                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-4464
                                  ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
      v.                              * District Court for the District
                                      * of Minnesota.
Morris Edward Benais, also known as, *
“Sonny,”                              *
                                      *
           Defendant - Appellant.     *
                                 ___________

                             Submitted: June 13, 2006
                                 Filed: August 25, 2006
                                  ___________

Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

      Morris Edward Benais appeals his conviction and sentence for sexual abuse of
a minor. We affirm the judgment of the district court.1




      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
I.    Background

        We present the evidence in a light most favorable to the verdict. On May 17,
2002, Benais was at a party at a home on the Red Lake Indian Reservation in Northern
Minnesota. He had a fight with his girlfriend and left the party with three fourteen-
year-old girls in his car. He drove the girls around for a short time before stopping his
car, giving alcohol to two of the girls, and asking the two girls with alcohol to walk
away from his car. Benais then had sexual intercourse in the car with the remaining
girl (the first victim). He then dropped off the first victim and one of the girls who
had been drinking outside the car. The other girl who had been drinking (the second
victim) passed out in the front seat of his car. When she awoke, her underpants had
been removed, she was under Benais, and he was sexually penetrating her. She tried
unsuccessfully to push him away. Benais then drove this second victim to the home
of one of his friends. There, the second victim passed out a second time and again
awoke to find herself being raped by Benais. Again, she tried unsuccessfully to push
him away. He then told her that what had happened was her fault. He drove her to
a location near her foster mother’s home and instructed her not to tell anyone what had
happened.

       When the second victim arrived at her foster mother’s home, she was arrested
by police with the Red Lake Police Department. While she was out, her foster mother
had called the police and reported her missing. The foster mother had given
permission for the second victim to be at the party, and, apparently, the second
victim’s failure to stay at the party and failure to return to her foster mother’s home
were viewed by the police as grounds for arrest as a runaway. She spent the next three
days in jail and returned to her foster mother’s home. At home, she took a shower,
changed clothes, and told her foster mother about the rapes. The foster mother took
her to a hospital for examination and preserved the underwear that the second victim
had been wearing on the night of the offense. It contained semen from Benais.



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       On February 8, 2005, a grand jury indicted Benais with two counts of
aggravated sexual abuse under 18 U.S.C. §§ 2241(b)(1) (“knowingly . . . render[ing]
another person unconscious and thereby engag[ing] in a sexual act with that other
person”) and 2241(b)(2) (“knowingly . . . administer[ing] to another person by force
or threat of force, or without the knowledge or permission of that person, . . . [an]
intoxicant . . . and thereby . . . substantially impair[ing] the ability of that other person
to appraise or control conduct; and . . . engag[ing] in a sexual act with that other
person”) and one count of sexual abuse of a minor under 18 U.S.C. § 2243(a)(1)
(“knowingly engag[ing] in a sexual act with another person who . . . has attained the
age of 12 years but has not attained the age of 16 years; and . . . is at least four years
younger than the person so engaging”). All the counts related to Benais’s crimes
against the second victim.

       On February 23, 2005, the government disclosed to Benais all the reports and
witness statements that it possessed regarding the sexual assaults of the two girls.
This information included a statement from the first victim regarding the night of the
offense and a statement from Benais’s sister regarding the fact that Benais fathered a
child with his girlfriend when the girlfriend was a minor. Prior to trial in May 2005,
Benais moved for exclusion of the first victim’s testimony based on the fifteen-day
notice requirement contained in Fed. R. Evid. 413(b) (permitting the admission of
evidence of prior sexual assaults without reference to the test of Rule 404(b) if the
government discloses the evidence at least fifteen days prior to trial). Benais argued
that it was not sufficient for the government to disclose the potential witness’s
statement, but rather, the government was required under the rule to provide specific
notice of its intent to offer the evidence under Rule 413. The district court ultimately
determined that the first victim’s statement was permissible under Rule 404(b).
Benais also challenged the use of the testimony regarding the fact that he had fathered
children with his girlfriend while she was a minor. The district court admitted the
testimony regarding the girlfriend as bias evidence and as evidence under Rule 404(b).



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      The government dismissed the count for aggravated sexual abuse under §
2241(b)(2) prior to trial. The jury failed to reach a verdict on the count for aggravated
sexual abuse under § 2241(b)(1), and, as to this count, the district court entered a
judgment of acquittal. The jury convicted Benais of the count for sexual abuse of a
minor under § 2243.

       At sentencing, the district court applied a cross reference under U.S.S.G. §
2A3.2(c)(1) based upon evidence at trial that the second victim was intoxicated and
therefore unable to appreciate the situation or physically unable to refuse to participate
in the activity. The district court applied a two-level enhancement under U.S.S.G. §
2A3.1(b)(2)(B) based on the victim’s age and a five-level enhancement under
U.S.S.G. § 4B1.5(b) based on the fact that Benais had engaged in prohibited sex with
minors on at least two other occasions and was therefore considered a repeat and
dangerous sex offender against minors. These enhancements resulted in a Guidelines
range of 188-235 months. The district court imposed the statutory maximum sentence
of 180 months.

II.   Discussion

       We review the district court’s decision to admit contested evidence for abuse
of discretion. United States v. Loveless, 139 F.3d 587, 592 (8th Cir. 1998). We
review the district court’s determination of an advisory Guidelines range de novo and
its underlying factual determinations for clear error. United States v. Garcia-Gonon,
433 F.3d 587, 591-92 (8th Cir. 2006). We review the overall sentence imposed for
reasonableness in light of all of the factors listed in 18 U.S.C. § 3553(a). United
States v. Mathijssen, 406 F.3d 496, 498 (8th Cir. 2005).




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      A.     Admission of Testimony from the First Victim

      “We may affirm on any ground supported by the record[.]” United States v.
Wintermute, 443 F.3d 993, 1000 (8th Cir. 2006). Accordingly, we need not address
the admissibility of the challenged testimony under Rule 404(b), as suggested by
Benais. Rather, we may address the admissibility of the testimony under Rule 413.

      Rule 413(a) provides, “In a criminal case in which the defendant is accused of
an offense of sexual assault, evidence of the defendant's commission of another
offense or offenses of sexual assault is admissible, and may be considered for its
bearing on any matter to which it is relevant.” Here, the first victim testified that
Benais had sex with her in the car after they left the party but before he drove off with
the second victim. This testimony qualifies as Rule 413(a) evidence because it is
evidence that Benais committed another offense of sexual assault.

       Rule 413(b) states, “the Government shall disclose the evidence to the
defendant, including statements of witnesses or a summary of the substance of any
testimony that is expected to be offered, at least fifteen days before the scheduled date
of trial[.]” This subsection of the Rule clearly requires disclosure of the evidence
itself. Benais argues that the fifteen-day-notice requirement also imposes on the
Government a separate obligation to specifically disclose or declare the intention to
rely upon Rule 413 for admissibility. There is no such requirement in the Rule, and
we reject this argument.

       We have stated that evidence found admissible under Rule 413 or its close
analog, Rule 414 (“Evidence of Similar Crimes in Child Molestation Cases”), may
still be subject to exclusion under Rule 403 if its probative value is substantially
outweighed by the danger of unfair prejudice. United States v. LeCompte, 131 F.3d
767, 769 (8th Cir. 1997). We have held, however, that Rule 403 must be applied in
this context in a manner that permits Rules 413 and 414 to have their intended effect,

                                          -5-
namely, to permit the jury to consider a defendant’s prior bad acts in the area of sexual
abuse or child molestation for the purpose of showing propensity. See id. at 770
(“This danger [that jury will use bad acts to find propensity] is one that all propensity
evidence in such trials presents. It is for this reason that the evidence was previously
excluded, and it is precisely such holdings that Congress intended to overrule.”);
United States v. Medicine Horn, 447 F.3d 620, 623 (8th Cir. 2006) (allowing Rule 413
evidence over a Rule 403 objection and stating, “the inflammatory potential inherent
in the sexual nature of prior sexual offenses cannot be considered in evaluating the
admissibility of evidence under Rule 413”).

       Applying Rule 403, we believe that the first victim’s testimony carries
probative value that is not substantially outweighed by the danger of unfair prejudice.
Here, the rape of the first victim was very close in time and occurred under
circumstances similar to the rape of the second victim. LeCompte, 131 F.3d at 769-
70; see also Medicine Horn, 447 F.3d at 623 (holding Rule 413 evidence admissible
over a Rule 403 objection where the prior sexual assaults were similar in many
respects to the crime charged, including the facts that the victims were teenage girls
assaulted after leaving a party where they had been drinking alcohol). The evidence
was probative and the only prejudice was that prejudice made admissible by Rule 413.
There was no unfair prejudice as required for exclusion under Rule 403.

      B.     Admission of Testimony About the Girlfriend

       Even if we were to assume that the testimony about the girlfriend was admitted
in error, any such error was harmless. The testimony of the first and second victims
together with corroborating evidence, including the physical evidence obtained from
the underpants, provides substantial evidence of guilt for the offense of sexual abuse
of a minor under 18 U.S.C. § 2243. As such, even assuming an error, we believe “the
substantial rights of the defendant were unaffected, and . . . the error did not influence



                                           -6-
or had only a slight influence on the verdict.” United States v. Carroll, 207 F.3d 465,
470 (8th Cir. 2000).

      C.     Application of the Cross Reference Under U.S.S.G. § 2A3.2(c)

       We note initially that Benais challenges not only application of the cross
reference, but also any use at sentencing of facts found by the judge but neither
admitted by the defense nor found by the jury. His challenge to the use of judicial
fact-finding under an advisory Guidelines regime is without merit. United States v.
Scott, 448 F.3d 1040, 1044 (8th Cir. 2006) (stating that under the advisory Guidelines
regime, sentencing judges must still make findings as to sentence-enhancing facts and
that the applicable standard is preponderance of the evidence).

       Section 2243 is the federal statutory rape provision and requires no examination
of a minor’s “consent” nor proof of violence beyond the sexual act itself. U.S.S.G.
§ 2A3.2 is the Guidelines section applicable to persons convicted of sexual abuse of
a minor in violation of 18 U.S.C. § 2243. This Guidelines section is less severe than
U.S.S.G. § 2A3.1, the section applicable to a person convicted of aggravated sexual
abuse under 18 U.S.C. § 2241 or sexual abuse under 18 U.S.C. § 2242. If the minor
victim under § 2243 is under twelve years of age or if the statutory rape involves
circumstances that meet the definitions for sexual abuse set forth in §§ 2241 or 2242,
a cross reference in U.S.S.G. § 2A3.2(c) establishes the advisory Guidelines range for
statutory rape under the harsher Guidelines section, section 2A3.1.

       Section 2242(2) requires proof that a person “knowingly . . . engages in a sexual
act with another person if that other person is . . . incapable of appraising the nature
of the conduct; or . . . physically incapable of declining participation in, or
communicating unwillingness to engage in, that sexual act.” Id. Here, the second
victim testified that she had two mixed drinks at the party. Further, she and the girl
who was not raped drank throughout the rape of the first victim and finished the bottle

                                          -7-
provided by Benais. The second victim testified regarding her own state of
intoxication and stated that she passed out twice and twice awoke to find Benais on
top of her. This evidence is sufficient to support the district court’s finding that the
second victim was “physically incapable of declining participation.” Id. at §
2242(2)(B). As such, the rape of the second victim qualified as criminal sexual abuse
under § 2242 for sentencing purposes, and U.S.S.G. § 2A3.2(c) required application
of the cross reference.

      We affirm the judgment of the district court.
                      ______________________________




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