Beruflich Dokumente
Kultur Dokumente
No. 95-1059
Appellee,
v.
HAROLD L. DOLLOPH,
Defendant, Appellant.
____________________
____________________
Before
____________________
Thomas A. Zonay, by
_______________
Carro
_____
on brief for
the Uni
____________________
February 1, 1996
____________________
____________________
_____________
pled guilty
to one
four counts of
count of
18 U.S.C.
At the sentencing
judge
departed
pornography,
firearm.
possessing child
of engaging
5861.
upward
two
levels
from
the
applicable
240
months imprisonment.
Dolloph
now
appeals
from
his
The
facts, which we
the presentence
submissions at
F.3d
report, sentencing
sentencing.
hearing transcript,
United States
_____________
Cir. 1995).
taken from
At various
v. Egemonye,
________
and
62
times prior to
the same
Hampshire.
mother--stayed at
In that month,
great-nieces--all children of
Dolloph's home
in Swanzey,
New
her children
that they would be staying with Dolloph again while she moved
daughters,
The
with Dolloph in
in sexual activity
with them;
-2-2-
to
statutory rape,
commonly described as
involved a
variety
unnatural or
of other
practices
degrading, and
as well as
girls,
some of TL11 in
handcuffs.
As described
included
Dolloph
by the
different occasions.
apartment.
What
they
found
sexual encounter
indicating
that
with TL8,
Dolloph
lesser
acts
included
searched Dolloph's
sexually
explicit
and other
had
abused
tape and
other
photographs
young
girls.
of abuse.
The
latter
he admitted to
were, in
any
event,
the
superseding indictment
Dolloph
involving
was charged in
the children
returned
on January
jury.
20,
In
1994,
11 counts; 10
related to misconduct
and the
charged Dolloph
last
with
unlawful
had
found
possession of a
in
their
psychiatric examination
search
of his
found
apartment.
Dolloph
-3-3-
the police
competent
After
to
to the six
stand
counts
weapon.
At
a sentencing
government presented
testified
that TL8
severely than
most
hearing
on
December
a psychologist, Dr.
19,
that I
the
children
1994,
have
damage "more
seen
that
have
Dr. Ward
said that
this might
well also
departed
sentenced
upward
by two
levels
to
level
be true
of TL11.
level as 35 and
37.
The
court
1.
upward departure.
The
presentence report
identified as
a court to
psychological injury
resulting
from
much
or victims suffered
more serious
commission of
the
than that
offense.
normally
. ."
The
government did not urge any other basis for a departure prior
Ward--testified
United States
_____________
district
identified
judge
in
v. Burns,
_____
501 U.S.
129, 138-39
proposes
the
to
depart
presentence report
-4-4-
on
or
any
by
(1991),
notice if the
ground
not
a government
submission filed
in
advance of
the
hearing.
Here,
says
in addition to
in advance.
The
grounds for
damage to
the two
girls is patent.
court's remarks
written
at the sentencing
"departure
explanation."
suffered
norm";
finding,
Both
two page
stress,
in
TL8 had
and
the written
by a
explanation,
preponderance
sentence
"should reflect
of
the
contains an
evidence,
explicit
that
the
nature
of
the
injury
TL11
the
that
But--Dolloph
written explanation,
particularly insulting
the
district
court
referred
to
the
to U.S.S.G.
refer
instead to
departure
section
5K2.0,
provision allowing
which
departures
-5-5-
is
the
catch-all
for factors
"of a
kind, or
to a degree,
guidelines.
an
although
no
Dolloph's
fixing the
advance
3553(b)).
could be
5K2.8,
notice of
relationship to
the
this
ground
victims
was
Burns' requirement of
_____
Id.
___
considered
in
substantially in excess
was provided.
2A3.1(b)(3), 2G2.1(b)(2),
degree
in the
of that which
5K2.0.
ordinarily is
And, in any
event,
not met
in either case.
and
breach of
trust were
independent
___________
grounds for
explanation,
the judge
that
the
intended
the
departure.
spoke of
the
trial judge
In
the
continue to
the
as
by saying
younger, suffered
as
written
egregious conduct
he followed it immediately
victims, particularly
would likely
by the
the future.
and
In
the extent
States v.
______
of the
damage it inflicted.
Anderson, 5 F.3d
________
See,
___
e.g., United
____ ______
1993), cert.
_____
-6-6-
relationship,
latter
with the
defendant
"allowed
relationship."
trust
The
enhanced
written
her
to
fear
the
suggestion may be
the
damage.
discussion of
of
[their]
Again,
the
the fiduciary
loss
of
district court's
breach
occurs in
the
of severe damage.
on account of
damage to the
the earlier
5K2.3).
Thus, the
section is easily
have
been
explanation
quoted,
overlapped
of why it
guideline
court's reference to
explained.
And
the district
with
the
court's
broader
particular sentence
least
asked the
rationale.
district court
degree of
factors
clarify its
the
to
In deciding whether to
uncertainty
sometimes
play a
is the
silent
sentencing
26 F.3d 213,
219-20
remand or inquire,
main element,
extent
of the
nature
-7-7-
role: the
but other
Here, there is
result on remand.
evidence, amply
alone,
and
no realistic possibility of
supported
damage
principal theme.
was
If
the
departure
certainly
the disputed
the
a different
based
district
references to
that
would
the
district court
enhancement--and
occurred, and
impose the
30 additional months--as
we doubt
it did,
it was
on
damage
court's
degrading
whatever
same
two level
before.
If error
assuredly harmless.
There
departure.
the
is no
merit to
Dolloph's other
attacks on
the
not interviewed
transcripts and
of
what would
matters
went to
constitute only
the weight of
qualified, subjected
"normal" damage.
the evidence.
But these
to cross-examination, and
supported in
own
videotapes,
the
presentence
report,
victim
impact
was
unable
to say,
"to
reasonable
degree
of
medical
certainty," that
the harm
was abnormally
severe; she
said
-8-8-
. . .
indication" to that
effect.
damage
available
here,
the
defendant's
conduct
and
the
damage
ascribed
to
the
children were
within
layperson's ken.
sustained.
United States v.
_____________
Cir. 1995).
2.
sentence,
We
turn now
to
the remaining
challenges to
to sentence the
the offense.
the
They
conduct underlying
(1992).
This is
conduct.
13 and
each
16, respectively.
contains
considerably
2G2.1, if
U.S.S.G.
cross-reference
2G2.4, 2G1.2.
that makes
Yet,
applicable
the
offense
conduct
-9-9-
included
"causing
[or]
transporting
conduct for
. .
. a minor
the purpose of
to engage in sexually
producing a visual
explicit
depiction of
The presentence
report found
or indicated
that as
to
such
conduct (count 6) or
(counts
findings.
and
and
Dolloph contests
the evidence
home
9),
the
district
court
adopted
the
he says, showed
as a `mere
any
Without
evidence,
it
discussion
is
by
difficult
Photographs, interview
Dolloph
to
of
consider
the
his
pertinent
contention.
tape evidence
photographs
evidence related to
Very little
events
can
of what
be
transcript itself.
the parties
easily
understood about
reconstructed
from
the
specific
hearing
There
is some indication
-10-10-
language
v. Ellis,
_____
935
F.2d 385
(1st
____________
court
had
instructed
transportation statute,
activity
"not a
the
jury
having the
that
to
violate
child
engage in
the
sexual
Id. at 389.
___
This court
Four
of
the
Id. at 390.
___
cross-reference findings
(pertaining
to
count 6)
the Ellis
_____
language
is irrelevant.
7 and
apparently
us little
The
other
two (counts
9)
about the
concluding that
specific events, we
the district
court erred
have no
basis for
in accepting
the
presentence report.
this instance we
findings.
given to the
in
reference.
a minor
(counts 8 and
report found,
and the
district court
the probation
adopted the
finding,
-11-11-
sexual
abuse."
guideline,
U.S.S.G.
provides a
speaking,
18 U.S.C.
The
defined
A cross-reference
2G1.2(c)(2),
in
the
transportation
provides that in
Id.
___
such a
that guideline
2A3.1.
Broadly
2241-42. U.S.S.G.
cited
by 18
code
U.S.C.
sections govern
2245,
"sexual
which are
act[s],"
as
made unlawful
in
specified
forbids
situations, of which
sexual relations
U.S.C.
2241(c).
chapter
itself, id.
___
occurring
in
"the
jurisdiction of
E.g.,
____
18
As
with children
under
2241-45,
special
is
confined
maritime
U.S.C.
pertinent here
2241(a).
or in a
Because
and
twelve.
18
sexual abuse
to
conduct
territorial
Federal prison."
no
such
federal
The
offense
plea,
the
defendant
is
ordinarily
Whatever the
subject
to
of conviction."
not contest
U.S.S.G.
the principle.
abuse
as defined
1B1.3(a)(1).
his treatment of
by
the federal
is that--
TL8 amounted to
statutes--those
sexual
statutes
-12-12-
include
jurisdictional
element
not
here
satisfied.
Therefore,
he
concludes,
the
cross-reference
is
not
pertinent.
But
the
identifying
conduct,
the
abuse
guideline
proper penalty
here, the
intent of
section
sexual
for
mistreatment of
is
the underlying
TL8.
the guidelines--specifically,
that
takes
us to
the
sexual
that conduct.
concerned
So long
It is
with
sexual
the plain
the cross-reference
abuse guideline--to
as the guidelines
ordinarily be punished
it includes
conduct for
which the
court lacks
or not
independent
986
F.2d 44,
47 (3d
113 S.
Ct. 2457
(1993).
Finally,
justify
Dolloph
the district
argues
that
court finding
If
the
evidence
that
did
sexual acts
not
were
that Dolloph's
conduct violated
the sexual
comparison of
abuse statutes,
Affirmed.
________
-13-
the statute
-13-