RILEY, Chief Judge.
William Sheridan pled guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and the district court
On June 18, 2014, Kansas City, Missouri, police officers responded to a call reporting a sexual assault. T.S., Sheridan's then-18-year-old daughter, told officers her father had sexually assaulted her the previous evening. T.S. reported to the officers that her father kept two shotguns and a pistol in his bedroom.
Officers obtained a search warrant for Sheridan's residence. In an open vertical safe in Sheridan's bedroom, officers found two shotguns, three empty gun magazines, two empty handgun holsters, a revolver speed loader, a gun cleaning kit, and 687 live rounds of ammunition. In a black pouch under a dresser next to Sheridan's bed, police found a chrome-colored .25-caliber semi-automatic pistol, which was loaded with six rounds of ammunition. Officers ran a criminal history check on Sheridan and discovered he was a convicted felon. Sheridan was arrested. In a subsequent interview with law enforcement, Sheridan admitted all of the firearms and ammunition were his and provided a description of handling the semi-automatic pistol.
A federal grand jury indicted Sheridan on three counts of being a felon in possession of a firearm. On July 8, 2015, Sheridan entered into a plea agreement, pleading guilty to one count of being a felon in possession of a firearm and reserving his right to appeal the application of a cross-reference under the United States Sentencing Guidelines (U.S.S.G. or Guidelines).
Guidelines § 2K2.1(c)(1) states "[i]f the defendant used or possessed any firearm or ammunition cited in the offense of conviction in connection with the commission or attempted commission of another offense . . . apply—(A) § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above." Based on T.S.'s allegation that Sheridan had sexually assaulted her, the presentence investigation report (PSR) applied a cross-reference to U.S.S.G. § 2A3.1 "Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse." Pursuant to § 2A3.1(a)(2), Sheridan's base offense level was 30. The PSR also applied a four-level enhancement for causing the victim to engage in sexual acts by threatening or placing the victim in a state of fear, a two-level enhancement because T.S. was under Sheridan's care, and a three-level reduction for Sheridan's acceptance of responsibility—resulting in a total offense level of 33.
Sheridan contested the PSR's factual findings alleging Sheridan sexually abused or threatened T.S. and filed an unopposed motion to continue his sentencing date in anticipation of the government introducing DNA testimony in support of the cross-reference. At Sheridan's sentencing hearing on January 25, 2016, the government called four witnesses involved in Sheridan's investigation. T.S. did not testify, and the government did not address whether T.S. was unavailable. Sheridan's counsel objected to the first government witness, arguing the expected hearsay testimony violated Sheridan's limited due-process rights and deprived him of the opportunity to confront his accuser. The district court overruled Sheridan's objection, and Detective Clint French of the Kansas City police department's internal affairs division proceeded to testify.
Following T.S.'s 911 call on June 18, Detective French met T.S. in the emergency room of the hospital where T.S. was undergoing a sexual-assault examination. Detective French testified T.S. told him that around 10:30 p.m. the night before, Sheridan summoned T.S. to his bedroom and told her he wanted her to "rub something." Detective French stated T.S. said that "usually mean[t] sexual acts are going to . . . happen after that." T.S. then went to Sheridan's bedroom, removed her clothing when Sheridan told her to do so, and then began to perform oral sex on Sheridan. Sheridan forcibly attempted to penetrate T.S. anally but did not succeed. T.S. told Detective French that Sheridan kept a "small silver pistol" in his bedroom and she was afraid Sheridan would shoot her with it if she did not perform those acts. T.S. also told Detective French that Sheridan had threatened to shoot and kill T.S. if T.S. told anyone about the sex acts. Detective French described T.S.'s demeanor during the interview as "upset and obviously emotional."
The government called Detective Erica Oldham next. Over Sheridan's continuing objection to hearsay, the district court permitted Detective Oldham to testify about the interview she conducted with Sheridan's neighbor, Randy Wedlow. Wedlow described to Detective Oldham an incident that had occurred five days before T.S. called the police to report the sexual assault in which Wedlow witnessed Sheridan yell out to T.S. from inside his home, calling her a bitch and telling her "she needed to come inside and fix dinner and do the dishes." On Monday, June 16, a few days after that incident, T.S. "revealed [to Wedlow] that her father had been sexually assaulting her . . . since she was about 12 years old" by forcing her to perform oral sex and have sexual intercourse. Wedlow told T.S. he would help her contact the police when she was ready. On June 18, T.S. came to Wedlow and told him the previous evening Sheridan forced her to "rub his feet, perform oral sex, and . . . tried to penetrate her again but was unsuccessful." Wedlow helped T.S. call the police that day.
Andrew Atkinson, forensic specialist for the police department crime laboratory, testified to report the results of a DNA test comparing swabs from T.S.'s tongue, lip, face, and upper thighs to swabs collected from Sheridan. Atkinson did not find any male DNA on the tongue swab, but explained the test of T.S.'s face and lip did show Sheridan was a potential contributor to a minor genetic profile. The likelihood that any random individual would be a match was one in eight. The testing of T.S.'s upper thigh sample showed Sheridan again was a possible contributor, but Atkinson said 57 percent of the population also would be a possible contributor.
Detective James Sola was the government's final witness. Detective Sola testified that as part of the investigation into Sheridan, he interviewed Lucinda Sheridan, who is T.S.'s sister and Sheridan's daughter. Detective Sola stated Lucinda said this "was the first time that she had ever heard of these allegations" against Sheridan, and when Detective Sola asked why T.S. might fabricate these allegations, Lucinda speculated T.S. was not performing tasks at home in the way her father expected. Detective Sola also testified about the report prepared by the patrol officer who responded to the 911 call. Detective Sola testified Lucinda told the patrol officer that T.S. had previously alleged Sheridan had sexually abused her when T.S. was in middle school, but no further action against Sheridan was taken. On cross-examination, Detective Sola testified that the patrol officer's report stated T.S. had alleged that Sheridan had also sexually abused Lucinda since she entered puberty, but Lucinda denied that allegation.
At the close of the hearing, the district court concluded:
The district court commented, "Even notwithstanding the cross-reference, the fact that someone with [Sheridan's] criminal history had three guns in the house [is] concerning to the Court." "[C]onsider[ing] all the factors under 18 U.S.C. § 3553(a)," the district court varied downward and sentenced Sheridan to 108 months imprisonment to run consecutively with any sentence imposed in a pending state prosecution.
Sheridan appeals, arguing the district court (1) committed procedural error by applying the cross-reference to U.S.S.G. § 2A3.1 and subsequent four- and two-level enhancements; and (2) violated Sheridan's constitutional right to cross-examine his accuser. We examine the district court's application and interpretation of the Guidelines de novo and its findings of fact for clear error.
Sheridan contends the district court erred by relying on hearsay testimony because it did not possess sufficient indicia of reliability.
"`The determination of whether hearsay evidence is sufficiently reliable to support a sentencing decision depends on the facts of the particular case, and is committed to the sound discretion of the district court.'"
Because T.S. did not testify at Sheridan's sentencing hearing, the government introduced her allegations of sexual abuse through witnesses involved in the investigation.
The consistent nature and timing of T.S.'s allegations against Sheridan support their reliability. T.S. reported a virtually identical account of the specific sexual assault that occurred the night before she called 911 to her neighbor, Wedlow, the day after the assault had occurred, and to Detective French, who interviewed T.S. as she was receiving a sexual assault examination. The detective was able to observe T.S.'s demeanor, describing that demeanor to the district court.
Although much of the evidence introduced at the sentencing hearing related to T.S.'s general allegations of Sheridan's sexual assault, the district court also was required to find Sheridan "used or possessed [the] firearm or ammunition cited . . . in connection with" commission of the sexual assault.
Sheridan next contends the district court's reliance on hearsay testimony violated his Sixth Amendment right to confront and cross-examine his accuser. While the Confrontation Clause protects criminal defendants from the "admission of testimonial statements of a witness who did not appear at trial unless [s]he was unavailable to testify,"
Finding no clear error or abuse of discretion, we affirm Sheridan's sentence.