Appeal from the United States District Court for the District of Arizona. D.C. No. CR-92-00481-JMR. John M. Roll, District Judge, Presiding.
Before: Donald P. Lay,*fn** Cynthia Holcomb Hall and David R. Thompson, Circuit Judges. Opinion by Judge Thompson.
Larson Foster Chatlin, Jr. pleaded guilty to sexual abuse of a minor on an Indian reservation, a violation of 18 U.S.C. §§ 1153 and 2243(a). He appeals the sentence imposed under the United States Sentencing Guidelines (the guidelines) after we vacated and remanded his previous sentence.
In the prior appeal, United States v. Chatlin, No. 93-10124 (9th Cir. Jan. 4, 1994), we held in an unpublished Disposition that the district court erred in basing its upward departure on conduct constituting aggravated sexual abuse, a crime that had not been charged pursuant to Chatlin's plea agreement. We directed the district court on remand to consider only the conduct alleged in the counts charging sexual abuse of a minor and not conduct that would constitute aggravated sexual abuse.
On remand, the district court imposed the same sentence as before - 135 months, an upward departure of 102 months. In the present appeal, Chatlin contends the district court disregarded our remand by again analogizing his conduct to aggravated sexual abuse. Chatlin further argues the district court also erred in departing upward on the basis of extreme conduct, harm resulting from repetitive abuse, and extreme psychological injury to the victims. Finally, Chatlin contends the district court erred by failing to explain the extent of its departure in relation to "the structure, standards and policies" of the Sentencing Guidelines. United States v. Lira-Barraza, 941 F.2d 745, 751 (9th Cir. 1991) (en banc). We affirm in part, reverse in part, and vacate and remand for resentencing.
Chatlin was originally charged with five counts of sexual abuse of a minor. Counts I, II and III concerned Minor T, a victim unrelated to Chatlin. Minor T was thirteen years old when Chatlin initiated a consensual sexual relationship with her.
Counts IV and V concerned Minor S, Chatlin's stepdaughter. Starting when Minor S was approximately eleven years old, Chatlin forcibly molested and sodomized her two to three times a week.
Chatlin pleaded guilty to Count I, a violation of 18 U.S.C. § 2243(a),*fn1 sexually abusing a minor. In exchange, the government dismissed Counts II through V, and agreed not to seek a superseding indictment charging Chatlin with aggravated sexual abuse, 18 U.S.C. § 2241,*fn2 or with abuse of his male stepchildren.
With regard to sentencing, Chatlin and the government stipulated that Counts II and III could be considered. Although this circuit generally forbids considering dismissed counts in sentencing, see United States v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990), Chatlin agreed to waive that protection as to "the conduct set forth in Counts IV and V" if the government could prove that conduct had occurred.
The first sentencing hearing began on December 18, 1992. On February 4, 1993, the court found the government had proved the conduct alleged in Counts IV and V by a preponderance of the evidence. Analogizing Chatlin's conduct to aggravated sexual abuse, the court imposed a $500 fine and sentenced him to 135 months in prison, to be followed by 36 months of supervised release.
Chatlin appealed this sentence, contending that by sentencing him for aggravated sexual abuse, the district court had deprived him of the benefit of the plea agreement. We agreed and vacated his sentence, remanding with instructions that "when resentencing, the district court may consider only the conduct alleged in counts two through five, sexual abuse of a minor, and may not consider conduct that would constitute aggravated sexual abuse."*fn3
The district court resentenced Chatlin on April 18, 1994. Once again, the court imposed a $500 fine and sentenced him to 135 months in prison, followed by 36 months of supervised release. The district court cited three grounds for its upward departure: extreme conduct, the repetitive harm resulting from long-term sexual abuse, and extreme psychological harm. The court also incorporated comments it made at the previous sentencing hearing. In these comments, the court relied once again on conduct constituting aggravated sexual abuse. This appeal followed.
In imposing a sentence, a district court may depart from the guidelines when it finds aggravating circumstances of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in ...