Argued
and Submitted October 18, 2016 San Francisco, California
Appeal
from the United States District Court for the District of
Arizona, D.C. No. 3:14-cr-08122-SPL-1 Steven Paul Logan,
District Judge, Presiding
Cassie
Bray Woo (argued), Assistant United States Attorney; Krissa
M. Lanham, Deputy Appellate Chief; John S. Leonardo, United
States Attorney; United States Attorney's Office,
Phoenix, Arizona; for Plaintiff-Appellee.
Daniel
L. Kaplan (argued), Assistant Federal Public Defender; Jon M.
Sands, Federal Public Defender; Office of the Federal Public
Defender, Phoenix, Arizona; for Defendant-Appellant.
Before: Sidney R. Thomas, Chief Judge, and Carlos T. Bea and
Sandra S. Ikuta, Circuit Judges.
SUMMARY[*]
Criminal
Law
The
panel affirmed the district court's determination that
the defendant, as a repeat and dangerous sex offender against
minors, was subject to an upward offense level adjustment
pursuant to U.S.S.G. § 4B1.5, in a case in which the
defendant was convicted of two counts of abusive sexual
contact under 18 U.S.C. § 2244(a)(5) and two counts of
committing a felony offense involving a minor while required
to register as a sex offender under 18 U.S.C. § 2260A.
The
panel rejected the defendant's argument that U.S.S.G.
§ 2A3.6, or its Application Note 3, bars the application
of § 4B1.5 in calculating the defendant's Guidelines
range for his § 2244(a)(5) convictions. The panel wrote
that rather than instructing courts not to apply § 4B1.5
to a conviction under § 2244(a)(5) where the defendant
also incurs a § 2260A conviction, the Guidelines
instruct courts to determine the Guidelines range for the
§ 2244(a)(5) count independently of § 2260A.
The
panel disposed of the remainder of the defendant's
challenges to his conviction and sentence in a
concurrently-filed memorandum disposition.
OPINION
IKUTA,
Circuit Judge:
Roy Red
Joey was convicted of two counts of abusive sexual contact
under 18 U.S.C. § 2244(a)(5) and two counts of
committing a felony offense involving a minor while required
to register as a sex offender under 18 U.S.C. § 2260A.
Joey argues that the district court procedurally erred in
calculating the United States Sentencing Guidelines
sentencing range for his § 2244(a)(5) convictions by
applying § 4B1.5 of the Guidelines when Joey had also
been convicted under § 2260A, which Joey contends
punishes the same conduct as § 4B1.5. Thus, according to
Joey, the district court violated the principle against
double counting in applying the Guidelines. Because we cannot
infer that the Sentencing Commission intended to preclude a
§ 4B1.5 determination for a § 2244(a)(5) offense
when the defendant has also been convicted under §
2260A, we conclude that the district court did not commit a
procedural error in calculating the Guidelines sentencing
range, and we affirm.[1]
I
In
1992, Roy Red Joey was convicted of aggravated sexual abuse
of a child in violation of 18 U.S.C. §§ 1153 and
2241(c) after he forced his nine-year-old niece to the
ground, covered her mouth with his hand, and digitally
penetrated her vagina. As a result of this conviction, Joey
was sentenced to 93 months imprisonment, and was required to
register as a sex offender. Several years later, in 2011,
Joey offended again, this time against the minor
grandchildren of one of his friends. At the time, the
children were living with their grandmother, and Joey was a
frequent guest at her home, sometimes even staying overnight.
The
indictment in this case alleged that Joey touched one
victim's breasts on one occasion and touched the other
victim's penis on three occasions. At trial, the
government elicited testimony from the victims about these
incidents.[2]The first victim testified that Joey
touched her "over and over and over again" on her
thighs, arms, and once on her breasts. The other victim
testified that Joey twice touched his penis as they watched
television in the living room, once through the victim's
clothes and once under the clothes. On a third incident, the
victim woke up in his bedroom to find Joey touching his
penis. Eventually the victims' older sister learned of
these incidents, reported the abuse to law enforcement, and
obtained legal guardianship of the victims so that they would
not be returned to their grandmother's house.
The
government charged Joey with eight criminal counts. Counts 1
through 4 covered the four instances of inappropriate
touching and alleged that each incident constituted a
violation of 18 U.S.C. § 2244(a)(5) (prohibiting
knowingly causing another person who is under twelve years
old to engage in a sexual act).[3] Counts 5 through 8 alleged
violations of 18 U.S.C. § 2260A, which imposes a penalty
on a defendant who commits a specified felony offense
involving a minor while required by federal or state law to
register as a sex offender.[4] After a five-day trial, the jury
returned guilty verdicts as to Counts 1 and 3 (two incidents
involving sexual acts in violation of § 2244(a)(5)) and
Counts 5 and 7 (two violations of §
2260A).[5]
At
sentencing, the district court adopted the Guidelines
sentencing calculations from the Pre-Sentence Investigation
Report (PSIR). See 18 U.S.C. § 3553(a)(4);
U.S.S.G. § 1B1.1 (2014).[6] The PSIR first calculated the
Guidelines sentencing range for the § 2244(a)(5)
convictions. It determined that the applicable Guidelines
provision was § 2A3.4 (abusive sexual contact), and that
the base offense level for the two convictions under §
2244(a)(5) was 12. U.S.S.G. § 2A3.4(a)(3). Turning to
the specific offense characteristics listed in §
2A3.4(b), the PSIR determined that § 2A3.4(b)(1)
required an increase in the offense level to 22 because the
victims of the abusive sexual contact had not yet attained
the age of twelve. Because Joey had been convicted of
multiple counts, the PSIR applied the multiple count
adjustment required in Part D of Chapter 3 of the Guidelines
for the two convictions under § 2244(a)(5), which
resulted in a combined adjusted offense level of 24. See
id. § 1B1.1(4).
Finally,
the PSIR determined that Joey was a repeat and dangerous sex
offender against minors for purposes of § 4B1.5, and
therefore subject to an additional upward offense level
adjustment. See id. § 1B1.1(5); id.
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