735 Fed.Appx. 937 (10th Cir. 2018), 16-8019, United States v. Pulham

Docket Nº:16-8019
Citation:735 Fed.Appx. 937
Opinion Judge:Jerome A. Holmes, Circuit Judge
Party Name:UNITED STATES of America, Plaintiff-Appellee v. JC Christopher PULHAM, Defendant-Appellant.
Attorney:James C. Anderson, Esq., Office of the United States Attorney, District of Wyoming, Cheyenne, WY, Jason M. Conder, Office of the United States Attorney, District of Wyoming, Lander, WY, David A. Kubichek, Esq., Office of the United States Attorney, District of Wyoming, Casper, WY, for Plaintiff-A...
Judge Panel:Before HARTZ, BALDOCK, and HOLMES, Circuit Judges. HARTZ, Circuit Judge, dissenting:
Case Date:May 24, 2018
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 937

735 Fed.Appx. 937 (10th Cir. 2018)

UNITED STATES of America, Plaintiff-Appellee

v.

JC Christopher PULHAM, Defendant-Appellant.

No. 16-8019

United States Court of Appeals, Tenth Circuit

May 24, 2018

Editorial Note:

UNPUBLISHED OPINION (See Fed. Rule of Appellate Procedure 32.1. See also U.S.Ct. of App. 10th Cir. Rule 32.1.)

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(D.C. No. 1:15-CR-00136-NDF-1) (D. Wyoming)

James C. Anderson, Esq., Office of the United States Attorney, District of Wyoming, Cheyenne, WY, Jason M. Conder, Office of the United States Attorney, District of Wyoming, Lander, WY, David A. Kubichek, Esq., Office of the United States Attorney, District of Wyoming, Casper, WY, for Plaintiff-Appellee

John C. Arceci, Office of the Federal Public Defender, Districts of Colorado and Wyoming, Denver, CO, James H. Barrett, Office of the United States Attorney, District of Wyoming, Cheyenne, WY, for Defendant-Appellant

Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.

ORDER AND JUDGMENT[*]

Jerome A. Holmes, Circuit Judge

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Defendant-Appellant JC Christopher Pulham pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2), and was sentenced to ninety-seven months’ imprisonment. He now appeals from the district court’s sentencing order on two grounds, both related to the court’s application of a five-level enhancement under § 2G2.2(b)(5) of the United States Sentencing Guidelines (the "Guidelines" or "U.S.S.G.") for "a pattern of activity involving the sexual abuse or exploitation of a minor." First, Mr. Pulham argues that the district court committed plain legal error in applying the enhancement because the facts upon which the district court relied do not satisfy the Guidelines definition of "sexual abuse or exploitation." Second, Mr. Pulham argues that the district court committed clear error in finding that he qualified for § 2G2.2(b)(5)’s enhancement because the court relied on hearsay-laden facts that did not bear the requisite indicia of reliability. Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm the court’s sentencing order.

I

A

On June 16, 2015, law enforcement agents assigned to the Wyoming Internet Crimes Against Children Task Force ("ICAC") executed a search warrant at Mr. Pulham’s residence where they seized a desktop computer containing images of child pornography. Mr. Pulham admitted to owning the computer and using it to search for and download child pornography.

On July 22, 2015, Mr. Pulham was charged by indictment with possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2) (Count One), and receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) (Count Two). On December 11, 2015, as part of a plea agreement, the government dropped Count Two (i.e., receipt), and Mr. Pulham pleaded guilty to Count One (i.e., possession).

B

A United States probation officer completed a Presentence Report ("PSR") that specified a Guidelines base offense level of eighteen for Mr. Pulham’s violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2).1 The

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PSR arrived at a final adjusted offense level of thirty-five based on a number of enhancements, including a five-level enhancement for "a pattern of activity involving the sexual abuse or exploitation of a minor" (that is, the "pattern-of-activity" enhancement), pursuant to § 2G2.2(b)(5) of the Guidelines.

The PSR recommended this enhancement based on a finding that Mr. Pulham had "at least three hands-on victims in Utah." Aplt.’s App., Vol. II, at 20. More specifically, the PSR recounted allegations made in the late 1980s by two young girls claiming that Mr. Pulham had sexually abused them and another young girl. Specifically, Mr. Pulham’s half-sister, C.P., had accused him of forcing her and her younger sister, S.J., to engage in sexual intercourse with him. However, a medical examination of both girls shortly after the accusation revealed that neither of them had ever had intercourse. The doctor who conducted the examination nevertheless concluded that C.P. had been "fondled repeatedly." Id. The third alleged victim, J.H., a family friend, accused Mr. Pulham of forcing her to strip and then "grabb[ing] her between the legs and fondl[ing] her breasts." Id. at 21.

The conduct described in the PSR was obtained from records contemporaneously detailing the allegations that were filed with the Utah Department of Human Services ("DHS") and Utah Child Protective Services ("CPS"). The PSR specifically stated the following regarding the predicate conduct supporting the pattern-of-activity enhancement: Records from the [DHS] indicate that his sister, 13-year-old [C.P.], told her mother the defendant "raped" her and her six-year-old sister, [S.J.]. Interviews were conducted with both [C.P.] and [S.J.]. [C.P.] said she remembered being victimized as early as age 6, but primarily between the ages of 8-10 years old. She said he had full sexual intercourse with her, but a medical interview with a doctor revealed she was not a victim of sexual intercourse, but was fondled repeatedly. She also described an event when the defendant and a friend ... were locked in the defendant’s bedroom with [S.J.]. [C.P.] tried to get the door open, but had to summon her father’s assistance. When she was able to ask [S.J.] what happened, [S.J.] said they made her take her clothes off.

Another victim was [J.H.]. The [H] family and the defendant’s family attended LDS church together, and the families lived near each other. [J.H.’s] mother advised [CPS] that [J.H.] was visiting the Pulham home, when JC [Pulham] asked her to remove her clothing. He was 15 and she was age 10. He grabbed her between the legs and fondled her breasts. She ran home, and her mother did not let her go to the Pulham residence any more. This event was reported on March 3, 1988.

Id. at 20-21. Later in the PSR, the probation officer stated that he had spoken with C.P. "who verified that she, her sister [S.J.], and a friend, [J.H.], had been victimized sexually by the defendant."

Id. at 23.

Mr. Pulham, through his counsel, sent a letter to the probation officer objecting to the five-level pattern-of-activity enhancement, arguing that the allegations were not sufficiently reliable to support the enhancement. Mr. Pulham also noted that he had consistently denied the allegations and that they did not result in a formal prosecution or delinquency petition. The probation officer declined to remove the recommended pattern-of-activity enhancement from the PSR, citing Mr. Pulham’s placement in a behavioral treatment facility following the allegations and also C.P.’s confirmation of the allegations.

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C

The district court held a sentencing hearing on February 18, 2016. The bulk of the hearing was devoted to Mr. Pulham’s objection to the pattern-of-activity enhancement. Mr. Pulham’s stepfather, Terry Pulham,2 and his younger half-sister, S.J., testified on behalf of Mr. Pulham in an attempt to refute the allegations of sexual abuse in the PSR. Terry Pulham testified that he had never witnessed Mr. Pulham engage in any inappropriate sexual contact with his younger half-sisters. He also testified that Mr. Pulham was placed in a behavioral counseling center, Benchmark Behavioral Health, for approximately thirty days after his sister, C.P., came forward with the allegations of abuse that the PSR referenced. According to Terry Pulham, Mr. Pulham was sent to Benchmark for an evaluation because he was "acting suicidal" due to C.P.’s allegations and "to see if he had those kind of tendencies." Id., Vol. III, at 55-57.

S.J., one of Mr. Pulham’s half sisters, briefly testified that she had no recollection of Mr. Pulham ever sexually abusing her when she was a child. She did, however, recall an incident in which her sister C.P. pulled her aside and told her to lie to her parents and tell them that Mr. Pulham was sexually abusing her and C.P. S.J. testified that she told her stepfather this fabricated story at C.P.’s prompting.

The government presented testimony from Agent Reinert, a special agent assigned to the Wyoming ICAC, who was the lead agent in the investigation of Mr. Pulham. Agent Reinert testified that she had interviewed both C.P. and J.H. by telephone in the runup to the sentencing hearing and that they had provided statements about Mr. Pulhams alleged sexual abuse, albeit statements not made under oath. C.P. told Agent Reinert that her relationship with Mr. Pulham had been "very sexually charged" and that childhood games with him would often take on a "sexual slant." Id. at 70. She also told Agent Reinert that Mr. Pulham acted as a "ring leader" among his siblings and their friends and...

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