United States v. Clark, 19-7046

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation981 F.3d 1154
Docket NumberNo. 19-7046,19-7046
Parties UNITED STATES of America, Plaintiff - Appellee, v. Jessica Jean CLARK, a/k/a Jessica Jean Kidd, Defendant - Appellant.
Decision Date09 December 2020

Barbara L. Woltz, Attorney (Julia L. O'Connell, Federal Public Defender; Barry L. Derryberry and Robert S. Williams, Attorneys, with her on the briefs), Office of the Federal Public Defender for the Northern and Eastern Districts of Oklahoma, Tulsa, Oklahoma, appearing for Appellant.

Linda A. Epperley, Assistant United States Attorney (Brian J. Kuester, United States Attorney, with her on the brief), Office of the United States Attorney for the Eastern District of Oklahoma, Muskogee, Oklahoma, appearing for Appellee.

Before BRISCOE, MURPHY, and BACHARACH, Circuit Judges.


This matter is before the us on Defendant/Appellant's Petition for Rehearing. The petition is granted in part to the extent of the modifications on page 17 of the attached revised opinion. The court's November 17, 2020 opinion is withdrawn and replaced by the attached revised opinion, which shall be filed as of today's date. Because the panel's decision to partially grant rehearing resulted in only non-substantive changes to the opinion that do not affect the outcome of this appeal, Appellant may not file a second or successive rehearing petition. See 10th Cir. R. 40.3.

BRISCOE, Circuit Judge.

Defendant Jessica Clark pleaded guilty to one count of child neglect in Indian Country, in violation of 18 U.S.C. §§ 1151, 1153, and Okla. Stat. Ann. Tit. 21, § 843.5(C). At sentencing, the district court concluded there was no sufficiently analogous Guidelines provision that applied to Clark's offense of conviction and that, consequently, it was left to sentence Clark without reference to a specific Guidelines provision or advisory Guidelines sentencing range, as provided in 18 U.S.C. § 3553(b). The district court ultimately sentenced Clark to a term of imprisonment of 84 months, to be followed by a five-year term of supervised release.

Clark now appeals, arguing that the district court committed two procedural errors during her sentencing. First, Clark argues that U.S.S.G. § 2A2.3, the Sentencing Guidelines provision applicable to "Assault" offenses, is sufficiently analogous to her offense of conviction and therefore should have, pursuant to U.S.S.G. § 2X5.1, been applied by the district court to determine both an offense level and in turn an advisory Guidelines sentencing range. Second, Clark argues that the district court plainly erred by failing to adequately explain the reasons for the sentence it imposed. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reject Clark's first argument, but agree with her second. Consequently, we affirm the district court's conclusion that there is no sufficiently analogous Guidelines provision, but remand this matter to the district court with directions to vacate Clark's sentence and to conduct a resentencing, which shall include an explanation of the reasons for the sentence ultimately imposed.


Factual background

Defendant Clark is a Native American and enrolled member of the Cherokee Nation tribe. At the time of the events that resulted in Clark's arrest and conviction, Clark lived with her two minor children, nine-year-old P.H. and six-year-old J.H., in a house near Stilwell, Oklahoma, and on lands held in trust by the United States government for the Cherokee Nation. Clark's sister, Evelyn Israel, and Israel's two minor children, M.I. and K.I., also resided in the house at the time of the events in question.

Clark and her family lived in dire conditions. Clark's home had broken windows and no source of running water. As a result, Clark and her children relied either on bottled water or water obtained from a nearby creek. Clark had no driver's license and no vehicle, and thus relied on others to provide transportation for her and her children. Clark was unemployed and relied on disability payments that she received on behalf of P.H., who had been diagnosed with autism

and ADHD. Clark regularly used marijuana and methamphetamine.

On Friday, September 8, 2017, P.H., J.H., and their two cousins, M.I. and K.I., were playing at the creek near Clark's house. The children climbed onto a log that sat above the creek and, at some point, P.H. fell off of the log and injured her right leg. The other children helped P.H. walk back to her house.

P.H. spent the majority of the next three days lying on the couch in the living room of her home. Over the course of that period, P.H. ate very little, her injured leg turned purple, and she developed a fever. On the morning of Tuesday, September 12, 2017, Israel heard P.H. scream for her. Israel went into Clark's room and observed P.H. lying on the bed. According to Israel, fluid was coming from P.H.’s groin and mouth. P.H. was carried to the living room, where she collapsed. Clark ran down the road to get help and called 911. An ambulance arrived and P.H. was transported to the Stilwell Memorial Hospital, where she was pronounced dead. An autopsy concluded that P.H.’s death was caused by "complications of deep soft tissue due to an infection of the right lower leg." ROA, Vol. 3 at 10.

Clark was interviewed by law enforcement officers after P.H.’s death. Clark described P.H. as her "healthy child," but noted that she occasionally took P.H. to the emergency room for treatment. Id . at 5. Clark noted that on the evening of the day that P.H. injured her leg, P.H.’s leg began swelling and she showed signs of illness. Clark stated that she intended to take P.H. to the emergency room the following day, but ended up not doing so because the following day the swelling in P.H.’s leg appeared to go down some and P.H. felt well enough to play. According to Clark, P.H. developed a fever and began vomiting on Sunday, September 10, 2017. Clark stated that several people in the household had recently had a stomach virus, and she believed that P.H. had contracted it and that was what was causing her fever and vomiting. On Monday, September 11, 2017, P.H. continued to have a fever and diarrhea. Clark stated that on the evening of September 11, P.H. ate peaches, drank ice water, and talked about wanting to go to school the next day. According to Clark, P.H. slept with her on the night of September 11, and the following morning P.H. appeared to be fine at approximately 7 a.m. Clark stated that she subsequently heard P.H. yelling for her from the bedroom, so she went into the bedroom and laid down with P.H. Clark purportedly asked P.H. if she wanted to go to the emergency room, and P.H. said no. At some point after 9 a.m. that morning, P.H. purportedly began yelling for Clark again, and P.H. was carried from the bedroom to the living room couch. As she was being carried to the couch, P.H. purportedly said, "My stomach is hot," and indicated that her legs were hurting. Id. As P.H. was lying on the couch, Clark noticed that P.H.’s eyes were rolled back into her head and she was having problems breathing. At that point, Clark ran out of the house to find cell phone service and, after doing so, called 911. After Clark called 911, a neighbor arrived in a vehicle, and agreed to drive Clark and P.H. to meet the ambulance. Thereafter, the ambulance took P.H. and Clark to the hospital.

Israel was also interviewed by law enforcement officers. Israel stated that she witnessed Clark and her boyfriend, Kenneth Linville, smoking marijuana during the time period that P.H. was sick. Further, Israel stated that she suggested to Clark, during the time period that P.H. was sick, that their mother could come and take P.H. to the hospital, but Clark refused, saying that she expected P.H. to get better. Israel also noted that Clark owned a cell phone and was able to use it to make phone calls if she walked a very short distance from the home.

Law enforcement officials obtained records from the Oklahoma Department of Human Services which revealed approximately twenty-two referrals involving Clark and her children beginning in 1998. Of those referrals, only two, one in 2003 and another in 2015, were found to be substantiated. There was also an open referral at the time of P.H.’s death. The referrals included concerns about neglect related to an unsafe home, domestic violence, physical abuse, sexual abuse, substance abuse, and medical neglect. The open referral was made on September 11, 2017, and was an anonymous voicemail regarding Clark, her alleged drug use, and the dire condition of the house.

On October 6, 2017, a Cherokee Nation Child Abuse and Neglect Report was completed by Child Welfare Specialist Pam Edgar regarding allegations of neglect as to P.H. and J.H. Clark admitted to Edgar that she used marijuana and methamphetamine, and her admission was corroborated by her own medical records, which showed numerous positive urinalysis results, as well as by multiple collateral interviews. J.H. was found to have rotting teeth and Clark admitted to never having taken him to a dentist. J.H. was seen by a pediatrician and was determined to have an impacted bowel that required medical intervention to correct. Clark stated that J.H. had a history of defecating on himself, including at school, but she thought he would get better on his own. J.H. was also seen by an optometrist who determined he needed glasses; J.H. had never been to an optometrist before. Edgar concluded that both P.H. and J.H. had been exposed to domestic violence in the home. As a result of Edgar's investigation, the Cherokee Nation Indian Child Welfare department recommended that a petition be filed and that J.H. remain in the custody of the Cherokee Nation until the conditions which led to his removal were corrected.

Procedural background

On July 18, 2018, a federal grand jury returned an indictment charging Clark with one count of child neglect in Indian Country, in violation of 18 U.S.C. §§ 1151, 1153, and Okla. Stat. Ann. Tit. 21, § 843.5(C)....

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