                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

      ___________

       No. 99-3066
      ___________

United States of America,                   *
                                            *
            Plaintiff-Appellee,             *
                                            *
      v.                                    *
                                            *
Rex Ronald Webb,                            *
                                            *
            Defendant-Appellant.            *
                                                  Appeals from the United States
      __________                                  District Court for the Eastern
                                                  District of Arkansas.
       No. 99-3357
      __________
                                            *
United States of America,                   *
                                            *
            Plaintiff-Appellant,            *
                                            *
      v.                                    *
                                            *
Rex Ronald Webb,                            *
                                            *
            Defendant-Appellee.             *

                                   ___________

                             Submitted: April 11, 2000
                                 Filed: June 2, 2000
                                  ___________
Before WOLLMAN, Chief Judge, MURPHY, Circuit Judge, and GOLDBERG,
Judge.1
                           ___________

MURPHY, Circuit Judge.

        Rex Ronald Webb, the Sheriff of Independence County, Arkansas, was
convicted under 18 U.S.C. § 242 (1994) of violating the civil rights of Vickie Hawkins
by sexually assaulting her and soliciting sexual favors from her. The district court
sentenced him to ten months, split evenly between incarceration and home detention.
On appeal Webb argues that the court erred by admitting hearsay testimony during the
trial and by sentencing him incorrectly. The government argues in its cross appeal that
the court should have applied a sentencing enhancement under U.S.S.G. § 2H1.1 for
the use of force during the offense. We affirm in part and reverse in part.

       Vickie Hawkins testified at trial that she went to see Sheriff Webb because she
was concerned that her husband was violating a restraining order that had been issued
to protect her. She first went to Webb's office on or about June 18, 1997, to ask for his
help in enforcing the order, and she reported that he told her he would help if she would
do what he wanted sexually. While she was alone with the sheriff in his office, he sat
down beside her and began to stroke her leg. He then pulled back her shirt to look at
a tattoo on her upper chest and asked her if she had anything else she would like to
show him. Webb suggested they go to a motel out of town and tried to kiss her. She
reported the incident to Kay Wilkins and Debbie Shaver at the Family Violence
Prevention Shelter, and Wilkins contacted the Federal Bureau of Investigation (FBI).
The FBI interviewed Hawkins, and she agreed to return to Webb's office with a tape
recorder. She did so on July 30, 1997, when she repeated her concerns about her


      1
       The Honorable Richard W. Goldberg, Judge of the U.S. Court of International
Trade, sitting by designation.
                                           -2-
husband. While Hawkins was in his office, Webb closed the door and stepped up
behind her and massaged her shoulders, then slid his hands down her shirt and onto her
breasts, and began to kiss her neck. Hawkins complained and pushed Webb's hands
away, but he pulled her over to a small couch where he pushed her down flat and laid
his 370 pound body over her. The tape indicates that she repeated her need for help
with the restraining order, and Webb said "I'll help you" and "[y]ou're talking to the
right guy." He suggested they go to a motel room so that "they could get naked" and
stroked and fondled her body. When he got up to lock the door, Hawkins stood up.
Webb turned around with his penis exposed, grabbed Hawkins' hand, placed it on his
penis, and asked her for oral sex. She refused and pulled away. Webb allowed her to
leave.

       A federal grand jury issued an indictment charging Webb with one count of
sexual assault and solicitation of sexual favors on July 30, 1997, and the government
subsequently filed a superseding indictment that charged an additional count based on
the first incident on June 18, 1997. Up until just before the time of the superseding
indictment, the government had indicated to Webb that the first assault had taken place
on June 23, 1997. Webb had informed the government that he had been at a sheriffs’
convention in Georgia on that date.

      At trial the government introduced the tape made during Hawkins' visit to
Webb's office on July 30 and called her as a witness. It also called three FBI agents,
who testified about the circumstances surrounding the tape recording, and Wilkins and
Shaver from the women’s shelter. Webb objected to the latter testimony on hearsay
grounds. The government offered the testimony under Federal Rule of Evidence
801(d)(1)(B) as evidence of prior consistent statements by Hawkins, to counter Webb's
contention that she had fabricated her story and changed the date of her first visit to
June 18 after learning that he had been out of town on June 23. Webb argued that the
evidence was actually offered to bolster Hawkins' overall testimony since the witnesses
could not testify to the exact date of her first visit. The district court permitted the

                                          -3-
testimony, and Wilkins and Shaver testified that Hawkins had told them about her first
visit to Webb's office when he had promised to make sure that her husband complied
with the restraining order if she would have sex with him. The jury found Webb not
guilty on count one of the superseding indictment and guilty on count two, which
charged an offense on July 30. Webb moved for judgment of acquittal or a new trial,
and the district court denied the motion.

       The court sentenced Webb to ten months, with five months imprisonment and
five months home detention. The court used a base offense level of 6 under U.S.S.G.
§ 2H1.1(a)(4) and applied a six level specific offense characteristic enhancement under
U.S.S.G. § 2H1.1(b)(1), which provides an enhancement for an offense committed by
a public official or someone acting under the color of law. Webb’s adjusted offense
level combined with his criminal history category of Éresulted in a guidelines range of
10-16 months, and the court sentenced him within that range. Webb claimed that the
Sentencing Commission should not have precluded straight probation for the offense
of which he was convicted and that the specific offense characteristic enhancement
constituted double counting because the "acting under color of law" factor had already
been built into the base offense level. The government argued on the other hand that
Webb's base offense level should be 10 under U.S.S.G. § 2H1.1(a)(3)(A), because he
had used force during the assault. Webb's motion for reconsideration of sentence was
denied.

       On appeal Webb repeats his arguments about hearsay evidence and sentencing
errors. The government filed a cross appeal, contending that the district court
incorrectly assumed that "use or threat of force" under U.S.S.G. § 2H1.1(a)(3)(A)
requires violence and that it consequently erred by assessing a base offense level of 6
instead of 10. We review admission of challenged testimony for abuse of discretion.
See United States v. Bad Wound, 203 F.3d 1072, 1075 (8th Cir. 2000). We review the
district court's factual findings in sentencing for clear error and its application of the
guidelines de novo. See United States v. Hunt, 171 F.3d 1192, 1195-96 (8th Cir.

                                           -4-
1999).

        Webb contends that the district court abused its discretion in admitting the
testimony of Wilkins and Shaver and that admission of the evidence was not harmless
error. At trial the defense attacked Hawkins about her recollection of the date of her
first visit to Webb's office, questioning whether the visit had taken place at all and
suggesting that she had changed her mind about the date once she learned that Webb
had an alibi for June 23. To rebut the implication that she had fabricated the first visit,
Hawkins called Wilkins and Shaver to testify that she had told them on June 25 that
Webb had sexually assaulted her and that he had told her that he would help enforce
the restraining order against her husband if she would give him sexual favors. The
district court overruled Webb's hearsay objection and admitted the evidence under Rule
801(d)(1)(B).2 We find no abuse of discretion. The evidence was admissible under the
rule even if the witnesses could not testify to the exact date of the sexual assault
Hawkins had described. Moreover, any error would have been harmless because
Webb was acquitted on the count about which they testified.

         Both sides contest the district court's application of U.S.S.G. § 2H1.1,3 the

         2
        Rule 801(d)(1)(B) provides that a prior statement by a witness is not hearsay
if "[t]he declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is . . . (B) consistent with the declarant's
testimony and is offered to rebut an express or implied charge against the declarant of
recent fabrication or improper influence or motive . . . ."
         3
          Offenses Involving Individual Rights
         (a) Base Offense Level (Apply the Greatest):
               (1) the offense level from the offense guideline applicable to any
                     underlying offense;
               (2) 12, if the offense level involved two or more participants;
               (3) 10, if the offense involved (A) the use or threat of force against a
                     person; or (b) property damage or the threat of property damage;
                     or
                                            -5-
guidelines section for offenses involving individual rights. Webb argues that the six
level enhancement under U.S.S.G. § 2H1.1(b) amounted to improper double counting
because the statute under which he was convicted, 18 U.S.C. § 242, already required
conduct under color of law.4 The § 2H1.1(b) enhancement has two parts, however, one
of which applies if the defendant was a public official at the time of the offense. Webb
stipulated that he was a public official at the relevant time, and his sentence was
properly enhanced six levels under U.S.S.G. § 2H1.1(b)(1)(A). We agree with the
Second Circuit that in such circumstances the enhancement is "justified on the wholly
independent ground that [the defendant] was a 'public official' at the time of the offense
[under U.S.S.G. § 2H1.1(b)(1)(A)]." United States v. Livoti, 196 F.3d 322, 327 (2d
Cir. 1999), petition for cert. filed, 68 U.S.L.W. 3535 (U.S. Feb. 3, 2000) (No. 99-
1344).

      Webb also argues that because his offense is a misdemeanor, he should have
been eligible for straight probation and the Sentencing Commission should not have
precluded that option for misdemeanors within Zone C of the Sentencing Table. See
U.S.S.G. § 5C1.1(d) (Zone C sentences must include a term of imprisonment). This
argument is without merit, and Webb cites no authority for it. Congress gave the
Commission broad authority to promulgate the Sentencing Guidelines. See 28 U.S.C.


             (4) 6, otherwise.
      (b)    Specific Offense Characteristics
             (1) If (A) the defendant was a public official at the time of the offense;
                   or (B) the offense was committed under color of law, increase by
                   6 levels.

U.S.S.G. § 2H1.1.
      4
        18 U.S.C. § 242 provides: "Whoever, under color of any law . . . willfully
subjects any person in any State . . . to the deprivation of any rights, privileges, or
immunities secured or protected by the Constitution or laws of the United States . . .
shall be fined under this title or imprisoned not more than one year, or both . . . ."
                                           -6-
§ 994(a) (1994); Mistretta v. United States, 488 U.S. 361, 377 (1989). In United
States v. Barrett, 937 F.2d 1346, 1350 (8th Cir.), cert. denied, 502 U.S. 916 (1991),
we concluded that while Congress authorized the Commission to make probation
available for some crimes, “it did not require probation to be made available.” Other
courts have reached the same conclusion. See United States v. Lueddeke, 908 F.2d
230, 232-33 (7th Cir. 1990); United States v. Ortez, 902 F.2d 61, 65-66 (D.C. Cir.
1990), overruled on other grounds by In re Sealed Case (Sentencing Guidelines'
"Substantial Assistance"), 149 F.3d 1198 (D.C. Cir. 1998); United States v. Belgard,
894 F.2d 1092, 1099-1101 (9th Cir.), cert. denied, 498 U.S. 860 (1990); United States
v. Erves, 880 F.2d 376, 380 (11th Cir.), cert. denied, 493 U.S. 968 (1989); United
States v. White, 869 F.2d 822, 827 (5th Cir.), cert. denied, 490 U.S. 1112 and 493 U.S.
1001 (1989).

        The government appeals the sentence imposed by the district court, arguing that
the wrong standard was applied in judging whether force had been used or threatened.
Section 2H1.1(a)(3)(A) provides in part that the base offense level should be 10 if the
offense involved "the use or threat of force against a person." The presentence report
had recommended using a base offense level of 10 in calculating the sentence, but
Webb objected that he had not used force. In considering the question, the district
court interpreted the guideline term “use or threat of force” to require the use of
violence and found that Webb had not used violence. The court therefore used a base
offense level of 6. It equated the use or threat of force with violence several times
during the sentencing proceeding, see Sentencing Tr. at 5, 8-9, 14-15, and stated that
"I just don't think that there was that type of force which, to me, would be something
that almost equated with rape, and I just don't think you had that in this case," id. at 15.

      No published case has construed the term "use or threat of force" in the specific
context of § 2H1.1(a)(3)(A), but we have considered similar language in other contexts.
For example, 18 U.S.C. § 2244(a)(1) prohibits sexual contacts made "by using force"
against another person. See 18 U.S.C. § 2241(a)(1) (1994). That statute does not

                                            -7-
define the term "force," but courts have concluded that the force requirement is satisfied
by "the use of such physical force as is sufficient to . . . restrain . . . a person." United
States v. Fire Thunder, 908 F.2d 272, 274 (8th Cir. 1990) (internal quotations and
citation omitted). We have "repeatedly held that force sufficient to prevent the victim
from escaping the sexual contact satisfies the force element." United States v. Allery,
139 F.3d 609, 611 (8th Cir.), cert. denied, 524 U.S. 962 (1998) (construing 18 U.S.C.
§§ 2241(a)(1), 2244(a)(1)). In Allery, force was found where the defendant "l[aid] on
top of [the victim] and resist[ed] her attempts to push him away . . . ." Id. at 612. A
disparity in size between the defendant and the victim "might be enough, in itself, to
establish 'a restraint . . . that was sufficient that the [victim] could not escape the sexual
contact.'" United States v. Bordeaux, 997 F.2d 419, 421 (8th Cir. 1993) (internal
quotations omitted). Other circuits have interpreted force in the same way as Allery
and Bordeaux. The Fifth Circuit has said that a defendant uses force "when he employs
restraint sufficient to prevent the victim from escaping the sexual conduct.
Furthermore, force can be implied from a disparity in size and coercive power between
the defendant and his victim, as for example when the defendant is an adult male and
the victim is a child." United States v. Lucas, 157 F.3d 998, 1002 (5th Cir. 1998)
(citations omitted) (construing 18 U.S.C. § 2241(a)(1)). The Second Circuit also has
explicitly rejected a violence requirement, holding that "[18 U.S.C. § 2244(a)(1)]
requires only the use of 'force,' not of 'significantly violent action or threats.'" United
States v. Lauck, 905 F.2d 15, 18 (2d Cir. 1990). These precedents are helpful in
considering the meaning of "force" in the guidelines section which also does not define
the term.

         We conclude that the proper standard under § 2H1.1(a)(3)(A) for judging
whether the defendant used or threatened force during a sexual assault is whether any
force involved was "sufficient to prevent the victim from escaping the sexual contact
. . . ." Allery, 139 F.3d at 611. Since the district court applied a different standard, we
remand the case with directions that the district court reconsider Webb's base offense
level in light of the definition of force discussed above. In so remanding, we recognize

                                             -8-
the district court's vantage point in judging the credibility and demeanor of the
witnesses, in observing the disparity in size between Webb and Hawkins, and in
assessing the coercive power, physical and psychological, that Webb may have
possessed by virtue of that disparity in size and by virtue of the office he held.

      For these reasons, we affirm Webb's conviction but remand for resentencing.



      A true copy.

            Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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