Appeal from the United States District Court for the District of Idaho. D.C. No. CR91-0521 JMR. Harold L. Ryan, District Judge, Presiding
Before: Beezer and Hall, Circuit Judges, and Armstrong,**fn** District Judge.
The defendant, Donald Vaile, pled guilty to two counts of aggravated sexual abuse of a child, 18 U.S.C. § 2241(c). He appeals the sentence imposed based on alleged errors by the district court in (1) calculating the multiple count adjustment to the offense level; (2) including prior uncounseled misdemeanor convictions in the criminal history computation; and (3) refusing to depart from the applicable guideline range. We have jurisdiction under 18 U.S.C. § 3742. We AFFIRM.
The defendant, Donald Vaile, married Jackie Vaile on December 3, 1987. At the time, Ms. Vaile's two sons by a previous marriage were ages five and four. On several occasions after the family moved to Lapwai, Idaho in March 1989, Mr. Vaile sexually abused the two boys.
On May 14, 1991, Mr. Vaile was indicted for three counts of aggravated sexual abuse of a child, 18 U.S.C. § 2241(c), and three counts of abusive sexual contact, 18 U.S.C. § 2244(a). He pled guilty to two counts of aggravated sexual abuse of a child, 18 U.S.C. § 2241(c), on July 30, 1991.
A presentence report was prepared. The defendant filed objections to the presentence report, a motion for departure, and a sentencing memorandum with exhibits. In response to the defendant's motion for departure, the Probation Officer filed an amended presentence report.
A sentencing hearing was held on January 29, 1992 before the Honorable Harold L. Ryan. Judge Ryan sentenced Mr. Vaile to a term of imprisonment of 168 months which is within the applicable guideline range. On February 13, 1992, Judge Ryan filed his "FINDINGS OF FACT AND STATEMENT OF REASONS" which details his reasons for rejecting the defendant's objections to the presentence report, denying the defendant's motion for downward departure, and imposing the particular sentence.
I. The Multiple Count Adjustment
The Government contends that the defendant waived his objection to the multiple count adjustment by not presenting it to the trial court at the time of sentencing. See United States v. Smith, 905 F.2d 1296, 1302 (9th Cir. 1990). However, the court retains discretion to review waived objections based purely on law if no prejudice will be suffered by the opposing party. Id. Because the defendant presents a pure legal objection, we turn to the merits and review the district court's Conclusion de novo. United States v. Cipollone, 951 F.2d 1057, 1058 (9th Cir. 1991).
The defendant argues that the district court committed legal error by not grouping the two counts. Section 3D1.1 of the United States Sentencing Guidelines ("USSG") details the procedure for making the multiple count adjustment. The first step in the procedure is to "group the counts resulting in conviction into distinct Groups of Closely-Related Counts ("Groups") by applying the rules specified in § 3D1.2." USSG § 3D1.1(a)(1).
Section 3D1.2 excludes certain offenses from grouping. The Guidelines recognize that certain crimes, even when committed against the same victim on distinct occasions, involve "multiple, separate instances of fear and risk of harm, not one composite harm." USSG 3D1.2 App. Note 4. The present charge, sexual abuse of a child, is analogous to, and as compelling as rape, which is an example used in the Guidelines Note. In addition, section 3D1.2(d) includes a table which enumerates certain offenses that should not be grouped. Excluded offenses include "all offenses in Chapter Two, Part A." Defendant's two convictions for aggravated sexual abuse of a child, 18 U.S.C. § 2241(c), are covered in Chapter Two, Part A--specifically section 2A3.1. Thus, the trial court correctly assigned the two counts to separate groups.
The defendant nevertheless maintains that the clear guideline provisions should be ignored because they result in an impermissible double counting of criminal conduct. The defendant specifically objects to the fact that under both counts he received a two offense level enhancement pursuant to USSG § 2A3.1 because "the victim was . . . in the custody, care, or supervisory control of the defendant . . . ." The defendant contends that because there ...