United States v. Mike

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 1 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 98-2219
v.
(D.C. No. CR-97-676-LH)
(District of New Mexico)
ADRIAN MIKE,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and LUCERO, Circuit Judges.
Adrian Mike appeals a two-level increase in his sentence for sexually
abusing a minor. We have jurisdiction pursuant to 28 U.S.C. § 1291, 18 U.S.C. §
3742 (a)(1) & (2), and Fed. R. App. P. 4(b), and affirm.
Appellant Mike pled guilty to sexually abusing a sixteen-year-old girl. The
Presentence Report (“PSR”) calculated a sentence range of between 63 and 78
months in jail. The district court adopted the PSR’s factual findings and
*
The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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 10th
Cir. R. 36.3.
application of the United States Sentencing Guidelines (“U.S.S.G.”). But
applying 18 U.S.C. § 3553 and U.S.S.G. § 5K2.0, the court increased appellant’s
sentence by two levels, ultimately sentencing him to an 83-month prison term to
be followed by three years of supervised released.
Mike argues that the district court erred in departing upward pursuant to
U.S.S.G. § 5K2.0. We review a decision to depart from the Guidelines for abuse
of discretion. See United States v. Lowe, 106 F.3d 1498, 1501 (10th Cir. 1997).
“[T]he sentencing court may impose a sentence outside the [guideline range] if
the court finds ‘that there exists an aggravating or mitigating circumstance of a
kind, or to a degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines.’” U.S.S.G. § 5K2.0, p.s. (quoting 18
U.S.C. § 3553(b)). In applying § 5K2.0, a court may consider whether “the
defendant’s conduct was unusually heinous, cruel, brutal, or degrading to the
victim.” U.S.S.G. § 5K2.8, p.s. Torturing a victim and “gratuitous infliction of
injury, or prolonging of pain or humiliation” are examples of conduct warranting
an increase in sentence. Id.
The record shows that appellant had sexual intercourse with an unconscious
minor. He and two minors, acting at his direction, also sexually assaulted the
victim with foreign objects resulting in severe damage to her vaginal area.
Appellant then left the victim unconscious overnight in an open field. The
-2-
sentencing court correctly found that appellant’s conduct was unusually heinous,
cruel, and degrading, thus removing his case from the “heartland” of sexual
assault cases and warranting a two-level increase in his sentence under U.S.S.G.
§§ 5K2.0 and 5K2.8. See United States v. Lewis, 115 F.3d 1531, 1538-39 (11th
Cir. 1997) (holding forcible sexual abuse justifies upward departure under
§ 5K2.8).
Under these circumstances, the increase in appellant’s sentence was
reasonable, exceeding by only five months the upper limit of the sentence
calculated in the PSR. The factual record sufficiently supports the district court’s
stated reasons for its upward departure. Discerning no abuse of discretion in the
district court’s decision, we reject all of appellant’s challenges to his sentence.
AFFIRMED.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
-3-