United States v. Carty

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-10200
Plaintiff-Appellee,
v.  D.C. No.
CR-03-01135-RGS
ALPHONSO KINZAR CARTY,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
Roger G. Strand, District Judge, Presiding

Argued and Submitted
April 7, 2006—San Francisco, California

Filed July 17, 2006

Before: Robert R. Beezer and Raymond C. Fisher,
Circuit Judges, and Robert J. Timlin,* Senior District Judge.

Opinion by Judge Beezer

*The Honorable Robert J. Timlin, Senior District Judge for the United
States District Court for the Central District of California, sitting by desig-
nation.

7899
7902 UNITED STATES v. CARTY

COUNSEL

Milagros A. Cisneros, Assistant Federal Public Defender,
Phoenix, Arizona, for the defendant-appellant.

Dyanne C. Greer, Assistant United States Attorney, Phoenix,
Arizona, for the plaintiff-appellee.
 UNITED STATES v. CARTY 7903
OPINION

BEEZER, Circuit Judge:

Alphonso Kinzar Carty was charged with seven counts of
sexual abuse stemming from a series of incidents involving
his minor niece. Carty was convicted and sentenced to 235
months of custody and a lifetime of supervision. On appeal,
Carty challenges the conviction on the ground that the evi-
dence is insufficient and the sentence on the ground that it
was imposed in violation of Apprendi v. New Jersey, 530 U.S.
466 (2000), and United States v. Booker, 543 U.S. 220 (2005).

We have jurisdiction, affirm the conviction and remand for
resentencing.

I

The charges against Carty, an enrolled member of the Nav-
ajo Nation, resulted from a series of incidents that occurred
between Carty and his minor niece. The first incident
occurred in 2000 when the victim was fourteen and staying
the night with her uncle while her parents were out of town
visiting her sick grandfather. The victim testified that Carty
entered the room where she was sleeping and touched her
upper and lower body under her clothes.

The second incident occurred during the same stay, when
Carty drove the victim, who is diabetic, to her home to get
insulin. The victim testified that while they stood outside her
house Carty put his hand down her pants and his finger in her
vagina.

The third incident occurred in 2003 when the victim was
sixteen. The victim testified that she stayed the night in
Carty’s trailer after he picked her up from a track meet. She
stated that during the night he came into the bedroom where
she slept and molested her, by touching and kissing her vagi-
7904 UNITED STATES v. CARTY
nal area, putting his finger in her vagina and touching and
kissing her breasts.

The fourth incident occurred later the same year when the
victim was at Carty’s trailer babysitting his children. Accord-
ing to her testimony, when she entered Carty’s bedroom to
check on Carty’s young son, Carty grabbed her around the
waist, put his hand down her underwear and his finger in her
vagina. She also testified that Carty kissed her on the lips and
told her that he loved her. Later that same day, the victim
stated that while she was kneeling by the bathtub giving
Carty’s son a bath, Carty entered the bathroom, came behind
her and touched her breasts.

Following this last incident, the victim reported the abuse
to a representative of her church while at a youth conference.
The police were contacted and the victim was initially inter-
viewed in August 2003. The victim underwent a physical
exam by a pediatric nurse practitioner; the results of the exam
were normal, which the nurse testified is consistent with the
type of abuse alleged in this case. Special Agent Sherry Rice
of the FBI prepared a report based on that interview, and,
together with another agent, interviewed Carty eight days
later. Carty attended this interview by choice and was explic-
itly told he was not under arrest. The interview lasted four
hours and at the conclusion of the interview Carty wrote out
a statement in which he admitted to sexually abusing the vic-
tim.

A jury trial was conducted in August 2004. Carty moved to
suppress his statement, but the district court rejected this
motion and found that the statement was not “the product of
coercion . . . or other unlawful action or conduct on the part
of law enforcement.” At the close of evidence, Carty moved
for a Judgment of Acquittal, which the district court denied.
The Government requested a question be added to the verdict
forms asking the jury to determine whether, at the time of the
incidents, Carty had “care and custody” over the victim. The
 UNITED STATES v. CARTY 7905
district court added the question over Carty’s objection that
the “issue should have been presented to the Grand Jury.”

The jury convicted Carty of two counts of abusive sexual
contact in violation of 18 U.S.C. § 1153, 2244(a)(1) and
2246(3), one count of aggravated sexual abuse of a minor in
violation of §§ 1153, 2241(c) and 2246(2)(C), one count of
sexual abuse of a minor in violation of §§ 1153, 2243(a) and
2246(2)(C), two counts of aggravated sexual abuse in viola-
tion of §§ 1153, 2241(a) and 2246(2)(C), and one count of
aggravated sexual abuse in violation of §§ 1153, 2241(a) and
2246(2)(B). With respect to each count, the jury found that
Carty had “care and custody” over the victim at the time of
the offenses.

Carty filed a Renewed Motion for Judgment of Acquittal
on the grounds that the evidence was insufficient to find him
guilty and that the evidence was insufficient to find he had
“care and custody” over the victim during the incident that
occurred while she was babysitting his children. The district
court granted the motion with respect to whether Carty had
care and custody over the victim during the incident while
babysitting and denied the motion in all other respects. A pre-
sentence report (“PSR”) was prepared and calculated a Guide-
line range of 235-293 months. After examining the PSR,
Carty’s objections to the PSR, Carty’s sentencing memoran-
dum, the Government’s response, and hearing testimony at
sentencing from Carty and various members of his family, the
district court imposed a sentence of 235 months in custody
and lifetime supervision with various conditions. Carty timely
appeals.

II

[1] Carty first argues that the evidence is insufficient to
support the jury’s verdicts. “Claims of insufficient evidence
are reviewed de novo where, as here, a motion for acquittal
is made at the close of evidence.” United States v. Naghani,
7906 UNITED STATES v. CARTY
361 F.3d 1255, 1261 (9th Cir. 2004). “There is sufficient evi-
dence to support a conviction if, ‘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.’ ” Id. (quoting United
States v. Carranza, 289 F.3d 634, 641-42 (9th Cir. 2002)); see
also Jackson v. Virginia, 443 U.S. 307, 319 (1979).

Carty argues no rational juror could have concluded that
the Government proved its case beyond a reasonable doubt
and supports his argument by pointing out aspects of the vic-
tim’s testimony that he claims are inconsistent or unbeliev-
able. For example, Carty argues the victim’s testimony
describing the incidents that occurred while spending the
night at Carty’s trailer are incredible because of her testimony
that on both occasions she was sharing the bed with her cou-
sin. Carty argues the victim’s testimony as to the second inci-
dent is unbelievable because she claims it occurred out in the
open in front of her house; similarly he argues the victim’s
story as to the fourth incident is suspect because the abuse
allegedly occurred with the door open, while many children
were running through the trailer and while the victim’s
brother was in the next room.

[2] Carty presented each of these arguments to the jury
through his cross-examination of the victim. In fact, most of
these alleged inconsistencies and undermining facts were elic-
ited through cross-examination. By returning guilty verdicts,
the jury indicated it found the victim’s testimony credible
despite Carty’s arguments to the contrary. “[W]hen a jury is
informed of the possible challenges to a witness’ credibility
and nevertheless believes the witness, the reviewing court
should not upset the jury’s credibility determination.” United
States v. Leung, 35 F.3d 1402, 1405 (9th Cir. 1994).

Carty also argues the evidence is insufficient to sustain his
conviction because he presented evidence that his statement
was made under stressful circumstances and that Agent Rice
 UNITED STATES v. CARTY 7907
told him what to write. The district court rejected Carty’s pre-
trial suppression motion and found the statement was not the
result of coercion or “other unlawful action or conduct on the
part of law enforcement.” Carty does not appeal that finding.
As with the victim’s testimony, the jury is free to believe or
disbelieve the statements made by the defendant. United
States v. Cordova Barajas, 360 F.3d 1037, 1041 (9th Cir.
2004). The defense argued that the statement was unreliable
through its direct examination of Carty and cross-examination
of Agent Rice, as well as during its closing. A rational juror
could have accepted Carty’s confession and dismissed the
excuses later offered at trial.

[3] Both the victim’s testimony and Carty’s statement were
“not incredible or unsubstantial on [their] face[.]” United
States v. Alvarez, 358 F.3d 1194, 1202 (9th Cir. 2004). “[T]he
credibility of witnesses is a question for the jury unreviewable
on appeal.” United States v. Yossunthorn, 167 F.3d 1267,
1270 (9th Cir. 1999). We determine the evidence offered at
trial was sufficient to sustain the verdicts.

III

Carty argues the inclusion of the “care and custody” ques-
tion on the verdict forms was a violation under Apprendi v.
New Jersey, 530 U.S. 466 (2000). We review an alleged
Apprendi violation de novo. United States v. Maria-Gonzales,
268 F.3d 664, 667 (9th Cir. 2001). A district court’s formula-
tion of jury instructions is reviewed for abuse of discretion.
United States v. Shipsey, 363 F.3d 962, 966 n.3 (9th Cir.
2004).

[4] In Apprendi, the Supreme Court held that any fact
(other than a prior conviction) that increases the penalty for
a crime beyond the statutory maximum must either be admit-
ted by a defendant or submitted to a jury and found beyond
a reasonable doubt. 530 U.S. at 490. Anticipating the applica-
tion of Apprendi to the federal Sentencing Guidelines, the
7908 UNITED STATES v. CARTY
Government requested that a question regarding whether
Carty had “care and custody” over the victim be included on
the verdict forms. On appeal, Carty argues the inclusion of the
“care and custody” question on the verdict forms violates
Apprendi because the jury was not instructed that it must find
care and custody beyond a reasonable doubt.

[5] In United States v. Booker, 543 U.S. 220, 259 (2005),
the Supreme Court applied Apprendi to the federal Sentencing
Guidelines, but remedied the constitutional infirmity by sever-
ing the provision that made the Guidelines mandatory. The
district court sentenced Carty after Booker. The district
court’s failure to make explicit the standard by which the jury
had to find Carty had care and custody over the victim, if it
was error at the time, now amounts to harmless error because
it is not necessary for the jury to make such a finding in an
advisory regime. See Booker, 543 U.S. at 259 (“[W]ithout
[the provision making the guidelines mandatory] the statute
falls outside the scope of Apprendi’s requirement.”). The dis-
trict court was free to make the sentence-enhancing finding on
its own when calculating the appropriate guideline range. See
United States v. Ameline, 409 F.3d 1073, 1089 (9th Cir. 2005)
(en banc) (“The district court’s factual findings will determine
the base offense level . . . .”).

[6] Nor did the inclusion of the “care and custody” question
convert the issue into an element of the offense. With respect
to all seven counts, the verdict forms clearly separate the guilt
inquiry from the care and custody inquiry. The forms first
read “We the jury, find the defendant . . .” followed by the
word “GUILTY” and a blank line for the jury to indicate
whether it so found. Below this line, the forms read “Having
found the defendant guilty” and then pose the care and cus-
tody question. When the district court reviewed the form with
the jury it highlighted that the care and custody question was
to be answered only after there was a finding of guilt. The dis-
trict court explained, “If there is a guilty verdict, then the
form of verdict goes on to provide that having found the
 UNITED STATES v. CARTY 7909
defendant guilty [the jury should decide the care and custody
question]” (emphasis added). The district court did not abuse
its discretion in formulating the jury form.

IV

Carty finally argues that the district court treated the Guide-
lines as mandatory and failed to consider adequately the fac-
tors of 18 U.S.C. § 3553(a). Carty’s challenge amounts to a
claim that his sentence is unreasonable under United States v.
Booker. See 543 U.S. at 261. Post-Booker, we have jurisdic-
tion to review sentences imposed within the Guideline range.
United States v. Plouffe, 445 F.3d 1126, 1128 (9th Cir. 2006).

[7] District courts have discretion in determining sentences
according to the provisions of § 3553(a). Booker, 543 U.S. at
259-60. Section 3553(a)(2) states that a district court should
impose a sentence

sufficient, but not greater than necessary . . . (A) to
reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment
for the offense; (B) to afford adequate deterrence to
criminal conduct; (C) to protect the public from fur-
ther crimes of the defendant; and (D) to provide the
defendant with needed . . . training, medical care, or
other correctional treatment . . . .

Section 3553(a) further provides that the district court should
weigh factors such as “the nature and circumstances of the
offense and the history and characteristics of the defendant;”
“the kinds of sentences available;” “the [applicable] sentenc-
ing range[;]” the articulated policy goals of the guidelines;
“the need to avoid unwarranted sentence disparities” among
similar defendants; and “the need to provide restitution to any
victims of the offense.” § 3553(a)(1), (3)-(7).

[8] We have not yet specifically addressed the extent to
which a district court is required to make evident its consider-
7910 UNITED STATES v. CARTY
ation of the § 3553(a) factors in sentencing. We have echoed
our sister circuits by acknowledging that Booker’s require-
ment that a district court take the factors of § 3553(a) into
account “does not necessitate a specific articulation of each
factor separately[.]” United States v. Knows His Gun, 438
F.3d 913, 918 (9th Cir. 2006); see also United States v. Dean,
414 F.3d 725, 729 (7th Cir. 2005) (“[T]he sentencing judge
can discuss the application of the statutory factors to the
defendant not in checklist fashion but instead in the form of
an adequate statement of the judge’s reasons, consistent with
section 3553(a), for thinking the sentence that he has selected
is indeed appropriate for the particular defendant.”); United
States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005)
(“[N]othing in Booker or elsewhere requires the district court
to state on the record that it has explicitly considered each of
the § 3553(a) factors or to discuss each of the § 3553(a) fac-
tors.”).

[9] In the same breath, however, we have stated that Booker
requires “a showing that the district court considered the
statutorily-designated factors in imposing a sentence.” Knows
His Gun, 438 F.3d at 918. In United States v. Diaz-Argueta,
447 F.3d 1167, 1171 (9th Cir. 2006), we held that the district
court did not make a sufficient showing when it failed to
address any of the § 3553(a) factors other than the Guideline
range when it imposed a sentence within the range. In Diaz-
Argueta, the district court stated that it had “carefully consid-
ered” the PSR, counsel comments, and a memorandum from
the defendant. Id. The district court then imposed a sentence
within the properly calculated Guideline range, providing no
discussion of the applicability of the other § 3553(a) factors
or rationale for the sentence. Id. We vacated the sentence and
held that the mandatory terms of § 3553(a) are not met “by
reciting a number taken from a table of the Sentencing Guide-
lines that are now merely advisory. There is no presumption
that such a number has taken into account all of the relevant
circumstances that the statute states that the court ‘shall con-
sider.’ ” Id.
 UNITED STATES v. CARTY 7911
[10] We have also emphasized that it is important for a dis-
trict court to provide a rationale when it imposes a sentence
outside the Guideline range. In addressing the government’s
challenge that an imposed sentence was unreasonable under
Booker because it was drastically lower than the calculated
Guideline range, we stated the district court “is ‘required to
articulate the reasons for the extent of the departure in suffi-
ciently specific language to allow appellate review.’ ” United
States v. Menyweather, 447 F.3d 625, 635 (9th Cir. 2006)
(quoting United States v. Working, 224 F.3d 1093, 1102 (9th
Cir. 2000) (en banc)). Similarly, in reviewing a district court’s
decision to impose a sentence above that calculated under the
Guidelines, we stated that for review purposes it is imperative
that a district court “clearly and carefully differentiate
between the findings and conclusions” relevant to the range
calculation under the Guidelines and “findings and conclu-
sions as regards the application of non-Guidelines factors pur-
suant to 18 U.S.C. § 3553(a).” United States v. Mix, 450 F.3d
375, 382 (9th Cir. 2006).

[11] In Booker, the Supreme Court stated that the Guide-
lines would no longer apply in a mandatory fashion and that
district courts should be guided by the § 3553(a) factors when
sentencing. 543 U.S. at 261. On review, we must determine
that the district court did not apply the Guidelines in a manda-
tory fashion, that it considered the § 3553(a) factors, and that
the resulting sentence is reasonable. When a district court
simply adopts a sentence suggested by the Guidelines, makes
no reference to the § 3553(a) factors, and provides no discus-
sion of its rationale for the sentence imposed, we are unable
to fulfill our duty under Booker. As the Third Circuit has rec-
ognized, an appellate court cannot review a district court’s
exercise of discretion if the district court does not articulate
the reasoning underlying its decision. See United States v.
Johnson, 388 F.3d 96, 101 (3d Cir. 2004). Thus, in United
States v. Cooper, in reviewing a within-the-Guidelines sen-
tence for reasonableness, the Third Circuit held that “the
record should demonstrate that the court considered the
7912 UNITED STATES v. CARTY
§ 3553(a) factors and any sentencing grounds properly raised
by the parties which have recognized legal merit and factual
support in the record.” 437 F.3d 324, 332 (3d Cir. 2006).

In imposing the sentence, the district court stated that it had
considered the materials placed before it. These materials (the
PSR, Carty’s objections to the PSR, Carty’s sentencing mem-
orandum and the Government’s response to the memoran-
dum), as well as the presentation made by the defense at the
sentencing hearing, all discussed the § 3553(a) factors. The
district court, however, did not comment substantively on any
of these submissions in rendering its sentence. It did not dis-
cuss any of the goals and factors enumerated in § 3553(a) or
how they might have impacted its determination with respect
to Carty. Rather, the district court simply adopted the PSR
and imposed a sentence at the bottom of the Guideline range.

[12] By stating it considered the materials before it and sen-
tencing within the Guidelines, the district court demonstrated
that it had considered at least one of the § 3553(a) factors:
namely, § 3553(a)(4) which requires the district court take
into account the applicable Sentencing Guideline range.
Doing so did not show, however, that “the court considered
the other standards reflected in that section,” Cooper, 437
F.3d at 330, and thus provides an insufficient basis for us to
conduct the reasonableness review entrusted to us by Booker.

[13] Although several circuits have afforded a presumption
of reasonableness to within-the-Guidelines sentences, see,
e.g., United States v. Alonzo, 435 F.3d 551, 554 (5th Cir.
2006); United States v. Mykytiuk, 415 F.3d 606, 607 (7th Cir.
2005); United States v. Lincoln, 413 F.3d 716, 717-18 (8th
Cir. 2005), we have not adopted this position. We offer no
opinion whether the district court’s within-the-Guideline sen-
tence here was, in fact, reasonable. We hold only that post-
Booker, when imposing a sentence, a district court must pro-
vide on the record some articulation of its consideration of the
§ 3553(a) factors and explanation of the reasons underlying
 UNITED STATES v. CARTY 7913
its sentence selection. Because the district court did not create
such a record, we remand for resentencing.

V

The testimony presented by the victim at trial was suffi-
cient to sustain the jury’s verdicts and we affirm the defen-
dant’s conviction. Any error the district court may have
committed in failing to require the jury find beyond a reason-
able doubt that the Defendant had care and custody over the
victim is harmless, because the Defendant was sentenced
post-Booker under an advisory regime and the court was free
to make this determination for itself. Because the district court
failed to create a record memorializing its consideration of the
sentencing factors listed in § 3553(a) and explaining its sen-
tence selection, however, we remand for resentencing.

AFFIRMED in part and REMANDED for resentencing.