DefendanU-Appellant Joe Alfonso Waseta pleaded guilty to one count of sexual abuse of a minor, in violation of 18 U.S.C. §§ 2243(a), 2246(2)(B), and 1153, for a sexual act committed against his stepson in Indian Country in 1989. The version of the United States Sentencing Guidelines (“Guidelines”) in place at the time of Mr. Waseta’s crime of conviction dictated a
BACKGROUND
On August 13, 2008, Mr. Waseta was indicted by a federal grand jury on one count of engaging in sexual contact with a minor — his step-grandson — who had not yet attained the age of twelve, in Indian Country, in violation of 18 U.S.C. §§ 2244(c), 2246(3), and 1153. A superceding indictment filed on September 23, 2008, added a second charge — that is, “knowingly engaging] in and attempting] to engage in a sexual act with [his stepson], who had attained the age of twelve but not the age of sixteen years, and who was at least four years younger than the defendant,” in violation of 18 U.S.C. §§ 2243(a), 2246(2)(B), and 1153. Importantly for purposes of this appeal, the second count indicated that the charged offense occurred “between June 1, 1989[,] and July 31, 1989.” R., Vol. I, at 5 (Superceding Indictment, filed Sept. 23, 2008). Furthermore, while the new count alleged only a single sexual act, the charged offense was actually part of an eleven-year pattern of sexual abuse wherein Mr. Waseta would regularly engage in oral and anal sex with his stepson, often as frequently as twice a week. The abuse began when the victim was six years old.
Mr. Waseta pleaded guilty on April 14, 2009, to a one-count information that mirrored the second count of the superceding indictment. Soon thereafter, the U.S. Probation Office prepared Mr. Waseta’s Presentence Investigation Report (“PSR”) using the 1988 edition of the Guidelines. 1 The PSR indicated that Mr. Waseta had an adjusted offense level of fourteen, which, when combined with his criminal history category of I, yielded a Guidelines range of fifteen to twenty-one months’ imprisonment. 2 •
Both parties filed sentencing memoranda. The government opposed a sentence within the prescribed Guidelines range and requested an upward departure under U.S.S.G. § 5K2.8 based on Mr. Waseta’s “extreme conduct.” In so doing, the gov-
Mr. Waseta, in contrast, requested that the court impose a Guidelines-minimum fifteen-month sentence, which he claimed was “appropriate for a crime that is more than twenty ... years old, to which [he] has freely admitted his guilt and attempted to make amends and reconciled with the victim, and for an individual whose only prior conviction is a DUI from 1972.” Id. at 24-25 (Sentencing Mem. & Objections, filed Jan. 12, 2010). He asserted that his ability “to reconcile [with his stepson] ... not only contradicts the allegations [of force,] but shows that [his] illegal conduct ... is consistent [with] the heartland violation of 18 U.S.C. § 2243(a), statutory rape.” 3 Id. at 31. Furthermore, Mr. Waseta filed a response to the government’s request for an upward departure or variance, arguing, inter alia, that a sentence above the prescribed range of the Guidelines would create an “unwarranted disparity ... among similarly charged 1989 defendants” in violation of the ex post facto principles inherent in his due process rights. Id. at 50 (Resp. to Gov.’s Request for Upward Departure & Variance, filed Jan. 15, 2010).
At sentencing, the district court declined to grant a departure under § 5K2.8, reasoning that “the circumstances surrounding Mr. Waseta’s offense ... do not fit into the [§ ] 5K2.8 mold of unusually heinous, cruel, brutal or degrading conducts i.e.,] torture or gratuitous infliction of injury.” R., Vol. Ill, at 42 (Tr., Sentencing Hr’g, held Mar. 25, 2010). Nevertheless, it found that a sentence within the prescribed Guidelines range was inappropriate because this was “a far cry from the typical statutory rape case.” Id. Rejecting Mr. Waseta’s suggestion that “the victim’s age is the only element making the offense conduct criminal,” id. at 43, the district court concluded that an upward variance was appropriate based on the factors set forth in 18 U.S.C. § 3553(a). Specifically, the district court found that, while “[t]he offense of conviction is statutory rape of a child between the ages of 12 and 16 ... [,] the circumstances surrounding the offense demonstrate that the conduct was much more severe.” Id. at 44. Citing the length of the abuse and “the manipulation and coercion inherent in the entire relationship,” id. at 44-45, the district court sentenced Mr. Waseta to forty-six months’ imprisonment, followed by three years’ supervised release. It stated:
After the Supreme Court’s ... decision in [Rita v. United States,551 U.S. 338 ,127 S.Ct. 2456 ,168 L.Ed.2d 203 (2007) ], it is clear that this Court must not presume that the advisory guideline range is reasonable. In the post-Booker sentencing framework, a sentence of 15 to 21 months for the conduct I have described is simply unreasonable. In this case, Mr. Waseta engaged in sexual conduct with his adolescent stepson, which he acknowledges was only possible through his own improper coercion andmanipulation, yet his base offense level under the 1988 guidelines is identical to that of a 20-year-old engaging in sexual intercourse with his or her 16-year-old girlfriend or boyfriend.... Mr. Waseta then received a mere one-level enhancement because the victim was in his care, custody or control, which raised his guideline range by three [months]. This three-[month] bump in no way adequately represents the heightened culpability of his conduct as compared to the average statutory rape case, nor does it acknowledge the life-long damage inflicted on [the victim].
Id. at 51.
In explaining its decision, the district court also addressed a number of Mr. Waseta’s legal challenges to a possible upward variance, including his ex post facto challenge:
While it is true that the ex post facto clause requires the Court to sentence Mr. Waseta under the laws in place at the time he committed the offense, the clause does not forbid retroactive application of the advisory guideline regime. The Tenth Circuit affirmed this principle in [United States v. Portillo-Quezada,469 F.3d 1345 (10th Cir.2006) (per curiam) ].... The Tenth Circuit again reaffirmed this principle in [United States v. Cachucha,484 F.3d 1266 (10th Cir.2007) ], but did not decide whether the principle applies to sentences higher than any that might realistically have been imagined at the time of the crime.... With respect to this question the Tenth Circuit left unanswered, the Court notes that the statutory maximum penalty is five years, which indicates that such a sentence might realistically have been imagined when Mr. Waseta committed the events.... [T]he Court obviously does not intend to sentence Mr. Waseta above the statutory maximum in effect at the time of the offense, and therefore finds this case does not implicate the ex post facto clause.
Id. at 47-48. The court then entered its judgment and sentence, and this timely appeal followed.
DISCUSSION
The Ex Post Facto Clause is recognized as a “limitation upon the powers of the Legislature.”
Marks v. United States,
On appeal, Mr. Waseta raises a single challenge to his sentence — namely, that the district court’s application of the advisory Guidelines sentencing system effected an ex post facto violation because it “greatly expanded the parameters of possible penalties, [which] was utterly unforeseeable at the time of [his] offense[, and] permitt[ed] a much lengthier sentence than he could have received [under the mandatory Guidelines].” Aplt. Opening Br. at 6. At first blush, Mr. Waseta’s argument might appear to be foreclosed by our precedent, which dictates that, generally speaking, the “retroactive application of the advisory Guidelines regime does not violate the ex post facto component of the Due Process Clause.”
5
Portillo-Quezada,
Mr. Waseta now seeks to raise the issue left open by this court in
Cachucha
and
Scott.
He posits that “[t]he increase in [his] sentence that resulted from the district court’s application of
Booker,
which elevated his sentence from a top-of-the-Guidelines range [of] 21 months to 46 months, was utterly unforeseeable at the time the offense was committed.” Aplt. Opening Br. at 17-18. “We review this legal issue de novo.”
Scott,
“Under the mandatory guidelines,” Mr. Waseta argues, “a sentencing court was required to impose a sentence within the guideline range unless it made a finding that a specific ground(s) for departure existed.” Aplt. Opening Br. at 21. “Because there were no grounds for upward departure here,” Mr. Waseta contends that “the maximum punishment that could have been imposed ... under the mandatory Guidelines was the top of the guideline range, i.e., 21 months.” Id. at 22. He asserts that anything beyond that Guidelines sentence was “utterly unforeseeable” at the time of his offense, and thus offends the ex post facto principles of the Fifth Amendment. Id. at 18.
According to the government, however, Mr. Waseta is mistaken in asserting that his sentence was “utterly unforeseeable” under the mandatory Guidelines scheme— a conclusion which it claims is compelled by our decision in Scott. In the alternative, the government avers that the statutory maximum sentence for Mr. Waseta’s crime of conviction — five years — made his forty-six month sentence sufficiently foreseeable to be consonant with due process.
In
Scott,
we addressed a similar challenge to the one raised by Mr. Waseta in this appeal. There, as here, the appellant had committed his crime of conviction — in that case, transporting a minor across state lines in violation of the Mann Act— prior to the Supreme Court’s decision in
Booker,
but was sentenced afterwards. Although the appellant’s calculated Guidelines range was seventy to eighty-seven months’ imprisonment, the district court imposed an upward variance, and sentenced him to 120 months in prison. Consequently, the appellant challenged his sentence, claiming that it “violated [the] ex post facto principles inherent in the Due Process Clause because [his] sentence would have been ‘inconceivable’ under the mandatory [Guidelines] scheme in effect at the time of the crime.”
Scott,
In making his argument in
Scott,
the appellant relied heavily on the First Circuit’s decision in
Lata.
In that case, under an advisory Guidelines regime, the First Circuit upheld a sentence imposed for a pr
e-Booker
crime against a challenge similar to the one we face today on the ground that it was “not wildly different than a sentence that
might well have been imposed
under the [mandatory] guidelines for someone with Lata’s criminal record and offense-related conduct.”
Lata,
The appellant in
Scott
argued that he presented just such a case, contending that “the [120-month] sentence [wa]s so far above the maximum Guidelines sentence of 87 months that the statutory maximum alone did not provide him with sufficient due process notice.”
The district court found by a preponderance of the evidence that, prior to committing the crime of conviction, Scott employed several women as prostitutes, including one other juvenile. Based on those findings, the district court could have imposed an upward departure of at least three criminal history points based on Scott’s unconvicted trafficking and recruiting activities.
Id.
(emphasis added). Combining these two possibilities, we calculated a potential Guidelines range of 108 to 135 months, which bounded the actual sentence received by the appellant.
See id.
at 1307-08. As the sentence imposed was not “higher than any that might realistically have been imagined at the time of the crime,”
id.
at 1308 (quoting
Lata,
The government maintains that our decision in Scott “forecloses [Mr.] Waseta’s argument” that his forty-six month sentence was “utterly unforeseeable.” Aplee. Br. at 10. We agree. In applying the 1988 Guidelines, there are a number of ways— including upward departures — that a court could have arrived at a sentencing range that encompasses Mr. Waseta’s actual sentence.
At the outset, it is important to underscore the nature of our inquiry. At least in this context, the Due Process Clause principally is concerned with “concepts of notice, foreseeability, and, in particular the right to fair warning.” Rogers,
Given this fair-warning concern, the central focus of the due process analysis is not on what a particular sentencing court actually
did after the crime was committed,
but on what the defendant could have realistically imagined that a hypothetical sentencing court
could do
under the law at the time he committed the crime-particularly, how such a court might sentence the defendant under the Guidelines and all of its conceivably relevant reductions, enhancements, and departures. That realistically imaginable range of sentences provides the guidepost for assessing the constitutionality of the sentence actually imposed. Given the numerous complexities of the Guidelines, it should not be surprising that “any prospective guideline range estimated before the crime has been committed is far more contingent and uncertain than may be true on the day of sentencing.”
Lata,
Therefore, a defendant may be deemed to have fair warning at the time of his crime even if he does not know the precise sentence that he would face upon conviction. More specifically, if the offense occurred
pre-Booker,
a defendant may be deemed to have fair notice of his
post-Booker
sentence so long as “the sentence imposed is not
wildly different
than a sentence that might well have been imposed under the guidelines for someone with [the defendant’s] criminal record and offense-related conduct.”
Lata,
Like the appellant in
Scott,
Mr. Waseta could not have predicted
at the time of his crime
that he would receive the discretionary reduction for acceptance of responsibility “because this adjustment is dependent on [his] behavior and decisions, and a court’s evaluation thereof,
after
the crime takes place.”
Scott,
Moreover, following the reasoning in
Scott,
we conclude that a sentencing court also
could have
found that the calculated criminal history category “does not adequately reflect the seriousness of the defendant’s past criminal conduct” based on “prior similar adult criminal conduct not resulting in a criminal conviction.” U.S.S.G. § 4A1.3(e). A sentencing court reasonably could have concluded on these facts that an upward departure from a criminal history category of I to a criminal history category of V — reflecting only four additional instances of rape,
see
U.S.S.G. § 4Al.l(a) — would be justified.
See Scott,
Furthermore, even assuming, as Mr. Waseta suggested before the district court, that the evidence was uncertain regarding “the frequency [and] time[ ] frames” of the alleged sexual abuse, R., Vol. I, at 43, we conclude that it was still realistically imaginable at the time that Mr. Waseta committed the alleged abuse that some district court could impose a forty-six month sentence. Significantly, Mr. Waseta has never explicitly denied that he repeatedly sexually abused his stepson, or that this abuse spanned a lengthy period of time. Consequently, in our view, a district court also could have departed under either U.S.S.G. § 5K2.3 for extreme psychological injury to the victim, or U.S.S.G. § 5K2.8 for extreme conduct. Although the district court in this case chose not to depart under either provision (and, in fact, specifically declined to depart under § 5K2.8 because it concluded that Mr. Waseta’s actions “d[id] not fit ... the [§ ] 5K2.8 mold,” R., Vol. Ill, at 42), Mr. Waseta could have realistically imagined that another court might do so. Indeed, the holdings of this circuit, and others, certainly make such a scenario plausible.
For instance, we have observed that “an upward departure [under § 5K2.8]
may
be supportable on the basis of [a defendant’s] multiple sexual contacts with the same victim.”
United States v. Zamarripa,
Likewise, this court and others have found § 5K2.3 departures justified in situations involving the repeated sexual abuse of minors.
See, e.g., Begaye,
Either ground, or a combination thereof, easily could have yielded a Guidelines-based sentence of forty-six months. A five-level departure upwards in the base offense level, for example, would have resulted in an offense level of 21, at which a criminal history category of I provides for a thirty-seven to forty-six month sentence.
See
U.S.S.G. eh. 5, pt. A;
see also United States v. Otto,
Because Mr. Waseta’s sentence clearly was realistically imaginable under the mandatory Guidelines system in place when he committed the crime for which he was convicted, we decline to address the government’s further assertion that the statutory maximum alone provided adequate notice of any sentence up to that maximum, thereby satisfying the requirements of due process
See United States v. Carrizales-Toledo,
CONCLUSION
For the foregoing reasons, Mr. Waseta’s sentence is AFFIRMED.
Notes
. The 1988 Guidelines were applied because the 1989 edition did not take effect until November 1, 1989, and the crime to which Mr. Waseta pleaded guilty took place in the summer .of 1989.
. Pursuant to U.S.S.G. § 2A3.2(a), Mr. Waseta's base offense level was fifteen. He received a one-level increase in his offense level because the victim was in. his custody or care, and a two-level reduction for acceptance of responsibility, yielding an adjusted offense level of fourteen. See R., Vol. II, at 14-15 (PSR, dated June 17, 2009) (citing U.S.S.G. §§ 2A3.2(b)(1), 3A1.1 (1988)). All subsequent Guidelines citations are to the 1988 version.
. "The [Sentencing] Commission ... has formulated each Guideline to apply to a heartland of typical cases."
Koon v. United States,
. As we allude to supra, the protections of the Ex Post Facto Clause do not apply with full force in the due process context. In Rogers, the Court explained:
The Ex Post Facto Clause, by its own terms, does not apply to courts. Extending the Clause to courts through the rubric of due process thus would circumvent the clear constitutional text. It also would evince too little regard for the important institutional and contextual differences between legislating, on the one hand, and common law decisionmaking, on the other.
. All other circuits are in accord on this point.
See, e.g., Lata,
Thus, to the extent that Mr. Waseta could be understood as asserting that any application of the advisory Guidelines sentencing regime to crimes committed pre-Booker would be unconstitutional, this argument has been squarely rejected by this court, as well as all of our sister courts of appeals.
. Mr. Waseta challenges the applicability of
Scott,
arguing that “[t]he
Scott
case came to this court on a very different footing than this case because the district court held an evidentiary hearing in
Scott
and made 'detailed factual findings.’ ” Aplt. Reply Br. at 2 (quoting
Scott,
For at least three reasons, however, we are disinclined to afford any decisional significance to this identified distinction between
Scott
and the instant case. First, although Mr. Waseta cited to and discussed
Scott
in his opening brief,
see
Aplt. Opening Br. at 17-18, he made no attempt at all to distinguish
Scott
from the present case, much less to distinguish it on the precise ground at issue here. Mr. Waseta advanced his argument distinguishing
Scott
for the first time in his reply brief. Consequently, the government had no opportunity to respond to this argument. Under our settled practice, we are therefore disposed to treat this argument as waived.
See, e.g., Anderson v. U.S. Dep’t of Labor,
Second, although it is subject to serious question whether the district court ran afoul of Rule 32 when it failed to conduct an evidentiary hearing concerning the facts relevant to the sexual abuse of Mr. Waseta's stepson, Mr. Waseta's actions contributed to any potential error. Though Mr. Waseta made a general, unspecified objection to “allegations in the [PSR] that have been suggested as [grounds for] a possible upward variance,” R., Vol. I, at 24, this sort of general objection is inadequate to trigger a district court's fact-
Third, and perhaps most importantly from a substantive perspective, Mr. Waseta's argument misapprehends the appropriate nature of the due process inquiry. His argument erroneously focuses on the specific actions taken by the sentencing court
in this case,
after the crime was committed. However, as we noted
supra,
the applicable due process inquiry concerns notice, foreseeability, and fair warning
at the time the crime is committed. See, e.g., Rogers,
. In
Big Medicine,
the appellant pleaded guilty to one count of sexual abuse of a minor in violation of 18 U.S.C. §§ 2243(a) and 1153.
See
. At oral argument, the government stated that the record before the sentencing court in this case was not sufficiently developed to support a departure under § 5K2.3. Even if this were true, however, for the reasons noted supra, that fact would not be significant in our due process analysis. Instead of focusing upon the precise condition of the record in this case, we inquire whether the universe of facts (established and even contestable) — including the fact that Mr. Waseta repeatedly sexually abused his stepson over a lengthy period of time — would have made it realistically imaginable to Mr. Waseta at the time of his crime that a sentencing court could apply the § 5K2.3 departure. And we answer that inquiry in the affirmative.