UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4055
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STEVEN RAY RICKS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (CR-03-86)
Submitted: December 22, 2005 Decided: February 3, 2006
Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.
Affirmed in part, and vacated and remanded in part by unpublished
per curiam opinion.
David G. Belser, BELSER & PARKE, Asheville, North Carolina, for
Appellant. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina; Amy E. Ray, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
A jury convicted Steven Ray Ricks of two counts of aggravated
sexual abuse of a minor in violation of 18 U.S.C.A. §§ 1152 and
2241 (2000) for twice assaulting his six-year-old stepdaughter. He
received two concurrent 180-month prison terms. Ricks appeals,
challenging both his convictions and sentence. We affirm his
convictions but remand for resentencing.
I.
Ricks first complains that his convictions violated the Sixth
Amendment’s Confrontation Clause because the court allowed three
witnesses to testify about out-of-court statements by his
stepdaughter. This argument fails, however. Because his accuser
testified and was cross-examined, “the Confrontation Clause places
no constraints at all on the use of” her prior statements.
Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004) (citing
California v. Green, 399 U.S. 149, 162 (1970)).
Ricks argues that even though his stepdaughter was present, he
was effectively denied the right to cross-examine her because she
testified with the assistance of an interpreter (after the court
found her answers to its questions inaudible), and because she
claimed not to remember making the accusations in question. This
argument fundamentally misunderstands the Sixth Amendment’s
guarantee, however. “[T]he Confrontation Clause guarantees only
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‘an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.’” United States v. Owens,
484 U.S. 554, 559 (1988) (quoting Kentucky v. Stincer, 482 U.S.
730, 739 (1987)). “It is sufficient that the defendant has the
opportunity to bring out such matters as the witness’ bias, [her]
lack of care and attentiveness . . . and even . . . the very fact
that [she] has a bad memory.” Id. Here, because the defendant had
a sufficient opportunity to question his stepdaughter and to
further develop any inconsistencies between her statements in court
and her out of court accusations conveyed by other witnesses --
indeed, she directly answered every question asked by his attorney
-- Ricks was not deprived of his rights under the Confrontation
Clause.
II.
Ricks’s challenge to his sentence, however, is more
meritorious. He contends that the district court
unconstitutionally enhanced his sentence based on facts not found
by the jury in violation of United States v. Booker, 125 S. Ct. 738
(2005).*
*
Ricks also contends that the indictment violated Booker
because it failed to allege that the victim was in his “custody,
care, or supervisory control.” This argument misunderstands
Booker, however. The Supreme Court did not transform every fact
required to enhance a sentence into an element of the underlying
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The jury convicted Ricks of two counts of sexually assaulting
a minor, a crime that carries a base offense level of 27. See
United States Sentencing Guidelines (“USSG”) § 2A3.1 (2003). The
court properly enhanced the offense level by 4 for assaulting a
victim less than twelve years of age -- a fact alleged in the
indictment. See id. § 2A3.1(b)(2)(A). The court also properly
enhanced the offense level by 2 because the jury convicted Ricks of
multiple counts. See id. § 3D1.4. With this offense level of 33
and a criminal history category of I, Ricks could have received a
sentence ranging from 135-168 months. See id., Ch. 5, Pt. A (2003)
(sentencing table).
The district court, however, imposed still another enhancement
based on Ricks’s role as his stepdaughter’s caregiver. Id.
§ 2A3.2(b)(1). The Government concedes that this enhancement
resulting in a 180-month sentence was based on an additional fact
not found by the jury or admitted by Ricks, and thus violated his
constitutional rights. See Brief of Appellee at 36-37. It also
concedes that it bears the burden of proving this error was
harmless because Ricks objected to the enhancements at his
sentencing. Id.; see also United States v. Mackins, 315 F.3d 399,
offense; it merely held that a sentence could not be enhanced based
on facts not found by a jury or admitted by the defendant. The
offenses for which Ricks was convicted only required proof that he
“knowingly engage[d] in a sexual act with another person who has
not attained the age of 12,” 18 U.S.C. § 2241(c), and that he be a
non-Indian who committed a crime against an Indian on Indian lands,
id. § 1152. Because those facts were clearly alleged in his
indictment, it was not “defective.”
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405 (4th Cir. 2003). Because the 180-month sentence exceeded the
168-month maximum that Ricks could have received based only on the
facts found by the jury or admitted by Ricks, the error was not
harmless.
We therefore remand to the district court for resentencing.
On remand the “district court shall first calculate (after making
the appropriate findings of fact) the range prescribed by the
guidelines.” United States v. Hughes, 401 F.3d 540, 546 (4th Cir.
2005). The court should then “consider that range as well as other
relevant factors set forth in the guidelines and those factors set
forth in § 3553(a).” Id. If the court chooses to impose a
sentence outside that range, “it should explain its reason for
doing so.” Id.
III.
For the foregoing reasons the judgment of the district court
is
AFFIRMED IN PART,
AND VACATED AND REMANDED IN PART.
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