UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JESSICA JEAN CLARK, a/k/a Jessica Jean Kidd, Defendant - Appellant.
No. 19-7046 (D.C. No. 6:18-CR-00070-RAW-1) (E.D. Okla.)
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
December 9, 2020
PUBLISH
Before BRISCOE, MURPHY, and BACHARACH, Circuit Judges.
This matter is before the us on Defendant/Appellant‘s Petition for Rehearing. The petition is granted in part to the extent of the modifications on page 17 of the attached revised opinion. The court‘s November 17, 2020 opinion is withdrawn and replaced by the attached revised opinion, which shall be filed as of today‘s date. Because the panel‘s decision to partially grant rehearing resulted in only non-substantive changes to the opinion that do not affect the outcome of this appeal, Appellant may not file a second or successive rehearing petition. See
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JESSICA JEAN CLARK, a/k/a Jessica Jean Kidd, Defendant - Appellant.
No. 19-7046
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
December 9, 2020
PUBLISH
Barbara L. Woltz, Attorney (Julia L. O‘Connell, Federal Public Defender; Barry L. Derryberry and Robert S. Williams, Attorneys, with her on the briefs), Office of the Federal Public Defender for the Northern and Eastern Districts of Oklahoma, Tulsa, Oklahoma, appearing for Appellant.
Linda A. Epperley, Assistant United States Attorney (Brian J. Kuester, United States Attorney, with her on the brief), Office of the United States Attorney for the Eastern District of Oklahoma, Muskogee, Oklahoma, appearing for Appellee.
Before BRISCOE, MURPHY, and BACHARACH, Circuit Judges.
BRISCOE, Circuit Judge.
Defendant Jessica Clark pleaded guilty to one count of child neglect in Indian Country, in violation of
Clark now appeals, arguing that the district court committed two procedural errors during her sentencing. First, Clark argues that
Factual background
Defendant Clark is a Native American and enrolled member of the Cherokee Nation tribe. At the time of the events that resulted in Clark‘s arrest and conviction, Clark lived with her two minor children, nine-year-old P.H. and six-year-old J.H., in a house near Stilwell, Oklahoma, and on lands held in trust by the United States government for the Cherokee Nation. Clark‘s sister, Evelyn Israel, and Israel‘s two minor children, M.I. and K.I., also resided in the house at the time of the events in question.
Clark and her family lived in dire conditions. Clark‘s home had broken windows and no source of running water. As a result, Clark and her children relied either on bottled water or water obtained from a nearby creek. Clark had no driver‘s license and no vehicle, and thus relied on others to provide transportation for her and her children. Clark was unemployed and relied on disability payments that she received on behalf of P.H., who had been diagnosed with autism and ADHD. Clark regularly used marijuana and methamphetamine.
On Friday, September 8, 2017, P.H., J.H., and their two cousins, M.I. and K.I., were playing at the creek near Clark‘s house. The children climbed onto a log that sat above the creek and, at some point, P.H. fell off of the log and injured her right leg. The other children helped P.H. walk back to her house.
P.H. spent the majority of the next three days lying on the couch in the living room of her home. Over the course of that period, P.H. ate very little, her injured leg
Clark was interviewed by law enforcement officers after P.H.‘s death. Clark described P.H. as her “healthy child,” but noted that she occasionally took P.H. to the emergency room for treatment. Id. at 5. Clark noted that on the evening of the day that P.H. injured her leg, P.H.‘s leg began swelling and she showed signs of illness. Clark stated that she intended to take P.H. to the emergency room the following day, but ended up not doing so because the following day the swelling in P.H.‘s leg appeared to go down some and P.H. felt well enough to play. According to Clark, P.H. developed a fever and began vomiting on Sunday, September 10, 2017. Clark stated that several people in the household had recently had a stomach virus, and she believed that P.H. had contracted it and that was what was causing her fever and vomiting. On Monday, September 11, 2017, P.H. continued to have a fever and diarrhea. Clark stated that on the evening of September 11, P.H. ate peaches, drank ice water, and talked about wanting to go to school the next day. According to Clark, P.H. slept with her on the night of September 11, and the following morning P.H.
Israel was also interviewed by law enforcement officers. Israel stated that she witnessed Clark and her boyfriend, Kenneth Linville, smoking marijuana during the time period that P.H. was sick. Further, Israel stated that she suggested to Clark, during the time period that P.H. was sick, that their mother could come and take P.H. to the hospital, but Clark refused, saying that she expected P.H. to get better. Israel also noted that Clark owned a cell phone and was able to use it to make phone calls if she walked a very short distance from the home.
Law enforcement officials obtained records from the Oklahoma Department of Human Services which revealed approximately twenty-two referrals involving Clark and her children beginning in 1998. Of those referrals, only two, one in 2003 and
On October 6, 2017, a Cherokee Nation Child Abuse and Neglect Report was completed by Child Welfare Specialist Pam Edgar regarding allegations of neglect as to P.H. and J.H. Clark admitted to Edgar that she used marijuana and methamphetamine, and her admission was corroborated by her own medical records, which showed numerous positive urinalysis results, as well as by multiple collateral interviews. J.H. was found to have rotting teeth and Clark admitted to never having taken him to a dentist. J.H. was seen by a pediatrician and was determined to have an impacted bowel that required medical intervention to correct. Clark stated that J.H. had a history of defecating on himself, including at school, but she thought he would get better on his own. J.H. was also seen by an optemetrist who determined he needed glasses; J.H. had never been to an optometrist before. Edgar concluded that both P.H. and J.H. had been exposed to domestic violence in the home. As a result of Edgar‘s investigation, the Cherokee Nation Indian Child Welfare department recommended that a petition be filed and that J.H. remain in the custody of the Cherokee Nation until the conditions which led to his removal were corrected.
On July 18, 2018, a federal grand jury returned an indictment charging Clark with one count of child neglect in Indian Country, in violation of
On October 24, 2018, Clark appeared before a magistrate judge and entered a plea of guilty to the charge alleged in the indictment.
A presentence investigation report (PSR) was initially prepared on January 31, 2019. Under the section entitled “Offense Level Computation,” the PSR did not calculate an offense level for Clark. The PSR acknowledged that
Clark filed objections to the PSR. In pertinent part, she argued that
Clark subsequently filed a sentencing memorandum again arguing “that the most applicable” Guidelines provision was “the Assault guideline,” and that “[a]pplying that guideline result[ed] in a 0-6 month sentencing range.” ROA, Vol. 1 at 13. Clark also argued that the district court “should not apply the Involuntary Manslaughter guideline because the medical evidence show[ed] that [her] daughter died from an infection, not neglect.” Id. Ultimately, Clark asked the district court to “[i]mpose a one-year, time served sentence.” Id. at 25.
The government responded with its own sentencing memorandum. The government argued, in pertinent part, that Clark “pled guilty to a crime of omission, not one of commission,” and that, consequently, “the guideline for Assault [wa]s not analogous to the case at bar.” Id. at 49. The government in turn suggested that a range of “210-262 months . . . should serve as the starting point for an appropriate sentence” in this case. Id. at 53.
Counsel for the defendant objects to the lack of application of the most analogous guideline to provide for a guideline sentence. Counsel argues that the guideline for Assault at
United States Sentencing Guidelines Section 2A2.3 , or, in the alternative, the guideline for Involuntary Manslaughter atUnited States Sentencing Guideline Section 2A1.4 should be applied to the presentence report. * * ** * *
In this case, the defendant was charged with Child Neglect in Indian Country in violation of
18 United States Code, Sections 1151 and1153 , and21 Oklahoma Statute Section 843.5(C) . Pursuant toUnited States Sentencing Guideline Section 2X5.1 , if the -- if the offense is a felony for which no guideline expressly has been promulgated, the most analogous guideline is applied.However, if there‘s not a sufficiently analogous guideline, the provisions of
18 United States Code, Section 3553 shall control, except that any guidelines and policy statements that can be applied meaningfully in the absence of a Chapter 2 offense guideline shall remain applicable.In this case, there is no analogous guideline applicable to the charged offense. The defendant pled guilty to negligently omitting to provide her child with the proper care that was needed and that the child was legally entitled to receive. As such, it is a crime of omission and not commission. Since the evidence does not show that the defendant physically assaulted her children, the guideline for Assault is not sufficiently analogous to the case at bar. Similarly, pursuant to
18 United States Code, Section 1112 , Involuntary Manslaughter is defined as in the commission of an unlawful act not amounting to a felony, or inthe commission in an unlawful manner or without due caution and circumspection of a lawful act which might produce death. [P.H.] died after the defendant committed the felony crime of Child Neglect, an unlawful act of omission. Additionally, the indictment also alleges neglect of J.H. who did not die. Therefore, Involuntary Manslaughter is also not sufficiently analogous. Additionally, this Court has considered an elements-based approach similar to the categorical approach, and compared the elements of the offense of conviction to the elements of the offenses suggested by counsel for the defendant which are covered by the guidelines. However, the elements in this case are not sufficiently analogous to the elements of those offenses covered by the guidelines.
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Therefore, the Court finds that the presentence report accurately does not apply a guideline for the purposes of providing a guideline sentence. Accordingly, the defendant‘s objection number three is overruled.
ROA, Vol. 2 at 534–36.
Judgment in the case was entered on September 30, 2019. Clark timely appealed.
II
In her appeal, Clark argues that the district court committed two procedural errors during her sentencing. First, she argues that the district court committed reversible procedural error in “concluding that no analogous guideline existed.” Aplt. Br. at 9. According to Clark, the district court should have applied “[t]he guideline applicable to assault, [
Standard of review
Generally speaking, “[w]e review challenges to the procedural reasonableness of sentences for an abuse of discretion.” United States v. Worku, 800 F.3d 1195, 1201 (10th Cir. 2015). “[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.” Gall v. United States, 552 U.S. 38, 49 (2007). A district court commits procedural error, in pertinent part, by “failing to calculate (or improperly calculating) the Guidelines range,” “failing to consider the § 3553(a) factors,” “or failing to adequately explain the chosen sentence.” Id. at 51. In addition, “[a]n error of law is per se an abuse of discretion.” United States v. Sanchez-Leon, 764 F.3d 1248, 1262 (10th Cir. 2014) (quotations omitted).
If a defendant did not raise a procedural objection at the time of sentencing, we review any such objection only for plain error. United States v. Wireman, 849 F.3d 956, 962 (10th Cir. 2017). “We will find plain error only when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotations omitted).
Is there an analogous Guidelines provision?
Section 1B1.2(a) of the Sentencing Guidelines directs a district court, in calculating the advisory Guidelines sentencing range for a defendant, to begin by selecting the applicable Guidelines provision, if one exists, for the offense of conviction.
The commentary to
Background: Many offenses, especially assimilative crimes, are not listed in the Statutory Index or in any of the lists of Statutory Provisions that follow each offense guideline. Nonetheless, the specific guidelines that have been promulgated cover the type of criminal behavior that most such offenses proscribe. The court is required to determine if there is a sufficiently analogous offense guideline, and, if so, to apply the guideline that is most analogous. In a case in which there is no sufficiently analogous guideline, the provisions of
18 U.S.C. § 3553 control.The sentencing guidelines apply to convictions under
18 U.S.C. § 13 (Assimilative Crimes Act) and18 U.S.C. § 1153 (Indian Major Crimes Act); see18 U.S.C. § 3551(a) , as amended by section 1602 of Public Law 101-647.
The Third Circuit, which likewise applies an elements-based approach to determining whether there is a sufficiently analogous guideline provision under
To determine if a sufficiently analogous guideline exists in this case, it is necessary for us to begin by reviewing the elements of the crime of conviction. The Major Crimes Act (MCA), under which Clark was convicted, provides, in pertinent part, that “[a]ny Indian who commits against the person . . . of another Indian . . . felony child abuse or neglect . . . within the Indian country, shall be subject to the same law and penalties as all other persons committing . . . the . . . offenses, within the exclusive jurisdiction of the United States.”
Any parent or other person who shall willfully or maliciously engage in child neglect shall, upon conviction, be punished by imprisonment in the custody of the Department of Corrections not exceeding life imprisonment, or by imprisonment in a county jail not exceeding one (1) year, or by a fine of not less than Five Hundred Dollars ($500.00) nor more than Five Thousand Dollars ($5,000.00), or both such fine and imprisonment. As used in this subsection, “child neglect” means the willful or malicious neglect, as defined by Section 1-1-105 of Title 10A of the Oklahoma Statutes, of a child under eighteen (18) years of age by another.
First, a person responsible for the child‘s health, safety, or welfare;
Second, willfully/maliciously;
Third, failed/omitted to provide;
Fourth, adequate (nurturance and affection)/food/clothing/shelter /sanitation/hygiene)/(appropriate education)/(medical/dental/(behavioral health) care/supervision/(appropriate caretakers)/(special care made necessary by the physical/mental condition of the child);
Fifth, for a child under the age of eighteen.
Instruction No. 4-37, OUJI-CR (2d) (Supp. 2019).
Having outlined the elements of Clark‘s offense of conviction, we now consider potentially analogous Guidelines provisions. The district court in this case considered and ultimately rejected two possibly analogous provisions: involuntary
The “Involuntary Manslaughter” Guidelines provision,
If we were to compare the facts of Clark‘s offense to the elements of involuntary manslaughter, we might conclude that involuntary manslaughter is a sufficiently analogous offense. But, as previously noted, our precedent requires us to instead compare the elements of the offense of conviction to the elements of the analogous Guidelines offenses. And doing so removes involuntary manslaughter from serious consideration because the elements of involuntary manslaughter are significantly different than those of child neglect. To begin with, involuntary manslaughter, unlike child neglect, requires the killing of a human being. Although Clark‘s conduct in this case may have caused or at least contributed to P.H.‘s death, the offense of conviction does not require any type of injury to occur to a child, let alone death. Further, the means of committing involuntary manslaughter are significantly different than the means of committing child neglect. Specifically, the child neglect statute, unlike the involuntary manslaughter statute, does not require the defendant to act upon a sudden quarrel or heat of passion, commit an unlawful act not amounting to a felony, or commit in an unlawful manner, or without due caution and circumspection, a lawful act which might produce death. We therefore agree with the district court that involuntary manslaughter is not sufficiently analogous to Clark‘s offense of conviction for purposes of
Clark argues, as she did below, that the most analogous guideline is the “Assault” guideline,
The federal assault statute,
(5) Simple assault [i.e., offensive touching], by a fine under this title or imprisonment for not more than six months, or both, or if the victim of the assault is an individual who has not attained the age of 16 years, by fine under this title or imprisonment for not more than 1 year, or both.
(6) Assault resulting in serious bodily injury, by a fine under this title or imprisonment for not more than ten years, or both.
(7) Assault resulting in substantial bodily injury to a spouse or intimate partner, a dating partner, or an individual who has not attained the age of 16 years, by a fine under this title or imprisonment for not more than 5 years, or both.
(A) a substantial risk of death;
(B) extreme physical pain;
(C) protracted and obvious disfigurement; or
(D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty
We have held that the essential elements of assault under
Comparing the elements of Clark‘s offense of conviction to the elements of federal assault, it is apparent that there are significant differences between the two. Most notably, the offense of child neglect does not require an affirmative act on the part of the defendant, but rather only willful or malicious neglect, i.e., the failure to
Clark, for her part, points to the Third Circuit‘s decision in Jackson. The defendants in Jackson, a United States Army officer and his wife, “were convicted of conspiracy to endanger the welfare of a child and endangering the welfare of a child under New Jersey law—offenses that were ‘assimilated’ into federal law pursuant to the
We conclude that Jackson is distinguishable from Clark‘s case in at least two key respects. First, the New Jersey offenses at issue in Jackson effectively required the jury to find that the defendants committed simple assault on their foster children. In other words, the jury had to find that the defendants engaged in affirmative acts. In contrast, the Oklahoma child neglect offense that Clark was convicted of did not require any such finding. Second, and relatedly, the very nature of the New Jersey offenses at issue in Jackson, as detailed in the indictment that was returned against the defendants, established that the criminal conduct at issue was intentional in nature, i.e., the defendants, by both their actions and omissions, intended to inflict harm or suffering on their foster children. Here, in contrast, there has been no allegation, let alone a statutory requirement, that Clark intended to inflict harm or suffering on her daughter.
For the foregoing reasons, we affirm the district court‘s conclusion that there is no sufficiently analogous Guideline for purposes of
Did the district court plainly err by failing to explain the reasoning for the sentence it imposed?
As a threshold matter, we note that Clark concedes that her trial counsel did not assert a contemporaneous objection to the district court‘s failure to explain the reasoning for the sentence it imposed, and that, as a result, our plain-error analytical framework applies to the claim. See United States v. Yurek, 925 F.3d 423, 444 (10th Cir. 2019) (“To preserve an appellate issue involving the district court‘s explanation for a sentence, the defendant must lodge a contemporaneous objection.“) (quotations omitted).
(c) Statement of reasons for imposing a sentence.--The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence—
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(2) is not of the kind, or is outside the range, described in subsection (a)(4), the specific reason for the imposition of a sentence different from that described, which reasons must also be stated with specificity in a statement of reasons form issued under section 994(w)(1)(B) of title 28, except to the extent that the court relies upon statements received in camera in accordance with Federal Rule of Criminal Procedure 32.
Consistent with these statutory directives, the Supreme Court has held that a sentencing court commits procedural error by “failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Gall, 552 U.S. at 51. More specifically, a district court “must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing.” Id. at 50; see also Rita v. United States, 551 U.S. 338, 356 (2007) (“The sentencing judge should set forth enough to satisfy the appellate court that he [or she] has considered the parties’ arguments and has a reasoned basis for exercising his [or her] own legal decisionmaking authority“). If a district court imposes a within-Guidelines sentence, “it must provide only a general statement of its reasons, and need not explicitly refer to either the
Applying the plain-error framework to the case at hand, we have little trouble concluding that the first two prongs of the plain error test are satisfied in this case. At the conclusion of the three-day sentencing hearing, the district court made no factual findings based upon the evidence presented by the parties, and instead simply announced that it was imposing an 84-month sentence on Clark. In doing so, the district court offered only the following brief explanation for the sentence it imposed:
In formulating the sentence imposed, this Court has considered the nature and circumstances of the offense, as well as the characteristics and criminal history of the defendant. The Court has further taken into consideration the sentencing guideline calculations contained within the presentence report, in addition to any objections, clarifications, additions or deletions to those guideline calculations identified in the addendum to the report or announced in open court today. While the Court recognizes that it is not bound by the sentencing guideline calculations, the Court has considered them and finds them to be advisory in nature.
The sentence prescribed by this Court reflects the seriousness of the offense, promotes respect for the law, and provides just punishment for the offense. This sentence affords adequate deterrence to criminal conduct, protects the public from further crimes of this defendant, and provides correctional treatment for the defendant in the most effective manner. The Court has further determined that this sentence is reasonable and sufficient, but not greater than necessary, to meet the objectives and requirements set forth in 18 United States Code, Section 3553(a). The Court notes for the record that, based upon all presently known legal and factual factors, this is the same sentence the Court would impose if given the broadest possible discretion, and the same sentence the Court would impose notwithstanding any judicial fact finding occurring by adoption of the presentence report or at this hearing.
ROA, Vol. II at 556-57. This explanation did little more than recite the factors outlined in
We note that the Supreme Court has “left open the possibility that some errors ‘should be presumed prejudicial if the defendant cannot make a specific showing of prejudice.‘” United States v. Bustamante-Conchas, 850 F.3d 1130, 1138 (10th Cir. 2017) (quoting United States v. Olano, 507 U.S. 725, 735 (1993)). Thus, for
Id. In a somewhat similar vein, the Supreme Court has held that in cases where the district court improperly calculated the advisory Guidelines range but sentenced the defendant to a term within the correct range, “an incorrectly calculated Guidelines range standing alone suffices to show ‘a reasonable probability of a different outcome,‘” and that, “‘[a]bsent unusual circumstances,’ . . . a defendant is not ‘required to show more.‘” Id. (quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 1346–47 (2016)).
As previously discussed, the purpose of a district court‘s explanation of its chosen sentence is two-fold: (1) to promote the perception of fair sentencing; and (2) to allow for meaningful appellate review. Gall, 552 U.S. at 50. We conclude that the focus of the third prong of the plain error test in the unique circumstances we face here must be on those two purposes, and not on whether the district court would have imposed a different sentence had it offered an adequate explanation.
In the vast majority of criminal cases, there will be an applicable Guideline provision and, in turn, a total offense level and an advisory Guidelines sentencing range. As a result, both the defendant and the appellate court in those cases will at least be aware of the district court‘s starting point for determining the sentence imposed, and will thus have a workable frame of reference, even if the district court
As for the fourth prong of the plain error test, the Supreme Court has held that “[o]nce [the first] three conditions have been met, the court of appeals should exercise its discretion to correct the forfeited error if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Molina-Martinez, 136 S. Ct. at 1343. We conclude that this standard is satisfied in this case for essentially the same reasons as outlined above regarding the discussion of the third prong of the plain error test. In short, the district court‘s failure to explain the reasons for its sentence in a case like this, where there is no applicable Guideline
For these reasons, we conclude that the district court committed plain error when it failed to explain the reasons for the sentence it imposed on Clark, and that the error must be corrected by remanding the case to the district court for resentencing, which shall include a “complete explanation” of the sentence ultimately imposed. Chavez-Mesa v. United States, 138 S. Ct. 1959, 1965 (2018). We do not tether the district court on remand to its prior 84-month sentence; rather, our remand is a general remand for resentencing. See United States v. West, 646 F.3d 745, 748 (10th Cir. 2011) (noting that
III
We AFFIRM the district court‘s conclusion that there is no sufficiently analogous Guideline provision, but REMAND to the district court with directions to vacate Clark‘s sentence and to conduct a resentencing, which shall include an explanation of the reasons for the sentence ultimately imposed.