United States v. Begaye

FILED
United States Court of Appeals
Tenth Circuit

March 25, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 09-4075

HARRISON BEGAYE,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:07-CR-00345-DB-1)

Stephen J. Sorenson, Assistant United States Attorney (Brett L. Tolman, United
States Attorney, with him on the brief), Salt Lake City, Utah, for Plaintiff-
Appellee.

Bretta Pirie, Assistant Federal Public Defender (Steven B. Killpack, Federal
Public Defender, with her on the briefs), Salt Lake City, Utah, for Defendant-
Appellant.

Before TYMKOVICH and HOLMES, Circuit Judges, and POLLAK, District
Judge. *

HOLMES, Circuit Judge.

*
The Honorable Louis H. Pollak, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
 Defendant-Appellant Harrison Begaye pleaded guilty to a felony

information alleging aggravated sexual abuse of his eleven-year-old daughter, in

violation of 18 U.S.C. §§ 2241(a) and 1153(a). The district court calculated a

advisory Guidelines range of 210 to 262 months’ imprisonment. In sentencing

Mr. Begaye, however, the district court departed upward, sentencing him to

twenty-five years (i.e., 300 months) in prison to be followed by lifelong

supervised release. On appeal, Mr. Begaye challenges his sentence, claiming that

the district court inappropriately departed upward based on the “extreme

psychological injury” to his victim, as well as his “extreme conduct,” under the

United States Sentencing Guidelines Manual (“U.S.S.G.”) §§ 5K2.3 and 5K2.8,

respectively. He also claims that the district court failed to adequately explain

the degree of departure granted. Exercising jurisdiction pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(a), we affirm.

I. BACKGROUND

In May 2007, regional social workers, acting on a report from school

officials of suspected child abuse, interviewed Mr. Begaye’s six children. During

these interviews, the children, who ranged in age from four to fourteen, all

showed signs that they feared for their own safety, with two of them specifically

expressing fear of their father. The children reported frequent physical abuse by

Mr. Begaye, including whippings with horsewhips, bullwhips, sticks, and even

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bricks. Four of the children had visible red marks on their backs, and one had a

BB pellet lodged in his nose from where his father, he claimed, had shot him. In

addition, each of the children had red “pokes” on their arms from where Mr.

Begaye had punished them using a horse syringe. The children were subsequently

removed from Mr. Begaye’s home.

Shortly thereafter, Mr. Begaye’s eldest daughter, Ja.B., was interviewed by

an F.B.I. agent. At that time, she acknowledged that she had been sexually

abused by her father. 1 Although initially hesitant to talk about the abuse, 2 Ja.B.

eventually admitted that she had been the victim of a series of rapes spanning

multiple years. According to the young girl, Mr. Begaye had sexually assaulted

her almost weekly in their family home beginning when she was in the first grade.

During the assaults, Mr. Begaye would remove her pants and then have sex with

her, sometimes forcing her to be on top. When she would “try to get off, [Mr.

Begaye would] pull [her] legs down,” hold her hands, or otherwise force her to

continue. R., Supp. Vol. V, Exh. 2, at 46:16–46:28, 51:30–53:40. Ja.B. told the

agent that Mr. Begaye would repeatedly ask her, “Does that feel good?,” to which

she would “always say, ‘No.’” Id. at 47:10–30, 1:11:26–35.

1
The interview was recorded, and a digitized copy of the interview
was submitted to the district court with the government’s motion for an upward
departure.
2
According to Ja.B., Mr. Begaye had threatened to “throw us around,
all of us” if she ever mentioned anything about the abuse. R., Supp. Vol. V, Exh.
2, at 12:25–13:58 (Recorded Interview with Ja.B., dated May 16, 2007).

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 In the wake of these revelations, Mr. Begaye was charged in a six-count

indictment for offenses arising from his abuse of Ja.B. and her five siblings. For

raping Ja.B., Mr. Begaye faced three counts of aggravated sexual abuse of a child

under the age of twelve, within Indian Country, in violation of 18 U.S.C.

§§ 2241(c) and 1153(a). Seeking to avoid the difficulties a trial would impose on

Ja.B. and her young siblings, however, the government permitted Mr. Begaye to

plead guilty to a single count of aggravated sexual abuse under a different

provision, 18 U.S.C. § 2241(a). Following the entry of his plea, the district court

determined Mr. Begaye’s sentence range under the Guidelines to be 210 to 262

months.

The provision under which Mr. Begaye was originally indicted, § 2241(c),

carries a mandatory minimum sentence of 30 years’ imprisonment. In contrast,

the charge to which he pleaded guilty, § 2241(a), has no minimum sentence.

Prior to sentencing, the government moved for an upward departure or upward

variance, arguing that “the facts of this case justify a sentence of 360 months even

though it is not mandatory for the crime to which [Mr. Begaye] pled guilty.” R.,

Supp. Vol. V, at 14 (Mot. for Upward Departure & Upward Sentencing Variance,

filed Apr. 8, 2009). The government based its request for an upward departure on

U.S.S.G. §§ 5K2.3 (“Extreme Psychological Injury”), 5K2.8 (“Extreme

Conduct”), 5K2.21 (“Dismissed and Uncharged Conduct”), and 5K2.0(a)(2)(B)

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(“Unidentified Circumstances”). It also sought an upward variance based upon

the factors set forth in 18 U.S.C. § 3553(a).

Mr. Begaye filed a motion in response, arguing, inter alia, that an upward

departure was not warranted for extreme conduct or extreme psychological injury

because the government never produced comparative evidence of these factors.

He asked the district court instead to vary downward based upon § 3553(a)’s

factors to a sentence of 120 months, averring that his contrition, amenability to

treatment, and low level of intelligence all militated towards a below-Guidelines

sentence.

After a hearing, the district court denied Mr. Begaye’s motion and granted

the government’s motion. The court departed upward under §§ 5K2.3 and 5K2.8.

In doing so, the court stated:

I find that the crime that was committed, looking at all of the
facts and circumstances, represented a crime that was unusually
heinous, cruel, brutal or degrading to the victim. I will refer to
5K2.8 of the guidelines, the sentence guidelines and that
language, and recognizing in the guideline system that that is
anticipated to be a possible ground for an upward departure.

I also find that . . . the facts indicate[, as required by
5K2.3, that] a psychological injury and a physical injury more
serious than normal has been demonstrated to the Court in this
case. . . .

. . . Mr. Begaye pled guilty to aggravated sexual abuse
under Section 2241(a), and that is an admission of aggravated
sexual abuse of another person on an Indian reservation by force
or threat. That is what he pled to. I am entitled as the Judge to
look at the facts and circumstances that underlie that plea. That

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 includes in this case the fact that he repeatedly had improper
sexual intercourse with his young daughter over, the facts
demonstrate to me, a period of years. I am looking at those as
the actual facts of this case and not looking at those as the facts
that underlie or that were the basis for another count that has
been dismissed. Those are the facts of this case.

. . . I’m using the guidelines, which in this case have a
range of 210 to 268 [3] months, and I am going above that because
of the two reasons that I just indicated, under 5K2.8 and 5K2.3.
I am staying generally within the guideline process for doing
this.

. . . I find an appropriate sentence to be here a 25-year
sentence which is an upward departure of some roughly two and
a half years.

R., Vol. II, Tr. at 30–32 (Sentencing Hr’g, dated Apr. 15, 2009) (emphasis

added). Mr. Begaye now appeals his sentence.

II. DISCUSSION

On appeal, Mr. Begaye lodges three challenges to the district court’s

decision to depart upward. He claims, first, that the district court abused its

discretion in departing upward based on Ja.B.’s alleged “extreme psychological

injury” because the court lacked an adequate factual basis for doing so. In

particular, he asserts that the government failed to put forth comparative evidence

demonstrating the psychological injury that is normally suffered by victims of

aggravated sexual abuse, which he reads as a prerequisite for a departure under

3
The district court apparently misspoke: the recommended Guidelines
range was actually 210 to 262 months. R., Vol. III, at 11 (Presentence Report,
dated Mar. 12, 2009).

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§ 5K2.3, and that the district court inappropriately relied on unfounded

government assertions in making its departure assessment, while also

unjustifiably discounting other potential factors that might have affected Ja.B.’s

psychological condition. Mr. Begaye also maintains that the district court lacked

an adequate factual basis to support a finding of “extreme conduct” under

§ 5K2.8. Borrowing heavily from his first claim, Mr. Begaye posits that the

district court abused its discretion in departing upward under this provision

because no comparative evidence was offered to show that his conduct was more

“heinous, cruel, brutal, or degrading” than that normally perpetrated by those who

commit aggravated sexual abuse. Finally, Mr. Begaye believes that the district

court erred in failing to adequately explain the degree of the departure granted in

this case.

The government, in contrast, insists that a “district court enjoys an

institutional advantage in drawing on its own extensive experience in applying the

Guidelines,” and “may conclude that such departures are warranted without

receiving evidence about what usually happens in other cases.” Aplee. Br. at

14–15. It argues that the undisputed facts of this case gave the district court

ample basis for departing under both §§ 5K2.3 and 5K2.8. It further submits that

the district court’s explanation for its sentence was more than adequate, noting

that the court made clear that it considered both the evidence and the parties’

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arguments prior to making its determination. We address each of these claims in

turn.

A. Standard of Review

Following the Supreme Court’s decision in United States v. Booker, 543

U.S. 220 (2005), “we review sentences for reasonableness under a deferential

abuse-of-discretion standard.” United States v. Alapizco-Valenzuela, 546 F.3d

1208, 1214 (10th Cir. 2008). “Reasonableness review is a two-step process

comprising a procedural and a substantive component.” United States v.

Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008) (citing Gall v. United States,

552 U.S. 38, 51 (2007)); accord United States v. A.B., 529 F.3d 1275, 1277 (10th

Cir. 2008).

“A sentence is procedurally reasonable when the district court computes the

applicable Guidelines range, properly considers the § 3553(a) factors, and

‘afford[s the defendant his] rights under the Federal Rules of Criminal

Procedure.’” United States v. Martinez-Barragan, 545 F.3d 894, 898 (10th Cir.

2008) (alternation in original) (quoting United States v. Geiner, 498 F.3d 1104,

1107 (10th Cir. 2007)). “In calculating the proper Guideline range, the district

court is still required to consider and apply the departure provisions in

appropriate cases.” United States v. Fonseca, 473 F.3d 1109, 1112 (10th Cir.

2007). The government asserts that Mr. Begaye’s challenge to the district court’s

upward departure determination categorically presents an issue of procedural

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reasonableness. See Aplee. Br. at 16 (“A challenge to a district court’s departure

decision amounts to a claim of procedural error.”). We need not test the accuracy

of that assertion because Mr. Begaye only professes to raise a challenge to the

procedural reasonableness of the district court’s upward-departure decision. Aplt.

Opening Br. at 6. Consequently, we are free in the context of this case to focus

solely on “whether the district court committed any error in ‘calculating or

explaining the sentence.’” United States v. Martinez, 610 F.3d 1216, 1223 (10th

Cir.) (quoting Alapizco-Valenzuela, 546 F.3d at 1214), cert. denied, 131 S. Ct.

543 (2010).

As relevant here, we have articulated the controlling standard as follows:

Our analysis of the propriety of an upward departure is . . .
guided by the traditional four-part test, which inquires (1)
whether the district court relied on permissible departure factors,
(2) whether those factors removed a defendant from the
applicable Guidelines heartland, (3) whether the record supports
the district court’s factual bases for a departure, and (4) whether
the degree of departure is reasonable.

United States v. Robertson, 568 F.3d 1203, 1211 (10th Cir.), cert. denied, 130 S.

Ct. 814 (2009).

“In considering these prongs, ‘we apply a unitary abuse of discretion

standard.’” Alapizco-Valenzuela, 546 F.3d at 1215 (quoting United States v.

Munoz-Tello, 531 F.3d 1174, 1186 (10th Cir. 2008)). However, the “degree of

deference” accorded to the district court under this standard “varies depending on

the ‘essential nature of the question presented.’” Munoz-Tello, 531 F.3d at 1186

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(quoting United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir. 2006)). “As a

practical matter,” we have observed, “this standard affords more deference to

factual questions and less (if any) deference to legal ones.” Alapizco-Valenzuela,

546 F.3d at 1215. As such, “this standard of review is similar to the standard we

apply in determining whether the district court first arrived at the appropriate

advisory Guidelines range.” Id. at 1216 n.2. In other words, it is akin to the

standard under which “we review de novo the district court’s legal conclusions

pertaining to the Guidelines and review its factual findings . . . for clear error.”

United States v. Todd, 515 F.3d 1128, 1135 (10th Cir. 2008); see also United

States v. Angel-Guzman, 506 F.3d 1007, 1014 n.5 (10th Cir. 2007) (“Determining

whether a sentence is procedurally proper—an inquiry which this Court dubs

‘procedural reasonableness ’ —employs the standards of clear error as to findings

of fact and de novo review as to conclusions of law.”).

B. Departure for Extreme Psychological Injury Under § 5K2.3

Mr. Begaye’s principal challenge to his sentence is that the district court

erred in departing upward under § 5K2.3 because the record was inadequate to

support such a departure. See Robertson, 568 F.3d at 1211 (indicating that the

record must support the factual bases for departure). Section 5K2.3 allows a

court to depart from the Guidelines heartland range when “a victim or victims

suffered psychological injury much more serious than that normally resulting

from commission of the offense.” U.S.S.G. § 5K2.3 p.s. (2008) (emphasis

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added). 4 Mr. Begaye avers that “evidence of a victim’s psychological injuries is

inadequate to support a departure under § 5K2.3 without context regarding

injuries ordinarily experienced by victims of the offense conduct.” Aplt. Opening

Br. at 10–11. He concludes, therefore, that the district court abused its discretion

in applying § 5K2.3 because “the government offered no evidence from which the

district court could have determined the typical psychological injuries associated

with [his] offense.” Id. at 11.

In making his argument, Mr. Begaye relies heavily on this court’s holding

in United States v. Okane, 52 F.3d 828 (10th Cir. 1995). In Okane, we stated as a

general rule that, “before a sentencing court may depart upwards under [§ 5K2.3],

there must be evidence of: (1) the nature of the injury actually suffered by the

victims in this case, and (2) the psychological injury ‘normally resulting from the

4
The policy statement to § 5K2.3 provides, in pertinent part:

If a victim or victims suffered psychological injury much
more serious than that normally resulting from commission of the
offense, the court may increase the sentence above the authorized
guideline range. . . .

Normally, psychological injury would be sufficiently
severe to warrant application of this adjustment only when there
is a substantial impairment of the intellectual, psychological,
emotional, or behavioral functioning of a victim, when the
impairment is likely to be of an extended or continuous duration,
and when the impairment manifests itself by physical or
psychological symptoms or by changes in behavior patterns.

U.S.S.G. § 5K2.3 p.s.

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commission of the offense.’” Id. at 835 (quoting U.S.S.G. § 5K2.3 p.s.). The

comparative nature of § 5K2.3, we reasoned, dictated that “there must be some

evidence of both of these elements in order to enable the sentencing court to

determine whether the injury actually suffered is sufficiently serious, relative to

the normal injury incurred, to warrant a departure.” Id.

The government does not deny that it failed to offer evidence suggesting

the level of psychological injury “normally” suffered by a victim of aggravated

sexual assault. It contends, however, that, even after Okane, we “have never

required that separate expert or comparative evidence be a part of every departure

consideration” under § 5K2.3. Aplee. Br. at 19 (emphasis added). The

government maintains that sentencing courts may still depart under this provision

even absent specific comparative evidence when the extraordinary nature of the

victim’s psychological injury is “self-evident,” id. (quoting United States v.

Atkinson, No. 94-4229, 1995 WL 620142, at *6 (10th Cir. Oct. 16, 1995))

(internal quotation marks omitted), and argues that Mr. Begaye’s position

“ignore[s] the substantial discretion and deference afforded the district courts” in

the realm of sentencing, id. at 21. We agree.

Although it is true that the government bears the burden of showing that the

victim suffered psychological injury greater than that which “normally” results

from the crime of conviction, see United States v. Zamarripa, 905 F.2d 337, 341

(10th Cir. 1990), abrogated on other grounds by Williams v. United States, 503

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U.S. 193 (1992), “[t]here is no hard and fast rule establishing the type and

quantum of evidence sufficient to meet this burden,” United States v. Chatlin, 51

F.3d 869, 874 (9th Cir. 1995). See United States v. Phipps, 368 F.3d 505, 515

(5th Cir. 2004) (affirming a § 5K2.3 departure based on “the unrebutted

statements by the victim establish[ing] that she has suffered extraordinary

psychological injury”), vacated on other grounds by Gilley v. United States, 543

U.S. 1104 (2005); United States v. Oliver, 118 F.3d 562, 567 (7th Cir. 1997)

(finding no error in the district court’s decision to depart upward under § 5K2.3

based solely on “a psychologist’s report establishing the psychological damage to

the victim”); United States v. Anderson, 5 F.3d 795, 804–05 (5th Cir. 1993)

(finding that a victim’s letter describing substantial changes in her psychological

and behavioral functioning was, alone, a sufficient basis on which to depart under

§ 5K2.3); cf. United States v. Fawbush, 946 F.2d 584, 586 & n.2 (8th Cir. 1991)

(finding inadequate evidence that either of the victims suffered psychological

injury greater than “normal” where the district court did not have the benefit of

expert testimony and the only evidence presented was that one victim “has been

participating and continues to participate in individual group and family

therapy”).

Furthermore, although it certainly may be prudent for prosecutors in most

instances following Okane to present comparative evidence indicating the

“normal” level of psychological injury inflicted on victims of the offense of

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conviction, we have never held that the government must always put forth such

comparative evidence before a district court may depart under § 5K2.3. 5 See,

e.g., Atkinson, 1995 WL 620142, at *6 (“Okane established a general rule, but it

did not and could not purport to address every circumstance in every conceivable

case.”). 6 Nor are we inclined to do so now. District courts enjoy an “institutional

5
In Okane, we specifically did not decide “the manner in which the
prosecution might attempt to carry its burden” in showing departure under
§ 5K2.3 to be warranted; instead, we commented only that “reliance on an expert
witness would likely be sufficient, but not necessary.” Okane, 52 F.3d at 836 n.8
(emphasis added); cf. Zamarripa, 905 F.2d at 341 (holding that the district court
clearly erred in departing under § 5K2.3 where “the parties stipulated the [expert
witness] was unable to state that the harm to the victim was greater than normal”
and “the presentence report . . . add[ed] nothing to support a finding of unusual
psychological injury”). Ignoring the ramifications of our decision in Okane, Mr.
Begaye nevertheless asserts in his opening brief that the district court abused its
discretion in departing upward because “expert testimony is [required] to
determine typical psychological injuries for purposes of § 5K2.3,” and none was
provided in this case. Aplt. Opening Br. at 12. Not only has this circuit not
adopted that position, but several of our sister circuits have declined to do so as
well. See Chatlin, 51 F.3d at 874 (holding that expert testimony was not needed
to support a departure under § 5K2.3); Anderson, 5 F.3d at 805 (“While some
testimony by a counselor or other expert in psychology would certainly be of
value in determining this issue, such evidence is not always a prerequisite for a
[§ 5K2.3] departure.”); United States v. Miller, 993 F.2d 16, 21 (2d Cir. 1993)
(affirming a § 5K2.3 departure without expert testimony).
6
This issue was squarely at the forefront of our unpublished decision
in Atkinson, where a panel of this court held that a departure under § 5K2.3 is
justifiable even without an offering of comparative injury so long as the extreme
nature of the psychological injury is “self-evident.” 1995 WL 620142, at *6. We
recognize, of course, that Atkinson is not binding precedent; however, given its
factual similarity, we find its reasoning particularly persuasive.

In Atkinson, the defendant appealed an upward departure under § 5K2.3,
claiming, as Mr. Begaye does here, that the district court erred in finding that his
(continued...)

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advantage” in making departure decisions because “they see so many more

Guidelines sentences than appellate courts do.” Gall, 552 U.S. at 52 (quoting

Koon v. United States, 518 U.S. 81, 98 (1996)) (internal quotation marks

omitted); see also Robertson, 568 F.3d at 1213–14 (“This standard accounts for

the district court’s ‘extensive experience in applying the Guidelines,’ a familiarity

6
(...continued)
victims had suffered extreme psychological injury because it failed to first make a
finding as to what constituted “normal” psychological injury for the victim of the
offense of conviction—specifically, the transmission of threats in interstate
commerce. In departing, the district court had relied on statements by the victims
to the effect that, due to Mr. Atkinson’s threats, they had become “prisoners in
[their] own homes,” they suffered from “paralyzing fear,” and had forsaken any
hope of future intimate relationships. Id. at *5. One even went so far as to plan
suicide, hoping that Mr. Atkinson would “settle for [her] death and leave [her]
mother, two daughters, and granddaughter alone.” Id.

In affirming the district court’s departure, we recognized that Okane
established only a “general” rule, and that “we have never required empty form
when the substance is evident”:

Thus, for example, in a case where a person receiving a threat
drops dead of shock, no one can seriously argue that the district
court should make a separate finding that “normal” injury from
receiving a threat does not include dropping dead. Some things
are self-evident.

Id. at *6. We then concluded that it was clear that implicit within the district
court’s holding was the finding that the injury that “normally” results from the
crime of conviction “does not include the entire panoply of plans for suicide,
being a prisoner in one’s home, foreclosure from new relationships, ongoing
medical care and medication, irrevocable lifestyle changes attested to by
neighbors, friends, and a therapist, and more.” Id.

We find the logic in Atkinson compelling, and it guides much of our
decision here.

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we lack.” (quoting United States v. Shumway, 112 F.3d 1413, 1427 (10th Cir.

1997))). And we believe that when it is patent that the psychological injury to the

victim is “much more serious than normally resulting from commission of the

offense,” it would be a needless exercise in form over substance to require the

presentation of comparative evidence and explicit court findings regarding that

evidence as a predicate for a departure under § 5K2.3. See, e.g., Oliver, 118 F.3d

at 567 (“[W]e have not required a comparative analysis where the evidence

revealed substantial psychological damage.”). 7

7
A number of other courts have similarly found comparative evidence
unnecessary to support a departure under § 5K2.3. See Chatlin, 51 F.3d at 874
(affirming a § 5K2.3 departure when a psychologist’s report “guided the court’s
decision to depart upward” despite the fact that neither the report, nor any of the
other evidence adduced by the government, indicated what a “normal” level of
psychological suffering was for victims of the crime of conviction); Anderson,
5 F.3d at 804–05 (upholding departure under § 5K2.3 based solely on a letter
from the victim describing the psychological consequences of her victimhood; no
comparative evidence was required); United States v. Ellis, 935 F.2d 385, 396 (1st
Cir. 1991) (requiring no comparative evidence to support an upward departure
under § 5K2.3 based on a counselor’s report that the victim had suffered “extreme
stress, fear of physical harm to herself and her family, and guilt over these
traumatic experiences”); United States v. Pergola, 930 F.2d 216, 219 (2d Cir.
1991) (affirming upward departure under § 5K2.3 based on the victim’s
statements and the nature of the undisputed crimes committed; no comparative
evidence required); see also United States v. Mitchell, No. 96-6292, 1997 WL
325920, at *3 (10th Cir. June 16, 1997) (“Despite the government’s failure to
produce evidence of the psychological injury normally resulting from the
communication of a threat, and the resulting failure of the court to make a finding
on this matter, we do not think a remand is necessary here.” (citation omitted));
Atkinson, 1995 WL 620142, at *5–6; cf. United States v. Thin Elk, 321 F.3d 704,
709 (8th Cir. 2003) (holding that a court may depart under § 5K2.3 when
“psychological injury was present to an exceptional degree”; no comparative
evidence required).

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 We are presented with just such a case here. The record is rife with

evidence of the extreme nature of Ja.B.’s psychological injuries. At sentencing,

the district court had before it multiple professional assessments—uncontested by

Mr. Begaye—diagnosing Ja.B. with post-traumatic stress disorder and chronic

anxiety, and indicating that she suffered from recurrent dreams and hallucinations

that required medication. As a result of her trauma, Ja.B., according to one

professional, “was not oriented for person, place and time.” R., Supp. Vol. V, at

80 (Mental Health Assessment, dated Apr. 2, 2008). Another described her as

“fearfully dependent, socially anxious, and protectively sad.” Id. at 106

(Psychosocial Assessment, dated May 1, 2008).

Furthermore, an assessment of Ja.B. conducted several months after she

was taken from her father’s home indicated that,

[f]earful of further rebuff, [Ja.B.] is likely to withdraw from
painful peer and family relationships in an effort to prevent
herself from venting her dismay more directly.

She may experience increasing loneliness and isolation.
Her underlying tension and emotional dysphoria are present in
disturbing mixtures of anxiety and sadness.

Id. at 106–07. The report continued:

Over an extended period of time, this uncomfortable and lonely
girl has developed a pattern of dejection and discouragement.
Blue, lacking in self-esteem, and fearful of provoking the ire of
others, she may have become pessimistic about her future. What
few pleasures she used to have may have diminished.

Id. at 107. The expert concluded by warning that Ja.B.’s trauma may result in a

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“shrinking of her personal milieu.” Id. at 108.

Perhaps most significantly, these reports indicated that Ja.B.’s symptoms

persisted, and in some cases worsened, over a nine-month period following her

removal from her home. The experts anticipated an “[o]ngoing” length of

treatment, id. at 84 (Mental Health Assessment, dated July 16, 2008), and one

professional cautioned that Ja.B.’s treatment “may prove slow and arduous,” id. at

108. These reports reveal a child suffering severe, debilitating, and potentially

long-term psychological damage as a result of Mr. Begaye’s illicit conduct. On

this record, it is clear to us that the district court’s finding of extreme

psychological injury to Ja.B. subsumed the predicate finding that the “normal”

injury of a victim of aggravated sexual assault does not include the full array of

discouraging symptoms exhibited by this young girl. As a result, we cannot

conclude, as Mr. Begaye requests, that the district court effectively committed

clear error in finding that Ja.B. suffered greater psychological injury than normal.

Moreover, we believe the approach adopted here today is more consistent

with our “appellate responsibility” in the wake of Williams v. United States, 503

U.S. 193 (1992) 8—namely, that “we should not remand if we are satisfied, as we

are, that the district court would impose the same, reasonable sentence if we

8
In Williams, the Supreme Court held that an appellate court can
affirm a sentence, even if a district court relied on an improper ground in
departing, so long as it is persuaded that the district court “would have imposed
the same sentence absent the erroneous factor” and that the “departure is
reasonable.” 503 U.S. at 203.

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require it to articulate with the detail specified [in our case law].” United States

v. O’Dell, 965 F.2d 937, 939 (10th Cir. 1992); accord United States v. Tisdale, 7

F.3d 957, 965 n.8 (10th Cir. 1993). Where, as here, the victim’s severe

psychological injury is patent on the face of the record, it would be an empty

exercise for us to send this case back to the district court to elicit additional

evidence and make a further, explicit finding of fact regarding the “normal” level

of psychological injury suffered by victims of aggravated sexual assault. We

have no doubt that, were we to do so in this instance, the district court would

invariably impose the same sentence on remand.

Mr. Begaye also makes two further arguments against the district court’s

decision to depart under § 5K2.3, neither of which gives us significant pause. In

the first instance, Mr. Begaye suggests that, regardless of our view on the need

for comparative evidence, an inadequate record exists to warrant this departure

because “the prosecutor’s conclusory assertions [that Ja.B. suffered extreme

psychological harm are] [in]sufficient to carry the government’s burden” in this

case. Aplt. Opening Br. at 12. To be sure, a district court cannot depart upward

based solely on the unfounded claims of the government. See Okane, 52 F.3d at

835 (government has the burden of showing, by a preponderance of the evidence,

that the psychological injury inflicted was greater than normal); Zamarripa, 905

F.2d at 340–41 (same); cf. United States v. Lara, 975 F.2d 1120, 1127–28 (5th

Cir. 1992) (finding that a § 5K2.3 departure was not justified by the findings of a

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presentence report, which contained only conclusory statements concerning the

psychological injury to the victim). But that is not the case here, and in arguing

otherwise Mr. Begaye overlooks the nature of the record before the district court

at sentencing.

As noted supra, when the district court conducted its departure assessment,

it had before it a number of uncontested reports by medical professionals attesting

to the significant psychological injury that Mr. Begaye inflicted upon his

daughter. Additionally, the very nature of Mr. Begaye’s conduct provided an

additional basis beyond the reports for the district court’s § 5K2.3 determination.

In explaining its departure decision, the district court explicitly focused on the

repetitive and prolonged nature of the abuse, concluding that Mr. Begaye’s

conduct qualified as “unusually heinous, cruel, brutal or degrading.” R., Vol. II,

Tr. at 30–31. We believe, as do several of our sister circuits, that this type of

extreme perpetrator conduct is very germane to whether the victim’s

psychological injury is “much more serious than that normally resulting from

commission of the offense,” as required by § 5K2.3. See, e.g., Phipps, 368 F.3d

at 515–16 (“[W]e find that the district court’s additional ground for

departure—the extreme nature of the defendants’ conduct—further supports our

conclusion that the victim sustained extraordinary psychological damage.”);

Anderson, 5 F.3d at 805 (“We are supported in [our § 5K2.3 determination] by the

last ground for departure, the heinousness of the defendants’ conduct, which

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provides strong grounds for departure.”); Pergola, 930 F.2d at 219 (“Where the

psychological injury caused by the defendant results from prolonged and repeated

misconduct, it is difficult to assess the effect without considering the conduct

itself.”); see also Mitchell, 1997 WL 325920, at *4 (relying on defendant’s

conduct in affirming an upward departure under § 5K2.3). Thus, Mr. Begaye’s

belief that the district court relied on “conclusory assertions” by the government

when departing under § 5K2.3 is without basis; it is clear that the district court

was referring to factors beyond the government’s claims when it found that “the

facts indicate [that] a psychological injury and a physical injury more serious than

normal has been demonstrated to the Court in this case.” R., Vol. II, Tr. at 31

(emphasis added).

As a final challenge to the district court’s departure under § 5K2.3, Mr.

Begaye asserts that the application of this provision was inappropriate because

“the evidence that is available in the record suggests that sources other than her

father’s abuse, however deplorable, could account for some of Ja.B.’s symptoms.”

Aplt. Opening Br. at 12. In support of this contention, Mr. Begaye notes that both

of Ja.B.’s parents were abusive, albeit in different ways, and that the

government’s own assessment of the girl indicated that a “significant family

history may suggest that she is genetically or neurologically predisposed to

anxiety problems.” Id. at 13. Even assuming both to be true, this is not enough

to reverse Mr. Begaye’s sentence. To prevail, Mr. Begaye must demonstrate that

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the district court’s determination that his conduct was at least the principal

catalyst for Ja.B.’s extreme psychological injury was essentially clearly

erroneous. See Alapizco-Valenzuela, 546 F.3d at 1216 n.2; see also Todd, 515

F.3d at 1135 (noting that, in sentencing challenges, factual findings are reviewed

only for clear error). In simply pointing to other factors that might have impacted

Ja.B.’s psychological condition, Mr. Begaye utterly fails to carry his burden of

proof. See United States v. Cardenas-Alatorre, 485 F.3d 1111, 1119 (10th Cir.

2007) (recognizing that “[m]erely providing an alternative interpretation of the

facts . . . will not suffice” to meet the appellant’s burden under the clear-error

standard). We hold, therefore, that the district court did not abuse its discretion

in departing under § 5K2.3.

C. Departure for Extreme Conduct Under § 5K2.8

In addition to departing based on the psychological injury to Ja.B., the

district court departed upward based on Mr. Begaye’s extreme conduct under

§ 5K2.8, stating that it “[found] that the crime that was committed, looking at all

of the facts and circumstances, represented a crime that was unusually heinous,

cruel, brutal or degrading to the victim.” R., Vol. II, Tr. at 30–31. 9 In explaining

9
The policy statement to § 5K2.8 provides:

If the defendant’s conduct was unusually heinous, cruel, brutal,
or degrading to the victim, the court may increase the sentence
above the guideline range to reflect the nature of the conduct.
Examples of extreme conduct include torture of a victim,
(continued...)

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its decision to depart upward, the district court referred only to “the fact that [Mr.

Begaye] repeatedly had improper sexual intercourse with his young daughter

over, the facts demonstrate . . . , a period of years.” Id. at 31. 10

Echoing his argument against the application of § 5K2.3, Mr. Begaye

claims that the district court’s departure under § 5K2.8 is unsupported by the

record because “[t]he government offered no evidence to suggest that [his]

conduct in this case was more ‘heinous, cruel, brutal, or degrading to the victim’

9
(...continued)
gratuitous infliction of injury, or prolonging of pain or
humiliation.

U.S.S.G. § 5K2.8 p.s.
10
Mr. Begaye asserts in his opening brief that the district court’s
decision to depart under § 5K2.8 was based on impermissible factors previously
accounted for in the calculated Guidelines range. In making this argument, Mr.
Begaye latches on to the fact that, at sentencing, the government urged
application of § 5K2.8 based on his use of force and the fact that his victim was a
child. He insists that “[i]t cannot be the case that the elements of the offense of
conviction can serve as a basis for an upward departure for extreme conduct; in
arguing that force was involved, the government has done no more than allege
[that he] committed the offense.” Aplt. Opening Br. at 9. Furthermore, he notes
that Ja.B.’s young age was factored into his Guidelines range by virtue of two
offense-level enhancements that were applied as a result of the victim being under
the age of twelve and under his “custody, care, or supervisory control.” Id. at 10.
Mr. Begaye, however, mistakes the basis for the district court’s decision to
depart.

Although the government may have advocated for a departure based on the
use of force and the victim’s young age, the district court did not rely on those
factors when issuing its sentence. Rather, the district court departed because Mr.
Begaye “repeatedly had improper sexual intercourse with his young daughter over
. . . a period of years.” R., Vol. II, Tr. at 31 (emphasis added).

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than that of other perpetrators of aggravated sexual abuse.” Aplt. Opening Br. at

8 (emphasis added). Mr. Begaye contends, in other words, that § 5K2.8 demands

that evidence be adduced establishing the “typical” case involving the crime of

conviction, thereby creating a baseline against which the defendant’s behavior can

be compared.

As before, Mr. Begaye mistakes what is required to support the departure at

issue. Nothing in the language of § 5K2.8 compels a district court to first

establish the “typical” perpetrator offense conduct for this crime before departing

under this provision. See, e.g., United States v. Queensborough, 227 F.3d 149,

159 (3d Cir. 2000) (noting that the district court need not establish the contours of

“a typical sexual assault case” prior to departing under § 5K2.8). Rather, “[t]hat

section only requires that the court determine that the conduct involved ‘was

unusually heinous, cruel, brutal, or degrading.’” Id. (emphasis added) (quoting

U.S.S.G. § 5K2.8 p.s.). This much is clear from the language of Guidelines. See

United States v. Nacchio, 573 F.3d 1062, 1066 (10th Cir. 2009) (“We interpret the

Sentencing Guidelines according to accepted rules of statutory construction. In

interpreting a guideline, we look [first] at the language in the guideline

itself . . . .” (quoting United States v. Robertson, 350 F.3d 1109, 1112 (10th Cir.

2003))). Had the Sentencing Commission intended to require the type of explicit

comparison Mr. Begaye advocates, it very likely would have used more specific

comparative language, as it did in § 5K2.3. The Sentencing Commission could

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have, for instance, indicated that departure under § 5K2.8 was appropriate only

where the defendant’s conduct was “unusually heinous, cruel, brutal, or degrading

to the victim when compared to the conduct normally involved in the commission

of the offense.” Significantly, it did not do so. Mr. Begaye’s assertion that the

government was required to present evidence establishing the “typical”

perpetrator conduct in an aggravated sexual assault before the district court could

depart under § 5K2.8 is simply without foundation in the Guidelines text, and

thus we reject it.

Further, even reading Mr. Begaye’s argument as simply asserting that there

was an inadequate factual basis for the district court to determine that his conduct

was “unusually heinous, cruel, brutal, or degrading,” his claim would still fail.

Mr. Begaye engaged in an extended campaign of abuse wherein he sexually

assaulted his daughter on a regular basis for a number of years. The victimization

of Ja.B. was both prolonged and unrelenting. The district court found as much,

and Mr. Begaye does not now challenge this finding on appeal. In this circuit,

“an upward departure may be supportable on the basis of [a defendant’s] multiple

sexual contacts with the same victim.” Zamarripa, 905 F.2d at 341 (emphasis

added); see also Chatlin, 51 F.3d at 873 (“While repetitive conduct is not

specifically mentioned in the guidelines, it is an acceptable basis for an upward

departure.”); Anderson, 5 F.3d at 803–05 (finding no abuse of discretion when the

district court departed upward under § 5K2.8 based on “the number and nature of

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the repeated sexual abuses imposed upon the victim” (emphasis added)). We

believe that “[t]he repeated sexual assault of [a victim] is precisely the sort of

‘extreme conduct’ contemplated by § 5K2.8.” United States v. Barragan-

Espinoza, 350 F.3d 978, 983 (9th Cir. 2003); cf. Fed. Sent. L. & Prac. § 5K2.8

(2011) (“Departures under [§ 5K2.8] . . . often involve factors that are accounted

for by the guidelines, but which are present to an unusual degree.”).

The repetitive nature of Mr. Begaye’s abuse supports the district court’s

finding that his conduct met the requirements of § 5K2.8. However, the

temporally protracted nature of Mr. Begaye’s criminal conduct also underscores

our conclusion that the court committed no error. The extended nature of Mr.

Begaye’s pernicious behavior leaves no doubt that this was no “routine”

aggravated sexual assault (if one could ever label an aggravated sexual assault as

“routine”). This type of prolonged victimization clearly resides beyond the

bounds of “usual” criminal behavior, and thus properly supported the district

court’s departure for “extreme conduct.” See United States v. Gary, 18 F.3d

1123, 1130 (4th Cir. 1994) (affirming a § 5K2.8 departure where the “extended

nature” of the defendant’s threatening conduct toward the victim “prolonged [her]

pain and humiliation”). Considering all of this, we easily conclude that the

district court also did not abuse its discretion in departing under § 5K2.8.

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D. The District Court’s Explanation for Its Sentencing Decision

Finally, Mr. Begaye asserts—for the first time on appeal—that the district

court erred by failing to “explain the extent of the departure with th[e] degree of

specificity necessary.” Aplt. Opening Br. at 14. Mr. Begaye contends that “[i]t is

not only the fact of a departure but its degree that district judges are obliged to

explain,” and suggests that the district court, by “ma[king] only [a] passing

reference to the 18 U.S.C. § 3553(a) factors,” did not properly articulate its basis

for imposing its selected sentence. Aplt. Opening Br. at 14–15.

Because Mr. Begaye did not object to the district court’s explanation for its

departure decision at sentencing, we review this claim only for plain error.

United States v. Romero, 491 F.3d 1173, 1176–78 (10th Cir. 2007); see also

United States v. Uscanga-Mora, 562 F.3d 1289, 1293 (10th Cir.) (“[P]lain error

review obtains when counsel fails to render a contemporaneous objection to the

procedural adequacy of a district court’s statement of reasons at sentencing.”),

cert. denied, 130 S. Ct. 289 (2009). Under the rigorous plain-error standard, a

defendant has the burden of showing “(1) an error, (2) that is plain, which means

clear or obvious under current law, and (3) that affects substantial rights. If he

satisfies these criteria, this Court may exercise discretion to correct the error if it

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Goode, 483 F.3d 676, 681 (10th Cir. 2007)

(quoting United States v. Kimler, 335 F.3d 1132, 1141 (10th Cir. 2003)) (internal

- 27 -
quotation marks omitted); accord United States v. Sprenger, 625 F.3d 1305, 1306

(10th Cir. 2010), cert. denied, 131 S. Ct. 1030 (2011).

A departure decision “will in most cases be due substantial deference, for it

embodies the sentencing court’s traditional exercise of discretion.” Koon, 518

U.S. at 98; accord United States v. Goldberg, 295 F.3d 1133, 1138 (10th Cir.

2002). However, that discretion is not limitless. When a district court imposes a

sentence outside the Guidelines range, it must state “the specific reasons for the

imposition of [the] sentence.” 18 U.S.C. § 3553(c)(2). There is no hard-and-fast

rule dictating what a sentencing court must say by way of explaining its chosen,

non-heartland sentence. However, “[d]istrict courts must expressly articulate not

only the legal and factual reasons for a departure, but also the logical foundation

for the degree of departure selected.” Robertson, 568 F.3d at 1214; see also

United States v. Proffit, 304 F.3d 1001, 1012 (10th Cir. 2002) (“Simply restating

the justification for upward departure ‘does not fulfill the separate requirement of

stating the reasons for imposing the particular sentence.’” (quoting United States

v. Flinn, 987 F.2d 1497, 1502 (10th Cir. 1993))).

Even assuming, arguendo, that the district court’s explanation was

insufficient, “the plain error test renders this a Pyrrhic victory.” Robertson, 568

F.3d at 1215. As noted, in order to prevail under plain-error review, the appellant

must also show that the error affected his substantial rights. In this context, Mr.

Begaye must demonstrate that, “but for the claimed error, [his] sentence would

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have been . . . different.” Uscanga-Mora, 562 F.3d at 1295. Mr. Begaye fails to

advance any argument as to how this error affected his sentence, and thus utterly

fails to carry his burden. See United States v. Vonn, 535 U.S. 55, 62–63 (2002)

(“When an appellate court considers error that qualifies as plain, . . . the

defendant who sat silent at trial has the burden to show that his ‘substantial

rights’ were affected.”); accord United States v. Small, 423 F.3d 1164, 1190 n.15

(10th Cir. 2005) (“[I]n the plain-error context, . . . the defendant has the burden to

show an effect on substantial rights.”). Accordingly, even if the district court

clearly or obviously erred in explaining the degree of Mr. Begaye’s upward

departure—an issue that we need not reach—Mr. Begaye’s claim still fails under

the third prong of the plain-error test. See Robertson, 568 F.3d at 1215.

III. CONCLUSION

For the foregoing reasons, we AFFIRM Mr. Begaye’s sentence.

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09-4075, United States v. Begaye

POLLAK, District Judge, dissenting.

I join the court’s opinion insofar as it affirms the District Court’s

imposition of an upward departure for unusually heinous conduct under § 5K2.8

of the Sentencing Guidelines. I dissent, however, from the court’s affirmance of

the upward departure imposed under § 5K2.3. In United States v. Okane, 52 F.3d

828 (10th Cir. 1995), this court held that a § 5K2.3 upward departure may only be

granted where “there [is] some evidence of: (1) the nature of the injury actually

suffered by the victims in this case, and (2) the psychological injury ‘normally

resulting from the commission of the offense.’” Id. at 835 (quoting U.S.S.G. §

5K2.3). The second of these requirements derives from the text of § 5K2.3 itself,

which states that “the court may increase the sentence above the authorized

guideline range” “if a victim or victims suffered psychological injury much more

serious than that normally resulting from commission of the offense.” U.S.S.G.

§ 5K2.3 (emphasis supplied); see also Okane, 52 F.3d at 835 (“Thus, there must

be some evidence of both of these elements in order to enable the sentencing

court to determine whether the injury actually suffered is sufficiently serious,

relative to the normal injury incurred, to warrant a departure.”). In this case, the

government submitted no evidence of any kind concerning the psychological

harms that “normally result” from conduct as monstrous as Begaye’s. The
imposition of an upward departure under § 5K2.3 is, accordingly, inconsistent

both with the text of the Guidelines and with Okane.

To overcome this inconsistency, the majority relies on authority from

outside this circuit and on United States v. Atkinson, 70 F.3d 1282 (table), 1995

WL 620142 (10th Cir. Oct. 16, 1995), an unpublished decision of this court.

Atkinson, however, excused the government from presenting evidence of the

psychological harm that normally results from a crime of conviction that would

not, under normal circumstances, result in any serious psychological harm to the

victim. Atkinson, 1995 WL 620142, at *1,*6 (reviewing sentence imposed for the

crime of making a threatening interstate communication). By contrast, Begaye’s

conduct—the repeated forcible rape of his young daughter—was so heinous, and

the aggravated sexual abuse to which he pled guilty so serious, that Ja.B.’s

psychological injuries, while unquestionably severe, are anything but “self-

evident[ly]” abnormal or unexpected under the circumstances. Id. at *6. And

although certain sister circuit precedent cited by the court is contrary to the rule

announced in Okane, see, e.g., United States v. Oliver, 118 F.3d 562, 567 (7th

Cir. 1997), Okane is binding in this circuit. It is, therefore, my respectful

submission that neither Atkinson, nor the other precedent relied upon by the court,

can sustain the court’s holding.

-2-