UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-4781

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

PHILLIP DANIEL DENKLER, a/k/a George Austin,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. James C. Dever, III,

District Judge. (5:05-cr-00264-D)

Submitted: March 7, 2007 Decided: July 10, 2007

Before WILLIAMS, Chief Judge, and KING and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Devon L. Donahue,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. George E.B. Holding, United States Attorney, Anne M.

Hayes, Jennifer P. May-Parker, Assistant United States Attorneys,

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Phillip Daniel Denkler pled guilty to interstate

transportation of a minor with intent to engage in criminal sexual

activity, 18 U.S.C.A. § 2423(a) (West Supp. 2006) (Count One), and

interstate transportation of a stolen vehicle, 18 U.S.C. § 2312

(2000) (Count Two). He received a sentence of 360 months

imprisonment on Count One and a concurrent sentence of 120 months

on Count Two. Denkler appeals his sentence, arguing that (1) the

district court erred in considering the victim’s statement to a

federal agent because it lacked sufficient indicia of reliability

to support certain fact findings that affected the sentence, see

U.S. Sentencing Guidelines Manual § 6A1.3(a), p.s. (2005); (2) the

district court clearly erred in finding that the victim’s ability

to appraise or control the situation was substantially impaired

after Denkler gave her vodka to drink, USSG § 2G1.3, comment.

(n.5(B)(I)); and (3) the district court abused its discretion by

departing upward pursuant to USSG § 4A1.3, p.s., on the ground that

criminal history category V substantially under-represented the

seriousness of his criminal history. We affirm.

In August 2005, after serving an eight-month custodial

sentence for taking indecent liberties with a thirteen-year-old

girl, and then violating probation, Denkler began serving six

months electronic house arrest in Rocky Mount, North Carolina.

Within a few days, using the name “George,” he had somehow come in
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contact by telephone with a twelve-year-old girl, who told Denkler

she wanted to leave home. On August 25, 2005, driving a car he had

stolen from a former roommate, and in possession of a credit card

stolen from his mother, Denkler picked up the victim.

On August 30, 2005, Denkler left the victim at a bus

station in Des Moines after helping her call her grandparents from

there. The victim told her grandparents that “George” had forced

her to have intercourse multiple times. At a local hospital, the

victim described the sexual contacts she had with Denkler to local

authorities and a Federal Bureau of Investigation (FBI) agent, and

identified him from a photographic line-up. She told investigators

that Denkler had threatened to kill her if she did not have sex

with him, and when she refused to perform oral sex on him, he

choked her until she nearly passed out to make her comply. The

victim said Denkler refused to let her call her grandparents during

the trip. She told the FBI agent that Denkler slapped her and

pulled her hair and made her drink a glass of vodka. She also said

Denkler told her that, if he went to jail because of her, he would

kill her when he got out, and that he would kill her if she was

pregnant with his child and had an abortion or gave up the child.

The results of the medical examination were not made available

to the investigators or, later, to the court, and investigators

were not able to obtain independent evidence that Denkler used

force or threats with the victim because she had showered and had
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been swimming since the last time she and Denkler had intercourse,

and the motel room where the last intercourse occurred had been

cleaned. 

Denkler was arrested on September 1, 2005, in Colorado.

He told authorities that he and the victim had consensual

intercourse several times during the trip, but denied using force

or threats. He said that, on the first night they spent in a

motel, they had drunk vodka together, after which the victim got

“wild” and they had intercourse. 

After Denkler’s guilty plea, the probation officer

calculated the offense level for the sex offense under U.S.

Sentencing Guidelines Manual § 2G1.3 (2005) (Transportation of

Minors to Engage in Prohibited Sexual Contact with a Minor).

Denkler had 9 criminal history points, which placed him in criminal

history category IV. However, because he qualified for sentencing

as a repeat and dangerous sex offender against minors, see USSG

§ 4B1.5, he was placed in criminal history category V. The

recommended advisory guideline range was 168-210 months

imprisonment. 

With advance notice to the parties, the district court

decided to apply a cross reference in USSG § 2G1.3(c)(3) for

offenses involving conduct described in 18 U.S.C.A. § 2241(a) or

(b) (West 2000 & Supp. 2006), to USSG 2A3.1 (Criminal Sexual

Abuse). The court determined that the cross reference applied
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because it found as a fact that Denkler used force to engage in

sexual conduct with the victim, see § 2G1.3, comment.

(n.5(B)(i)(I)), and also forced her to drink vodka, which

substantially impaired her ability to appraise or control her

conduct, see id. (n.5(B)(i)(IV)). The offense level calculated

under § 2A3.1 produced a higher offense level than § 2G1.3 or USSG

§ 4B1.5 (Repeat and Dangerous Sex Offender Against Minors);

accordingly, the court applied it. 

At sentencing, after the FBI agent who interviewed the

victim in the hospital in Des Moines testified, the district court

found as a fact that Denkler had used force to engage in sexual

conduct with the victim. The court consequently determined that

§ 2A3.1 applied and recalculated the guideline range as 262-327

months. The court then departed upward, pursuant to USSG § 4A1.3,

from criminal history category V to category VI, which increased

the guideline range to 292-365 months. After considering the

factors set out in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006),

the court imposed a sentence of 360 months on Count One and a

concurrent 120-month sentence (the statutory maximum) on Count Two.

Alternatively, the court stated that, “even if category V were the

appropriate criminal history category, the court would sentence

Denkler, pursuant to a variance, to the same sentence of 360 months

for Count One and 120 months for Count Two, to run concurrently,”

because his threats to kill the victim if he went to jail or if she
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became pregnant and aborted or gave up the child increased the

seriousness of the offense and were not accounted for in the

offense level. 

On appeal, Denkler first challenges the district court’s

application of § 2A3.1 on the ground that the district court erred

in relying on information that lacked sufficient indicia of

reliability when it determined that he used threats and force to

engage in sex with the victim. Policy statement § 6A1.3(a)

provides that, in resolving disputes about sentencing factors, the

district court “may consider relevant information without regard to

its admissibility under the rules of evidence applicable at trial,

provided that the information has sufficient indicia of reliability

to support its probable accuracy.” 

Denkler first contends that allowing sentencing courts to

rely on hearsay violates the Sixth Amendment, citing Crawford v.

Washington, 541 U.S. 36 (2004) (addressing right of confrontation

at trial), but concedes that other circuits have held that Crawford

does not apply to sentencing hearings. See, e.g., United States v.

Chau, 426 F.3d 1318, 1323 (11th Cir. 2005). Denkler principally

argues that the district court should not have relied on the

victim’s statements to investigators, asserting that she wished to

portray herself in a sympathetic light to her grandparents, and to

place the blame for the anxiety she caused them on Denkler. 
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Denkler maintains that the district court ignored certain

facts, such as, that the victim used the screen name

“sexysatinangel” when text messaging on her cell phone, sexually

explicit language was used in some of her text message exchanges,

and the clothing she brought on the trip included lace thong

panties, black lace panties, and a sleeveless shirt with the phrase

“no boundaries” on it. Denkler also argues that the court ignored

the fact that the medical examination of the victim revealed no

indication of forcible intercourse, bruises, or serious injuries.

He points out that the medical examination form states that the

victim answered “Yes,” when asked whether she had “any consensual

coitus in the previous 72 hours.” With respect to this question,

the FBI agent who interviewed the victim testified at sentencing

that the doctor who filled out the form told her the question was

meant to determine whether there had been recent sexual activity,

not whether it had actually been consensual. The agent also

testified that the victim was cooperative with her and with the

hospital staff, and was “very honest and very credible.” 

Even though authorities were unable to find evidence to

substantiate the victim’s statements, we conclude that her

statements had sufficient indicia of reliability to support their

probable accuracy. She submitted willingly to a medical

examination and to interviews by local and federal authorities, and

acknowledged that she had engaged in text messaging with other men.
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Her statement to the FBI agent was consistent with her previous

statement to local police. Therefore, the district court did not

err in relying on her statements. 

Denkler also contends that the district court clearly

erred in finding that the victim’s ability to appraise or control

the situation was substantially impaired after she drank alcohol

because the court lacked the information necessary to reach that

conclusion. We need not decide this issue because the district

court’s finding that Denkler used force against the victim to

engage in sex with her was supported by the victim’s statement and

that finding is sufficient to trigger the application of § 2A3.1.

Finally, Denkler maintains that the district court abused

its discretion in departing upward from criminal history category

V to category VI. In his view, the guideline sentence adequately

accounted for his past criminal conduct and the court departed

merely because it was dissatisfied with the length of the guideline

sentence. Denkler does not challenge the court’s determination

that a departure was also warranted based on the high likelihood of

recidivism.

Following United States v. Booker, 543 U.S. 220 (2005),

we review a sentence for reasonableness. United States v.

Hernandez-Villanueva, 473 F.3d 118, 123 (4th Cir. 2007). “When we

review a sentence outside advisory sentencing range -- whether as

a product of a departure or a variance -- we consider whether the
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sentencing court acted reasonably both with respect to its decision

to impose such a sentence and with respect to the extent of the

divergence from the range . . . .” Id. A departure pursuant to

§ 4A1.3 is encouraged, provided that the criminal history category

does not account adequately for his past criminal conduct or the

likelihood that he will commit other crimes. United States v.

Dixon, 318 F.3d 585, 588 (4th Cir. 2003).

Here, the district court decided that criminal history

category V substantially underrepresented Denkler’s criminal

history, even though the application of § 4B1.5 had already raised

him from category IV to category V. First, the court noted that

Denkler was prosecuted in the juvenile court system in Kentucky for

stealing his father’s car. This finding is based solely on a

statement to investigators by Denkler’s estranged father that is

contained in the presentence report. Although Denkler did not

dispute it, no official record of the charge and its disposition

was available. The court decided that the offense was similar to

Count Two, transportation of a stolen vehicle, and that it could

consider both juvenile offenses and prior similar conduct as a

basis for departure. While not exhaustive, the factors suggested

in § 4A1.3(a) as possible bases for upward departure include

“[p]rior sentence(s) not used in computing the criminal history

category,” and “[p]rior similar adult conduct not resulting in a

criminal conviction.” USSG § 4A1.3(a)(2)(A), (E) (emphasis added).
1Denkler received one criminal history point for a sentence of

30 days custody and 36 months unsupervised probation after he was

convicted in 2002 of misdemeanor assault on a female.

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Second, the district court considered the fact that

Denkler had previously been charged with statutory rape (for which

the court estimated he would have received a custodial sentence of

at least 192 months), was permitted to plead guilty to a lesser

offense, served a short custodial sentence, violated his probation

and then, after being placed on house arrest, absconded to engage

in the criminal conduct that resulted in his current prosecution.

The background commentary to § 4A1.3 suggests that a defendant who

has a history of serious offenses for which he has received very

lenient sentences may be in a category that underrepresents his

criminal history. The court found that Denkler fit this

description.

Last, the court decided that category V did not

adequately represent the likelihood that Denkler would commit

similar crimes in the future. The court noted that Denkler had

been prosecuted for sexual intercourse with a thirteen-year-old

girl and a twelve-year-old girl, and for assaulting another

female.1 The court found that Denkler’s conduct showed that he had

no respect for the law and had “a strong tendency to revert to

grossly inappropriate behavior toward females, particularly young

girls.” The court decided that category VI best represented his

criminal history and likelihood of recidivism. 
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Denkler argues that category V adequately addressed his

criminal history because it took into account his repeated sexual

offenses involving minors, his custodial status when he committed

the instant offense, and the recency of the prior conviction, and

he emphasizes that he was awarded criminal history points for all

his serious adult sentences. Denkler maintains that the court

erred in assuming that he would necessarily have been found guilty

of statutory rape had he gone to trial instead of pleading guilty

to the lesser offense, and would automatically have received a

sentence of 192 months imprisonment. He further maintains that his

juvenile conviction for stealing his father’s car was not counted

because the sentence and the offense were not sufficiently serious,

and that the district court decided otherwise without adequate

basis for doing so.

After carefully considering Denkler’s arguments, we

conclude that the district court’s decision to depart pursuant to

§ 4A1.3 was reasonable. Denkler had twice received lenient

sentences in state court for offenses against females and, rather

than comply with the conditions of probation, he initiated the

instant offense. The district court based its decision to depart in

part on the under-representation of Denkler’s past criminal conduct

and in part on the likelihood that he would commit future crimes.

Taking the two factors together, the district court could

reasonably conclude that an upward departure was warranted.
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We must also consider whether the extent of a departure

is reasonable. Hernandez-Villanueva, 473 F.3d at 123. Here, the

court departed upward by one category. The resulting guideline

range was 292-365 months, and the sentence of 360 months (the

statutory maximum) was within the departure range. The court

explained that it chose the maximum sentence in light of several

factors set out in § 3553(a), specifically, “the need to protect

the public, to deter this defendant, to reflect the seriousness of

the offense, and to provide just punishment.” The court further

stated that it imposed a sentence at the top of the guideline range

because of Denkler’s “history of violence and predatory behavior,

and the court’s views on his likelihood to commit similar crimes if

released earlier.” 

The top of the pre-departure range in this case was 327

months, thirty-three months less than the sentence imposed. While

it is impossible to be say whether Denkler would exhibit the same

predatory tendencies if he were released after a term of

imprisonment 327 months, or another term of imprisonment that is

less than 360 months, the court reasonably concluded that only the

maximum sentence was adequate to protect potential victims and

punish Denkler for the offenses he committed. We conclude that the

length of the sentence was reasonable.

We therefore affirm the sentence imposed by the district

court. We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED