UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

 

No. 04-4055

 

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

STEVEN RAY RICKS,

Defendant - Appellant.

 

Appeal from the United States District Court for the Western

District of North Carolina, at Bryson City. Lacy H. Thornburg,

District Judge. (CR-03-86)

 

Submitted: December 22, 2005 Decided: February 3, 2006

 

Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.

 

Affirmed in part, and vacated and remanded in part by unpublished

per curiam opinion.

 

David G. Belser, BELSER & PARKE, Asheville, North Carolina, for

Appellant. Gretchen C. F. Shappert, United States Attorney,

Charlotte, North Carolina; Amy E. Ray, Assistant United States

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North

Carolina, for Appellee.

 

Unpublished opinions are not binding precedent in this circuit. 

See Local Rule 36(c). 
2

PER CURIAM:

A jury convicted Steven Ray Ricks of two counts of aggravated

sexual abuse of a minor in violation of 18 U.S.C.A. §§ 1152 and

2241 (2000) for twice assaulting his six-year-old stepdaughter. He

received two concurrent 180-month prison terms. Ricks appeals,

challenging both his convictions and sentence. We affirm his

convictions but remand for resentencing.

I.

Ricks first complains that his convictions violated the Sixth

Amendment’s Confrontation Clause because the court allowed three

witnesses to testify about out-of-court statements by his

stepdaughter. This argument fails, however. Because his accuser

testified and was cross-examined, “the Confrontation Clause places

no constraints at all on the use of” her prior statements.

Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004) (citing

California v. Green, 399 U.S. 149, 162 (1970)).

Ricks argues that even though his stepdaughter was present, he

was effectively denied the right to cross-examine her because she

testified with the assistance of an interpreter (after the court

found her answers to its questions inaudible), and because she

claimed not to remember making the accusations in question. This

argument fundamentally misunderstands the Sixth Amendment’s

guarantee, however. “[T]he Confrontation Clause guarantees only
*

Ricks also contends that the indictment violated Booker

because it failed to allege that the victim was in his “custody,

care, or supervisory control.” This argument misunderstands

Booker, however. The Supreme Court did not transform every fact

required to enhance a sentence into an element of the underlying

3

‘an opportunity for effective cross-examination, not

cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.’” United States v. Owens,

484 U.S. 554, 559 (1988) (quoting Kentucky v. Stincer, 482 U.S.

730, 739 (1987)). “It is sufficient that the defendant has the

opportunity to bring out such matters as the witness’ bias, [her]

lack of care and attentiveness . . . and even . . . the very fact

that [she] has a bad memory.” Id. Here, because the defendant had

a sufficient opportunity to question his stepdaughter and to

further develop any inconsistencies between her statements in court

and her out of court accusations conveyed by other witnesses --

indeed, she directly answered every question asked by his attorney

-- Ricks was not deprived of his rights under the Confrontation

Clause.

II.

Ricks’s challenge to his sentence, however, is more

meritorious. He contends that the district court

unconstitutionally enhanced his sentence based on facts not found

by the jury in violation of United States v. Booker, 125 S. Ct. 738

(2005).*
offense; it merely held that a sentence could not be enhanced based

on facts not found by a jury or admitted by the defendant. The

offenses for which Ricks was convicted only required proof that he

“knowingly engage[d] in a sexual act with another person who has

not attained the age of 12,” 18 U.S.C. § 2241(c), and that he be a

non-Indian who committed a crime against an Indian on Indian lands,

id. § 1152. Because those facts were clearly alleged in his

indictment, it was not “defective.”

4

The jury convicted Ricks of two counts of sexually assaulting

a minor, a crime that carries a base offense level of 27. See

United States Sentencing Guidelines (“USSG”) § 2A3.1 (2003). The

court properly enhanced the offense level by 4 for assaulting a

victim less than twelve years of age -- a fact alleged in the

indictment. See id. § 2A3.1(b)(2)(A). The court also properly

enhanced the offense level by 2 because the jury convicted Ricks of

multiple counts. See id. § 3D1.4. With this offense level of 33

and a criminal history category of I, Ricks could have received a

sentence ranging from 135-168 months. See id., Ch. 5, Pt. A (2003)

(sentencing table). 

The district court, however, imposed still another enhancement

based on Ricks’s role as his stepdaughter’s caregiver. Id.

§ 2A3.2(b)(1). The Government concedes that this enhancement

resulting in a 180-month sentence was based on an additional fact

not found by the jury or admitted by Ricks, and thus violated his

constitutional rights. See Brief of Appellee at 36-37. It also

concedes that it bears the burden of proving this error was

harmless because Ricks objected to the enhancements at his

sentencing. Id.; see also United States v. Mackins, 315 F.3d 399,
5

405 (4th Cir. 2003). Because the 180-month sentence exceeded the

168-month maximum that Ricks could have received based only on the

facts found by the jury or admitted by Ricks, the error was not

harmless. 

We therefore remand to the district court for resentencing.

On remand the “district court shall first calculate (after making

the appropriate findings of fact) the range prescribed by the

guidelines.” United States v. Hughes, 401 F.3d 540, 546 (4th Cir.

2005). The court should then “consider that range as well as other

relevant factors set forth in the guidelines and those factors set

forth in § 3553(a).” Id. If the court chooses to impose a

sentence outside that range, “it should explain its reason for

doing so.” Id.

III.

For the foregoing reasons the judgment of the district court

is

AFFIRMED IN PART,

AND VACATED AND REMANDED IN PART.