           Case: 13-15345   Date Filed: 08/22/2014   Page: 1 of 11


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-15345
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:13-cr-00266-SDM-TGW-1


UNITED STATES OF AMERICA,

                                                          Plaintiff - Appellee,

                                  versus

JON LESLIE WILLIAMS,
a.k.a. Jon Lee,
a.k.a. Todd Hurt,
                                                      Defendants – Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________

                             (August 22, 2014)

Before PRYOR, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:
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      Jon Leslie Williams appeals his 71-month sentence after pleading guilty to

one count of failure to register as a sex offender, in violation of 18 U.S.C.

§ 2250(a). Mr. Williams contends that district court erred by admitting unreliable

hearsay evidence to impose a six-level enhancement to his offense level for

committing a sexual offense while in failure to register status.

      Upon review of the record, and consideration of the parties’ briefs, we

affirm.

                                          I

      Mr. Williams pled guilty (without a plea agreement) to knowingly and

unlawfully failing to register as a sex offender and update his registration as

required by the Sex Offender Registration and Notification Act. See 18 U.S.C.

§ 2250(a). The district court sentenced him to 71 months’ imprisonment.

      The presentence investigation report recommended that the district court

establish Mr. Williams’ total offense level at 19, with a criminal history category

of V and a corresponding advisory guideline range of 57 to 71 months’

imprisonment.     The report recommended a six-level enhancement because

Mr. Williams had committed a sex offense against someone other than a minor

while in failure to register status. See U.S.S.G. § 2A3.5(b)(1)(A). Mr. Williams

objected to the proposed enhancement and the description of the underlying


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offense in the report. At sentencing, the government presented evidence to support

the challenged enhancement.

       Kathy Daniels, an administrative nurse at Windmoor Healthcare, a

psychiatric hospital, testified that on April 4, 2013, an anxious, shaken, and tearful

patient, C.M., 1 told her she had been raped. Ms. Daniels notified the department

director and the police of C.M.’s statement. C.M. was admitted for inpatient

treatment, and she continued to receive treatment through May of 2013 for the

trauma associated with her rape.

       The district court overruled Mr. Williams’ hearsay objection to Ms. Daniels’

testimony as to statements made by C.M. because they were being admitted for

non-hearsay purposes, such as her appearance and the time and place of the report.

The district court also admitted C.M.’s initial treatment plan as Government’s

Exhibit No. 5B, ruling that it was created as “part of the regular process of

admission” at Windmoor Healthcare for the “establishment of a medical or

treatment plan,” it was “retained for the purpose of being resorted to in the

treatment of patients,” and it “reliably contain[ed] the report of a treating

physician.” D.E. 48 at 23-24. It similarly admitted C.M.’s outpatient medical

records as Government’s Exhibit No. 5C.



1
  Although the parties identified the victim by her full name at the sentencing hearing, we will
refer to her by her initials to protect her privacy.
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      Detective Colin Brooks, who investigated C.M.’s alleged rape, testified that

he interviewed C.M. on April 4, 2013, at Windmoor Hospital. Mr. Williams again

objected to any testimony containing hearsay statements made by C.M., but the

district court overruled the objection. According to Detective Brooks, C.M. stated

that she lived with her boyfriend, Justin Odey, Bette Bodenhorn (Mr. Odey’s

mother), and Mr. Williams (Ms. Bodenhorn’s boyfriend at the time). On the night

of April 3, 2013, or the early morning hours of April 4, 2013, C.M. woke up

disoriented to someone removing her clothing and performing oral sex on her. She

began to scream, but the assailant covered her mouth and forcibly raped her.

      Detective Brooks explained that C.M. is legally blind, cannot see in the dark,

and uses a hearing aid. Although C.M. was not able to see her rapist, she believed

it was Mr. Williams because her assailant had a beard during the attack,

Mr. Williams also had a beard at the time, and her boyfriend was in the hospital.

Moreover, earlier that night Mr. Williams had asked C.M. to clean up, and while

she was in the kitchen, Mr. Williams—the only male in the house—rubbed his

penis against her leg. C.M. admitted to consuming alcohol, taking sleeping pills,

and smoking marijuana throughout the night of the rape.

      After the interview, Detective Brooks ordered a rape examination. DNA

swabs were taken from C.M.’s genital areas and underpants. The DNA in the

semen from the swabs matched Mr. Williams’ DNA.


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      When other police officers arrived at Mr. Williams’ residence on April 4,

2013, he provided them with a false name. The officers therefore arrested him. In

his post-arrest interview, Mr. Williams admitted to being at Mrs. Bodenhorn’s

house on April 3, 2014, but denied that he had sex with C.M.

      A senior inspector with the United States Marshal’s Service, Gary Scevola,

testified that he listened to phone conversations between Mr. Williams and

Ms. Bodenhorn after he was arrested. In those calls, Mr. Williams denied having

sex with C.M.

      After all the evidence had been admitted, the district court invited arguments

as to whether the government had proven by a preponderance of the evidence that

Mr. Williams had committed a sex offense against C.M. warranting the six-level

enhancement. The government argued that the evidence showed that Mr. Williams

performed oral and vaginal sex on C.M. without her consent. Mr. Williams argued

that the government failed to show that the hearsay evidence was sufficiently

reliable to prove that he had committed a sexual battery or rape by a preponderance

of the evidence.

      After hearing all the arguments, the district court overruled Mr.Williams’

objections based, in part, on the DNA evidence. The district court found that the

circumstances demonstrated that the event that occurred between the night of April

3 and the early morning of April 4 was, more likely than not, a sexual battery. The


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court further found that the weight of the evidence pointed to the fact that

encounter was nonconsensual. The incident occurred over the night and was

promptly reported the following morning. There was, moreover, no evidence that

C.M. recanted her report. With respect to the testimony regarding C.M.’s out-of-

court statements, the district court ruled that it “considered none of them in their

hearsay capacity,” but only as “evidence that reports were made at the time and

place stated.” D.E. 48 at 181-82.

      The district court adopted the factual statements and guideline calculations

in the presentence investigation report. It sentenced Mr. Williams to 71 months’

imprisonment after considering the applicable advisory guideline range and the

factors in 18 U.S.C. § 3553(a).        Mr. Williams objected to the six-level

enhancement for committing a sexual offense while unregistered.

                                             II

      Mr. Williams objects on due process grounds to the use of hearsay evidence

in applying a six-level enhancement for being an unregistered sex offender who

committed a sex offense against someone other than a minor pursuant to U.S.S.G.

§ 2A3.5(b)(1)(A). We review constitutional challenges to a defendant’s sentence

de novo. See United States v. Ghertler, 605 F.3d 1256, 1268 (11th Cir. 2010).

      Hearsay is a declarant’s out-of-court statement that “a party offers in

evidence to prove the truth of the matter asserted.”        Fed. R. Evid. 801(c).


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Although hearsay is generally inadmissible under Rule 802 of the Federal Rules of

Evidence, hearsay evidence that has sufficient indicia of reliability may be

considered by a sentencing court regardless of its admissibility at trial “‘in

determining whether factors exist that would enhance a defendant’s sentence.’”

Ghertler, 605 F.3d at 1269 (quoting United States v. Baker, 432 F.3d 1189, 1253

(11th Cir. 2005)). So long as the defendant is given the opportunity to refute the

evidence and the evidence bears a minimal indicia of reliability, there is no

violation of the defendant’s due process rights. See United States v. Reme, 738

F.2d 1156, 1167 (11th Cir. 1984). In order to show that a district court has relied

on false or unreliable information during sentencing, the defendant must show (1)

that the challenged evidence is materially false or unreliable, and (2) that it actually

served the basis for the sentence. Id.

                                               III

      Under the doctrine of invited error, “if a party . . . agrees to the admissibility

of certain evidence, he cannot later complain that any resulting error is reversible.”

United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009) (“In the Eleventh

Circuit, ‘[t]he doctrine of invited error is implicated when a party induces or

invites the district court into making an error.’”) (quoting United States v. Stone,

139 F.3d 822, 838 (11th Cir.1998)). Although Mr. Williams objected to Detective

Brooks’ testimony concerning C.M.’s out-of-court statements, his counsel agreed


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that the statements could be “offered to show that [they were] made at a time and

place to an officer.” See D.E. 48 at 58 (“THE COURT: . . . [Y]ou objected to the

officer’s saying what the putative victim said to him. . . . [I]f that statement is

being offered to show that it was made at a time and place to an officer, it is not

hearsay, because it is not being offered for its substance, but the fact of its having

been made. MR. TANENBAUM: I agree, Your Honor.”). We take the district

court at its word when it said that it admitted Detective Brooks’ testimony for this

limited purpose only. See also D.E. 48 at 181-82 (“And so far as the various

hearsay things, I considered none of them in their hearsay capacity, only that they

made reports, that they were evidence that reports were made at the time and place

stated . . . .”).

        On appeal, Mr. Williams contends that it was error for the district court to

consider these reports for the fact that they were made because “C.M.’s reports of

her encounter with Mr. Williams have significance only to the extent that her

asserted claim of rape was considered for its truth.”            Appellant’s Br. at 15.

Mr. Williams, however, invited the district court to make this alleged error by

agreeing that the statements were admissible to prove that C.M. reported the

alleged rape to the police. He, therefore, cannot challenge the admissibility of this

evidence on appeal. See Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1234 (11th

Cir. 2010) (“This court may affirm a decision of the district court on any ground


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supported by the record.”). “[E]ven plain error review is unavailable in cases

where a criminal defendant ‘invites’ the constitutional error of which he

complains.” United States v. Jernigan, 341 F.3d 1273, 1289 (11th Cir. 2003).

      We further conclude that the district court did not err by admitting C.M.’s

hospital records from Windmoor Healthcare and the testimony of Nurse Daniels.

Statements made for medical diagnosis or treatment “are not excluded by the rule

against hearsay, regardless of whether the declarant is available as a witness.” Fed.

R. Evid. 803(4) (“The following are not excluded by the rule against hearsay,

regardless of whether the declarant is available as a witness. . . . A statement that:

(A) is made for—and is reasonably pertinent to—medical diagnosis or treatment;

and (B) describes medical history; past or present symptoms or sensations; their

inception; or their general cause.”). The advisory committee notes explain that

Rule 803(4) “extends to statements as to causation, reasonably pertinent to

[purposes of diagnoses and treatment]. . . . Statements as to fault would not

ordinarily qualify under this latter language. Thus a patient’s statement that he was

struck by an automobile would qualify but not his statement that the car was driven

through a red light.” Fed. R. Evid. 803(4) advisory committee’s note (citations

omitted).

      In United States v. Belfast, 611 F.3d 783, 819 (11th Cir. 2010), we held that

the district court did not abuse its discretion in admitting into evidence unredacted


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medical records that contained statements by medical professionals indicating that

the victim’s wounds and burns resulted from abuse or torture (as opposed to, for

example, a vehicular or workplace accident). We explained that these statements

were admissible because they did not assign any fault or suggest that the “abuse”

or “torture” met the legal or statutory definition of these terms. Id. In support of

our holding, we favorably cited an Eighth Circuit decision, which held that medical

records containing a statement that the victim was “raped” were admissible under

Rule 803(4) as a statement of causation, not fault. See id. (discussing United States

v. Iron Thunder, 714 F.2d 765, 772-73 (8th Cir. 1983)).

         Mr. Williams does not contest that C.M.’s statements that she was raped,

made to Nurse Daniels and documented in her medical reports, were made for the

purpose of medical diagnosis and treatment.                    As the district court found,

Government’s Exhibit No. 5B was created as “part of the regular process of

admission” at Windmoor Healthcare for the “establishment of a medical treatment

plan, and reliably contains the report of the treating physician and the purpose for

treating the patient.        D.E. 48 at 23-24.         Accordingly, these statements were

admissible under Rule 803(4).2




2
    We reject Mr. Williams’ arguments that the evidence in question was not reliable.
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                                                     IV

       For the foregoing reasons, we affirm the imposition of the six-level

enhancement. 3

       AFFIRMED.




3
 Because Mr. Williams does not challenge the sufficiency of the evidence, we do not address it.
See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[T]he law is by
now well settled in this Circuit that a legal claim or argument that has not been briefed before the
court is deemed abandoned and its merits will not be addressed.”).
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