FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-30062

Plaintiff-Appellee, D.C. No.

v.  CR-03-00007-DWM

MATTHEW EVANS DOWD, OPINION AND

Defendant-Appellant. ORDER 

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, District Judge, Presiding

Submitted January 11, 2005*

Seattle, Washington

Filed August 8, 2005

Before: Mary M. Schroeder, Chief Judge, Susan P. Graber

and Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

10165
COUNSEL

Darla J. Mondou, Upton, Massachusetts, for the defendantappellant. 

Joshua S. Van de Wetering, Assistant United States Attorney,

Missoula, Montana, for the plaintiff-appellee.

OPINION

FISHER, Circuit Judge: 

A jury convicted Matthew Evans Dowd of violating the

federal interstate domestic violence law. He argues that the

jury did not have sufficient evidence that he forced or coerced

his companion, Danna Johnson, to cross state lines, as the

statute requires, because she had reasonable opportunities to

escape. 

Dowd also challenges the district court’s decision to

impose a sentence for the domestic violence crime that is consecutive to his sentence for previous drug-related crimes. He

further argues that the district court improperly enhanced his

sentence as a sexual crime in violation of Apprendi v. New

Jersey, 530 U.S. 466 (2000). 

We affirm Dowd’s conviction. The evidence demonstrated

that Dowd subjected Johnson to numerous instances of physical and psychological abuse as they traveled through MonUNITED STATES v. DOWD 10169
tana, Colorado and Utah. Viewed from the perspective of a

reasonable woman in Johnson’s circumstances, the jury could

readily have found that Dowd, through a combination of

actual force and dire threats, compelled Johnson to stay with

him and made her fearful of attempting to flee. 

We further affirm Dowd’s sentence because the district

court properly exercised its discretionary authority in imposing a consecutive sentence, and the jury found that Dowd had

committed a sexual assault, making him eligible for the statutory enhancement. 

I.

The events giving rise to Dowd’s conviction occurred over

an 8-month period between May and December 2002. Dowd

and Johnson had met before in 1999, in Missoula, Montana,

where Johnson had worked as a respiratory therapist. In

August 2001, after becoming romantically involved, Dowd

and Johnson moved in together, and Johnson, under Dowd’s

influence, began using methamphetamines. Dowd left her a

few months later and shortly thereafter was indicted for distribution and possession of methamphetamine, possession of a

firearm in relation to a drug-trafficking crime and being a

drug user in possession of a firearm. Dowd was arrested and

later pled guilty to two of the counts. He petitioned the court

to attend a drug rehabilitation facility in Butte, Montana,

before his sentencing. In May 2002, he was discharged and

was supposed to surrender to the Missoula Detention Center

within three hours of his release. Instead, he fled. 

In the meantime, Johnson had lost her job, quit using drugs

and moved to Colorado. After her move to Colorado, Johnson

contacted Dowd’s mother because Johnson knew Dowd had

been in trouble. Dowd’s mother told Johnson that he was on

probation for six years, working in California and was clean

and sober. Dowd’s mother urged Johnson to speak with Dowd

by phone. They did so, and when Dowd fled the rehabilitation

10170 UNITED STATES v. DOWD
facility in Missoula in May 2002, he headed to Colorado,

where he knew Johnson was then living. 

The two moved in together, but within a week Johnson

realized Dowd was buying drugs. She confronted him one

night about the drug purchases, prompting an altercation at a

local bar. She walked out of the bar to go home, but Dowd

followed her, swung at her and unsuccessfully tried to force

her into the car. Johnson did not return home until many hours

after the incident, thinking it was safe to go back into their

apartment because Dowd did not have a key. Dowd, however,

had broken in and was waiting inside when she entered the

apartment. He punched, raped and tried to suffocate her.

Dowd then told Johnson that they needed to leave the apartment because the neighbors could hear everything, and he no

longer felt safe there. After Dowd said that he planned to

leave and take her with him, Johnson tried to run out of the

apartment to a local convenience store but Dowd overpowered her. Johnson testified that “he said he couldn’t let me go

because he was an escaped felon and I would just rat on him.”

Until that point, she had not known Dowd was an escaped

felon. 

Dowd pulled Johnson by the hair and pushed her down the

street, shoving the back of her head until she got into the car’s

driver’s seat. They stopped at a phone booth where Dowd called his mother. However, Dowd had tied a shoelace to the car

key so that when they stopped, he could pull the key out of

the ignition and take it with him. Without the car key, Johnson could not drive away and did not believe she could run

fast enough to escape on foot. 

That night, the pair stayed in a motel because Dowd did not

feel it was safe to return to their apartment, and he was awaiting money from his mother. Dowd kept close tabs on Johnson

at the motel, for example hovering over her as she checked

into their room. Johnson said she did not try to seek help or

UNITED STATES v. DOWD 10171
escape at that time because she worried that there would be

repercussions for her family. 

The next day, they returned to the apartment to pack up

their clothes, dishes and other personal items. The apartment

manager testified that he saw Johnson unloading boxes from

the trunk of her car and that she appeared upset. The manager

also said that while Johnson was at the apartment, Dowd was

at the manager’s house, some two-and-a-half miles away,

doing landscaping work.1

After collecting their belongings, Dowd made Johnson

drive straight from Colorado to Dowd’s mother’s home in

Montana. Johnson did not scream out for help along the way

because she was too afraid for the lives of her grandchildren

and sister, whom Dowd had threatened to kill. On their drive,

Dowd taunted Johnson by asking her: “How did it almost feel

to die today?” Dowd removed the car key at every gas station

or phone break. Johnson said she unsuccessfully tried to ruin

the transmission of the car — hoping that would stop the

progress of their trip — by throwing the car into reverse while

driving at 75 miles an hour. When her plan failed, and seeing

no other options for getting away from Dowd, Johnson

decided during the road trip, “I’ll do what he says and when

we get to his mother’s house, his mother will help me.” But

when they arrived in Montana, Dowd’s mother told Johnson

not to antagonize her son because that would only result in

more beatings. Dowd continued to physically and sexually

abuse Johnson at his mother’s house, where they stayed intermittently over the following weeks. Johnson said Dowd

would wrench her neck and beat her so that she was covered

with bruises. “[H]e would laugh and make fun of me, that I

was walking like an old woman. And it was because I hurt so

bad.” 

1

Johnson was not questioned as to why she did not attempt to flee from

Dowd on this occasion. 

10172 UNITED STATES v. DOWD
About a week and a half after arriving in Montana, Johnson

drove Dowd to Utah for three to four days, so that he could

purchase drugs. On a second trip to Utah, Dowd sold items at

pawn shops so he could purchase drugs. On one occasion,

Johnson went into a pawn shop when Dowd was not around.

But Johnson said she was too afraid for her family’s wellbeing to run away. When in Utah, Johnson and Dowd stayed

with Dowd’s brother at a motel. The motel manager testified

that at times Johnson would walk around the motel alone, for

example going to the candy machine by herself. The manager

noted that Johnson appeared to have bruises around her eyes.

Johnson testified that during the trips between Montana and

Utah, Dowd was beating her almost every day, and she was

weak from not having eaten. Dowd also brought a gun with

him on the trips to Utah, intending to pawn it while there, and

would threaten Johnson with the gun in the car. The second

trip to Utah lasted about a week before the pair returned to

Montana. 

On New Year’s Eve 2002, the two went to a bar in Montana, where Dowd got drunk. Dowd insisted they leave and

drove the car back to his mother’s house. When they arrived,

Johnson pulled the car key out of the ignition and jumped out

of the car. Johnson then attempted to get into the driver’s seat,

but Dowd grabbed her and threw her down an embankment.

He left her for dead and went into his mother’s house. Johnson was able to get into the car and drive to a friend’s house.

Johnson hid out with different individuals for almost a

month because she heard that Dowd “was hunting me down.”

She eventually called the agents who had been searching for

Dowd since he became a fugitive. A medical expert diagnosed

Johnson with post-traumatic stress disorder. During the medical interview, Johnson spoke of being repeatedly choked and

showed some signs of injury to her neck. She also had

restricted movement in her jaw. 

Dowd was convicted under the federal interstate domestic

violence statute. 18 U.S.C. § 2261(a)(2). The district court

UNITED STATES v. DOWD 10173
sentenced Dowd to 127 months for the violation of the statute

and willful failure to appear for his prior offense. The court

imposed the sentence to run consecutive to the 144-month

undischarged sentence from Dowd’s previous guilty plea for

the drug-related crimes. 

II.

Dowd did not move for acquittal under Fed. R. Crim. P. 29.

Thus, his claim that his conviction is not supported by the evidence is reviewed for plain error. United States v. Weber, 320

F.3d 1047, 1050-51 (9th Cir. 2003). A conviction is supported

by sufficient evidence if, “viewing the evidence in the light

most favorable to the government, any rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt.” Id. at 1050. 

A district court’s interpretation and application of the sentencing guidelines are reviewed de novo. United States v.

Arellano-Torres, 303 F.3d 1173, 1176 (9th Cir. 2002).

Dowd’s claim that his sentence violates Apprendi also is

reviewed de novo. United States v. Garcia-Guizar, 234 F.3d

483, 488 (9th Cir. 2000). 

III.

[1] The federal interstate domestic violence statute requires

that the defendant cause “a spouse or intimate partner to travel

in interstate or foreign commerce . . . by force, coercion,

duress, or fraud.” 18 U.S.C. § 2261(a)(2). As the Fourth Circuit has explained, the “words ‘force, coercion, or duress’

necessarily require that the victim is a non-consenting participant in the interstate travel.” United States v. Helem, 186 F.3d

449, 456 (4th Cir. 1999). Dowd argues that despite all the evidence of his physical and psychological abuse of Johnson, the

government failed to prove that Johnson traveled with him

across state lines involuntarily. In particular, he cites various

opportunities she had to escape; that she stayed even when he

10174 UNITED STATES v. DOWD
was not around, he contends, negates any finding of force or

coercion. We conclude to the contrary — the evidence supports a finding that Dowd, using both force and coercion (or

duress), caused Johnson to accompany him on their interstate

travels. 

[2] First, there was sufficient evidence that Dowd forced

Johnson to cross state lines. The jury heard detailed testimony

from Johnson that Dowd beat and raped her in Colorado just

before his decision to leave for Montana. When she tried to

run for the convenience store, Dowd overpowered her,

dragged her by her hair to the car and made her start driving.

The pair stayed that night at a motel, where Dowd kept close

watch on Johnson. The next day they returned to the apartment to pick up their belongings. Dowd ordered Johnson to

make sure every item of his was out of the apartment, particularly his identification. Once they began driving, Dowd “kept

complete control of the car” by holding onto the key and

threatening to kill Johnson and her family if she did not obey

him. 

[3] These acts of physical violence and dominance before

and during the drive from Colorado to Montana could permit

a reasonable juror to find that Dowd caused Johnson to drive

across state lines by force. See United States v. Baggett, 251

F.3d 1087, 1096 (6th Cir. 2001) (holding that jury could find

the defendant forced his wife to cross state lines given his

admission that he had beaten his wife in both states); Helem,

186 F.3d at 455 (holding that defendant’s assault of his victim

in one state, making her afraid of being beaten again and

unable to resist the defendant physically, was sufficient to

establish that defendant forcibly caused her to cross state

lines); see also United States v. Bowe, 309 F.3d 234, 236 (4th

Cir. 2002) (noting that defendant who pled guilty under

§ 2261(a)(2) had forced his estranged wife into an SUV

through physical threats and intimidation, slapping and stabbing her during their trip across state lines). 

UNITED STATES v. DOWD 10175
Johnson also described repeated acts of violence Dowd

committed against her while at his mother’s home in Montana, including in between the two trips to Utah. Although

some time elapsed between the beatings and rapes and the

Utah trips, the jury could have reasonably concluded that the

pattern of Dowd’s abuse caused Johnson to join him on these

trips. That Dowd chose to threaten her with a gun reinforces

that Johnson was not a volunteer. 

[4] Second, the evidence supported a finding by the jury

that Dowd caused Johnson to cross state lines by coercion or

duress. As to this element of the offense, the district court

(without objection) instructed the jury as follows:

The terms coercion and duress are interchangeable.

Coercion or duress exists when an individual is subject to actual or threatened force of such a nature as

to induce a well-founded fear of impending death or

serious bodily harm from which there is no reasonable opportunity to escape. 

Dowd contends that because Johnson was sometimes free

from his supervision during their interstate trips and able to

talk with others who could have provided help, she had a reasonable opportunity to escape, thus precluding any claim that

he coerced her to cross state lines. 

[5] The district court’s jury instruction, modeled after the

interpretation of § 2261(a)(2) by the Fourth and Sixth Circuits, properly defined the elements of coercion or duress,

which we shall refer to simply as “coercion.” See Helem, 186

F.3d at 456-57; Baggett, 251 F.3d at 1096. Applying that definition here, we hold that the jury had overwhelming evidence

from which to find that Dowd coerced Johnson to travel

between the three states. The jury also could have concluded

that Dowd’s systematic physical and psychological coercion

prevented Johnson from escaping earlier than she did. For

example, Johnson testified that she dared not leave Dowd

10176 UNITED STATES v. DOWD
because she was “too afraid for my daughter and my grandchildren and my sister’s life.” She said that Dowd was always

telling her exactly what to do, and she knew “if I didn’t do it,

exactly what was going to happen.” Dowd closely scripted her

phone conversations with her sister, so that Johnson could do

little more than ask her sister for money. Johnson added that

she was concerned that she would be charged with harboring

a fugitive, a fear Dowd deliberately planted in her mind. She

further said that at times during their journey, she was weak

from not eating and being beaten, and she did not think she

could outrun Dowd even if she tried. Dowd also carried his

gun on their trips to Utah, using it to threaten Johnson.

Finally, Johnson discovered that neither Dowd’s mother nor

his brother would help her escape. 

Dowd argues that Johnson had reasonable opportunities to

escape when she was outside his supervision, such as when

she went to retrieve their belongings from the apartment and

Dowd was miles away at the apartment manager’s house; during their drive from Colorado to Montana when Dowd

stopped to make phone calls, when Johnson was alone in

Dowd’s mother’s home or when she went to a pawn shop by

herself in Utah. 

[6] But coercion does not mean the defendant has to maintain constant physical control or oversight of his victim.

Indeed, the statute is written in the disjunctive — “force, coercion, duress, or fraud” — denoting that coercion is different

from the actual use of force, and indicating that a victim’s will

to escape can be undermined by a variety of means not

involving immediate physical force, including threats of reprisal or psychological conditioning. As the Sixth Circuit has

observed, “a person who has just been beaten in the manner

[the victim] had been is far less capable physically and emotionally of attempting an escape, formulating a method of

escape, or eliciting aid from others.” United States v. Page,

167 F.3d 325, 328 (6th Cir. 1999)(en banc)(per curium)

(Moore, J., concurring)(holding that defendant forcibly

UNITED STATES v. DOWD 10177
caused his victim to cross state lines by beating her so as to

subdue her before the journey); see also Baggett, 251 F.3d at

1096-97 (holding that the victim did not have a reasonable

opportunity to escape simply because she begged to stay with

defendant rather than be thrown out of his moving truck); cf.

United States v. Sickinger, 179 F.3d 1091, 1093 (8th Cir.

1999) (concluding that even though defendant’s control over

his victim had “slackened,” his victim had not been “released,” because she had been beaten severely, lost blood and

been warned not to flee); see also Mary Ann Dutton, Understanding Women’s Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome, 21 Hofstra L. Rev.

1191, 1208 (1993) (“To negate the impact of the time period

between discrete episodes of serious violence — a time period

during which the woman may never know when the next incident will occur, and may continue to live with ongoing psychological abuse — is to fail to recognize what some battered

women experience as a continuing ‘state of siege.’ ”). 

[7] We also draw support for our interpretation from the

legislative history of the Violence Against Women Act, which

contains the interstate domestic violence statute. Congress

addressed the importance of recognizing the particular circumstances faced by victims of domestic violence. In enacting one measure that provided for training judges on dealing

with issues of rape and domestic violence, Congress emphasized that “[t]oo often, the focus is on the woman’s behavior

— ‘Why does she stay?’ — instead of an examination of why

men batter and why our culture and the justice system often

allow men to continue this illegal behavior.” S. Rep. No. 103-

138, at 46 (1993). Congress warned that such presumptions

may result from a “lack [of] information about the psychological, economic, and social realities of domestic violence victims.” Id. In light of Congress’ stated concerns, we believe a

defendant should not avoid liability based on speculative conclusions that the victim could have escaped a violent defendant simply because he was not close at hand. 

10178 UNITED STATES v. DOWD
Instead, when a jury is assessing a victim’s opportunity to

escape, it is the victim’s perspective that counts. The jury

must take into account whether a reasonable person in the victim’s position would believe she (or he) could effectively

escape. Although we have not found cases specifically

addressing the concept of escape in the context of the interstate domestic violence statute, the government analogizes to

the duress defense in criminal cases. Whether an individual

charged with a crime acted under duress and therefore has a

valid defense depends on whether, under all of the circumstances, the defendant had a reasonable opportunity to escape

rather than commit the crime. See United States v. Verduzco,

373 F.3d 1022, 1030-31 (9th Cir.) (upholding jury instruction

that duress defense requires considering “whether one in the

defendant’s position might believe that reporting the matter to

the police did not represent a reasonable opportunity of

escape”), cert. denied, 125 S. Ct. 508 (2004); United States v.

Contento-Pachon, 723 F.2d 691, 694 (9th Cir. 1984)(noting

that the trier of fact must decide whether one in defendant’s

position would believe reporting to the police, whom the

defendant thought to be corrupt, or fleeing with his family

represented reasonable opportunities for escape). 

We also consider instructive our Title VII case law, holding

that the “ ‘objective severity of harassment should be judged

from the perspective of a reasonable person in the plaintiff’s

position, considering all the circumstances.’ ” Nichols v.

Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir. 2001)

(quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.

75, 81 (1998) (other internal quotation marks omitted)). In

Ellison v. Brady, we endorsed the view that harassment

should be analyzed from the perspective of the victim, taking

into account the gender of the plaintiff alleging a hostile work

environment. 924 F.2d 872, 879 (9th Cir. 1991) (adopting a

“reasonable woman” standard for cases brought by female

plaintiffs). 

[8] We hold that for purposes of § 2261(a)(2), whether the

victim was subject to coercion or duress or had a reasonable

UNITED STATES v. DOWD 10179
opportunity to escape must be evaluated from the perspective

of a reasonable person in the victim’s position, considering all

of the circumstances, including the victim’s gender. Applying

this standard, we conclude that the jury could have found

Johnson to have been completely intimidated by Dowd’s sustained actual and threatened physical, sexual and psychological abuse; his unremitting subjugation of her; his threats of

retribution against her family; and her fear of being implicated in harboring a fugitive. Johnson was repeatedly beaten,

raped and humiliated; she was at times weak from hunger and

her injuries; she did not think she could outrun Dowd in her

condition. In short, the jury easily could have determined that

a woman in Johnson’s position, subject to months of physical

and psychological abuse at Dowd’s hands, had no reasonable

opportunity to escape her oppressor.

IV.

[9] Dowd raises two issues with regard to his sentencing.

First, he challenges the district court’s decision to impose a

consecutive sentence for the domestic violence conviction to

run after the completion of Dowd’s undischarged sentence for

his drug-related guilty plea. The U.S. Sentencing Guidelines

govern the determination of whether to apply a concurrent or

consecutive sentence. The relevant provision in this case

allowed the district court to impose a concurrent, partially

concurrent or consecutive sentence “to achieve a reasonable

punishment for the instant offense.” U.S.S.G. § 5G1.3(c). The

guidelines direct the court to evaluate a number of factors in

making its determination, including factors that are generally

considered in imposing a sentence, see 18 U.S.C. § 3553(a),

as well as factors more specific to the choice between concurrent and consecutive sentences, see U.S.S.G. § 5G1.3(c), cmt

n.3. 

The district court imposed a 127-month sentence to run

after the 12 years Dowd had yet to serve for his prior drugcrime conviction. The court noted that “[i]n considering a rea10180 UNITED STATES v. DOWD
sonable incremental punishment for the instant offense and to

avoid unwarranted disparity,” it was required to consider the

factors outlined in the sentencing guidelines. Evaluating the

factors, the court concluded that Dowd was not a “person

that’s capable of being rehabilitated.” The court further stated

that to impose a concurrent sentence “would not accomplish

the goals of sentencing, which would primarily be punishment, the protection of the public and to prevent recidivism.”

The district court rejected any mitigating factors that weighed

in favor of a concurrent sentence. 

[10] We conclude that the district court properly considered

and evaluated the factors in the sentencing guidelines in

deciding to impose a consecutive rather than a concurrent sentence. Had the district court imposed a consecutive sentence

under one of the guideline provisions mandating that it do so,

we would face the question whether to remand for resentencing in light of the Supreme Court’s decision in United States

v. Booker, 125 S. Ct. 738 (2005), which rendered the sentencing guidelines discretionary, and this court’s decision in

United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en

banc). Because the provision applied by the district court

already gave it full discretion to impose a concurrent, partially

concurrent or consecutive sentence, however, a remand is not

warranted here. Booker did not change the application of this

provision of the guidelines. 

We note further that any Booker error in the district court’s

consecutive sentencing would be harmless. The district court

made clear that a consecutive sentence was appropriate in this

case, notwithstanding the court’s own concerns generally

about the harshness of punishment under the guidelines. “I am

convinced that the guidelines and a consecutive sentence are,

indeed, warranted by the facts and by Mr. Dowd’s past behavior and his involvement in the criminal culture. I don’t think

that the sentence run consecutive here is too harsh. If anything, it may be too short.” We therefore affirm the court’s

decision to impose a consecutive sentence. 

UNITED STATES v. DOWD 10181
Second, Dowd contends that the district court erred in

enhancing his sentence for committing sexual assault because

the jury did not find beyond a reasonable doubt that he sexually assaulted Johnson. See Apprendi, 530 U.S. at 476-77.

Thus, Dowd argues, his Sixth Amendment right to a jury trial

was violated. We reject this constitutional claim. 

[11] The sentencing guidelines relevant to the domestic

violence statute provide that if another criminal offense is

committed in the course of violating the statute — such as

sexual assault — the sentence level from that other offense

may be applied if it is greater than the sentence level for the

domestic violence charge. U.S.S.G. § 2A6.2. In this case, the

other offense was sexual abuse, which carries a sentence that

is 9 levels higher than the base penalty for the domestic violence statute. The court applied the offense level associated

with sexual abuse rather than the offense level for domestic

violence, thereby increasing his sentencing range from 41 to

51 months to 100 to 125 months. The court further enhanced

Dowd’s sentence by 4 levels for committing the offense by

force or threat and by 2 levels because the victim sustained

injury.2

[12] The interstate domestic violence statute does not list as

an element of the offense the commission of a sexual assault,

but requires only that the defendant commit a “crime of violence.” Dowd was not charged separately with the crime of

sexual abuse. However, the indictment against Dowd specified that the “crime of violence” at issue here was “assault

and sexual assault.” In Count III, the indictment charged that

Dowd “knowingly cause[d] an intimate partner, Danna Johnson, by force, coercion or duress, to travel in interstate commerce and, in the course of or as a result of such conduct,

committed and attempted to commit a crime of violence

against her, that is, assault and sexual assault, in violation of

2Dowd does not object to either of these two enhancements, conceding

that the jury found he used force and caused bodily injury. 

10182 UNITED STATES v. DOWD
Title 18 U.S.C. § 2261(a)(2).” The district court read the

indictment to the jury as part of the jury instructions. Even

though the following instruction, listing the elements of the

offense, stated simply that the jury had to find that Dowd

“committed a crime of violence upon Danna Johnson,” the

only crimes of violence charged by the grand jury, and the

only crimes of violence testified to, were “assault and sexual

assault.” The jury found Dowd not guilty of Count I, which

charged Dowd with abducting Danna Johnson “for the purpose of assaulting her”; Count I did not charge that his purpose was “sexual assault.” Similarly, the jury found Dowd not

guilty of Count V, which charged that Dowd knowingly traveled in interstate commerce with the intent to injure Danna

Johnson and that he placed her in reasonable fear of death or

serious bodily injury by threatening her with physical violence. Given these circumstances, when finding Dowd guilty

of “Count III of the indictment” the jury logically must have

found, beyond a reasonable doubt, that he had committed sexual assault. 

[13] At sentencing, Dowd’s lawyer objected to the

enhancement, arguing that “there was no proof beyond a reasonable doubt of any criminal sexual abuse.” The court disagreed (apparently with the proposition that the evidence was

insufficient, as well as with the proposition that the jury had

not found Dowd guilty) and presumed that the jury had found

Dowd guilty of the crime of sexual abuse, as charged in the

indictment. As an alternative ruling, the district court found

by a preponderance of the evidence that Dowd committed

criminal sexual abuse. The district court’s caution in making

an alternative ruling does not detract from the jury’s verdict.

We conclude that the jury itself found sexual assault beyond

a reasonable doubt because sexual assault was specifically

charged in the indictment that was read to the jury. See

Apprendi, 530 U.S. at 483 n.10 (holding that “the judge’s role

in sentencing is constrained at its outer limits by the facts

alleged in the indictment and found by the jury”). Therefore,

UNITED STATES v. DOWD 10183
we hold there was no Sixth Amendment violation in the district court’s sentencing. 

The district court, however, having found the sexual assualt

enhancement applicable, proceeded to sentence under the

mandatory sentencing regime. We have held that “where the

district court did not treat the sentencing guidelines as advisory but the defendant’s sentence was not enhanced by extraverdict findings,” a nonconstitutional sentencing error has

occurred. See Ameline, 409 F.3d at 1084 n.8. Understandably,

the defendant did not raise this statutory error before the district court, and we therefore apply plain error review. Because

the sentencing guidelines are no longer mandatory — and we

cannot ascertain whether the district court would have

imposed a different sentence under a discretionary regime —

we leave up to the parties whether we should remand to the

district court for reconsideration of Dowd’s sentence. Id. at

1084 (“When faced with an unpreserved Booker/Fanfan error,

the reviewing panel must first determine if an eligible party

wants to pursue the subject.”). 

V.

We AFFIRM Dowd’s conviction under the interstate

domestic violence statute, and the district court’s imposition

of a consecutive sentence and sexual assault enhancement.

We ORDER the parties to notify the court within 10 days of

the filing of this opinion if either wants to pursue an Ameline

remand. 

10184 UNITED STATES v. DOWD