Unpublished Disposition, 937 F.2d 614 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 614 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Carl A. YBARRA, Defendant-Appellant.

No. 90-10353.

United States Court of Appeals, Ninth Circuit.

Submitted June 13, 1991.* Decided July 8, 1991.

Before GOODWIN, BEEZER and NOONAN, Circuit Judges.


MEMORANDUM** 

Carl Ybarra appeals his jury conviction and sentence under the Sentencing Guidelines for sexual abuse of a person under age 12 in violation of 18 U.S.C. § 2241(c); abusive sexual conduct in violation of 18 U.S.C. §§ 2244(a) (1) and (a) (3); and aggravated sexual abuse by force or threat, in violation of 18 U.S.C. § 2241(a). We affirm.

The evidence admitted at trial on the seven counts would have been admissible at separate trials had the counts been severed. There was no abuse of discretion in denying Ybarra's motion to sever the counts for separate trials.

Ybarra next complains that the court erred in increasing the base offense level by four points for using force. There was no error. In all three of the counts for which the increase under Guideline Sec. 2A3.1(b) (1) was awarded, the evidence proved that Ybarra either restrained his child victim or used threats of violence in order to coerce the child to engage in sexual activity with him.

Finally, he challenges the two point increase in the base offense level for the count in which he was convicted of sexual abuse of a 12 year old girl left by her parents in his custody as a baby sitter. There was no error. Ybarra's abuse of the child was also an abuse of the position of trust, and was clearly a proper case for the Guideline Sec. 2A3.1(b) (3) increase.

Ybarra was acquitted of one count, and convicted on six counts of sexual abuse of children. He received a fair trial and a lawful sentence.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3