from the United States District Court for the Western
District of Oklahoma (D.C. No. 5:07-CR-00120-F-1)
Meredith B. Esser, Assistant Federal Public Defender
(Virginia L. Grady, Federal Public Defender, on the briefs),
Office of the Federal Public Defender, Districts of Colorado
and Wyoming, for Defendant-Appellant.
Nicholas J. Patterson, Assistant U.S. Attorney (Mark A.
Yancey, U.S. Attorney, and Virginia L. Hines, Assistant U.S.
Attorney, on the briefs), Office of the United States
Attorney, Western District of Oklahoma, for
LUCERO, MATHESON, and McHUGH, Circuit Judges.
LUCERO, Circuit Judge
Gieswein appeals his sentence pursuant to convictions for
witness tampering and possession of a firearm as a felon. We
agree with Gieswein that the district court erred in applying
a circumstance-specific approach to determine that his prior
conviction for lewd molestation in Oklahoma state court
qualified as a "forcible sex offense" and thus a
"crime of violence" under the Sentencing
Guidelines. Recent changes to the Guidelines have not
abrogated our prior decisions holding that the categorical
approach applies in determining whether a conviction
qualifies as a "forcible sex offense." Because the
Oklahoma statute includes conduct that would not qualify,
Gieswein's conviction should not have been treated as a
crime of violence.
an erroneously calculated Guidelines range generally requires
resentencing, this is the rare case in which the error was
harmless. At Gieswein's original sentencing hearing, the
district court varied upward to 240 months' incarceration
based on Gieswein's criminal history. Following the
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), Gieswein was resentenced
with a substantially lower Guidelines range. The district
court nevertheless re-imposed a sentence of 240 months,
indicating it would have gone higher but for the statutory
maximum. Given this procedural posture, the district
court's thorough explanation for the sentence imposed,
and the constraining effect of the statutory maximum, it is
clear that the district court would have imposed the same
sentence had it not erred in treating Gieswein's lewd
molestation conviction as a crime of violence. We further
conclude the sentence is substantively reasonable. Exercising
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291, we affirm.
2006, law enforcement officers discovered a .22 caliber rifle
in Gieswein's home in Woodward County, Oklahoma while
executing a search warrant. Because Gieswein had a number of
prior felony convictions, he was charged with illegally
possessing a firearm in violation of 18 U.S.C. §
922(g)(1). He was later charged with witness tampering in
violation of 18 U.S.C. § 1512(b)(1). Gieswein was
convicted on both counts.
Presentence Investigation Report ("PSR") determined
that Gieswein had three prior convictions qualifying as
violent felonies under the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e), all from
Oklahoma state court: (1) destruction of property by
explosive device; (2) lewd molestation; and (3) first-degree
burglary. Based on a total offense level of 33 and a criminal
history category of IV, his recommended Guidelines range was
188 to 235 months' imprisonment.
government moved for an upward variance based on
Gieswein's lengthy criminal record. It noted that
Gieswein was convicted in 1995 of destroying a car with a
pipe bomb. While under a suspended sentence for that crime,
Gieswein was convicted of lewd molestation. And while under a
suspended sentence for lewd molestation, Gieswein committed
first-degree burglary by breaking into his
ex-girlfriend's home and stealing several items of
property. Gieswein violated a protective order against that
ex-girlfriend on two other occasions. Also while under a
suspended sentence for lewd molestation, Gieswein embezzled
over $3, 000 from his employer. At the time of his original
sentencing, Gieswein was subject to pending charges for
failing to register as a sex offender. Additionally, Gieswein
surreptitiously filmed women in intimate situations on
numerous occasions. In one instance, he recorded himself
molesting his aunt, who was undergoing treatment for cancer,
while she slept. Another video included a child.
district court adopted the recommended Guidelines range. But
it concluded that an upward variance was appropriate because
the Guidelines did "not give sufficient effect to the
depth and the breadth, the persistence and the depravity and
the harmfulness of the criminal conduct of this
defendant." The court stated that Gieswein had engaged
in "a broader range of criminal activity than I have
ever seen out of a single defendant, " and imposed a
sentence of 240 months.
affirmed Gieswein's convictions on direct appeal.
United States v. Gieswein, 346 F. App'x 293, 297
(10th Cir. 2009) (unpublished). He has since filed a number
of unsuccessful pleadings collaterally attacking his
conviction and sentence. See In re Gieswein, No.
13-6206 (10th Cir. Sept. 24, 2013) (unpublished); In re
Gieswein, No. 13-6022 (10th Cir. Feb. 21, 2013)
(unpublished); United States v. Gieswein, 495 F.
App'x 944, 945 (10th Cir. 2012) (unpublished).
2015, Gieswein sought permission to file a successive 28
U.S.C. § 2255 motion based on the Supreme Court's
decision in Johnson, which struck down ACCA's
residual clause as unconstitutionally vague. 135 S.Ct. at
2563. After the Supreme Court held that Johnson
applies retroactively to cases on collateral review,
Welch v. United States, 136 S.Ct. 1257, 1265 (2016),
we granted Gieswein authorization to file a second §
2255 motion. The government conceded that Gieswein's
prior conviction for lewd molestation no longer qualified as
a violent felony and the district court vacated his sentence.
addendum to Gieswein's original PSR noted Gieswein's
prison disciplinary record, which included eight incidents,
as well as a pending charge for assault and battery upon a
police or other law officer related to an incident that
occurred shortly before his original sentence was imposed.
The addendum to the PSR recommended a base offense level of
24. Although Gieswein's prior conviction for lewd
molestation no longer qualified as a violent felony under
ACCA, the PSR stated that it was a "crime of
violence" under the definition of "forcible sex
offense" provided in U.S.S.G. § 4B1.2(a)(2) and
application note 1. Gieswein contended that the offense did
not qualify as a crime of violence. The government again
moved for an upward variance, arguing that Gieswein should be
resentenced to 240 months, the statutory
resentencing, the district court overruled Gieswein's
objections and adopted the PSR's findings. With a base
offense level of 24, a two-level enhancement for obstruction
of justice, and a criminal history category of IV,
Gieswein's amended Guidelines range was 92 to 115 months.
The court found that the new Guidelines range "falls far
short of reflecting the extent to which Mr. Gieswein is a
menace to society" and announced its intention to vary
upward substantially. It stated that Gieswein's criminal
history was "remarkable not only for the seriousness of
the defendant's criminal conduct but for, if you will,
the diversity of it." After reviewing that history in
detail, the court reiterated its comments from the original
sentencing hearing that the Guidelines failed to "give
sufficient effect to the depth and the breadth and the
persistence and the depravity and the harmfulness of this
defendant's criminal conduct, " concluding that this
statement "is even more true now with the additional
assault case." Citing incapacitation as its predominant
motivating factor under 18 U.S.C. § 3553(a), the court
varied upward to the statutory maximum of 240 months. It
indicated that it would have gone higher if not for that
maximum. Finally, the court noted that its conclusion
"would be the same even if all of the defendant's
objections to the presentence report had been
successful." Gieswein timely appealed.
review the overall reasonableness of a sentence in two steps.
First, we "ensure that the district court committed no
significant procedural error." United States v.
Sanchez-Leon, 764 F.3d 1248, 1261 (10th Cir. 2014)
(quotation omitted). The procedural reasonableness of a
sentence is reviewed for "abuse of discretion, under
which we review de novo the district court's legal
conclusions regarding the guidelines and its factual findings
for clear error." United States v. Gantt, 679
F.3d 1240, 1246 (10th Cir. 2012). ...