United States v. Dolloph

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1059

UNITED STATES OF AMERICA,

Appellee,

v.

HAROLD L. DOLLOPH,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Keeton,* District Judge.

Thomas A. Zonay, by Appointment of the Court, with whom Carroll,

George & Pratt was on briefs for appellant.

Peter E. Papps, First Assistant United States Attorney, with whom

Paul M. Gagnon, United States Attorney, was on brief for the United

States.

February 1, 1996

*Of the District of Massachusetts, sitting by designation.

BOUDIN, Circuit Judge. On July 21, 1994, Harold Dolloph

pled guilty to one count of possessing child pornography,

four counts of transporting minors for purposes of engaging

in sexual activity, and one count of possessing a prohibited

firearm. 18 U.S.C. 2252(a)(4)(B), 2423; 26 U.S.C. 5861.

At the sentencing hearing on December 19, 1994, the district

judge departed upward two levels from the applicable

guideline range of 168 to 210 months and sentenced Dolloph to

240 months imprisonment. Dolloph now appeals from his

sentence, raising several different issues.

The facts, which we briefly summarize, are taken from

the presentence report, sentencing hearing transcript, and

submissions at sentencing. United States v. Egemonye, 62

F.3d 425, 426 (1st Cir. 1995). At various times prior to

September 1993, Dolloph's four great-nieces--all children of

the same mother--stayed at Dolloph's home in Swanzey, New

Hampshire. In that month, their mother told her children

that they would be staying with Dolloph again while she moved

their household to a new residence. At that point two of her

daughters, aged eight ("TL8") and eleven ("TL11"), said that

Dolloph had sexually abused them on their prior visits.

Dolloph was then indicted by a federal grand jury. The

two girls, TL8 and TL11, told the police that while staying

with Dolloph in July 1993 he had engaged in sexual activity

with them; the activity they described potentially amounted

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to statutory rape, involved a variety of other practices

commonly described as unnatural or degrading, and included

the taking of lascivious photographs of the girls by Dolloph

as well as some of TL11 in handcuffs. As described by the

girls, the conduct had occurred in various forms on several

different occasions.

Based on these reports and some corroborating evidence,

the police obtained a search warrant and searched Dolloph's

apartment. What they found included sexually explicit

photographs of TL8 and TL11, video tape showing Dolloph in a

sexual encounter with TL8, and other tape and photographs

indicating that Dolloph had abused other young girls.

Dolloph was arrested. When questioned, he denied ever having

had sexual relations with his two nieces but he admitted to

lesser acts of abuse. The latter were, in any event,

documented by photos and video tape.

Dolloph was then indicted by a federal grand jury. In

the superseding indictment returned on January 20, 1994,

Dolloph was charged in 11 counts; 10 related to misconduct

involving the children and the last charged Dolloph with

unlawful possession of a sawed-off shotgun that the police

had found in their search of his apartment. After a

psychiatric examination found Dolloph competent to stand

trial, he pled guilty, on July 21, 1994, to the six counts

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described above, five relating to the children and one to the

weapon.

At a sentencing hearing on December 19, 1994, the

government presented a psychologist, Dr. Margaret Ward, who

testified that TL8 had suffered psychological damage "more

severely than most children that I have seen that have

experienced the nature and duration of what she experienced."

Dr. Ward said that this might well also be true of TL11.

Ultimately, the court calculated the offense level as 35 and

departed upward by two levels to level 37. The court

sentenced Dolloph to 240 months, somewhat above the midpoint

for level 37.

1. On this appeal, Dolloph's main attacks are upon this

upward departure. The presentence report identified as a

potential ground of departure U.S.S.G. 5K2.3, which permits

a court to depart upward "[i]f a victim or victims suffered

psychological injury much more serious than that normally

resulting from commission of the offense. . . ." The

government did not urge any other basis for a departure prior

to the hearing, and its expert witness--Dr. Ward--testified

in accord with section 5K2.3.

United States v. Burns, 501 U.S. 129, 138-39 (1991),

says that the defendant must be given advance notice if the

district judge proposes to depart on any ground not

identified in the presentence report or by a government

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submission filed in advance of the hearing. Here, says

Dolloph, the district court violated this precept by relying,

in addition to psychological damage, upon other grounds for

departure not identified in advance. The argument has some

force but we think not quite enough.

That the departure rested primarily upon the damage to

the two girls is patent. We construe de novo the district

court's remarks at the sentencing hearing and his two page

written "departure explanation." Both stress, in

organization and emphasis, the court's finding that TL8 had

suffered "severe psychological injury of a nature beyond the

norm"; and the written explanation, contains an explicit

finding, by a preponderance of the evidence, that TL11

suffered in the same way. The district judge said that the

sentence "should reflect the nature of the injury that

[Dolloph] inflicted on these girls." Section 5K2.3 was cited

in the written explanation.

But--Dolloph points out--both at the hearing and in the

written explanation, the district court referred to the

particularly insulting and degrading sexual activity and the

fact that Dolloph had abused a relationship of trust that he

himself had cultivated. The judge also cited to U.S.S.G.

5K2.1; other record evidence indicates that the intent was to

refer instead to section 5K2.0, which is the catch-all

departure provision allowing departures for factors "of a

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kind, or to a degree, not adequately" accounted for in the

guidelines. Id. (quoting 18 U.S.C. 3553(b)).

The unusually degrading nature of the conduct could be

an independent basis for departure under U.S.S.G. 5K2.8,

although no advance notice of this ground was provided.

Dolloph's relationship to the victims was considered in

fixing the offense levels, id. 2A3.1(b)(3), 2G2.1(b)(2),

so his betrayal of the relationship might or might not be an

independent basis, depending on whether it was present "to a

degree substantially in excess of that which ordinarily is

involved in the offense." Id. 5K2.0. And, in any event,

Burns' requirement of advance notice was apparently not met

in either case.

It is unlikely that the references to egregious behavior

and breach of trust were intended by the trial judge as

independent grounds for the departure. In the written

explanation, the judge spoke of the egregious conduct as

already described, and he followed it immediately by saying

that the victims, particularly the younger, suffered and

would likely continue to suffer well into the future. In

other words, the court was focusing on the conduct to explain

the extent of the damage it inflicted. See, e.g., United

States v. Anderson, 5 F.3d 795, 805 (5th Cir. 1993), cert.

denied, 114 S. Ct. 1118 (1994).

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Dr. Ward also related the damage suffered by TL8 to the

nature of Dolloph's behavior ("in the more severe part of the

continuum") and to his family relationship; as to the latter

relationship, Dr. Ward said that TL8's connection with the

defendant "allowed her to fear the loss of [their]

relationship." The suggestion may be that the betrayal of

trust enhanced the damage. Again, the district court's

written discussion of the fiduciary breach occurs in the

middle of an extensive discussion of the causes and evidence

of severe damage.

Finally, it was the prosecutor who suggested a departure

on account of damage to the victims, citing both guideline

sections (5K2.0 and 5K2.3). Thus, the court's reference to

the earlier section is easily explained. And the district

court's discussion of departure, from which isolated remarks

have been quoted, overlapped with the court's broader

explanation of why it was choosing the particular sentence

within the finally selected guideline range.

Faced with uncertainty, we have sometimes remanded or at

least asked the district court to clarify its sentencing

rationale. United States v. Quinones, 26 F.3d 213, 219-20

(1st Cir. 1994). In deciding whether to remand or inquire,

the degree of uncertainty is the main element, but other

factors sometimes play a silent role: the extent of the

departure, objective ambiguity in the transcript, the nature

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of the possible mistake, and a realistic appraisal of whether

a different outcome on remand is possible.

Here, there is no realistic possibility of a different

result on remand. Dr. Ward's testimony, coupled with other

evidence, amply supported the departure based on damage

alone, and damage was certainly the district court's

principal theme. If the disputed references to degrading

conduct and betrayal were struck, we have no doubt whatever

that the district court would impose the same two level

enhancement--and 30 additional months--as before. If error

occurred, and we doubt it did, it was assuredly harmless.

See United States v. Ortiz, 23 F.3d 21, 28 (1994).

There is no merit to Dolloph's other attacks on the

departure. Dr. Ward admitted that she had not interviewed

the children but had worked from interview transcripts and

other records; and she did not provide a detailed description

of what would constitute only "normal" damage. But these

matters went to the weight of the evidence. Dr. Ward was

qualified, subjected to cross-examination, and supported in

various respects by other evidence including one of Dolloph's

own videotapes, the presentence report, victim impact

statements, and medical information.

Dolloph also complains that as to TL11, Dr. Ward herself

was unable to say, "to a reasonable degree of medical

certainty," that the harm was abnormally severe; she said

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there was a "reasonable . . . indication" to that effect.

However, the district court itself made a finding of abnormal

damage under the preponderance standard. Given the evidence

available here, the defendant's conduct and the damage

ascribed to the children were within a layperson's ken.

Under the clear error standard, the court's finding is easily

sustained. United States v. Joyce, 70 F.3d 679, 681-82 (1st

Cir. 1995).

2. We turn now to the remaining challenges to the

sentence, starting with Dolloph's two main objections. They

derive from the intent of the guidelines in certain respects

to sentence the defendant for the "real" conduct underlying

the offense. United States v. Dominguez, 951 F.2d 412, 415

(1st Cir. 1991), cert. denied, 504 U.S. 917 (1992). This is

done partly by cross-references that--on proof of aggravating

facts--cause a defendant convicted of a crime to be sentenced

under the more severe guideline pertaining to the aggravating

conduct.

In our case, the guidelines governing both of the sexual

offenses to which Dolloph pled--possession of pornography and

transportation of a minor--have base offense levels of "only"

13 and 16, respectively. U.S.S.G. 2G2.4, 2G1.2. Yet,

each contains a cross-reference that makes applicable a

considerably higher base offense level of 25, under U.S.S.G.

2G2.1, if the offense conduct included "causing [or]

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transporting . . . a minor to engage in sexually explicit

conduct for the purpose of producing a visual depiction of

such conduct. . . ."

The presentence report found or indicated that as to

three of the counts Dolloph had caused the girls to engage in

such conduct (count 6) or transported them for that purpose

(counts 7 and 9), and the district court adopted the

findings. Dolloph contests this determination, arguing that

the evidence did not show that he invited the nieces to his

home for the purpose of photographing them; the photographs,

he says, showed that "the photographs were taken as a `mere

incident' of the trips." This claim is not supported by any

detailed factual argument.

Without a discussion by Dolloph of the pertinent

evidence, it is difficult to consider his contention.

Photographs, interview transcripts, and video tape evidence

were presented or available at the hearing, and the litigants

understood which child was involved in the various counts and

photographs and how the evidence related to each count and

sub-count (count six required several different photographs).

Very little of what the parties understood about specific

events can be easily reconstructed from the hearing

transcript itself.

There is some indication that Dolloph's argument rests

at least in part on a misconception. Both at the hearing and

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in his appeals brief, Dolloph's counsel relied primarily upon

language from United States v. Ellis, 935 F.2d 385 (1st

Cir.), cert. denied, 502 U.S. 869 (1991). There, the trial

court had instructed the jury that to violate the

transportation statute, having the child engage in sexual

activity must have been one of the purposes of the trip and

"not a mere incident of the trip." Id. at 389. This court

upheld the charge, rejecting a claim that the illicit purpose

must be the "dominant" one. Id. at 390.

Four of the cross-reference findings (pertaining to

count 6) involved "causing"--not transporting--so the Ellis

language is irrelevant. The other two (counts 7 and 9)

apparently did rely on transporting; but since Dolloph tells

us little about the specific events, we have no basis for

concluding that the district court erred in accepting the

presentence report. How much weight should be given to the

presentence report is sometimes a matter of dispute; but in

this instance we have been given nothing to set against its

findings. See United States v. Gonzalez-Vazquez, 34 F.3d 19,

25 (1st Cir. 1994).

Dolloph's second objection relates to a different cross-

reference. As to the other two counts involving transporting

a minor (counts 8 and 10), specifically TL8, the probation

report found, and the district court adopted the finding,

that Dolloph's conduct on those visits had involved "criminal

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sexual abuse." A cross-reference in the transportation

guideline, U.S.S.G. 2G1.2(c)(2), provides that in such a

case the sexual abuse guideline governs, and that guideline

provides a base offense level of 27. Id. 2A3.1. Broadly

speaking, this latter guideline applies to conduct violating

18 U.S.C. 2241-42. U.S.S.G. 2A3.1, comment.(stat. provs.).

The cited code sections govern "sexual act[s]," as

defined by 18 U.S.C. 2245, which are made unlawful in

specified situations, of which the one most pertinent here

forbids sexual relations with children under twelve. 18

U.S.C. 2241(c). As Dolloph points out, the sexual abuse

chapter itself, id. 2241-45, is confined to conduct

occurring in "the special maritime and territorial

jurisdiction of the United States or in a Federal prison."

E.g., 18 U.S.C. 2241(a). Because no such federal

jurisdiction is asserted in this case, Dolloph objects to the

use of the cross-referenced guideline.

The argument is interesting but hopeless. Whatever the

offense plea, the defendant is ordinarily subject to

punishment for all "relevant conduct," including all acts and

omissions "that occurred during the commission of the offense

of conviction." U.S.S.G. 1B1.3(a)(1). Here, Dolloph does

not contest the principle. His present argument is that--

even assuming that his treatment of TL8 amounted to sexual

abuse as defined by the federal statutes--those statutes

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include a jurisdictional element not here satisfied.

Therefore, he concludes, the cross-reference is not

pertinent.

But the sexual abuse guideline is concerned with

identifying the proper penalty for the underlying sexual

conduct, here, the mistreatment of TL8. It is the plain

intent of the guidelines--specifically, the cross-reference

section that takes us to the sexual abuse guideline--to

punish Dolloph for that conduct. So long as the guidelines

so intend and the necessary proof is offered, a defendant may

ordinarily be punished for relevant conduct, whether or not

it includes conduct for which the court lacks independent

jurisdiction to try the defendant. United States v. Carroll,

3 F.3d 98, 102-03 (4th Cir. 1993); United States v. Pollard,

986 F.2d 44, 47 (3d Cir.), cert. denied, 113 S. Ct. 2457

(1993).

Finally, Dolloph argues that the evidence did not

justify the district court finding that sexual acts were

performed against TL8. If one credits the statements of the

child, as the district court evidently did, there is no doubt

that Dolloph's conduct violated the sexual abuse statutes,

the jurisdictional element to one side. Dolloph demurs but a

comparison of what TL8 said happened with what the statute

forbids resolves the matter against him.

Affirmed.

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