U.S. v. Papakee

• Decision Date: 24 April 2008
• Docket Number: No. 06-CR-162-LRR.,06-CR-162-LRR.
• Citation: 550 F.Supp.2d 991
• Parties: UNITED STATES of America, Plaintiff, v. Lamont William PAPAKEE, Defendant.
• Court: U.S. District Court — Northern District of Iowa

550 F.Supp.2d 991

UNITED STATES of America, Plaintiff, v. Lamont William PAPAKEE, Defendant.

No. 06-CR-162-LRR.

United States District Court, N.D. Iowa, Cedar Rapids Division.

April 24, 2008.

SENTENCING MEMORANDUM

LINDA R. READE, Chief Judge.

I. INTRODUCTION

The matter before the court is the sentencing of Defendant Lamont William Papakee.

II. RELEVANT PROCEDURAL BACKGROUND

On March 7, 2007, Defendant was charged in a two-count Superseding Indictment with his co-defendant, Connie Frances Blackcloud ("Blackcloud").¹ Count 1 charged that, on or about September 6, 2006, defendants committed the crime of Aggravated Sexual Abuse in Indian Country, in violation of 18 U.S.C. §§ 2, 1151, 1153 and 2241(a)(1).² Count 2 charged defendants with Sexual Abuse in Indian Country, on the same date, in violation of 18 U.S.C. §§ 2, 1151, 1153 and 2242(2).³

On June 25, 26, 27 and 28, 2007, defendants appeared before the court for a jury trial on both counts of the Superseding Indictment. On June 28, 2007, the jury returned verdicts of not guilty as to both defendants on Count 1 and verdicts of guilty as to both defendants as to Count 2. The undersigned accepted the jury's verdicts.

On February 27, 2008, the United States Probation Office ("USPO") filed Defendant's Presentence Investigation Report ("PSIR"). On April 9, 2008, the government and Defendant filed their respective sentencing memoranda.

On April 23, 2008, the court held a sentencing hearing ("Hearing"). Assistant United States Attorney Robert L. Teig represented the government. Attorney Jonathan B. Hammond represented Defendant, who was personally present.

At the Hearing, the court sentenced Defendant to 360 months of imprisonment. The instant Sentencing Memorandum is designed to explain how the court arrived at Defendant's sentence. It is not comprehensive and should be read in conjunction with the record the court made at the Hearing.

III. SENTENCING FRAMEWORK

The Sentencing Guidelines are no longer mandatory. See Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 574, 169 L.Ed.2d 481 (2007) (discussing United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). They are advisory. Id.

The Eighth Circuit Court of Appeals states that a "district court should begin [a sentencing proceeding] with a correct calculation of the advisory Sentencing Guidelines range." United States v. Braggs, 511 F.3d 808, 812 (8th Cir.2008). The advisory Sentencing Guidelines range "is arrived at after determining the appropriate Guidelines range and evaluating whether any traditional Guidelines departures are warranted." United States v. Washington, 515 F.3d 861, 865 (8th Cir.2008). "Then, after giving both parties a chance to argue for the sentence they deem appropriate, the court should consider all of the factors listed in 18 U.S.C. § 3553(a) to determine whether they support the sentence requested by either party." Braggs, 511 F.3d at 812. "The district court may not assume that the Guidelines range is reasonable, but instead `must make an individualized assessment based on the facts presented.'" Id. (quoting Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). "If the court determines that a sentence outside of the Guidelines is called for, it `must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.'" Id. "The sentence chosen should be adequately explained so as `to allow for meaningful appellate review and to promote the perception of fair sentencing.'" Id.

At the Hearing, the court based its factual findings upon the trial evidence and the uncontested provisions of the PSIR. The court's factual findings were not necessarily consistent with those of the jury, which inexplicably acquitted defendants of Count 1. In the Eighth Circuit, it is settled that "[a]cquitted conduct may be used for sentencing purposes if proved by a preponderance of the evidence." United States v. No Neck, 472 F.3d 1048, 1055 (8th Cir. 2007) (citing United States v. Whatley, 133 F.3d 601, 606 (8th Cir.1998)). Other Circuit Courts of Appeals agree. See, e.g., United States v. Jimenez, 513 F.3d 62, 88 (3d Cir.2008) ("The counts of conviction determined [the defendant's] sentencing exposure, and the district court was free to consider relevant conduct, including conduct resulting in acquittal, that was proved by a preponderance of the evidence in determining [the defendant's] sentence within the original statutory sentencing range."); United States v. Four Pillars Enter. Co., Ltd., 253 Fed.Appx. 502, 508 (6th Cir.2007) (same); United States v. Tello-Nicio, 242 Fed.Appx. 892, 893 (4th Cir.2007) (same); United States v. Horne, 474 F.3d 1004, 1006 (7th Cir.2007) (same); United States v. Mercado, 474 F.3d 654, 657-58 (9th Cir.2007) (same).

Defendant appeared to concede that, under governing precedent, the court could base his sentence in part upon acquitted conduct. However, Defendant urged the court to hold the government to a clearand-convincing burden of proof. Defendant contended that, because the consideration of judge-found facts in his case could significantly increase his advisory Sentencing Guidelines range, due process demanded a higher burden of proof. See, e.g., United States v. Kikumura, 918 F.2d 1084, 1089 (3d Cir.1990) (citing McMillan v. Pennsylvania, All U.S. 79, 88, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (stating, in dictum, that a sentencing enhancement should not become "the tail which wags the dog of the substantive offense")).

Due process does not demand that the court hold the government to a clearand-convincing burden of proof at sentencing in this case. The Eighth Circuit Court of Appeals recently addressed Kikumura in United States v. Bradford, 499 F.3d 910, 920 (8th Cir.2007). In dicta, the Eighth Circuit Court of Appeals indicated that due process might require a higher burden of proof in cases where "`the magnitude of a proposed [increase based on judge-found facts] dwarfs the guideline range applicable to the substantive offense[] of conviction.'" Bradford, 499 F.3d at 919 (quoting Kikumura, 918 F.2d at 1089). After Bradford was decided, however, the Third Circuit Court of Appeals expressly disavowed Kikumura. See United States v. Fisher, 502 F.3d 293, 305 (3d.Cir.2007), cert, denied, ___ U.S. ___, 128 S.Ct. 1689, 170 L.Ed.2d 383 (2008) (explaining why United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), completely undermined Kikumura's jurisprudential foundation).⁴ The Third Circuit Court of Appeals succinctly stated:

[A]lthough concerns about the "tail wagging the dog" were valid under a mandatory guideline system — like the Pennsylvania system addressed in McMillan and the federal Guidelines when Kikumura was decided — these concerns were put to rest when Booker rendered the Guidelines advisory. For this reason, we hold that Kikumura is no longer valid as long as the Guidelines are advisory.

Id.

Even if the court were to assume that due process could somehow require a higher burden of proof in some cases, any increase attributable to judge-found facts is not an extreme enough increase to warrant such a higher burden in this case. At most, Defendant is subject to the equivalent of a nine-level increase⁵ based on judge-found facts. See, e.g., United States v. Bradford 499 F.3d 910, 920 (8th Cir. 2007) (holding twelve-level enhancement was insufficient to trigger increased burden of proof), cert. denied, ___ U.S. ___, 128 S.Ct. 1446, 170 L.Ed.2d 278 (2008).

IV. FINDINGS OF FACT

The court found the following facts by a preponderance of the evidence:⁶

In late August of 2006, Luci Dale a/k/a "Lulu" moved to the Sac and Fox Tribe of the Mississippi in Iowa's Meskwaki Settlement in Tama County, Iowa ("Settlement"). Dale, who was a member of the Omaha Tribe of Nebraska, moved to the Settlement from Nebraska "to sober up[,] ... get a job, and settle down." Trial Transcript at 4. Dale, an alcoholic herself, wanted to get away from alcoholics in her family. Dale knew several people who lived on the Settlement, including Alex Mauskemo and Monica Papakee (Defendant's sister). They were Dale's "friends from back in the days." Id. at 5.

Dale moved in with Mauskemo and applied for a job at the Meskwaki Bingo Casino Hotel. Dale managed to stay sober for approximately her first two weeks on the Settlement.

In early September of 2006, Monica Papakee introduced Dale to Defendant and Blackcloud a/k/a "Uncle Connie." Shortly thereafter, Dale moved in with Defendant at his residence on the Settlement at 315 Red Earth Drive, Tama County, Iowa.⁷ Dale slept in Defendant's bedroom, while he slept on the couch or the floor in the living room. At the time, Blackcloud was also living at Defendant's house.

During the brief period while they lived together, each day Dale, Blackcloud and Defendant drank alcohol until they were intoxicated. Dale drank beer and vodka. Dale also smoked cigarettes when she was drunk.

Blackcloud verbally and physically abused Dale, often in a most brutal fashion. Blackcloud called Dale "a wanna-be white bitch" and told her she did not belong on the Settlement because she was not a Meskwaki. Id. at 16. Blackcloud pulled Dale's hair, scratched Dale and repeatedly hit her in the face with a closed fist. For his part, Defendant called Dale a "bitch."

Dale did not fight back "because it wasn't [her] place." Id. at 18. When Dale asked Defendant and Blackcloud to stop hurting her, Blackcloud "just laughed" and Defendant "would say he was just playing." Id.

On September 4, 2006 (Labor Day), Dale, Blackcloud and Defendant were intoxicated in Defendant's house. Sometime in the morning or early afternoon, Dale passed out or fell asleep on a couch in the living room. Defendant and Blackcloud stripped off Dale's pants and placed a large broken cucumber in her vagina. The cucumber was approximately two inches...