United States v. Fish ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
October 2, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 08-6007
v. (W.D. Oklahoma)
JEFFREY LEE FISH, (D.C. No. 5:07-CR-00124-M-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.
Jeffrey Lee Fish pleaded guilty to knowingly transporting a minor in
interstate commerce with the intent to engage in unlawful sexual activity. See
18 U.S.C. § 2423(a). The United States District Court for the Western District of
Oklahoma sentenced him to 111 months’ imprisonment. Mr. Fish appeals his
sentence, contending that the district court erred in applying the sentencing
guideline for criminal sexual abuse because the victim’s account was not credible
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and, in any event, that account did not show that the victim was placed in fear of
bodily injury. Mr. Fish also contends that the court considered improper factors
and abused its discretion in imposing an upward variance of 24 months to his
sentence. Exercising jurisdiction under 18 U.S.C. § 3742(a), we affirm. The
court could reasonably believe the victim, the fear required to show criminal
sexual abuse need not be fear of bodily injury, and the court’s variance was
lawful.
I. BACKGROUND
The victim, Mr. Fish’s nephew, gave the following account: Mr. Fish, an
over-the-road commercial truck driver, took his 13-year-old nephew on a trip
from Oklahoma City to California during the summer of 2004. On the trip he
asked his nephew to perform sexual acts. When his nephew refused, he told him
that he would leave him on the side of the road if he did not do what Mr. Fish
asked. Over the course of the trip, Mr. Fish sexually molested his nephew several
times, holding him down on at least one occasion. At the end of the trip Mr. Fish
warned his nephew that if he told anyone about what had happened, Mr. Fish
would kill the boy’s family members. In February 2007 the nephew told law-
enforcement officials what had occurred on the trip.
Mr. Fish did not deny engaging in sexual acts with his nephew, but
maintained that the acts were consensual and that he had not made any threats.
He claimed that Charles Pallazola, a fellow truck driver with whom his nephew
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was familiar, traveled with them in a separate truck, and that his nephew could
have gone to Mr. Pallazola for help if he had felt threatened. (The nephew
recalled that a driver named Chuck had traveled with Mr. Fish and him on a trip,
but he thought that it was a different trip.) Additional facts suggesting that the
boy’s account was false, argued Mr. Fish, were his failure to report the abuse
immediately and his maintenance of a familial relationship with his uncle after
the alleged abuse.
Nevertheless, Mr. Fish pleaded guilty. In sentencing him the district court
applied the 2003 edition of the United States Sentencing Guidelines (USSG), and
all references will be to that edition. USSG § 2G1.1 is generally the guideline for
“Prohibited Sexual Conduct,” but § 2G1.1(c)(2) cross-references § 2A3.1, saying
that it should apply “[i]f the offense involved criminal sexual abuse.”
Application Note 10 to § 2G1.1 explains that criminal sexual abuse is defined in
18 U.S.C. §§ 2241 and 2242.
Finding that the cross-reference to § 2A3.1 applied, the district court
started with a base offense level of 27, see USSG § 2A3.1(a), and raised the level
by 2 because of the victim’s age, see id. § 2A3.1(b)(2)(B), and another 2 because
the victim was in the custody, care, and supervisory control of Mr. Fish at the
time of the offense, see id. § 2A3.1(b)(3). It then reduced the offense level by 3
based on Mr. Fish’s acceptance of responsibility, see id. § 3E1.1(b), resulting in a
total offense level of 28. Given Mr. Fish’s criminal-history category of I, the
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guideline sentencing range was 78 to 97 months. The court, however, determined
that an upward variance of 24 months was appropriate in accordance with the
sentencing factors set forth in 18 U.S.C. § 3553(a). It then sentenced Mr. Fish to
111 months’ imprisonment, which was about the middle of the upperwardly
varied sentencing range.
On appeal Mr. Fish contends first that the district court erred in adopting
the cross-reference to § 2A3.1 because (1) the court made an erroneous factual
finding that he used threats to coerce his nephew into submitting to sexual abuse,
and (2) the cross-reference does not apply as a matter of law because his threats
were not sufficient to create a fear of physical bodily injury. Mr. Fish also
contends that the court erred in imposing an upward variance of 24 months.
II. DISCUSSION
A. Cross-Reference to § 2A3.1
1. Factual Findings
We review for clear error the factual findings of the district court relating
to sentencing. See United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).
Mr. Fish contends that the court committed clear error by believing the victim’s
testimony regarding threats. He points to inconsistencies in his nephew’s
testimony, as well as evidence of behavior by his nephew that was inconsistent
with his story of abuse.
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But we will hold the court’s reliance on a witness’s testimony to be clear
error only if that testimony was unbelievable on its face. See United States v.
Virgen-Chavarin, 350 F.3d 1122, 1134 (10th Cir. 2003). The nephew’s testimony
was not unbelievable on its face. The district court could rationally believe that
(1) a 16-year-old boy forgot that another truck driver accompanied him on a
particular trip three years earlier and (2) the boy was intimidated into keeping the
abuse secret from his uncle’s friend and fellow truck driver and from his family,
even continuing to maintain a familial relationship with his uncle. The court did
not clearly err in relying on the nephew’s testimony.
2. Meaning of Criminal Sexual Abuse
We review de novo the legal determinations of the district court relating to
sentencing. Kristl, 437 F.3d at 1054. Under USSG § 2G1.1 the court should
apply § 2A3.1 to prohibited sexual conduct if the offense involved criminal
sexual abuse prohibited by either 18 U.S.C. § 2241 or § 2242(1). See USSG
§ 2G1.1(c)(2); id. cmt. n.10. Section 2241 prohibits causing another “to engage
in a sexual act” by use of force or “by threatening or placing [the victim] in fear
that any person will be subjected to death, serious bodily injury, or kidnapping.”
Section 2242(1) prohibits “caus[ing] another person to engage in a sexual act by
threatening or placing [the victim] in fear (other than by threatening or placing
that other person in fear that any person will be subjected to death, serious bodily
injury, or kidnapping).”
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Mr. Fish contends that § 2A3.1 applies only if the defendant placed the
victim in fear of bodily injury. But 18 U.S.C. § 2242(1) requires only “fear” in
general. In this case Mr. Fish told his nephew that if he did not do as he was told,
Mr. Fish would leave him on the side of the road. Such a threat would certainly
induce significant fear in a 13-year-old boy who was thousands of miles from his
home and family.
Our precedents are not to the contrary. Although we have held that placing
a victim in fear of bodily injury can constitute a violation of § 2242(1), see
United States v. Castillo, 140 F.3d 874, 885 (10th Cir. 1998), we have not said
that placing a victim in fear of bodily injury, as opposed to fear of another sort, is
a necessary element of the offense. Indeed, we have declared that the meaning of
fear in § 2242(1) “is very broad.” Id.
Two sister circuits have also adopted a broad interpretation of fear. In
United States v. Johns, 15 F.3d 740 (8th Cir. 1994), the defendant, who lived in
an intimate relationship with the victim’s mother, dominated every aspect of the
victim’s life: “choosing her clothes, isolating her from friends and her biological
father, controlling her activities, pulling her out of school to engage in sex, and
constantly changing household rules and becoming enraged when they were not
followed,” id. at 743. As the victim’s spiritual teacher, he told his victim that if
she did not follow his commands, she would be rejected by the spirits, which
would “result in harm to her or a loved one, such as illness or inability to have
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children.” Id. at 742. The Eighth Circuit ruled that the defendant had placed his
victim in fear within the meaning of § 2242(1). Id. at 743. And the Ninth Circuit
expressed a broad view when it said:
A reasonable construction of section 2242(1) is that it encompasses
all fears of harm to oneself or another other than death, serious
bodily injury or kidnapping. A person of ordinary intelligence would
understand the kind of fear the statute prohibits is fear of harm to
self or others. The possible range of “harm,” like the possible range
of “fear,” is very large.
United States v. Gavin, 959 F.2d 788, 791 (9th Cir. 1992).
In addition, we find persuasive an unpublished opinion by a panel of this
court. In United States v. King, Nos. 99-2333, 99-2306, 2000 WL 725480 (10th
Cir. June 6, 2000), the panel determined that a medicine man, who sexually
abused his victim under guise of treatment, violated § 2242(1). The medicine
man told his victim that her difficulties sleeping and eating would not abate
unless she allowed him to remove an object inside her groin area. Id. at *4.
Because the victim would not have submitted to this abuse “but for the physical
and spiritual consequences she feared would occur if she did not submit to his
treatment,” the panel determined that the medicine man had placed his victim in
fear within the meaning of § 2242(1). Id.
These cases confirm our view that Mr. Fish violated § 2242(1) even if he
did not place his nephew in fear of bodily injury. Some types of threatened harm
may be too trivial to satisfy § 2242(1) (and hence too trivial to invoke the cross-
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reference in USSG § 2G1.1), but the harm to a 13-year-old from being stranded
far from home is hardly trivial.
B. Upward Variance
Mr. Fish appears to raise both a procedural and a substantive challenge to
the 24-month upward variance imposed by the district court. The alleged
procedural error is that the court improperly relied on factors inherent in the
offense or already considered in the advisory guideline range when imposing the
upward variance. See United States v. Smart, 518 F.3d 800, 803–04 (10th Cir.
2008) (consideration of improper factors is procedural error). The alleged
substantive error is that the court arrived at an unreasonably long sentence in
weighing the § 3553(a) factors.
1. Procedural Challenge
In determining that an upward variance was appropriate, the district court
considered the totality of the circumstances surrounding Mr. Fish’s offense:
The victim in this case was defendant’s nephew and was
thirteen years old at the time of the offense. [He] testified that this
trip was the first trip that he had taken alone with defendant. [He]
further testified that defendant engaged in sexual acts with him five
times during the trip, that [he] had refused to engage in the acts, that
defendant held him down during one of the sexual acts, that
defendant had told him on a number of occasions that if he did not
comply, he would leave [him] on the side of the road, and at the
conclusion of the trip, defendant told [him] that he would kill [his]
family if he told anybody about what had happened. Additionally,
all of the sexual acts occurred while defendant and [he] were on a
cross country trip, away from any surroundings or people familiar to
[him].
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Aplt.’s Br., Attach. E at 5–6.
Mr. Fish is correct that some of these circumstances—such as the cross-
country nature of the trip and the victim’s age—are inherent in the charged
offense (interstate transportation) or the guidelines calculation (offense-level
increase based on victim’s age). But the district court need not distinguish the
defendant from the ordinary offender contemplated by the Guidelines in order to
impose an upward variance. “[D]istrict courts are now allowed to contextually
evaluate each § 3553(a) factor, including those factors the relevant guideline(s)
already purport to take into account, even if the facts of the case are less than
extraordinary.” Smart, 518 F.3d at 808. The court thus did not commit
procedural error. (In any event, other factors considered by the court were not
inherent in the offense or the guidelines calculation: that Mr. Fish engaged in
sexual acts with his nephew several times during the trip, that he held down his
nephew during one of the sexual acts, and that he threatened to kill his nephew’s
family members if the boy told anyone about what had happened.)
2. Substantive Challenge
We review the substantive reasonableness of the sentence only for an abuse
of discretion. Gall v. United States, 128 S. Ct. 586, 591 (2007).
[W]e must give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance. . . .
It is not for the Court of Appeals to decide de novo whether the
justification for a variance is sufficient or the sentence reasonable,
and we must therefore defer not only to a district court’s factual
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findings but also to its determinations of the weight to be afforded to
such findings.
Smart, 518 F.3d at 808 (citations and internal quotation marks omitted).
Although imposing a 24-month upward variance was not the only
reasonable choice available to the district court, we discern no abuse of discretion
under this court’s standard of review. See United States v. Wittig, 528 F.3d 1280,
1286 (10th Cir. 2008).
We AFFIRM the sentence and judgment below. The motions to seal the
briefs are denied.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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