HOLMES, Circuit Judge.
Defendant-Appellant Harrison Begaye pleaded guilty to a felony information alleging aggravated sexual abuse of his eleven-year-old daughter, in violation of 18 U.S.C. §§ 2241(a) and 1153(a). The district court calculated a advisory Guidelines range of 210 to 262 months' imprisonment. In sentencing Mr. Begaye, however, the district court departed upward, sentencing him to twenty-five years (i.e., 300 months) in prison to be followed by lifelong supervised release. On appeal, Mr. Begaye challenges his sentence, claiming that the district court inappropriately departed upward based on the "extreme psychological injury" to his victim, as well as his "extreme
In May 2007, regional social workers, acting on a report from school officials of suspected child abuse, interviewed Mr. Begaye's six children. During these interviews, the children, who ranged in age from four to fourteen, all showed signs that they feared for their own safety, with two of them specifically expressing fear of their father. The children reported frequent physical abuse by Mr. Begaye, including whippings with horsewhips, bullwhips, sticks, and even bricks. Four of the children had visible red marks on their backs, and one had a BB pellet lodged in his nose from where his father, he claimed, had shot him. In addition, each of the children had red "pokes" on their arms from where Mr. Begaye had punished them using a horse syringe. The children were subsequently removed from Mr. Begaye's home.
Shortly thereafter, Mr. Begaye's eldest daughter, Ja.B., was interviewed by an F.B.I. agent. At that time, she acknowledged that she had been sexually abused by her father.
In the wake of these revelations, Mr. Begaye was charged in a six-count indictment for offenses arising from his abuse of Ja.B. and her five siblings. For raping Ja.B., Mr. Begaye faced three counts of aggravated sexual abuse of a child under the age of twelve, within Indian Country, in violation of 18 U.S.C. §§ 2241(c) and 1153(a). Seeking to avoid the difficulties a trial would impose on Ja.B. and her young siblings, however, the government permitted Mr. Begaye to plead guilty to a single count of aggravated sexual abuse under a different provision, 18 U.S.C. § 2241(a). Following the entry of his plea, the district court determined Mr. Begaye's sentence range under the Guidelines to be 210 to 262 months.
The provision under which Mr. Begaye was originally indicted, § 2241(c), carries a mandatory minimum sentence of 30 years' imprisonment. In contrast, the charge to which he pleaded guilty, § 2241(a), has no minimum sentence. Prior to sentencing, the government moved for an upward departure or upward variance, arguing that
Mr. Begaye filed a motion in response, arguing, inter alia, that an upward departure was not warranted for extreme conduct or extreme psychological injury because the government never produced comparative evidence of these factors. He asked the district court instead to vary downward based upon § 3553(a)'s factors to a sentence of 120 months, averring that his contrition, amenability to treatment, and low level of intelligence all militated towards a below-Guidelines sentence.
After a hearing, the district court denied Mr. Begaye's motion and granted the government's motion. The court departed upward under §§ 5K2.3 and 5K2.8. In doing so, the court stated:
R., Vol. II, Tr. at 30-32 (Sentencing Hr'g, dated Apr. 15, 2009) (emphasis added). Mr. Begaye now appeals his sentence.
On appeal, Mr. Begaye lodges three challenges to the district court's decision to depart upward. He claims, first, that the district court abused its discretion in departing upward based on Ja.B.'s alleged "extreme psychological injury" because the
The government, in contrast, insists that a "district court enjoys an institutional advantage in drawing on its own extensive experience in applying the Guidelines," and "may conclude that such departures are warranted without receiving evidence about what usually happens in other cases." Aplee. Br. at 14-15. It argues that the undisputed facts of this case gave the district court ample basis for departing under both §§ 5K2.3 and 5K2.8. It further submits that the district court's explanation for its sentence was more than adequate, noting that the court made clear that it considered both the evidence and the parties' arguments prior to making its determination. We address each of these claims in turn.
Following the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), "we review sentences for reasonableness under a deferential abuse-of-discretion standard." United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir.2008). "Reasonableness review is a two-step process comprising a procedural and a substantive component." United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir.2008) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)); accord United States v. A.B., 529 F.3d 1275, 1277 (10th Cir. 2008).
"A sentence is procedurally reasonable when the district court computes the applicable Guidelines range, properly considers the § 3553(a) factors, and `afford[s the defendant his] rights under the Federal Rules of Criminal Procedure.'" United States v. Martinez-Barragan, 545 F.3d 894, 898 (10th Cir.2008) (alternation in original) (quoting United States v. Geiner, 498 F.3d 1104, 1107 (10th Cir.2007)). "In calculating the proper Guideline range, the district court is still required to consider and apply the departure provisions in appropriate cases." United States v. Fonseca, 473 F.3d 1109, 1112 (10th Cir. 2007). The government asserts that Mr. Begaye's challenge to the district court's upward departure determination categorically presents an issue of procedural reasonableness. See Aplee. Br. at 16 ("A challenge to a district court's departure decision amounts to a claim of procedural error."). We need not test the accuracy of that assertion because Mr. Begaye only professes to raise a challenge to the procedural reasonableness of the district court's upward-departure decision. Aplt. Opening
As relevant here, we have articulated the controlling standard as follows:
United States v. Robertson, 568 F.3d 1203, 1211 (10th Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 814, 175 L.Ed.2d 571 (2009).
"In considering these prongs, `we apply a unitary abuse of discretion standard.'" Alapizco-Valenzuela, 546 F.3d at 1215 (quoting United States v. Munoz-Tello, 531 F.3d 1174, 1186 (10th Cir.2008)). However, the "degree of deference" accorded to the district court under this standard "varies depending on the `essential nature of the question presented.'" Munoz-Tello, 531 F.3d at 1186 (quoting United States v. Wolfe, 435 F.3d 1289, 1295 (10th Cir.2006)). "As a practical matter," we have observed, "this standard affords more deference to factual questions and less (if any) deference to legal ones." Alapizco-Valenzuela, 546 F.3d at 1215. As such, "this standard of review is similar to the standard we apply in determining whether the district court first arrived at the appropriate advisory Guidelines range." Id. at 1216 n. 2. In other words, it is akin to the standard under which "we review de novo the district court's legal conclusions pertaining to the Guidelines and review its factual findings . . . for clear error." United States v. Todd, 515 F.3d 1128, 1135 (10th Cir.2008); see also United States v. Angel-Guzman, 506 F.3d 1007, 1014 n. 5 (10th Cir.2007) ("Determining whether a sentence is procedurally proper—an inquiry which this Court dubs `procedural reasonableness'—employs the standards of clear error as to findings of fact and de novo review as to conclusions of law.").
Mr. Begaye's principal challenge to his sentence is that the district court erred in departing upward under § 5K2.3 because the record was inadequate to support such a departure. See Robertson, 568 F.3d at 1211 (indicating that the record must support the factual bases for departure). Section 5K2.3 allows a court to depart from the Guidelines heartland range when "a victim or victims suffered psychological injury much more serious than that normally resulting from commission of the offense." U.S.S.G. § 5K2.3 p.s. (2008) (emphasis added).
In making his argument, Mr. Begaye relies heavily on this court's holding in United States v. Okane, 52 F.3d 828 (10th Cir.1995). In Okane, we stated as a general rule that, "before a sentencing court may depart upwards under [§ 5K2.3], there must be evidence of: (1) the nature of the injury actually suffered by the victims in this case, and (2) the psychological injury `normally resulting from the commission of the offense.'" Id. at 835 (quoting U.S.S.G. § 5K2.3 p.s.). The comparative nature of § 5K2.3, we reasoned, dictated that "there must be some evidence of both of these elements in order to enable the sentencing court to determine whether the injury actually suffered is sufficiently serious, relative to the normal injury incurred, to warrant a departure." Id.
The government does not deny that it failed to offer evidence suggesting the level of psychological injury "normally" suffered by a victim of aggravated sexual assault. It contends, however, that, even after Okane, we "have never required that separate expert or comparative evidence be a part of every departure consideration" under § 5K2.3. Aplee. Br. at 19 (emphasis added). The government maintains that sentencing courts may still depart under this provision even absent specific comparative evidence when the extraordinary nature of the victim's psychological injury is "self-evident," id. (quoting United States v. Atkinson, No. 94-4229, 1995 WL 620142, at *6 (10th Cir. Oct. 16, 1995)) (internal quotation marks omitted), and argues that Mr. Begaye's position "ignore[s] the substantial discretion and deference afforded the district courts" in the realm of sentencing, id. at 21. We agree.
Although it is true that the government bears the burden of showing that the victim suffered psychological injury greater than that which "normally" results from the crime of conviction, see United States v. Zamarripa, 905 F.2d 337, 341 (10th Cir.1990), abrogated on other grounds by Williams v. United States, 503 U.S. 193, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992), "[t]here is no hard and fast rule establishing the type and quantum of evidence sufficient to meet this burden," United States v. Chatlin, 51 F.3d 869, 874 (9th Cir.1995). See United States v. Phipps, 368 F.3d 505, 515 (5th Cir.2004) (affirming a § 5K2.3 departure based on "the unrebutted statements by the victim establish[ing] that she has suffered extraordinary psychological injury"), vacated on other grounds by Gilley v. United States, 543 U.S. 1104, 125 S.Ct. 1033, 160 L.Ed.2d 1018 (2005); United States v. Oliver, 118 F.3d 562, 567 (7th Cir.1997) (finding no error in the district court's decision to depart upward under § 5K2.3 based solely on "a psychologist's report establishing the psychological damage to the victim"); United States v. Anderson, 5 F.3d 795, 804-05 (5th Cir.1993) (finding that a
Furthermore, although it certainly may be prudent for prosecutors in most instances following Okane to present comparative evidence indicating the "normal" level of psychological injury inflicted on victims of the offense of conviction, we have never held that the government must always put forth such comparative evidence before a district court may depart under § 5K2.3.
We are presented with just such a case here. The record is rife with evidence of the extreme nature of Ja.B.'s psychological injuries. At sentencing, the district court had before it multiple professional assessments —uncontested by Mr. Begaye—diagnosing Ja.B. with post-traumatic stress disorder and chronic anxiety, and indicating that she suffered from recurrent dreams and hallucinations that required medication. As a result of her trauma, Ja.B., according to one professional, "was not oriented for person, place and time." R., Supp. Vol. V, at 80 (Mental Health Assessment, dated Apr. 2, 2008). Another described her as "fearfully dependent, socially anxious, and protectively sad." Id. at 106 (Psychosocial Assessment, dated May 1, 2008).
Id. at 106-07. The report continued:
Id. at 107. The expert concluded by warning that Ja.B.'s trauma may result in a "shrinking of her personal milieu." Id. at 108.
Perhaps most significantly, these reports indicated that Ja.B.'s symptoms persisted, and in some cases worsened, over a nine-month period following her removal from her home. The experts anticipated an "[o]ngoing" length of treatment, id. at 84 (Mental Health Assessment, dated July 16, 2008), and one professional cautioned that Ja.B.'s treatment "may prove slow and arduous," id. at 108. These reports reveal a child suffering severe, debilitating, and potentially long-term psychological damage as a result of Mr. Begaye's illicit conduct. On this record, it is clear to us that the district court's finding of extreme psychological injury to Ja.B. subsumed the predicate finding that the "normal" injury of a victim of aggravated sexual assault does not include the full array of discouraging symptoms exhibited by this young girl. As a result, we cannot conclude, as Mr. Begaye requests, that the district court effectively committed clear error in finding that Ja.B. suffered greater psychological injury than normal.
Moreover, we believe the approach adopted here today is more consistent with our "appellate responsibility" in the wake of Williams v. United States, 503 U.S. 193, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992)
Mr. Begaye also makes two further arguments against the district court's decision to depart under § 5K2.3, neither of which gives us significant pause. In the first instance, Mr. Begaye suggests that, regardless of our view on the need
As noted supra, when the district court conducted its departure assessment, it had before it a number of uncontested reports by medical professionals attesting to the significant psychological injury that Mr. Begaye inflicted upon his daughter. Additionally, the very nature of Mr. Begaye's conduct provided an additional basis beyond the reports for the district court's § 5K2.3 determination. In explaining its departure decision, the district court explicitly focused on the repetitive and prolonged nature of the abuse, concluding that Mr. Begaye's conduct qualified as "unusually heinous, cruel, brutal or degrading." R., Vol. II, Tr. at 30-31. We believe, as do several of our sister circuits, that this type of extreme perpetrator conduct is very germane to whether the victim's psychological injury is "much more serious than that normally resulting from commission of the offense," as required by § 5K2.3. See, e.g., Phipps, 368 F.3d at 515-16 ("[W]e find that the district court's additional ground for departure—the extreme nature of the defendants' conduct—further supports our conclusion that the victim sustained extraordinary psychological damage."); Anderson, 5 F.3d at 805 ("We are supported in [our § 5K2.3 determination] by the last ground for departure, the heinousness of the defendants' conduct, which provides strong grounds for departure."); Pergola, 930 F.2d at 219 ("Where the psychological injury caused by the defendant results from prolonged and repeated misconduct, it is difficult to assess the effect without considering the conduct itself."); see also Mitchell, 1997 WL 325920, at *4 (relying on defendant's conduct in affirming an upward departure under § 5K2.3). Thus, Mr. Begaye's belief that the district court relied on "conclusory assertions" by the government when departing under § 5K2.3 is without basis; it is clear that the district court was referring to factors beyond the government's claims when it found that "the facts indicate [that] a psychological injury and a physical injury more serious than normal has been demonstrated to the Court in this case." R., Vol. II, Tr. at 31 (emphasis added).
As a final challenge to the district court's departure under § 5K2.3, Mr. Begaye asserts that the application of this provision was inappropriate because "the evidence that is available in the record suggests that sources other than her father's abuse, however deplorable, could account for some of Ja.B.'s symptoms." Aplt. Opening Br. at 12. In support of this contention, Mr. Begaye notes that both of Ja.B.'s parents were abusive, albeit in different ways, and that the government's own assessment of the girl indicated that a "significant family history may suggest that she is genetically or neurologically predisposed to anxiety problems." Id. at 13. Even assuming both to be true, this is
In addition to departing based on the psychological injury to Ja.B., the district court departed upward based on Mr. Begaye's extreme conduct under § 5K2.8, stating that it "[found] that the crime that was committed, looking at all of the facts and circumstances, represented a crime that was unusually heinous, cruel, brutal or degrading to the victim." R., Vol. II, Tr. at 30-31.
Echoing his argument against the application of § 5K2.3, Mr. Begaye claims that the district court's departure under § 5K2.8 is unsupported by the record because "[t]he government offered no evidence to suggest that [his] conduct in this case was more `heinous, cruel, brutal, or degrading to the victim' than that of other perpetrators of aggravated sexual abuse." Aplt. Opening Br. at 8 (emphasis added). Mr. Begaye contends, in other words, that § 5K2.8 demands that evidence be adduced
As before, Mr. Begaye mistakes what is required to support the departure at issue. Nothing in the language of § 5K2.8 compels a district court to first establish the "typical" perpetrator offense conduct for this crime before departing under this provision. See, e.g., United States v. Queensborough, 227 F.3d 149, 159 (3d Cir.2000) (noting that the district court need not establish the contours of "a typical sexual assault case" prior to departing under § 5K2.8). Rather, "[t]hat section only requires that the court determine that the conduct involved `was unusually heinous, cruel, brutal, or degrading.'" Id. (emphasis added) (quoting U.S.S.G. § 5K2.8 p.s.). This much is clear from the language of Guidelines. See United States v. Nacchio, 573 F.3d 1062, 1066 (10th Cir. 2009) ("We interpret the Sentencing Guidelines according to accepted rules of statutory construction. In interpreting a guideline, we look [first] at the language in the guideline itself. . . ." (quoting United States v. Robertson, 350 F.3d 1109, 1112 (10th Cir.2003))). Had the Sentencing Commission intended to require the type of explicit comparison Mr. Begaye advocates, it very likely would have used more specific comparative language, as it did in § 5K2.3. The Sentencing Commission could have, for instance, indicated that departure under § 5K2.8 was appropriate only where the defendant's conduct was "unusually heinous, cruel, brutal, or degrading to the victim when compared to the conduct normally involved in the commission of the offense." Significantly, it did not do so. Mr. Begaye's assertion that the government was required to present evidence establishing the "typical" perpetrator conduct in an aggravated sexual assault before the district court could depart under § 5K2.8 is simply without foundation in the Guidelines text, and thus we reject it.
Further, even reading Mr. Begaye's argument as simply asserting that there was an inadequate factual basis for the district court to determine that his conduct was "unusually heinous, cruel, brutal, or degrading," his claim would still fail. Mr. Begaye engaged in an extended campaign of abuse wherein he sexually assaulted his daughter on a regular basis for a number of years. The victimization of Ja.B. was both prolonged and unrelenting. The district court found as much, and Mr. Begaye does not now challenge this finding on appeal. In this circuit, "an upward departure may be supportable on the basis of [a defendant's] multiple sexual contacts with the same victim." Zamarripa, 905 F.2d at 341 (emphasis added); see also Chatlin, 51 F.3d at 873 ("While repetitive conduct is not specifically mentioned in the guidelines, it is an acceptable basis for an upward departure."); Anderson, 5 F.3d at 803-05 (finding no abuse of discretion when the district court departed upward under § 5K2.8 based on "the number and nature of the repeated sexual abuses imposed upon the victim" (emphasis added)). We believe that "[t]he repeated sexual assault of [a victim] is precisely the sort of `extreme conduct' contemplated by § 5K2.8." United States v. Barragan-Espinoza, 350 F.3d 978, 983 (9th Cir.2003); cf. Fed. Sent. L. & Prac. § 5K2.8 (2011) ("Departures under [§ 5K2.8] . . . often involve factors that are accounted for by the guidelines, but which are present to an unusual degree.").
The repetitive nature of Mr. Begaye's abuse supports the district court's finding that his conduct met the requirements of § 5K2.8. However, the temporally protracted nature of Mr. Begaye's criminal
Finally, Mr. Begaye asserts—for the first time on appeal—that the district court erred by failing to "explain the extent of the departure with th[e] degree of specificity necessary." Aplt. Opening Br. at 14. Mr. Begaye contends that "[i]t is not only the fact of a departure but its degree that district judges are obliged to explain," and suggests that the district court, by "ma[king] only [a] passing reference to the 18 U.S.C. § 3553(a) factors," did not properly articulate its basis for imposing its selected sentence. Aplt. Opening Br. at 14-15.
Because Mr. Begaye did not object to the district court's explanation for its departure decision at sentencing, we review this claim only for plain error. United States v. Romero, 491 F.3d 1173, 1176-78 (10th Cir.2007); see also United States v. Uscanga-Mora, 562 F.3d 1289, 1293 (10th Cir.) ("[P]lain error review obtains when counsel fails to render a contemporaneous objection to the procedural adequacy of a district court's statement of reasons at sentencing."), cert. denied, ___ U.S. ___, 130 S.Ct. 289, 175 L.Ed.2d 193 (2009). Under the rigorous plain-error standard, a defendant has the burden of showing "(1) an error, (2) that is plain, which means clear or obvious under current law, and (3) that affects substantial rights. If he satisfies these criteria, this Court may exercise discretion to correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Goode, 483 F.3d 676, 681 (10th Cir.2007) (quoting United States v. Kimler, 335 F.3d 1132, 1141 (10th Cir.2003)) (internal quotation marks omitted); accord United States v. Sprenger, 625 F.3d 1305, 1306 (10th Cir. 2010), cert. denied, ___ U.S. ___, 131 S.Ct. 1030, 178 L.Ed.2d 851 (2011).
A departure decision "will in most cases be due substantial deference, for it embodies the sentencing court's traditional exercise of discretion." Koon, 518 U.S. at 98, 116 S.Ct. 2035; accord United States v. Goldberg, 295 F.3d 1133, 1138 (10th Cir.2002). However, that discretion is not limitless. When a district court imposes a sentence outside the Guidelines range, it must state "the specific reasons for the imposition of [the] sentence." 18 U.S.C. § 3553(c)(2). There is no hard-and-fast rule dictating what a sentencing court must say by way of explaining its chosen, non-heartland sentence. However, "[d]istrict courts must expressly articulate not only the legal and factual reasons for a departure, but also the logical foundation for the degree of departure selected." Robertson, 568 F.3d at 1214; see also United States v. Proffit, 304 F.3d 1001, 1012 (10th Cir.2002) ("Simply restating the justification for upward departure `does not fulfill the separate requirement of stating the reasons for imposing the particular
Even assuming, arguendo, that the district court's explanation was insufficient, "the plain error test renders this a Pyrrhic victory." Robertson, 568 F.3d at 1215. As noted, in order to prevail under plain-error review, the appellant must also show that the error affected his substantial rights. In this context, Mr. Begaye must demonstrate that, "but for the claimed error, [his] sentence would have been . . . different." Uscanga-Mora, 562 F.3d at 1295. Mr. Begaye fails to advance any argument as to how this error affected his sentence, and thus utterly fails to carry his burden. See United States v. Vonn, 535 U.S. 55, 62-63, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) ("When an appellate court considers error that qualifies as plain, . . . the defendant who sat silent at trial has the burden to show that his `substantial rights' were affected."); accord United States v. Small, 423 F.3d 1164, 1190 n. 15 (10th Cir.2005) ("[I]n the plain-error context, . . . the defendant has the burden to show an effect on substantial rights."). Accordingly, even if the district court clearly or obviously erred in explaining the degree of Mr. Begaye's upward departure—an issue that we need not reach—Mr. Begaye's claim still fails under the third prong of the plain-error test. See Robertson, 568 F.3d at 1215.
For the foregoing reasons, we
POLLAK, District Judge, dissenting.
I join the court's opinion insofar as it affirms the District Court's imposition of an upward departure for unusually heinous conduct under § 5K2.8 of the Sentencing Guidelines. I dissent, however, from the court's affirmance of the upward departure imposed under § 5K2.3. In United States v. Okane, 52 F.3d 828 (10th Cir.1995), this court held that a § 5K2.3 upward departure may only be granted where "there [is] some evidence of: (1) the nature of the injury actually suffered by the victims in this case, and (2) the psychological injury `normally resulting from the commission of the offense.'" Id. at 835 (quoting U.S.S.G. § 5K2.3). The second of these requirements derives from the text of § 5K2.3 itself, which states that "the court may increase the sentence above the authorized guideline range" "if a victim or victims suffered psychological injury much more serious than that normally resulting from commission of the offense." U.S.S.G. § 5K2.3 (emphasis supplied); see also Okane, 52 F.3d at 835 ("Thus, there must be some evidence of both of these elements in order to enable the sentencing court to determine whether the injury actually suffered is sufficiently serious, relative to the normal injury incurred, to warrant a departure."). In this case, the government submitted no evidence of any kind concerning the psychological harms that "normally result" from conduct as monstrous as Begaye's. The imposition of an upward departure under § 5K2.3 is, accordingly, inconsistent both with the text of the Guidelines and with Okane.
To overcome this inconsistency, the majority relies on authority from outside this circuit and on United States v. Atkinson, 70 F.3d 1282 (table), 1995 WL 620142 (10th Cir. Oct. 16, 1995), an unpublished decision of this court. Atkinson, however, excused the government from presenting evidence of the psychological harm that normally results from a crime of conviction that would not, under normal circumstances, result in any serious psychological harm to the victim. Atkinson, 1995 WL 620142, at *1, *6 (reviewing sentence imposed for the
U.S.S.G. § 5K2.3 p.s.
In Atkinson, the defendant appealed an upward departure under § 5K2.3, claiming, as Mr. Begaye does here, that the district court erred in finding that his victims had suffered extreme psychological injury because it failed to first make a finding as to what constituted "normal" psychological injury for the victim of the offense of conviction—specifically, the transmission of threats in interstate commerce. In departing, the district court had relied on statements by the victims to the effect that, due to Mr. Atkinson's threats, they had become "prisoners in [their] own homes," they suffered from "paralyzing fear," and had forsaken any hope of future intimate relationships. Id. at *5. One even went so far as to plan suicide, hoping that Mr. Atkinson would "settle for [her] death and leave [her] mother, two daughters, and granddaughter alone." Id.
In affirming the district court's departure, we recognized that Okane established only a "general" rule, and that "we have never required empty form when the substance is evident":
Id. at *6. We then concluded that it was clear that implicit within the district court's holding was the finding that the injury that "normally" results from the crime of conviction "does not include the entire panoply of plans for suicide, being a prisoner in one's home, foreclosure from new relationships, ongoing medical care and medication, irrevocable lifestyle changes attested to by neighbors, friends, and a therapist, and more." Id.
We find the logic in Atkinson compelling, and it guides much of our decision here.
U.S.S.G. § 5K2.8 p.s.
Although the government may have advocated for a departure based on the use of force and the victim's young age, the district court did not rely on those factors when issuing its sentence. Rather, the district court departed because Mr. Begaye "repeatedly had improper sexual intercourse with his young daughter over . . . a period of years." R., Vol. II, Tr. at 31 (emphasis added).