U.S. v. Poor Bear

• Decision Date: 08 March 2004
• Docket Number: No. 03-1301.,03-1301.
• Citation: 359 F.3d 1038
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Delaney POOR BEAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1038

359 F.3d 1038

UNITED STATES of America, Plaintiff-Appellee, v. Delaney POOR BEAR, Defendant-Appellant.

No. 03-1301.

United States Court of Appeals, Eighth Circuit.

Submitted: October 22, 2003.

Filed: March 8, 2004.

Counsel who presented argument on behalf of the appellant was Monica D. Thomas, AFPD, Rapid City, SD.

Counsel who presented argument on behalf of the appellee was Thomas J. Wright, AUSA, Sioux Falls, SD. Gregg S. Peterman, AUSA, Rapid City, SD, submitted appellee's brief.

Before BYE, HANSEN, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Delaney Poor Bear pleaded guilty to abusive sexual contact in violation of 18 U.S.C. §§ 2244(a)(2). He appeals his sentence, arguing that the district court clearly erred when it applied a cross-reference contained in the pertinent United States Sentencing Guidelines provision. For the reasons stated below, we reverse and remand for resentencing.

I.

Poor Bear pleaded guilty to the sole count of the indictment charged against him in which the Grand Jury alleged that he committed abusive sexual contact under 18 U.S.C. § 2244(a)(2) (2000). The Code defines "sexual contact" as "the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person." Id. § 2246(3).

The charge against Poor Bear arose out of his admitted criminal conduct on the Pine Ridge Indian Reservation. Poor Bear admitted to unlawfully touching a fifteen year-old female victim while she was passed out in her bedroom after a night of heavy drinking. Poor Bear, the victim, and several members of the victim's family gathered one evening to play cards, listen to music, and drink whiskey. After drinking excessively, the victim passed out in a bedroom. Sometime later, Poor Bear went into the bedroom and admitted that he committed abusive sexual contact. The victim was unconscious during this time, but her sister caught Poor Bear on the bed with the victim and called an ambulance. This appeal challenges the factual basis to support the district court's conclusion that Poor Bear touched the victim's genitalia underneath, as opposed to over, her clothing-a factual determination that significantly impacts his Guidelines range.

Poor Bear's plea agreement outlines the following criminal conduct:

On January 17, 2001, Delaney Poor Bear was inside a residence in Allen, South Dakota, on the Pine Ridge Indian Reservation. Also inside the residence was [the victim], age 15. At one point in the evening, [the victim] was sleeping inside an interior bedroom. The Defendant entered the room and touched [the victim's] buttocks with his hand with an intent to gratify his sexual desire.

Appellant's Br., at 3 (quoting Statement of Factual Basis, at Addendum pg. 2).

The plea agreement also delineates the parties' agreement as to Poor Bear's base offense level for purposes of sentencing:

It is further understood that in connection with the defendant's plea and sentencing, the United States will assert that the base offense level upon which the defendant's sentence is to be initially calculated, pursuant to U.S.S.G. § 2A3.4(a)(2), is 12, with an increase of 2 levels pursuant to U.S.S.G. § 2A3.4(b)(2), for a total offense level of 14. The defendant understands that these assertions are not binding on the Court.

Appellant's Br., at Addendum pg. 3 (plea agreement).

Thus, the parties agreed in their nonbinding plea agreement that the Abusive Sexual Contact provision, U.S.S.G. § 2A3.4, controlled the determination of Poor Bear's base offense level. After increasing the base offense level by 2 because of the age of the victim, application of § 2A3.4 would have rendered a base offense level of 14. However, subpart (c) of the Abusive Sexual Contact Guidelines provision cross-references a harsher Guidelines provision when the conduct at issue constitutes criminal sexual abuse, as opposed to abusive sexual contact. Specifically, the cross-reference provides: "If the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse (as defined in 18 U.S.C. § 2241 or § 2242), apply § 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse)." U.S.S.G. § 2A3.4(c)(1).

The Criminal Sexual Abuse Guideline provides for a significantly higher base offense level than does the Abusive Sexual Contact provision and sets the defendant's base offense level at 27, with a 2-level increase when the victim is between the ages of twelve and fifteen. U.S.S.G. § 2A3.1(b)(2)(B). For purposes of Poor Bear's case, the critical difference between criminal sexual abuse and abusive sexual contact turns on whether he touched the victim's genitalia directly or through her clothing.

The Code defines criminal sexual abuse as engaging in "a sexual act with another person if that other person is(A) incapable of appraising the nature of the conduct; or (B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act." 18 U.S.C. § 2242(2). A "sexual act" is further defined as "the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person." 18 U.S.C. § 2446(2)(D) (emphasis added). As noted above, "sexual contact" occurs regardless of whether the unlawful touching occurred directly or through the victim's clothing. See 18 U.S.C. § 2246(c). Poor Bear contends that the record in this case does not support the district court's conclusion that he committed a "sexual act" within the meaning of 18 U.S.C. § 2246(2)(D) and, therefore, that the district court should not have sentenced him under the Criminal Sexual Abuse Guidelines provision.

II.

Despite the parties' agreement that the Abusive Sexual Contact provision applied, the probation officer who prepared Poor Bear's pre-sentence report investigation, or "PSR," recommended that Poor Bear be sentenced under the harsher Criminal Sexual Abuse provision. Poor Bear timely objected to the probation officer's recommendation, as well as to the paragraphs detailing the factual allegations that would support the provision's application. At the sentencing hearing, the government did not seek enhancement of Poor Bear's sentence under the Criminal Sexual Abuse provision and did not offer any evidence in support of its application because to do so would have violated the parties' plea agreement. The district court, however, called the FBI agent who interviewed Poor Bear after his arrest and found that the evidence showed that Poor Bear directly touched the victim's vagina. Therefore, the district court applied the Criminal Sexual Abuse provision and ultimately sentenced Poor Bear to the statutory maximum for his crime-three years.¹

On appeal, Poor Bear argues that the district court's factual findings were clearly erroneous because, according to him, they were based on the objected-to paragraphs of the PSR, not on reasonable inferences drawn from the FBI agent's testimony. The probation officer who prepared the PSR gleaned the information contained in objected-to paragraphs from FBI investigation reports, which were not themselves offered or admitted into evidence. The objected-to paragraphs provided the following:

Also highly intoxicated was the defendant, who some time later went into the victim's room. The defendant crawled onto the victim's bed, pulled down her pants, and touched her on and around the buttocks and vagina with his fingers, before he was caught by [the victim's sister] who entered the room to check on [the victim]. [The victim's sister] observed the defendant rolling around on the bed and trying to pull up his pants. The victim was found with her pants pulled part way down her legs.

PSR, ¶ 8, at p. 4.

In discussing the adjustment for acceptance of responsibility, the PSR provides:

The defendant initially denied any sexual contact with the victim when he was interviewed by investigating officers. He agreed to a polygraph examination; however, prior to the examination, he tearfully admitted to touching the victim's vagina directly with his fingers for approximately two to three minutes. The defendant's Statement of Factual Basis indicates he admits to touching the victim's buttocks. The defendant stated in his interview for this report that he does not recall specifically touching the victim, but he recalls going into her room and removing her pants. He believes that he touched the victim, but he does not specifically recall where.

PSR, ¶ 12, at p. 4. Apart from the information contained in these paragraphs, nothing in the PSR nor in Poor Bear's plea agreement supports a factual basis for the application of the Criminal Sexual Abuse provision, § 2A3.1.

The PSR is not evidence. United States v. Wise, 976 F.2d 393, 404 (8th Cir.1992) (en banc). If the defendant objects to any of the factual allegations contained therein on an issue on which the government has the burden of proof, such as the base offense level and any enhancing factors, the government must present evidence at the sentencing hearing to prove the existence of the disputed facts. Id. The district court cannot rely on facts at sentencing that have not been proved by a preponderance of the evidence. United States v. Hammer, 3 F.3d 266, 272 (8th Cir.1993). Here, the government declined to present evidence to prove the disputed facts. That is, that Poor Bear directly touched the victim's genitalia. The court, however, elected to call the FBI agent in charge of the Poor Bear investigation, Elizabeth Snyder. Her testimony consisted of the following:

BY THE COURT:

Q. Ms. Snyder, would you please state your name for the record.

A. Elizabeth A. Snyder.

Q. What was your role in this case?

A. I was...