Court Addresses Meaning of Fear for Purposes of USSG 2A3.1
US v. Fish, 08-6007, 2008 WL ---- (10th Cir. Oct. 2, 2008) (unpublished): Strangely unpublished, since it seems to address an issue of first impression in this circuit -- the meaning of "fear" under 18 USC 2242. The Tenth affirms 111-month sentence (including 24-month upward variance) for defendant who pled guilty to knowingly transporting a minor in interstate commerce with the intent to engage in unlawful sexual activity, contrary to 18 U.S.C. 2423(a). Defendant, a truck driver, took his nephew with him on a trip and sexually abused him. He threatened the boy with leaving him on the side of the road if he didn't submit and told the boy he would kill his family if he told anyone what had happened. Three years later, the boy reported the incidents. The defendant did not deny the events but claimed they were consensual.
The defendant objected to the district court applying USSG 2A3.1, which applies to criminal sexual abuse as defined in 18 USC 2241 and 2242. The Tenth held that the district court did not clearly err when it relied on the 16-year-old's testimony regarding three-year-old events, despite some inconsistencies to support the cross-reference. Additionally, 2A3.1 did not require that the defendant place the victim specifically in fear of bodily injury; "18 USC 2242(1) requires only 'fear' in general" and threats to leave the boy on the side of the road thousands of miles from home "would certainly induce significant fear in a 13-year-old boy."
The sentence imposed was also procedurally and substantively reasonable. It was ok for the district court to rely in part on circumstances inherent in the charged offense in imposing the upward variance: "Mr. Fish is correct that some of these circumstances—such as the cross-country nature of the trip and the victim’s age—are inherent in the charged offense (interstate transportation) or the guidelines calculation (offense-level increase based on victim’s age). But the district court need not distinguish the defendant from the ordinary offender contemplated by the Guidelines in order to impose an upward variance. '[D]strict courts are now allowed to contextually evaluate each § 3553(a) factor, including those factors the relevant guideline(s) already purport to take into account, even if the facts of the case are less than extraordinary.'"
The defendant objected to the district court applying USSG 2A3.1, which applies to criminal sexual abuse as defined in 18 USC 2241 and 2242. The Tenth held that the district court did not clearly err when it relied on the 16-year-old's testimony regarding three-year-old events, despite some inconsistencies to support the cross-reference. Additionally, 2A3.1 did not require that the defendant place the victim specifically in fear of bodily injury; "18 USC 2242(1) requires only 'fear' in general" and threats to leave the boy on the side of the road thousands of miles from home "would certainly induce significant fear in a 13-year-old boy."
The sentence imposed was also procedurally and substantively reasonable. It was ok for the district court to rely in part on circumstances inherent in the charged offense in imposing the upward variance: "Mr. Fish is correct that some of these circumstances—such as the cross-country nature of the trip and the victim’s age—are inherent in the charged offense (interstate transportation) or the guidelines calculation (offense-level increase based on victim’s age). But the district court need not distinguish the defendant from the ordinary offender contemplated by the Guidelines in order to impose an upward variance. '[D]strict courts are now allowed to contextually evaluate each § 3553(a) factor, including those factors the relevant guideline(s) already purport to take into account, even if the facts of the case are less than extraordinary.'"
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