USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1059

UNITED STATES OF AMERICA,

Appellee,

v.

HAROLD L. DOLLOPH,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________

Bownes, Senior Circuit Judge,

____________________

and Keeton,* District Judge.

______________

____________________

Thomas A. Zonay, by
_______________

Appointment of the Court, with whom

Carro
_____

George & Pratt was on briefs for appellant.

______________
Peter E. Papps,
______________
Paul M. Gagnon,
______________
States.

First Assistant United States Attorney, with w

United States Attorney, was

on brief for

the Uni

____________________

February 1, 1996
____________________

____________________

*Of the District of Massachusetts, sitting by designation.

BOUDIN, Circuit Judge.

On July 21, 1994, Harold Dolloph

_____________

pled guilty

to one

four counts of

count of

18 U.S.C.

At the sentencing

judge

departed

pornography,

transporting minors for purposes

in sexual activity, and one

firearm.

possessing child

of engaging

count of possessing a prohibited

2252(a)(4)(B), 2423; 26 U.S.C.

5861.

hearing on December 19, 1994, the district

upward

two

levels

from

the

applicable

guideline range of 168 to 210 months and sentenced Dolloph to

240

months imprisonment.

Dolloph

now

appeals

from

his

sentence, raising several different issues.

The

facts, which we

the presentence

submissions at

F.3d

briefly summarize, are

report, sentencing

sentencing.

425, 426 (1st

hearing transcript,

United States
_____________

Cir. 1995).

taken from

At various

v. Egemonye,
________

and

62

times prior to

September 1993, Dolloph's four

the same

Hampshire.

mother--stayed at

In that month,

great-nieces--all children of

Dolloph's home

in Swanzey,

their mother told

New

her children

that they would be staying with Dolloph again while she moved

their household to a new residence.

daughters,

At that point two of her

aged eight ("TL8") and eleven ("TL11"), said that

Dolloph had sexually abused them on their prior visits.

Dolloph was then indicted by

a federal grand jury.

The

two girls, TL8

and TL11, told the police

that while staying

with Dolloph in

July 1993 he had engaged

in sexual activity

with them;

the activity they

described potentially amounted

-2-2-

to

statutory rape,

commonly described as

involved a

variety

unnatural or

of other

practices

degrading, and

the taking of lascivious photographs of the girls by

as well as

girls,

some of TL11 in

handcuffs.

the conduct had occurred in

As described

included

Dolloph

by the

various forms on several

different occasions.

Based on these reports

and some corroborating evidence,

the police obtained

apartment.

a search warrant and

What

they

found

photographs of TL8 and TL11,

sexual encounter

indicating

that

with TL8,

Dolloph

Dolloph was arrested.

had sexual relations

lesser

acts

included

searched Dolloph's

sexually

explicit

video tape showing Dolloph in a

and other

had

abused

tape and

other

photographs

young

girls.

When questioned, he denied ever having

with his two nieces but

of abuse.

The

latter

he admitted to

were, in

any

event,

documented by photos and video tape.

Dolloph was then

the

indicted by a federal grand

superseding indictment

Dolloph

involving

was charged in

the children

returned

on January

jury.

20,

In

1994,

11 counts; 10

related to misconduct

and the

charged Dolloph

last

with

unlawful

had

found

possession of a

in

their

psychiatric examination

trial, he pled guilty,

sawed-off shotgun that

search

of his

found

apartment.

Dolloph

on July 21, 1994,

-3-3-

the police

competent

After

to

to the six

stand

counts

described above, five relating to the children and one to the

weapon.

At

a sentencing

government presented

testified

that TL8

severely than

most

hearing

on

December

a psychologist, Dr.

19,

that I

the

Margaret Ward, who

had suffered psychological

children

1994,

have

damage "more

seen

that

have

experienced the nature and duration of what she experienced."

Dr. Ward

said that

this might

well also

Ultimately, the court calculated the offense

departed

sentenced

upward

by two

levels

to

level

be true

of TL11.

level as 35 and

37.

The

court

Dolloph to 240 months, somewhat above the midpoint

for level 37.

1.

On this appeal, Dolloph's main attacks are upon this

upward departure.

The

presentence report

identified as

potential ground of departure U.S.S.G.

a court to

depart upward "[i]f a victim

psychological injury

resulting

5K2.3, which permits

from

much

or victims suffered

more serious

commission of

the

than that

offense.

normally

. ."

The

government did not urge any other basis for a departure prior

to the hearing, and

its expert witness--Dr.

Ward--testified

in accord with section 5K2.3.

United States
_____________

says that the

district

identified

judge

in

v. Burns,
_____

501 U.S.

129, 138-39

defendant must be given advance

proposes

the

to

depart

presentence report

-4-4-

on

or

any

by

(1991),

notice if the

ground

not

a government

submission filed

in

advance of

the

hearing.

Here,

says

Dolloph, the district court violated this precept by relying,

in addition to

psychological damage, upon other

departure not identified

in advance.

The

grounds for

argument has some

force but we think not quite enough.

That the departure

rested primarily upon the

_________

damage to

the two

girls is patent.

court's remarks

written

We construe de novo the district

________

at the sentencing

"departure

explanation."

organization and emphasis,

suffered

norm";

finding,

Both

two page

stress,

the court's finding that

in

TL8 had

"severe psychological injury of a nature beyond the

and

the written

by a

explanation,

preponderance

suffered in the same way.

sentence

hearing and his

"should reflect

of

the

contains an

evidence,

explicit

that

The district judge said that

the

nature

[Dolloph] inflicted on these girls."

of

the

injury

TL11

the

that

Section 5K2.3 was cited

in the written explanation.

But--Dolloph

points out--both at the hearing and in the

written explanation,

particularly insulting

the

district

court

referred

to

the

and degrading sexual activity and the

fact that Dolloph had abused

himself had cultivated.

a relationship of trust that he

The judge also cited

to U.S.S.G.

5K2.1; other record evidence indicates that the intent was to

refer

instead to

departure

section

5K2.0,

provision allowing

which

departures

-5-5-

is

the

catch-all

for factors

"of a

kind, or

to a degree,

guidelines.

not adequately" accounted for

Id. (quoting 18 U.S.C.

___

The unusually degrading

an

independent basis for

although

no

Dolloph's

fixing the

advance

3553(b)).

nature of the conduct

could be

departure under U.S.S.G.

5K2.8,

notice of

relationship to

the

this

ground

victims

was

offense levels, id.

___

involved in the offense."

Burns' requirement of
_____

Id.
___

considered

in

might or might not be an

independent basis, depending on whether it

substantially in excess

was provided.

2A3.1(b)(3), 2G2.1(b)(2),

so his betrayal of the relationship

degree

in the

was present "to a

of that which

5K2.0.

ordinarily is

And, in any

advance notice was apparently

event,

not met

in either case.

It is unlikely that the references to egregious behavior

and

breach of

trust were

independent
___________

grounds for

explanation,

the judge

already described, and

that

the

intended

the

departure.

spoke of

the

trial judge

In

the

continue to

the

as

by saying

younger, suffered

suffer well into

as

written

egregious conduct

he followed it immediately

victims, particularly

would likely

by the

the future.

and

In

other words, the court was focusing on the conduct to explain

the extent

States v.
______

of the

damage it inflicted.

Anderson, 5 F.3d
________

See,
___

e.g., United
____ ______

795, 805 (5th Cir.

1993), cert.
_____

denied, 114 S. Ct. 1118 (1994).

______

-6-6-

Dr. Ward also related the

damage suffered by TL8 to the

nature of Dolloph's behavior ("in the more severe part of the

continuum") and to his family relationship; as to the

relationship,

Dr. Ward said

that TL8's connection

latter

with the

defendant

"allowed

relationship."

trust

The

enhanced

written

her

to

fear

the

suggestion may be

the

damage.

discussion of

of

[their]

that the betrayal

Again,

the

the fiduciary

middle of an extensive discussion of

loss

of

district court's

breach

occurs in

the

the causes and evidence

of severe damage.

Finally, it was the prosecutor who suggested a departure

on account of

damage to the

sections (5K2.0 and

the earlier

5K2.3).

victims, citing both

Thus, the

section is easily

court's discussion of departure,

have

been

explanation

quoted,

overlapped

of why it

guideline

court's reference to

explained.

And

the district

from which isolated remarks

with

was choosing the

the

court's

broader

particular sentence

within the finally selected guideline range.

Faced with uncertainty, we have sometimes remanded or at

least

asked the

rationale.

district court

degree of

factors

clarify its

United States v. Quinones,

______________
________

(1st Cir. 1994).

the

to

In deciding whether to

uncertainty

sometimes

play a

is the

silent

sentencing

26 F.3d 213,

219-20

remand or inquire,

main element,

extent

of the

departure, objective ambiguity in the transcript, the

nature

-7-7-

role: the

but other

of the possible mistake, and a realistic appraisal of whether

a different outcome on remand is possible.

Here, there is

result on remand.

evidence, amply

alone,

and

no realistic possibility of

Dr. Ward's testimony,

supported

damage

principal theme.

was

If

the

coupled with other

departure

certainly

the disputed

the

a different

based

district

references to

conduct and betrayal were

struck, we have no doubt

that

would

the

district court

enhancement--and

occurred, and

impose the

30 additional months--as

we doubt

it did,

it was

on

damage

court's

degrading

whatever

same

two level

before.

If error

assuredly harmless.

See United States v. Ortiz, 23 F.3d 21, 28 (1994).

___ _____________
_____

There

departure.

the

is no

merit to

Dolloph's other

Dr. Ward admitted

children but had

attacks on

the

that she had

not interviewed

worked from interview

transcripts and

other records; and she did not provide a detailed description

of

what would

matters

went to

constitute only

the weight of

qualified, subjected

"normal" damage.

the evidence.

But these

Dr. Ward was

to cross-examination, and

supported in

various respects by other evidence including one of Dolloph's

own

videotapes,

the

presentence

report,

victim

impact

statements, and medical information.

Dolloph also complains that as to TL11, Dr. Ward herself

was

unable

to say,

"to

reasonable

degree

of

medical

certainty," that

the harm

was abnormally

severe; she

said

-8-8-

there was a "reasonable

. . .

indication" to that

effect.

However, the district court itself made a finding of abnormal

damage

under the preponderance standard.

available

here,

the

defendant's

conduct

Given the evidence

and

the

damage

ascribed

to

the

children were

within

layperson's ken.

Under the clear error standard, the court's finding is easily

sustained.

United States v.
_____________

Joyce, 70 F.3d 679, 681-82 (1st

_____

Cir. 1995).

2.

sentence,

We

turn now

to

the remaining

challenges to

starting with Dolloph's two main objections.

derive from the intent of

to sentence the

the offense.

the

They

the guidelines in certain respects

defendant for the "real"

conduct underlying

United States v. Dominguez, 951

_____________
_________

(1st Cir. 1991), cert. denied, 504 U.S. 917

____________

F.2d 412, 415

(1992).

This is

done partly by cross-references that--on proof of aggravating

facts--cause a defendant convicted of a crime to be sentenced

under the more severe guideline pertaining to the aggravating

conduct.

In our case, the guidelines governing both of the sexual

offenses to which Dolloph pled--possession of pornography and

transportation of a minor--have base offense levels of "only"

13 and

each

16, respectively.

contains

considerably

2G2.1, if

U.S.S.G.

cross-reference

2G2.4, 2G1.2.

that makes

Yet,

applicable

higher base offense level of 25, under U.S.S.G.

the

offense

conduct

-9-9-

included

"causing

[or]

transporting

conduct for

. .

. a minor

the purpose of

to engage in sexually

producing a visual

explicit

depiction of

such conduct. . . ."

The presentence

report found

or indicated

that as

to

three of the counts Dolloph had caused the girls to engage in

such

conduct (count 6) or

(counts

findings.

and

and

Dolloph contests

the evidence

home

9),

transported them for that purpose

the

district

court

adopted

the

this determination, arguing that

did not show that he

invited the nieces to his

for the purpose of photographing them; the photographs,

he says, showed

that "the photographs were taken

incident' of the trips."

as a `mere

This claim is not supported by

any

detailed factual argument.

Without

evidence,

it

discussion

is

by

difficult

Photographs, interview

Dolloph

to

of

consider

the

his

transcripts, and video

pertinent

contention.

tape evidence

were presented or available at the hearing, and the litigants

understood which child was involved in the various counts and

photographs

and how the

evidence related to

each count and

sub-count (count six required several different photographs).

Very little

events

can

of what

be

transcript itself.

the parties

easily

understood about

reconstructed

from

the

specific

hearing

There

is some indication

that Dolloph's argument rests

at least in part on a misconception.

Both at the hearing and

-10-10-

in his appeals brief, Dolloph's counsel relied primarily upon

language

from United States

______________

Cir.), cert. denied,

v. Ellis,
_____

502 U.S. 869 (1991).

935

F.2d 385

(1st

There, the trial

____________

court

had

instructed

transportation statute,

activity

"not a

the

jury

having the

must have been one of

that

to

violate

child

engage in

the

sexual

the purposes of the trip and

mere incident of the trip."

Id. at 389.
___

This court

upheld the charge, rejecting a claim that the illicit purpose

must be the "dominant" one.

Four

of

the

Id. at 390.
___

cross-reference findings

(pertaining

to

count 6)

involved "causing"--not transporting--so

the Ellis
_____

language

is irrelevant.

7 and

apparently

us little

The

other

two (counts

9)

did rely on transporting; but since Dolloph tells

about the

concluding that

specific events, we

the district

court erred

have no

basis for

in accepting

the

presentence report.

How much weight should be

presentence report is sometimes

this instance we

findings.

given to the

a matter of dispute; but

have been given nothing to

in

set against its

See United States v. Gonzalez-Vazquez, 34 F.3d 19,

___ _____________
________________

25 (1st Cir. 1994).

Dolloph's second objection relates to a different cross-

reference.

a minor

As to the other two counts involving transporting

(counts 8 and

report found,

and the

10), specifically TL8,

district court

the probation

adopted the

finding,

that Dolloph's conduct on those visits had involved "criminal

-11-11-

sexual

abuse."

guideline,

U.S.S.G.

case the sexual

provides a

speaking,

18 U.S.C.

The

defined

A cross-reference

2G1.2(c)(2),

in

the

transportation

provides that in

abuse guideline governs, and

base offense level of 27.

Id.
___

such a

that guideline

2A3.1.

Broadly

this latter guideline applies to conduct violating

2241-42. U.S.S.G.

cited

by 18

code

U.S.C.

2A3.1, comment.(stat. provs.).

sections govern

2245,

"sexual

which are

act[s],"

as

made unlawful

in

specified

forbids

situations, of which

sexual relations

U.S.C.

2241(c).

chapter

itself, id.
___

occurring

in

"the

jurisdiction of

E.g.,
____

18

As

the one most

with children

under

Dolloph points out, the

2241-45,

special

is

confined

maritime

the United States

U.S.C.

pertinent here

2241(a).

or in a

Because

and

twelve.

18

sexual abuse

to

conduct

territorial

Federal prison."

no

such

federal

jurisdiction is asserted in this case, Dolloph objects to the

use of the cross-referenced guideline.

The

offense

argument is interesting but hopeless.

plea,

the

defendant

is

ordinarily

Whatever the

subject

to

punishment for all "relevant conduct," including all acts and

omissions "that occurred during the commission of the offense

of conviction."

not contest

U.S.S.G.

the principle.

even assuming that

abuse

as defined

1B1.3(a)(1).

His present argument

his treatment of

by

Here, Dolloph does

the federal

is that--

TL8 amounted to

statutes--those

sexual

statutes

-12-12-

include

jurisdictional

element

not

here

satisfied.

Therefore,

he

concludes,

the

cross-reference

is

not

pertinent.

But

the

identifying

conduct,

the

abuse

guideline

proper penalty

here, the

intent of

section

sexual

for

mistreatment of

is

the underlying

TL8.

the guidelines--specifically,

that

takes

punish Dolloph for

us to

the

sexual

that conduct.

concerned

So long

It is

with

sexual

the plain

the cross-reference

abuse guideline--to

as the guidelines

so intend and the necessary proof is offered, a defendant may

ordinarily be punished

it includes

conduct for

for relevant conduct, whether

which the

jurisdiction to try the defendant.

3 F.3d 98, 102-03 (4th

court lacks

or not

independent

United States v. Carroll,

_____________
_______

Cir. 1993); United States v. Pollard,

______________
_______

986

F.2d 44,

47 (3d

Cir.), cert. denied,

____________

113 S.

Ct. 2457

(1993).

Finally,

justify

Dolloph

the district

performed against TL8.

argues

that

court finding

If

the

evidence

that

did

sexual acts

not

were

one credits the statements of the

child, as the district court evidently did, there is no doubt

that Dolloph's

conduct violated

the sexual

the jurisdictional element to one side.

comparison of

what TL8 said

abuse statutes,

Dolloph demurs but a

happened with what

forbids resolves the matter against him.

Affirmed.
________

-13-

the statute

-13-