IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 97-60577

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UNITED STATES OF AMERICA,

Plaintiff-Appellant,

VERSUS

WALTER F. LUCAS,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Mississippi

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October 9, 1998

Before KING, SMITH, and PARKER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The government appeals the district court's application of the

sentencing guidelines. Finding error, we reverse and remand for

resentencing.

I.

Walter Lucas was Acting Warden of River County Jail in River

County, Mississippi. Eunice Alfred, a pretrial detainee, was

working in Lucas's office when Lucas, without warning, reached into1 These facts come from the presentence report.

2 her sweat pants and placed his fingers into her vagina. Alfred,

who was standing near an open door, ran from the room.

A few weeks later, Lucas asked a male prisoner to act as a

lookout so that he could take care of some “business” in the

booking room, which was located behind his office. Lucas called

Alfred into the room and locked the door, then pulled off her pants

and raped her. 1 When interviewed by the FBI about this incident,

Lucas denied having sexual contact with any inmate.

Lucas was indicted for three violations of 18 U.S.C. § 242,

which was at that time a civil rights violation misdemeanor, and

one violation of 18 U.S.C. § 1001, making a false statement in an

official inve stigation. Counts one, two, and three charged him,

while acting under co lor of law, with sexually assaulting three

female prisoners who were in his custody. Count four charged him

with willfully making a false statement to the FBI.

As his trial was about to begin, Lucas pleaded guilty to count

one, violating the civil rights of Eunice Alfred, and count four,

making a false official statement. As part of the plea agreement,

Lucas stipulated that count one should be classifie d pursuant to

U.S.S.G. § 2A3.1. Defense counsel explained to Lucas that he

believe d the plea agreement required six years' imprisonment for

the two offenses. Lucas accepted the plea.

While under oath, Lucas testified that he agreed with the3

prosecutor's summation of the facts, that he had “coerced [his

victim] to engage in sexual intercourse and other sexua l acts

without her consent and that

. . . [he] acted willfully,

. . . with

the specific intent to deprive [the victim] of the rights secured

by the Constitution SS t hat is, the right to be free from unwanted

sexual intercourse.”

The presentence report (“PSR”) stated that the most analogous

guideline was § 2A3.1 (criminal sexual abuse), which has a base

offense level of 27. The PSR calculated the total offense level to

be 35, adding two levels pursuant to § 2A3.1(b)(3) because the

victim was in custody, six levels pursuant to § 2H1.1(b)(1)(B)

because count one was committed under color of law, and two levels

pursuant to § 3C1.1 because count four constituted obstruction of

justice relating to count one. The PSR then subtracted two levels

pursuant to § 3E1.1 for acceptance of responsibility.

The guideline range was 168 to 210 months' imprisonment.

Because the maximum possible sentence was six years S S one year for

count one and five years for count four SS and that sentence was less

than the total punishment called for by the guidelines, the PSR

stated that the guidelines required a sentence of 72 months.

The district court, howeve r, sentenced Lucas using § 2A3.3,

which normally is applied to consensual criminal sexual abuse of a

ward. The court was concerned that the sentence under § 2A3.1 was

unduly harsh because count four was a collateral offense, and count2 Section 242 was amended in 1994, after the events involved in this case,

to provide that committing aggravated sexual abuse under this section is subject

to imprisonment for “any term of years or for life.”

4 one was only a misdemeanor that had a maximum penalty of one year. 2

Moreover, the court stated, an exception under 18 U.S.C. § 1001 for

an “exculpatory no” had existed until “very recently.” The court

declared:

I'm not sure Congress intended.

. . to increase [to such

an ex tent] the level of the underlying offense . . . .

Lying to an FBI agent

. . . is a crime under our law.

I'm not minimizing that. But when you use that to

enhance the statutory penalty, the maximum statutory

penalty the Congress has outlined for this type of sexual

conduct, which is one year, then I don't think that that

has been and is the intent of Congress.

The court imposed a sentence of two years: one year for count

one and one year for count four. It used § 2A3.3, for a base level

of 9, then added six levels pursuant to § 2H1.1(b)(1)(B), as count

one was committed under color of law, and added two levels pursuant

to § 3C1.1 because count four constituted obstruction of justice

relating to count one, and subtracted two levels pursuant to

§ 3E1.1 for acceptance of responsibility. The total of 15, along

with Lucas's not having a previous criminal record, placed the

sentence at 18-24 months, according to the sentencing guidelines.

See U.S. S ENTENCING G UIDELINES M ANUAL chap. 5, part A (1995).

The government appeals the use of § 2A3.3, arguing that the

court should have used § 2A3.1 as the most analogous section. It

also appeals the two-level reduction for acce p tance of

responsibility.3 The provision in effect at the time of the offense was § 2H1.4. Section

2H1.4 was deleted by consolidation with § 2H1.1 effective November 1, 1995. S ee

Appendix C, amendment 521. Section 2H1.1 was the provision in effect at the time

of Lucas's sentencing, and he does not claim prejudice in the application of this

provision.

5 II.

We review application of the sentencing guidelines de novo and

findings of fact under a clearly erroneous standard. S ee United

States v. Stevenson

, 126 F.3d 662, 664 (5th Cir. 1997); United

States v. Reyna-Esp inosa , 117 F.3d 826, 828 (5th Cir. 1997). We

review de novo a determ ination of the meaning and effect of any

factual stipulations on a sentence. S ee Braxton v. United States

,

500 U.S. 344, 350 (1991); United States v. Domino

, 62 F.3d 716, 719

(5th Cir. 1995). We also give plenary review to the decision

concerning which guideline provision is most analogous to the

offense of conviction. S ee United States v. Hornsby

, 88 F.3d 336,

338 (5th Cir. 1996) (per curiam).

III.

A.

Violations o f 18 U.S.C. § 242 are sentenced according to

U.S.S.G. § 2H1.1, 3 which provides:

(a) Base Offense Level (Apply the Greatest):

(1) the offense level from the offense guideline

applicable to any underlying offense;

(2) 12, if the offense involved two o r more4 The first application note to this section also provides:

Where a stipulation

. . . made betw een the parties on the record

during a plea proceeding specifically establishes facts that prove

a more serious offense or offenses than the offense or offenses of

conviction, the court is to apply the guideline most applicable to

the more serious offense or offenses established.

U.S.S.G. § 1B1.2(a) application note 1.

6

participants;

(3) 10, if the offense invol ved (A) the use

or threat of force a gainst a person; or

(B) property damage or threat of property

damage; or

(4) 6, otherwise.

(b) Specific Offense Characteristic

(1) If (A) the defendant was a public

official at the time of the o ffense; or

(B) the offense was committed under color

of law, increase by 6 levels.

The first application note to this section specifies: “'Offense

Guideline applicable to any underlying offense' means the offense

Guideline applicable to any conduct established by the offense of

conviction t hat constitutes an offense under federal, state, or

local law.”

Section 1B1.2(a) provides that in the case of a plea agreement

“containing a stipulation that specifically estab lishes a more

serious crime than the offense of conviction, determine the offense

guideline

. . . most applicable to the stipulated offense.”

Accordingly, by th e plain language of the guidelines, the crime

used for sentencing need not be the crime of conviction. 45 Section 2A3.3 corresponds to 18 U.S.C . § 2243(b), which involves noncoercive conduct and makes criminal consensual intercourse with a person in

official detention.

7 B.

Lucas admitted under oath to “coerc[ing the victim] to engage

in sexual intercourse and other sexual acts without her consent,”

and to depriving her of her right to be free from “unwanted sexual

intercourse.” Lucas admits in his brief that “[d]efinitionally

this is probably [rape].” The district court accepted his plea and

did not make any factual findings cont radicting the plea's

statement that the sex was nonconsensual.

The court applied § 2A3.3 because count one was a misdemeanor.

The court stated that had count one “been a felony, no doubt 2A3.1

. . . would be the guideline” to apply. 5 As we have said, because

the maximum penalty for violating 18 U.S.C. § 242 was only one

year, the court did not wish to invoke § 2A3.1.

The court misconstrued the law because, for sentencing

guideline purposes, it does not matter whether one of the offenses

has a maximum of only one year. When a defendant is sentenced on

multiple counts under a single indictment, the c ourt computes a

total punishment by looking at the combined offense level with the

appropri ate criminal history category to arrive at a sentencing

range. S ee U.S.S.G. § 5G1.2(b). The total punishment can be more

than the maximum statutory penalty for any particular offe nse if

the defendant is sentenced on multiple counts. See United States6 In Kings

, a defendant was sentenced to 120-150 months' imprisonment for

two offe nses, even though one offense, an assault count, had a three-year

statutory maximum. The total punishment for the two offenses was not just the

three-year statutory maximum, even though the offense level and guideline range

for both offenses were “ whol ly determined by his assault count.” I d

. at

795 n.11. S ee also United States v. Griffith

, 85 F.3d 284, 289 (7th Cir. 1996)

(holding that sentence on multiple counts was not limited by the statutory

maximum for a particular count, even though that count dictates the offense level

and calcul a tion of total punishment for all the offenses); Segler

, 37 F.3d

at 1135.

7 The government did not raise the issue of Lucas's having violated state

law, and we, as a consequence, do not address it.

8 Section 2241(a) provides in pertinent part:

(a) By force or t hreat. S S Whoever, in the special maritime and

territorial jurisdiction of the United States or i n a Federal

prison, knowingly causes another person to engage in a sexual act SS

(1) by using force against that person; or

(2) by threatening or placing that other person in

fear that any person will be subjected to death,

serious bodily injury, or kidnapping;

or attempts to do so, shall be fined under this title, impri soned

for any term of years or life, or both.

Section 2242 provides in pertinent part:

8 v. Segler

, 37 F.3d 1131, 1135 (5th Cir. 1994); United St ates v.

Kings

, 981 F.2d 790, 797 (5th Cir. 1993) (per curiam). 6 The

maximum statutory penalty sets the upper limit that may be imposed

for a particular count. S ee U.S.S.G. § 5G1.2; Segler

, 37 F.3d

at 1136.

We therefore must look to the underlying offense to which

defendant has sti pulated. S ee U.S.S.G. §§ 2H1.1, 1B1.2(a). To

apply § 2A3.1, we must find that he violated 18 U.S.C. § 2241

or 2242, or a similar provision of state law. 7 The PSR found that

Lucas should be charged under § 2A3.1, as the crimes to which he

pleaded are most analogous to the rape statutes, §§ 2241 and 2242. 8Whoever, in the special maritime and territorial jurisdiction of the

United States or in a Federal prison, knowingly SS

(1) causes another person to engage in a sexual act by threatening

or placing that other person in fear (other than by threatening or

placing that other person in fear that any person will be subjected

to death, serious bodily injury, or kidnapping);

* * *

or attempts to do so , shall be fined under this title, imprisoned

not more than 20 years, or both.

9 Lucas’s offense is analogous to a violation of § 2241, because

he used actual force a gainst his victim. A defendant uses force

within the meaning of § 2241 when he employs restraint sufficient

to prevent the victim from escaping the sexual conduct. S ee United

States v. Allery

, 139 F.3d 609, 611 (8th Cir.), cert. denied

,

118 S. Ct. 2389 (1998); United States v. Jones , 104 F.3d 193, 197

(8th Cir.), cert. denied

, 117 S. Ct. 2470 (1997); United States v.

Fulton

, 987 F.2d 631, 633 (9th Cir. 1993). Furthermore, force can

be implied from a disparity in size and coercive power between the

defendant and his victim, as for example when the defendant is an

adult male and the victim is a child. S ee United States v.

Bordeaux , 997 F.2d 419, 421 (8th Cir. 1993).

In this case, the PSR declared, “It was through not only his

abuse of [his powers as a warden], but through actual use of force

,

that the defendan t committed the rapes and sexual assaults as

charged in the indictment” (emphasis added). Lucas summoned Alfred

to a relatively secluded location, locked the door so that she9 At his second sentencing hearing on July 28, 1997, Lucas insisted that he

had closed but not locked the door. Even assuming that to be true, however, Lucas’s

pressing the victim agains t a table and thereby blocking her means of egress

suffices to constitute force within the meaning of § 2241.

10 could not escape his advances, 9 and pressed her against a table in

suc h a way that she could not leave. Moreover, the disparity in

power between a jail warden and an inmate, combined with physical

restraint, is suffi cient to satisfy the force requirement of

§ 2241.

The evidence also demonstrate s that Lucas caused Alfred to

engage in a sexual act by placing her in fear within the meaning of

§ 2242. The definition of “fear” is very broad. S ee United States

v. Gavin

, 959 F.2d 788, 791 (9th Cir. 1992). This element is

satisfied when the defendant’s actions implicitly place the victim

in fear of some bodily harm. S ee United States v. Cherry

, 938 F.2d

748, 755 (7th Cir. 1991). Like force, fear can be inferred from

the circumstances, particularly a disparity in power between

defendant and victim. S ee United States v. Castillo

, 140 F.3d 874,

885 (10th Cir. 1998) (citing United States v. Reyes-Castro

, 13 F.3d

377, 379 (10th C ir. 1993)). Furthermore, a defendant’s control

over a victim’s everyday life can generate fear. S ee United States

v. Johns , 15 F.3d 740, 742-43 (8th Cir. 1994).

In his position as warden, Lucas had almost complete control

over his victim’s life. He oversaw the jail in which she was

incarcerated, reporting only to off-site supervisors; controlled

in mates’ freedom to move inside the jail, receive visits from11

friends and family, and take yard calls; determined what work

inmates would do; and possessed wide-ranging power to punish them.

Lucas’s control over Alfred was easily suffic ient to imply fear.

The record thus supports the conclusion that he caused her to

e ngage in a sexual act by placing her in fear as a result of the

disparity in power between them.

The district court was reluctant to use § 2A3.1 only because

18 U.S.C. § 242 was a misdemeanor. The court stated that had it

been a felony, the court would have applied § 2A3.1. Because the

crime's classification as a misdemeanor is irrelevant to the choice

of an appropriate sentencing guideline, the court erred by applying

§ 2A3.3 instead of § 2A3.1.

IV.

The government asks us to reverse the two-level reduction for

acceptance of responsibility pursuant to § 3E1.1(a). We need not

reach this issue, however, in light of our conclusion that the

court should have applied § 2A3.1 instead of § 2A3.3.

If § 2A3.1 is appli ed instead of § 2A3.3, the reduction for

acceptance of responsibility makes absolutely no difference. Under

§ 2A3.1, the sentence with the reduction would be 168-210 months,

as th e offense level would be 35. Without the reduction, the

offense level would be 37, resulting in a sentence of 210-262

months. The minimum sentence with the acceptance of responsibility12

under S 2A3.1, 168 months, however, is more than the six-year

maximum that Lucas can serve. S ee U.S.S.G. § 5G1.1(a) (stating

that when the minimum sentence in the applicable gu ideline range

exceeds the statutory maximum, the statutory maximum shall be the

guideline sentence).

The judgment of sentence is REVERSED and REMANDED for resentencing.