United States v. Ronald Stephen Sneezer

983 F.2d 920 37 Fed. R. Evid. Serv. 383 UNITED STATES of America, Plaintiff-Appellee, v. Ronald Stephen SNEEZER, Defendant-Appellant. No. 91-10457. United States Court of Appeals, Ninth Circuit. Argued and Submitted Aug. 17, 1992. Decided Dec. 30, 1992. Eugene A. Burdick, Mesa, AZ, for defendant-appellant. Mary H. Murguia, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before: WIGGINS, O'SCANNLAIN, FERNANDEZ, Circuit Judges. PER CURIAM: OVERVIEW 1 Ronald Sneezer appeals his conviction and sentence for two counts of aggravated sexual abuse and one count of kidnapping. Sneezer claims that the district court erred in refusing proposed jury instructions on voluntary intoxication and sexual abuse as a lesser included offense of aggravated sexual abuse. He also claims that the district court improperly admitted evidence of a prior offense. Finally, he claims that the district court incorrectly found each of the two counts of aggravated sexual abuse to be a separate unit for sentencing purposes. This court has jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm the conviction but vacate the sentence.…

OVERVIEW

Ronald Sneezer appeals his conviction and sentence for two counts of aggravated sexual abuse and one count of kidnapping. Sneezer claims that the district court erred in refusing proposed jury instructions on voluntary intoxication and sexual abuse as a lesser included offense of aggravated sexual abuse. He also claims that the district court improperly admitted evidence of a prior offense. Finally, he claims that the district court incorrectly found each of the two counts of aggravated sexual abuse to be a separate unit for sentencing purposes. This court has jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm the conviction but vacate the sentence.

STATEMENT OF FACTS

Ronald Sneezer picked up two hitchhikers, Jane Doe and her boyfriend, Dennis Johns, who were travelling from Tuba City, Arizona, to Gap, Arizona. After picking up a friend at a gas station, Sneezer drove *922 westbound on Highway 160 from Tuba City. He stopped at the junction of Highways 89 and 160 and drank several beers. All the men got out of the car to go to the bathroom, and Sneezer jumped back into the car and drove off with Jane Doe in the backseat. After driving west on Highway 160 for a little…

concurring in part and dissenting in part:

I concur in the remand for resentencing, but dissent from the affirmance of admissibility of the prior attempted rape incident.

I

While I agree we must remand for resen-tencing because the district court erroneously concluded that the two counts of aggravated sexual abuse should not be grouped together, I write separately because I cannot subscribe to my colleagues’ reasoning.

Whether the two counts of aggravated sexual abuse should be grouped together under section 3D1.2(b) of the Sentencing Guidelines is a difficult question to resolve. The Guidelines recognize that “even if counts involve a single victim, the decision as to whether to group them together may not always be clear cut.” U.S.S.G. § 3D1.2 at commentary (background). We are advised that “[i]n interpreting this Part and resolving ambiguities, the court should look to the underlying policy of this Part.” Id. That policy is that “[a]ll counts involving substantially the same harm shall be grouped together into a single Group.” U.S.S.G. § 3D1.2.

I recognize that there is a certain artificiality inherent in a judicial inquiry into whether two counts of aggravated sexual…