United States v. Roger Andrew Talk, A/K/A Roderick Talk

47 F.3d 1178

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

UNITED STATES of America, Plaintiff-Appellant,
v.
Roger Andrew TALK, a/k/a Roderick Talk, Defendant-Appellee.

No. 94-2120.

United States Court of Appeals, Tenth Circuit.

Feb. 7, 1995.

1

D.New Mexico, D.C. No. CR-92-8-JC.

2

D.N.M. [APPEAL AFTER REMAND, 13 F.3d 369].

3

REVERSED.

4

Before HENRY, Circuit Judge, SETH, Senior Circuit Judge, and KANE, Senior District Judge.*

5

ORDER AND JUDGMENT**

6

KANE, Senior District Judge.

7

This is an appeal from the district court's sentence imposed on Defendant Talk following his conviction of rape in violation of 18 U.S.C. Secs. 1153, 2241(a). We previously remanded the case to the district court with instructions to vacate the sentence and resentence in accordance with our opinion in United States v. Talk, 13 F.3d 369, 372 (10th Cir.1993). There, we held the district court had clearly erred in its ruling that Talk was entitled to an acceptance of responsibility adjustment. Id. Any later statements by Talk do not change this outcome. See U.S.S.G. Sec. 3E1.1 (n. 2).

8

As to the downward departure, it does not appear that Talk's family or community ties are extraordinary. See U.S.S.G. Sec. 5H1.6; U.S. v. Talk, 13 F.3d at 371. Further, Talk's criminal history does not form a valid basis for departure. See U.S.S.G. Sec. 4A1.3; See also U.S. v. Maldonado-Campos, 920 F.2d 714, 719 (10th Cir.1990) (a departure below criminal history category I is not appropriate). Finally, when the events surrounding the rape are fully considered, they do not suggest a single act of aberrant behavior. See U.S. v. Tsosie, 14 F.3d 1438, 1441 (10th Cir.1994).

9

We REVERSE the district court and REMAND with instructions to vacate the sentence and resentence at an offense level of 31.

*

Honorable John L. Kane, Jr., Senior United States District Judge for the District of Colorado, sitting by designation

**

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470