NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0246n.06
Filed: April 1, 2005
No. 04-1194
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
JOHN LYNN KAVO, ) WESTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant. )
Before: BATCHELDER and DAUGHTREY, Circuit Judges, and O’KELLEY,* District
Judge.
MARTHA CRAIG DAUGHTREY, Circuit Judge. The defendant, John Lynn Kavo,
pleaded guilty to one count of aggravated sexual abuse by force, a crime that occurred “in
Indian Country, on land held in trust by the United States for the use of the Bay Mills Indian
Community.” After a hearing, the district court sentenced Kavo to 121 months in prison,
to be followed by three years on supervised release. On appeal, the defendant reasserts
his objection to the sentencing decision to increase his base offense level for abducting the
victim of the crime. Although we conclude that the district court did not err in finding that
the facts on which the guilty plea was based were legally sufficient to support the
*
The Hon. William C. O’Kelley, United States District Judge for the Northern District of Georgia, sitting
by designation.
No. 04-1194
conclusion that the victim had been abducted, we further conclude that the case must be
remanded for re-sentencing in the wake of the Supreme Court’s recent opinion in United
States v. Booker, 125 S. Ct. 738 (2005), and the Sixth Circuit cases applying Booker,
including United States v. Oliver, 397 F.3d 369 (6th Cir. 2005), and United States v.
Barnett, 398 F.3d 516 (6th Cir. 2005).
FACTUAL AND PROCEDURAL BACKGROUND
After spending the evening at a local casino with the parents of the victim in this
case (identified as “I.B.” in the indictment), the defendant was invited to come to their home
“for drinks.” I.B., described as the defendant’s “former girlfriend,” was also at the casino
with her parents and went to their home as well. At approximately 5:30 a.m., I.B.
announced she was leaving the gathering. Kavo convinced her to give him a ride to the
residence he shared with his sister, but upon arriving at the home, the defendant attempted
to kiss and fondle I.B. against her will. When she began honking the car horn to draw
attention to the situation, Kavo forced himself into the driver’s seat and backed the vehicle
into the driveway.
Although the presentence report claims that Kavo then “forced” I.B. to get out of the
car and enter his house, the defendant denied using any physical force and, according to
the government, the victim “d[id] not recall how she got into the [defendant’s] home.” In any
event, Kavo’s and I.B.’s entrance into the residence awoke the defendant’s sister, who was
sleeping in the living room. Once the sister returned to her bed, Kavo closed the door to
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that room and began kissing I.B. I.B., however, “started saying no, she wanted to go
home.” At that point, the defendant picked up I.B., carried her downstairs to his basement
bedroom, and, against I.B.’s wishes, removed the woman’s pants and underwear and
digitally penetrated the victim’s vagina before she was able to escape and report the
assault.
Initially, Kavo told the authorities that the digital penetration was consensual. Two
weeks later, however, “[h]e admitted he was aware the victim did not want to have sexual
contact with him, but advised he did not think she would get as upset as she did, based
upon his intoxicated state and their past relationship.”
At sentencing, the district judge agreed with the probation officer that § 2A3.1 of the
2003 version of the United States Sentencing Guidelines provided the proper framework
for the defendant’s sentencing calculus. In accordance with the provisions of that guideline
section, the district court began with a base offense level of 27, see UNITED STATES
SENTENCING GUIDELINES § 2A3.1(a) (2003), then increased by four levels because the crime
was committed by force or threat, see id. at § 2A3.1(b)(1), and increased by another four
levels because “the victim was abducted.” See id. at § 2A3.1(b)(5). After reducing the
offense level three levels for Kavo’s acceptance of responsibility, the court calculated his
offense level at 32, determined that the appropriate sentencing range was 121-151 months,
and sentenced Kavo to the lowest end of the range, 121 months. The defendant now
appeals, asserting that the guideline for abduction should not have been applied in this
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case and that, therefore, he should have been sentenced as a level-28 offender to a prison
term between 78 and 97 months.
DISCUSSION
Initially, the only issue raised on appeal concerned the propriety of the four-level
enhancement of the defendant’s criminal offense level, based on the district judge’s
conclusion that Kavo abducted his victim during the perpetration of the crime. We review
such legal conclusions regarding the application of the guidelines de novo. See United
States v. Schray, 383 F.3d 430, 432 (6th Cir. 2004). Subsequently, the defendant has
raised a challenge to the enhancement based on Booker. Because this claim was not
presented in the district court, it is reviewed here for plain error only, under the well-
established four-factor analysis constructed by the Supreme Court in United States v.
Olano, 507 U.S. 725, 732-37 (1993). See also Oliver, 397 F.3d at 375-76.
In determining whether the district court correctly concluded that Kavo abducted I.B.
during the commission of the offense, we look first to the language of the guidelines
themselves for direction. Application Note 1 of the Commentary to § 2A3.1 explains that
the term “abducted,” as used in this guideline, is to be given the definition contained “in the
Commentary to § 1B1.1 (Application Instructions).” Application Note 1(A) to that
Commentary provides in turn that “‘[a]bducted’ 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.” Unfortunately,
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however, the guidelines do not offer further assistance in defining exactly what constitutes
a “different location” for purposes of the sentencing scheme.
At the sentencing hearing, the district judge offered his insight into the dilemma by
explaining:
In the case of United States v. Whooten, W-H-O-O-T-E-N, 279 F.3d
58, the First Circuit took up the question of whether the forced movement of
a bank teller at gunpoint to a parking lot was an abduction. The Court began
the analysis by saying they had no difficulty finding that this was a forced
movement, quote, “to a different location,” end quote, which is required by
this guideline. The Court then concluded that discussion by saying as
follows: Quote, “This court has observed that the abduction enhancement
is intended, at least in part, to protect victims against additional harm that
may result from the victim’s isolation, and thus applies whether the abduction
is carried out by threat or by physical force, citation deleted. Regardless of
whether Mee,” M-E-E, “was forced at gunpoint to walk 65 feet toward the
getaway car or the entire 153 to reach the car, Mee faced,” quote, “‘the same
dangerous consequences,’” end quote, of isolation. . . . “Because Whooten
unquestionably placed Mee at risk of harm, which the abduction
enhancement is designed to deter, we are even more convinced that
application of the abduction enhancement is appropriate in this case.”
Similarly, in the Ninth Circuit case of United States v. Mix, 2003 WL
22383528, the defendant was convicted of two counts of kidnaping, five
counts of aggravated sexual abuse, and two counts of assault with a
dangerous weapon. The court addressed the abduction enhancement and
found, quote, “The district court did not err in adjusting Mix’s base offense
level pursuant to USSG Section 2A3.1(b)(5) (abduction), because Mix forced
his victim at knifepoint into a bathroom to continue the assault, end quote,
citing United States v. Jordan, 256 F.3d 922, another Ninth Circuit decision,
and United States v. Whooten, 279 F.3d 58, the First Circuit decision
mentioned just a moment ago.
Looking at the definition in 1B1.1 and these cases, it appears as if the
enhancement would not be appropriate here based upon any role the
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defendant might have played in moving the victim from the car to the house,
particularly inasmuch as she has no recollection of how she got in the house.
But in this case, it appears as if the enhancement is appropriately
applied, given the defendant having admitted that he picked her up and took
her to the basement of this residence. Certainly, a basement of a residence
is more isolated. And just as importantly here, where he’s moving her down
to the basement by force, because his sister was on the first level, one can
reasonably assume that the chances of an assault by force increased
substantially when they were [in] another location in the house where there
was nobody else present. Accordingly, it appears as if the adjustment is
appropriately applied in this case, and the objection is denied.
Decisions from other circuits that have addressed issues of whether victims have
been forced to “a different location” have endorsed this rationale for the guideline
enhancement.1 As the district court noted, for example, the First Circuit observed in
1
The Fifth Circuit in United States v. Hickman, 151 F.3d 446, 462 (5th Cir. 1998), was able to find
“abductions” in circumstances in which the defendant accosted his victims in the parking lots of fast food
restaurants and then forced them inside the establishments. Similarly, other cases involving the transportation
of the victim from one state to another or from outside a building into the structure provide for a relatively easy
determination that an abduction has occurred and that such transportation of the victim has clearly increased
the risk of harm to that innocent person. See, e.g., United States v. Brown, 330 F.3d 1073, 1079 (8th Cir.)
(abduction found when truck driver with permission to drive daughter of friends from Kansas to Texas and
back took victim against her wishes to campground in Arkansas where he raped her), cert. denied, 540 U.S.
975 (2003); United States v. Kills In Water, 293 F.3d 432, 437 (8th Cir. 2002) (abduction occurred because
victim’s ability to escape was greatly impaired when defendant dragged her from outside of an abandoned
trailer into the trailer to rape her); United States v. Taylor, 128 F.3d 1105, 1110 (7th Cir. 1997) (victim was
abducted when she was forced at gunpoint “to go from the parking lot into the bank”); United States v. Young,
No. 02-2097, 2002 WL 31505522 at *1 (8th Cir. Nov. 12, 2002) (victim was abducted by defendant when
defendant, while walking down the road with the victim, pulled her into a friend’s empty house and raped her).
When faced with less obvious scenarios, courts have interpreted the term “a different location” “on
a case by case basis, considering the particular facts under scrutiny, not mechanically, based on the presence
or absence of doorways, lot lines, thresholds, and the like.” Hickman, 151 F.3d at 462. By doing so, the Fifth
Circuit, in United States v. Hefferon, 314 F.3d 211 (5th Cir. 2002), concluded that the victim in that case had
been abducted even though she had not been forced or tricked to leave the grounds of an Air Force lodging
facility. The court did determine, however, that the young girl had indeed been moved to a different location
that made her escape less likely when the defendant tricked her into moving from some trees near the
playground of the facility to an area close to the trash dumpsters when the victim’s siblings approached the
trees and thus threatened to interrupt Hefferon’s efforts to direct the seven-year-old in the commission of
various sexual acts. See id. at 215.
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Whooten that the provision exists “to protect victims against additional harm that may result
from the victim’s isolation.” Whooten, 279 F.3d at 61. Similarly, the Eighth Circuit noted
that “[a]bduction increases the gravity of sexual assault or other crimes because the
perpetrator’s ability to isolate the victim increases the likelihood that the victim will be
harmed.” United States v. Saknikent, 30 F.3d 1012, 1013 (8th Cir. 1994).
In this case, because Kavo physically carried I.B., against her wishes, from the main
floor of the defendant’s home to the defendant’s basement bedroom, the district court held
that Kavo had abducted his victim within the meaning of the sentencing guidelines and was
thus deserving of the four-level enhancement under § 2A3.1(b)(5). We agree with the
district court’s decision that the movement of the victim increased the likelihood of harm
and offered Kavo a better chance to consummate his crime than if he had remained on the
main floor of the home in the immediate area where his sister was sleeping and could have
been summoned to assist the victim. Legally then, we find no error in the district court’s
determination that application of guideline was supported by the facts admitted by the
defendant as part of his guilty plea.
Because the operative facts were admitted by the defendant and are not, therefore,
“judge-made” facts, it could be argued that there is no Booker problem in this case because
there was no Sixth Amendment violation in connection with the district court’s determination
that an abduction occurred. However, the opinion of the so-called “Breyer majority” in
Booker requires a remand for re-sentencing in “all cases on direct review,” regardless of
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whether they involve a Sixth Amendment violation, if the district court acted under the
impression that it was bound to follow the guidelines in sentencing, when the section of the
Sentencing Reform Act that made application of the guidelines mandatory has now been
held unconstitutional and has been excised from the remainder of the Act. See Booker,
125 S. Ct. at 769; Barnett, 398 F.3d at 524.
Because, however, Kavo did not challenge his sentence on Booker grounds before
the district court, we review the district court’s sentencing determination only under Olano’s
plain error standard. See Booker, 125 S. Ct. at 769. As the Supreme Court explained in
Johnson v. United States, 520 U.S. 461, 467 (1997), such review requires us to evaluate
whether we can find plain error that affects substantial rights of the defendant and that, in
our view, seriously affects the fundamental fairness, integrity, or public reputation of judicial
proceedings.
The principle is already well-established that the first two prongs of the Olano
standard are satisfied when the error is evident at the time of appeal. See United States
v. Cotton, 535 U.S. 625, 632 (2002). The government here does not, and indeed cannot,
dispute that district courts, prior to Booker, erroneously, as it now appears, viewed
guideline calculations as mandatory. Because, at the time of appeal, that viewpoint has
clearly been discredited, we must proceed to an analysis of whether Kavo’s “substantial
rights” have been affected.
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Kavo has a right to be sentenced according to a constitutional punishment scheme.
Consequently, absolute adherence by the district court to the mandatory sentencing ranges
of the guidelines prevents the defendant from receiving a sentence truly commensurate
with all aspects of his background and the situation surrounding his commission of the
crime. Moreover, for us to determine now that the 121-month prison sentence was
reasonable without allowing the district judge the required latitude and discretion “would be
tantamount to performing the sentencing function ourselves. . . . That the particular
sentence imposed here might be reasonable is not to say that the district court, now vested
with broader sentencing discretion, could not have imposed a different sentence that might
also have been reasonable.” United States v. Hughes, ___ F.3d ___, ___ n.14, 2005 WL
628224 at *13 (4th Cir. Mar. 16, 2005). This is especially true in situations in which the
sentence imposed falls at the bottom of the sentencing range, implying that the district
judge might well have been more lenient in the exercise of the court’s own discretion.2
Finally, to uphold a sentence crafted under a now-altered framework without allowing
the district court to exercise its discretion in the matter is not only fundamentally unfair, but
serves to undermine the public perception that punishments fit the crime committed and
the criminal who committed it. Indeed, “[w]e would be usurping the discretionary power
2
Of course, it does not logically follow that a sentence longer than the minimum guidelines punishment
indicates an aversion to a lesser sentence in all instances. For example, a district judge, faced with a then-
mandatory 121-151-month sentencing range, might well have sentenced a defendant to 136 months because
of a belief that the circumstances surrounding the crime justified a sentence midway in the range deemed
applicable by the guidelines. Governed only by his or her discretion, however, that sentencer might well
conclude that an appropriate punishment might fall somewhere midway between the statutory minimum
sentence of one year and the 121-month sentence originally imposed.
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granted to the district courts by Booker if we were to assume that the district court would
have given [the defendant] the same sentence post-Booker.” Oliver, 397 F.3d at 380 n.3.
CONCLUSION
For the reasons set out above, we VACATE the district court’s sentencing order and
REMAND the case for further proceedings consistent with this opinion.
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