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United States v. Gieswein

United States Court of Appeals, Tenth Circuit

April 16, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
SHAWN J. GIESWEIN, Defendant-Appellant.

          Appeal 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 Plaintiff-Appellee.

          Before LUCERO, MATHESON, and McHUGH, Circuit Judges.

          LUCERO, Circuit Judge

         Shawn 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.

         Although 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.

         I

         In 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.

         A 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.

         The 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.[1] 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.

         The 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.

         We 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).

         In 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.

         An 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 maximum.[2]

         At 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.[3]

         II

         We 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). ...


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