                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                         June 29, 2005

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 03-2284
 v.                                             (D.C. No. CR-02-1271 MV)
                                                      (New Mexico)
 GERALD LEE ESTEP,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.


      Gerald Lee Estep was convicted by a jury of one count of assaulting an

Indian woman in Indian country with a dangerous weapon with intent to do bodily

harm in violation of 18 U.S.C. §§ 1152 and 113(a)(3), and two counts of

aggravated sexual abuse of an Indian woman in Indian country in violation of 18

      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
U.S.C. §§ 1152, 2241(a), and 2246(2)(A) & (2)(B). On appeal, Mr. Estep

contends the government failed to present sufficient evidence that he either

committed assault with a dangerous weapon with intent to do bodily harm or

committed aggravated assault by forcing or threatening the victim to engage in

sexual acts. He also maintains the district court violated his Sixth Amendment

right to a jury trial when it enhanced his sentence four levels based on findings

that Mr. Estep’s victim sustained serious bodily injury, see U.S.S.G. §

2A3.1(b)(4), and that he obstructed justice, see U.S.S.G. § 3C1.1. We affirm.

      On July 6, 2002, Frederica Benally hitchhiked from Window Rock, Arizona

to Gallup, New Mexico to visit with Gary O’Dell. Ms. Benally met Mr. O’Dell

and his friend, Mr. Estep, at the American Bar in Gallup at approximately 7:00

p.m. Mr. O’Dell and Mr. Estep enjoyed pitchers of beer at a booth while Ms.

Benally drank alone at the bar. After patronizing a second establishment, Mr.

O’Dell and Mr. Estep offered Ms. Benally a ride. As Mr. Estep was driving, Ms.

Benally and Mr. O’Dell began to argue. Mr. O’Dell threw a beer can at Ms.

Benally, which hit her in the chest and spilled into her lap. He then got out of the

car and walked away.

      Ms. Benally moved to the front of the vehicle with Mr. Estep, expecting he

would drive her to a motel where she could spend the night. Instead, he turned

down a dirt road and stopped in a remote area. Mr. Estep opened the front


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passenger door, struck her on the right side of her head with a football-sized rock,

and demanded that she remove her clothes. Ms. Benally stepped out of the

vehicle and swung her back pack at her assailant. During the struggle, Mr. Estep

repeatedly attacked Ms. Benally with the rock, striking her two more times on the

head and once on her right arm.

      Hoping to dissuade him, Ms. Benally told Mr. Estep she was menstruating.

He told her that he had a gun and would kill her. Afraid, Ms. Benally decided to

cooperate and sat down on the passenger side of the front seat of the vehicle. She

removed her clothes as directed by Mr. Estep and he began to kiss and fondle her.

When asked whether she liked it, Ms. Benally testified that she answered “yes”

because she feared for her life. Mr. Estep proceeded to have sexual intercourse

with her. Id. During this time, she placed her fingerprints on the rear view

mirror as evidence that she had been in the car. She also left a box of maxi pads,

the maxi pad she had been wearing, and several hair bands at the scene, hoping

those items would be recovered by law enforcement.

      When Mr. Estep was finished, he allowed Ms. Benally to get dressed and he

drove back toward town. Ms. Benally told him she had to use the restroom and he

took her to his girlfriend’s house. Ms. Benally exited the vehicle, ran to a nearby

house, reported what had occurred to the occupant, and called 911. An

ambulance transported her to the Gallup Indian Medical Center, where she was


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treated for three large contusions to her head. While there, she informed the

police she had been raped and described the location of the incident. The officers

visited the crime scene and discovered the items Ms. Banally had left and a large

rock.

        Because the incidents at issue occurred on Indian allotment land within the

boundaries of the Navajo Indian Reservation, Federal Bureau of Investigation

(FBI) agents led the investigation. They visited Mr. Estep at his residence several

hours after the incident to question him regarding Ms. Benally’s complaints. In

response to the agents’ inquiries, Ms. Estep wrote three different statements.

Ultimately, he confessed he had sex with Ms. Benally against her will. He did not

admit he hit her with a rock or threatened her with a gun.

        On July 8, 2002, the FBI transported Mr. Estep to the federal courthouse

for his Initial Appearance. During the trip from Gallup to Albuquerque, Mr.

Estep announced he was willing to tell the whole truth about the incident. After

the agents provided a Miranda warning, Mr. Estep wrote another statement, this

time admitting he had struck Ms. Benally on the head with a rock and threatened

her with a gun. He added that he did not actually have a gun at the time and

asserted his actions were the result of excessive alcohol consumption.

        We review the record for sufficiency of the evidence de novo. United

States v. Chavez-Palacios, 30 F.3d 1290, 1294 (10th Cir. 1994). “Evidence is


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sufficient to support a criminal conviction if a reasonable jury could find the

defendant guilty beyond a reasonable doubt, given the direct and circumstantial

evidence, along with reasonable inferences therefrom, taken in a light most

favorable to the government.” United States. v. Mains, 33 F.3d 1222, 1227 (10th

Cir. 1994). We “presume the jury resolved evidentiary conflicts in favor of the

prosecution, and we defer to the jury's resolution.” United States v. Roberts, 185

F.3d 1125, 1140 (10th Cir. 1999); see also United States v. McKissick, 204 F.3d

1282, 1289-90 (10th Cir. 2000).

      Mr. Estep contends the evidence was insufficient to establish he assaulted

his victim with a dangerous weapon under 18 U.S.C. § 113(a)(3) because it was

“inherently improbable” that he used the rock introduced at trial to strike Ms.

Benally. We disagree. Ms. Benally testified that Mr. Estep hit her at least three

times with a large rock similar to the one the government introduced into

evidence. Both the emergency medical technician (EMT) who responded to Ms.

Benally’s 911 call and the treating emergency room physician testified that Ms.

Benally suffered injuries to her head consistent with being struck by a hard

object. Moreover, Ms. Benally told the EMT and the doctor that her assailant had

hit her on the head with a rock. Indeed, law enforcement officers recovered a

rock that “appeared to be out of place” at the crime scene matching the

description of the rock provided by Ms. Benally. Most importantly, Mr. Estep


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himself confessed that he struck Ms. Benally two or three times with a rock. This

evidence was clearly sufficient to support the verdict.

      Mr. Estep also maintains there was insufficient evidence that he used force

or threatened Ms. Benally or placed her in fear of death or serious bodily injury in

violation of 18 U.S.C. § 2241(a). In effect, he contends the government failed to

prove that the sexual acts that he and Ms. Benally engaged in were not

consensual. As detailed above, however, ample evidence supported the jury’s

conclusion that Mr. Estep used force – specifically, a rock – to cause Ms. Benally

to engage in sex acts with him. Mr. Estep admitted that the sex “was agaist [sic]

her will,” he “asalted [sic] and raped” Ms. Benally, he “hit her with a rock 2 or 3

times, then told her to take off her cloths [sic] then had sex with her.” Aple. Br.

at 12, 15 (citing Gov. Exs. 11 and 13). He also confessed he told her he “had a

gun.” Id. at 15 (citing Gov. Ex. 13).

      Mr. Estep also claims the district court violated his Sixth Amendment rights

by imposing a sentence exceeding the maximum authorized solely by the jury

verdict and his admissions. See United States v. Booker, 125 S. Ct. 738, 756

(2005); Blakely v. Washington, 124 S. Ct. 1531, 2536 (2004). He specifically

maintains his sentence could only be enhanced if either a jury had found or he had

admitted that he inflicted serious bodily injury on his victim within the meaning

of § 2A3.1(b)(4), or obstructed justice pursuant to § 3C1.1.


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      Mr. Estep was found guilty as charged of one count of assault with a

dangerous weapon and two counts of aggravated sexual abuse. Based on an

undisputed criminal history category of I and a base offense level of 27, a

guideline range of 70 to 87 months was the maximum penalty permitted on the

basis of the jury verdict and Mr. Estep’s prior convictions. See U.S.S.G. ch. 5, pt.

A (Sentencing Table). At sentencing, however, the district court enhanced Mr.

Estep’s guideline range by four levels pursuant to a finding that he threatened his

victim with a gun, § 2A3.1(b)(1), by two levels due to a finding that he inflicted

serious bodily injury on his victim, § 2A3.1(b)(4), and by two levels based on a

finding that he obstructed justice, § 3C1.1. As a result, his total offense level was

calculated at 35, mandating a guidelines range of 168 to 210 months

incarceration. The district court sentenced him to 168 months imprisonment.

      Mr. Estep does not challenge his four-level enhancement under §

2A3.1(b)(1) because causing a victim to engage in sex acts via force or threats is

an element of aggravated abuse, which the jury found Mr. Estep guilty of beyond

a reasonable doubt. Since the maximum penalty he could receive solely on the

basis of his admissions and jury-found facts (including the four-level

enhancement under § 2A3.1(b)(1)) was 135 months, Mr. Estep submits the 168

month sentence imposed by the district court violates the Sixth Amendment.

      Because Mr. Estep did not raise a Sixth Amendment claim in the district


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court, we review for plain error. F ED . R. C RIM . P. 52(b); see also United States v.

Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005). To establish plain error, Mr. Estep

must demonstrate there was (1) error (2) that was plain and (3) affected his

substantial rights. United States v. Cotton, 535 U.S. 625, 631 (2002); United

States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc). If Mr.

Estep satisfies his burden of establishing the first three prongs of the plain error

test, we may exercise our discretion to correct the error if it “seriously affect[ed]

the fairness, integrity or public reputation of judicial proceedings.” Johnson v.

United States, 520 U.S. 461, 469-70 (1997) (quoting United States v. Olano, 507

U.S. 725, 736 (1993)); Gonzalez-Huerta, 403 F.3d at 732.

      There is little doubt Mr. Estep has satisfied the first two prongs of the plain

error analysis. The district court committed constitutional error when it found

Mr. Estep inflicted serious bodily injury on his victim and obstructed justice, and

mandatorily enhanced his sentence by an additional four levels. Booker, 125 S.

Ct. at 749. Moreover, the error is now “plain.” Johnson, 520 U.S. at 468.

      Mr. Estep bears the burden of establishing that the constitutional error

affected his substantial rights. Dazey, 403 F.3d at 1175. In order to so

demonstrate, “a defendant must show a ‘reasonable probability’ that the defects in

his sentencing altered the result of the proceedings.” Id. (citing United States v.

Dominguez Benitez, 542 U.S. 74 (2004)). We have held that a defendant may


                                          -8-
meet this burden in at least two ways:

      First, if the defendant shows a reasonable probability that a jury applying a
      reasonable doubt standard would not have found the same material facts
      that a judge found by a preponderance of the evidence, then the defendant
      successfully demonstrates that the error below affected his substantial
      rights . . . . Second, a defendant may show that the district court's error
      affected his substantial rights by demonstrating a reasonable probability
      that . . . the district court judge would reasonably impose a sentence outside
      the Guidelines range.

Id. While Mr. Estep does not point to any evidence that the judge believed his

guidelines range was excessive in light of the facts found by the court, he does

contend there was insufficient evidence for a jury to find beyond a reasonable

doubt that he caused his victim serious bodily injury as required for a mandatory

enhancement pursuant to § 2A3.1(b)(4). As detailed supra, however, the record

makes it clear the government introduced overwhelming evidence proving Mr.

Estep caused his victim serious bodily injury by repeatedly striking her in the

head with a rock.

      The record also overwhelmingly supports the two-level enhancement for

obstruction of justice. This increase is appropriate if “the defendant willfully

obstructed or impeded, or attempted to obstruct or impede, the administration of

justice during the course of the investigation, prosecution, or sentencing of the

instant offense.” U.S.S.G. § 3C1.1. The Commentary to this section indicates the

enhancement was intended to apply, inter alia, to defendants who provide false

statements to law enforcement during official investigations, id. cmt. n.4(g), and

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in cases where the defendant commits perjury. Id. cmt. n.4(b).

      Mr. Estep initially provided written confessions to FBI agents admitting

certain elements of the charged crimes and ultimately confessed to all the

elements of the charged crimes. Nonetheless, at trial, he testified that his

confessions were coerced, recanted his earlier statements, and offered a

completely different version of events which the jury did not believe. The

evidence overwhelmingly demonstrated that Mr. Estep’s testimony concerning his

sexual encounter with Ms. Benally was false. He has not shown that a jury

applying a reasonable doubt standard would conclude any differently. As a result,

he has not established that cognizable plain error existed in his case.

      We AFFIRM Mr. Estep’s conviction and sentence.

                                 SUBMITTED FOR THE COURT

                                 Stephanie K. Seymour
                                 Circuit Judge




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