Appeal from the United States District Court for the Eastern District of Washington. D.C. No. CR-92-138-01-WFN. Wm. Fremming Nielsen, District Judge, Presiding
Before: Canby, Wiggins, T.g. Nelson, Circuit Judges
In May of 1992, a grand jury indicted Calvin Carden for two counts of aggravated sexual abuse, two counts of abusive sexual contact, and one count of sexual abuse of a minor. He pleaded guilty to two counts of abusive sexual contact in violation of 18 U.S.C. §§ 2244(a)(1) & 2244(a)(3) and was sentenced to 24 months imprisonment. Carden appeals his sentence because he believes it represents an unwarranted upward departure from the Sentencing Guidelines.*fn1 We affirm.
A district court may depart upward from the sentencing range recommended by the Sentencing Guidelines only if the court identifies an aggravating circumstance "'that was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.'" United States v. Streit, 962 F.2d 894, 901-02 (9th Cir.) (quoting 18 U.S.C. § 3553(b)), cert. denied, 113 S. Ct. 431 (1992); United States v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir. 1991) (en banc). On appeal, we must determine whether the district court had legal authority to depart. This determination involves a two-part inquiry: (1) Did the district court identify an aggravating circumstance of a kind or to a degree the Sentencing Commission did not adequately take into account when formulating the Sentencing Guidelines? (2) Is departure on the basis of the identified aggravating circumstance consistent with the sentencing factors prescribed by Congress in 18 U.S.C. § 3553(a), with the Guidelines, and with the Constitution? Lira-Barraza, 941 F.2d at 746. Both inquiries present questions of law that we review de novo. Id. We review for clear error the factual findings supporting the existence of the identified circumstance. Id. (citing 18 U.S.C. § 3742(d)). Finally, we must determine whether the departure was reasonable. Id. at 747; Streit, 962 F.2d at 902.
Carden contends that the district court failed to identify an aggravating circumstance that the Sentencing Commission did not take into account adequately. We disagree. The district court departed upward from the sentencing range under the Guidelines because the applicable version of the Guidelines failed adequately to account for the age of the victim and because the abusive sexual contact occurred regularly over the course of five years. Carden argues that these factors were already taken into account by the provisions of §§ 3A1.1 & 3D1.2. We disagree.
The 1988 Guidelines, which applied to Count III of the indictment against Carden, assigned the base offense level for abusive sexual contact without regard to the age of the victim. Subsequently, § 2A3.4 was amended to require an increase of four to six levels if the victim was under twelve years of age.*fn2 Noting this fact, the district court concluded that the 1988 Guidelines failed adequately to take into account the age of the victim. The court stated:
[For] the conduct involving an 8 or 9 year old girl[, there] is a much less severe penalty or punishment than in 1992 when she is a 14 year old and that doesn't seem right. That seems upside down to the Court.
The Court does believe that the circumstances that I outlined a minute ago [age of the victim and the frequency and duration of the abuse] were not taken into account by the sentencing commission in 1988.
The Eighth Circuit has indicated that the age of the victim "is an adequate, sufficiently unusual circumstances to justify upward departure" under the 1988 Guidelines. Morin 935 F.2d at 145. We agree.
Moreover, we conclude that the length and frequency of the abuse also justified departing upward from the Sentencing Guidelines. Carden maintains that the length and frequency of the abuse have already been accounted for under the provisions of § 3.D1.2, governing sentencing on multiple counts. We disagree. The grouping provisions accounted only for the conduct to which Carden pleaded guilty. The district court, however, found that Carden molested the victim in this case repeatedly from the time she was 8 or 9 until she was about 14. The court felt that the grouping provisions and other provisions of the Guidelines failed adequately to consider the duration and frequency of the abuse in this case. We agree. See United States v. Zamarripa, 905 F.2d 337, 341-42 (10th Cir. 1990) (rejected by this court on other grounds but indicating that "an upward departure may be supportable on the basis of . . . multiple sexual contacts with same victim").
At first glance, Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990), and its progeny appear to support Carden's argument that the district court should not have considered dismissed counts or uncharged conduct as a basis for departing from the Guidelines. While Carden did not cite Castro-Cervantes to this ...