               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit


No. 15-1238

                    UNITED STATES OF AMERICA,

                               Appellee,

                                    v.

                        DAVID W. LACOUTURE,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nathaniel M. Gorton, U.S. District Judge]


                                 Before

                  Lynch, Thompson, and Kayatta,
                         Circuit Judges.


     Joshua R. Hanye on brief for appellant.
     Eric S. Rosen, Assistant United States Attorney, and Carmen
M. Ortiz, United States Attorney, on brief for appellee.


                           August 31, 2016
            THOMPSON, Circuit Judge.     In violation of his probation

and federal and state laws that required him to register as a sex

offender,     Defendant-appellant      David     W.      Lacouture   fled

Massachusetts for Missouri, where he lived using a fake identity

until he was accused of molesting a neighbor's child and arrested.

The case before us concerns only Lacouture's sentence for the crime

of failing to register as a sex offender, to which he pled guilty.

At   sentencing,    the   district   court     applied    an   eight-level

enhancement on the basis of the Missouri charge, which Lacouture

argues was error.    Because the record does not reveal whether the

district court found reliable the out-of-court statement upon

which the prosecution primarily relies, we remand this matter for

clarification of whether the district court so found, and why.

                              BACKGROUND1

A. The Underlying Offense

            In September 2010, Lacouture pled guilty in Barnstable

Superior Court in Massachusetts to one count of indecent assault

and battery on a minor.     For his crime, Lacouture received a two-

and-a-half year sentence -- eighteen months of which was a term of




     1 Because Lacouture's conviction resulted from a guilty plea,
we draw the facts from the plea agreement, the Presentence
Investigation ("PSI") report, other documents in the sentencing
record, and the transcript of the sentencing hearing. See United
States v. Ocasio-Cancel, 727 F.3d 85, 88 (1st Cir. 2013).


                                 - 2 -
imprisonment and the remainder of which was to be served on

probation.

             On June 2, 2011, after completing the carceral portion

of his sentence, Lacouture was released on probation, and was

required by both federal and state law to register with the

Massachusetts Sex Offender Registry Board ("SORB").      See 42 U.S.C.

§ 16913(b); Mass. Gen. Laws ch. 6, § 178F.       Because Lacouture was

homeless at the time of his release, he was required to verify his

SORB registration by appearing in person at the local police

department every 30 days, see Mass. Gen. Laws ch. 6, § 178F1/2,

and, as is required of all sex offenders, to notify SORB of any

changes in address, see 42 U.S.C. § 16913(c); Mass. Gen. Laws ch. 6

§ 178H(a).

B. Unlawful Wayfaring

             Alas, at some point after June 17, 2011, Lacouture left

Massachusetts without letting anyone know.        At first, the state

court issued a warrant for Lacouture for violation of his probation

requirements.    Then, when thirty days passed and Lacouture did not

resurface, the court issued a second warrant, this time with a new

charge for failure to register as a sex offender.

             While   his   disappearance   was   being   investigated,

Lacouture managed to wind up far away in Joplin, Missouri.     There,

he found some work, took up the alias "Damon Hunter" and nickname

"Rhino," and lived for a time as a fugitive under that assumed


                                 - 3 -
identity. This new life was abruptly interrupted on April 2, 2013,

when Lacouture was arrested for child molestation.

          Some weeks prior to Lacouture's arrest, Lacouture's

eight-year-old neighbor had been found masturbating by her aunt.

When the aunt asked the girl about it, the girl told her aunt that

"Rhino" had touched her inappropriately and done to her "other

things we are not supposed to do."      The aunt told the girl's

mother, and the mother alerted the Joplin police on March 16, 2013.

          A Sexual Abuse Investigative Interview ("SAIN") was

conducted a few days later.2   When asked about the incident, the

child recounted that, sometime before Thanksgiving but after the

start of the school year in 2012 (when she was seven years old),

she had gone over to Lacouture's house alone to pet his cat, and

Lacouture had put his hands down her pants and touched the area

around her vagina, which had made her feel uncomfortable.      She

also told the interviewer that she had run home immediately

afterward and informed her mother.     A medical exam detected no

physical evidence of the alleged 2012 abuse.

          The arrest followed shortly thereafter.     During post-

arrest questioning, Lacouture recalled he had picked the child up

off the ground, and in doing so, had put his arm under her crotch


     2 The interview appears to have been conducted at the Joplin
Police Department by a Missouri Sexual Assault Investigative
Network interviewer. The interview was video-recorded, but the
sentencing record contains only a transcript of the interview.


                               - 4 -
area, but denied ever having touched the girl sexually.                       (The case

related to this arrest, by the way, remains pending in Missouri at

the time of this opinion's publishing.)                Lacouture also admitted

that "Damon Hunter" and "Rhino" were aliases, and that he had been

living in Joplin unlawfully and in violation of his sex offender

registration requirements.

C. The Case at Hand

           This brings us to our present case.                         Lacouture was

transported    back    to    Massachusetts       and   eventually       indicted     in

federal court for one count of failure to register as a sex

offender, to which he pled guilty.

           A    PSI    report    was     prepared.           Because     Lacouture's

underlying     state   conviction       qualified      him    as   a   Tier     II   sex

offender, the PSI report assigned a base offense level of fourteen.

See U.S.S.G. § 2A3.5(a)(2).             To this, the PSI report added the

eight-level enhancement for commission of a sex offense against a

minor while in failure-to-register status, on the basis of the

evidence that Lacouture had molested his neighbor's child in

Joplin.   See id. § 2A3.5(b)(1)(C).             The PSI report then subtracted

three levels for acceptance of responsibility, resulting in a total

offense level of nineteen.         Based on Lacouture's criminal history

category of VI, this put the guideline range at 63 to 78 months.

           Lacouture        objected,    among    other      things,     to    the   PSI

report's recommendation that the district court apply an eight-


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level enhancement on the basis of the unproven Joplin allegations,

which he claimed were false. The district court disagreed, finding

that the eight-level enhancement applied, and adopted the PSI

report's guideline range.           The judge sentenced Lacouture to the

highest guideline sentence: 78 months (or 6 years and 6 months) of

imprisonment.        Lacouture timely appealed.

                                    DISCUSSION

               Lacouture's sole argument on appeal is that the district

court       erred   in   applying   the   eight-level   enhancement   in   its

guideline calculation because the court lacked sufficient evidence

to find that he had committed a sex offense against a minor.                A

district court's error in calculating the guideline range requires

resentencing where it "affects or arguably affects the sentence

imposed."       United States v. Ramos-Paulino, 488 F.3d 459, 463 (1st

Cir. 2007).

               We review a district court's sentencing factor findings

for clear error.         United States v. Morgan, 384 F.3d 1, 5 (1st Cir.

2004).3       "It is the government's burden at sentencing to prove


        3
       Lacouture argues that his appeal involves only pure legal
questions and thus asks us to apply de novo review, but his
challenge goes to the district court's factual finding that
Lacouture committed a sex offense while on failure-to-register
status, and therefore the clear error standard applies. See United
States v. Savarese, 686 F.3d 1, 15 (1st Cir. 2012) ("[W]here, as
here, a defendant challenges the factual predicate supporting the
court's application of a sentencing enhancement, 'we ask only
whether the court clearly erred in finding that the government
proved the disputed fact by a preponderance of the evidence.'"


                                      - 6 -
sentencing enhancement factors by a preponderance of the evidence,

and a district court may base its determinations on 'any evidence

that it reasonably finds to be reliable.'"                  United States v.

Almeida, 748 F.3d 41, 53 (1st Cir. 2014) (quoting United States v.

Walker, 665 F.3d 212, 232 (1st Cir. 2011)).

                 The government urges us to find that it met its burden

here because the SAIN transcript, in which the child herself gave

an account of the incident, gave the sentencing judge an adequate

basis       to   find   that   Lacouture   had   molested   the   child.     The

government argues that the child's accusations are consistent with

two   prior       convictions    in   Lacouture's    criminal     history   (for

indecent assault and battery and for indecent exposure), which

both involved children under the age of fourteen.4                To the extent

that further corroboration of the child's account was necessary,

the government continues, it was supported by police reports

containing both the mother's original statements to the police --

that the aunt had discovered the child masturbating and that the

child had told her aunt, "Rhino used to do it to me as well as


(quoting United States v. Luciano, 414 F.3d 174, 180 (1st Cir.
2005))).
        4
       Although propensity evidence is normally inadmissible in
criminal trials, it is admissible in cases involving child
molestation, see Fed. R. Evid. 414 ("In a criminal case in which
a defendant is accused of child molestation, the court may admit
evidence   that  the   defendant   committed  any  other   child
molestation."), and, in any case, the government offers the
convictions here for purposes of sentencing.


                                       - 7 -
other things we are not supposed to do" -- and Lacouture's own

statements during police questioning that he recalled picking the

child up off the ground and placing his arm under her crotch area.

          But here is where we are stuck.   Some of the very police

reports that the government claims are corroborative appear at

times to undermine, rather than verify, the child's account.   And

the district court left unaddressed the question of whether, in

light of these discrepancies, the child's interview statements are

sufficiently reliable to support the conclusion that the alleged

molestation occurred.   We explain.

          First, during the SAIN, the child told the interviewer

that immediately following the incident, she had gone home and

told her mother what had happened, and that her mother had told

her "never to go back over to his house again."   But according to

the initial police report, the mother told the police that she

learned of the incident from the child's aunt, which was not until

March 2013.

          Additionally, when the interviewer asked the child how

many different times Lacouture had inappropriately touched her,

the girl responded that it had happened only "[o]nce," and when

the interviewer asked whether he had ever touched "any other places

on [her] body," she answered, "Nope."   But, conflictingly, in the

statement the child allegedly made to her aunt -- "Rhino used to

do it to me as well as other things we are not supposed to do" --


                               - 8 -
she seems to have suggested both that there was more than one

instance of molestation, and that there may have been more than

one kind of inappropriate act.

              Furthermore,    when   the   interviewer    asked   the     child

whether "anybody else" had ever "touched . . . any places on [her]

body" that they "weren't supposed to touch," the child answered,

"No."       But during a post-SAIN interview, the child's mother told

the police that the child had been molested previously by a

grandfather.

              Finally, several months before the SAIN, the mother

reported to the police that the child had told her she had been

"touched"      by   someone   across   the   street,     but   withdrew    the

accusations when the child then "told [the mother] that she [had]

lied about being touched."           The child's mother told the police

during her post-SAIN interview that, while she thought the child

was likely telling the truth about this incident now, she "was not

sure" whether she was lying again.5




        5
       Lacouture maintains that the present incident, of which he
stands accused, and this prior incident of sexual assault, about
which the girl admitted she lied, are, in fact, one and the same,
as both allegedly occurred "several months" before March 2013 and
involved a "neighbor."    The government agrees that this is a
"plausible inference," but argues that, if anything, this shows
the child was consistent in her story, even if she retracted her
first report of it, perhaps out of embarrassment or fear.      For
reasons we explain in a moment, we leave it for the district court
to weigh these competing inferences.


                                     - 9 -
           We do not assert that the dissonance between the SAIN

transcript and the police reports requires that the child's account

be disbelieved.    But we do conclude that we ought go no further in

our review because we cannot tell from the sentencing judge's

conclusory finding whether he found the child's SAIN statement

reliable, hence admissible, and why.        In ruling on this issue, the

judge stated simply: "[T]he Court does believe, under the reduced

standard   by   which   it   is   to   determine   sentencing   factors,   a

preponderance of the evidence[,] . . . that, while this Defendant

was on failure-to-register status, he committed a sex offense[.]"

"[I]n other words," the judge went on, "the conduct is sufficient

on the evidence . . . that the Defendant was in commission of

conduct that was in violation of a . . . sex-conduct statute, and

therefore . . . the eight-level increase is warranted."          It is not

clear from this sparse discussion whether the sentencing judge

found the child's interview statements to be reliable, and if so,

how he came to his conclusion despite the apparent inconsistencies.

As a result, we cannot tell whether the judge clearly erred in

finding that the sentencing enhancement applied on the basis of

the evidence.6


     6We are mindful that recounting a sex crime can be a traumatic
experience that may make telling a linear story difficult, and
that this hardship is compounded when the victim is a child.
Nonetheless, a sentencing enhancement cannot be applied unless the
government meets its burden to prove the predicate fact or facts
by a preponderance of the evidence.


                                   - 10 -
                  The   stakes    of    a   potentially    erroneously    calculated

guideline range in this case are clear. The district court imposed

a top-of-the-range sentence of 78 months (6 years and 6 months).

Without the enhancement, the range would have been 30 to 37 months,

resulting in a guideline ceiling of 3 years and 1 month -- less

than half the sentence Lacouture ultimately received.7

                  Given the impact that a possible error would have had on

the sentence and the need for further clarification before we can

determine whether an error occurred, see United States v. Jimenez-

Martinez, 83 F.3d 488, 494 (1st Cir. 1996) (expressing "concern[]"

over       "the    court's     failure      to   articulate   any   reason   why    [a

questionable] affidavit was reliable," and finding the court erred

in relying on it without an evidentiary hearing), we think the

wisest       course     here     is    to   follow   our   occasional    practice    of

remanding the matter to the district court, as we have previously

done in cases where a district court's explanation of a sentence

is inadequate, see United States v. Lucena-Rivera, 750 F.3d 43, 53

(1st       Cir.    2014)   (remanding        with    instructions   to   revisit    the


       7
       This would-be guideline range is based on a base offense
level of fourteen, minus two levels for acceptance of
responsibility, resulting in a total offense level of twelve.
(Only two levels are subtracted for acceptance of responsibility
because, without the eight-level enhancement, Lacouture would not
have qualified for the additional one-level decrease for timely
notice of his intent to plead guilty, which the PSI report
recommended and the district court adopted, because that decrease
only applies where the offense level is sixteen or greater. See
U.S.S.G. § 3E1.1(b).)


                                            - 11 -
application of a sentencing enhancement, as "is appropriate when

the basis in the sentencing record for the application of an

enhancement requires clarification").

          On remand, the district court should indicate whether it

found the child's statement to be reliable and how it reached that

conclusion.8

                           CONCLUSION

          Because we are unable to determine whether the district

court erred in applying the eight-level sentencing enhancement, we

vacate the sentence and remand for further proceedings consistent

with this opinion.




     8 To this end, the district court may wish to request that
the government produce the video recording of the SAIN in order to
aid its assessment of the child's responses.


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