U.S. v. Beith, 03-2530.

• Decision Date: 16 May 2005
• Docket Number: No. 03-2530.,03-2530.
• Citation: 407 F.3d 881
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William A. BEITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

407 F.3d 881

UNITED STATES of America, Plaintiff-Appellee, v. William A. BEITH, Defendant-Appellant.

No. 03-2530.

United States Court of Appeals, Seventh Circuit.

Argued December 3, 2003.

Decided May 16, 2005.

COPYRIGHT MATERIAL OMITTED

Diane L. Berkowitz (argued), Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Hope Lefeber (argued), Philadelphia, PA, for Defendant-Appellant.

Before FLAUM, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

William A. Beith, the former principal of Liberty Baptist Bible Academy, who pled guilty to fleeing from Indiana to Nevada so that he could continue his illicit sexual relationship with his eleven-year-old student, challenges various Federal Sentencing Guidelines determinations made by the district court. We find that the defendant was sentenced under the appropriate offense guideline relating to the victim's age and that the use of the victim's age to enhance the defendant's offense level under that new offense guideline does not constitute impermissible double counting. However, the record does not support the district court's decision to apply an enhancement for abduction and the victim's vulnerability, and so we agree that the defendant must be resentenced.

I. BACKGROUND¹

William A. Beith was born May 21, 1972. At age 19, he began teaching at the Liberty Baptist Bible Academy (Academy) in Lake Station, Indiana. He received his bachelor's degree in Christian Education in 1995, and served as principal of the Academy for approximately two years prior to the charges in this action.

Beith first met G.M. when she began attending the Academy in the third grade at the age of 8 years. In the immediate years thereafter, Beith developed a relationship with G.M. that he considered to be "close," yet not so close as to transgress appropriate bounds between teacher and student. The dynamic of their relationship, however, changed around February 2001, when G.M. was 11 years old and in the sixth grade. G.M. approached Beith, then 29 years old, complaining of problems at home. In particular, she told him that her father had touched her inappropriately and was perhaps "peeping" at her. In response, Beith directed G.M.'s teacher, Suzanne Waddell, to set up a meeting with G.M.'s mother to discuss the allegations. After learning of G.M.'s allegations at the meeting, G.M.'s mother confronted her husband. The veracity of G.M.'s allegations regarding her father remain marginally in doubt.²

After the meeting with G.M.'s mother, Beith's contact with G.M. became more frequent. Beith allowed G.M. and other students to visit him in his office during recess and lunch breaks, and subsequently encouraged G.M. to come to his office to talk alone. As a result of spending time with Beith during the course of the school day, G.M. would be late for class at least two or three times a week. On such occasions, Beith would provide G.M. with notes excusing her tardiness. Though G.M.'s teacher and other members of the faculty became troubled by the amount of attention Beith was lavishing on G.M., Beith sought to assuage those concerns by explaining he was merely counseling G.M. about her family problems.

Beith began taking G.M. to his home after school. On one occasion, following a math tutoring session, Beith took G.M. and a fellow female student out for pizza and then to his house. After inviting them inside, the girls changed clothes in his bedroom. Beith videotaped them as they tried on his jewelry and played with his computer. The camera predominantly focused on G.M.'s private parts, and captures Beith expressing a sexual attraction to the girls. On subsequent occasions, Beith brought G.M. alone to his house to engage in kissing and fondling. Then he began to increase the intimacy of the relationship by disclosing confidences about his sexual experience and loss of virginity.

On April 23, 2001, Beith was scheduled to take several students, including G.M., on a church-sponsored retreat at a camp in Michigan. During the early morning hours of April 24, 2001, while on the retreat, Beith allowed G.M. and one of her friends into his cabin and onto his bed with him. In the presence of the friend, Beith fondled and kissed G.M. In the early morning of the next day, G.M. came to Beith's cabin alone, where he invited her into his bed and attempted to have unprotected sexual intercourse with her. During the drive back to Indiana, Beith sat with G.M. on the bus and began discussing with her the possibility of running away together.

On April 27, 2001, Beith picked G.M. up from her house after she had been left home alone. He took her to his residence, where he again fondled and kissed her. He also renewed discussions of leaving the Academy and running away with her, revealing (in either this conversation or a previous one) that his destination was Las Vegas, Nevada. At the end of the evening, around 11:00 p.m., he dropped her off in the alley behind her home.

Soon thereafter, the illicit relationship would be exposed. During a family birthday dinner at a local restaurant on April 29, 2001, G.M. excused herself from the table to call Beith. During the conversation, Beith again asked her to run away with him. Upon returning to the table after the call, G.M. was pressed by a young family friend to reveal whom she had called. In response, G.M. disclosed to the friend the intimate details of her relationship with Beith. The young friend was so disturbed by the revelation that she passed along the information to G.M.'s parents, who in turn took G.M. to the hospital the next day to be examined for sexual molestation. In the course of the examination, G.M. informed a nurse that Beith had indeed attempted sexual intercourse with her. That information was then relayed to G.M.'s parents, who subsequently took G.M. to the Lake Station Police Department to be interviewed. At the conclusion of the interview, G.M. and her parents understood that the police intended to question and possibly arrest Beith.

After leaving the police station, G.M.'s parents stopped at a Wal-Mart store. While at the store, G.M. slipped away from her parents to call Beith and warn him that the police were on to him and would come calling later that day. In response, Beith told G.M. that he was leaving town and again asked that she come with him. He then arranged for her to meet him at a location near the Wal-Mart. Once at the designated meeting ground, G.M. got into Beith's vehicle without any resistance and the two drove away headed for Las Vegas.

Along the way to Las Vegas, Beith made several stops allowing G.M. to shop. He also made several stops for overnight stays at hotels, where he repeatedly engaged G.M. in unprotected sexual intercourse. The two also discussed having a baby together, as Beith thought it a "good idea." In addition, he suggested to G.M. on more than one occasion that perhaps he should take her home and then kill himself.

On May 8, 2001, Beith was arrested by Las Vegas Police in the parking lot of a hotel in which he was staying with G.M. Later, during an interview with the FBI, Beith admitted taking G.M. and engaging in inappropriate sexual contact with her, but insisted that it was G.M. who had affirmatively pursued the relationship. He also stated that G.M. was at all times during their travels free to leave him.

A federal grand jury sitting in the Northern District of Indiana returned a two count indictment charging Beith with aggravated sexual abuse in violation of 18 U.S.C. §§ 2241(c) and 2246. Subsequently, on or about June 21, 2002, the United States Attorney's Office for the Northern District of Indiana returned a one count information against Beith, charging him with transporting a child under the age of 18 across state lines with the intent to engage in prohibited sexual contact in violation of 18 U.S.C. § 2423(b). On July 1, 2002, in consideration for the government's motion to dismiss the charges of aggravated sexual abuse, Beith pled guilty to the charges under 18 U.S.C. § 2423(b) and admitted to knowing that G.M. was 11 years old, kissing and fondling her on several occasions, attempting to have sexual intercourse with her at the retreat, driving her from Indiana to Nevada, and engaging her in sexual intercourse throughout their travels. Section 2423(b) provides for a maximum sentence of 180 months.

A presentence report (PSR) was prepared using the 2001 edition of the United States Sentencing Guidelines, recommending that the district court apply a base offense level of 27 for the violation of 18 U.S.C. § 2423(b) pursuant to U.S.S.G. § 2A3.1 (by way of the criminal sexual assault cross reference, U.S.S.G. § 2A3.2(c)(1), triggered when the victim is under the age of 12). It also recommended a 4-level enhancement pursuant to § 4A3.1(b)(2)(A), applicable where the victim had not attained the age of twelve years; a 2-level enhancement pursuant to U.S.S.G. § 2A3.1(b)(3), applicable where the victim was in the custody, care, or supervisory control of the defendant; a 4-level enhancement pursuant to U.S.S.G. § 2A3.1(b)(5), applicable where the victim was abducted; and a 2-level enhancement pursuant to U.S.S.G. § 3A1.1(b)(1), applicable where the victim was unusually vulnerable. Altogether, the PSR recommended a total offense level of 39.

On the day of the sentencing hearing, Beith withdrew all his objections to the PSR, with the exception of those asserting double counting in the application of U.S.S.G. § 2A3.1 to his offense conduct; the application of the abduction enhancement; and the application of the vulnerable victim enhancement. He did not object to the enhancement based on his custody, care, or supervisory control of G.M., nor did he object to the factual statements in the PSR, which the court adopted.

Beith was sentenced on May 28, 2003, and the district court rejected each of his outstanding objections to the increase of his sentence,...