 2000) (quotation
marks and citations omitted).
The restraint-of-the-victim enhancement at issue here directs the court to
increase the defendant’s offense level by two if “a victim was physically
restrained in the course of the offense . . . .” U.S.S.G. § 3A1.3. And to assist in
4
The base offense level of 30 is mandated under U.S.S.G. § 2A3.1(1) for
either “Sexual Abuse” under 18 U.S.C. § 2242 or “Aggravated Sexual Abuse”
under § 2241. “The degree of force necessary to violate § 2241 warrants the four-
level enhancement under § 2A3.1(b)(1).” United States v. Chee, 514 F.3d 1106,
1116 (10th Cir. 2008).
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application of the guideline, the accompanying commentary offers (by cross-
reference to another section) a definition of “physically restrained”: “‘Physically
restrained’ means the forcible restraint of the victim such as by being tied, bound,
or locked up.” U.S.S.G. § 1B1.1 cmt. n.1(k). Like most other courts, we have
held that the examples listed in the definition are intended only as examples and
not as an exhaustive list of how a victim may be physically restrained. See
United States v. Ivory, 532 F.3d 1095, 1105 (10th Cir. 2008).
Some courts have limited their interpretation of the “physically restrained”
phrase to acts that are similar to the listed examples. See, e.g., United States v.
Anglin, 169 F.3d 154, 164 (2d Cir. 1999). Our court has taken a different
approach, however. In United States v. Miera, 539 F.3d 1232 (10th Cir. 2008),
the victims of a bank robbery had been ordered to put their hands up and not
move. We found that the restraint enhancement had been properly applied. In the
course of our discussion, we noted that “physical restraint is not limited to
physical touching of the victim.” 539 F.3d at 1234 (quoting United States v.
Fisher, 132 F.3d 1327, 1329 (10th Cir. 1997)). Our holding in Miera was similar
to previous holdings. See Fisher, 132 F.3d 1327 (pointing gun at bank guard was
physical restraint); United States v. Pearson, 211 F.3d 524, 527 (10th Cir. 2000)
(same). 5
5
These cases arose under U.S.S.G. § 2B3.1(b)(4)(B), which applies to
robberies. But that provision, like the one at issue here, uses the term “physically
(continued...)
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Mr. Miera had argued that his case was different from previous ones in
which we had upheld the restraint-of-the-victim enhancement in robbery cases.
Miera argued that in those cases a gun had been pointed at a victim to achieve
restraint, but in his case his accomplice had waved the gun around the room and
had not pointed the gun at anyone in particular. We said that even if that were
true, “such conduct would, in all likelihood, have had the effect of physically
restraining everyone in his presence.” 539 F.3d at 1235.
Thus, although the Guidelines provision we are examining here uses the
term “physically restrained,” and “physically” would seem to be a modifier of
“restrained,” our cases have wrenched “physically” from its original place so that
it now seems to describe the conduct or the inner thoughts of the victim. Thus,
we have said that keeping victims from “even considering an escape” is to
physically restrain them. Miera, 539 F.3d at 1235. Indeed, it may seem as
though our construction has gone so far as to render “physically” a nullity: if
preventing a victim from thinking about escape, see id., is to “physically restrain”
that victim, then it is quite a challenge to conceive of a restraint that would not be
deemed “physical” under this court’s case law.
This panel is, of course, bound by the decisions of prior panels, and we
must find the path laid out by our precedents. We have reviewed the decisions
5
(...continued)
restrained,” and the same definition of that term applies in both the robbery and
the sexual assault contexts.
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because their broad construction of “physically restrained” is the very foundation
of the argument that we address. Quite apart from whether our cases or cases like
Anglin better discern the meaning of “physically restrained,” we conclude that our
cases have defined the term very broadly indeed.
We must next determine whether the breadth of our precedents is so great
as to completely overlap the reach of the use-of-force enhancement. That is, we
now reach the crucial question whether the restraint-of-the-victim enhancement –
as our cases have construed it – is incorporated in the offense guideline or is an
element of the offense itself. We conclude that it is such an element of the
offense itself. Quite simply, it appears to be impossible to commit the offense of
aggravated sexual abuse under § 2241(a)(1) without also applying force that, in
our circuit, constitutes physical restraint of the victim.
At oral argument, counsel for the government was challenged to propose a
case that would involve aggravated sexual abuse with the use of force without
physical restraint of the victim. Government counsel suggested an assault by
surprise might occur without the victim being restrained. But when we consider
the definition of aggravated sexual abuse with the use of force, that hypothetical
seems very unrealistic.
We therefore hold that the district court erred when it enhanced
Defendants’ offense levels for physical restraint of the victim as well as
enhancing for the use of force against her. The government, which has the burden
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of proof of showing harmlessness, see United States v. Kieffer, 681 F.3d 1143,
1169 (10th Cir. 2012), has not argued that this error was harmless. Our cases lead
us to the conclusion that it was not.
If the government had argued that this error was harmless, no doubt that
argument would have been centered on the fact that the district judge varied
downward from the incorrectly calculated guidelines range to reach the sentence
that he concluded was most appropriate in view of all of the factors listed in 18
U.S.C. § 3553(a). We have, however, emphasized the importance of the guideline
range as the starting point in the process. See, e.g., Kieffer, 681 F.3d at 1170.
We said there that “where the beginning point for a sentencing court’s analysis of
the § 3553(a) factors is measurably wrong, the ending point usually will result
from an incorrect application of the Guidelines.” Id. (emphasis in original). 6
The government has not argued that the error is harmless, and we believe
that the error is not obviously harmless. As explained herein, we remand for re-
sentencing in both of these appeals.
IV
6
In Kieffer, the sentencing judge had expressed the intention of giving a
within Guidelines sentence. The government has not, however, argued in this
case that the principle just quoted in the text should be limited to that context.
We therefore do not decide that question, although we do note that the quoted
language could certainly lend support to the proposition that the principle is not
so limited.
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Both Mr. Joe and Ms. Jones were sentenced to life terms of supervised
release upon completion of their terms of imprisonment. Mr. Joe appeals from
that decision, but Ms. Jones does not. Mr. Joe concedes that our review on this
issue is only for plain error because no objection was made in the district court to
this part of the sentence. In order to prevail on plain error review, a party must
show there is “(1) error, (2) that is plain, (3) which affects [the party's]
substantial rights, and (4) which seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Romero, 491 F.3d 1173,
1178 (10th Cir. 2007).
Mr. Joe’s argument is a procedural one. He focuses on the fact that the
PSR had said and the judge apparently believed – both erroneously according to
Mr. Joe – that a life term of supervised release was authorized by the Guidelines.
At sentencing, the court imposed a life term without explanation . That sentence
was not authorized under the Guidelines, Mr. Joe maintains, because U.S.S.G. §
5D1.2(c) authorizes a life term only for certain offenses that are not involved
here.
Aggravated sexual abuse, the crime of conviction here, is a Class A felony.
See 18 U.S.C. § 3559(a)(1). Under U.S.S.G. § 5D1.2(a)(1), the term of
supervised release for a Class A felony is at least three years but not more than
five years. That provision, however, is subject to one qualification: Under
U.S.S.G. § 5D1.2(c), the term of supervised release “shall be not less than any
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statutorily required term of supervised release.” In this case, there is a statutorily
required term of supervised release. The statute governing supervised release
provides that the term for a violation of 18 U.S.C. § 2241 shall be “any term of
years not less than 5, or life.”
Mr. Joe acknowledges that these provisions interact to amend the basic
provision of § 5D1.2(a)(1) – which provides for a term from three years to five
years – so that his minimum term of supervised release is five years, not three
years. But Mr. Joe argues that five years is also the maximum term authorized.
This is certainly a plausible reading of these interacting statutory and guidelines
provisions. But on plain error review, Mr. Joe cannot prevail unless his reading
of these provisions is the obviously correct reading. To put it the other way
round, Mr. Joe must show that it was plain error for the district court to construe
the guidelines provisions as authorizing the life term of supervised release that
was imposed.
The government contends that Mr. Joe’s argument is foreclosed by United
States v. Poe, 556 F.3d 1113 (10th Cir. 2009). In that case, Mr. Poe had been
sentenced to a ten-year term of supervised release, which he challenged as an
upward variance that the sentencing court failed to justify, arguing that the upper
limit under the Guidelines was six years. The government argued that when the
statutory minimum is greater than the applicable guidelines range, the guideline
range is equivalent to the statutory range.
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The panel in Poe declined to address the issue, holding that any error was
not plain. The panel noted that Mr. Poe had not pointed to any Supreme Court or
Tenth Circuit case addressing the issue. That fact, plus the fact that the panel
concluded that the Guidelines were not “clearly and obviously” limited to Poe’s
interpretation, meant that there was no plain error. The government insists that
this precedent should control here. We agree.
Here, as in Poe, the period of supervised release imposed by the sentence
was the statutory maximum for the crime of conviction. Here, as in Poe, the
maximum term under the Guidelines was less than the statutory maximum
(ignoring, for the moment, the government’s argument that the statutory range
becomes the Guidelines range in these circumstances). 7 As in Poe, we cannot say
that the government’s reading of the Guidelines is obviously wrong. Therefore,
we are constrained by Poe to find no plain error here in the imposition of the
lifetime term of supervised release.
7
In Poe, the statutory minimum period of supervised release was greater
than the Guidelines maximum term, whereas in the instant case the statutory
minimum was equal to the Guidelines maximum term. But that difference is
inconsequential because the sentence challenged here was the maximum statutory
sentence.
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Conclusion
We REMAND for the district court to vacate the sentences of both Mr. Joe
and Ms. Jones and to re-sentence both in accordance with our holdings herein.
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