     Case: 17-30043      Document: 00514343463         Page: 1    Date Filed: 02/09/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                      No. 17-30043
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 9, 2018

UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

MAURICE ANTUAN SPEIGHTS,

              Defendant - Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                              USDC No. 2:15-CR-46


Before HIGGINBOTHAM, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
       A jury found Maurice Speights guilty of committing sexual abuse under
18 U.S.C. § 2242(2). The district court sentenced Speights to 121 months’
imprisonment, followed by five years’ supervised release, and ordered him to
pay $3,570 in restitution. On appeal, Speights challenges the sufficiency of the
evidence supporting his conviction, the legal and evidentiary bases for the




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 17-30043
restitution order, and the substantive reasonableness of his sentence. We
affirm.
                             I. BACKGROUND
      On the evening of October 19, 2013, Tiffany Scott, then a first lieutenant
in the army, attended a gathering of friends near Fort Polk military base in
western Louisiana. Speights, who was on close terms with Scott, was also
present. Scott had one or two shots of liquor over the course of as many hours.
She and Speights then traveled to the home of Scott’s friend, Kiasha Hamilton,
who lived on-base at Fort Polk. There, Scott had at least two more shots of
liquor—one with Speights’ encouragement—and began to show signs of
intoxication. Later that night, Scott, Speights, and Hamilton went to a bar. By
the time the three left at around 2:00 a.m., Scott was noticeably drunk and had
to be helped into Hamilton’s truck. On the drive back, Scott was slumped over
in the backseat and, according to Hamilton, “had basically passed out.” When
they arrived at Hamilton’s house, Speights and Hamilton carried Scott, who
was largely unresponsive, to an upstairs bedroom. They put Scott into the bed
fully-clothed, and she went directly to sleep. Hamilton initially told Speights
to spend the night in another room, but when he complained that the room was
too hot, Hamilton told him he could sleep on the floor in Scott’s room, which
had the only fan in the house. Hamilton then went to her own room to sleep.
      Scott testified that she was unconscious throughout the night, except for
one point when she briefly awoke to find Speights on top of her. Speights said
something like “I got this,” and Scott passed out again. The next morning, Scott
found Speights lying next to her in the twin-sized bed. Scott’s pants were
unbuttoned and unzipped. She immediately felt that something was wrong but
could not recall what had happened. Hamilton entered the room, told Scott how
drunk she (Scott) had been the previous night, and asked whether Scott
remembered various events that had happened. Scott said she did not. Scott
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                                 No. 17-30043
then went to the bathroom and noticed blood on a tissue when she wiped
herself. Scott, who is openly lesbian, had never had sex with a man. Feeling
embarrassed, Scott told Hamilton that she and Speights were leaving. Scott
and Speights got into Scott’s car, where Scott repeatedly asked Speights what
he had done to her. Speights said he did not remember. Scott asked whether
he used protection; Speights again said he did not remember. Speights asked
Scott whether she would forgive him and whether she would tell anyone. Scott
told Speights to get out of the car and called him a coward. When she arrived
home, she took a shower.
        Scott contacted a sexual harassment representative and went to the
hospital for an examination. There, Scott reported that she was sure there had
been penetration. A physical examination did not reveal any visible injuries.
Initially, Scott made her report restricted out of embarrassment that her chain
of command could find out about the incident. But on December 10, 2013, after
several sessions of counseling, she granted access to the Army’s Criminal
Investigation Command (known as “CID”). CID interviewed various witnesses
and examined the scene at Hamilton’s residence. CID also requested the
assistance of the FBI, which located Speights in Florida. In an interview with
the FBI, Speights stated that he encountered Scott at the bar and did not know
she had been drinking. He and Scott then went to the apartment of one of
Scott’s friends, where, according to Speights, the two briefly had consensual
sex.
        On March 12, 2015, Speights was indicted on one count of sexual abuse
under 18 U.S.C. § 2242(2). A two-day trial was held. After the Government
presented its case, Speights moved for a judgment of acquittal, which the
district court denied. Speights did not take the stand, but the FBI agent who
interviewed him testified about the account Speights had given. The jury
unanimously found Speights guilty.
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      The presentence report (PSR) calculated Speights’ offense level to be 30,
which corresponded to a range of 97–121 months in prison under the
Sentencing Guidelines. The PSR included a “Victim Impact” section stating, in
pertinent part:
      A Declaration of Victim Losses was received from the victim,
      Tiffany Scott. The Declaration of Victim Losses states the
      following:

      I, Captain Tiffany Scott, am a victim in the above referenced case.
      I believe that I am entitled to restitution in the total amount of
      $3,570.00.

      My specific losses, harms, or costs as a result of this offense are
      summarized as follows:

      – From November 2013 to April 2015 I drove to Behavioral
        Health appointments twice a week. Gas - $1500
      – Clothing taken for evidence - $70

                                 *     *      *
      – After the incident I isolated myself from the world and felt lost.
        I went into deep depression. I was not eating and had no energy
        to do anything. That was not like me because I am a very social
        being. I had to fly my grandmother out for a few months, to help
        me get back to myself.
      – Flight/cost of living for 3 months - $2,000

                                 *     *      *
      At the sentencing hearing, Speights, citing his limited criminal history
and other mitigating factors, argued for a sentence at the low end of the
Guidelines range. The district court, stating that it had “not heard one word of
sympathy for the victim,” adopted the PSR’s findings and sentenced Speights
to 121 months in prison, followed by five years of supervised release. The court
also ordered Speights to pay the full $3,570 in restitution requested by Scott.
Speights objected, arguing that Scott did not qualify for restitution under 18

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U.S.C. § 3663A and that there had been “no proof of any expenses incurred.”
The district court overruled the objection.
       This appeal followed.
                                   II. DISCUSSION
A. Sufficiency of the Evidence
       To obtain a conviction for sexual abuse under § 2242(2), the Government
must prove beyond a reasonable doubt that: (1) the defendant knowingly
engaged in a “sexual act” with the victim; (2) the act took place within the
special maritime or territorial jurisdiction of the United States, or certain other
locations specified in the statute; and (3) the defendant knew the victim was
either (a) “incapable of appraising the nature of the conduct” or (b) “physically
incapable of declining participation in, or communicating unwillingness to
engage in, that sexual act.” 18 U.S.C. § 2242(2); see United States v. Bruguier,
735 F.3d 754, 757–63 (8th Cir. 2013) (en banc) (holding that § 2242(2) requires
the defendant to have knowledge of the victim’s incapacity or inability to
consent). 1 Speights disputes only the third element, asserting there is
insufficient evidence that he knew Scott was physically incapable of declining
participation in the sexual act.
       In reviewing a challenge to the sufficiency of the evidence supporting a
conviction, we ask “whether, after viewing the evidence and all reasonable
inferences in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
Applying that standard to the case at hand, we conclude that a rational jury


       1  This circuit has not previously confronted the question decided by the Eighth Circuit
in Bruguier. Since the parties do not dispute that a mens rea of knowledge is required under
the third element, we will assume as much for purposes of this case only. We express no
opinion on whether § 2242(2) actually requires that a defendant have knowledge of the
victim’s incapacity or inability to consent.
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                                  No. 17-30043
could have found that Speights knew Scott was physically incapable of
declining participation in the sexual act Speights committed. Ample testimony
indicated that Speights knew that Scott was intoxicated to the point of
unconsciousness. In addition, Scott testified that she had passed out, briefly
awoke to find Speights on top of her, and then passed out again. See United
States v. Fasthorse, 639 F.3d 1182, 1184 (9th Cir. 2011) (“‘[A] reasonable jury
may conclude that a person who is asleep when a sexual act begins is physically
unable to decline participation in that act.’” (quoting United States v.
Wilcox, 487 F.3d 1163, 1169 (8th Cir. 2007))). Speights gave a conflicting
account to the FBI, but the jury was not required to credit his version of events,
and when viewing the evidence in the light most favorable to the verdict, we
must assume that it did not. See United States v. Winkler, 639 F.3d 692, 700
(5th Cir. 2011).
B. The Restitution Order
      Speights challenges the district court’s restitution order on two grounds.
We review “the legality of a restitution order de novo and the amount of the
restitution order for an abuse of discretion.” United States v. Adams, 363 F.3d
363, 365 (5th Cir. 2004).
      First, Speights asserts that the restitution order is not supported by
adequate evidence because it is based entirely on Scott’s “unaudited victim
impact statement,” as incorporated into the PSR. Generally speaking, “a PSR
bears sufficient indicia of reliability” for a court to rely on its contents for
sentencing purposes. United States v. Huerta, 182 F.3d 361, 364 (5th Cir.
1999); accord United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012). It is
true that “mere inclusion in the PSR does not convert facts lacking an adequate
evidentiary basis with sufficient indicia of reliability into facts a district court
may rely upon.” Harris, 702 F.3d at 230 n.2. We do not view Scott’s declaration
as falling into this latter category, however. Scott’s statement provides
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                                       No. 17-30043
sufficient factual details to support each portion of the total amount of
restitution she sought and is thus unlike the sort of “[b]ald, conclusionary
statements [that] do not acquire the patina of reliability by mere inclusion in
the PSR.” United States v. Elwood, 999 F.2d 814, 817–18 (5th Cir. 1993); see
also United States v. Sharma, 703 F.3d 318, 323–24 (5th Cir. 2012) (district
court abused its discretion by awarding restitution based on PSR that
contained “obvious mistakes” suggesting that the Probation Office failed to
give “any meaningful scrutiny to the actual losses” suffered).
       Second, Speights argues that 18 U.S.C. § 3663A does not authorize
restitution for the $2,000 in costs Scott incurred when she arranged for her
grandmother to travel and live with her for several months as social support
following the incident, or for the $1,500 Scott spent on gas while travelling to
mental health appointments for a year and a half. 2 We need not decide whether
these losses fit into the categories delineated in 18 U.S.C. § 3663A(b) because
they are plainly compensable under 18 U.S.C. § 2248. 3 Section 2248 requires a
court to order restitution in “the full amount of the victim’s losses,” which it
defines to include: “medical service relating to physical, psychiatric, or
psychological care”; “necessary transportation [and] temporary housing . . .
expenses”; and “any other losses suffered by the victim as a proximate result
of the offense.” 18 U.S.C. § 2248(b)(1), (3). The factual information in the PSR



       2Speights concedes that the $70 in restitution for clothing seized as evidence is
authorized by statute.

       3  Speights asserts that the Government waived its argument that § 2248 authorized
the restitution order by failing to raise that argument before the district court. Speights has
not adequately briefed this argument; in particular, his conclusory assertion fails to grapple
with the mandatory nature of restitution under § 2248. See 18 U.S.C. § 2248(a), (b)(4).
Although neither the district court nor the PSR cited § 2248, this court may affirm a
restitution order “in the absence of express findings if the record provides an adequate basis
to support the restitution.” Sharma, 703 F.3d at 322 (internal quotation marks and citation
omitted).
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reasonably suggests that Speights’ offense proximately caused Scott to incur
these losses and belies any suggestion that the causal link here is so attenuated
that Scott’s losses were a “mere fortuity.” Paroline v. United States, 134 S. Ct.
1710, 1719 (2014).
      We perceive no basis for overturning the district court’s restitution order.
C. Substantive Reasonableness of the Sentence
      Speights   challenges    his   121-month     sentence   as   substantively
unreasonable. Since it falls within the properly calculated range set forth by
the Guidelines, the sentence is entitled to a rebuttable presumption of
reasonableness. United States v. Rodriguez, 660 F.3d 231, 233 (5th Cir. 2011).
Speights briefly argues that the district court did not adequately consider a
variety of mitigating factors, including his lack of criminal history and the
requirement that he register as a sex offender upon release. However, he raised
these same arguments during his sentencing hearing, and the district court
considered them before it handed down the sentence. A defendant’s mere
disagreement with his sentence, standing alone, is insufficient to rebut the
presumption of reasonableness. United States v. Ruiz, 621 F.3d 390, 398 (5th
Cir. 2010).
                              III. CONCLUSION
      For the foregoing reasons, the district court’s judgment is AFFIRMED.




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