United States v. Joe, No. 11-4001 (10th Cir. 2012)
Annotate this CaseTwo direct criminal appeals arose from the same incident and had one sentencing issue in common. The crime in which the two Defendants-Appellants, Johnson Joe and Cynthia Jones participated included a brutal beating and sexual assault that came at the end of a bout of heavy drinking. Joe and Jones each eventually entered a guilty plea to a single charge of aggravated sexual abuse. After the guilty pleas, the district court directed the preparation of a presentence report (PSR) for each of them. In both cases, the PSR recommended that the offense level be increased by four under U.S.S.G. 2A3.1(b)(1) because the offense involved the use of force against the victim. In the case of Ms. Jones, the PSR also recommended that her offense level be further increased by two under U.S.S.G. 3A1.3 because the victim had been restrained during the offense. In the case of Mr. Joe, the government objected to the PSR because it did not include an enhancement for the restraint of the victim. Neither Defendant contested the facts underlying the recommendations. Both Defendants, however, objected to the recommendation (that of the PSR in the case of Ms. Jones and of the government in the case of Mr. Joe) to apply both the use-of-force and the restraint-of-the-victim enhancements. The district judge overruled these objections in both cases. In Ms. Jones’s case, the PSR found that the applicable sentencing range under the advisory Guidelines was 168 to 210 months of imprisonment. The district judge decided to vary downward from that range and sentenced her to 140 months’ imprisonment. In Mr. Joe’s case, the PSR found that the applicable Guidelines range was 125 to 168 months, but with the restraint-of-the-victim enhancement added by the court, the resulting advisory Guideline range was the same as for Ms. Jones – 168 to 210 months. The district judge again decided to vary downward from that range and sentenced Mr. Joe to 110 months’ imprisonment. Both Defendants were also sentenced to a life term of supervised release to commence upon their release from incarceration. Neither Defendant objected to this provision of extended supervised release. On appeal, both Mr. Joe and Ms. Jones contended that the district court erred by applying both the enhancement for the use of force and the enhancement for the restraint of the victim. Upon review, the Tenth Circuit held that the district court erred when it enhanced Defendants’ offense levels for physical restraint of the victim as well as enhancing for the use of force against her. The government, which has the burden of proof of showing harmlessness, did not show that this error was harmless. Case law lead the Court to conclude that the error was not. The Court did not find, however, that there was plain error in the imposition of the lifetime term of supervised release. Therefore, the Court remanded the cases back to the district court to vacate Defendants' sentences and for resentencing.
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