United States v. Ketut Pujayasa

703 F. App'x 817
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 1, 2017
Docket16-16782 Non-Argument Calendar
StatusUnpublished

This text of 703 F. App'x 817 (United States v. Ketut Pujayasa) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ketut Pujayasa, 703 F. App'x 817 (11th Cir. 2017).

Opinion

PER CURIAM:

After an earlier remand and resentenc-ing, Ketut Pujayasa appeals his 365-month sentence, imposed within the advisory guideline range after the district court departed upward by five levels. Pujayasa pleaded guilty to attempted murder, in violation of 18 U.S.C. § 1113, and aggra *819 vated sexual abuse, in violation of 18 U.S.C. § 2241(a)(1). On appeal, he raises four arguments. First, Pujayasa argues that the district court abused its discretion in imposing a two-level upward departure for extreme psychological injury pursuant to U.S.S.G. § 5K2.3. Second, Pujayasa argues that the court abused its discretion in imposing a three-level upward departure for extreme conduct pursuant to U.S.S.G. § 5K2.8. Third, Pujayasa contends that his sentence is procedurally unreasonable because the court failed to consider his post-sentencing rehabilitation. Last, Pujayasa argues that his sentence is substantively unreasonable. We address each argument in turn.

I.

We review an upward departure from the sentencing guidelines for an abuse of discretion. United States v. Flanders, 752 F.3d 1317, 1341 (11th Cir. 2014). We examine departures from the sentencing guidelines in three steps. United States v. Omar, 16 F.3d 1168, 1169 (11th Cir.), opinion modified on reh’g, 24 F.3d 1356 (11th Cir. 1994). First, we determine whether the guidelines adequately consider a particular factor, precluding a district court from using the factor as a basis for its departure. Id. Second, if the factor is not adequately considered by the guidelines, we must determine whether there is sufficient factual support for the court’s departure. Id. at 1170. Finally, if an adequate basis for the departure is found, we must weigh the reasonableness of the departure. Id. We assess reasonableness “in light of the factors to be considered in imposing the sentence, and the reasons the district court provided for departing.” United States v. Bias, 360 F.3d 1268, 1274 (11th Cir. 2004).

Under § 5K2.3, the departure provision for “extreme psychological injury,” a district court may depart from the guideline range if a victim “suffered psychological injury much more serious than that normally resulting from commission of the offense.” U.S.S.G. § 5K2.3. The extent of the psychological injury depends on its severity and the extent to which it was intended or knowingly risked. Id. A departure based on psychological injury is normally warranted “where there is a substantial impairment of intellectual, psychological, emotional, or behavioral functioning of a victim, when the impairment is likely to be of an extended or continuous duration, and when the impairment manifests itself by physical or psychological symptoms or by changes in behavior patterns.” Id, The district court should also take into account the extent to which the harm was likely, “given the nature of the defendant’s conduct.” Id. We have approved of § 5K2.3 departures in instances where victims felt perpetually unsafe or had become restricted their daily activities as the result of an offense. See, e.g., United States v. Sawyer, 180 F.3d 1319, 1324 (11th Cir. 1999) (holding that § 5K2.3 departure was proper where bank robbery victim, a teller, testified that she did not feel safe at work, was cautious entering and leaving bank, and had adjusted her daily routine, but vacating and remanding sentence on other grounds); United States v. Price, 65 F.3d 903, 912 (11th Cir. 1995) (holding that § 5K2.3 departure was proper where attempted murder victim had attended counseling, suffered from depression, contemplated suicide, no longer felt safe in his home, and had changed lifestyle to be “extra cautious”), partially abrogated on other grounds by Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

The district court did not abuse its discretion in imposing a two-level upward departure pursuant to § 5K2.3. The victim *820 impact statement and the letter of a board-certified psychologist provide sufficient factual support for the district court’s departure. The psychologist’s letter indicated that the victim, CLW, suffered post-traumatic stress disorder, major depressive disorder, and cognitive disorder, and the victim impact statement recounted the many ways in which Pujayasa’s attack had impacted CLW, causing her to live in fear, become incapable of being alone, and suffer from stress, fatigue, and nightmares. These facts evidence the substantial impairment of CLW’s psychological, emotional, or behavioral functioning, demonstrate marked changes in her day-to-day life, and are consistent with other cases in which we have upheld § 5K2.3 departures where a victim no longer felt sáfe or had become restricted in his daily activities.

II.

In calculating the applicable guideline range for criminal sexual offenses, the sentencing guidelines provide for a four-level enhancement where the offense involved conduct described in 18 U.S.C. § 2241(a) or (b), which prohibits causing another person to engage in a sexual act: (1) using force against the victim; (2) threatening or placing the victim in fear that he “will be subjected to death, serious bodily injury, or kidnapping”; (3) rendering the victim unconscious; or (4) administering a drug, intoxicant, or other substance that impairs the ability of the victim to appraise or control their conduct and then engaging in a sexual act with the victim. U.S.S.G, § 2A3.1(b)(1); 18 U.S.C. § 2241(a)-(b). The guidelines also permit a four-level enhancement where the victim sustains “permanent or life-threatening bodily injury.” U.S.S.G. § 2A3.1(b)(4).

Under § 5K2.8, a district court may depart from the guideline range in cases of “extreme conduct,” where a defendant’s actions are “unusually heinous, cruel, brutal, or degrading to the victim.” U.S.S.G. § 5K2.8. Extreme conduct includes torture, the gratuitous infliction of injury, or the prolonging of pain or humiliation. Id, We have joined other circuits in holding that “forced oral and anal sex may be especially degrading under § 5K2.8.” United States v. Lewis, 115 F.3d 1531, 1539 (11th Cir. 1997).

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Related

United States v. Price
65 F.3d 903 (Eleventh Circuit, 1995)
United States v. Lewis
115 F.3d 1531 (Eleventh Circuit, 1997)
United States v. Sawyer
180 F.3d 1319 (Eleventh Circuit, 1999)
United States v. Jose Blas
360 F.3d 1268 (Eleventh Circuit, 2004)
United States v. Damon Amedeo
487 F.3d 823 (Eleventh Circuit, 2007)
United States v. Docampo
573 F.3d 1091 (Eleventh Circuit, 2009)
Koon v. United States
518 U.S. 81 (Supreme Court, 1996)
Rita v. United States
551 U.S. 338 (Supreme Court, 2007)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Tome
611 F.3d 1371 (Eleventh Circuit, 2010)
United States v. Irey
612 F.3d 1160 (Eleventh Circuit, 2010)
United States v. Barrington
648 F.3d 1178 (Eleventh Circuit, 2011)
United States v. "Lnu" Omar A/K/A Fernandez, Omar
16 F.3d 1168 (Eleventh Circuit, 1994)
United States v. "Lnu" Omar AKA Fernandez Omar
24 F.3d 1356 (Eleventh Circuit, 1994)
United States v. Lavont Flanders, Jr.
752 F.3d 1317 (Eleventh Circuit, 2014)
United States v. Francisco Cubero
754 F.3d 888 (Eleventh Circuit, 2014)
Pepper v. United States
179 L. Ed. 2d 196 (Supreme Court, 2011)

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Bluebook (online)
703 F. App'x 817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ketut-pujayasa-ca11-2017.