USA v. Pena, 99-2316

• Decision Date: 28 June 2000
• Docket Number: No. 99-2316,99-2316
• Citation: 216 F.3d 1204
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSEPH FELIX REYES PENA, Defendant - Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1204

216 F.3d 1204 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSEPH FELIX REYES PENA, Defendant - Appellant.

No. 99-2316

UNITED STATES COURT OF APPEALS, TENTH CIRCUIT

June 28, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. CR-98-821-1-LH)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Gregory J. Fouratt, Assistant United States Attorney (and Norman C. Bay, United States Attorney, with him on the briefs), Albuquerque, New Mexico, for Plaintiff - Appellee.

Alonzo J. Padilla, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant - Appellant.

Before KELLY, McKAY, and LUCERO, Circuit Judges.

KELLY, Circuit Judge.

Defendant-Appellant, Joseph Felix Reyes Pena, appeals from his sentence. He pleaded guilty to two counts of aggravated sexual abuse of a child, 18 U.S.C. 2241(c), 2246(2)(c) and 1153. He was sentenced to a term of imprisonment of 210 months, followed by a 5 year period of supervised release, ordered to pay a $200 fine, and to make payment of $186 for restitution. On appeal, Mr. Pena argues (1) that the district court impermissibly engaged in "double counting" by enhancing his sentence both for the use of force, U.S.S.G. 2A3.1(b)(1), and for the victim's youth, U.S.S.G. 2A3.1(b)(2)(A); (2) there was insufficient evidence to support an enhancement for the use of force; and (3) the government breached an implied term of the plea agreement by pursuing a sentencing enhancement for the use of force. Our jurisdiction arises under 28 U.S.C. 1291 and 18 U.S.C. 3742(a), and we affirm.

Background

Given the argument that there is insufficient evidence to support the sentencing enhancement for use of force, it is necessary to recite in some detail the facts surrounding Mr. Pena's persistent sexual abuse of his stepdaughter. In view of the argument that the government breached the plea agreement, it is likewise necessary to set forth the facts surrounding the formation and execution of that agreement. Other relevant facts will be discussed as necessary.

During the time period in which this abuse occurred, Mr. Pena was in his late twenties, weighing 190 pounds. His victim was 10 years old and weighed 70 pounds. According to the presentence report, in one incident, the victim attempted to evade Mr. Pena by sliding "into the crack of her bed," whereupon Mr. Pena "grabbed her arm and made her lay next to him on the bed" and proceeded to assault her vagina digitally. See IV R., P.S.R. at 11. On another occasion, the victim noted that Mr. Pena anally penetrated her despite her strong verbal protestations. Mr. Pena ignored her refusal, stating "'[i]t is almost through'" and "then pushed harder." IV R., P.S.R. at 12. In a sealed statement, the victim further stated that she would try to "kick [Mr. Pena] and push him away" when he assaulted her, but he "would push me against the wall." I R. doc. 42. In addition to this physical coercion, the victim reported threats; Mr. Pena said that if she did not acquiesce to his demands, he would leave her mother and find a new girlfriend. See IV. R., P.S.R. at 8. According to the victim, Mr. Pena threatened that if she disclosed his conduct to anyone, she would be taken away from her mother. See IV R., P.S.R. at 10. She also reported being threatened with increased household chores if she failed to comply with his desires. I R. doc. 42. A medical examination of the victim revealed that she suffered hymenal disruption, vaginal disruption and scarring, and anal flattening and thickening. See IV R., P.S.R. 15. It bears noting that Mr. Pena neither disputes nor challenges these facts.

On November 5, 1998, a federal grand jury indicted Mr. Pena. In the following months, the government and Mr. Pena negotiated a plea agreement. On February 3, 1999, counsel for the government sent a letter to Mr. Pena offering a plea agreement in which he would plead guilty to two counts of aggravated sexual abuse of a child, and in exchange, the government would agree to a non-binding stipulation that he receive a three level decrease for acceptance of responsibility and dismissal of other charges. The letter also stated that under the plea, the government "estimate[d] that Mr. Pena would be facing an approximate range of 121 to 151 months imprisonment, depending on his criminal history and other factors." I R. doc. 43, Attachment A (emphasis added). Counsel for Mr. Pena responded by letter, asking for two more non-binding stipulations, namely, that Mr. Pena would not receive an enhancement for serious bodily injury, 2A3.1(b)(4), but would receive an enhancement because the child was in his care and custody, 2A3.1(b)(3). See id., Attachment B.

On April 22, 1999, Mr. Pena appeared with counsel before the district court to plead guilty in accordance with the final plea agreement. At this plea colloquy, Mr. Pena admitted that he signed the plea agreement freely, with the knowledge that the sentencing guidelines would dictate his sentence. Change of Plea Hearing, April 22, 1999, Tr. 4-7. Moreover, Mr. Pena acknowledged that he understood that the sentence ultimately imposed might be different than any estimate previously given to him by counsel. See id. at 7. The plea agreement itself was silent as to an enhancement for the use of force. Moreover, it contained an integration clause, stating that the plea agreement was the complete statement of agreement between the parties, and could not be altered absent a writing signed by all parties. I R. doc. 36 at 15.

In June of 1999, the government filed a notice of substitution of counsel, substituting Kathleen Bliss for the departing Michael Cox. Shortly thereafter, the U.S. Probation Office issued the presentence report. The PSR was silent as to the four-level enhancement for the use of force at issue in this case, although it did recite the above facts describing the physical and psychological coercion Mr. Pena exacted upon the victim. The government subsequently objected to the PSR's failure to recommend a use of force enhancement, pursuant to 2A3.1(b)(1). A Revised PSR was issued on July 26, 1999, incorporating the government's suggestion. Mr. Pena objected to the enhancement, arguing that it violated the plea agreement, and was not supported by the facts. The Probation Office issued a Second Addendum to the PSR, adhering to its view that an enhancement was warranted. At the close of the sentencing hearing that followed, the district court advised Mr. Pena that a use of force enhancement was appropriate, but if Mr. Pena felt misled by the government regarding the estimated penalty he was facing, he could withdraw his plea. Thirteen days later, September 14, 1999, the district court reconvened the sentencing hearing. Mr. Pena declined to withdraw his plea, although defense counsel again objected to the enhancement.

Discussion

Waiver

The government argues that Mr. Pena is raising the issue of double counting for the first time on appeal, and thus our review of the district court's application of the sentencing guidelines is for plain error only. See United States v. Lindsay, 184 F.3d 1138, 1142 (10th Cir.), cert. denied, 120 S. Ct. 438 (1999). Our review of the record, however, shows that Mr. Pena did raise this issue before the district court in his sentencing memorandum, and during the sentencing hearing. See I. R. doc. 44 at 2 ("The guidelines already take such factor into consideration, as there is a four level enhancement required when the victim of the sexual offense is under the age of 12"); III. R. at 14 ("...the force enhancement does not apply and . . . much of the conduct alluded to by the government and alluded to by probation in the presentence report has already been covered by the federal sentencing guidelines in terms of enhancements that apply."). Moreover, the record reflects that both the government and the district court understood Mr. Pena's argument was premised on the notion that imposing enhancements for both youth of the victim and use of force constitutes impermissible double counting. See e.g., II R. at 17 ("[W]e're not relying on the age of the child, that is covered by 2241(c). However, this man used means that are consistent with 2241(a), means of force."); III R. at 15 ("I understand your argument that there have been enhancements based upon the age of the victim . . . however, the sentencing guidelines don't say either/or, they provide for enhancements based upon each of these separate criteria, and so I conclude . . . that the enhancement for use of force is appropriate."). Thus, Mr. Pena effectively preserved the issue of double counting for appeal, and our review of the district court's application of the sentencing guidelines is de novo, given that none of the facts underlying the conviction are disputed. See United States v. Fisher, 132 F.3d 1327, 1328 (10th Cir. 1997).

Double Counting

The essence of Mr. Pena's argument is that a sentencing enhancement for the use of force is implicit in the U.S.S.G. 2A3.1(b)(2)(A) enhancement for a victim under twelve years of age. Mr. Pena asserts that because children under the age of twelve are legally incapable of consent to sexual acts, there is a presumption that force was applied. Thus, to apply enhancements for the use of force and for the victim's youth constitutes impermissible double counting. The government responds that the enhancement provisions of 2A3.1(b)(2)(A) and 2A.3.1(b)(1) address different conduct, do not overlap and serve different purposes. Thus, the government contends, applying both enhancements to the same set of facts does not amount to double counting.

The Sentencing Guidelines specify that offense level adjustments for more than one specific offense characteristic are cumulative, whereas within each specific offense characteristic they are alternative. See U.S.S.G. 1B1.1, comment, n.4. Double counting "'occurs when the same conduct on the...