United States v. Dolloph

Opinion

USCA1 Opinion

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,
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                            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
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            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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