U.S. v. Yates, 92-2135

• Citation: 22 F.3d 981
• Decision Date: 19 April 1994
• Docket Number: No. 92-2135,92-2135
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Matthew YATES, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 981

22 F.3d 981

UNITED STATES of America, Plaintiff-Appellee, v. Charles Matthew YATES, Defendant-Appellant.

No. 92-2135.

United States Court of Appeals, Tenth Circuit.

April 19, 1994.

Robert Gorence, Asst. U.S. Atty. (Don J. Svet, U.S. Atty., and Mary L. Higgins, Asst. U.S. Atty., on the brief), Albuquerque, NM, for plaintiff-appellee.

Benjamin A. Gonzales, Albuquerque, NM, for defendant-appellant.

Before SEYMOUR, Chief Judge, LOGAN and GARTH, ^* Circuit Judges.

GARTH, Circuit Judge.

Appellant Charles Matthew Yates pleaded guilty to abusive sexual contact with a child under the age of 12 years on an Indian reservation, in violation of 18 U.S.C. Secs. 1153 [offense committed within Indian country], 2244(a)(1) [abusive sexual contact], and 2245(3) [defining "sexual contact"]. At the sentencing hearing, the district court judge calculated Yates' base level at 20 under the United States Sentencing Commission Guidelines ("Guidelines"); denied a two-level reduction for acceptance of responsibility; departed upward from criminal history level III to level VI; and imposed a sentence of 87 months imprisonment with three years supervision after release from confinement. Yates appeals, alleging error in each of these sentencing decisions. He also contends that he was denied effective assistance of counsel at sentencing.

We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and 18 U.S.C. Sec. 3742(d). While we will dismiss Yates' ineffective assistance of counsel claim without prejudice, we will reverse and remand for resentencing by the district court consistent with this opinion.

I.

On April 30, 1991, Yates invited a group of men to drink at his house in Indian territory in Nambe Pueblo, New Mexico. One of the men brought with him his two young daughters, ages five and four. After the girls' father passed out in the living room of Yates' house early on the morning of May 1st, Yates brought the five-year-old girl to a bedroom, where he had sexual contact with her. The incident was reported to Nambe Pueblo police later that day. A medical examination of the girl indicated that attempted penetration of her vagina had occurred, and that she had sustained minor cuts to her gums and her mouth, corroborating the girl's statement that her mouth had been held shut during the sexual attack.

Yates was arrested several days later and subsequently was indicted for knowingly engaging in a sexual act with another person under the age of 12 within Indian country, in violation of 18 U.S.C. Secs. 1153, 2241(c) and 2245(2)(A). Yates was released on a recognizance bond and was then arrested once again. This latter arrest was the result of New Mexico state charges brought against Yates for kidnapping and sexual offenses allegedly committed by Yates in February 1992, some months after he had committed the offense at issue here. A revocation hearing was scheduled to determine whether Yates' release in the 1991 case should be revoked because of the New Mexico charges. However, the hearing was not held because, on March 4, 1992, Yates pleaded guilty to an information charging the lesser offense of abusive sexual contact with the five-year-old child in violation of 18 U.S.C. Secs. 1153, 2244(a)(1), and 2245(3). ¹ In exchange for the guilty plea, the Government dismissed the indictment and agreed not to prosecute Yates for his alleged sexual assault of another adult woman (unnamed in this record) on May 1, 1991--the same day that he sexually assaulted the five-year-old girl.

The presentence report indicates that Yates had a long history of alcohol-related and other criminal offenses, including several arrests for sexual assaults that either were never prosecuted or that were adjudicated in tribal court. With regard to the instant offense, the presentence report calculated a criminal history level of III based on Yates' three previous misdemeanor convictions for driving while intoxicated and on the fact that Yates committed the present offense while on probation for one of those misdemeanors. The presentence report calculated the base offense level at 16 because Yates' offense was committed with force and, therefore, was "committed by the means set forth in 18 U.S.C. Sec. 2241(a) [aggravated sexual assault by force or threat]." See 18 U.S.C. Sec. 2241(a); U.S.S.G. Sec. 2A3.4(a)(1). ² An additional four-level upward adjustment was added in the presentence report based on the age of the victim (less than twelve years old) pursuant to U.S.S.G. Secs. 2A3.4(b)(1). ³ With an adjusted offense level of 20 and a criminal history category of III, the Guidelines range was 41 to 51 months.

The presentence report recommended that Yates not receive a two-level decrease for acceptance of responsibility because he had not withdrawn voluntarily from criminal conduct. In support of this recommendation, the presentence report noted that Yates had been indicted by a New Mexico state grand jury for kidnapping and criminal sexual offenses committed in February 1992 while Yates was free on federal bond for the instant offense. In addition to the pending New Mexico state sexual charges, the presentence report also listed the contemporaneous adult sexual assault not prosecuted pursuant to the plea agreement and Yates' four prior arrests for sexual offenses as grounds for an upward departure from criminal history category III to VI, yielding a Guidelines range of 70 to 87 months.

At sentencing, the district court adopted the factual findings and Guidelines applications set forth in the presentence report. The court found by a preponderance of the evidence that force had been used against the five-year-old girl whose mouth suffered cuts from the assault, thereby justifying an adjusted offense level of 20. The court refused Yates' request for a two-level downward adjustment for acceptance of responsibility under U.S.S.G. Sec. 3E1.1. The court further found that an upward departure was justified because Yates' criminal history category significantly under-represented his actual criminal conduct. In departing upward, the court took "judicial notice" of Yates' three prior convictions for driving under the influence of alcohol and his involvement in two tribal and two non-tribal arrests for sexual assault. Although two of these alleged prior criminal acts had not been prosecuted, the court found that they represented criminal behavior that had not been refuted by Yates. The court also found that Yates, while on personal recognizance bond for the instant offense, satisfied a U.S. magistrate that there was probable cause that Yates had violated conditions of his release by committing the February 1992 New Mexico state sexual offense. Based on these factors, the court departed upward from criminal history category III to criminal history category VI and imposed sentence at the top of the Guidelines range by sentencing Yates to prison for 87 months.

II.

Yates assigns error to the district court's (1) computation of his base offense level [at 16 plus 4 or 20]; (2) its refusal to decrease his offense level by two points for acceptance of responsibility; and (3) its upward departure decision which increased Yates' criminal history from level III to level VI. Yates also claims that he was denied the effective assistance of counsel, asserting that his counsel offered no evidence to refute the alleged sexual assaults recited in the presentence report.

We hold that all of Yates' arguments, other than his upward departure claim, to be without merit. ⁴ We have held that a claim of ineffective assistance of counsel which requires the development of a record, will not be heard on direct appeal, but must be brought in a collateral proceeding pursuant to 28 U.S.C. Sec. 2255. Beaulieu v. United States, 930 F.2d 805, 808 (10th Cir.1991). Accordingly, we will dismiss Yates' claim of ineffective assistance of counsel, but will do so without prejudice. We, therefore, limit our discussion to the district court's decision to increase Yates' criminal history category form level III to level VI.

III.

A.

Yates appeals the district court's departure upward from the Guidelines range, pursuant to 18 U.S.C. Sec. 3742(a). ⁵ That section provides a right of appeal, inter alia, when the sentence is imposed as a result of an incorrect application of the sentencing guidelines, id. Sec. 3742(a)(2), or when the sentence imposed is greater than that specified in the applicable guideline range, id. Sec. 3742(a)(3). Our disposition of the upward departure issue is governed by 18 U.S.C. Sec. 3742(f). ⁶

In reviewing upward departures, we are guided by the analytical framework established by the Supreme Court in Williams v. United States, --- U.S. ----, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992). Williams requires us to determine, first, whether there was an incorrect application of the Guidelines under Sec. 3742(f), and then, if indeed there was error, whether the sentence imposed was reasonable. Because the two-part Williams test is encapsulated in the three-step analysis we set forth in United States v. White, 893 F.2d 276, 277-78 (10th Cir.1990), we continue to engage in the three-step review pronounced in White. United States v. Flinn, 987 F.2d 1497 (10th Cir.1993).

Under White, we first review de novo whether the district court justified its decision to depart by citing appropriate circumstances. United States v. Tisdale, 7 F.3d 957, 962 (10th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1201, 127 L.Ed.2d 549 (1994). The second step of the White analysis requires us to apply the clearly erroneous standard to determine whether the circumstances cited by the district court actually existed in the case before the court. Finally, we review the degree of the upward departure to determine if it was reasonable. White, 893 F.2d at 277-78.

B.

A departure from the Guidelines range is appropriate only where the district court "finds that there exists an aggravating or mitigating circumstance...