U.S. v. Grubbs

• Decision Date: 06 November 2009
• Docket Number: No. 07-5040.,07-5040.
• Citation: 585 F.3d 793
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jimmie Vance GRUBBS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

585 F.3d 793

UNITED STATES of America, Plaintiff-Appellee, v. Jimmie Vance GRUBBS, Defendant-Appellant.

No. 07-5040.

United States Court of Appeals, Fourth Circuit.

Argued: September 24, 2009.

Decided: November 6, 2009.

ARGUED:

Matthew Segal, Federal Defenders of Western North Carolina, Inc., Asheville, North Carolina, for Appellant. Adam Christopher Morris, Office of the United States Attorney, Charlotte, North Carolina, for Appellee.

ON BRIEF:

Claire J. Rauscher, Executive Director, Federal Defenders of Western North Carolina, Inc., Asheville, North Carolina, for Appellant. Gretchen C.F. Shappert, United States Attorney, Charlotte, North Carolina, for Appellee.

Before WILKINSON, SHEDD, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge AGEE wrote the opinion, in which Judge WILKINSON and Judge SHEDD joined.

OPINION

AGEE, Circuit Judge:

Jimmie Vance Grubbs pled guilty to six counts of knowingly transporting someone under the age of eighteen in interstate commerce with intent to engage in a sexual activity, in violation of 18 U.S.C. § 2423(a), and six counts of traveling in interstate commerce for the purpose of engaging in a sexual act with a person under the age of eighteen, in violation of 18 U.S.C. § 2423(b). The district court sentenced Grubbs to 240 months of imprisonment and a life term of supervised release. On appeal, Grubbs does not contest his convictions, but contends the district court erred in imposing his sentence for three reasons: (1) the district court violated his Sixth Amendment rights by considering uncharged conduct when deciding an appropriate sentence; (2) the district court violated his Fifth Amendment rights by failing to require the Government to prove uncharged conduct by more than a preponderance of the evidence standard; and (3) the district court committed procedural errors in calculating his United States Sentencing Guidelines ("Guidelines") range. For the reasons that follow, we disagree with Grubbs and affirm the judgment of the district court.

I.

In April 2005, police began investigating Grubbs after a 14-year-old student ("Child Victim 1" or "C.V.1") reported Grubbs initiated inappropriate sexual contact during an out-of-state school trip. At the time, Grubbs was a language arts teacher and coach at a public middle school in North Carolina. Grubbs had worked with minors for over 30 years as a teacher, Sunday school instructor, coach, and in Boy Scouts. In these capacities he had, on multiple occasions, taken trips out-of-state with a number of middle school boys under the age of eighteen.

Child Victim 1 reported that Grubbs had developed a friendship with him over the course of his 7th and 8th grade years. During a school trip to Myrtle Beach, South Carolina, in the spring of 2005, Grubbs sexually assaulted C.V.1 on several occasions. Following an investigation into these events Grubbs resigned his position at the middle school in May 2005.

In December 2005, police were asked to investigate a report of child molestation made by a 14-year old minor ("Child Victim 2" or "C.V.2"). Child Victim 2 reported that Grubbs befriended him when Grubbs was his English teacher in the fall of 2003. Grubbs asked C.V.2 to help him in his classroom after school and on weekends. Grubbs initiated hugging and French kissing, which subsequently developed to mutual masturbation and oral sex "four to five times weekly." During a September 2004 trip to Myrtle Beach, South Carolina, Grubbs and C.V.2 engaged in oral sex "anywhere from 10 to 30 times." The following school year, Grubbs met with C.V.2 during planning periods and they would have oral sex in his classroom. During the course of these events, Grubbs gave C.V.2 money and gifts, and "cut [him] a break" on his grades. (J.A. 249.)

Following the initial investigation and Grubbs' arrest for these offenses, other victims came forward. The pre-sentence report ("PSR") specifically sets forth the statements of nine additional victims— three of whom were also still minors at the time of sentencing. The accounts are consistent: according to all but one of the victims, Grubbs began sexually molesting them when they were young teenagers.¹ Most of the victims reported the assaults occurred regularly, on multiple occasions over months or years. Typically, Grubbs befriended the victims' parents, and became a "father figure" to them while serving as their teacher, Sunday School teacher, or coach. He took them on trips to South Carolina and elsewhere, and gave them gifts. In some cases, he would give them better grades than they had earned.

Grubbs was indicted on a twelve-count bill of indictment. Counts One through Six charged Grubbs with violations of 18 U.S.C. § 2423(a), and Counts Seven through Twelve charged Grubbs with separate violations of 18 U.S.C. § 2423(b). The charged offenses took place between August 2002 and January 2006. Grubbs pled guilty, without the benefit of a written plea agreement, to all twelve counts.

The pre-sentence report ("PSR") calculated Grubbs' offense level for each offense, and then calculated the combined offense level for all the offenses, as specified under § 3D1.4 of the Guidelines. Grubbs' combined adjusted offense level was 37, which after adjustment for acceptance of responsibility, yielded a total offense level of 34. Grubbs had 0 criminal history points, resulting in a criminal history category of 1. Based on these scores, the recommended Guidelines range for imprisonment was 151 to 188 months.²

Several witnesses testified at the sentencing hearing. Former Detective Kenny Lynch, of the Huntersville, North Carolina Police Department, had been an investigator on Grubbs' case. He testified as to the accuracy of the statements in the PSR regarding the nature of the investigation, the conduct underlying the counts of conviction, and the additional incidents and victims identified in the report. One of Grubbs' adult victims testified as to the nature of the assaults against him and the effect that those incidents had on him. In addition, a letter from the parents of Child Victim 2 was read into the record, and Child Victim 2 read his victim statement letter, detailing the severe emotional and psychological problems he struggled with as a result of Grubbs' actions.

Grubbs argued against imposition of a vulnerable victim adjustment to his offense level. After hearing the parties' arguments, the district court found the vulnerable victim adjustment was appropriate for the charges stemming from Child Victims 2, 3, and 5, but not Child Victim 4.

The district court had previously expressed its concern that the Guidelines calculation did not reflect the true nature of Grubbs' conduct, noting that while the Guidelines range was calculated as a result of the specific counts in the indictment, which could reflect "a one act occurrence," the evidence indicated "that it's a repeatingly multiple reoccurrence" and involved more than the five victims identified in the offenses of conviction. (J.A. 129, 134.) Grubbs objected to the district court's use of uncharged conduct as a basis for enhancing his sentence.

The district court found that the evidence of uncharged conduct was "sufficiently reliable to rely upon in this sentencing hearing" because the evidence was "credible, [and] internally consistent with the various accounts of the molestation of multiple victims." (J.A. 160.) The district court concluded the Guidelines range was not "sufficient to capture the magnitude" of Grubbs' "predatory conduct," and that his "criminal activity falls outside of the heartland of the guidelines." (J.A. 161-62.) Accordingly, the district court concluded "that a departure and/or a variance is necessary to accomplish the sentencing objectives of [18 U.S.C. § 3553(a)]." (J.A. 162.)

The district court further noted:

[E]ach of the young victims was subject to multiple acts of molestation heard of while the defendant traveled in interstate commerce for that purpose from North Carolina to South Carolina and engaged in acts of—numerous acts of molestation in South Carolina but also as well in intrastate activity that is not captured by the guideline sentence.

(J.A. 162.) The district court then recounted specific examples involving the victims who were identified in the counts of conviction, demonstrating repeated in-state and out-of-state instances of sexual assault. In light of this evidence, the district court concluded the "bulk of the criminal assaults perpetrated on [the five victims named in the indictment] alone ... are not taken into account at all by the advisory guidelines—only about 10 percent of the actual criminal conduct was needed to reach the guideline levels set forth [in the PSR]." (J.A. 164.)

The district court then recounted the criminal conduct Grubbs engaged in against victims not identified in the counts of conviction. The court noted Grubbs' criminal conduct "is indicative of someone who has engaged in his conduct relentlessly and heinously over a long period of time" and that Grubbs' criminal history category of 1 substantially underrepresented the seriousness of Grubbs' past conduct. (J.A. 167.)

The district court also observed that Grubbs persisted in molesting Child Victim 4 even after he had resigned from teaching due to allegations of abuse. It noted the "need to protect the public from further crimes of the defendant" was a goal not adequately captured in the guidelines range. (J.A. 167.)

The district court imposed two upward departures. First, it adjusted Grubbs' criminal history category upward two levels. The court noted that in its "experience ... a defendant with a criminal pattern like this is more analogic [sic] to an offender criminal history 6, and the [c]ourt will use a criminal history category 3 as the conservative measure of the criminal conduct that is not adequately captured by the advisory guidelines." (J.A. 169.) Next, the district court applied a one-level upward...