United States v. Simon White, Jr. , 349 F. App'x 112 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2310
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Simon Anthony White, Jr., *
* [UNPUBLISHED]
Appellant. *
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Submitted: March 9, 2009
Filed: September 8, 2009
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Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges.
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PER CURIAM.
Simon Anthony White, Jr., pled guilty to sexual abuse of a minor, in violation
of 18 U.S.C. §§ 1151, 1153, and 2243(a). At sentencing, the district court1 calculated
an advisory guideline range of 108 to 135 months’ imprisonment, and sentenced
White to 144 months’ imprisonment. White appeals his sentence, arguing that the
district court committed procedural error and imposed a substantively unreasonable
sentence. We affirm.
1
The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.
I.
In January 2007, White worked as an overnight security guard at Seven Clans
Casino and Hotel in Thief River Falls, Minnesota. After finishing work at 8:00 a.m.
on January 30, he went to a hotel room at the casino where his adult step-niece,
Jennifer Stately, was staying along with a friend and Stately’s fifteen-year-old cousin,
H.S. White and Stately mixed an alcoholic drink and then left the hotel together for
a drive in a car. During the drive, they continued to drink, and White twice asked
Stately what she would do if he touched her. She responded that she would kick him,
run, and call the police.
White eventually dropped Stately back at the hotel, and a few minutes later, he
returned to her hotel room. White asked for more alcohol, but Stately did not have
any, so White just sat down on a chair in the room. Stately left the room to take a
shower, and shortly thereafter, her friend also left the room, leaving White alone with
H.S., who was sleeping on a bed. H.S. then awoke with White laying on top of her,
penetrating her vagina. White remained on top of H.S. for a couple of minutes. He
eventually removed himself from the bed, told H.S. to put her clothes back on, and left
the hotel room.
H.S. reported the incident and underwent a sexual assault examination. DNA
from sperm obtained during the examination matched DNA from a saliva sample that
White provided to law enforcement. A federal grand jury indicted White for sexual
abuse of a minor, in violation of 18 U.S.C. §§ 1151, 1153, and 2243(a). White
remembered that he was in the hotel room drinking, but said that he had no
recollection of the other events of the morning, and could not believe that the
allegations by H.S. were true. After learning of the DNA match, however, he pled
guilty to the charge.
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At sentencing, White did not object to the presentence investigation report
(“PSR”) or to the calculation of the advisory guideline range. The court correctly
determined that the guideline range was 108 to 135 months’ imprisonment,
corresponding to an offense level of 29 and a criminal history category III. After
hearing from White and the mother of H.S., the district court imposed a sentence of
144 months’ imprisonment, which it described as “a departure upward from the
sentencing guideline range, although it is not substantial.” The court acknowledged
that it could not presume the guideline range to be reasonable, and explained that it
thought the 144-month sentence was appropriate because “the community needs” to
have White in custody for “basically ten solid years,” and because “[t]hey need to also
recognize the seriousness of this and the fact that a child ought to be protected.”
The court also emphasized that this offense “is not the first time that [White]
has been engaged in this kind of thing.” The court had elaborated on White’s past
behavior earlier in the hearing:
[W]hile I do not count it as part of your criminal history for sentencing
enhancement purposes, this is not the first time that you have forgotten
a sexual assault. You do not get two bites of this kind of apple. What
you have done is a horrifying, unspeakable crime to somebody who had
no reason to be subjected to it and there is not an excuse for it. You
haven’t offered one – which is fine – but simply to say, “Well, I don’t
remember” doesn’t cut it. This child did not deserve what happened to
her. She never could have, she never did.
The prior “forgotten” sexual assault to which the court referred is described in
paragraph 28 of White’s PSR. In August 1982, when White was eighteen, he pled
guilty in Minnesota state court to false imprisonment arising out of an alleged sexual
assault. He initially had been charged with more serious assault and criminal sexual
conduct charges, but these charges were dismissed as part of a plea agreement.
According to court documents, the victim, who is the mother of one of White’s
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children, alleged that he grabbed her while she was walking alone and pulled her into
a nearby wooded area. There, he struck her many times, threw her to the ground,
pulled down her pants, and threatened to rape and kill her. The victim was able to
escape briefly, but White caught her again and threatened to kill her with a knife that
he produced. The victim struggled to get away and yelled for help until two men
arrived and pulled White away from her. White admitted to holding down the victim
and hitting her in the face, but claimed that he did not remember pulling down her
pants and did not carry a knife. The presentence report did not include this offense
in White’s criminal history calculation because it was outside the applicable time
period under the guidelines. See USSG § 4A1.2(e).
White appeals his sentence, arguing that the district court committed procedural
error and imposed a substantively unreasonable sentence.
II.
Under the framework of Gall v. United States, 128 S. Ct. 586 (2007), we must
first consider whether the district court committed a “significant procedural error”
when imposing sentence. Id. at 597. For the first time on appeal, White points to two
alleged procedural errors. Because he did not raise these objections at sentencing, we
review for plain error. See United States v. Vaughn, 519 F.3d 802, 805 (8th Cir.
2008).
White first contends that the district court erred by departing upward for
underrepresentation of criminal history pursuant to USSG § 4A1.3 without conducting
the appropriate analysis under that section. The record shows, however, that the
district court did not apply § 4A1.3 in calculating the guideline range. Although the
court stated that its sentence was “a departure upward,” it is clear from its explanation
that the court actually calculated an advisory guideline range without a traditional
departure under the guidelines, but then varied from the guideline range based upon
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the factors set forth in 18 U.S.C. § 3553(a). See United States v. Dehghani, 550 F.3d
716, 723 n.4 (8th Cir. 2008). Therefore, the district court was not required to conduct
an analysis under § 4A1.3, and it did not commit procedural error.
White next contends that the district court erred in basing White’s sentence on
its finding that the instant offense was “not the first time that [White] has been
engaged in this kind of thing.” According to White, this was error because the
“district court made no specific findings” regarding White’s previous behavior, and
the information contained in the PSR was unreliable. To the extent that White is
arguing that the court based its sentence on clearly erroneous facts, his claim is
without merit. White did not object to the presentence report, and the district court
was therefore permitted to accept the facts contained in the report as true when
determining an appropriate sentence. United States v. Razo-Guerra, 534 F.3d 970,
975 (8th Cir. 2008). Paragraph 28 of the PSR described White’s previous guilty plea
to the charge of false imprisonment arising out of an alleged sexual assault, and
recounted the factual circumstances of the offense. Therefore, the district court
properly relied on these factual statements, including the victim’s report of the offense
conduct and White’s assertion that he could not recall aspects of the incident. There
was no procedural error.
White also argues that his sentence was substantively unreasonable because it
was greater than necessary to comply with the sentencing factors set forth in
§ 3553(a). We review the reasonableness of the sentence under a deferential abuse-of-
discretion standard. Gall, 128 S. Ct. at 597. The district court imposed a sentence of
144 months’ imprisonment, which was nine months greater than the advisory
guideline range. Giving due deference to the district court’s careful consideration of
the § 3553(a) factors, we see no basis to conclude that White’s sentence is
substantively unreasonable.
For these reasons, the judgment of the district court is affirmed.
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