United States v. Sloan ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 8, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-2096
(D.C. No. 1:16-CR-03502-JCH-1)
BRIAN ADRIAN SLOAN, (D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before MATHESON, LUCERO, and EID, Circuit Judges.
_________________________________
Brian Sloan appeals his conviction under 18 U.S.C. § 2241(c) for two counts
of engaging in a sexual act “with a person who has not attained the age of 12 years.”
He argues the district court committed plain error both because the government failed
to provide sufficient evidence that the victim was under the age of twelve at the time
of the alleged offenses and because of several sentencing errors. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
*
This order and judgment is not binding precedent, except under the doctrines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.
I
In 2018, Sloan was convicted of four counts of sexual abuse of two children,
John Doe and Jane Doe, under 18 U.S.C. § 2241. Three of these counts arose under
§ 2241(c), which requires that the alleged sexual act be “with a person who has not
attained the age of 12 years.” Two of those three counts, which are the focus of
Sloan’s appellate challenge, stemmed from sexual abuse of John Doe that is alleged
to have occurred in 2007. At the 2018 jury trial, John Doe repeatedly testified that
the 2007 sexual abuse occurred when he was eleven, and the last instance of sexual
assault occurred in 2008 when he was twelve. Although Doe testified that his
birthdate was December 15, 1995, on one occasion he stated that the year of his birth
was 1994, and throughout his testimony described his current age as 23 despite his
testifying approximately one month before his 23rd birthday. In response to the
court’s question, Doe stated that his birthday was December 15, 1995, but again also
stated that he was 23. Although these discrepancies were highlighted in Sloan’s
closing argument, he did not move for a judgment of acquittal. During its
deliberations, the jury asked for clarification on the exact birthdate of John Doe, and,
without objection, the judge informed the jury that they were required to rely on their
recollection of the evidence to resolve the factual issues. The jury did so, returning a
unanimous verdict finding Sloan guilty on all charges, include the two violations of
§ 2241(c) now challenged on appeal.
After sustaining objections to sentence enhancements for obstruction of
justice, the district court adjusted the offense level for Sloan’s four counts of
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conviction under §§ 2241(a) and 2241(c). Because his offense level was then
calculated to exceed the maximum possible offense level of 43, the district court
reduced the offense level to the Guideline ceiling of 43. With a resulting total
offense level of 43 coupled with Sloan’s criminal history category of II, the district
court sentenced Sloan to life imprisonment—the recommended Guideline range.
Sloan appealed, arguing: (1) that his conviction on counts one and two for
violations of 18 U.S.C. § 2241(c) were plain error because the government had not
provided sufficient evidence that John Doe was under the age of twelve at the time of
the offenses in light of Doe’s conflicting testimony on his age; (2) that the district
court committed three errors in calculating his sentence range, which cumulatively
constitute plain error requiring resentencing; and (3) that the Major Crimes Act, 18
U.S.C. § 1153, is unconstitutional because it is based on an impermissible racial
classification of who is an “Indian” subject to federal criminal jurisdiction. 1
II
Because Sloan did not move for a judgment of acquittal, we review his claim
of evidentiary insufficiency for plain error. United States v. Leffler, 942 F.3d 1192,
1197 (10th Cir. 2019). Similarly, he failed to object to the district court’s guideline
calculations; as a result it is also reviewed only for plain error. United States v.
Magallanez, 408 F.3d 672, 683 (10th Cir. 2005). Plain error exists when there is (1)
1
As Sloan acknowledges, this claim is currently foreclosed by binding
precedent and was presented only to preserve it for further review. See United States
v. Antelope, 430 U.S. 641 (1977). We will not address it further.
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an error that (2) is plain, (3) affected the defendant’s substantial rights, and (4)
seriously affects the fairness, integrity, or public reputation of judicial proceedings.
United States v. Mann, 786 F.3d 1244, 1249 (10th Cir. 2015).
A
Because a conviction in the absence of sufficient evidence of guilt “almost
always meets the first three factors of plain error review . . . review under the plain
error standard . . . and a review of sufficiency of the evidence usually amount to
largely the same exercise.” United States v. Rufai, 732 F.3d 1175, 1189 (10th Cir.
2013) (quotations omitted). Review for sufficiency of the evidence entails a de novo
consideration of the record to resolve whether, “viewing the evidence in the light
most favorable to the government, a reasonable jury could have found the defendant
guilty beyond a reasonable doubt.” United States v. Cornelius, 696 F.3d 1307, 1316
(10th Cir. 2012) (quotation omitted).
Sloan’s challenge to the sufficiency of the evidence on the two § 2241(c)
convictions in counts one and two focuses solely on the element that the alleged
sexual act be “with a person who has not attained the age of 12 years.” He asserts
that discrepancies in Doe’s testimony as to his year of birth and age at trial render the
government’s evidence inadequate to support his convictions. The jury, however,
heard not only these discrepancies, but also Doe’s repeated statements that the 2007
assaults occurred when he was eleven, and the 2008 assaults when he was twelve—
testimony directly supporting the required element. Despite Sloan’s highlighting of
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these discrepancies in his closing argument, the jury found Sloan guilty of violating
§ 2241(c) as alleged in counts one and two involving John Doe.
“It is not the role of an appellate court to consider the credibility of the
witnesses or weigh the conflicting evidence, as these matters are within the exclusive
province of the jury.” Magallanez, 408 F.3d at 682. Sloan had the opportunity to
attack Doe’s credibility at trial and did so, both in his cross examination and in his
closing argument. And, similar to Magallanez, the court specifically instructed the
jurors at the beginning of the case that it was their decision on “what evidence to
believe and how much of any witness' testimony to accept or reject,” and later, when
the jury asked a question on Doe’s birthdate, the court further instructed the jury that
they were to “rely on [their] recollection of the evidence to resolve the factual
issues.”
“[S]ufficiency of the evidence determinations are made by assessing the
totality of the circumstances in the individual case.” Rufai, 732 F.3d at 1194
(quotation omitted). Notwithstanding the discrepancies highlighted by Sloan in this
appeal, Doe repeatedly testified that the abuse charged in counts one and two
occurred when he was eleven, including during cross-examination. Additionally, this
jury had the assistance of expert testimony on the effect of abuse and trauma on a
victim’s memory and responses when interviewed and could properly weigh these
circumstances when assessing discrepancies in Doe’s testimony regarding the sexual
abuse he had experienced between the ages of eleven and twelve.
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The jury’s verdict resolved the date discrepancies. It necessarily reflected how
much of Doe’s testimony they unanimously decided to accept or reject. This
determination is supported by sufficient evidence in the record. 2 We have previously
explained that when faced with inconsistent testimony, “the jury [is] in the best
position to try the evidence presented.” United States v. Cui Qin Zhang, 458 F.3d
1126, 1128 (10th Cir. 2006). Because we conclude that a reasonable jury could reach
this conclusion beyond a reasonable doubt, no error was committed. See Rufai, 732
F.3d at 1188 (“The test is . . . whether a rational jury could have found each element
of a crime beyond a reasonable doubt.”).
B
Sloan asserts three alleged errors in the computation of his sentencing range.
First, he claims that the method employed by the district court to adjust his offense
level after sustaining the objection to the obstruction of justice enhancement for each
count was erroneous. Second, Sloan argues that the district court incorrectly
“included a four-level enhancement under § 2A3.1(b)(1) [of the U.S. Sentencing
Guidelines] on each the three § 2241(c) counts (Counts 1, 2, and 4).” Third, he
contends that the presentence report (“PSR”) incorrectly stated that count four
imposed a mandatory minimum term of 30 years’ imprisonment, when in fact there
was no mandatory minimum applicable at the time of Sloan’s sentencing. Finally,
2
Because we conclude there was sufficient evidence presented to the jury
regarding John Doe’s age, we need not address the government’s request that we take
judicial notice of John Doe’s birth certificate.
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despite acknowledging that the three alleged errors had no effect on the resulting
guideline range, Sloan asserts that the cumulative effect of these three errors
nonetheless requires resentencing. We disagree.
In order to show plain error, Sloan must demonstrate that the errors he asserts
affected his substantial rights. See Mann, 786 F.3d at 1249. For an error to have
affected substantial rights, “the error must have been prejudicial: It must have
affected the outcome of the district court proceedings.” United States v. Dazey, 403
F.3d 1147, 1175 (10th Cir. 2005) (quotation omitted). As Sloan acknowledges, none
of his alleged errors had any effect on the resulting Guideline offense level, which
was determined to be, and would have been with or without the alleged errors, the
maximum possible offense level of 43. Moreover, two of the errors Sloan alleges
resulted in a lower, not higher, guideline offense level before application of the
offense level ceiling. Errors to Sloan’s benefit do not demonstrate prejudice. Sloan
also fails to explain how an incorrect statement of the statutory mandatory minimum
in the PSR prejudicially affected his sentence of life imprisonment. Because Sloan’s
alleged errors, individually or in combination, did not affect the outcome of the
district court proceedings, he has failed to show plain error.
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III
For the reasons stated above, Sloan’s convictions and sentence are affirmed.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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