United States v. Michael Bevins , 430 F. App'x 550 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3513
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Michael Lee Bevins, *
* [UNPUBLISHED]
Appellant. *
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Submitted: April 15, 2011
Filed: July 5, 2011
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Before WOLLMAN, GILMAN,1 and MELLOY, Circuit Judges.
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PER CURIAM.
Michael Bevins was sentenced to 120 months’ imprisonment and ten years’
supervised release after he pleaded guilty to failing to register as a sex offender, in
violation of 18 U.S.C. § 2250(a). He argues that the district court2 erred in applying
1
The Honorable Ronald Lee Gilman, United States Circuit Judge for the Sixth
Circuit Court of Appeals, sitting by designation.
2
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
an eight-level enhancement for committing a sex offense against a minor while
unregistered.3 We affirm.
Bevins was convicted of sexual abuse in a 1999 Iowa state-court proceeding.
From January 2010 through March 2010, he knowingly failed to register and update
his registration as required by the Sex Offender Registration and Notification Act, 42
U.S.C. §§ 16901-16991. On May 17, 2010, Bevins pleaded guilty to failing to register
as a sex offender during that period.
A defendant’s offense level must be increased by eight levels if the defendant,
while in an unregistered status, committed a sex offense against a minor. U.S.
Sentencing Guidelines Manual (U.S.S.G.) § 2A3.5(b)(1)(C). At the sentencing
hearing on the failure-to-register charge, the district court heard testimony regarding
whether Bevins had committed a sex offense against a minor while unregistered. J.,
an eleven-year-old boy, testified that Bevins had assaulted him when he was ten years
old. J. testified that while he was in the bathtub one day, his mother entered the
bathroom and asked if Bevins could use the toilet. J. agreed, and Bevins entered the
bathroom. According to J., Bevins pulled the shower curtain back, grabbed J.’s penis,
and threatened to kill him and his mother if J. reported the incident to anyone. J.’s
mother and Bevins testified that Bevins had entered the bathroom while J. was taking
a bath, but Bevins denied touching or threatening J. The district court found J.’s
testimony credible and applied the eight-level enhancement called for by
§ 2A3.5(b)(1)(C).
Bevins argues that the evidence was insufficient to support a finding that he
committed a sex offense against J. Moreover, he contends that the district court
3
Because Bevins failed to present any meaningful argument in support of two
additional claims raised in his opening brief, he has waived appellate review of those
claims. See Chay-Velasquez v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004) (“Since
there was no meaningful argument on this claim in his opening brief, it is waived.”).
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clearly erred in crediting J.’s testimony that Bevins grabbed J.’s penis. We review the
district court’s factual findings for clear error, and its credibility determinations are
“virtually unreviewable on appeal.” See United States v. Garcia, 512 F.3d 1004,
1005-06 (8th Cir. 2008). J.’s testimony established that Bevins had committed a sex
offense, in violation of Iowa Code § 709.3 or § 709.8, or both. See U.S.S.G.
§ 2A3.5(b)(1)(A) & app. n.1 (defining “sex offense” by 42 U.S.C. § 16911(5)); 42
U.S.C. § 16911(5)(A)(i)-(ii) (defining “sex offense” as “(i) a criminal offense that has
an element involving a sexual act or sexual contact with another” and “(ii) a criminal
offense that is a specified offense against a minor”); Iowa Code §§ 709.1, 709.3,
709.8.
Bevins has failed to convince us that the district court’s finding that he had
committed a sex offense was “internally inconsistent or based on testimony that is
incoherent, implausible, or contradicted by objective evidence in the case,” United
States v. Jones, 254 F.3d 692, 695 (8th Cir. 2001). Although the district court found
that J.’s testimony regarding whether Bevins lived with J. and his mother not credible,
it explained that “you can understand J., who has been bounced around from house to
house and really doesn’t have a house to call his own, would be concerned about
getting his mom in trouble and not being able to live with his mom.” Sentencing
Tr. 160:13-17. The district court’s finding that some of J.’s testimony was credible,
while other parts of it were not, was not internally inconsistent. See United States v.
Boyce, 564 F.3d 911, 916 (8th Cir. 2009). J.’s testimony about what occurred in the
bathroom was also not incoherent, implausible, or contradicted by objective evidence.
Thus, the district court did not clearly err in crediting J.’s testimony or in finding that
it was sufficient to support increasing Bevins’s offense level pursuant to U.S.S.G.
§ 2A3.5(b)(1)(C).
The sentence is affirmed.
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