United States v. Dowd

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-30062
Plaintiff-Appellee, D.C. No.
v.  CR-03-00007-DWM
MATTHEW EVANS DOWD, OPINION AND
Defendant-Appellant.
 ORDER

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding

Submitted January 11, 2005*
Seattle, Washington

Filed August 8, 2005

Before: Mary M. Schroeder, Chief Judge, Susan P. Graber
and Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher

*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

10165
 UNITED STATES v. DOWD 10169

COUNSEL

Darla J. Mondou, Upton, Massachusetts, for the defendant-
appellant.

Joshua S. Van de Wetering, Assistant United States Attorney,
Missoula, Montana, for the plaintiff-appellee.

OPINION

FISHER, Circuit Judge:

A jury convicted Matthew Evans Dowd of violating the
federal interstate domestic violence law. He argues that the
jury did not have sufficient evidence that he forced or coerced
his companion, Danna Johnson, to cross state lines, as the
statute requires, because she had reasonable opportunities to
escape.

Dowd also challenges the district court’s decision to
impose a sentence for the domestic violence crime that is con-
secutive to his sentence for previous drug-related crimes. He
further argues that the district court improperly enhanced his
sentence as a sexual crime in violation of Apprendi v. New
Jersey, 530 U.S. 466 (2000).

We affirm Dowd’s conviction. The evidence demonstrated
that Dowd subjected Johnson to numerous instances of physi-
cal and psychological abuse as they traveled through Mon-
10170 UNITED STATES v. DOWD
tana, Colorado and Utah. Viewed from the perspective of a
reasonable woman in Johnson’s circumstances, the jury could
readily have found that Dowd, through a combination of
actual force and dire threats, compelled Johnson to stay with
him and made her fearful of attempting to flee.

We further affirm Dowd’s sentence because the district
court properly exercised its discretionary authority in impos-
ing a consecutive sentence, and the jury found that Dowd had
committed a sexual assault, making him eligible for the statu-
tory enhancement.

I.

The events giving rise to Dowd’s conviction occurred over
an 8-month period between May and December 2002. Dowd
and Johnson had met before in 1999, in Missoula, Montana,
where Johnson had worked as a respiratory therapist. In
August 2001, after becoming romantically involved, Dowd
and Johnson moved in together, and Johnson, under Dowd’s
influence, began using methamphetamines. Dowd left her a
few months later and shortly thereafter was indicted for distri-
bution and possession of methamphetamine, possession of a
firearm in relation to a drug-trafficking crime and being a
drug user in possession of a firearm. Dowd was arrested and
later pled guilty to two of the counts. He petitioned the court
to attend a drug rehabilitation facility in Butte, Montana,
before his sentencing. In May 2002, he was discharged and
was supposed to surrender to the Missoula Detention Center
within three hours of his release. Instead, he fled.

In the meantime, Johnson had lost her job, quit using drugs
and moved to Colorado. After her move to Colorado, Johnson
contacted Dowd’s mother because Johnson knew Dowd had
been in trouble. Dowd’s mother told Johnson that he was on
probation for six years, working in California and was clean
and sober. Dowd’s mother urged Johnson to speak with Dowd
by phone. They did so, and when Dowd fled the rehabilitation
 UNITED STATES v. DOWD 10171
facility in Missoula in May 2002, he headed to Colorado,
where he knew Johnson was then living.

The two moved in together, but within a week Johnson
realized Dowd was buying drugs. She confronted him one
night about the drug purchases, prompting an altercation at a
local bar. She walked out of the bar to go home, but Dowd
followed her, swung at her and unsuccessfully tried to force
her into the car. Johnson did not return home until many hours
after the incident, thinking it was safe to go back into their
apartment because Dowd did not have a key. Dowd, however,
had broken in and was waiting inside when she entered the
apartment. He punched, raped and tried to suffocate her.
Dowd then told Johnson that they needed to leave the apart-
ment because the neighbors could hear everything, and he no
longer felt safe there. After Dowd said that he planned to
leave and take her with him, Johnson tried to run out of the
apartment to a local convenience store but Dowd overpow-
ered her. Johnson testified that “he said he couldn’t let me go
because he was an escaped felon and I would just rat on him.”
Until that point, she had not known Dowd was an escaped
felon.

Dowd pulled Johnson by the hair and pushed her down the
street, shoving the back of her head until she got into the car’s
driver’s seat. They stopped at a phone booth where Dowd cal-
led his mother. However, Dowd had tied a shoelace to the car
key so that when they stopped, he could pull the key out of
the ignition and take it with him. Without the car key, John-
son could not drive away and did not believe she could run
fast enough to escape on foot.

That night, the pair stayed in a motel because Dowd did not
feel it was safe to return to their apartment, and he was await-
ing money from his mother. Dowd kept close tabs on Johnson
at the motel, for example hovering over her as she checked
into their room. Johnson said she did not try to seek help or
10172 UNITED STATES v. DOWD
escape at that time because she worried that there would be
repercussions for her family.

The next day, they returned to the apartment to pack up
their clothes, dishes and other personal items. The apartment
manager testified that he saw Johnson unloading boxes from
the trunk of her car and that she appeared upset. The manager
also said that while Johnson was at the apartment, Dowd was
at the manager’s house, some two-and-a-half miles away,
doing landscaping work.1

After collecting their belongings, Dowd made Johnson
drive straight from Colorado to Dowd’s mother’s home in
Montana. Johnson did not scream out for help along the way
because she was too afraid for the lives of her grandchildren
and sister, whom Dowd had threatened to kill. On their drive,
Dowd taunted Johnson by asking her: “How did it almost feel
to die today?” Dowd removed the car key at every gas station
or phone break. Johnson said she unsuccessfully tried to ruin
the transmission of the car — hoping that would stop the
progress of their trip — by throwing the car into reverse while
driving at 75 miles an hour. When her plan failed, and seeing
no other options for getting away from Dowd, Johnson
decided during the road trip, “I’ll do what he says and when
we get to his mother’s house, his mother will help me.” But
when they arrived in Montana, Dowd’s mother told Johnson
not to antagonize her son because that would only result in
more beatings. Dowd continued to physically and sexually
abuse Johnson at his mother’s house, where they stayed inter-
mittently over the following weeks. Johnson said Dowd
would wrench her neck and beat her so that she was covered
with bruises. “[H]e would laugh and make fun of me, that I
was walking like an old woman. And it was because I hurt so
bad.”
1
Johnson was not questioned as to why she did not attempt to flee from
Dowd on this occasion.
 UNITED STATES v. DOWD 10173
About a week and a half after arriving in Montana, Johnson
drove Dowd to Utah for three to four days, so that he could
purchase drugs. On a second trip to Utah, Dowd sold items at
pawn shops so he could purchase drugs. On one occasion,
Johnson went into a pawn shop when Dowd was not around.
But Johnson said she was too afraid for her family’s well-
being to run away. When in Utah, Johnson and Dowd stayed
with Dowd’s brother at a motel. The motel manager testified
that at times Johnson would walk around the motel alone, for
example going to the candy machine by herself. The manager
noted that Johnson appeared to have bruises around her eyes.
Johnson testified that during the trips between Montana and
Utah, Dowd was beating her almost every day, and she was
weak from not having eaten. Dowd also brought a gun with
him on the trips to Utah, intending to pawn it while there, and
would threaten Johnson with the gun in the car. The second
trip to Utah lasted about a week before the pair returned to
Montana.

On New Year’s Eve 2002, the two went to a bar in Mon-
tana, where Dowd got drunk. Dowd insisted they leave and
drove the car back to his mother’s house. When they arrived,
Johnson pulled the car key out of the ignition and jumped out
of the car. Johnson then attempted to get into the driver’s seat,
but Dowd grabbed her and threw her down an embankment.
He left her for dead and went into his mother’s house. John-
son was able to get into the car and drive to a friend’s house.

Johnson hid out with different individuals for almost a
month because she heard that Dowd “was hunting me down.”
She eventually called the agents who had been searching for
Dowd since he became a fugitive. A medical expert diagnosed
Johnson with post-traumatic stress disorder. During the medi-
cal interview, Johnson spoke of being repeatedly choked and
showed some signs of injury to her neck. She also had
restricted movement in her jaw.

Dowd was convicted under the federal interstate domestic
violence statute. 18 U.S.C. § 2261(a)(2). The district court
10174 UNITED STATES v. DOWD
sentenced Dowd to 127 months for the violation of the statute
and willful failure to appear for his prior offense. The court
imposed the sentence to run consecutive to the 144-month
undischarged sentence from Dowd’s previous guilty plea for
the drug-related crimes.

II.

Dowd did not move for acquittal under Fed. R. Crim. P. 29.
Thus, his claim that his conviction is not supported by the evi-
dence is reviewed for plain error. United States v. Weber, 320
F.3d 1047, 1050-51 (9th Cir. 2003). A conviction is supported
by sufficient evidence if, “viewing the evidence in the light
most favorable to the government, any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” Id. at 1050.

A district court’s interpretation and application of the sen-
tencing guidelines are reviewed de novo. United States v.
Arellano-Torres, 303 F.3d 1173, 1176 (9th Cir. 2002).
Dowd’s claim that his sentence violates Apprendi also is
reviewed de novo. United States v. Garcia-Guizar, 234 F.3d
483, 488 (9th Cir. 2000).

III.

[1] The federal interstate domestic violence statute requires
that the defendant cause “a spouse or intimate partner to travel
in interstate or foreign commerce . . . by force, coercion,
duress, or fraud.” 18 U.S.C. § 2261(a)(2). As the Fourth Cir-
cuit has explained, the “words ‘force, coercion, or duress’
necessarily require that the victim is a non-consenting partici-
pant in the interstate travel.” United States v. Helem, 186 F.3d
449, 456 (4th Cir. 1999). Dowd argues that despite all the evi-
dence of his physical and psychological abuse of Johnson, the
government failed to prove that Johnson traveled with him
across state lines involuntarily. In particular, he cites various
opportunities she had to escape; that she stayed even when he
 UNITED STATES v. DOWD 10175
was not around, he contends, negates any finding of force or
coercion. We conclude to the contrary — the evidence sup-
ports a finding that Dowd, using both force and coercion (or
duress), caused Johnson to accompany him on their interstate
travels.

[2] First, there was sufficient evidence that Dowd forced
Johnson to cross state lines. The jury heard detailed testimony
from Johnson that Dowd beat and raped her in Colorado just
before his decision to leave for Montana. When she tried to
run for the convenience store, Dowd overpowered her,
dragged her by her hair to the car and made her start driving.
The pair stayed that night at a motel, where Dowd kept close
watch on Johnson. The next day they returned to the apart-
ment to pick up their belongings. Dowd ordered Johnson to
make sure every item of his was out of the apartment, particu-
larly his identification. Once they began driving, Dowd “kept
complete control of the car” by holding onto the key and
threatening to kill Johnson and her family if she did not obey
him.

[3] These acts of physical violence and dominance before
and during the drive from Colorado to Montana could permit
a reasonable juror to find that Dowd caused Johnson to drive
across state lines by force. See United States v. Baggett, 251
F.3d 1087, 1096 (6th Cir. 2001) (holding that jury could find
the defendant forced his wife to cross state lines given his
admission that he had beaten his wife in both states); Helem,
186 F.3d at 455 (holding that defendant’s assault of his victim
in one state, making her afraid of being beaten again and
unable to resist the defendant physically, was sufficient to
establish that defendant forcibly caused her to cross state
lines); see also United States v. Bowe, 309 F.3d 234, 236 (4th
Cir. 2002) (noting that defendant who pled guilty under
§ 2261(a)(2) had forced his estranged wife into an SUV
through physical threats and intimidation, slapping and stab-
bing her during their trip across state lines).
10176 UNITED STATES v. DOWD
Johnson also described repeated acts of violence Dowd
committed against her while at his mother’s home in Mon-
tana, including in between the two trips to Utah. Although
some time elapsed between the beatings and rapes and the
Utah trips, the jury could have reasonably concluded that the
pattern of Dowd’s abuse caused Johnson to join him on these
trips. That Dowd chose to threaten her with a gun reinforces
that Johnson was not a volunteer.

[4] Second, the evidence supported a finding by the jury
that Dowd caused Johnson to cross state lines by coercion or
duress. As to this element of the offense, the district court
(without objection) instructed the jury as follows:

The terms coercion and duress are interchangeable.
Coercion or duress exists when an individual is sub-
ject to actual or threatened force of such a nature as
to induce a well-founded fear of impending death or
serious bodily harm from which there is no reason-
able opportunity to escape.

Dowd contends that because Johnson was sometimes free
from his supervision during their interstate trips and able to
talk with others who could have provided help, she had a rea-
sonable opportunity to escape, thus precluding any claim that
he coerced her to cross state lines.

[5] The district court’s jury instruction, modeled after the
interpretation of § 2261(a)(2) by the Fourth and Sixth Cir-
cuits, properly defined the elements of coercion or duress,
which we shall refer to simply as “coercion.” See Helem, 186
F.3d at 456-57; Baggett, 251 F.3d at 1096. Applying that defi-
nition here, we hold that the jury had overwhelming evidence
from which to find that Dowd coerced Johnson to travel
between the three states. The jury also could have concluded
that Dowd’s systematic physical and psychological coercion
prevented Johnson from escaping earlier than she did. For
example, Johnson testified that she dared not leave Dowd
 UNITED STATES v. DOWD 10177
because she was “too afraid for my daughter and my grand-
children and my sister’s life.” She said that Dowd was always
telling her exactly what to do, and she knew “if I didn’t do it,
exactly what was going to happen.” Dowd closely scripted her
phone conversations with her sister, so that Johnson could do
little more than ask her sister for money. Johnson added that
she was concerned that she would be charged with harboring
a fugitive, a fear Dowd deliberately planted in her mind. She
further said that at times during their journey, she was weak
from not eating and being beaten, and she did not think she
could outrun Dowd even if she tried. Dowd also carried his
gun on their trips to Utah, using it to threaten Johnson.
Finally, Johnson discovered that neither Dowd’s mother nor
his brother would help her escape.

Dowd argues that Johnson had reasonable opportunities to
escape when she was outside his supervision, such as when
she went to retrieve their belongings from the apartment and
Dowd was miles away at the apartment manager’s house; dur-
ing their drive from Colorado to Montana when Dowd
stopped to make phone calls, when Johnson was alone in
Dowd’s mother’s home or when she went to a pawn shop by
herself in Utah.

[6] But coercion does not mean the defendant has to main-
tain constant physical control or oversight of his victim.
Indeed, the statute is written in the disjunctive — “force, coer-
cion, duress, or fraud” — denoting that coercion is different
from the actual use of force, and indicating that a victim’s will
to escape can be undermined by a variety of means not
involving immediate physical force, including threats of repri-
sal or psychological conditioning. As the Sixth Circuit has
observed, “a person who has just been beaten in the manner
[the victim] had been is far less capable physically and emo-
tionally of attempting an escape, formulating a method of
escape, or eliciting aid from others.” United States v. Page,
167 F.3d 325, 328 (6th Cir. 1999)(en banc)(per curium)
(Moore, J., concurring)(holding that defendant forcibly
10178 UNITED STATES v. DOWD
caused his victim to cross state lines by beating her so as to
subdue her before the journey); see also Baggett, 251 F.3d at
1096-97 (holding that the victim did not have a reasonable
opportunity to escape simply because she begged to stay with
defendant rather than be thrown out of his moving truck); cf.
United States v. Sickinger, 179 F.3d 1091, 1093 (8th Cir.
1999) (concluding that even though defendant’s control over
his victim had “slackened,” his victim had not been “re-
leased,” because she had been beaten severely, lost blood and
been warned not to flee); see also Mary Ann Dutton, Under-
standing Women’s Responses to Domestic Violence: A Rede-
finition of Battered Woman Syndrome, 21 Hofstra L. Rev.
1191, 1208 (1993) (“To negate the impact of the time period
between discrete episodes of serious violence — a time period
during which the woman may never know when the next inci-
dent will occur, and may continue to live with ongoing psy-
chological abuse — is to fail to recognize what some battered
women experience as a continuing ‘state of siege.’ ”).

[7] We also draw support for our interpretation from the
legislative history of the Violence Against Women Act, which
contains the interstate domestic violence statute. Congress
addressed the importance of recognizing the particular cir-
cumstances faced by victims of domestic violence. In enact-
ing one measure that provided for training judges on dealing
with issues of rape and domestic violence, Congress empha-
sized that “[t]oo often, the focus is on the woman’s behavior
— ‘Why does she stay?’ — instead of an examination of why
men batter and why our culture and the justice system often
allow men to continue this illegal behavior.” S. Rep. No. 103-
138, at 46 (1993). Congress warned that such presumptions
may result from a “lack [of] information about the psycholog-
ical, economic, and social realities of domestic violence vic-
tims.” Id. In light of Congress’ stated concerns, we believe a
defendant should not avoid liability based on speculative con-
clusions that the victim could have escaped a violent defen-
dant simply because he was not close at hand.
 UNITED STATES v. DOWD 10179
Instead, when a jury is assessing a victim’s opportunity to
escape, it is the victim’s perspective that counts. The jury
must take into account whether a reasonable person in the vic-
tim’s position would believe she (or he) could effectively
escape. Although we have not found cases specifically
addressing the concept of escape in the context of the inter-
state domestic violence statute, the government analogizes to
the duress defense in criminal cases. Whether an individual
charged with a crime acted under duress and therefore has a
valid defense depends on whether, under all of the circum-
stances, the defendant had a reasonable opportunity to escape
rather than commit the crime. See United States v. Verduzco,
373 F.3d 1022, 1030-31 (9th Cir.) (upholding jury instruction
that duress defense requires considering “whether one in the
defendant’s position might believe that reporting the matter to
the police did not represent a reasonable opportunity of
escape”), cert. denied, 125 S. Ct. 508 (2004); United States v.
Contento-Pachon, 723 F.2d 691, 694 (9th Cir. 1984)(noting
that the trier of fact must decide whether one in defendant’s
position would believe reporting to the police, whom the
defendant thought to be corrupt, or fleeing with his family
represented reasonable opportunities for escape).

We also consider instructive our Title VII case law, holding
that the “ ‘objective severity of harassment should be judged
from the perspective of a reasonable person in the plaintiff’s
position, considering all the circumstances.’ ” Nichols v.
Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir. 2001)
(quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75, 81 (1998) (other internal quotation marks omitted)). In
Ellison v. Brady, we endorsed the view that harassment
should be analyzed from the perspective of the victim, taking
into account the gender of the plaintiff alleging a hostile work
environment. 924 F.2d 872, 879 (9th Cir. 1991) (adopting a
“reasonable woman” standard for cases brought by female
plaintiffs).

[8] We hold that for purposes of § 2261(a)(2), whether the
victim was subject to coercion or duress or had a reasonable
10180 UNITED STATES v. DOWD
opportunity to escape must be evaluated from the perspective
of a reasonable person in the victim’s position, considering all
of the circumstances, including the victim’s gender. Applying
this standard, we conclude that the jury could have found
Johnson to have been completely intimidated by Dowd’s sus-
tained actual and threatened physical, sexual and psychologi-
cal abuse; his unremitting subjugation of her; his threats of
retribution against her family; and her fear of being impli-
cated in harboring a fugitive. Johnson was repeatedly beaten,
raped and humiliated; she was at times weak from hunger and
her injuries; she did not think she could outrun Dowd in her
condition. In short, the jury easily could have determined that
a woman in Johnson’s position, subject to months of physical
and psychological abuse at Dowd’s hands, had no reasonable
opportunity to escape her oppressor.

IV.

[9] Dowd raises two issues with regard to his sentencing.
First, he challenges the district court’s decision to impose a
consecutive sentence for the domestic violence conviction to
run after the completion of Dowd’s undischarged sentence for
his drug-related guilty plea. The U.S. Sentencing Guidelines
govern the determination of whether to apply a concurrent or
consecutive sentence. The relevant provision in this case
allowed the district court to impose a concurrent, partially
concurrent or consecutive sentence “to achieve a reasonable
punishment for the instant offense.” U.S.S.G. § 5G1.3(c). The
guidelines direct the court to evaluate a number of factors in
making its determination, including factors that are generally
considered in imposing a sentence, see 18 U.S.C. § 3553(a),
as well as factors more specific to the choice between concur-
rent and consecutive sentences, see U.S.S.G. § 5G1.3(c), cmt
n.3.

The district court imposed a 127-month sentence to run
after the 12 years Dowd had yet to serve for his prior drug-
crime conviction. The court noted that “[i]n considering a rea-
 UNITED STATES v. DOWD 10181
sonable incremental punishment for the instant offense and to
avoid unwarranted disparity,” it was required to consider the
factors outlined in the sentencing guidelines. Evaluating the
factors, the court concluded that Dowd was not a “person
that’s capable of being rehabilitated.” The court further stated
that to impose a concurrent sentence “would not accomplish
the goals of sentencing, which would primarily be punish-
ment, the protection of the public and to prevent recidivism.”
The district court rejected any mitigating factors that weighed
in favor of a concurrent sentence.

[10] We conclude that the district court properly considered
and evaluated the factors in the sentencing guidelines in
deciding to impose a consecutive rather than a concurrent sen-
tence. Had the district court imposed a consecutive sentence
under one of the guideline provisions mandating that it do so,
we would face the question whether to remand for resentenc-
ing in light of the Supreme Court’s decision in United States
v. Booker, 125 S. Ct. 738 (2005), which rendered the sentenc-
ing guidelines discretionary, and this court’s decision in
United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en
banc). Because the provision applied by the district court
already gave it full discretion to impose a concurrent, partially
concurrent or consecutive sentence, however, a remand is not
warranted here. Booker did not change the application of this
provision of the guidelines.

We note further that any Booker error in the district court’s
consecutive sentencing would be harmless. The district court
made clear that a consecutive sentence was appropriate in this
case, notwithstanding the court’s own concerns generally
about the harshness of punishment under the guidelines. “I am
convinced that the guidelines and a consecutive sentence are,
indeed, warranted by the facts and by Mr. Dowd’s past behav-
ior and his involvement in the criminal culture. I don’t think
that the sentence run consecutive here is too harsh. If any-
thing, it may be too short.” We therefore affirm the court’s
decision to impose a consecutive sentence.
10182 UNITED STATES v. DOWD
Second, Dowd contends that the district court erred in
enhancing his sentence for committing sexual assault because
the jury did not find beyond a reasonable doubt that he sexu-
ally assaulted Johnson. See Apprendi, 530 U.S. at 476-77.
Thus, Dowd argues, his Sixth Amendment right to a jury trial
was violated. We reject this constitutional claim.

[11] The sentencing guidelines relevant to the domestic
violence statute provide that if another criminal offense is
committed in the course of violating the statute — such as
sexual assault — the sentence level from that other offense
may be applied if it is greater than the sentence level for the
domestic violence charge. U.S.S.G. § 2A6.2. In this case, the
other offense was sexual abuse, which carries a sentence that
is 9 levels higher than the base penalty for the domestic vio-
lence statute. The court applied the offense level associated
with sexual abuse rather than the offense level for domestic
violence, thereby increasing his sentencing range from 41 to
51 months to 100 to 125 months. The court further enhanced
Dowd’s sentence by 4 levels for committing the offense by
force or threat and by 2 levels because the victim sustained
injury.2

[12] The interstate domestic violence statute does not list as
an element of the offense the commission of a sexual assault,
but requires only that the defendant commit a “crime of vio-
lence.” Dowd was not charged separately with the crime of
sexual abuse. However, the indictment against Dowd speci-
fied that the “crime of violence” at issue here was “assault
and sexual assault.” In Count III, the indictment charged that
Dowd “knowingly cause[d] an intimate partner, Danna John-
son, by force, coercion or duress, to travel in interstate com-
merce and, in the course of or as a result of such conduct,
committed and attempted to commit a crime of violence
against her, that is, assault and sexual assault, in violation of
2
Dowd does not object to either of these two enhancements, conceding
that the jury found he used force and caused bodily injury.
 UNITED STATES v. DOWD 10183
Title 18 U.S.C. § 2261(a)(2).” The district court read the
indictment to the jury as part of the jury instructions. Even
though the following instruction, listing the elements of the
offense, stated simply that the jury had to find that Dowd
“committed a crime of violence upon Danna Johnson,” the
only crimes of violence charged by the grand jury, and the
only crimes of violence testified to, were “assault and sexual
assault.” The jury found Dowd not guilty of Count I, which
charged Dowd with abducting Danna Johnson “for the pur-
pose of assaulting her”; Count I did not charge that his pur-
pose was “sexual assault.” Similarly, the jury found Dowd not
guilty of Count V, which charged that Dowd knowingly trav-
eled in interstate commerce with the intent to injure Danna
Johnson and that he placed her in reasonable fear of death or
serious bodily injury by threatening her with physical vio-
lence. Given these circumstances, when finding Dowd guilty
of “Count III of the indictment” the jury logically must have
found, beyond a reasonable doubt, that he had committed sex-
ual assault.

[13] At sentencing, Dowd’s lawyer objected to the
enhancement, arguing that “there was no proof beyond a rea-
sonable doubt of any criminal sexual abuse.” The court dis-
agreed (apparently with the proposition that the evidence was
insufficient, as well as with the proposition that the jury had
not found Dowd guilty) and presumed that the jury had found
Dowd guilty of the crime of sexual abuse, as charged in the
indictment. As an alternative ruling, the district court found
by a preponderance of the evidence that Dowd committed
criminal sexual abuse. The district court’s caution in making
an alternative ruling does not detract from the jury’s verdict.
We conclude that the jury itself found sexual assault beyond
a reasonable doubt because sexual assault was specifically
charged in the indictment that was read to the jury. See
Apprendi, 530 U.S. at 483 n.10 (holding that “the judge’s role
in sentencing is constrained at its outer limits by the facts
alleged in the indictment and found by the jury”). Therefore,
10184 UNITED STATES v. DOWD
we hold there was no Sixth Amendment violation in the dis-
trict court’s sentencing.

The district court, however, having found the sexual assualt
enhancement applicable, proceeded to sentence under the
mandatory sentencing regime. We have held that “where the
district court did not treat the sentencing guidelines as advi-
sory but the defendant’s sentence was not enhanced by extra-
verdict findings,” a nonconstitutional sentencing error has
occurred. See Ameline, 409 F.3d at 1084 n.8. Understandably,
the defendant did not raise this statutory error before the dis-
trict court, and we therefore apply plain error review. Because
the sentencing guidelines are no longer mandatory — and we
cannot ascertain whether the district court would have
imposed a different sentence under a discretionary regime —
we leave up to the parties whether we should remand to the
district court for reconsideration of Dowd’s sentence. Id. at
1084 (“When faced with an unpreserved Booker/Fanfan error,
the reviewing panel must first determine if an eligible party
wants to pursue the subject.”).

V.

We AFFIRM Dowd’s conviction under the interstate
domestic violence statute, and the district court’s imposition
of a consecutive sentence and sexual assault enhancement.
We ORDER the parties to notify the court within 10 days of
the filing of this opinion if either wants to pursue an Ameline
remand.