Appellate court says 'double counting' marred sentence in Utah case

The 10th Circuit Court of Appeals said Tuesday a Utah federal court judge erred in allowing a sentencing penalty to be assessed for both physical restraint and use of force in an aggravated sexual abuse case.

The court directed U.S. District Court Judge Ted Stewart to use a correct "starting point" to resentence Cynthia Bitsuie Jones and Johnson Joe , who participated in the brutal beating and sexual assault of a woman near the Navajo reservation in December 2009.

Both Jones and Joe pleaded guilty to a single charge of aggravated sexual abuse in the case. Their pre-sentence reports recommended an increase in the offense level because force was used in the attack and the victim's serious injuries. The reports also recommended an additional increase in the offense level for Jones because she helped restrain the victim during the attack.

Attorneys from the Federal Public Defender's Office in Utah, who represented the pair, argued that adding enhancements for both use of force and for restraint amounted to "double counting." But Stewart denied those objections, even though he didn't sentence the pair as harshly as prosecutors wanted.

Using the enhancements, The pre-sentencing reports recommended Jones and Joe each serve 168 months to 210 months in prison; in Joe's case, without the enhancement the range would have been 125 months to 168 months.

In December 2010, Stewart sentenced Joe to 110 months in federal prison; in March 2011, Stewart sentenced Jones to 140 months. Stewart also gave both a life term of supervision.

The appeal challenges the judge's use of a "starting point" that considered the enhancements in determining the sentences.

The 10th Circuit said federal sentencing guidelines instruct judges to not apply an enhancement for restraint when that act is specifically incorporated in either the primary offense itself or by another enhancement. It said in previous cases the meaning of "physically restrained" had been so broadly interpreted that it is "quite a challenge to conceive of a restraint that would not be deemed 'physical' under this court's case law."

In this case, use of force and restraint are aspects of the aggravated sexual abuse, the court said.

"Quite simply, it appears to be impossible to commit the offense of aggravated sexual abuse ... without also applying force that, in our circuit, constitutes physical restraint of the victim," the court said. Joe also had appealed his life term of supervised release, but the court upheld that part of his sentence.