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United States v. Guinn.

No. 22-5072. 12/28/2023. N.D.Okla. Judge Phillips. Aggravated Sexual Abuse by Force and Threat in Indian Country—Assault of an Intimate/Dating Partner by Strangling and Attempting to Strangle in Indian Country—US Sentencing Guidelines—Fed. R. Evid. 413—Admissibility of Prior Nonsexual Offenses.

December 28, 2023

Guinn was charged with one count of aggravated sexual abuse by force and threat in Indian Country and one count of assault of an intimate/dating partner by strangling and attempting to strangle in Indian Country. The government filed a pretrial notice of intent to introduce evidence under Fed. R. Evid. 413, asserting that evidence of Guinn’s previous sexual assaults against his former girlfriends E.B. and A.F. was admissible under Rule 413 as prior sexual offenses similar to the one charged. Guinn objected, but in a sealed order, the district court admitted the women’s testimony and their protective orders as exhibits under Rule 413. At trial, Guinn did not object to E.B.’s or A.F.’s testimony, nor to the admission of their protective orders, but Guinn’s counsel cross-examined K.F., E.B., and A.F. Guinn was convicted as charged. The presentence report calculated Guinn’s criminal history category from his five prior adult criminal convictions, which included two violations of a protective order. Because the instant offenses occurred during the term of one of his state criminal sentences, two points were added to reach seven total criminal history points. This led to an advisory US Sentencing Guidelines (USSG) range of 210 to 262 months for count one and 120 months for count two. The district court sentenced Guinn to 240 months on count one and 120 months on count two, to run concurrently. His sentence also ordered five years of supervised release on count one and three years on count two, to run concurrently.

On appeal, Guinn argued that the district court erred in admitting evidence under Rule 413 of his nonsexual (emotional and physical) abuse of his former girlfriends. Reviewing for plain error, the Tenth Circuit determined that Guinn failed to show that the alleged error affected his substantial rights because (1) E.B.’s and A.F.’s detailed testimonies, and the similarity of their testimonies to K.F.’s report of her rape, were more likely to have persuaded the jury than other evidence of Guinn’s generally abusive behavior; (2) the jury’s questions during deliberations do not show prejudice from the nonsexual evidence; (3) on cross-examination, defense counsel voluntarily developed evidence of Guinn’s nonsexual abusive behavior as a strategy to recast Guinn’s nonsexual abusive behavior as teenage antics to try to undermine the witnesses’ credibility by making their testimony appear exaggerated; and (4) even though the prosecutor referenced the nonsexual evidence during her closing, she discussed the sexual attacks just as much, if not more.

Guinn also contended that even if the district court’s ruling on the Rule 413 evidence did not amount to plain error, additional trial errors created cumulative error. Guinn asserted that the district court erred by letting the government make improper summation arguments through the prosecutor’s disparaging remarks during closing and vouching for previously undisclosed facts during closing. However, neither of these alleged errors were actual errors, so there was no cumulative error.

Lastly, the parties agreed that the district court erred in calculating Guinn’s criminal history category, which inflated his advisory USSG range. Here, Guinn’s repeated violations of E.B.’s protective order should have been counted as a single sentence because the violations did not involve an intervening arrest and his sentences were imposed on the same day. By failing to consolidate Guinn’s sentences for protective order violations, the district court incorrectly assessed two criminal history points rather than one. And this error was clear and obvious.

The judgment and convictions were affirmed. The sentence was vacated and the case was remanded for resentencing.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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