U.S. v. Sharpfish, 04-1370.

• Decision Date: 23 May 2005
• Docket Number: No. 04-1370.,04-1370.
• Citation: 408 F.3d 507
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Derwin K. SHARPFISH, also known as Dervwin K. Sharpfish, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

408 F.3d 507

UNITED STATES of America, Plaintiff-Appellee, v. Derwin K. SHARPFISH, also known as Dervwin K. Sharpfish, Defendant-Appellant.

No. 04-1370.

United States Court of Appeals, Eighth Circuit.

Submitted: October 21, 2004.

Filed: May 23, 2005.

Counsel who presented argument on behalf of the appellant was Edward G. Albright,

Assistant Federal Public Defender, of Pierre, South Dakota. Also appearing on the brief was Jeffrey L. Viken.

Counsel who presented argument on behalf of the appellee was Randolph J. Seiler, Assistant U.S. Attorney, of Sioux Falls, South Dakota. Also appearing on the brief were James E. McMahon and Kathryn E. Ford.

Before MORRIS SHEPPARD ARNOLD, JOHN R. GIBSON, and SMITH, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Derwin K. Sharpfish appeals from the sentence imposed on him following his plea of guilty to a charge of aggravated sexual abuse of a minor. The sentence of 262 months' imprisonment was based in part on a finding that Sharpfish had used force in committing the crime and on a finding that he had engaged in a pattern of prohibited sexual conduct. Sharpfish contends that the evidence does not support the finding that he used force or engaged in a pattern of prohibited conduct. He also contends that the court erred in relying on the testimony of the probation officer to support its findings of fact. We affirm the sentence imposed.

Sharpfish pleaded guilty to aggravated sexual abuse of his daughter, R.S., who was between two and four years old at the time of the abuse. Sharpfish objected to certain factual statements in the presentence investigation report.

At the sentencing hearing, the government presented two witnesses who testified about the issues of use of force and pattern of prohibited conduct. First was FBI Agent Kevin McGrane, who testified about statements R.S. made to Wanda Bachman, R.S.'s foster parent. McGrane also testified about medical evidence from a second victim, S.F.; statements Sharpfish himself had made to McGrane; statements R.S. made in an interview; statements Sharpfish's girlfriend made to the FBI; and a report of the South Dakota Department of Social Services regarding statements and conduct of S.F. The second witness, Cynthia Wixon-Loecker, was the probation officer who prepared the presentence investigation report. Her investigation included a review of all the investigative reports, police reports, social services reports, forensic interviews, and other documentation, as well as an interview of Sharpfish. She identified the sources for the factual assertions in the presentence report that Sharpfish was disputing. Sharpfish's counsel did not object to either witness's testimony as hearsay, although he did object to one question on Sixth Amendment grounds because he was unable to cross-examine the declarant. That objection was overruled.

The district court¹ found that the evidence established that Sharpfish used force in committing the crime. The court stated that there was evidence of ongoing physical abuse of R.S. of the type that "can easily be used to train a child for sexual abuse." The court also relied on statements by R.S. that Sharpfish "did this [sexual abuse] to her often, repeatedly, and that he was too heavy when he was on top of her, and he hurts her." The court found that R.S.'s report of Sharpfish using his feet to abuse her sexually was consistent with reports of his conduct with S.F. Further, R.S. said that she "would tell him no" and that Sharpfish would not listen. The court also relied on R.S.'s extremely tender age of three and a half or younger. The court distinguished other cases in which the evidence of force was inadequate, saying, "[W]e have actual injuries and actual physical abuse."

The court next found that Sharpfish had engaged in a pattern of prohibited sexual conduct in that he also abused S.F., the three-year-old niece of Sharpfish's girlfriend. In support of that finding, the court mentioned Katie Folson, Sharpfish's girlfriend, who had been reported as saying that she had seen Sharpfish ejaculating on S.F. and using his foot to abuse S.F. sexually. The court also referred to statements by R.S. and S.F. that Sharpfish had touched or hurt S.F. in her genital area.

On appeal, Sharpfish argues that the evidence does not support a finding that Sharpfish used force in committing the crime or that he engaged in a pattern of prohibited sexual conduct. He also contends that the court could not base findings on the testimony of Wixon-Loecker because she testified to statements by out of court declarants.

While this case was pending on appeal, the Supreme Court announced its decision in United States v. Booker, ___ U.S. ___, ___, 125 S.Ct. 738, 765, 160 L.Ed.2d 621 (2005), which changed the standard for our review of sentencing decisions by imposing a standard of reasonableness as to the ultimate sentencing determination. Booker notwithstanding, we continue to review the district court's findings of fact on sentencing for clear error and its application of the sentencing guidelines to the facts de novo. United States v. Mathijssen, 406 F.3d 496, 2005 WL 1005003, at *1-2 (8th Cir. May 2, 2005).

The court held that Sharpfish's use of force led to application of a base offense level of 20 under U.S.S.G. § 2A3.4(a)(1). That section applies if the offense involved conduct described in 18 U.S.C. § 2241(a) or (b). Application note 2 to § 2A3.4 states:

For purposes of subsection (a)(1), "conduct described in 18 U.S.C. § 2241(a) or (b)" is engaging in, or causing sexual contact with, or by another person by:

(A) using force against the victim; [or]

(B) threatening or placing the victim in fear that any person will be subjected to death, serious bodily injury, or kidnapping....

Sharpfish contends that his case is like two others in which we held the government failed to prove that the defendant used force to engage in the sexual contact. In United States v. Blue, 255 F.3d 609, 613 (8th Cir.2001), we held that "size difference alone cannot establish use of force." Where there was no evidence that the defendant affirmatively used his size advantage to effect the crime, merely possessing such an advantage did not warrant the enhancement. In United States v. Crow, 148 F.3d 1048, 1050 (8th Cir.1998), we reversed a sentence based on a finding of use of force where the victim testified that the defendant removed her clothes although she did not want him to and that he hurt her. We held there that the record was

devoid of any evidence regarding Crow's size in relation to the victim's, the victim's (perceived) ability to escape the sexual attack, or what exactly the victim meant when she stated Crow "hurt" her—i.e., whether Crow hurt her to compel her to submit to the sexual contact, or whether the contact itself hurt her.

148 F.3d at 1050. In this case, unlike Crow, there was evidence that Sharpfish had a great size advantage over the victim: he was said to weigh 235 to 240 pounds, whereas R.S. was three years old. And unlike the defendant in Blue, Sharpfish had used his size advantage to brutalize the child over time by beating and kicking her; the district court could well infer that this ongoing physical abuse was a program of domination that affected R.S.'s ability to resist the sexual aggression. See United States v. Gabe, 237 F.3d 954, 961 (8th Cir.2001) (use of force where defendant had hit child victim and her mother on previous occasion and victim said she obeyed defendant on occasion of crime because she was afraid of him). Moreover, R.S. said that Sharpfish lay on her, despite her telling him "no," and that he hurt her "down there." This evidence warrants the conclusion that Sharpfish immobilized the victim by his weight, simultaneously with the sexual abuse. A defendant who physically restrains a victim from escaping uses "force" in committing the crime as contemplated by section 2241(a). United States v. Allery, 139 F.3d 609, 611-12 (8th Cir.1998). The evidence is ample to support the finding of the use of force to commit the crime. See United States v. Knife, 9 F.3d 705, 706 (8th Cir.1993) (upholding finding of use of force where 210-pound defendant lay on child victim and...