Submitted October 9, 2014.
Appeal from United States District Court for the District of North Dakota - Fargo.
For United States of America, Plaintiff - Appellee: Janice Mae Morley, U.S. ATTORNEY'S OFFICE, District of North Dakota, Fargo, ND.
For Erick McKay, Defendant - Appellant: Richard J. Henderson, FEDERAL PUBLIC DEFENDER'S OFFICE, Fargo, ND.
Erick McKay, Defendant - Appellant, Pro se, Oxford, WI.
Before RILEY, Chief Judge, WOLLMAN and BYE, Circuit Judges.
WOLLMAN, Circuit Judge.
After Erick McKay pleaded guilty to two counts of abusive sexual contact with a child under twelve, in violation of 18 U.S.C. § 2244(a)(1) and (5), the district court imposed a sentence of 360 months' imprisonment--an upward departure from the parties' joint recommendation of a 240-month sentence. McKay appeals, arguing that his sentence is substantively unreasonable. We affirm.
McKay was originally indicted with one count of aggravated sexual abuse of a child by force, 18 U.S.C. § 2241(a), and one count of aggravated sexual abuse of a child under twelve years of age, id. § 2241(c). The charges involved the granddaughter of the woman with whom McKay was living on the Spirit Lake Indian Reservation. McKay eventually entered into a plea agreement, he pleaded guilty to two counts of abusive sexual contact, and the original indictment was dismissed. The plea agreement recited the factual basis for the
guilty plea, namely, that McKay " knew the victim . . . had not attained 12 years of age" and that on two occasions between April 14, 2011, and June 11, 2012, " he did by threat and use of force, cause [the victim] to touch her hand to [his] penis . . . with the intention to arouse and gratify his sexual desire." McKay also acknowledged in the plea agreement that because of a 2002 state conviction for the murder of his seven-week-old son, " he is an offender against children who is required under state law to register his address and not have contact with children without authorization from his probation officer." The plea agreement included a joint sentencing recommendation of 240 months' imprisonment, which represented an upward departure from the anticipated advisory sentencing range calculated under the U.S. Sentencing Guidelines Manual (Guidelines). The plea agreement specifically informed McKay that the district court was not a party to the agreement, was not bound by the agreement, could depart from the advisory Guidelines range, and could impose other adjustments not described in the agreement.
At the change-of-plea hearing and in a written notice filed the same day, the district court informed the parties that it was considering an upward departure from the Guidelines range under § 5K2.0(a)(1)(B). The court reasoned that the upward departure was appropriate because McKay's case was " atypical" and his " history of offending against children," including the murder of his infant son, were aggravating circumstances not adequately taken into consideration by the Guidelines. The district court also specifically advised the parties that it intended to consider all of the 18 U.S.C. § 3553(a) sentencing factors as required in calculating McKay's sentence. The court invited the parties to submit papers addressing the sentencing and departure issues, but neither party did so.
A Presentence Investigation Report (PSR) was prepared. McKay objected to several statements therein, and the PSR was revised in accordance with his objections. The revised PSR calculated an advisory Guidelines range of 100 to 125 months' imprisonment. The criminal history section described McKay's 2002 state conviction for the murder of his infant son, along with his history of repeated probation violations, his repeated failure to comply with state requirements that he register as an ...