United States v. Reginald Fulton, 987 F.2d 631 (9th Cir. 1993). · Go Syfert
United States v. Reginald Fulton, 987 F.2d 631 (9th Cir. 1993). Cases Citing This Book View Copy Cite
34 citation events (12 in the last 25 years) across 9 distinct courts.
Strongest positive: United States v. Knight (pamd, 2015-06-30)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 25 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Knight
M.D. Penn. · 2015 · confidence medium
Those courts routinely describe “force” in this context, as “such physical force as is sufficient to overcome, restrain or injure a person; or the use of a threat of harm sufficient to coerce or compel submission by the victim.” United States v. Pena, 216 F.3d 1204, 1211 (10th Cir.2000) (quoting, inter alia, United States v. Weekley, 130 F.3d 747, 754 (6th Cir.1997); United States v. Fire Thunder, 908 F.2d 272, 274 (8th Cir.1990)); United States v. Lucas, 157 F.3d 998, 1002-03 (5th Cir.1998); United States v. Fulton, 987 F.2d 631, 632-33 (9th Cir.1993) (quoting United States v. Lauck, …
discussed Cited as authority (rule) United States v. Hb, Juvenile Male (2×)
9th Cir. · 2012 · confidence medium
To render the distinction between sexual abuse and aggravated sexual abuse meaningful, Section 2241(a)(1) “requires a showing of actual force.” United States v. Fulton, 987 F.2d 631, 633 (9th Cir.1993).
discussed Cited as authority (rule) United States v. Serdahl
D.N.D. · 2004 · confidence medium
United States v. Blue, 255 F.3d 609, 612 (8th Cir.2001)(no use of force under Section 2A3.1 where the only evidence was the fact the defendant was a large adult and the victim was a small child); United States v. Fulton, 987 F.2d 631, 633 (9th Cir.1993); United States v. Fire Thunder, 908 F.2d 272, 274 (8th Cir.1990).
discussed Cited as authority (rule) United States v. Todd
9th Cir. · 2002 · confidence medium
See United States v. Archdale, 229 F.3d 861, 868 (9th Cir.2000) (holding 18 U.S.C. § 2241 (a)’s 1 force requirement satisfied by defendant’s large size relative to victim, and his holding her head down, grabbing her hand above her head, and getting on top of her); United States v. Fulton, 987 F.2d 631, 633 (9th Cir.1993) (holding force requirement satisfied by defendant’s grabbing of victim and getting on top of her).
cited Cited as authority (rule) United States v. Mora-Perez
9th Cir. · 2001 · confidence medium
United States v. Fulton, 987 F.2d 631, 633 (9th Cir. 1993). .
cited Cited as authority (rule) United States v. Holiday
9th Cir. · 2001 · confidence medium
See United States v. Archdale, 229 F.3d 861, 868 (9th Cir.2000); United States v. Fulton, 987 F.2d 631, 632-33 (9th Cir.1993).
discussed Cited as authority (rule) United States v. Reyes Pena
10th Cir. · 2000 · confidence medium
We hold that the § 2A3.1(b)(1) enhancement is justified by the factual finding that the perpetrator used “ ‘such physical force as is sufficient to overcome, restrain or injure a person; or the use of a threat of harm sufficient to coerce or compel submission by the victim.’ ” United States v. Yazzie, No. 97-2201, 1998 WL 276362, at *3 (10th Cir. May 27, 1998) (quoting United States v. Weekley, 130 F.3d 747, 754 (6th Cir.1997) (quoting United States v. Fire Thunder, 908 F.2d 272, 274 (8th Cir.1990))); see also United States v. Pewenofkit, No. 98-6105, 1999 WL 169429 , at *3 (10th Cir.…
discussed Cited as authority (rule) United States v. Lucas
5th Cir. · 1998 · confidence medium
See United States v. Allery, 139 F.3d 609, 611 (8th Cir.), cert. denied, — U.S. -, 118 S.Ct. 2389 , 141 L.Ed.2d 754 (1998); United States v. Jones, 104 F.3d 193, 197 (8th Cir.), cert. denied, — U.S. -, 117 S.Ct. 2470 , 138 L.Ed.2d 226 (1997); United States v. Fulton, 987 F.2d 631, 633 (9th Cir.1993).
discussed Cited as authority (rule) United States v. Floyd Daverlin Osborne
9th Cir. · 1997 · confidence medium
See, e.g., United States v. Rose, 20 F.3d 367, 375 (9th Cir.1994); United States v. Fulton, 987 F.2d 631, 634 (9th Cir.1993); United States v. Mejia, 953 F.2d 461, 464 (9th Cir.1991); United States v. Dixon, 952 F.2d 260, 262 (9th Cir.1991); United States v. Davis, 922 F.2d 1385 , 1393 n. 8 (9th Cir.1991).
cited Cited as authority (rule) United States v. Eligio Ramirez-Morales
9th Cir. · 1997 · confidence medium
"A defendant challenging information used in sentencing must show that such information is ... false or unreliable...." United States v. Fulton, 987 F.2d 631, 633 (9th Cir.1993).
discussed Cited as authority (rule) United States v. Haynsworth
4th Cir. · 1997 · confidence medium
See, e.g., United States v. Jones, 104 F.3d 193, 197 (8th Cir.), cert. denied, 117 S. Ct. 2470 (1997); United States v. Bordeaux, 997 F.2d 419, 421 (8th Cir. 1993); United States v. Fulton, 987 F.2d 631, 633 (9th Cir. 1993); United States v. Fire Thunder, 908 F.2d 272 , 274 & n.2 (8th Cir. 1990); United States v. Lauck, 905 F.2d 15, 17-18 (2d Cir. 1990). 3
discussed Cited as authority (rule) United States v. Bernardo Ramirez-Cruz
9th Cir. · 1997 · confidence medium
"The force requirement is met when the sexual contact resulted from a restraint upon the other person that was sufficient that the other person could not escape the sexual contact." United States v. Fulton, 987 F.2d 631, 633 (9th Cir.1993).
cited Cited as authority (rule) United States v. Antonio Campos-Arrellano
9th Cir. · 1996 · confidence medium
United States v. Fulton, 987 F.2d 631, 632 (9th Cir.1993) (Guidelines); United States v. Neal, 976 F.2d 601, 602 (9th Cir.1992) (statutes).
discussed Cited as authority (rule) United States v. Carlos Sanchez-Bonilla
9th Cir. · 1995 · confidence medium
United States v. Fulton, 987 F.2d 631, 632 (9th Cir.1993) (Guidelines); United States v. Neal, 976 F.2d 601, 602 (9th Cir.1992) (statutes). 7 The Sentencing Commission has issued a policy statement recommending that sentences imposed upon revocation of supervised release run consecutively.
discussed Cited as authority (rule) United States v. Andrew Aloysius Vaile (2×) also: Cited "see"
9th Cir. · 1994 · confidence medium
United States v. Fulton, 987 F.2d 631, 633 (9th Cir.1993). "[T]he force requirement is met when the 'sexual contact resulted from a restraint upon the other person that was sufficient that the other person could not escape the sexual contact.' " Id. (quoting United States v. Fire Thunder, 908 F.2d 272, 274 (8th Cir.1990)). 5 Vaile contends that there is no evidence of force because the victim willingly participated in the sexual conduct and was not physically injured.
cited Cited as authority (rule) United States v. Paul Brumfield, Jr.
9th Cir. · 1994 · confidence medium
United States v. Fulton, 987 F.2d 631, 632 (9th Cir.1993). 4 * Minimal Planning 5 The Guidelines provide for a two-level enhancement if the conduct involved more than minimal planning.
cited Cited as authority (rule) United States v. Sherry Crosswhite Robert L. Williams
9th Cir. · 1994 · confidence medium
United States v. Fulton, 987 F.2d 631, 634 (9th Cir.1993).
discussed Cited as authority (rule) United States v. Donald Russo
9th Cir. · 1993 · confidence medium
United States v. Fulton, 987 F.2d 631, 632 (9th Cir.1993) (Guidelines); United States v. Neal, 976 F.2d 601, 602 (9th Cir.1992) (statutes). 4 Upon revocation of supervised release, a defendant may not be required to serve more than two years of imprisonment if the original offense was a Class C felony. 18 U.S.C. § 3583 (e)(3). 5 Here, it is undisputed that Russo's prior convictions were Class C felonies.
discussed Cited as authority (rule) United States v. Donald Larry Abbott
9th Cir. · 1993 · confidence medium
United States v. Fulton, 987 F.2d 631, 632 (9th Cir.1993) (Guidelines); United States v. Neal, 976 F.2d 601, 602 (9th Cir.1992) (statutes). 4 Upon revocation of supervised release, a defendant may not be required to serve more than 3 years imprisonment if the original offense was a Class B felony. 18 U.S.C. § 3583 (e)(3).
discussed Cited "see" United States v. Corwin Four Star
9th Cir. · 2014 · signal: see · confidence high
See United States v. Fulton, 987 F.2d 631, 633 (9th Cir.1993) (“[T]he force requirement is met when the sexual contact resulted from a restraint upon the other person that was sufficient that the other person could not escape the sexual contact.”) (internal quotations omitted).
discussed Cited "see" United States v. Wayka (2×) also: Cited "see, e.g."
7th Cir. · 2001 · signal: see · confidence high
See Fulton, 987 F.2d at 633 (force found where defendant grabbed victim in bear hug to minimize her ability to resist during sexual contact).
cited Cited "see" United States v. Wallace D. Archdale, U.S. Court of Appeals, Ninth Circuit
9th Cir. · 2000 · signal: see · confidence high
See United States v. Fulton, 987 F.2d 631, 633 (9th Cir.1993).
discussed Cited "see" United States v. Yazzie
10th Cir. · 1998 · signal: see · confidence high
See United States v. Fulton, 987 F.2d 631, 633 (9th Cir. 1993) (the defendant’s act of pushing down and holding the twelve-year-old victim in order to molest her constituted the use of force).
cited Cited "see" United States v. Dennison Yazzie
10th Cir. · 1998 · signal: see · confidence high
See United States v. Fulton, 987 F.2d 631, 633 (9th Cir.1993) (the defendant's act of pushing down and holding the twelve-year-old victim in order to molest her constituted the use of force).
cited Cited "see, e.g." United States v. Boyd Dean Weekley
6th Cir. · 1997 · signal: see also · confidence medium
See also United States v. Fulton, 987 F.2d 631, 633 (9th Cir.1993) (the defendant’s act of pushing down and holding the twelve-year-old victim in order to molest her constituted the use of force).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Reginald FULTON, Defendant-Appellant
92-30339.
Court of Appeals for the Ninth Circuit.
Mar 4, 1993.
987 F.2d 631
David Skeen, Port Townsend, WA, for defendant-appellant., Jerald E. Olson, Asst. U.S. Atty., Seattle, WA, for plaintiff-appellee.
Wallace, Skopil, Leavy.
Cited by 27 opinions  |  Published
WALLACE, Chief Judge:

Fulton appeals from his sentence under the Sentencing Guidelines following his guilty plea to abusive sexual contact with a minor on an Indian reservation, in violation of 18 U.S.C. §§ 1153 and 2244(a)(3). He contends that the district court erred in assigning to him a base offense level of 16 on the ground that he used force within the meaning of U.S.S.G. § 2A3.4(a). He also argues that the district court erred by refusing to depart downward based on his age and medical infirmity, and on the needs of the S’Klallam Tribe to enforce its culturally based sexual abuse program. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 18 U.S.C. § 3742(a). We affirm.

. I

On March 31, 1992, the government filed a felony information charging Fulton, a 63-year-old S’Klallam Indian, with engaging in sexual contact with a 12-year-old Indian female, in violation of 18 U.S.C. §§ 1153 and 2244(a)(3). Fulton subsequently pleaded guilty to the charges against him.

Following an evidentiary hearing, the district court determined that Fulton had used force within the meaning of U.S.S.G. § 2A3.4(a). Therefore, it set Fulton’s base offense level at 16. The district court refused to depart downward, and sentenced Fulton to 21 months’ imprisonment.

II

Fulton contends that the district court erroneously concluded that he had used force against the victim. He also contends that the district court’s finding of force must be reversed because the court relied on materially false and unreliable information. The district court’s interpretation and application of the Sentencing Guidelines are reviewed de novo. United States v. Carvajal, 905 F.2d 1292, 1294 (9th Cir.1990) {Carvajal). The court’s factual determinations are reviewed for clear error. Id. at 1295.

A.

Section 2A3.4(a)(1), the applicable provision of the Sentencing Guidelines, provides for a base offense level of 16 “if the offense was committed by the means set[*633] forth in 18 U.S.C. § 2241(a) or (b).” The means set forth in 18 U.S.C. § 2241(a) or (b) include the use of force against the victim. U.S.S.G. § 2A3.4 application note 1. Section 2A3.4 does not otherwise define the term “force.” We therefore must turn to the few judicial interpretations of the term as it is used in section 2241(a)(1), which applies to aggravated sexual abuse by force.

Section 2241(a)(1) requires a showing of actual force. United States v. Fire Thunder, 908 F.2d 272, 274 (8th Cir. 1990). This requirement “may be satisfied by a showing of ... the use of such physical force as is sufficient to overcome, restrain, or injure a person.” Id., quoting H.R.Rep. No. 594, 99th Cong., 2d Sess., 14 n. 54a, reprinted in, 1986 U.S.C.C.A.N. 6186, 6194 n. 54a. Thus, the force requirement is met when the “sexual contact resulted from a restraint upon the other person that was' sufficient that the other person could not escape the sexual contact.” Id., quoting United States v. Lauck, 905 F.2d 15, 18 (2d Cir.1990).

In making its finding that Fulton had used force, the district court considered the presentence report, a report written by Federal Bureau of Investigation Agent Gahan following his interview with the victim, two transcripts of interviews of the victim, and the testimony of social workers and Agent Gahan. This evidence is more than adequate to sustain the finding that Fulton used force sufficient to overcome or restrain his victim. In the victim’s initial recorded interview, she stated that Fulton often would push her to the floor or bed. Agent Gahan reported that Fulton “would force [the victim] to lie down, and then he would touch her ‘private parts.’ ” The victim said she would occasionally try to push Fulton away, but “he’s stronger than me.” Fulton would grab the victim in a bear hug to keep her from pushing and then engage in sexual contact. The victim stated that sexual contact occurred while Fulton “was on top of me. And I was on my stomach.” She thought she had to do it. Finally, the victim told the probation officer that Fulton “grabbed her and pushed her down, holding her on the ground. On more than one occasion [Fulton] removed her pants and underpants and placed his fingers inside her vaginal cavity. She frequently experienced pain and fear and expressed that she did not like the activity....” Based on this evidence, we hold that the district court did not commit clear error in finding that Fulton used force.

B.

Fulton also contends that one of the transcripts is false and unreliable. The transcript records the victim’s initial interview with two social workers. Relying on the testimony of Doyle, who was present at the interview, Fulton alleges that the transcript omits some questions and answers and reflects the biases of the social worker who prepared it. “A defendant challenging information used in sentencing must show that such information is (1) false or unreliable, and (2) demonstrably made the basis for the sentence.” United States v. Messer, 785 F.2d 832, 834 (9th Cir.1986), quoted in Carvajal, 905 F.2d at 1296.

Although she attended the initial interview, Doyle did not take any notes of what was said. Soon after this interview, Agent Gahan discussed the transcript with Doyle. Doyle did not inform Agent Gahan that there were any omissions. Matthews, who conducted the initial interview, and Powell, who transcribed it, both testified that the transcript did not contain any errors or omissions. Finally, Doyle testified that the portion of the transcript in which the victim stated that Fulton “[g]rabbed me. And like, um, he would make me lie on the floor and go up and down on me. I got scared and tired of it” was accurate. This evidence suggests that the transcript did not contain any material errors or omissions. Fulton has failed to prove that the information relied on by the district court was false or unreliable.

Ill

Fulton also contests the district court’s refusal to depart downward based[*634] on his age and medical infirmity, and based on the needs of the S’Klallam tribe to enforce its culturally based sexual abuse program. A court’s discretionary refusal to depart downward is not reviewable on appeal. United States v. Belden, 957 F.2d 671, 676 (9th Cir.), cert. denied, — U.S. -, 113 S.Ct. 234, 121 L.Ed.2d 169 (1992). However, “we will review de novo a district court’s legal determination that the Guidelines prevent departure if the court indicates it would otherwise have departed.” Id.

Here, the district court concluded:

[T]he issue of departure downward is so discretionary in the trial courts that I’m not making a finding that I couldn’t depart downward. What I have concluded is that I’m not going to depart downward. I don’t believe that there has been a sufficient showing under either age and infirmity or under [U.S.S.G. § 5K2.0, which Fulton contends provides authority for a downward departure based on the tribe’s sexual abuse program].

The district court clearly believed that it had the discretion to depart downward. The court also determined that departure was not warranted based on the facts of this case. We therefore decline to review the district court’s refusal to depart downward.

Finally, Fulton contends that home detention would be a more appropriate punishment than incarceration. However, based on his criminal history category, Fulton would need an offense level of 10 or less before the district court would have the authority to place him on probation or home detention. See U.S.S.G. §§ 5Bl.l(a) and 5F1.2. Because the district court properly computed Fulton’s offense level as 16, we need not reach this argument.

AFFIRMED.