Not for Publication in West's Federal Reporter 

United States Court of Appeals 

For the First Circuit 

No. 15-1238 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

DAVID W. LACOUTURE, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Nathaniel M. Gorton, U.S. District Judge] 

Before 

Lynch, Thompson, and Kayatta, 

Circuit Judges. 

Joshua R. Hanye on brief for appellant. 

Eric S. Rosen, Assistant United States Attorney, and Carmen 

M. Ortiz, United States Attorney, on brief for appellee. 

August 31, 2016 
- 2 - 

THOMPSON, Circuit Judge. In violation of his probation 

and federal and state laws that required him to register as a sex 

offender, Defendant-appellant David W. Lacouture fled 

Massachusetts for Missouri, where he lived using a fake identity 

until he was accused of molesting a neighbor's child and arrested. 

The case before us concerns only Lacouture's sentence for the crime 

of failing to register as a sex offender, to which he pled guilty. 

At sentencing, the district court applied an eight-level 

enhancement on the basis of the Missouri charge, which Lacouture 

argues was error. Because the record does not reveal whether the 

district court found reliable the out-of-court statement upon 

which the prosecution primarily relies, we remand this matter for 

clarification of whether the district court so found, and why. 

BACKGROUND1

A. The Underlying Offense 

In September 2010, Lacouture pled guilty in Barnstable 

Superior Court in Massachusetts to one count of indecent assault 

and battery on a minor. For his crime, Lacouture received a twoand-a-half year sentence -- eighteen months of which was a term of 

 1 Because Lacouture's conviction resulted from a guilty plea, 

we draw the facts from the plea agreement, the Presentence 

Investigation ("PSI") report, other documents in the sentencing 

record, and the transcript of the sentencing hearing. See United 

States v. Ocasio-Cancel, 727 F.3d 85, 88 (1st Cir. 2013). 
- 3 - 

imprisonment and the remainder of which was to be served on 

probation.

On June 2, 2011, after completing the carceral portion 

of his sentence, Lacouture was released on probation, and was 

required by both federal and state law to register with the 

Massachusetts Sex Offender Registry Board ("SORB"). See 42 U.S.C. 

§ 16913(b); Mass. Gen. Laws ch. 6, § 178F. Because Lacouture was 

homeless at the time of his release, he was required to verify his 

SORB registration by appearing in person at the local police 

department every 30 days, see Mass. Gen. Laws ch. 6, § 178F1/2, 

and, as is required of all sex offenders, to notify SORB of any 

changes in address, see 42 U.S.C. § 16913(c); Mass. Gen. Laws ch. 6 

§ 178H(a).

B. Unlawful Wayfaring 

Alas, at some point after June 17, 2011, Lacouture left 

Massachusetts without letting anyone know. At first, the state 

court issued a warrant for Lacouture for violation of his probation 

requirements. Then, when thirty days passed and Lacouture did not 

resurface, the court issued a second warrant, this time with a new 

charge for failure to register as a sex offender.

While his disappearance was being investigated, 

Lacouture managed to wind up far away in Joplin, Missouri. There, 

he found some work, took up the alias "Damon Hunter" and nickname 

"Rhino," and lived for a time as a fugitive under that assumed 
- 4 - 

identity. This new life was abruptly interrupted on April 2, 2013, 

when Lacouture was arrested for child molestation.

Some weeks prior to Lacouture's arrest, Lacouture's 

eight-year-old neighbor had been found masturbating by her aunt. 

When the aunt asked the girl about it, the girl told her aunt that 

"Rhino" had touched her inappropriately and done to her "other 

things we are not supposed to do." The aunt told the girl's 

mother, and the mother alerted the Joplin police on March 16, 2013. 

A Sexual Abuse Investigative Interview ("SAIN") was 

conducted a few days later.2 When asked about the incident, the 

child recounted that, sometime before Thanksgiving but after the 

start of the school year in 2012 (when she was seven years old), 

she had gone over to Lacouture's house alone to pet his cat, and 

Lacouture had put his hands down her pants and touched the area 

around her vagina, which had made her feel uncomfortable. She 

also told the interviewer that she had run home immediately 

afterward and informed her mother. A medical exam detected no 

physical evidence of the alleged 2012 abuse. 

The arrest followed shortly thereafter. During postarrest questioning, Lacouture recalled he had picked the child up 

off the ground, and in doing so, had put his arm under her crotch 

 2 The interview appears to have been conducted at the Joplin 

Police Department by a Missouri Sexual Assault Investigative 

Network interviewer. The interview was video-recorded, but the 

sentencing record contains only a transcript of the interview. 
- 5 - 

area, but denied ever having touched the girl sexually. (The case 

related to this arrest, by the way, remains pending in Missouri at 

the time of this opinion's publishing.) Lacouture also admitted 

that "Damon Hunter" and "Rhino" were aliases, and that he had been 

living in Joplin unlawfully and in violation of his sex offender 

registration requirements. 

C. The Case at Hand 

This brings us to our present case. Lacouture was 

transported back to Massachusetts and eventually indicted in 

federal court for one count of failure to register as a sex 

offender, to which he pled guilty. 

A PSI report was prepared. Because Lacouture's 

underlying state conviction qualified him as a Tier II sex 

offender, the PSI report assigned a base offense level of fourteen. 

See U.S.S.G. § 2A3.5(a)(2). To this, the PSI report added the 

eight-level enhancement for commission of a sex offense against a 

minor while in failure-to-register status, on the basis of the 

evidence that Lacouture had molested his neighbor's child in 

Joplin. See id. § 2A3.5(b)(1)(C). The PSI report then subtracted 

three levels for acceptance of responsibility, resulting in a total 

offense level of nineteen. Based on Lacouture's criminal history 

category of VI, this put the guideline range at 63 to 78 months.

Lacouture objected, among other things, to the PSI 

report's recommendation that the district court apply an eight-
- 6 - 

level enhancement on the basis of the unproven Joplin allegations, 

which he claimed were false. The district court disagreed, finding 

that the eight-level enhancement applied, and adopted the PSI 

report's guideline range. The judge sentenced Lacouture to the 

highest guideline sentence: 78 months (or 6 years and 6 months) of 

imprisonment. Lacouture timely appealed. 

DISCUSSION 

Lacouture's sole argument on appeal is that the district 

court erred in applying the eight-level enhancement in its 

guideline calculation because the court lacked sufficient evidence 

to find that he had committed a sex offense against a minor. A 

district court's error in calculating the guideline range requires 

resentencing where it "affects or arguably affects the sentence 

imposed." United States v. Ramos-Paulino, 488 F.3d 459, 463 (1st 

Cir. 2007). 

We review a district court's sentencing factor findings 

for clear error. United States v. Morgan, 384 F.3d 1, 5 (1st Cir. 

2004).3 "It is the government's burden at sentencing to prove 

 3 Lacouture argues that his appeal involves only pure legal 

questions and thus asks us to apply de novo review, but his 

challenge goes to the district court's factual finding that 

Lacouture committed a sex offense while on failure-to-register 

status, and therefore the clear error standard applies. See United 

States v. Savarese, 686 F.3d 1, 15 (1st Cir. 2012) ("[W]here, as 

here, a defendant challenges the factual predicate supporting the 

court's application of a sentencing enhancement, 'we ask only 

whether the court clearly erred in finding that the government 

proved the disputed fact by a preponderance of the evidence.'" 
- 7 - 

sentencing enhancement factors by a preponderance of the evidence, 

and a district court may base its determinations on 'any evidence 

that it reasonably finds to be reliable.'" United States v. 

Almeida, 748 F.3d 41, 53 (1st Cir. 2014) (quoting United States v. 

Walker, 665 F.3d 212, 232 (1st Cir. 2011)). 

The government urges us to find that it met its burden 

here because the SAIN transcript, in which the child herself gave 

an account of the incident, gave the sentencing judge an adequate 

basis to find that Lacouture had molested the child. The 

government argues that the child's accusations are consistent with 

two prior convictions in Lacouture's criminal history (for 

indecent assault and battery and for indecent exposure), which 

both involved children under the age of fourteen.4 To the extent 

that further corroboration of the child's account was necessary, 

the government continues, it was supported by police reports 

containing both the mother's original statements to the police -- 

that the aunt had discovered the child masturbating and that the 

child had told her aunt, "Rhino used to do it to me as well as 

 

(quoting United States v. Luciano, 414 F.3d 174, 180 (1st Cir. 

2005))). 

4 Although propensity evidence is normally inadmissible in 

criminal trials, it is admissible in cases involving child 

molestation, see Fed. R. Evid. 414 ("In a criminal case in which 

a defendant is accused of child molestation, the court may admit 

evidence that the defendant committed any other child 

molestation."), and, in any case, the government offers the 

convictions here for purposes of sentencing. 
- 8 - 

other things we are not supposed to do" -- and Lacouture's own 

statements during police questioning that he recalled picking the 

child up off the ground and placing his arm under her crotch area. 

But here is where we are stuck. Some of the very police 

reports that the government claims are corroborative appear at 

times to undermine, rather than verify, the child's account. And 

the district court left unaddressed the question of whether, in 

light of these discrepancies, the child's interview statements are 

sufficiently reliable to support the conclusion that the alleged 

molestation occurred. We explain. 

First, during the SAIN, the child told the interviewer 

that immediately following the incident, she had gone home and 

told her mother what had happened, and that her mother had told 

her "never to go back over to his house again." But according to 

the initial police report, the mother told the police that she 

learned of the incident from the child's aunt, which was not until 

March 2013. 

Additionally, when the interviewer asked the child how 

many different times Lacouture had inappropriately touched her, 

the girl responded that it had happened only "[o]nce," and when 

the interviewer asked whether he had ever touched "any other places 

on [her] body," she answered, "Nope." But, conflictingly, in the 

statement the child allegedly made to her aunt -- "Rhino used to 

do it to me as well as other things we are not supposed to do" -- 
- 9 - 

she seems to have suggested both that there was more than one 

instance of molestation, and that there may have been more than 

one kind of inappropriate act. 

Furthermore, when the interviewer asked the child 

whether "anybody else" had ever "touched . . . any places on [her] 

body" that they "weren't supposed to touch," the child answered, 

"No." But during a post-SAIN interview, the child's mother told 

the police that the child had been molested previously by a 

grandfather. 

Finally, several months before the SAIN, the mother 

reported to the police that the child had told her she had been 

"touched" by someone across the street, but withdrew the 

accusations when the child then "told [the mother] that she [had] 

lied about being touched." The child's mother told the police 

during her post-SAIN interview that, while she thought the child 

was likely telling the truth about this incident now, she "was not 

sure" whether she was lying again.5 

 5 Lacouture maintains that the present incident, of which he 

stands accused, and this prior incident of sexual assault, about 

which the girl admitted she lied, are, in fact, one and the same, 

as both allegedly occurred "several months" before March 2013 and 

involved a "neighbor." The government agrees that this is a 

"plausible inference," but argues that, if anything, this shows 

the child was consistent in her story, even if she retracted her 

first report of it, perhaps out of embarrassment or fear. For 

reasons we explain in a moment, we leave it for the district court 

to weigh these competing inferences. 
- 10 - 

We do not assert that the dissonance between the SAIN 

transcript and the police reports requires that the child's account 

be disbelieved. But we do conclude that we ought go no further in 

our review because we cannot tell from the sentencing judge's 

conclusory finding whether he found the child's SAIN statement 

reliable, hence admissible, and why. In ruling on this issue, the 

judge stated simply: "[T]he Court does believe, under the reduced 

standard by which it is to determine sentencing factors, a 

preponderance of the evidence[,] . . . that, while this Defendant 

was on failure-to-register status, he committed a sex offense[.]" 

"[I]n other words," the judge went on, "the conduct is sufficient 

on the evidence . . . that the Defendant was in commission of 

conduct that was in violation of a . . . sex-conduct statute, and 

therefore . . . the eight-level increase is warranted." It is not 

clear from this sparse discussion whether the sentencing judge 

found the child's interview statements to be reliable, and if so, 

how he came to his conclusion despite the apparent inconsistencies. 

As a result, we cannot tell whether the judge clearly erred in 

finding that the sentencing enhancement applied on the basis of 

the evidence.6

 6 We are mindful that recounting a sex crime can be a traumatic 

experience that may make telling a linear story difficult, and 

that this hardship is compounded when the victim is a child. 

Nonetheless, a sentencing enhancement cannot be applied unless the 

government meets its burden to prove the predicate fact or facts 

by a preponderance of the evidence. 
- 11 - 

The stakes of a potentially erroneously calculated 

guideline range in this case are clear. The district court imposed 

a top-of-the-range sentence of 78 months (6 years and 6 months). 

Without the enhancement, the range would have been 30 to 37 months, 

resulting in a guideline ceiling of 3 years and 1 month -- less 

than half the sentence Lacouture ultimately received.7 

Given the impact that a possible error would have had on 

the sentence and the need for further clarification before we can 

determine whether an error occurred, see United States v. JimenezMartinez, 83 F.3d 488, 494 (1st Cir. 1996) (expressing "concern[]" 

over "the court's failure to articulate any reason why [a 

questionable] affidavit was reliable," and finding the court erred 

in relying on it without an evidentiary hearing), we think the 

wisest course here is to follow our occasional practice of 

remanding the matter to the district court, as we have previously 

done in cases where a district court's explanation of a sentence 

is inadequate, see United States v. Lucena-Rivera, 750 F.3d 43, 53 

(1st Cir. 2014) (remanding with instructions to revisit the 

 7 This would-be guideline range is based on a base offense 

level of fourteen, minus two levels for acceptance of 

responsibility, resulting in a total offense level of twelve. 

(Only two levels are subtracted for acceptance of responsibility 

because, without the eight-level enhancement, Lacouture would not 

have qualified for the additional one-level decrease for timely 

notice of his intent to plead guilty, which the PSI report 

recommended and the district court adopted, because that decrease 

only applies where the offense level is sixteen or greater. See 

U.S.S.G. § 3E1.1(b).) 
- 12 - 

application of a sentencing enhancement, as "is appropriate when 

the basis in the sentencing record for the application of an 

enhancement requires clarification"). 

On remand, the district court should indicate whether it 

found the child's statement to be reliable and how it reached that 

conclusion.8

CONCLUSION

Because we are unable to determine whether the district 

court erred in applying the eight-level sentencing enhancement, we 

vacate the sentence and remand for further proceedings consistent 

with this opinion. 

 8 To this end, the district court may wish to request that 

the government produce the video recording of the SAIN in order to 

aid its assessment of the child's responses.