United States v. Begay

Counsel:

Fred J. Federici

Acting United States Attorney

Kyle T. Nayback

Novaline D. Wilson

Assistant United States Attorneys

United States Attorney's Office

Attorneys for the Plaintiff

Alexandra W. Jones Jones

Law Firm, LLC

Samuel L. Winder

Romero & Winder, P.C.

Attorneys for the Defendant

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on: (i) the Sentencing Memorandum for Defendant Lyle Woody Begay and Formal Objection to Presentence Investigation Report, filed July 1, 2021 (Doc. 274)(“Sentencing Objection”); and (ii) the Correction to Sentencing Memorandum for Defendant Begay and Formal Objections to the Presentence Investigation Report, filed July 9, 2021 (Doc. 275)(“Correction to Sentencing Objection”). The primary issues are: (i) whether the Presentence Investigation Report, filed February 4, 2021 (Doc. 259)(“PSR”), improperly mentions Defendant Begay's conduct with regard to Jane Doe 1, when he has pled guilty only to conduct with regard to Jane Doe 2; and (ii) whether Begay is a repeat and dangerous sex offender against minors, based on his conduct with regard to Jane Doe 1, to justify a 5-level sentencing enhancement pursuant to United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.5(b)(1). The Court concludes that: (i) Begay's conduct with regard to Jane Doe 1 is relevant conduct, and thus, the PSR properly includes this conduct; and (ii) U.S.S.G. § 4B1.5(b)(1)'s 5-level sentencing enhancement is proper based on Begay's conduct with regard to Jane Doe 1. Consequently, the Court overrules the Sentencing Objection.

FACTUAL BACKGROUND

On May 24, 2013, Jane Doe 2 disclosed to her parents that she experienced sexual abuse from Begay, after her sister, Jane Doe 1, also disclosed Begay's sexual abuse of her. See PSR ¶ 11, at 5. On June 21, 2013, Jane Doe 2 reported to a child forensic professional at the Federal Bureau of Investigations (“FBI”) that Begay touched her inappropriately while she was sleeping at her grandmother's house during spring break. See PSR ¶ 13, at 5. Jane Doe 2 recalled:

1The defendant and Jane Doe 2 were sleeping together in his room on the bottom bunk bed. The defendant was positioned behind Jane Doe 2 as she slept on her side in the bed. Jane Doe 2 woke up to the defendant touching her buttocks with his hand while he was attempting to remove her pants. Jane Doe [2] recalled she felt the defendant's finger by her buttocks when he was trying to remove her pants. Jane Doe 2 moved, covered herself with blankets and looked at the defendant who pretended to be sleeping

PSR ¶ 13, at 5. “Jane Doe 2 reported this happened more than once where the defendant would put his hand under her underwear and make skin to skin contact with her buttocks, ” PSR ¶ 14, at 5, and this happened multiple times when Jane Doe 2 was seven and eight years old, see PSR¶ 15, at 6. “[T]he defendant admitted to having sexual contact with Jane Doe 2 on multiple occasions” when Jane Doe 2 was seven to nine years old. PSR ¶ 18, at 6.

PROCEDURAL BACKGROUND

On March 11, 2014, a Grand Jury charged Begay with three counts of sexually abusing Jane Doe 1, in violation of 18 U.S.C. §§ 1153, 2244(a)(5), and 2246(3), and one count of sexually abusing Jane Doe 2, in violation of 18 U.S.C. §§ 1153, 2244(a)(5), and 2246(3). See Indictment at 1-3, filed March 11, 2014 (Doc. 1). On October 9, 2020, Begay pled guilty to knowingly engaging in or causing sexual contact with Jane Doe 2 while Jane Doe 2 was under 12 years old. See Plea Agreement ¶ 9, at 4, filed October 9, 2020 (Doc. 257). Begay did not plead guilty to any offenses involving Jane Doe 1. See Plea Agreement ¶¶ 8-9, at 3-5. After Begay pled guilty, the

United States Probation Office (“USPO”) prepared the PSR. PSR at 1. The PSR includes a heading titled “Offense Behavior Not Part of Relevant Conduct” that details Begay's sexual abuse of Jane Doe 1. PSR ¶¶ 42-48, at 9-10. The PSR states:

When Jane Doe 1 was in kindergarten, the defendant came into the bathroom with her and made her bend down over the toilet, so her hands were on the toilet seat. The defendant then pulled down Jane Doe 1's pants and tried to put his penis in her vagina. Jane Doe 1 felt the pressure of his penis on her vagina. . . . On another occasion, the defendant took off Jane Doe 1's clothing and used cucumber melon scented lotion to lubricate his penis. The defendant penetrated Jane Doe 1's vagina with his penis. During September 2004, the defendant entered Jane Doe 1's bedroom, closed the door, closed the curtain, and pulled down Jane Doe 1's shorts and pulled down his pants. Jane Doe 1's shorts were pulled to her ankles and the defendant bent her over the bed and held her down and penetrated her vagina with his penis. Jane Doe 1 recalled the defendant's body going back and forth and when she asked to go to the bathroom, the defendant would not let her go. The defendant grunted, ejaculated, and left the bedroom to go across the hall to the bathroom to clean himself. . . . Jane Doe also recalled during Christmas time (year unspecified), she woke to find the defendant touching her vagina. On another occasion, the defendant came into Jane Doe 1's bedroom and sat on the bed and touched Jane Doe 1's leg. The defendant slid his hand over Jane Doe 1's vagina and applied pressure and pressed his two smaller fingers over her underwear into her vagina.

PSR ¶ 44, at 9. Accordingly, the PSR recommends a 5-level sentencing enhancement pursuant to U.S.S.G. § 4B1.5(b)(1), because “the defendant engaged in a pattern of activity involving prohibited sexual conduct. Therefore, the defendant is a repeat and dangerous sex offender against minors.” PSR ¶ 38, at 8.

In his Sentencing Objection, Begay “formally objects to all the allegations set forth regarding Jane Doe 1 in paragraphs 42, 43, 44, 45, 46, and 47 of the PSR, ” because “there is no reference to Jane Doe 1” in the written plea agreement. Sentencing Objection at 2-3. Begay also objects to the 5-level sentencing enhancement pursuant to U.S.S.G. § 4B1.5(b)(1), because he assumes that the USPO improperly relied on the facts regarding Jane Doe 1 to justify the

enhancement. See Sentencing Objection at 3.^[1] The United States responds. See United States' Sealed Response to Defendant's Sentencing Memorandum and Formal Objection to the Presentence Investigation Report (Docs. 274, 275)(“Response”). The United States contends that Begay's “conduct involving Jane Doe 1 should be considered under U.S.S.G. § 1B1.3 as relevant conduct.” Response at 1. Further, the United States argues that, because Begay “admitted to having sexual contact with Jane Doe 2, ” this admission in itself “shows a pattern of activity involving prohibited sexual conduct with a minor” sufficient to justify the § 4B1.5(b)(1) enhancement. Response at 1. Finally, “[t]he United States also asserts that consideration of the conduct involving Jane Doe 1 is also a basis for application of the five-level enhancement under U.S.S.G. § 4B1.1 because Defendant is a repeat and dangerous sex offender against minors.” Response at 1.

LAW REGARDING RELEVANT CONDUCT FOR SENTENCING

In calculating an appropriate sentence, the Guidelines consider a defendant's “offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct) unless a different meaning is specified or is otherwise clear from the context.” U.S.S.G. § 1B1.1, n.1(H). In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court of the United States of America notes:

Congress' basic statutory goal -- a system that diminishes sentencing disparity -- depends for its success upon judicial efforts to determine, and to base punishment upon, the real conduct that underlies the crime of conviction. That determination is particularly important in the federal system where crimes defined as, for example, “obstruct[ing], delay[ing], or affect[ing] commerce or the movement of any article or commodity in commerce, by . . . extortion, ” . . . can encompass a vast range of very different kinds of underlying conduct.

543 U.S. at 250-51 (emphasis in original)(quoting 18 U.S.C. § 1951(a)). The Supreme Court's reasoning in United States v. Booker suggests that the consideration of real conduct is necessary to effectuate Congress' purpose in enacting the Guidelines.

Section 1B1.3(a) provides that the base offense level under the Guidelines “shall be determined” based on the following:

(1)

(A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and

(B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense;

(2) solely with respect to offenses of a character for which § 3D1.2(d) would require grouping of multiple counts, all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction;

(3) all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions; and

(4) any other information specified in the applicable guideline.

U.S.S.G. § 1B1.3(a)(1)-(4). The Guidelines...