United States v. Richard Hale

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No. 95-3113
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Richard L. Hale, *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 30, 1996
Filed: February 2, 1996
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Before FAGG, BOWMAN, and HANSEN, Circuit Judges.
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PER CURIAM.
Richard L. Hale appeals the sentence imposed by the district
court1 after he pleaded guilty to aggravated sexual abuse, in
violation of 18 U.S.C. §§ 1153 and 2241(c). For reversal, Hale
argues the district court clearly erred in assessing a use-of-force
enhancement under U.S.S.G. § 2A3.1(b)(1). We affirm.
As relevant, Hale's plea agreement provided that the
government would not assert or argue for a use-of-force
enhancement. In Hale's presentence report (PSR), the probation
officer recommended the enhancement based upon incriminating pre-
plea statements Hale had made to investigators. Hale objected. At
sentencing, the district court questioned the probation officer
1
The Honorable Charles B. Kornmann, United States District
Judge for the District of South Dakota.
about the recommendation. The officer testified that he
recommended the enhancement based on Hale's admission to
investigators that he forced the victim to engage in intercourse.
Although given the opportunity, Hale did not cross-examine the
officer on this issue nor did he contest the accuracy of his
reported admission. The court then found that force had been used
and assessed the enhancement. The court sentenced Hale to 188
months imprisonment and four years supervised release, and ordered
him to pay $11,112.70 in restitution.
Section 2A3.1(b)(1) states that "[i]f the offense was
committed by the means set forth in 18 U.S.C. § 2241(a) or (b)
. . . increase by 4 levels." Section 2241(a)(1) prohibits causing
another person to engage in a sexual act "by using force against
that person." We review a district court's factual findings for
clear error. United States v. Saknikent, 30 F.3d 1012, 1013 (8th
Cir. 1994) (standard of review).
On appeal, Hale argues the district court clearly erred in
assessing the enhancement because the factual basis for the
enhancement was derived from hearsay testimony. A district court
may base a finding of fact in its sentencing determination on
reliable hearsay evidence. United States v. Wise, 976 F.2d 393,
402 (8th Cir. 1992) (en banc), cert. denied, 113 S. Ct. 1592
(1993). After reviewing the record, we conclude that the probation
officer's testimony was "sufficiently reliable" for a finding of
fact. See id. at 403-04 (probation officer's hearsay testimony
reliable where "source" of information came from other
investigatory-governmental agencies). Because Hale's statements
alone provided a basis to conclude he used force to commit the
instant offense, the district court did not clearly err in
assessing the enhancement.
Accordingly, the judgment is affirmed.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGpHTH CIRCUIT.
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