NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0139n.06
No. 17-1552
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. MARK JOHN VASQUEZ, JR., Defendant-Appellant. _________________________________/ ) ) ) ) ) ) ) ) ) ) On Appeal from the United States District Court for the Eastern District of Michigan

BEFORE: GUY, SUTTON, and COOK, Circuit Judges. RALPH B. GUY, JR., Circuit Judge. Defendant Mark John Vasquez, Jr., an Indian tribal resident, was indicted and convicted by a ju ry of assault of a dating or intimate partner by strangling or attempting to strangle, and domestic assault by a habitual offender. On appeal, defendant challenges the sufficiency of the ev idence, the testimony of the government’s expert witness, and the reasonableness of his sentence. After considering the issues, we find no error requiring reversal, and we affirm.
I. Defendant and his victim, Marcella Jones, be gan living together in 2010 and married in 2012. They divorced in 2014 but resumed their relationship in an attempt to reconcile. Their tumultuous relationship was characteri zed by drinking, partying, and argument.Case No. 17-1552, United States v. Vazquez

2 On March 11, 2016, Jones went to defendant’s house, located on the Isabella reservation in Isabella County, Michigan, in tending to confront him about a suspected infidelity. The two argued, and defendant concedes that he put Jones “in a tight, painful bear hug for a few seconds.” After some more arguing, the conflict again be came physical: according to defendant’s own version of the facts, Jones “characterized the alte rcation [as] mutual but allowed that [defendant] choked her twice. She refused to characterize the incident as strangling because she did not feel that [defendant] intended to do extreme damage or harm.” At trial, Jones admitted that defendant had both hands around her neck, whic h affected her breathi ng “a little bit.” A responding police officer photographed marks on Jones’s neck, but Jones later testified that she did not think they were from the fight. Throughout Jones’s testimony, she took responsib ility for initiating and maintaining the fight with defendant, attributed her injuries to other events, recanted cer tain accusations she had made to the police about defendant, and stated that she did not want defendant to go to prison. She explained that she only called the polic e because she thought defendant was making a criminal complaint against her; if she had known that defendant ha d not actually filed a complaint, she would never have called the police. She stated that she did not believe that defendant had technically strangled her by putti ng his hands around her neck and restricting her breathing. After Jones testified, the responding police office r, Shane Waskevich, testified. He stated that, contrary to Jones’s testimony at tr ial, she had told him that defendant did cause the marks on her neck, and Waskevich took some photos of th e injuries. In response to that testimony, defense counsel objected, citing Jones’s testimony at trial that the photos and injuries were not caused by defendant. The trial court overruled th e objection, reasoning that the evidence wasCase No. 17-1552, United States v. Vazquez

3 based on an adequate foundation, and defense counsel was free to argue this fact question to the jury. Because of Jones’s reluctance to impli cate defendant, the government called Holly Rosen, a social worker at Michigan State Univer sity and the director of a domestic violence program there. 1 Rosen had never met Jones; rather, sh e testified generally about characteristics and behaviors typical of victims of domestic violence. Rosen te stified that it is typical for a victim to blame herself and/or minimize what sh e experienced. Victims tend to lie to cover up the abuse. They do not typically view themselv es as victims and might assert that they are unafraid of their assailant. Rosen also testified that it is typical for an abusive relationship to be punctuated by “good times,” which makes it more difficult for the victim to leave the relationship. Defendant never object ed to Rosen’s testimony at trial. The jury found defendant guilty of assault of a dating or intimate part ner by strangling or attempting to strangle, and domes tic assault by a habitual offende r. Defendant’s guideline range was 51-63 months, and the district court sentenced him to a belo w-guideline range of 46 months of imprisonment.
II. A. Rosen’s Expert Testimony A district court’s evidentia ry rulings are reviewed fo r an abuse of discretion. United States v. Kilpatrick , 798 F.3d 365, 378 (6th Cir. 2015). Because defendant did not object to Rosen’s testimony at trial, however, defendant’s claims are reviewable only for plain error. United States v. Gunter , 620 F.3d 642, 645 (6th Cir. 2010). To prevail unde r this standard of review, defendant must establish “( 1) error, (2) that was obvious or clear, (3) that affected his

1 Defendant does not challenge Rosen’s qualifications as an expert. He cha llenges the content of her testimony.Case No. 17-1552, United States v. Vazquez

4 substantial rights, and (4) affected the fairness, integrity, or public repu tation of his judicial proceedings.” Id. In pertinent part, Federal Rule of Evidence 702 states that expert testimony is permitted if “the expert’s scientific, technical, or other speci alized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Defendant argues that Rosen’s testimony did not help the jury because Rosen “attempt[ed] to ap ply a general observation about a larger group to particul ar individuals whose conduct is in ques tion,” i.e., Jones. Def. Br. at 19 (quoting Charalambopoulos v. Grammer , No. 3:14-CV-2424-D, 2017 WL 930819, at *11 (N.D. Tex. Mar. 8, 2017)). The government, on the ot her hand, claims that Rosen’s testimony did assist the jury in understanding and evaluati ng Jones’s seemingly inconsistent actions and testimony. United States v. LaVictor , 848 F.3d 428 (6th Cir. 2017), is directly on point and resolves this issue in the government’s favor. In LaVictor , a victim of domestic violence and sexual assault implicated the defendant while she was in the hospital, but at the defendant’s detention hearing and at trial, the victim testified th at she consented to the defendant’s behavior, disavowed her previous statements to police, and in sisted that her complaints were the result of confusion and pressure from hospital workers. Ov er the defendant’s objec tion, the district court permitted the government’s expert witness to testif y about the dynamics of victim recantation in the context of domestic violence. We affirmed. As here, the defendant had argued that such testimony was not helpful to the jury, but we r easoned that “[t]here is a factual issue in dispute — whether or not [the victim] consented. [The expert ]’s proposed testimony provides the jury with an explanation for the contradictor y evidence in the record. . . . Therefore, we believe that such testim ony is highly probative and he lpful to the jury.” Id. at 442. NothingCase No. 17-1552, United States v. Vazquez

5 distinguishes LaVictor from the instant case. LaVictor is therefore control ling, and the district court did not commit an obvi ous or clear error. Defendant attempts to distinguish his case from LaVictor using United States v. LeBlanc , 45 F. App’x 393 (6th Cir. 2002). In that case, the defendant—who was accused of child sexual abuse—proffered the testimony of a psychologist who would have explaine d how “the memories of young children . . . can readily become distor ted and contaminated because of unintentional inadvertent adult influence” during forensic interviews. Id. at 398. We affirmed that such testimony was inadmissible, however, because the de fense could not point “to a single instance in which [the child victim] was supposedly s ubjected to allegedly coercive or suggestive questioning techniques.” Id. at 400-01. In other words, the proffered expert testimony was not “sufficiently tied to the facts of the case,” and, therefore, it would not he lp the trier of fact. Id. at 400 (quoting United States v. Downing , 753 F.2d 1224, 1242 (3d Cir. 1985)). Defendant argues that Rosen’s testimony is like that of the witness in LeBlanc because, “akin to what occurred in LeBlanc , the record in the instant case lacked sufficient evidence that Ms. Jones had previously been the victim of domes tic abuse.” By contrast , defendant argues that
in LaVictor the expert’s testimony was onl y relevant because the vict im’s relationship with the defendant “was characterized by multiple instances of prior domestic abuse.” This argument fails. Rosen’s testimony was made relevant by Jones’s conflicting testim ony in conjunction with the evidence of the 2016 incident —not by Jones’s history of vict imhood. The same was true in
LaVictor . 848 F.3d at 442 (“[The expert]’s proposed testimony provides th e jury with an explanation for the contradictory evid ence in the record.”). Nothing in LaVictor requires the government to establish a pattern of domestic violence between defendant and Jones. Rather, under LaVictor and LeBlanc , the expert’s testimony must bear some relevance to the proponent’sCase No. 17-1552, United States v. Vazquez

6 theory, which in turn must have some evidentiary support. In LeBlanc , the theory of coercive interviewing had no evidentiary s upport, so expert testimony on th at topic would not have been helpful to the jury. In LaVictor and the instant case, however, the expert testimony was helpful to the jury because it would help jurors make sense of a victim’s contradictory testimony. Defendant also asserts that, applying Fe deral Rule of Evidence 704(b), Rosen impermissibly testified on Jones’s credibility and thus invaded the exclusive province of the jury. Def. Br. at 22-23 (quoting United States v. Cecil , 836 F.2d 1431, 1441 (4th Cir. 1988) (“[A] psychiatrist may not testify to the credibility of a witness; that issue is one for the jury.”)). This issue, too, is controlled by LaVictor , in which the defendant argue d that “generic” testimony on victim recantation violates the rule that “testim ony that aides the jury in weighing a victim’s credibility is improper.” 848 F.3d at 442. We held that domestic violen ce presents a special case: “[T]he dual phenomenon of battered wo man’s syndrome and victim recantation are beyond the knowledge of an average juror.” Id. Accordingly, Rosen’s testimony did not usurp the jury’s factfinding role, and the di strict court did not clearly err. B. Sufficiency of the Evidence We review the sufficiency of the evidence for a conviction “in the light most favorable to the prosecution” to determine whether “ any rational trier of fact c ould have found the essential elements of the crime be yond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979) (citing Johnson v. Louisiana , 406 U.S. 356, 362 (1972)). Ci rcumstantial evidence, if “substantial and competent,” may sustain a conv iction even if no direct evidence exists. United
States v. Tarwater , 308 F.3d 494, 504 (6th Cir. 2002) (quoting United States v. Humphrey , 279 F.3d 372, 378 (6th Cir. 2002)).Case No. 17-1552, United States v. Vazquez

7 To convict defendant of assault of an intimate or dating part ner by strangling or attempted strangling in violation of 18 U.S.C. § 113(a)(8), the ju ry had to find, in part, that “defendant assaulted [the victim] by stranglin g or attempting to strangle her.” 18 U.S.C. § 113(b)(4) defines “strangling” as “intentiona lly, knowingly, or recklessly impeding the normal breathing or circulation of the blood of a person by applying pres sure to the throat or neck, regardless if that conduct results in any visible injury or whether there is any intent to kill or protractedly injure the victim.” To convict Vasquez of domestic assault by a habitual offender, the jury had to find, in part, that “defendant committed a domestic assault against [Jones].” Defendant does not challenge the su fficiency of the evidence as it relates to any of the unlisted elements of these two crimes. Defendant argues that no rational jury coul d have convicted him in light of the inconsistencies in Jones’s testimony and the f act that Officer Waskevich offered hearsay testimony as to the conversations he had with Jones in the aftermat h of the 2016 incident. 2 The government does not dispute whether Waskevich’s testimony was hearsay. Regardless, defendant’s suffici ency claim would fail even if Waskevich’s alleged hearsay testimony is not considered. Ev en at her most relu ctant, Jones offered testimony on which defendant could be convicted. She testified that defendant had both hands around her neck, which affected her breathing. This satisfies both the “strangulation” element in 18 U.S.C. § 113(a)(8) and the “domestic assault” elemen t in 18 U.S.C. § 117. The domestic assault conviction is further supported by the evidence that defendant “bear hugged” Jones, which caused her pain. Although Jones attempted to recant certain of her accusations, downplayed defendant’s intent, and took responsibility for the fi ght, her credibility in th is regard was a fact

2 Defendant also asserts that his sufficiency concern “is magnified when one includes the testimony of Ms. Rosen . . . .” As we concluded supra , however, Rosen’s testimony was proper.Case No. 17-1552, United States v. Vazquez

8 question for the jury. And “in cases in which we assess the sufficiency of the evidence, we do not weigh the evidence, assess the credibility of th e witnesses, or substitute our judgment for that of the jury.” United States v. Wright , 16 F.3d 1429, 1440 (6th Cir. 1994) (citing United States v.
Evans , 883 F.2d 496, 501 (6th Cir. 1989)). C. Reasonableness of Sentence Finally, defendant challenges the procedural and substantive reasonableness of his sentence. Procedural error includes “failing to c onsider the [18 U.S.C.] § 3553(a) factors . . . or failing to adequately explain the chosen sentence.” United States v. Curry , 536 F.3d 571, 573 (6th Cir. 2008) (quoting Gall v. United States , 552 U.S. 38, 51 (2007)). “For a sentence to be substantively reasonable, ‘it must be proportionate to the seriousness of the circumstances of the offense and offender, and sufficien t but not greater than necessar y, to comply with the purposes’ of § 3553(a).” Id. (quoting United States v. Vowell , 516 F.3d 503, 512 (6th Cir. 2008)). We review the reasonableness of a district court’s sentence for an abuse of discretion. Id. (citing Gall , 552 U.S. at 50). “If the sentence is within the Guidelines range, th e appellate court may, but is not required to, apply a pr esumption of reasonableness.” Gall , 552 U.S. at 51 (citing Rita v. United States , 551 U.S. 338, 347 (2007)). Showing th at a below-guidelines sentence is unreasonable “is even more demanding.” Curry , 536 F.3d at 573 (citing United States v. Bailey , 264 F. App’x 480 (6th Cir. 2008)). Regarding the substantive reasonableness of his sentence, defendant argues that the district court gave unreasonably li ttle weight to Jones’s request for leniency, his qualities as a father, and his struggle with al coholism. He concedes that the district court credited his and Jones’s testimony to that effect, but asserts that “it does not appear that [the judge] adequately considered the testimony of Ms. Jones who spoke at length in mitigation of sentencing.”Case No. 17-1552, United States v. Vazquez

9 The court gave adequate consideration to J ones’s request for leni ency. After hearing from both sides at sentencing, the court imme diately acknowledged Jones’s allocution. The court also addressed the subjects of her testimony, including defe ndant’s qualities as a father and his alcoholism. Defendant’s underdeveloped claim is insuffi cient to overcome the strong presumption of reasonableness that we apply to his below-guidelines sentence. This is particularly true in light of ev idence that Jones’s advocacy for defe ndant in the district court was the result of their abusive relationship. Regarding the procedural component of his se ntencing claim, defendant asserts, simply, that “it does not appear [the § 3553( a) factors] were cons idered individually.” The district court did not abuse its discretion by failing to discuss th e § 3553(a) factors to defendant’s satisfaction. “[A] district court must offer ‘only a general statement of the reasons for its imposition of the particular sentence.’” United States v. Ferguson , 518 F. App’x 458, 470 (6th Cir. 2013) (quoting United States v. Fraser , 647 F.3d 1242, 1246 (10th Cir. 2011)). We have held that a district court makes an adequate statement of reasons under § 3553(c)(1) by tailoring its comments to show the sentence was consistent with the se ntencing factors of § 3553(a). No specific language is required when stating the reasons for a sentence, as a district court simply must demons trate that it was “mindful” of the appropriate factors when imposing the sentence. Id. at 470-71 (citing United States v. Parrado , 911 F.2d 1567, 1572-73 (11th Cir. 1990)). The presentence investigation report discusses the factors individually, and in detail, and the judge indicated several times that he read that report and invited the pa rties to object to it. More importantly, contrary to defendant’s co ntention, the judge specif ically delineated the § 3553(a) factors that he found most important to his sent ence, including his decision to downwardly depart. He discussed the defendant’s history and characteristics, both positive and negative, as well as the characteristics of the offe nse. He considered the need to deter futureCase No. 17-1552, United States v. Vazquez

10 conduct and to protect the public , drawing a link between defe ndant’s substance abuse and criminal activity; he then considered the most effective correctional treatment, asking defendant questions about how he would cha nge his behavior to stay sober and specifying that defendant be remanded to a facility with pertinent treatment programs. This is sufficient for us to conclude that the district court was mindful of the § 3553( a) factors and did not ab use its discretion during sentencing. AFFIRMED

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