Summaries of Selected Opinions
| Publication year | 2011 |
| Pages | 157 |
| Citation | Vol. 40 No. 6 Pg. 157 |
2011, June, Pg. 157. Summaries of Selected Opinions
June 2011
Vol. 40, No. 6 [Page 157]
U.S. Court of Appeals for the Tenth Circuit
Summaries of selected Tenth Circuit Court of Appeals Opinions appear on a space-available basis. The summaries are prepared for the Colorado Bar Association (CBA)by Katherine Campbell and Frank Gibbard, licensed Colorado attorneys. They are provided as a serviceby the CBA and are not the official language of this Court. The CBA cannot guarantee the accuracy or completeness of the summaries. Full copies of the Tenth Circuit decisions are accessible from the CBA website: www.cobar.org (click on "Opinions/Rules/Statutes").
No. 09-4075. United States v. Begaye. 03/25/2011. D.Utah. Judge Holmes. Sentencing Guidelines-Upward Departure for Extreme Psychological Injury and Extreme Conduct-Need for Comparative Evidence.
Defendant pleaded guilty to a felony information alleging aggravated sexual abuse of his daughter. He had raped his daughter since she was in the first grade. The evidence also showed that he had severely physically abused his children, who were removed from the home. To spare the children the difficulty of a trial, the government permitted defendant to plead guilty to a single count of aggravated sexual abuse. The Sentencing Guidelines called for a sentencing range of 210 to 262 months. The district court departed upward based on Guideline § 5K2.3 (Extreme Psychological Injury) and § 5K2.8 (Extreme Conduct), sentencing defendant to 300 months, followedby lifelong supervised release.
On appeal, defendant argued that the district court lacked a factual basis for the upward departure based on extreme psychological injury, because the government failed to put forth comparative evidence demonstrating the psychological injury normally sufferedby victims of aggravated sexual abuse. The Tenth Circuit acknowledged that the government bears the burden of showing that the victim suffered psychological injury greater than what normally results from the crime of conviction to justify the enhancement. The Circuit rejected defendant's argument that the government must establish this elementby presenting comparative evidence. District courts enjoy an institutional advantage in making departure decisions, based on the large number of Guidelines cases they see. Here, there was extensive psychiatric testimony concerning the extreme and potentially long-term nature of the victim's psychological injuries. When coupled with evidence of the heinous nature of defendant's conduct, this met the government's burden. Defendant tried to point to other possible causes for the victim's psychological injuries, but failed to establish that the district court's conclusion that his conduct was the principal catalyst for the victim's extreme psychological injury was clearly erroneous.
Defendant also challenged the departure for extreme conduct. To justify this departure, the district court cited only defendant's improper sexual intercourse with his young daughter over a period of years. Again, defendant argued that the government was required to establish a baselineby presenting evidence of the typical crime of aggravated sexual abuse with which to compare his offense. The Circuit noted, however, that the Guidelines require only a showing that the offense was "unusually heinous, cruel, brutal, or degrading." Evidence of defendant's repeated sexual abuse of his daughter over a period of years met this standard. Finally, the district court did not commit plain errorby allegedly failing to provide adequate reasons for its departure decision at sentencing.
No. 09-4046. United States v. Wilgus. 03/29/2011. D.Utah. Judge Ebel. Bald and Golden Eagle Protection Act-Exception for Possession for Native American Religious Purposes-Use of Exceptionby Non-Tribal...
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