                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         MAR 29 1999
                      UNITED STATES COURT OF APPEALS

                                    TENTH CIRCUIT                    PATRICK FISHER
                                                                              Clerk


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 vs.                                                    No. 98-6105
                                                  (D.C. No. CR-97-187-L)
 JOEY MICHAEL PEWENOFKIT,                               (W.D. Okla.)

           Defendant-Appellant.


                                 ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.


       Appellant Joey Michael Pewenofkit pled guilty to one count of sexual abuse

of a minor between the ages of 12 and 16 committed within Indian country in

violation of 18 U.S.C. §§ 1153 and 2243(a). At sentencing, and after finding that

Mr. Pewenofkit used force during his assault of the minor victim, the district

court applied a cross-reference under the sentencing guidelines for statutory rape,

USSG § 2A3.2(c), which directs the application of USSG § 2A3.1 if the offense

involved criminal sexual abuse. In making this determination, the court heard


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
testimony from an FBI special agent who described the victim’s account of the

assault, a counselor, a pediatrician, and the victim’s mother. The victim did not

testify. The court sentenced Mr. Pewenofkit to a 99 month prison term.

      Mr. Pewenofkit appeals his sentence, alleging that: (1) he was denied his

Sixth Amendment right to confront his accuser when the victim’s unsworn

statement was used to justify a cross-reference to a more punitive guideline; and

(2) the district court erred in finding that the defendant used “force” in the

commission of the crime. We have jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a) and affirm.



                          I. Right to Confront at Sentencing

      Mr. Pewenofkit first argues that he was denied his Sixth Amendment right

to confront and cross-examine his accuser when the statement of the non-

testifying victim was used to cross-reference to a more punitive guideline. We

review de novo the district court's legal conclusions regarding the application and

interpretation of the sentencing guidelines, while the district court's factual

determinations are reviewed for clear error. United States v. Henry, 164 F.3d

1304, 1310 (10th Cir. 1999).

      Initially, we note that this court has held that the Confrontation Clause does

not apply at sentencing under the Sentencing Guidelines. See United States v.


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Beaulieu, 893 F.2d 1177, 1180 (10th Cir. 1990). In fact, the Guidelines allow a

sentencing court to consider all relevant information “without regard to its

admissibility under the rules of evidence applicable at trial, provided that the

information has sufficient indicia of reliability to support its probable accuracy.”

USSG § 6A1.3(a); see 18 U.S.C. § 3661; Beaulieu, 893 F.2d at 1180 (“[T]he

Guidelines were not intended to place new restrictions on the sources of

information available to the sentencing judge.”). Mr. Pewenofkit argues that

because sexual abuse victims’ statements are inherently unreliable, he is entitled

to confront and cross-examine the victim. However, he has presented no specific

evidence or grounds to demonstrate that the victim’s statement in this case was

unreliable. The fact that his crime involved sexual abuse is not alone enough to

declare the victim’s statement unreliable given the standard of considering all

relevant evidence at sentencing. We cannot say that the statement lacks the

necessary “indicia of reliability to support its probable accuracy,” USSG. §

6A1.3(a). Thus, the district court did not commit clear error in considering the

testimony.

      Mr. Pewenofkit contends that his case falls under a “due process” exception

to the rule that there is no right to confront or cross-examine witnesses at

sentencing. He maintains that this exception applies because the cross-reference

used at sentencing led to an exceedingly disproportionate punishment to what he


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otherwise would have received. He argues that the “‘forcible rape’ conduct

essentially became an element of the offense for which he was being punished.”

Aplt. Br. at 12-13. To support this argument, Mr. Pewenofkit relies on Specht v.

Patterson, 386 U.S. 605 (1967), and United States v. Wise, 976 F.2d 393 (8th Cir.

1992) (en banc).

      The Supreme Court in Specht held that a defendant is entitled to full due

process, including the right to confront witnesses, when a sentencing proceeding

results in an additional criminal conviction. See Specht, 386 U.S. at 610. Mr.

Pewenofkit’s argument fails, however, because his sentencing did not actually or

in effect result in an additional criminal conviction. In Specht, the defendant was

subjected to a sentence of up to life imprisonment after being convicted of an

offense with a statutory maximum sentence of ten years. See id. at 607. Here, the

sentence of 99 months given to Mr. Pewenofkit, even with the cross-reference,

did not exceed the fifteen year statutory maximum for the crime to which he pled

guilty. See 18 U.S.C. §2243. In addition, Mr. Pewenofkit was given notice of the

enhancement before he pled guilty and before sentencing.

      In Wise, the Eighth Circuit, although upholding the sentence imposed,

noted that “in certain instances a sentence may so overwhelm or be so

disproportionate to the punishment that would otherwise be imposed absent the

sentencing factors mandated by the Guidelines that due process concerns must be


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addressed.” Wise, 976 F.2d at 401. Mr. Pewenofkit contends that his sentence of

99 months is exceedingly disproportionate and, therefore, as suggested by the

Wise court, full due process attaches. We acknowledge that the cross-reference

led to a significant increase in sentencing. However, the circumstances and

claims in this case do not warrant a departure from our traditional sentencing law.

First, Mr. Pewenofkit was given notice of the cross-reference at the plea hearing,

in the Pre-Sentence Report, and at the sentencing hearing. Second, the

government called additional witnesses to corroborate the victim’s statement and

emotional state. Furthermore, Mr. Pewenofkit had a fair opportunity to otherwise

challenge the evidence presented. Given the preponderance of the evidence

standard applicable to sentencing determinations, Mr. Peweonfkit had a fair

opportunity to put the government to its burden. Therefore, he was afforded all

process due.

      We do not find Mr. Pewenofkit’s reliance on Specht or Wise persuasive,

and decline to follow his proposed reasoning. The district court did not deny Mr.

Pewenofkit due process in considering the FBI agent’s testimony regarding the

victim’s unsworn account of the crime.



      II. Sufficiency of the Evidence to Support a Finding of Use of “Force”

      Mr. Pewenofkit’s second argument is that the information before the


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district court at sentencing did not support the court’s finding that Mr. Pewenofkit

used “force” to commit the rape. We uphold the district court’s factual findings

unless they are clearly erroneous, viewing the evidence and drawing inferences

therefrom in the light most favorable to the court’s determination. See United

States v. Cruz, 58 F.3d 550, 553 (10th Cir. 1995); Beaulieu, 893 F.2d at 1181-82.

      The Guideline for sexual abuse of a minor, USSG § 2A3.2, provides a base

offense level of fifteen and contains the following cross reference: “If the

offense involved criminal sexual abuse or attempt to commit criminal sexual

abuse (as defined in 18 U.S.C. § 2241 or § 2242), apply § 2A3.1 . . . .” USSG §

2A3.2(c). The guideline for criminal sexual abuse, § 2A3.1, provides for a base

offense level of twenty-seven. See id. § 2A3.1(a). Criminal sexual abuse

requires a showing of actual force. See United States v. Lucas, 157 F.3d 998,

1002 (5th Cir. 1998).

      A defendant uses force . . . when he employs restraint sufficient to
      prevent the victim from escaping the sexual conduct. Furthermore,
      force can be implied from a disparity in size and coercive power
      between the defendant and his victim, as for example when the
      defendant is an adult male and the victim is a child.

Id. (citations omitted); see also United States v. Allery, 139 F.3d 609, 611 (8th

Cir.), cert. denied, 118 S. Ct. 2389 (1998); United States v. Weekley, 130 F.3d

747, 754 (6th Cir. 1997).

      At the sentencing hearing, the district court heard evidence from four


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witnesses: an FBI special agent who described the victim’s account of the

assault, a counselor affiliated with a local sexual assault program, a pediatrician

certified as an expert in child sexual abuse and examination, and the victim’s

mother. The testimony revealed that Mr. Pewenofkit grabbed the victim by both

shoulders when she tried to get away, and forced her to lay on the bed. See IV R.

at 65. Mr. Pewenofkit held the victim down against her will and the victim was

unable to get him off of her. See id. The assault was painful for the victim,

ripping her hymenal tissue and causing bleeding. See id. at 43, 66. In addition,

Mr. Pewenofkit was twenty years old at the time of the assault while the victim

was fifteen.

      A district court may rely on any information at sentencing so long as it has

“sufficient indicia of reliability to warrant its use at sentencing.” Beaulieu, 893

F.2d at 1181; see 18 U.S.C. § 3661; USSG § 6A1.3(a). The government need

only prove the use of force by a preponderance of the evidence. After carefully

reviewing the record, we cannot say that the district court was clearly erroneous

in finding that Mr. Pewenofkit used force in the commission of the crime.

      AFFIRMED.

                                        Entered for the Court

                                        Paul J. Kelly, Jr.
                                        Circuit Judge



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