U.S. v. Zamarripa, No. 89-2145

• Decision Date: 11 June 1990
• Docket Number: No. 89-2145
• Citation: 905 F.2d 337
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesse ZAMARRIPA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 337

905 F.2d 337

UNITED STATES of America, Plaintiff-Appellee, v. Jesse ZAMARRIPA, Defendant-Appellant.

No. 89-2145.

United States Court of Appeals, Tenth Circuit.

June 11, 1990.

Teresa E. Storch, Asst. Federal Public Defender, Albuquerque, N.M., for defendant-appellant.

William L. Lutz, U.S. Atty. (Stephen R. Kotz, Asst. U.S. Atty., with him on the briefs), Albuquerque, N.M., for plaintiff-appellee.

Before SEYMOUR, BARRETT, and BRORBY, Circuit Judges.

SEYMOUR, Circuit Judge.

Jesse Zamarripa was charged with three counts of abusive sexual contact in violation of 18 U.S.C. Secs. 7(3), 2244(a)(1), and 2245(3) (1988). The three counts alleged a series of three offenses occurring respectively in April, May, and June, 1988, and involving the same victim, an eight-year old girl. Zamarripa pled guilty to the second count pursuant to a plea agreement under which the other two counts were dismissed. In sentencing Zamarripa, the district court departed upward from the Sentencing Guidelines. Zamarripa challenges this departure on appeal. We vacate the sentence and remand for resentencing.

I.

The stipulated facts in this case reveal that Zamarripa was a personal friend of the victim's family and was the victim's babysitter at the time of the occurrences. As a result of Zamarripa's conduct, the child's ability to trust adults and authority figures was seriously undermined. The child's therapist recommended counseling for more than a year, and stated that it is not uncommon for victims of this type of assault to experience difficulty when they reach the age for dating and sexual activity. However, the parties also stipulated that:

"The therapist is unable to give an opinion on whether the child's behavior/psychological condition is within the range of 'normal' for someone who has experienced an assault such as hers. At most, the therapist would state that every case is different, and the therapist is unwilling to state that a certain person's reaction is normal or abnormal."

Rec., vol. I, doc. 14 at 1.

Under the Sentencing Guidelines in effect at the time the offense was committed, the base offense level for abusive sexual contact was six. See United States Sentencing Comm., Guidelines Manual Sec. 2A3.4 (hereinafter Guidelines). ¹ The parties stipulated to a four-level increase under section 2A3.4(b)(2), ² and a two-level decrease for acceptance of responsibility, resulting in an offense level of eight. The plea agreement recognized that these stipulations were not binding on the court. Under the Guidelines, an offense level of eight and Zamarripa's criminal history level of I require a sentence of two to eight months.

Prior to sentencing, Zamarripa filed a sentencing memorandum in which he challenged indications in the presentence report that an upward departure from the Guidelines was warranted. The report suggested an upward departure might be appropriate because the Guidelines failed to consider adequately the increased psychological damage to the victim resulting from Zamarripa's abuse of his position as the victim's caretaker, and because the offense occurred on three separate occasions. At the sentencing hearing, the district court did not specify what Zamarripa's sentence would be under the Guidelines, nor did it adopt the presentence report. Instead, it announced its intention to depart from the Guidelines and stated:

"The Court finds for an upward departure pursuant to Section 5K2.0 for the following reasons: one, the defendant's relationship to the victim at the time of the instant offense was that of caretaker. He was entrusted with her well-being and this contributed to the ongoing nature of the crime and, in addition, had greater psychological impact on the victim demonstrating a greater harm, which are factors not considered by the Sentencing Commission in formulating guidelines in the instant case.

Two, pursuant to 18 United States Code Section 3661 and guideline 1B1.4, the Court finds that there are aggravating factors in that the defendant engaged for a period of time in behavior similar to the instant offense with the same victim."

Rec., vol. III, at 8. The court sentenced Zamarripa to fifteen months in prison and a three-year period of supervised release, and ordered restitution in the amount of $1376.

II.

Our review of a district court's decision to depart from the Guidelines requires a three-step analysis. See United States v. White, 893 F.2d 276 (10th Cir.1990). First, we must determine whether the circumstances cited by the district court justify departure. Id. at 277. Second, we must ascertain whether the record contains a factual basis to support the circumstances upon which the district court relied. Id. at 278. Finally, we must determine whether the degree of departure is reasonable. Id.

A.

As its first ground for departure, the district court relied on Zamarripa's abuse of his caretaker relationship with the victim and the resulting "greater psychological impact on the victim demonstrating a greater harm." Rec., vol. III, at 8. This circumstance will justify a departure under the first step of our analysis only if it is a "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." 18 U.S.C. Sec. 3553(b) (1988). Accordingly, our initial inquiry is whether the Guidelines contain provisions under which the cited circumstance, sexually abusive contact by one in a caretaker role, is given weight in the offense calculation.

Under Guidelines Sec. 3B1.3, the base offense level is increased by two levels "[i]f the defendant abused a position of ... private trust ... in a manner that significantly facilitated the commission ... of the offense." The Application Note to this provision states that "[t]he position of trust must have contributed in some substantial way to facilitating the crime and not merely have provided an opportunity that could as easily have been afforded to other persons." Although neither the district court nor the Government relied on section 3B1.3, neither has explained why this section is not applicable to the undisputed facts here. A babysitter is in a position of trust, and this position certainly enables him to commit a sexual crime more easily than a man on the street. It appears to us that the instant circumstances plainly fall within the ambit of section 3B1.3 and its Application Note. We likewise discern no rationale for concluding that this Guideline does not adequately cover the situation of abusive sexual contact achieved through abuse of a position of trust. Accordingly, we conclude that this circumstance alone does not justify an upward departure from the Guidelines, although the district court could have used it to increase the base offense level.

B.

The district judge also relied on his finding that the abuse of trust resulted in "greater psychological impact on the victim demonstrating a greater harm." Rec., vol. III, at 8. The Guidelines specifically acknowledge that a departure can be based on extreme psychological injury.

"If a victim or victims suffered psychological injury much more serious than that normally resulting from commission of the offense, the court may increase the sentence above the authorized guideline range. The extent of the increase ordinarily should depend on the severity of the psychological injury and the extent to which the injury was intended or knowingly risked.

"Normally, psychological injury would be sufficiently severe to warrant application of this adjustment only when there is a substantial impairment of the intellectual, psychological, emotional, or behavioral functioning of a victim, when the impairment is likely to be of an extended or continuous duration, and when the impairment manifests itself by physical or psychological symptoms or by changes in behavior patterns. The court should consider the extent to which such harm was likely, given the nature of the defendant's conduct."

Guidelines Sec. 5K2.3 (emphasis added).

Under step one of our analysis, if the victim suffered more serious psychological injury than normal, then an upward departure may be justified. We must therefore proceed to step two and determine whether, under the clearly erroneous rule, the court's finding of greater than normal psychological harm is supported by the record. We conclude that it is not. Departure is only allowed if the harm is "much more serious" than that normally resulting from the offense, and likely to be of extended or continuous duration. The government bears the burden of proof on this factor because it increases the sentence. See United States v. Kirk, 894 F.2d 1162, 1164 (10th Cir.1990). In this case, the parties stipulated the therapist was unable to state that the harm to the victim was greater than normal. We have carefully reviewed the presentence report and it adds nothing to support a finding of unusual psychological injury necessary to support a departure. The district court therefore erred in departing from the Guidelines on the basis that the crime resulted in greater than normal psychological harm.

C.

The district court's final reason for departing upward was that Zamarripa "engaged for a period of time in behavior similar to the instant offense with the same victim." Rec., vol. III, at 8. The court obviously was referring to the first and third counts, which were dismissed as part of the plea bargain. Because an upward departure may be supportable on the basis of Zamarripa's multiple sexual contacts with the same victim, we consider the circumstances in which such a departure is appropriate.

The propriety of a departure based on misconduct not resulting in conviction was comprehensively addressed in United States v. Kim, 896 F.2d 678 (2d Cir.1990). The court there pointed out that the Sentencing Commission "treated misconduct not resulting in...