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United States v. Jim

United States Court of Appeals, Tenth Circuit

May 12, 2015

UNITED STATES OF AMERICA, Plaintiff - Appellee/Cross-Appellant,
DERRICK IVAN JIM, Defendant - Appellant/Cross-Appellee

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Appeal from the United States District Court for the District of New Mexico. (D.C. No. 1:10-CR-02653-JB-1).

John T. Carlson, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with him on the briefs), Denver, Colorado for Defendant Derrick Jim.

Mark T. Baker, Assistant United States Attorney (Kenneth J. Gonzales, United States Attorney, with him on the briefs), Albuquerque, New Mexico for Plaintiff United States of America.

Before BRISCOE, Chief Judge, EBEL, and KELLY, Circuit Judges.


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EBEL, Circuit Judge.

A jury convicted Derrick Jim of aggravated sexual abuse occurring in the Navajo Nation. Jim initially pled guilty to this offense, but later withdrew his plea and proceeded to trial. On appeal, Jim claims that the trial court erred when it let the Government present to the jury evidence of the admissions he made in his plea agreement and during his plea colloquy. Ordinarily, Rule 410 of the Federal Rules of Evidence precludes the Government from using such evidence against a defendant. But Jim waived his Rule 410 protections as part of the plea agreement underlying his (now withdrawn) guilty plea. We conclude that the district court did not err in enforcing Jim's Rule 410 waiver by allowing the Government to present to the jury Jim's prior admissions of guilt. We, therefore, AFFIRM Jim's convictions.

In its cross-appeal, the United States challenges Jim's 360-month prison sentence, arguing that the district court erred in calculating Jim's offense level under the sentencing guidelines. We agree that the district court erred when it held that, in determining whether a two-offense-level enhancement under U.S.S.G. § 2A3.1(b)(4)(B) for causing the victim serious bodily injury applied in Jim's case, the court could not consider any injuries directly resulting from the sexual abuse for which Jim was convicted. Thus, we remand for resentencing so the district court can determine, in the first instance, whether that enhancement under § 2A3.1(b)(4)(B) is warranted in this case and, if so, the impact of that enhancement on Jim's sentence.

Therefore, exercising jurisdiction under 18 U.S.C. § 3742(a) and (b), and 28 U.S.C. § 1291, we AFFIRM Jim's convictions, but REMAND for resentencing.


The evidence, viewed in the light most

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favorable to the jury's verdict,[1] established the following: On August 12, 2010, K.T. had a get-together with a few friends at her home located in the Navajo Nation. One of K.T.'s friends invited Jim. During the evening, those at the get-together drank alcohol and socialized under K.T.'s carport and in her driveway.

After 1:00 a.m., K.T., feeling ill from drinking too much, went inside the house and laid down on a couch in her living room. Jim followed her inside; locked the door to the carport and turned off the interior lights; pulled K.T. off the couch, causing her to hit her head on the floor; dragged her by her ankles down the hallway and into her bedroom; and, while K.T. fought him, raped her vaginally and anally with his penis. Afterwards, Jim dragged K.T. into the laundry room, where she was able to fight him off. He then fled from the house through the exterior laundry room door.

While all of this was occurring, K.T.'s friends, upon discovering that K.T.'s house was locked and dark, knocked on the door leading from the carport to the kitchen, rang the doorbell, and called K.T.'s cell phone, to no avail. After Jim fled, K.T. crawled to the carport door, where her friends were knocking, and opened the door. She was naked from the waist down, bleeding, and crying hysterically. When she was eventually able to speak, K.T. told her friends that Jim had raped her.

As a result of these events, the United States charged Jim with one count of aggravated sexual abuse--vaginal intercourse by force, in violation of 18 U.S.C. § § 2241(a)(1), 2246(2)(A). Jim initially pled guilty to that charge, but the district court later granted Jim's request to withdraw his guilty plea and proceed to trial. The Government then added a second charge: aggravated sexual abuse--anal penetration by force. A jury convicted Jim of both charges, and the district court imposed concurrent 360-month sentences.[2]

On appeal, Jim challenges his convictions, arguing that the district court erred when, contrary to Rule 410, it allowed the Government to present to the jury evidence that he admitted committing the charged offenses when he initially pled guilty. We reject this argument because Jim validly waived the usual protection Rule 410 provides against the Government's use of this evidence at trial. In a cross-appeal, the Government contends that the district court erred in calculating Jim's offense level under the sentencing guidelines. We agree, and remand for resentencing.


I. Jim's challenge to the enforcement of his Rule 410 waiver

Rule 410 provides that evidence of " a guilty plea that was later withdrawn" or

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statements that a defendant made when he entered a guilty plea, later withdrawn, are not admissible against that defendant. Fed.R.Evid. 410(a)(1), (3)[3]; see United States v. Mitchell, 633 F.3d 997, 998, 1000, 1002-03 (10th Cir. 2011). But a defendant can waive his Rule 410 protections. See United States v. Mezzanatto, 513 U.S. 196, 197, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995).

In this case, Jim waived those protections as part of his initial plea agreement:

Except under circumstances where the Court, acting on its own, fails to accept this plea agreement, the Defendant agrees that, upon the Defendant's signing of this plea agreement, the facts that the Defendant has admitted under this plea agreement as set forth above, as well as any facts to which the Defendant admits in open court at the Defendant's plea hearing, shall be admissible against the Defendant under Federal Rule of Evidence 801(d)(2)(A) [providing that an opposing party's statement is not hearsay] in any subsequent proceeding, including a criminal trial, and the Defendant expressly waives the Defendant's rights under Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410 with regard to the facts the Defendant admits in conjunction with this plea agreement.

(R. v.1 at 30, ¶ 10(c).) In light of Jim's Rule 410 waiver, the district court allowed the Government to introduce evidence during his trial of the admissions Jim made in his plea agreement and during his plea colloquy. United States v. Jim, 839 F.Supp.2d 1157, 1158 (D. N.M. 2012).

On appeal, Jim does not contend that he unknowingly or involuntarily waived Rule 410's protections. Instead, he claims that his Rule 410 waiver was unenforceable because it was part of an overall plea agreement that was itself not knowing and voluntary. More specifically, Jim contends that his guilty plea, which was part of his plea agreement, was not knowing and voluntary because he did not realize that, by pleading guilty, he was foregoing a trial. " If a guilty plea is not knowing and voluntary, it is void, and any additional waivers in the plea agreement generally are unenforceable." Mitchell, 633 F.3d at 1001 (citation omitted); see also United States v. Rollings, 751 F.3d 1183, 1186 (10th Cir.), cert. denied, 135 S.Ct. 494, 190 L.Ed.2d 362 (2014). To determine whether Jim's Rule 410 waiver is enforceable in this case, therefore, we consider whether Jim knowingly and voluntarily entered his plea agreement and guilty plea, which guilty plea the district court later allowed him to withdraw. Because Jim failed to show ...

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