U.S. v. Waseta, 10–2097.

Citation647 F.3d 980
Decision Date26 July 2011
Docket NumberNo. 10–2097.,10–2097.
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Joe WASETA, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

OPINION TEXT STARTS HERE

John V. Butcher, Assistant Federal Public Defender, Albuquerque, New Mexico, for DefendantAppellant.Laura Fashing, Assistant United States Attorney (Kenneth J. Gonzalez, United States Attorney, with her on the brief), Albuquerque, New Mexico, for PlaintiffAppellee.Before LUCERO, GORSUCH, and HOLMES, Circuit Judges.HOLMES, Circuit Judge.

DefendantAppellant Joe Alfonso Waseta pleaded guilty to one count of sexual abuse of a minor, in violation of 18 U.S.C. §§ 2243(a), 2246(2)(B), and 1153, for a sexual act committed against his stepson in Indian Country in 1989. The version of the United States Sentencing Guidelines (“Guidelines”) in place at the time of Mr. Waseta's crime of conviction dictated a sentence range of fifteen to twenty-one months under the then-mandatory Guidelines sentencing regime. When Mr. Waseta was sentenced, however, the Guidelines regime was no longer mandatory; pursuant to the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), it was (and remains) advisory. Under this advisory system, the district court varied upward and sentenced Mr. Waseta to forty-six months' imprisonment, to be followed by three years of supervised release. Mr. Waseta now appeals, claiming that the district court's sentence violated the ex post facto principles embodied in the Fifth Amendment's due process protections. More specifically, Mr. Waseta contends that application of the advisory Guidelines scheme resulted in a sentence that was utterly unforeseeable under the mandatory Guidelines in place at the time of his crime, and consequently effected an unconstitutional expansion of his exposure to punishment. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm his sentence.

BACKGROUND

On August 13, 2008, Mr. Waseta was indicted by a federal grand jury on one count of engaging in sexual contact with a minor—his step-grandson—who had not yet attained the age of twelve, in Indian Country, in violation of 18 U.S.C. §§ 2244(c), 2246(3), and 1153. A superceding indictment filed on September 23, 2008, added a second charge—that is, “knowingly engag[ing] in and attemp[ing] to engage in a sexual act with [his stepson], who had attained the age of twelve but not the age of sixteen years, and who was at least four years younger than the defendant,” in violation of 18 U.S.C. §§ 2243(a), 2246(2)(B), and 1153. Importantly for purposes of this appeal, the second count indicated that the charged offense occurred “between June 1, 1989 [,] and July 31, 1989.” R., Vol. I, at 5 (Superceding Indictment, filed Sept. 23, 2008). Furthermore, while the new count alleged only a single sexual act, the charged offense was actually part of an eleven-year pattern of sexual abuse wherein Mr. Waseta would regularly engage in oral and anal sex with his stepson, often as frequently as twice a week. The abuse began when the victim was six years old.

Mr. Waseta pleaded guilty on April 14, 2009, to a one-count information that mirrored the second count of the superceding indictment. Soon thereafter, the U.S. Probation Office prepared Mr. Waseta's Presentence Investigation Report (“PSR”) using the 1988 edition of the Guidelines.1 The PSR indicated that Mr. Waseta had an adjusted offense level of fourteen, which, when combined with his criminal history category of I, yielded a Guidelines range of fifteen to twenty-one months' imprisonment.2

Both parties filed sentencing memoranda. The government opposed a sentence within the prescribed Guidelines range and requested an upward departure under U.S.S.G. § 5K2.8 based on Mr. Waseta's “extreme conduct.” In so doing, the government emphasized the “horrific and degrading” nature of the abuse, which began when the victim was only six years old and continued relentlessly for over a decade. R., Vol. I, at 18–19 (U.S. Sentencing Mem., filed Jan. 12, 2010). The government also asked for an upward variance, arguing that [t]he one-count information ... does not fully detail the horrific crime that [Mr. Waseta] committed against his minor stepson.” Id. at 20.

Mr. Waseta, in contrast, requested that the court impose a Guidelines-minimum fifteen-month sentence, which he claimed was “appropriate for a crime that is more than twenty ... years old, to which [he] has freely admitted his guilt and attempted to make amends and reconciled with the victim, and for an individual whose only prior conviction is a DUI from 1972.” Id. at 24–25 (Sentencing Mem. & Objections, filed Jan. 12, 2010). He asserted that his ability “to reconcile [with his stepson] ... not only contradicts the allegations [of force,] but shows that [his] illegal conduct ... is consistent [with] the heartland violation of 18 U.S.C. § 2243(a), statutory rape.” 3 Id. at 31. Furthermore, Mr. Waseta filed a response to the government's request for an upward departure or variance, arguing, inter alia, that a sentence above the prescribed range of the Guidelines would create an “unwarranted disparity ... among similarly charged 1989 defendants in violation of the ex post facto principles inherent in his due process rights. Id. at 50 (Resp. to Gov.'s Request for Upward Departure & Variance, filed Jan. 15, 2010).

At sentencing, the district court declined to grant a departure under § 5K2.8, reasoning that “the circumstances surrounding Mr. Waseta's offense ... do not fit into the [§ ] 5K2.8 mold of unusually heinous, cruel, brutal or degrading conduct[, i.e.,] torture or gratuitous infliction of injury.” R., Vol. III, at 42 (Tr., Sentencing Hr'g, held Mar. 25, 2010). Nevertheless, it found that a sentence within the prescribed Guidelines range was inappropriate because this was “a far cry from the typical statutory rape case.” Id. Rejecting Mr. Waseta's suggestion that “the victim's age is the only element making the offense conduct criminal,” id. at 43, the district court concluded that an upward variance was appropriate based on the factors set forth in 18 U.S.C. § 3553(a). Specifically, the district court found that, while [t]he offense of conviction is statutory rape of a child between the ages of 12 and 16 ...[,] the circumstances surrounding the offense demonstrate that the conduct was much more severe.” Id. at 44. Citing the length of the abuse and “the manipulation and coercion inherent in the entire relationship,” id. at 44–45, the district court sentenced Mr. Waseta to forty-six months' imprisonment, followed by three years' supervised release. It stated:

After the Supreme Court's ... decision in [ Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) ], it is clear that this Court must not presume that the advisory guideline range is reasonable. In the post- Booker sentencing framework, a sentence of 15 to 21 months for the conduct I have described is simply unreasonable. In this case, Mr. Waseta engaged in sexual conduct with his adolescent stepson, which he acknowledges was only possible through his own improper coercion and manipulation, yet his base offense level under the 1988 guidelines is identical to that of a 20–year–old engaging in sexual intercourse with his or her 16–year–old girlfriend or boyfriend.... Mr. Waseta then received a mere one-level enhancement because the victim was in his care, custody or control, which raised his guideline range by three [months]. This three-[month] bump in no way adequately represents the heightened culpability of his conduct as compared to the average statutory rape case, nor does it acknowledge the life-long damage inflicted on [the victim].

Id. at 51.

In explaining its decision, the district court also addressed a number of Mr. Waseta's legal challenges to a possible upward variance, including his ex post facto challenge:

While it is true that the ex post facto clause requires the Court to sentence Mr. Waseta under the laws in place at the time he committed the offense, the clause does not forbid retroactive application of the advisory guideline regime. The Tenth Circuit affirmed this principle in

[ United States v. Portillo–Quezada, 469 F.3d 1345 (10th Cir.2006) (per curiam) ]

.... The Tenth Circuit again reaffirmed this principle in

[ United States v. Cachucha, 484 F.3d 1266 (10th Cir.2007) ]

, but did not decide whether the principle applies to sentences higher than any that might realistically have been imagined at the time of the crime.... With respect to this question the Tenth Circuit left unanswered, the Court notes that the statutory maximum penalty is five years, which indicates that such a sentence might realistically have been imagined when Mr. Waseta committed the events.... [T]he Court obviously does not intend to sentence Mr. Waseta above the statutory maximum in effect at the time of the offense, and therefore finds this case does not implicate the ex post facto clause.

Id. at 47–48. The court then entered its judgment and sentence, and this timely appeal followed.

DISCUSSION

The Ex Post Facto Clause is recognized as a “limitation upon the powers of the Legislature.” Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). Nevertheless, to a large extent, its principles apply to judicial decision-making through the operation of the Fifth Amendment's due process guarantee. See Rogers v. Tennessee, 532 U.S. 451, 456–57, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001); Bouie v. City of Columbia, 378 U.S. 347, 354, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964); see also Portillo–Quezada, 469 F.3d at 1355.4 This limitation on judicial decisions is “based upon the ‘core due process concepts of notice, [fore seeability], and, in particular the right to fair warning.’ Portillo–Quezada, 469 F.3d at 1355 (alteration omitted) (quoting Rogers, 532 U.S. at 451, 121 S.Ct. 1693); see Barton, 455 F.3d at...

To continue reading

Request your trial
7 cases
  • United States v. Richter
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 31, 2015
    ...that “clarity at the requisite level may be supplied by judicial gloss on an otherwise uncertain statute”); United States v. Waseta, 647 F.3d 980, 985 (10th Cir.2011) (restricting “due process limitations on the retroactive application of judicial interpretations of criminal statutes to tho......
  • Utah Envtl. Cong. v. MacWhorter, Case No. 2:08-CV-118-SA
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • October 14, 2011
    ...Cir. 2011) (declining to address argument that was not raised in opening brief but was raised later at oral argument); U.S. v. Waseta, 647 F.3d 980, 989 n.6 (10th Cir. 2011) (refusing to address argument developed for first time in reply brief); Bronson v. Swensen, 500 F.3d 1099, 1104 (10th......
  • United States v. Worku, Civil Action No. 17-cv-00497-JLK
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • September 11, 2017
    ...As the government points out, Worku's citation to United States v. Brittain, 931 F.2d 1413 (10th Cir. 1991), and United States v. Waseta, 647 F.3d 980 (10th Cir. 2011), is misplaced. Unlike the circumstances here, the changes in law discussed in Brittain and Waseta were announced through di......
  • United States v. Warren, 12–3136.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 16, 2013
    ...to blame. After all, Rule 32(i)(3)(B) applies only if facts in the PSR are disputed by specific objection. See United States v. Waseta, 647 F.3d 980, 989 n. 6 (10th Cir.2011) (“Though Mr. Waseta made a general, unspecified objection to ‘allegations in the [PSR] that have been suggested as [......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT