                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                December 10, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 09-7017
 ALBERT LEE VANN,                             (D.C. No. 6:08-CR-00038-JHP-1)
                                                        (E.D. Okla.)
          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE, HOLLOWAY, and HOLMES, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.

      Defendant Albert Lee Vann pled guilty to Aggravated Sexual Abuse of a

Minor Child in Indian Country in violation of 18 U.S.C. §§ 2241(c), 1151 and


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
1153. On appeal, Vann challenges his sentence arguing that the district court

erred in applying the use of force enhancement contained in U.S.S.G. §

2A3.1(b)(1) because the elements of the enhancement were not proven by a

preponderance of the evidence. We exercise jurisdiction pursuant to 28 U.S.C. §

1291 and AFFIRM.

                                         I.

      On February 12, 2008, the Federal Bureau of Investigation (FBI) was

notified that E.O., a 13-year old Indian female, had given birth to a child on

February 6, 2008. At that time E.O. was living with her mother and her

stepfather, Albert Lee Vann, in their home in Adair County, Oklahoma, which is

in Indian Country. E.O. told FBI agents that Vann was the father of her child and

that he had sexually assaulted her on numerous occasions from the time she was

9 years old. The agents approached Vann with this information and he agreed to

produce a DNA sample and advised them that he was probably the father of the

child because he had engaged in sexual intercourse with E.O. on one prior

occasion. DNA testing determined that Vann could not be excluded as the

biological father of E.O.’s child.

      Vann subsequently entered an unconditional plea of guilty to one count of

Aggravated Sexual Abuse of a Minor Child in Indian Country. Pursuant to this

plea, the United States Probation Office prepared a Presentence Report (“PSR”) in

which it calculated Vann’s offense level to be 39. This calculation was based on

                                         2
several enhancements including a four-level enhancement for use of force

pursuant to U.S.S.G. § 2A3.1(b)(1). With respect to this enhancement, the

Probation Office indicated in the PSR that “Vann held the victim’s arms to

prevent her from pulling away from him, thereby, using force.” PSR, p. 4 (¶19).

      In a letter to the Probation Office, Vann objected to the proffered factual

basis for the use of force enhancement, pointing the Probation Office’s attention

to a videotaped interview wherein E.O. did not tell a social worker that Vann had

held her arms down during any of the occasions in which he sexually assaulted

her. The government responded with its own letter to the Probation Office in

which it noted that pursuant to our holding in United States v. Reyes-Pena, 216

F.3d 1204 (10th Cir. 2000), force may be implied for these purposes, but

nonetheless defended the accuracy of the PSR. In response to these letters, the

Probation Office issued an addendum to the PSR in which it buttressed its earlier

support for the use of force enhancement by noting the standard set forth in

Reyes-Pena and citing several facts that support the inference it allows, including

Vann’s authority over E.O. as her stepfather, her young age and her report that

Vann told her not to tell anyone because if she did she would be taken away from

her mother.

      At Vann’s sentencing hearing E.O. was the only witness presented to the

district court with respect to the use of force enhancement. E.O. testified that

Vann assaulted her in various rooms throughout their home and that during each

                                         3
encounter she would lay on her back while Vann either stood in front of her or

laid on top of her. She further testified that she wanted Vann to stop because he

was hurting her, that she repeatedly told Vann that he was hurting her and that she

tried to move around to get out from under him, but was unable to do so.

      E.O. also testified on direct examination by the government that she had

tried to push Vann off of her during the attacks, but that he would hold her arms

down or otherwise physically overcome her resistance. On redirect, however,

E.O. testified that her earlier testimony regarding pushing Vann and his holding

her hands was not true, but did say that she had considered hitting Vann, but

chose not to because she did not believe it would cause him to stop. Finally, E.O.

testified that she did not report the assaults because Vann had told her that if she

did, she would be taken away from her mother and that he didn’t want to ruin his

relationship with her mother.

      After hearing the testimony of E.O. and the arguments of counsel at the

sentencing hearing, the district court found by a preponderance of the evidence

that Vann used force in sexually assaulting E.O. and that the corresponding four-

level enhancement of U.S.S.G. § 2A3.1(b)(1) was therefore appropriate. On

March 3, 2009 Vann filed a timely Notice of Appeal.

                                          II.

      When considering a district court’s application of the Sentencing

Guidelines we review legal questions de novo and findings of fact for clear error,

                                          4
giving due deference to the district court’s application of the Guidelines to the

facts. United States v. Cherry, 572 F.3d 829, 831 (10th Cir. 2009). We review

whether the facts found by the district court support the application of the

Guideline it selected de novo. Id.

      Sentencing determinations regarding relevant conduct and offense

characteristics must be proved to the district court by a preponderance of the

evidence. United States v. Gomez-Arrellano, 5 F.3d 464, 466 (10th Cir. 1993).

Vann argues that the elements of § 2A3.1(b)(1) were not so proved with respect to

his sexual assaults of E.O. and that the district court’s application of its

corresponding four-level enhancement was therefore inappropriate. In support of

this position Vann offers the following evidence: (1) the PSR’s original basis for

the enhancement is not supported in the record; (2) the physical positioning of

Vann and E.O. during the assaults did not constitute force; (3) there was no direct

testimony that E.O. submitted to the assaults based on Vann’s threat that she

would be separated from her mother if she reported them; and (4) E.O. did not

testify that Vann’s larger physical stature, his status as an adult or the fact that he

was her stepfather were factors that forced her to submit to the assaults.

      Vann’s argument is unavailing. Given our decision in Reyes-Pena, there

are ample facts in the record to support a finding that his use of force was proved

by a preponderance of the evidence. In finding that there was sufficient evidence

to support a § 2A3.1(b)(1) enhancement in Reyes-Pena, we held that the use of

                                           5
force enhancement is appropriate when the sexual contact resulted from a restraint

upon the victim such that he or she could not escape and went on to say that even

in the absence of direct evidence, “force may be inferred by such facts as

disparity in size between the victim and assailant, or disparity in coercive

power, such as that between an adult and a child.” 216 F.3d at 1211

(emphasis added).

      In the instant case, E.O. testified that Vann was on top of or facing her

during the encounters and that she tried to move around to get out from under

him, but was unable to do so. This is precisely the direct use of force described

in Reyes-Pena. 216 F.3d at 1211. Further, pursuant to our holding in Reyes-Pena

we may infer that Vann used force because as E.O.’s stepfather, he was in a

position to coerce her to submit to his assaults and the record indicates that he did

so by telling E.O. that if she reported the incidents she would be separated from

her mother. Id. Finally, the disparity in size between the two 1 and the fact that at

the time of the incidents Vann was approximately 42 to 46 years old while E.O.

was approximately 9 to 13 years old, further supports this inference. Id.

      Vann’s continued focus on the fact that there is no direct evidence that E.O.

struggled against him or that he held her down is misguided. In light of our



      1
        Vann is described in the PSR as being 5'9" tall and weighing 170 pounds.
E.O. could not recall her weight at the time of the attacks, but as a 9 to 13-year
girl she was no doubt much smaller than Vann.

                                          6
holding in Reyes-Pena the government was able to establish his use of force even

without such evidence. Simply put, the fact that E.O. recanted her testimony

regarding this subject at the sentencing hearing does not undermine our ability to

find by the preponderance of the evidence that Vann used force in sexually

assaulting her.

                                        III.

      For the reasons discussed above, we AFFIRM the district court’s

application of the four-level enhancement of U.S.S.G. § 2A3.1(b)(1).


                                                   Entered for the Court



                                                   Mary Beck Briscoe
                                                   Circuit Judge




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