United States v. Scheu

75 F.4th 1126

UNITED STATES of America, Plaintiff-appellee, v. Joshua William SCHEU, Defendant-appellant.

No. 22-10044

United States Court of Appeals, Ninth Circuit

Argued and Submitted February 7, 2023 Phoenix, Arizona

Filed August 2, 2023

Appeal from the United States District Court for the District of Arizona, Cindy K. Jorgenson, District Judge, Presiding, D.C. No. 4:19-cr-02615-CKJ-DTF-1

J. Ryan Moore (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Federal Public Defender's Office for the District of Arizona; Tucson, Arizona; for Defendant-Appellant.

Shelley K.G. Clemens (argued) and Corey J. Mantei, Assistant United States Attorneys; Christina M. Cabanillas, Deputy Appellate Chief; Gary M. Restaino, United States Attorney, District of Arizona; Office of the United States Attorney; Tucson, Arizona; for Plaintiff-Appellee.

Before: Michael Daly Hawkins, Susan P. Graber, and Morgan Christen, Circuit Judges.

OPINION

HAWKINS, Circuit Judge:

Defendant Joshua William Scheu appeals his sentence following a guilty plea to two counts of aggravated sexual abuse of a child in violation of 18 U.S.C. §§ 2241(c), 2246(2) & 1152. He contends that the district court misapplied a sentencing enhancement for abduction and thus improperly added four levels to his sentencing range. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

FACTS AND PROCEDURAL HISTORY

In October 2019, Scheu was indicted on two counts of aggravated sexual abuse of a child for sexual acts of violence committed against a fourteen-year-old Native American girl on the Gila River Indian Community outside of Phoenix, Arizona, in November 2004. Scheu pled guilty without the benefit of a plea agreement.

The Presentence Investigation Report calculated the sentence using the 2004 version of the Guidelines, applied a downward adjustment for acceptance of responsibility, and added a four-level enhancement because "the victim was abducted." U.S. Sent'g Guidelines Manual ("U.S.S.G.") § 2A3.1(b)(5). This enhancement increased both ends of the advisory sentencing range by more than six years. Scheu objected, arguing that the abduction enhancement should not be applied because there was no significant change in location during or prior to the assault.

At the sentencing hearing, the government presented the testimony of a former Gila River Police Department detective who had investigated the case in 2004.¹ The detective testified that the victim and victim's mother said that the victim had been waiting by a dirt berm and water pumping station along 83rd Avenue when the defendant drove by, made a U-turn, parked, and got out of his vehicle. As he approached the victim, she began walking backwards, but Scheu caught up to her, grabbed her arms, and put his hand over her mouth. He then pushed, pulled, dragged and/or moved her approximately 35 to 40 feet into the corner of a nearby cornfield where the sexual assault occurred, and ordered her to lie down and not to scream or cry. The field was adjacent to the road, and the corn was approximately two-and-a-half feet high at the time. Several photographs and a hand-drawn diagram of the crime scene were admitted in evidence.

Overruling Scheu's objection to the enhancement, the district court concluded that the forced movement of the victim from the roadside into the cornfield was sufficient to support the abduction enhancement and noted that the defendant had "physically forced the victim into a cornfield to conceal the assault from public view or detection." The court sentenced Scheu to 210 months of imprisonment and lifetime supervised release.

STANDARD OF REVIEW

We review de novo the district court's legal interpretation of the Guidelines. United States v. Gasca-Ruiz, 852 F.3d 1167, 1171 (9th Cir. 2017) (en banc). A court's application of the Guidelines to the facts of a case is reviewed for an abuse of discretion and its factual findings for clear error. Id. at 1170.

DISCUSSION

The Sentencing Guideline at issue, U.S.S.G. § 2A3.1(b)(5) (2004), provides:

Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse:

a. Base Offense Level: 30

b. Specific Offense Characteristics

. . . .

(5) If the victim was abducted, increase by 4 levels.

The application note to this Guideline further provides that the term "abducted" in subsection (b)(5) shall "have the meaning given those terms in Application Note 1 of the Commentary to § 1B1.1." In turn, the commentary to § 1B1.1 explains:

"Abducted" means that a victim was forced to accompany an offender to a different location. For example, a bank robber's forcing a bank teller from the bank into a getaway car would constitute an abduction.

U.S.S.G. § 1B1.1, cmt. n.1(A) (2004).

Applying the definition in the commentary, the district court found the defendant had forcibly moved the victim from the shoulder of the road into an adjoining cornfield, where he shoved her onto the ground, approximately 35 to 40 feet from the spot where he had initially grabbed her by the open road. The district court ruled that this movement was sufficient to demonstrate by clear and convincing evidence that Scheu had forced the victim to accompany him to a different location and applied the four-level enhancement.

I.

For many years, the leading case on how courts should treat definitions, examples, and other information in the Guideline commentary has been Stinson v. United States, 508 U.S. 36, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Stinson concluded that the Sentencing Commission's commentary in the Guidelines manual that interprets or explains a Guideline is binding and that courts must follow it unless it is plainly erroneous, inconsistent with the Guideline provision itself, or violates the Constitution. Id. at 47, 113 S.Ct. 1913. In reaching this conclusion, the Court considered various analogies to other legal areas and ultimately concluded that, although "not precise," the Guideline commentary was much like an agency's interpretation of its own legislative rule (and not like an agency's construction of a federal statute that it administers). Id. at 43-45, 113 S.Ct. 1913.

Twenty-six years after Stinson, the Supreme Court decided Kisor v. Wilkie, — U.S. —, 139 S. Ct. 2400, 204 L.Ed.2d 841 (2019), which addressed the proper deference to an agency's interpretation of its regulations (in that case, the Board of Veterans' Appeals interpretation of an agency rule in a particular decision). Kisor reaffirmed the existence of, but limited the scope of, "Auer / Seminole Rock deference"; the Court explained that "the possibility of deference can arise only if a regulation is genuinely ambiguous" and a court has exhausted all the "traditional tools of construction." Id. at 2414-15 (citation omitted); see Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945).

Since Kisor was decided, a circuit split has arisen over whether this more limited deference should apply to the Sentencing Guidelines commentary and application notes. Compare United States v. Moses, 23 F.4th 347, 351-58 (4th Cir. 2022), cert. denied, — U.S. —, 143 S. Ct. 640, 214 L.Ed.2d 369 (2023) (setting forth reasons why Kisor did not apply to the Guidelines, and continuing to apply Stinson), with United States v. Riccardi, 989 F.3d 476, 484-85 (6th Cir. 2021) (applying Kisor to the Guidelines and concluding that a court may defer to commentary only if Guideline is ambiguous).

Our court recently weighed in on the debate and agreed that the "more demanding deference standard articulated in Kisor applies to the Guidelines' commentary." United States v. Castillo, 69 F.4th 648, 655 (9th Cir. 2023). As we explained:

Kisor directly examined and narrowed Seminole Rock and Auer deference in the context of an administrative agency's interpretation of its own regulation, noting that such deference is not permitted without first finding the regulation ambiguous. Stinson deference is directly grounded in Seminole Rock and Auer deference . . . . Therefore, to follow Stinson's instruction to treat the commentary like an agency's interpretation of its own rule, we must apply Kisor's clarification of Auer deference to Stinson.

Id. at 655-56 (internal quotations and citations omitted).

In any event, the result in this case is unaffected by this change in analysis. As discussed below, we would reach the same conclusion in this case whether we evaluate the plain meaning of the term "abducted" as it appears in the Guideline itself, or whether we consider "abducted" to be ambiguous and look to the commentary's definition.

II.

We apply "the traditional rules of statutory construction when interpreting the sentencing guidelines." United States v. Flores, 729 F.3d 910, 914 n.2 (9th Cir. 2013). "Our interpretation will most often begin and end with the text and structure of the guidelines provisions themselves." United States v. Cuevas-Lopez, 934 F.3d 1056, 1061 (9th Cir. 2019) (citation and internal quotation marks omitted).

Here, the Guideline itself simply provides that "[i]f the victim was abducted, increase by 4 levels." U.S.S.G. § 2A3.1(b)(5). The word "abduct" derives from the Latin " 'abduco' to lead away." Humphrey v. Pope, 122 Cal. 253, 54 P. 847, 848 (1898). Contemporary dictionary definitions define "abduct" as "to seize and take away (a person) by force," Merriam Webster Online (2023), https://www.merriam-webster.com/dictionary/abduct [https://perma.cc/32EU-LC8Y], "to carry off by force," The American Heritage Dictionary (2d Coll. Ed. 1991), and "[t]o take (a person) away by force or deception," The Oxford English Dictionary Online (2023), https://www.oed.com/view/Entry/212 [https://perma.cc/KJ3L-Z3KX]. Black's Law Dictionary similarly defines abduct(ion) as "[t]he act of leading someone away by force or fraudulent persuasion." (9th Ed. 2009). Scheu argues that "abducted" requires a "substantial leading away" and is "akin to protracted...