FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30093
Plaintiff-Appellee, D.C. No.
v. 4:09-cr-00089-
MARVIN JEROME FASTHORSE, SEH-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted January 12, 2011*
Seattle, Washington
Filed April 1, 2011
Before: Susan P. Graber, Raymond C. Fisher, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
4365
UNITED STATES v. FASTHORSE 4367
COUNSEL
Marcia Hurd, Assistant United States Attorney, Billings,
Montana, for the plaintiff-appellee.
Evangelo Arvanetes, Assistant Federal Defender, Great Falls,
Montana, for the defendant-appellant.
OPINION
M. SMITH, Circuit Judge:
A jury convicted defendant Marvin Jerome Fasthorse of
sexual abuse in violation of 18 U.S.C. § 2242(2)(B). On
appeal, he contends that there was insufficient evidence to
support the conviction, and that his sentence was procedurally
erroneous and substantively unreasonable. We disagree, and
affirm the conviction and sentence.
BACKGROUND
Sometime in the late evening of November 9, 2008, or the
early morning of November 10, 2008, Fasthorse engaged in
4368 UNITED STATES v. FASTHORSE
sexual intercourse with the victim. At trial, the victim testified
that she had been drinking and smoking marijuana throughout
the day on November 9, and that she remembered waking up
that night while Fasthorse was having sex with her. Fasthorse
testified that she “wasn’t asleep” and that she consented to
having sex with him. Both the prosecution and defense pres-
ented witnesses addressing the two main witnesses’ credibil-
ity and corroborating various aspects of their competing
versions of events.
After deliberating for about three hours, the jury found
Fasthorse guilty. The district judge imposed a within-
Guidelines sentence of 130 months imprisonment.
JURISDICTION AND STANDARD OF REVIEW
The district court exercised jurisdiction under 18 U.S.C.
§§ 1153(a), 3231, and 3242, and we exercise jurisdiction
under 28 U.S.C. § 1291. We review the sufficiency of the evi-
dence de novo, United States v. Bennett, 621 F.3d 1131, 1135
(9th Cir. 2010), which requires us “to determine whether
‘after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt,’ ”
United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir.
2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)). We review the sentence for abuse of discretion.
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en
banc). “It is an abuse of discretion for a district court to apply
the Guidelines to the facts in a way that is ‘illogical, implausi-
ble, or without support in inferences that may be drawn from
the facts in the record.’ ” United States v. Treadwell, 593 F.3d
990, 999 (9th Cir.) (quoting United States v. Hinkson, 585
F.3d 1247, 1263 (9th Cir. 2009) (en banc)), cert. denied, 131
S. Ct. 280, 131 S. Ct. 281, and 131 S. Ct. 488 (2010).
UNITED STATES v. FASTHORSE 4369
DISCUSSION
I. Conviction
Fasthorse was convicted of violating 18 U.S.C.
§ 2242(2)(B), which prohibits “knowingly . . . engag[ing] in
a sexual act” with a person who is “physically incapable of
declining participation in, or communicating unwillingness to
engage in, that sexual act.” See also id. § 2246(2) (defining
“sexual act”). Fasthorse contends that there was insufficient
evidence from which a rational juror could conclude that the
victim was “physically incapable of declining participation in,
or communicating unwillingness to engage in, th[e] sexual
act.”
[1] We agree with the reasoning of the Eighth Circuit that
“[a] reasonable jury may conclude that a person who is asleep
when a sexual act begins is physically unable to decline par-
ticipation in that act.” United States v. Wilcox, 487 F.3d 1163,
1169 (8th Cir. 2007) (citing United States v. Barrett, 937 F.2d
1346, 1347-48 (8th Cir. 1991)). If the victim testifies that she
woke up while the sexual act was ongoing, this “provide[s]
sufficient evidence for the jury to conclude that penetration
occurred while she was asleep.” Id.; see also United States v.
Smith, 606 F.3d 1270, 1281 (10th Cir. 2010) (holding that evi-
dence was sufficient where, inter alia, the victim “woke up to
find [the defendant] on top of her and engaged in sex”); cf.
United States v. Peters, 277 F.3d 963, 967-68 (7th Cir. 2002)
(holding that evidence was insufficient where the record was
silent with respect to the hour-and-a-half period in which the
sexual act occurred); United States v. Williams, 89 F.3d 165,
168 (4th Cir. 1996) (holding that evidence was insufficient
where the victim testified that she was awake and “communi-
cated her desire not to have sexual intercourse” with the
defendant).
[2] Here, the jury heard unequivocal testimony that the
victim remembered “waking up, because somebody was on
4370 UNITED STATES v. FASTHORSE
top of me. Inside of me.” When asked whether “Marvin
Fast[h]orse ha[d] his penis already inside” her when she
“woke up,” she answered “[y]es.” The victim’s drug use is not
inconsistent with and does not discredit her testimony that she
was asleep when the sexual intercourse began. See Smith, 606
F.3d at 1281 (noting that the victim “was heavily intoxicated
before the assault”); Barrett, 937 F.2d at 1348 (noting that
“[t]he victim testified that on the evening before the assault,
she had drunk eight beers and smoked a marijuana cigarette,”
that “she went to sleep” around midnight, and “was very tired
because of the hour and her previous day’s activities”). The
jury also heard from corroborating witnesses that the victim
gave the same account of events shortly after the assault.
Although Fasthorse testified that the victim “wasn’t asleep”
and consented to the sexual act, the jury rejected his version
of events.
[3] The verdict was supported by the jury’s “credibility
assessments” and “reasonable inference[s]” drawn from the
evidence, not “mere speculation.” Nevils, 598 F.3d at 1167,
1170.1 We reject Fasthorse’s challenge to the sufficiency of
the evidence.
II. Sentence
Fasthorse challenges the district court’s imposition of a
within-Guidelines 130-month sentence, arguing that the sen-
tence was procedurally erroneous and substantively unreason-
able.
[4] The district court satisfied the procedural requirements
of 18 U.S.C. § 3553, as summarized in Carty, 520 F.3d at
1
It is of course conceivable that following heavy drug use a person
might consent to sex, pass out during the sex, then awake during the sex
with no recollection of the consent and believe she must have been asleep
when the sex began. That is not what Fasthorse claimed happened here,
nor would the jury have been obligated to believe him if he had.
UNITED STATES v. FASTHORSE 4371
991-93. The court considered, inter alia, the presentence
report, the relevant sentencing factors, and Fasthorse’s argu-
ments in favor of a lighter sentence. The court then explained
its reasons for imposing a 130-month sentence. There was no
procedural error.
[5] The sentence is substantively reasonable. The record
supports the district court’s conclusion that Fasthorse commit-
ted “a very serious crime,” that the victim suffered “serious”
harm, and that Fasthorse’s “record,” “attitude,” and “the cir-
cumstances of this case,” suggest that he “pose[s] a significant
criminal danger to the community.” The record further sup-
ports the district court’s conclusion that there are “no mitigat-
ing factors of significance” warranting a lighter sentence.
Because the facts underlying the sentence are supported by
the record, the district court did not abuse its discretion.
Although Fasthorse contends that he should have received a
108-month sentence rather than a 130-month sentence, “[w]e
may not reverse just because we think a different sentence is
appropriate.” Carty, 520 F.3d at 993.
CONCLUSION
Sufficient evidence supports the jury’s guilty verdict, and
the district court’s sentence is reasonable. The conviction and
sentence are
AFFIRMED.