U.S. v. Petersen, CROSS-APPELLEE

• Citation: 276 F.3d 432
• Decision Date: 16 October 2001
• Docket Number: 01-1221,Nos. 01-1220,CROSS-APPELLANT,CROSS-APPELLEE,s. 01-1220
• Parties: (8th Cir. 2002) UNITED STATES OF AMERICA, APPELLANT/, v. MICHAEL T. PETERSEN, APPELLEE/ Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 432

276 F.3d 432 (8th Cir. 2002)

UNITED STATES OF AMERICA, APPELLANT/CROSS-APPELLEE, v. MICHAEL T. PETERSEN, APPELLEE/CROSS-APPELLANT.

Nos. 01-1220, 01-1221

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: October 16, 2001

January 10, 2002

Appeal from the United States District Court for the District of South Dakota.

Rita Allen, Asst. U.S. Attorney, Sioux Falls, SD, argued, for appellant.

Bruce Ellison, Rrapid City, SD, argued, for appellee.

Before Wollman, Chief Judge, Lay and Riley, Circuit Judges.

Riley, Circuit Judge.

The government appeals the district court's sua sponte five-level downward departure involving Michael T. Petersen's convictions for assault, aggravated sexual abuse and burglary on an Indian Reservation. The court departed under 18 U.S.C. § 3553(b) and the United States Sentencing Guideline Manual (USSG) § 5K2.0, p.s., on the bases of (1) a mitigating circumstance of temporary insanity, and (2) the burglary and aggravated sexual abuse were atypical because they occurred in Petersen's own home with his wife and involved minimal force. We reverse and remand for resentencing within the applicable guidelines' sentencing range.

I. BACKGROUND

During the late evening hours of November 3, 1999, Petersen broke into the home of his estranged wife, Calley Petersen (Calley). The couple had been separated for over a month, and Calley had started to pursue a divorce. Because of an earlier physical assault by Petersen, a tribal judge had issued a temporary protection order against Petersen. Calley had changed the lock on the front door of the residence, but not the back door which was four to five feet off the ground with no steps. Although the couple had attended mediation in an attempt to reconcile, Calley terminated the mediation on November 3, 1999, and informed her attorney to proceed with a divorce.

After breaking into the home, Petersen woke Calley by striking her repeatedly on the head with a flashlight. The Petersens' four-year-old son was sleeping with Calley. The boy woke up and said, "Why are you hitting my mommy?" Petersen left the bedroom and Calley followed him into the hallway. Petersen then approached her, put his hands around her neck, pushed her against the wall and choked her until she became unconscious. When she regained consciousness, Calley asked Petersen to take her to the hospital, but he refused. At that time, Calley noticed Petersen was wearing rubber doctor's gloves.

During these attacks, Calley suffered a dislocated shoulder, lacerations to her head, and bruises on her neck and shoulders. Petersen then said he would take her to get help, but she had to get cleaned up first. She unsuccessfully attempted to wash the blood from her head under the bathroom faucet. Petersen ordered Calley to take a shower. Petersen then helped her undress, undressed himself and followed Calley into the shower where he fondled her and, according to Calley, "proceeded to poke and prod" her. Calley became sick and almost passed out.

Petersen told the four-year-old, who was also in the bathroom, to get towels. Upon exiting the shower, Calley started to dress. Petersen stopped her and took her to the bed. After temporarily removing the child to his room, Petersen then returned to Calley and, over her protest, raped her. During the assault, Petersen threatened to kill Calley if she divorced him. Calley testified she did not resist the rape because she feared Petersen would kill her.

After the rape, Petersen attempted to clean blood off the carpet in the hallway and also started the laundry to clean the bedding and his clothes. He changed into other clothes.

Petersen eventually agreed to take Calley to the hospital. He told Calley they must get their stories straight, and when asked what happened, she must say she had fallen and had then called Petersen for help. Petersen made Calley swear "on her grandmother's grave" not to tell what really happened. Before they left for the hospital, Petersen retrieved his truck from an unknown location. The truck was not parked in the driveway of the residence. At the hospital Calley reported the assaults to the hospital staff when she was alone with them.

Law enforcement officers testified at trial that an iron bar was found just inside a window near the front door of the residence. The window was missing its screen, which was found on the ground outside.

The attack took place near Eagle Butte, South Dakota, on the Cheyenne River Sioux Indian Reservation. Petersen is an American Indian and a member of the Cheyenne River Sioux Indian Tribe. A federal grand jury indicted him under 18 U.S.C. § 1153 on charges of assault with a dangerous weapon, assault with intent to commit murder, assault resulting in serious bodily injury, aggravated sexual abuse, and first degree burglary. After a five-day trial, a jury convicted Petersen of simple assault in violation of 18 U.S.C. § 113(a)(5); assault by striking, beating, or wounding in violation of 18 U.S.C. § 113(a)(4); aggravated sexual abuse in violation of 18 U.S.C. §§ 2241(a) and 2246(2)(A); and first degree burglary in violation of SDCL § 22-32-1.

At sentencing the district court adopted the factual findings contained in the presentence report and overruled Petersen's objections to the report as "all immaterial under the sentencing guidelines." The district court combined the aggravated sexual abuse and burglary counts pursuant to the USSG. The court first found a base offense level of 27 for criminal sexual abuse under USSG § 2A3.1. The base offense level was increased by two levels for serious bodily injury under USSG § 2A3.1(b)(4)(B) and adjusted upward by two levels for obstruction of justice under USSG § 3C1.1.¹ The district court assessed Petersen a four-level upward adjustment for aggravation pursuant to USSG § 2A3.1(b)(1) and 18 U.S.C. § 2241(a),² resulting in an adjusted offense level of 35. Petersen had a criminal history category of I.

The district court found "mitigating circumstances that were sufficiently unusual to take this case outside the 'heartland' (i.e., the level of force used during the assault was found to have been sufficient to cause great pain but beyond that, the force as to the sexual assault was non-existent[)]." The district court noted that "[f]or the defendant to have acted as he did during the course of the instant offenses, he exhibited some degree of temporary insanity." The court further found that "[t]he victim ultimately succumbed to the defendant's request for sexual intercourse because she was afraid of the defendant. The parties were still married." The court further found the burglary was atypical "with the defendant breaking into his own home, although in violation of a court order."

The district court, on its own motion, departed downward from the adjusted offense level of 35 (168 to 210 months) to a total offense level of 30 (97 to 121 months), for a total departure of over five years, based upon USSG §5K2.0. With a total offense level of 30, and a criminal history category of I, the district court sentenced Petersen to 100 months (8 years, 4 months) incarceration, followed by a term of five years of supervised release. The district court sentenced Petersen to six months on each of the assault counts to run concurrently with the sentence for the remaining counts.

II. DISCUSSION

We review the district court's interpretation of the sentencing guidelines de novo and its factual findings for clear error. United States v. Rohwedder, 243 F.3d 423, 425 (8th Cir. 2001). Additionally, "[w]e review the district court's decision to grant a downward departure for an abuse of discretion." United States v. Hasan, 245 F.3d 682, 684 (8th Cir. 2001) (en banc).

"A district court's decision to depart from the Guidelines... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court." Koon v. United States, 518 U.S. 81, 98 (1996). When a district court exercises its discretion based on an erroneous view of the law, it necessarily abuses its discretion. See Hasan, 245 F.3d at 684. "The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions." Koon, 518 U.S. at 100. Further, a district court commits an abuse of discretion "'when a relevant factor that should have been given significant weight is not considered, when an irrelevant or improper factor is considered and given significant weight, or when all proper and no improper factors are considered, but the court in weighing those factors commits a clear error of judgment.'" United States v. Huerta-Orozco, 272 F.3d 561, 566 (8th Cir. 2001) (citations omitted).

District courts have the authority to depart from the guidelines only in limited circumstances. United States v. Hendricks, 171 F.3d 1184, 1187 (8th Cir. 1999). A sentencing court may only impose a sentence outside the applicable guideline range, "if the court finds 'that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.'" USSG § 5K2.0 (quoting 18 U.S.C. § 3553(b)).

In granting a downward departure, the district court at the time of sentencing, in open court, must state the reasons for a particular sentence with "the specific reason for the imposition of a sentence different from that described." See 18 U.S.C. § 3553(c)(2); see also United States v. Lang, 898 F.2d 1378, 1380 (8th Cir. 1990). Additionally, the district court must "explain why the guideline sentence is inadequate, identify specific factual basis for departure and explain why the resulting sentence is reasonable." Hendricks, 171 F.3d at 1188 (citation omitted).

The government contends the district court made an error of law by departing downward based on...