U.S. v. Begaye

• Decision Date: 25 March 2011
• Docket Number: No. 09–4075.,09–4075.
• Citation: 635 F.3d 456
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Harrison BEGAYE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

635 F.3d 456

UNITED STATES of America, Plaintiff–Appellee,

v.Harrison BEGAYE, Defendant–Appellant.

No. 09–4075.

United States Court of Appeals, Tenth Circuit.

March 25, 2011.

Stephen J. Sorenson, Assistant United States Attorney (Brett L. Tolman, United States Attorney, with him on the brief), Salt Lake City, UT, for Plaintiff–Appellee.Bretta Pirie, Assistant Federal Public Defender (Steven B. Killpack, Federal Public Defender, with her on the briefs), Salt Lake City, UT, for Defendant–Appellant.Before TYMKOVICH and HOLMES, Circuit Judges, and POLLAK, District Judge.^*HOLMES, Circuit Judge.

Defendant–Appellant Harrison Begaye pleaded guilty to a felony information alleging aggravated sexual abuse of his eleven-year-old daughter, in violation of 18 U.S.C. §§ 2241(a) and 1153(a). The district court calculated a advisory Guidelines range of 210 to 262 months' imprisonment. In sentencing Mr. Begaye, however, the district court departed upward, sentencing him to twenty-five years (i.e., 300 months) in prison to be followed by lifelong supervised release. On appeal, Mr. Begaye challenges his sentence, claiming that the district court inappropriately departed upward based on the “extreme psychological injury” to his victim, as well as his “extreme conduct,” under the United States Sentencing Guidelines Manual (“U.S.S.G.”) §§ 5K2.3 and 5K2.8, respectively. He also claims that the district court failed to adequately explain the degree of departure granted. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

I. BACKGROUND

In May 2007, regional social workers, acting on a report from school officials of suspected child abuse, interviewed Mr. Begaye's six children. During these interviews, the children, who ranged in age from four to fourteen, all showed signs that they feared for their own safety, with two of them specifically expressing fear of their father. The children reported frequent physical abuse by Mr. Begaye, including whippings with horsewhips, bullwhips, sticks, and even bricks. Four of the children had visible red marks on their backs, and one had a BB pellet lodged in his nose from where his father, he claimed, had shot him. In addition, each of the children had red “pokes” on their arms from where Mr. Begaye had punished them using a horse syringe. The children were subsequently removed from Mr. Begaye's home.

Shortly thereafter, Mr. Begaye's eldest daughter, Ja.B., was interviewed by an F.B.I. agent. At that time, she acknowledged that she had been sexually abused by her father.¹ Although initially hesitant to talk about the abuse, ² Ja.B. eventually admitted that she had been the victim of a series of rapes spanning multiple years. According to the young girl, Mr. Begaye had sexually assaulted her almost weekly in their family home beginning when she was in the first grade. During the assaults, Mr. Begaye would remove her pants and then have sex with her, sometimes forcing her to be on top. When she would “try to get off, [Mr. Begaye would] pull [her] legs down,” hold her hands, or otherwise force her to continue. R., Supp. Vol. V, Exh. 2, at 46:16–46:28, 51:30–53:40. Ja.B. told the agent that Mr. Begaye would repeatedly ask her, “Does that feel good?,” to which she would “always say, ‘No.’ ” Id. at 47:10–30, 1:11:26–35.

In the wake of these revelations, Mr. Begaye was charged in a six-count indictment for offenses arising from his abuse of Ja.B. and her five siblings. For raping Ja.B., Mr. Begaye faced three counts of aggravated sexual abuse of a child under the age of twelve, within Indian Country, in violation of 18 U.S.C. §§ 2241(c) and 1153(a). Seeking to avoid the difficulties a trial would impose on Ja.B. and her young siblings, however, the government permitted Mr. Begaye to plead guilty to a single count of aggravated sexual abuse under a different provision, 18 U.S.C. § 2241(a). Following the entry of his plea, the district court determined Mr. Begaye's sentence range under the Guidelines to be 210 to 262 months.

The provision under which Mr. Begaye was originally indicted, § 2241(c), carries a mandatory minimum sentence of 30 years' imprisonment. In contrast, the charge to which he pleaded guilty, § 2241(a), has no minimum sentence. Prior to sentencing, the government moved for an upward departure or upward variance, arguing that “the facts of this case justify a sentence of 360 months even though it is not mandatory for the crime to which [Mr. Begaye] pled guilty.” R., Supp. Vol. V, at 14 (Mot. for Upward Departure & Upward Sentencing Variance, filed Apr. 8, 2009). The government based its request for an upward departure on U.S.S.G. §§ 5K2.3 (“Extreme Psychological Injury”), 5K2.8 (“Extreme Conduct”), 5K2.21 (“Dismissed and Uncharged Conduct”), and 5K2.0(a)(2)(B) (“Unidentified Circumstances”). It also sought an upward variance based upon the factors set forth in 18 U.S.C. § 3553(a).

Mr. Begaye filed a motion in response, arguing, inter alia, that an upward departure was not warranted for extreme conduct or extreme psychological injury because the government never produced comparative evidence of these factors. He asked the district court instead to vary downward based upon § 3553(a)'s factors to a sentence of 120 months, averring that his contrition, amenability to treatment, and low level of intelligence all militated towards a below-Guidelines sentence.

After a hearing, the district court denied Mr. Begaye's motion and granted the government's motion. The court departed upward under §§ 5K2.3 and 5K2.8. In doing so, the court stated:

I find that the crime that was committed, looking at all of the facts and circumstances, represented a crime that was unusually heinous, cruel, brutal or degrading to the victim. I will refer to 5K2.8 of the guidelines, the sentence guidelines and that language, and recognizing in the guideline system that that is anticipated to be a possible ground for an upward departure.

I also find that ... the facts indicate[, as required by 5K2.3, that] a psychological injury and a physical injury more serious than normal has been demonstrated to the Court in this case....

... Mr. Begaye pled guilty to aggravated sexual abuse under Section 2241(a), and that is an admission of aggravated sexual abuse of another person on an Indian reservation by force or threat. That is what he pled to. I am entitled as the Judge to look at the facts and circumstances that underlie that plea. That includes in this case the fact that he repeatedly had improper sexual intercourse with his young daughter over, the facts demonstrate to me, a period of years. I am looking at those as the actual facts of this case and not looking at those as the facts that underlie or that were the basis for another count that has been dismissed. Those are the facts of this case.

... I'm using the guidelines, which in this case have a range of 210 to 268³ months, and I am going above that because of the two reasons that I just indicated, under 5K2.8 and 5K2.3. I am staying generally within the guideline process for doing this.

... I find an appropriate sentence to be here a 25–year sentence which is an upward departure of some roughly two and a half years.R., Vol. II, Tr. at 30–32 (Sentencing Hr'g, dated Apr. 15, 2009) (emphasis added). Mr. Begaye now appeals his sentence.

II. DISCUSSION

On appeal, Mr. Begaye lodges three challenges to the district court's decision to depart upward. He claims, first, that the district court abused its discretion in departing upward based on Ja.B.'s alleged “extreme psychological injury” because the court lacked an adequate factual basis for doing so. In particular, he asserts that the government failed to put forth comparative evidence demonstrating the psychological injury that is normally suffered by victims of aggravated sexual abuse, which he reads as a prerequisite for a departure under § 5K2.3, and that the district court inappropriately relied on unfounded government assertions in making its departure assessment, while also unjustifiably discounting other potential factors that might have affected Ja.B.'s psychological condition. Mr. Begaye also maintains that the district court lacked an adequate factual basis to support a finding of “extreme conduct” under § 5K2.8. Borrowing heavily from his first claim, Mr. Begaye posits that the district court abused its discretion in departing upward under this provision because no comparative evidence was offered to show that his conduct was more “heinous, cruel, brutal, or degrading” than that normally perpetrated by those who commit aggravated sexual abuse. Finally, Mr. Begaye believes that the district court erred in failing to adequately explain the degree of the departure granted in this case.

The government, in contrast, insists that a “district court enjoys an institutional advantage in drawing on its own extensive experience in applying the Guidelines,” and “may conclude that such departures are warranted without receiving evidence about what usually happens in other cases.” Aplee. Br. at 14–15. It argues that the undisputed facts of this case gave the district court ample basis for departing under both §§ 5K2.3 and 5K2.8. It further submits that the district court's explanation for its sentence was more than adequate, noting that the court made clear that it considered both the evidence and the parties' arguments prior to making its determination. We address each of these claims in turn.

A. Standard of Review

Following the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), “we review sentences for reasonableness under a deferential abuse-of-discretion standard.” United States v. Alapizco–Valenzuela, 546 F.3d 1208, 1214 (10th Cir.2008). “Reasonableness review is a two-step process comprising a procedural and a substantive component.” United States v. Verdin–Garcia, 516 F.3d 884, 895 (10th Cir.2008) (citing ...