United States v. Joseph Birdtail

MEMORANDUM

Defendant-Appellant Joseph Christopher Birdtail pled guilty to abusive sexual contact, 18 U.S.C. § 2244 (a)(5). He appeals his mid-Guidelines range sentence of 264 months of incarceration followed by supervised release for life. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

1. The district court used the guideline for the crime of conviction, U.S.S.G. § 2A3.4, which contains a cross-reference to § 2A3.1. Application of the cross-reference did not increase the penalty beyond the prescribed statutory maximum for the crime of conviction, which is life imprisonment. Thus, the principles of Apprendi v. New Jersey, 530 U.S. 466, 490 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) are inapplicable. Any error in applying the cross-reference based on a fact not admitted to by Birdtail, but supported by evidence at the sentencing hearing, is harmless because the district court applied a repeat sexual offender enhancement which carried a higher Guidelines sentencing range — 235 to 293 months — than that under the cross-reference — 168 to 210 months. See Williams v. United States, 503 U.S. 193, 203 , 112 S.Ct. 1112 , 117 L.Ed.2d 341 (1992).

2. The district court did not err…