United States v. Hurst

94 F.4th 993

UNITED STATES of America, Plaintiff - Appellee, v. Garrett Joseph HURST, Defendant - Appellant.

No. 22-7041

United States Court of Appeals, Tenth Circuit

FILED March 1, 2024

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:21-CR-00120-BMJ-1)

Meredith O'Harris (Adam Mueller, with her on the briefs), Haddon, Morgan and Foreman, P.C., Denver, Colorado, appearing for Appellant.

Lisa C. Williams, Special Assistant United States Attorney (Christopher J. Wilson, United States Attorney, with her on the brief), Office of the United States Attorney for the Eastern District of Oklahoma, Muskogee, Oklahoma, appearing for Appellee.

Before BACHARACH, BRISCOE, and MORITZ, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Garrett Hurst pleaded guilty to one count of knowingly engaging and attempting to engage in a sexual act with an Indian who had attained the age of 12 years but not the age of 16 years, and who was at least four years younger than Hurst, in violation of 18 U.S.C. §§ 2243(a), 2246(2)(A), 1151, and 1152. At sentencing, the district court varied upward from the advisory Guidelines imprisonment range and imposed the maximum term of imprisonment of 180 months, to be followed by a thirteen-year term of supervised release. Hurst now appeals, arguing that (1) the district court erred in rejecting a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement that was proposed by the parties, (2) the district court erred in concluding that Hurst was ineligible for a two-point reduction for acceptance of responsibility, (3) the sentence imposed by the district court was substantively unreasonable, and (4) the district court committed plain error by failing to explain why it selected a thirteen-year term of supervised release. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the judgment of the district court.

I

The following facts are taken from the presentence investigation report that was filed in this case and adopted by the district court at the time of sentencing. ROA, Vol. III at 364. The Town of Muldrow, Oklahoma is located within the special maritime and territorial jurisdiction of the Cherokee Nation Reservation. At approximately 2:30 a.m. on the morning of December 24, 2020, two officers from the Muldrow Police Department, Riley Brooks and John Farmer, were on patrol when they observed a vehicle parked on a dead-end road on a parcel of private property within the city limits. The officers recognized the vehicle as one that was suspected of being involved in reports of the driver impersonating a Fort Smith, Arkansas police officer. The two officers approached the vehicle on foot and witnessed a visible light bar in the back of the vehicle. The officers then initiated contact with the driver, who they identified as Hurst. In speaking with Hurst, the officers observed a young female, later identified as thirteen-year-old A.S., who was an enrolled member of the Cherokee Nation, laying in the reclined front passenger seat of the vehicle. Officer Brooks also observed a dash cam video recorder mounted on the front windshield of the vehicle. After the officers spoke with Hurst, Hurst agreed to take A.S. back to her residence. The officers followed Hurst as he drove A.S. back to her residence and dropped her off at the front door. Hurst then quickly left A.S.'s house before the officers were able to return his identification card to him.

The officers spoke to A.S.'s father, who told them he did not know where A.S. had been. A.S. explained to the officers that she had snuck out of her home and took her father's cellphone with her.

During a shift change on the morning of December 24, 2020, Officer Brooks, who was completing his shift, informed Officer Mark Harkins, who was beginning his shift, of the encounter with Hurst and A.S. earlier that morning. Officer Harkins decided to investigate the matter further. Officer Harkins went to A.S.'s residence that morning and spoke with A.S.'s father. A.S.'s father agreed to allow Officer Harkins to speak with A.S. A.S. told Officer Harkins that she met Hurst in Roland, Oklahoma, approximately a month-and-a-half earlier. A.S. stated that Hurst obtained her cellphone number and the two began to exchange text messages. According to A.S., she texted Hurst on the evening of December 23, 2020, and asked him to pick her up. A.S. stated that Hurst picked her up at her house at approximately 9:00 p.m. that evening and the two drove around Muldrow. A.S. stated that Hurst repeatedly tried to persuade her to go to his house with him, but she declined to do so. A.S. stated that at some point, Hurst parked his car in the isolated location where the two officers later found them early on the morning of December 24, 2020. According to A.S., Hurst showed her how the front passenger seat could be adjusted so that it lay flat like a bed. A.S. stated that at approximately that same time, Hurst began to bite his bottom lip in a suggestive manner and placed his hand on her thigh. A.S. told Officer Harkins that Hurst's behavior led her to believe he wanted to have sex with her. A.S. stated that she repeatedly asked Hurst to take her home, but that Hurst ignored her requests. A.S. disclosed that she and Hurst had sex in Hurst's vehicle prior to the two officers arriving and speaking with Hurst.

After obtaining this information from A.S., Officer Harkins discontinued the interview with A.S. and advised A.S.'s father that she needed to be medically and forensically evaluated. A.S. provided Officer Harkins with the items of clothing she was wearing when she was with Hurst on the early morning hours of December 24, 2020. Officer Harkins transported A.S. and her father to a facility in Fort Smith for a forensic interview and medical evaluation.

During the forensic interview, A.S. stated that while she was in the car with Hurst in the early morning hours of December 24, 2020, Hurst touched her vagina over and under her shorts and also placed her hands on his penis. A.S. further stated that Hurst eventually "got on top of her, pulled his pants down and inserted his penis into A.S.'s vagina." Id., Vol. II at 124. "A.S. indicated [that] while Hurst raped her, he was seen moving the dash cam video recorder located on the front windshield of the vehicle." Id. A.S. stated, however, that she was "not aware where Hurst was pointing" the video recorder "or whether the device was turned on." Id. "A.S. believed [that] Hurst ejaculate[d] on her shorts and on the front seat of the vehicle." Id. According to A.S., she asked Hurst how old he was, "but he would not answer." Id.

During the medical evaluation, swabs were collected from A.S.'s vagina, anus, mouth, and neck and sent to the Oklahoma State Bureau of Investigation (OSBI) for forensic testing. On December 30, 2020, officers from the Muldrow Police Department collected buccal swabs from Hurst and submitted them to the OSBI for forensic testing. On June 1, 2021, the OSBI issued a report stating that human male DNA was detected on the vaginal swabs taken from A.S. The report concluded, based upon a comparison of this human male DNA to the buccal swabs taken from Hurst, that Hurst was the contributor of the DNA detected on the vaginal swabs taken from A.S.

Following the interviews with A.S. on December 24, 2020, officers from the Muldrow Police Department went to Hurst's home and arrested him for the suspected rape of A.S. The officers searched and inventoried Hurst's vehicle. During that process, the officers found, in relevant part, a windshield-mounted camera. The officer also conducted a "manual forensic search" of the cellphone that Hurst had used to communicate with A.S. Id. at 125. That search revealed that Hurst had been in communication with A.S. by way of text messages and phone calls since the middle of November 2020.

II

On March 31, 2021, a criminal complaint was filed in the United States District Court for the Eastern District of Oklahoma charging Hurst with one count of sexual abuse of a minor in Indian Country, in violation of 18 U.S.C. § 2243(a)(1), 1151, and 1152.

On April 16, 2021, a federal grand jury returned a one-count indictment charging Hurst with knowingly engaging and attempting to engage in a sexual act with "an Indian who had attained the age of 12 years but not the age of 16 years, and who was at least four years younger than the defendant," in violation of 18 U.S.C. §§ 2243(a), 2246(2)(A), 1151, and 1152. ROA, Vol. I at 20.

On July 23, 2021, Hurst filed a petition to enter a plea of guilty to the single count alleged in the indictment. Along with the petition, Hurst filed a copy of a written plea agreement that he had entered into with the government "pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure." Id. at 34. The plea agreement included a section titled "SENTENCING RECOMMENDATION(S)" that stated, in relevant part, that the parties "agree[d] that a sentencing range of 24-30 months imprisonment [wa]s the appropriate disposition of the case." Id. at 41.

The district court held a change of plea hearing on that same date. Id., Vol. III at 6. The district court advised Hurst during the hearing that it "c[ould] reject this plea agreement if [it didn't] find it in the interest of justice." Id. at 25. Based upon Hurst's responses under oath, the district court found that he was "competent to enter this plea, that it [wa]s entered voluntarily," and that "there [wa]s a basis in fact for th[e] plea." Id. at 28-29. Consequently, the district court "f[ound] [Hurst] guilty as charged." Id. at 29.

On December 17, 2021, the probation office issued a presentence investigation report (PSR).¹ The PSR calculated a total offense level of 19, a criminal history score of 15, and a criminal history category of VI. Based upon these calculations, the PSR arrived at a "guideline imprisonment range [of] 63 months to 78 months." Id., Vol. II at 65. The PSR noted,...