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United States v. Joey

United States Court of Appeals, Ninth Circuit

January 19, 2017

United States of America, Plaintiff-Appellee,
v.
Roy Red Joey, Defendant-Appellant.

          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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