United States of America v. David W. Lacouture

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-1238
UNITED STATES OF AMERICA,
Appellee,
v.
DAVID W. LACOUTURE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Lynch, Thompson, and Kayatta,
Circuit Judges.
Joshua R. Hanye on brief for appellant.
Eric S. Rosen, Assistant United States Attorney, and Carmen
M. Ortiz, United States Attorney, on brief for appellee.
August 31, 2016

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THOMPSON, Circuit Judge. In violation of his probation
and federal and state laws that required him to register as a sex
offender, Defendant-appellant David W. Lacouture fled
Massachusetts for Missouri, where he lived using a fake identity
until he was accused of molesting a neighbor's child and arrested.
The case before us concerns only Lacouture's sentence for the crime
of failing to register as a sex offender, to which he pled guilty.
At sentencing, the district court applied an eight-level
enhancement on the basis of the Missouri charge, which Lacouture
argues was error. Because the record does not reveal whether the
district court found reliable the out-of-court statement upon
which the prosecution primarily relies, we remand this matter for
clarification of whether the district court so found, and why.
BACKGROUND 1
A. The Underlying Offense
In September 2010, Lacouture pled guilty in Barnstable
Superior Court in Massachusetts to one count of indecent assault
and battery on a minor. For his crime, Lacouture received a two-
and-a-half year sentence -- eighteen months of which was a term of
1 Because Lacouture's conviction resulted from a guilty plea,
we draw the facts from the plea agreement, the Presentence
Investigation ("PSI") report, other documents in the sentencing
record, and the transcript of the sentencing hearing. See United
States v. Ocasio-Cancel, 727 F.3d 85, 88 (1st Cir. 2013).

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imprisonment and the remainder of which was to be served on
probation.
On June 2, 2011, after completing the carceral portion
of his sentence, Lacouture was released on probation, and was
required by both federal and state law to register with the
Massachusetts Sex Offender Registry Board ("SORB"). See 42 U.S.C.
§ 16913(b); Mass. Gen. Laws ch. 6, § 178F. Because Lacouture was
homeless at the time of his release, he was required to verify his
SORB registration by appearing in person at the local police
department every 30 days, see Mass. Gen. Laws ch. 6, § 178F1/2,
and, as is required of all sex offenders, to notify SORB of any
changes in address, see 42 U.S.C. § 16913(c); Mass. Gen. Laws ch. 6
§ 178H(a).
B. Unlawful Wayfaring
Alas, at some point after June 17, 2011, Lacouture left
Massachusetts without letting anyone know. At first, the state
court issued a warrant for Lacouture for violation of his probation
requirements. Then, when thirty days passed and Lacouture did not
resurface, the court issued a second warrant, this time with a new
charge for failure to register as a sex offender.
While his disappearance was being investigated,
Lacouture managed to wind up far away in Joplin, Missouri. There,
he found some work, took up the alias "Damon Hunter" and nickname
"Rhino," and lived for a time as a fugitive under that assumed

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identity. This new life was abruptly interrupted on April 2, 2013,
when Lacouture was arrested for child molestation.
Some weeks prior to Lacouture's arrest, Lacouture's
eight-year-old neighbor had been found masturbating by her aunt.
When the aunt asked the girl about it, the girl told her aunt that
"Rhino" had touched her inappropriately and done to her "other
things we are not supposed to do." The aunt told the girl's
mother, and the mother alerted the Joplin police on March 16, 2013.
A Sexual Abuse Investigative Interview ("SAIN") was
conducted a few days later. 2 When asked about the incident, the
child recounted that, sometime before Thanksgiving but after the
start of the school year in 2012 (when she was seven years old),
she had gone over to Lacouture's house alone to pet his cat, and
Lacouture had put his hands down her pants and touched the area
around her vagina, which had made her feel uncomfortable. She
also told the interviewer that she had run home immediately
afterward and informed her mother. A medical exam detected no
physical evidence of the alleged 2012 abuse.
The arrest followed shortly thereafter. During post-
arrest questioning, Lacouture recalled he had picked the child up
off the ground, and in doing so, had put his arm under her crotch
2 The interview appears to have been conducted at the Joplin
Police Department by a Missouri Sexual Assault Investigative
Network interviewer. The interview was video-recorded, but the
sentencing record contains only a transcript of the interview.

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area, but denied ever having touched the girl sexually. (The case
related to this arrest, by the way, remains pending in Missouri at
the time of this opinion's publishing.) Lacouture also admitted
that "Damon Hunter" and "Rhino" were aliases, and that he had been
living in Joplin unlawfully and in violation of his sex offender
registration requirements.
C. The Case at Hand
This brings us to our present case. Lacouture was
transported back to Massachusetts and eventually indicted in
federal court for one count of failure to register as a sex
offender, to which he pled guilty.
A PSI report was prepared. Because Lacouture's
underlying state conviction qualified him as a Tier II sex
offender, the PSI report assigned a base offense level of fourteen.
See U.S.S.G. § 2A3.5(a)(2). To this, the PSI report added the
eight-level enhancement for commission of a sex offense against a
minor while in failure-to-register status, on the basis of the
evidence that Lacouture had molested his neighbor's child in
Joplin. See id. § 2A3.5(b)(1)(C). The PSI report then subtracted
three levels for acceptance of responsibility, resulting in a total
offense level of nineteen. Based on Lacouture's criminal history
category of VI, this put the guideline range at 63 to 78 months.
Lacouture objected, among other things, to the PSI
report's recommendation that the district court apply an eight-

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level enhancement on the basis of the unproven Joplin allegations,
which he claimed were false. The district court disagreed, finding
that the eight-level enhancement applied, and adopted the PSI
report's guideline range. The judge sentenced Lacouture to the
highest guideline sentence: 78 months (or 6 years and 6 months) of
imprisonment. Lacouture timely appealed.
DISCUSSION
Lacouture's sole argument on appeal is that the district
court erred in applying the eight-level enhancement in its
guideline calculation because the court lacked sufficient evidence
to find that he had committed a sex offense against a minor. A
district court's error in calculating the guideline range requires
resentencing where it "affects or arguably affects the sentence
imposed." United States v. Ramos-Paulino, 488 F.3d 459, 463 (1st
Cir. 2007).
We review a district court's sentencing factor findings
for clear error. United States v. Morgan, 384 F.3d 1, 5 (1st Cir.
2004). 3 "It is the government's burden at sentencing to prove
3 Lacouture argues that his appeal involves only pure legal
questions and thus asks us to apply de novo review, but his
challenge goes to the district court's factual finding that
Lacouture committed a sex offense while on failure-to-register
status, and therefore the clear error standard applies. See United
States v. Savarese, 686 F.3d 1, 15 (1st Cir. 2012) ("[W]here, as
here, a defendant challenges the factual predicate supporting the
court's application of a sentencing enhancement, 'we ask only
whether the court clearly erred in finding that the government
proved the disputed fact by a preponderance of the evidence.'"

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sentencing enhancement factors by a preponderance of the evidence,
and a district court may base its determinations on 'any evidence
that it reasonably finds to be reliable.'" United States v.
Almeida, 748 F.3d 41, 53 (1st Cir. 2014) (quoting United States v.
Walker, 665 F.3d 212, 232 (1st Cir. 2011)).
The government urges us to find that it met its burden
here because the SAIN transcript, in which the child herself gave
an account of the incident, gave the sentencing judge an adequate
basis to find that Lacouture had molested the child. The
government argues that the child's accusations are consistent with
two prior convictions in Lacouture's criminal history (for
indecent assault and battery and for indecent exposure), which
both involved children under the age of fourteen. 4 To the extent
that further corroboration of the child's account was necessary,
the government continues, it was supported by police reports
containing both the mother's original statements to the police --
that the aunt had discovered the child masturbating and that the
child had told her aunt, "Rhino used to do it to me as well as
(quoting United States v. Luciano, 414 F.3d 174, 180 (1st Cir.
2005))).
4 Although propensity evidence is normally inadmissible in
criminal trials, it is admissible in cases involving child
molestation, see Fed. R. Evid. 414 ("In a criminal case in which
a defendant is accused of child molestation, the court may admit
evidence that the defendant committed any other child
molestation."), and, in any case, the government offers the
convictions here for purposes of sentencing.

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other things we are not supposed to do" -- and Lacouture's own
statements during police questioning that he recalled picking the
child up off the ground and placing his arm under her crotch area.
But here is where we are stuck. Some of the very police
reports that the government claims are corroborative appear at
times to undermine, rather than verify, the child's account. And
the district court left unaddressed the question of whether, in
light of these discrepancies, the child's interview statements are
sufficiently reliable to support the conclusion that the alleged
molestation occurred. We explain.
First, during the SAIN, the child told the interviewer
that immediately following the incident, she had gone home and
told her mother what had happened, and that her mother had told
her "never to go back over to his house again." But according to
the initial police report, the mother told the police that she
learned of the incident from the child's aunt, which was not until
March 2013.
Additionally, when the interviewer asked the child how
many different times Lacouture had inappropriately touched her,
the girl responded that it had happened only "[o]nce," and when
the interviewer asked whether he had ever touched "any other places
on [her] body," she answered, "Nope." But, conflictingly, in the
statement the child allegedly made to her aunt -- "Rhino used to
do it to me as well as other things we are not supposed to do" --

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she seems to have suggested both that there was more than one
instance of molestation, and that there may have been more than
one kind of inappropriate act.
Furthermore, when the interviewer asked the child
whether "anybody else" had ever "touched . . . any places on [her]
body" that they "weren't supposed to touch," the child answered,
"No." But during a post-SAIN interview, the child's mother told
the police that the child had been molested previously by a
grandfather.
Finally, several months before the SAIN, the mother
reported to the police that the child had told her she had been
"touched" by someone across the street, but withdrew the
accusations when the child then "told [the mother] that she [had]
lied about being touched." The child's mother told the police
during her post-SAIN interview that, while she thought the child
was likely telling the truth about this incident now, she "was not
sure" whether she was lying again. 5
5 Lacouture maintains that the present incident, of which he
stands accused, and this prior incident of sexual assault, about
which the girl admitted she lied, are, in fact, one and the same,
as both allegedly occurred "several months" before March 2013 and
involved a "neighbor." The government agrees that this is a
"plausible inference," but argues that, if anything, this shows
the child was consistent in her story, even if she retracted her
first report of it, perhaps out of embarrassment or fear. For
reasons we explain in a moment, we leave it for the district court
to weigh these competing inferences.

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We do not assert that the dissonance between the SAIN
transcript and the police reports requires that the child's account
be disbelieved. But we do conclude that we ought go no further in
our review because we cannot tell from the sentencing judge's
conclusory finding whether he found the child's SAIN statement
reliable, hence admissible, and why. In ruling on this issue, the
judge stated simply: "[T]he Court does believe, under the reduced
standard by which it is to determine sentencing factors, a
preponderance of the evidence[,] . . . that, while this Defendant
was on failure-to-register status, he committed a sex offense[.]"
"[I]n other words," the judge went on, "the conduct is sufficient
on the evidence . . . that the Defendant was in commission of
conduct that was in violation of a . . . sex-conduct statute, and
therefore . . . the eight-level increase is warranted." It is not
clear from this sparse discussion whether the sentencing judge
found the child's interview statements to be reliable, and if so,
how he came to his conclusion despite the apparent inconsistencies.
As a result, we cannot tell whether the judge clearly erred in
finding that the sentencing enhancement applied on the basis of
the evidence. 6
6 We are mindful that recounting a sex crime can be a traumatic
experience that may make telling a linear story difficult, and
that this hardship is compounded when the victim is a child.
Nonetheless, a sentencing enhancement cannot be applied unless the
government meets its burden to prove the predicate fact or facts
by a preponderance of the evidence.

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The stakes of a potentially erroneously calculated
guideline range in this case are clear. The district court imposed
a top-of-the-range sentence of 78 months (6 years and 6 months).
Without the enhancement, the range would have been 30 to 37 months,
resulting in a guideline ceiling of 3 years and 1 month -- less
than half the sentence Lacouture ultimately received. 7
Given the impact that a possible error would have had on
the sentence and the need for further clarification before we can
determine whether an error occurred, see United States v. Jimenez-
Martinez, 83 F.3d 488, 494 (1st Cir. 1996) (expressing "concern[]"
over "the court's failure to articulate any reason why [a
questionable] affidavit was reliable," and finding the court erred
in relying on it without an evidentiary hearing), we think the
wisest course here is to follow our occasional practice of
remanding the matter to the district court, as we have previously
done in cases where a district court's explanation of a sentence
is inadequate, see United States v. Lucena-Rivera, 750 F.3d 43, 53
(1st Cir. 2014) (remanding with instructions to revisit the
7 This would-be guideline range is based on a base offense
level of fourteen, minus two levels for acceptance of
responsibility, resulting in a total offense level of twelve.
(Only two levels are subtracted for acceptance of responsibility
because, without the eight-level enhancement, Lacouture would not
have qualified for the additional one-level decrease for timely
notice of his intent to plead guilty, which the PSI report
recommended and the district court adopted, because that decrease
only applies where the offense level is sixteen or greater. See
U.S.S.G. § 3E1.1(b).)

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application of a sentencing enhancement, as "is appropriate when
the basis in the sentencing record for the application of an
enhancement requires clarification").
On remand, the district court should indicate whether it
found the child's statement to be reliable and how it reached that
conclusion. 8
CONCLUSION
Because we are unable to determine whether the district
court erred in applying the eight-level sentencing enhancement, we
vacate the sentence and remand for further proceedings consistent
with this opinion.
8 To this end, the district court may wish to request that
the government produce the video recording of the SAIN in order to
aid its assessment of the child's responses.

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