United States v. Erick McKay
2015 U.S. App. LEXIS 38
8th Cir.2015Background
- Defendant Erick McKay pleaded guilty to two counts of abusive sexual contact with a child under 12 (18 U.S.C. § 2244) pursuant to a plea agreement that included a joint recommendation of 240 months (an upward departure from the Guidelines).
- Plea agreement recited admissions to two incidents of forcing the victim to touch his penis; PSR contained additional unobjected-to allegations of prolonged sexual abuse (ages 6–10), threats, physical abuse, and other sexual conduct.
- Revised PSR calculated an advisory Guidelines range of 100–125 months; parties jointly recommended 240 months (consecutive 120-month terms).
- District court filed notice it was considering an upward departure under U.S.S.G. § 5K2.0(a)(1)(B) based on McKay’s history of offending against children (including a prior murder of his infant son) and noncompliance with registration and probation requirements.
- At sentencing the court rejected the 240-month joint recommendation and imposed 360 months (two consecutive 180-month terms) plus lifetime supervised release, citing repeated offenses against children, continued risk, and the need to protect the public.
- On appeal McKay conceded the Guidelines calculation and that a departure was warranted but argued the further upward departure to 360 months was substantively unreasonable and relied on facts he did not admit or which were not proven at trial.
Issues
| Issue | McKay's Argument | Government/District Court Argument | Held |
|---|---|---|---|
| Whether the 360‑month sentence is substantively unreasonable | Sentence is based on unadmitted/unproven facts and excessive beyond parties’ joint recommendation | Court properly considered unobjected-to PSR facts and §3553(a) factors; district court has discretion to exceed joint recommendation | Affirmed — sentence not substantively unreasonable |
| Whether district court needed more specific findings to justify further upward departure | Court failed to make specific findings justifying departure to 360 months | Court articulated adequate §3553(a) consideration and reasons for greater departure (history, risk, noncompliance) | Affirmed — explanation adequate |
| Whether reliance on PSR facts McKay didn’t admit was improper | Using facts not admitted at plea or proved at trial is improper to enhance sentence | Unobjected-to PSR facts may be accepted as true for sentencing purposes | Affirmed — district court permissibly relied on unobjected-to PSR facts |
| Whether court misapprehended number of victims | Statement of Reasons says two victims, indicating factual error | Oral pronouncements and record show court referenced single victim; brief typo/reference to spared child witness explains language | Affirmed — single stray reference did not show fundamental misunderstanding |
Key Cases Cited
- United States v. Gall, 552 U.S. 38 (2007) (appellate review of sentence for reasonableness; district courts have discretion to vary from Guidelines)
- United States v. Feemster, 572 F.3d 455 (8th Cir. 2009) (sentencing review is narrow and deferential; unobjected-to PSR facts may be accepted)
- United States v. Kane, 639 F.3d 1121 (8th Cir. 2011) (substantive reasonableness standard; reversal is unusual)
- United States v. Lozoya, 623 F.3d 624 (8th Cir. 2010) (district court must weigh §3553(a) factors and not abdicate sentencing responsibility)
- United States v. Never Misses A Shot, 715 F.3d 1048 (8th Cir. 2013) (§5K2.0 departure requires case to significantly differ from the norm and reference to §3553(a) factors)
- United States v. Sample, 213 F.3d 1029 (8th Cir. 2000) (extent of departure is a judgment call; appellate courts defer to district court)