10/6/23: Case on the Major Crimes Act and the serious bodily injury enhancement under U.S.S.G. § 2A3.1(b)(4)(B)

In United States v. Scott, --- F.4th ---, No. 21-30128 (9th Cir. 2023), the Court  (1) affirmed Luke Scott’s conviction for felony child abuse under the Major Crimes Act, 18 U.S.C. § 1153, and Mont. Code Ann. § 45-5-212; and (2) affirmed the district court’s application of a serious bodily injury enhancement under U.S.S.G. § 2A3.1(b)(4)(B) to Scott’s sentence for aggravated sexual abuse by force or threat in violation of 18 U.S.C. § 2241(a).

These were consolidated appeals arising from separate prosecutions for acts against different victims. 

In the first case, the Court held that government properly charged Scott with felony child abuse under the Major Crimes Act and the Montana statute. The Major Crimes Act provides federal jurisdiction for the prosecution of Native Americans for discrete crimes, including “felony child abuse.” It also provides that, when an enumerated offense is not defined and punished by federal law, it shall be defined and punished in accordance with the laws of the state in which such offense was committed. 

The Court rejected Scott’s argument that Congress’s 2013 amendments to the Major Crime Act—including its addition of “a felony assault under section 113”—displaced the crime of felony child abuse under the Major Crimes Act such that the government may no longer use state law to define the crime. 

In the second case, the Court rejected Scott’s argument that the district court’s imposition of the serious bodily injury enhancement under § 2A3.1(b)(4)(B) for his conviction for aggravated sexual abuse resulted in improper double counting.  This issue is a bit complicated.  But ultimately, The Court adopted the Tenth Circuit’s analysis, which reasoned that (1) § 1B1.1 provides different definitions of “serious bodily injury”—a Harm Definition and a Conduct Definition; (2) the Conduct Definition cannot be used when applying the Sexual Abuse Guideline; (3) nothing precludes a sentencing court from considering whether the victim’s injuries “resulting directly from the sexual abuse as well as those suffered during relevant conduct surrounding that offense” qualify as serious bodily injury under the Harm Definition; and (4) the serious-bodily injury enhancement can apply to a sexual abuse offender convicted under convicted under § 2241, but it must be based on the fact that the victim’s injuries meet § 1B1.1’s Harm Definition.

10/4/23: Sentencing case in the 922(g)(1) context

In United States v. Barlow, --- F.4th ---, No. 22-30030 (9th Cir. 2023), the majority affirmed a sentence imposed on John Barlow following his guilty plea to possessing a firearm as a felon.  

On appeal, Barlow raised three objections to his sentence: (1) the district court’s application of a four-level enhancement for possessing the firearm in connection with another felony violated his Fifth and Sixth Amendment rights under Apprendi, 530 U.S. 466, and Alleyne, 570 U.S. 99; (2) the application of the same four-level enhancement was clear error because there was insufficient evidence to support the finding that Barlow used or possessed a firearm in connection with the felony of assault with a weapon under Mont. Code Ann. § 45-5-213; and (3) the district court erred by determining that Barlow’s prior conviction under Georgia law for aggravated assault was a “crime of violence” resulting in an increased base offense level calculation under the Guidelines.

The majority rejected these arguments, holding: "we affirm because Barlow has not shown that the district court erred in calculating his sentence under the Guidelines. Barlow has not shown that applying the four-level enhancement violated his rights under the Fifth or Sixth Amendments. He has not shown that the district court’s factual finding that Barlow possessed the firearm in connection with his commission of assault with a weapon under Montana law is erroneous. Finally, the district court correctly determined that Barlow’s prior Georgia conviction for aggravated assault was a '"crime of violence.'"