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United States v. Kane

January 14, 2009

UNITED STATES OF AMERICA, APPELLANT,
v.
RUTH KANE, APPELLEE.



On remand for reconsideration from the United States Supreme Court.

The opinion of the court was delivered by: Riley, Circuit Judge

Submitted: September 22, 2008

Before MURPHY, HANSEN, and RILEY, Circuit Judges.

Ruth Kane (Kane) repeatedly restrained and compelled her nine-year-old daughter to submit to the sexual gratification of a pedophile in exchange for Kane's receipt of $20. This sexual abuse occurred approximately twice a week for more than 200 molestations. A jury found Kane guilty of aggravated sexual abuse and conspiracy to commit aggravated sexual abuse. The district court sentenced Kane to 210 months imprisonment.

Kane appealed. We affirmed Kane's conviction, but vacated her sentence and remanded for resentencing pursuant to United States v. Booker, 543 U.S. 220 (2005).

See United States v. Kane, 148 Fed. Appx. 565, 568 (8th Cir. 2005) (unpublished). The district court resentenced Kane to 120 months imprisonment. The government appealed. We reversed, holding Kane's 120-month sentence was unreasonable. See United States v. Kane, 470 F.3d 1277, 1282 (8th Cir. 2006) (Kane II). The Supreme Court vacated and remanded for reconsideration in light of Gall v. United States, 128 S.Ct. 586 (2007). Having considered Gall's impact on Kane's sentence, we again vacate the sentence of the district court and remand for resentencing.

I. BACKGROUND

In Kane II we set forth the factual background:

At trial, both Kane's minor daughter and Kane's co-defendant, Joe J. Champion (Champion), testified Champion sexually abused Kane's daughter repeatedly over a two-year period. The first molestation occurred when Kane's daughter was nine years old. Kane's daughter testified Kane took her into the bathroom, where Champion was waiting, and [Kane] told her [daughter] to take off her clothes. Kane sat on the toilet and held her daughter on her lap, while Champion removed his pants and then put his penis against Kane's daughter's vagina. Kane's daughter testified it hurt and she passed out. Kane's daughter indicated when she woke up she found blood on her thigh and started to cry. Kane told her to clean up the mess.

According to Kane's daughter, the molestation occurred approximately twice a week. Kane's daughter testified Kane and Champion would typically take her into the bathroom, and Kane would restrain her on Kane's lap while Champion rubbed his penis against her vagina until he ejaculated on her stomach.

Kane's daughter testified the molestation also occurred in Kane's bedroom. Kane's daughter testified she would lie on the bed and Champion would rub his penis against her vagina until Champion ejaculated. Throughout the encounter, Kane would either stand against the bedroom door or lie with her daughter on the bed. When the encounter was over[,] Kane would wipe away Champion's semen as Kane's daughter cried. Champion abused Kane's daughter in this manner more than 200 times. Kane's daughter and Champion testified Kane received payments of $20 from Champion as compensation for providing her daughter for Champion's sexual gratification.

Kane II, 470 F.3d at 1279.

At Kane's sentencing, the district court indicated its reasons for the variance were (1) the district court's finding Kane posed a low risk of recidivism; (2) Kane's prior history of substance abuse and mental health issues; (3) the district court's finding Kane was vulnerable, and participated in her daughter's abuse because she was influenced by Champion; (4) Kane's post-conviction efforts at rehabilitation; and (5) the district court's belief Champion, who was sentenced to 180 months imprisonment, was "far more culpable" than Kane. We reversed, holding Kane's 120-month sentence was unreasonable. Kane II, 470 F.3d at 1282. We concluded Kane's sentence was unreasonable because (1) there was no evidence in the record to support the conclusion Kane probably will not repeat this type of crime; (2) there was no evidence in the record linking Kane's mental health issues or drug abuse to Kane's crimes against her daughter; (3) there was no evidence in the record indicating Kane committed these crimes because she was influenced by Champion; (4) a variance based on Kane's post-sentence rehabilitation efforts was ...


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