Full opinion text
MEMORANDUM OPINION AND ORDER JAMES O. BROWNING, District Judge. THIS MATTER comes before the Court on the Defendant’s Sentencing Memorandum, filed Sept. 20, 2007 (Doc. 92). The Court held an evidentiary sentencing hearing on October 16, 2007. The primary issues are: (i) whether the Court should sustain Defendant Arthur Ben Peshlakai’s objections to paragraph 12, of the original Pre-Sentence Investigation Report (“Original PSR”), disclosed Sept. 10, 2007, because it implies that he has not given his version of events; (ii) whether the Court should sustain Peshlakai’s “double counting” objections to the PSR’s overall calculation of his offensive level based upon: (a) U.S.S.G. § 2A3.1(b)(l), which allows a 4-level increase based on use of force in offenses involving the conduct described in 18 U.S.C. § 2241(a); (b) U.S.S.G. § 2A3.1(b)(4)(B), which allows a 2-level increase if “serious bodily injury” occurred, and 1B1.1, application note L, which deems “serious bodily injury” to have occurred if the offense involved conduct constituting criminal sexual abuse under 18 U.S.C. 2241; and (c) U.S.S.G. § 2A3.1(b)(5), which increases the offense level by 4 if the victim was abducted; and (iii) whether the Court should sustain Peshlakai’s objections to the PSR’s calculation of his criminal history points. The Court will sustain in part and overrule in part the objections in Peshlakai’s Sentencing Memorandum. The Court overrules Peshlakai’s objections to ¶ 12 of the PSR as moot. The Court overrules Peshlakai’s objections to the PSR’s enhancement of his criminal offense level under U.S.S.G. § 2A3.1, because there is no dispute that force was used in the commission of the crime and a 4-level increase is required when the defendant is convicted of aggravated sexual abuse. Peshlakai’s objection to the enhancement using U.S.S.G. §§ 2A3.1 and 1B1.1, cmt. app. n. (1)(L) is sustained. Although the Court recognizes that psychological and physical injury to the victim occurred, those harms arise directly from Peshlakai’s aggravated sexual abuse of her, and not from conduct aside from the criminal sexual abuse itself, so the requirements for enhancement for serious bodily injury are not met. The Court overrules Peshlakai’s objection to enhancement based upon 2A3.1(b)(5), and 1B1.1, cmt., app. n. 1(A), because he abducted the victim by forcing her to a different location to perpetrate the aggravated sexual abuse. The Court overrules Peshlakai’s objection to ¶ 34 of the PSR, because the sentence in the Shoplifting case is countable, even though it was an uncounseled misdemeanor, because no term of imprisonment was imposed as part of the sentence. The Court also overrules Peshlakai’s objection to ¶ 36 of the PSR as moot. The Court overrules Peshlakai’s objection to ¶ 42 of the PSR, because no limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense that a court of the United States may receive and consider for the purpose of imposing an appropriate sentence. FINDINGS OF FACT Rule 32(i)(3)(B) of the Federal Rules of Criminal Procedure states that the Court “must — for any disputed portion of the presentence report or other controverted matter — rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing....” Fed.R.Crim.P. 32(i)(3)(B). The findings of fact in this Memorandum Opinion and Order shall serve as the Court’s essential findings for purposes of rule 32(i)(3)(B). In making these findings, the rules of evidence do not bind the Court. See Fed.R.Evid. 1101(d)(3); United States v. Graham, 413 F.3d 1211, 1221 n. 10 (10th Cir.2005)(“In any event, the Federal Rules of Evidence are not applicable to sentencing proceedings.”)(citing Fed.R.Evid. 1101(d)(3)). A. ABDUCTION 1. The incidents occurred in June of 2005. See Transcript of Hearing (“Tr.”) (taken Oct. 16, 2007) at 15:12-15 (Spiers & Sandra T.). 2. Peshlakai was drunk before he and Sandra T. left the Anasazi Bar in Farmington, New Mexico. See Tr. at 39:13, id. at 40:14-19 (Peshlakai.). 3. Peshlakai was “beyond buzzed.” Tr. at 40:19 (Peshlakai). 4. When he sat down at a stool, he “happened to see” Sandra T. right next to him. Tr. at 39:16-17 (Peshlakai). 5. Peshlakai saw Sandra T. and her friend singing karaoke. See Tr. at 39:20-22 (Peshlakai). 6. Peshlakai “told her she had a beautiful voice ... that’s how our conversation started.” Tr. at 39:22-23 (Peshlakai). 7. Sandra T. gave Peshlakai a drink purchased for her by a man that her friend was talking to. See Tr. at 28:9-10 (Sandra T.). 8. Sandra T. was not drinking that night because she was driving, so she gave her drink to Peshlakai. See Tr. at 28:10-11 (Sandra T.). 9. Sandra T. decided to leave after her friend went to her boyfriend’s motel room and did not return after about 30 minutes. See Tr. at 29:18-21 (Aarons & Sandra T.). 10. While Sandra T. was waiting for her friend to return from her boyfriend’s motel room, she saw Peshlakai come out of the bar. See Tr. at 29:21-22 (Sandra T.). 11. Peshlakai told her that his truck had been stolen. See Tr. at 29:23 (Sandra T.). 12. Peshlakai asked Sandra T. for a ride home, because his vehicle was stolen. See Tr. at 15:18-20 (Sandra T & Spiers), id. at 23:20-21 (Sandra T.), id. at 42:2-3 (Peshlakai). 13. Sandra T. agreed to give him a ride home. See Tr. at 23:22-23 (Sandra T.). 14. Sandra T. gave him a ride, because she is a nice person and she will help somebody if he or she needs help. See Tr. at 30:14-20 (Aarons & Sandra T.). 15. As Sandra T. and Peshlakai began to drive to the Shiprock area, Peshlakai told her that he lived on a dirt road between Shiprock and Gallup. See Tr. at 23:24-24:1 (Sandra T.). 16. Sandra T. began to drive and follow Peshlakai’s directions. See Tr. at 24:1-2 (Sandra T.). 17. Sandra T. believed that everything was going to be okay, because she saw houses. See Tr. at 24:2-3 (Sandra T.). 18. Peshlakai woke up 30 miles east of Shiprock in his “hometown.” Tr. at 42:7-11 (Peshlakai & Aarons). 19. As they were driving, Peshlakai kept telling Sandra T. to drive a little bit further. See Tr. at 24:4-5 (Sandra T.). 20. Peshlakai went to sleep as they drove towards the Navajo Nation. See Tr. at 31:2-4 (Aarons & Sandra T.). 21. Peshlakai thinks he may have passed out from drinking and smoking too much. See Tr. at 42:7-8 (Peshlakai). 22. Peshlakai asked her to stop so that he could use the bathroom. See Tr. at 24:7-8 (Sandra T.). 23. When she stopped the car, Peshlakai grabbed the keys out of her ignition. See Tr. at 24:8-9 (Sandra T.). 24. When she tried to get the keys back from him, she could not get him to open his fingers. See Tr. at 24:10 (Sandra T.). 25. Peshlakai told Sandra T: “Do what I say. If you do what I say, then I won’t hurt you. If you do what I say. Do what I say.” Tr. at 24:11-13 (Sandra T.). 26. After Peshlakai had Sandra T.’s car keys, they began fighting. See Tr. at 24:14-15 (Sandra T.). 27. Peshlakai then pushed Sandra T. to the ground. See Tr. at 24:14-15 (Sandra T.). 28. When the car alarm went off on Sandra T.’s vehicle, Peshlakai gave her back the keys to her car. See Tr. at 24:17-18 (Sandra T.). 29. Sandra T. tried to leave, but that “just didn’t work.” Tr. at 24:19-20 (Sandra T.). 30. Peshlakai was holding on to the steering wheel as she pressed on the gas, so they were “going all over the place.” Tr. at 24:20-22, 33:19-21 (Sandra T.). 31. Sandra T. and Peshlakai then fought more. See Tr. at 24:23 (Sandra T.). 32. Every time Sandra T. would try to run and get away, Peshlakai would tackle her. See Tr. at 24:23-24 (Sandra T.). 33. Peshlakai was hitting her in the head as she lay down on the ground on her stomach. See Tr. at 24:25-25:1-2 (Sandra T.). 34. Sandra T. told Peshlakai: “I’ll do whatever you want. Tell me what you want me to do. I’ll do whatever you want, just don’t hit me any more.” Tr. at 25:2-4 (Sandra T.). 35. They got back in her car, and Peshlakai gave her the car keys. See Tr. at 25:12-13 (Sandra T.). 36. They drove towards the main road and up on a hill. See Tr. at 25:13-14 (Sandra T.). 37. Peshlakai admits that Sandra T. drove to the remote location on the top of the hill because he told her to do it. See Tr. at 63:10-18 (Spiers & Peshlakai). 38. Peshlakai told Sandra T.: “Right there.” Tr. at 25:14 (Sandra T.). 39. Initially, they passed the spot where Peshlakai wanted Sandra T. to stop, and she had to back her car to it. See Tr. at 25:14-15 (Sandra T.). 40. Peshlakai told Sandra T.: “Stop right there. Stop right there. Pull in right there.” Tr. at 25:15-16 (Sandra T.). 41. The area into which Sandra T. pulled is a dirt road cut off by a fence. See Tr. at 25:17-18 (Sandra T.). 42. At that point, Peshlakai told Sandra T. to get into the backseat. See Tr. at 25:18-19 (Sandra T.). 43. That location is where Peshlakai sexually abused her. See Tr. at 25:20-21 (Sandra T.). 44. Sandra T. would not have driven up that hill and parked there if Peshlakai had not told her to do so. See Tr. at 25:22-24 (Spiers & Sandra T.). 45. Sandra T. did what Peshlakai told her to do because she did not want to be beaten anymore and did not know what was going to happen to her. See Tr. at 26:2-3 (Sandra T.). 46. After the rape, Sandra T. asked Peshlakai for the car keys, and he gave them back, but Sandra T. could not get him physically out of her car. See Tr. at 35:15-17 (Sandra T.). 47. Sandra T. states that all she wanted to do was return to the Shiprock area. See Tr. at 35:17-18 (Sandra T.). 48. Sandra T. told Peshlakai: “I promise Pm not going to tell. Please let me go. I don’t even know who you are.” Tr. at 36:10-12 (Sandra T.). 49. After the rape, Sandra T. drove Peshlakai home. See Tr. at 36:14 (Sandra T.), id. at 44:22-23 (Peshlakai). 50. Sandra T. tried to run over Peshlakai’s shoulder with her car while he was underneath it. See Tr. at 44:7-9 (Peshlakai). B. SERIOUS BODILY INJURY 51. Every time Sandra T. would try to run and get away, Peshlakai would tackle her. See Tr. at 24:23-24 (Sandra T.). 52. Peshlakai was hitting her in the head as she lay down on the ground on her stomach. See Tr. at 24:25-25:1-2 (Sandra T.). 53. Peshlakai pushed Sandra T. to the ground. See Tr. at 24:15-16 (Sandra T.). 54. Peshlakai removed her clothing. See Tr. 16:21-22 (Sandra T.). 55. Peshlakai tore her shirt off of her. See Tr. at 22-23 (Sandra T.). 56. During the attack, Peshlakai hit, kicked, and elbowed Sandra T. See Tr. at 14:3 (Sandra T. & Spiers), id. at 15:16-21 (Sandra T. & Spiers). 57. Peshlakai kicked her on her back and side, and hit her in the face with his elbow. See Tr. at 15:23-25 (Sandra T.). 58. While Sandra T. was laying on her stomach, Peshlakai hit her in the back of her head around six times with his closed fist. See Tr. at 16:1-4 (Sandra T.). 59. Peshlakai admits he hit Sandra T. with his fists as she described. See Tr. at 60:20-21 (Spiers & Peshlakai). 60. While Peshlakai hit Sandra T. in the back of her head, she saw white light flashes. See Tr. at 16:9-11 (Sandra T.). 61. Sandra T. had no idea what was going to happen and if she was going to make it home. See Tr. at 16:12-14 (Sandra T.). 62. At one point, Sandra T. was face-down, unclothed except the top part of her shirt, on a rocky surface. See Tr. at 16:19-17:1 (Sandra T. & Spiers). 63. The pain Sandra T. felt was mainly from the physical blows to her side, head, and elbowing from Peshlakai. See Tr. at 17:24-25 (Sandra T.). 64. She also had a lot of bruises, scratches, and soreness from the rape that was the same soreness from being in a car accident. See Tr. at 18:3-9 (Sandra T.). 65. On a scale between one and ten, the pain Sandra T. experienced from Peshlakai hitting her was about an eight. See Tr. at 18:18-25 (Spiers & Sandra T.). 66. Peshlakai also hit Sandra T. in the jaw with his elbow. See 19:21-25 (Spiers and Sandra T.). 67. Peshlakai admitted that him inserting his penis inside Sandra T. would hurt her. See Tr. at 61:1-3 (Spiers & Peshlakai). 68. He also admitted that Sandra T. would feel violated and disgusted by that action. See Tr. at 61:4-7 (Spiers & Peshlakai). 69. During the attack, Peshlakai inserted more than one finger into Sandra T., which was painful to her. See Tr. at 18:14-15 (Sandra T.). 70. Sandra T. asked Peshlakai to remove his fingers. See Tr. at 18:15-16 (Sandra T.). 71. Sandra T. compared the pain of the rape to the labor pains in giving birth. See 20:25-21:9 (Spiers & Sandra T.). 72. During the attack, Sandra T. fell in an arroyo when she was trying to run away because it was dark and she did not see it. See Tr. at 31:9-10 (Sandra T.). 73. After the attack, Sandra T. went to a police station, but would not get out of her car, because she did not have any clothes on and did not see anyone walking around outside. See Tr. at 21:14-16 (Sandra T.). 74. Sandra T. drove to the hospital and waited for someone to come out to help her. See Tr. at 21:16-17 (Sandra T.). 75. Sandra T. reports that, as she drove to the hospital to be examined, she was hurt, physically in pain, and cried. See Tr. at 36:17-18 (Sandra T.). 76. During the examination, Sandra T. was told that there was tearing inside her. See Tr. at 18:16-17 (Sandra T.). 77. Sandra T. talked with Peshlakai about her children during the attack. See Tr. at 26:4 (Sandra T.). 78. Sandra T. reports she has suffered mentally. See Tr. at 22:6-10 (Spiers & Sandra T.). 79. She has been seeing a therapist, has been on medication, and has taken sleeping pills because she cannot sleep. See Tr. at 22:8-10 (Sandra T.). 80. Sandra T. feels that she has lost her family, her husband, and that her children no longer respect her. See Tr. at 22:14-15 (Sandra T.). 81. Sandra T.’s therapist has told her that she is suffering from posttraumatic stress. See Tr. at 22:15-17 (Sandra T.). 82. Sandra T. feels like the rape just recently happened, even though it was over a year ago. See Tr. at 22:17-221 (Sandra T. & Spiers). 83. Sandra T. has difficulty sleeping, and gets up around four times per night. See Tr. at 22:22-24 (Spiers & Sandra T.). 84. She gets very scared when she hears noises because she now lives alone. See Tr. at 22:24-25 (Sandra T.). 85. Even when Sandra T. takes sleeping pills, she still gets up in the middle of the night and walks around to make sure nobody is in her house. See Tr. at 23:1-2 (Sandra T.). 86. Sandra T. reports that she can no longer sleep comfortably. See Tr. at 23:3-4 (Sandra T.). 87. She tries to keep herself busy, and if she keeps busy, she does not think about the rape as much. See Tr. 23:7-8 (Sandra T.). 88. Sandra T. is trying to forget the rape and move on, but it is very, very hard for her. See Tr. at 23:8-9 (Sandra T.). 89. Sandra T. reports that she is still in therapy. See Tr. at 37:5 (Sandra T.). 90. Sandra T. states that the rape is affecting her whole life. See Tr. at 37:6-7 (Sandra T.). 91. Both Sandra T. and Peshlakai were credible in their testimony during the evidentiary hearing. Peshlakai’s recollections regarding the circumstances and events surrounding the rape was, however, atemporal and difficult to understand at times, either because of how intoxicated Peshlakai was, see Tr. at 39:13(Peshlakai), id. at 40:14-19 (Peshlakai), or because of the manner by which the' testimony was elicited. Thus, the Court finds Sandra T.’s testimony more reliable than Peshlakai’s when there is any inconsistency between them. FACTUAL BACKGROUND At the sentencing hearing, Peshlakai confirmed that he did not have objections to the PSR other than what is contained in his sentencing memorandum. See Tr. at 4:22-25 (Aarons). Thus, the Court will rely on the re-disclosed PSR for most of its factual background and findings. The Court will discuss only the factual background needed to address Peshlakai’s objections. A.SHOPLIFTING CASE. On November 16, 2001, in San Juan County Magistrate Court Case No. MR2001-596, Peshlakai was arrested for Shoplifting. See PSR ¶ 34, at 9. On December 20, 2001, a bench warrant for Failure to Appear was issued. See id. Peshlakai was arrested on April 22, 2002, on the bench warrant for the Failure to Appear. See id.) Addendum, at 1. The arrest for Failure to Appear occurred before, and was not a part of, the sentence imposed in the Shoplifting case. See id. On April 24, 2002, Peshlakai pled guilty to the charge of Shoplifting and was assessed $151.00 in a fine, fees, and court costs. See id. No conditional discharge was ordered in the Shoplifting case. See id. On September 24, 2007, the United States Probation Office contacted the San Juan Magistrate Court in Aztec, New Mexico, and learned that Peshlakai was not represented by counsel and that the file for his case had been destroyed. See Addendum at 1. It is therefore not known if Peshlakai waived his right to counsel in the Shoplifting case. See id. B. TRIBAL CASE. Shiprock District Court is a tribal court with jurisdiction specified by Section 253 of Title 7 of Navajo Nation statutory law. See Duncan v. Shiprock District Court, No. SC-CV-51-04, at 9, 5 Am. Tribal Law 458, 465 (Nav.Sup.Ct.1986), available at http://www.navajocourts.org/suctopinions. htm (under 2004 Opinions). The Navajo Nation district courts are vested jurisdiction over criminal, civil, and miscellaneous cases. See id. Miscellaneous matters are “all other matters provided by Navajo Nation statutory law, Diñé bi beenahaz’áanii, and Navajo Nation Treaties with the United States of America or other governments.” Id. (internal quotations omitted). C. DORMANT CHARGE. An arrest warrant was issued in State of New Mexico v. Peshlakai, Cause No. M-147-CR200500446 (San Juan County, New Mexico), on June 28, 2005. The prosecutor, however, did not take any further action in that case. See N.M.R.A, Rule 6-506(B) (stating that, if prosecution fails to bring the matter to trial within 182 days of certain triggering events, the complaint may be dismissed with prejudice). Sometime later, the agent interviewed Peshlakai, and when asked, “So you raped her?” and Peshlakai responded, “Well yeah, I can put it that way.” PSR, ¶ 42, at 14-15. Peshlakai represents that he had thought the Navajo officer was investigating this federal case, for which he is being sentenced, but that the officer did not know of this case. Peshlakai’s confession follows the allegations of this case but not those of the dismissed state case. See Sentencing Memo ¶ 17, at 6. At the hearing on this matter, Peshlakai’s counsel represented that the charges had been dismissed in State of New Mexico v. Peshlakai. See Tr. at 56:23-67:4 (Spiers & Aarons). PROCEDURAL BACKGROUND This matter did not go to trial, but the PSR recommends a number of enhancements that are fact-intensive. Accordingly, the Court had an evidentiary hearing to take the testimony needed to make factual findings. The Court stated it would study the transcript, review the case law, and make a ruling on the objections before it heard argument on and ruled on the request for a variance under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). A.PESHLAKAI’s PLEA. Peshlakai pled guilty to aggravated sexual abuse in violation of 18 U.S.C. § 2241(a) and Crime in Indian Country in violation of 18 U.S.C. § 1153. See Plea Agreement ¶ 3, at 2, filed July 19, 2007 (Doc. 88). In exchange, the United States agreed that Peshlakai had demonstrated an acceptance of responsibility under U.S.S.G. § 3E1.1. See Plea Agreement ¶ 7a, at 3. These offenses carry a base offense level of 30. See PSR ¶¶ 22, 23, at 7; U.S.S.G. § 2A3.1(a). In the Plea Agreement, the parties agree that they disagree as to the application of U.S.S.G. § § 2A3.1(b)(4)(B), 1B1.1, and 2A3.1(b)(5), and that those matters will be resolved by the Court using a preponderance of evidence standard and by evidentiary hearing, if required. See Plea Agreement ¶ 7(c), at 4. The parties also acknowledge that the Court is not bound by their stipulations. See id. ¶ 8, at 4. B. PESHLAKAI’S VERSION OF EVENTS. In paragraph 12 of the original PSR, the USPO inadvertently failed to refer the reader to paragraph 21 for Peshlakai’s version of this offense. See Addendum to the PSR at 2, disclosed Oct. 16, 2007. After the original disclosure of the PSR, however, Peshlakai submitted a written statement of responsibility to the USPO. See id. As a result, Peshlakai’s version of this offense can now be found at paragraph 12 of the re-disclosed PSR, and his statement of acceptance of responsibility can be found at paragraph 21. See PSR ¶ 21, at 7-8. C. USE OF FORCE. In the PSR, the USPO increased his offense level computations by 4 levels, because “the offense involved conduct described in 18 U.S.C. § 2241(a).” PSR ¶ 24, at 7 (citing U.S.S.G. § 2A3.1(b)(1)). The USPO has amended paragraph 24 to include the details of how Peshlakai used force against the victim. See Addendum, at 3; PSR ¶ 24, at 9. The Addendum provides that: According to the victim, during the commission of the instant offense, the defendant pushed her to the ground and told her to get on her hands and knees. The defendant then reportedly hit the victim several times while she struggled with the defendant after he started taking off her pants. Additionally, the defendant reportedly told the victim he would continue hitting her if she did not stop screaming. At that point, the defendant reportedly continued taking off the victim’s clothes. When the victim stood up in an attempt to get away, the defendant reportedly pulled her pants and underwear down to her thighs and tore her shirt. Although the victim managed to break free from the defendant, it was only for a brief time, because the defendant caught up to the victim and reportedly hit her in the jaw with his fist. The defendant then reportedly forced the victim to go back with him to the vehicle, where he completely removed the victim’s pants and underwear. When the victim managed to get back into her vehicle, the defendant reportedly grabbed the steering wheel and forced his way into the vehicle with the victim. Reportedly, the defendant started hitting the victim again. He then reportedly told the victim to drive up the nearby hill and park near a fenced gate. After the victim did as she was instructed, the defendant told her to get into the backseat, where he sexually assaulted her with his penis and fingers. It should be noted that according to the nurse practitioner who examined the victim, the contusions and abrasions on the victim’s body were consistent with non-consensual sexual contact. PSR ¶ 24, at 9. D. SERIOUS BODILY INJURY. The PSR adds two additional levels for “serious bodily injury,” because the “offense involved conduct constituting criminal sexual abuse under 18 U.S.C. § 2241.” PSR ¶ 25, at 7. The USPO amended paragraph 25 to include details of the victim’s serious bodily injury. See id. Those details are: According to the victim, before the defendant sexually assaulted her, the defendant hit her about the face, head, and back with his fists several times. As a result of being hit by the defendant, the victim had many bruises and abrasions on her body, and she also had a big bump on the back of her head. The victim reported she also suffered from headaches for a while, and her body was very sore for approximately three weeks after being assaulted. In addition to her physical injuries, the victim was not able to sleep, because she would hear voices for a time immediately following the incident. Additionally, the victim explained that she pled for her life the night she was raped, because she thought she was going to die. Consequently, the victim began going to counseling and was prescribed Prozac and Trazodone. The victim advised that she stopped going to counseling for a while. However, as the sentencing hearing nears, the victim feels she needs to resume counseling, because she cannot stop thinking about the incident, and she has been having trouble sleeping since she starting having nightmares about the incident. It should be noted that the victim’s husband at the time initially tried to be supportive of the victim, but he eventually decided he could not handle the fact that the victim was raped. As result, the victim and her husband got a divorce, and now the victim lives alone, because their three teenage sons did not want to live with the victim. The defendant further explained that she now lives in fear and solitude, and she sleeps with the lights and television on, because she is afraid that someone will break into her home. PSR ¶ 25, at 10. E. ENHANCEMENT FOR ABDUCTION. The USPO assesses a 4-level increase against Peshlakai under U.S.S.G. § 2A3.1(b)(5), which allows such an increase if the victim was abducted. See PSR ¶ 26, at 10. Under U.S.S.G. § 1B1.1, app. n. 1(A), “ ‘[ajbducted’ means that a victim was forced to accompany an offender to a different location.” PSR ¶ 26, at 10. The re-disclosed PSR sets forth the details of the alleged abduction. See id. Those details are: According to the victim, she hesitantly agreed to give the defendant a ride home, because the defendant claimed his vehicle had been stolen. However, instead of giving the victim directions to his residence, the defendant reportedly directed the victim to a remote location out in the desert. After the defendant reportedly began to assault the victim by hitting her several times and trying to rip off her clothes, the victim managed to briefly break free from the defendant. The defendant then reportedly chased after the victim, and when he caught up to her, he reportedly hit her in the jaw with his fist. At that point, the defendant reportedly forced the victim to go back with him to the vehicle, where he completely removed the victim’s pants and underwear. When the victim managed to get back into her vehicle, the defendant reportedly grabbed the steering wheel and forced his way into the vehicle with the victim. Reportedly, the defendant started hitting the victim again. He then reportedly told the victim to drive up the nearby hill and park near a fenced gate. After the victim did as she was instructed, the defendant told her to get into the backseat, where he sexually assaulted her with his penis and fingers. PSR ¶ 26, at 10-11. F. CRIMINAL HISTORY POINTS. In the original PSR, the USPO calculated a criminal history level of II after assessing two points. See PSR ¶ 37, at 10. In both PSRs, the USPO assessed 1 criminal history point for a misdemeanor shoplifting charge that was resolved in magistrate court. In the original PSR, Peshlakai was assessed another point for a conviction from the Shiprock District Court for the unauthorized use of a vehicle. See PSR, disclosed Sept. 10, 2007 ¶ 36, at 10 (“Attorney representation is unknown. This information was provided by the Shiprock District Court.”). On September 20, 2007, Peshlakai filed formal objections to the PSR. See Sentencing Memo. Peshlakai contested both points. See id. ¶ 1, at 1. In the Addendum to the PSR and the re-disclosed PSR, the USPO agrees with one of Peshlaki’s objections, eliminates one of the criminal history points, and calculates a criminal history level of I. See Addendum, at 2, PSR ¶ 37, at 13. Specifically, the USPO agrees that Peshlakai’s conviction for Unauthorized Use of a Vehicle listed in paragraph 36 occurred in the Shiprock District Court, otherwise known as the Navajo Indian or Navajo Nation District Court, which is a tribal court. See Addendum, at 2. The USPO concedes that it inadvertently overlooked the fact that this is a tribal court and incorrectly assessed 1 criminal point to this conviction. See id. Consequently, the USPO corrected paragraph 36 to reflect that, pursuant to U.S.S.G. § 4A1.2(i), 0 criminal history points are assessed to this conviction. See PSR ¶ 36, at 12. The USPO furthermore corrected paragraph 37 to reflect that the total of the criminal history points is 1, which, pursuant to U.S.S.G. Chapter 5, Part A, establishes a criminal history category of I. The USPO also amended paragraphs 59 and 60 based on the correct criminal history category. See PSR ¶ 37, at 13. G. SIMILAR CHARGE. Although the PSR does not assess any points against Peshlakai for a dormant charge, the PSR refers to a “pending” charge involving a similar offense. PSR ¶ 42, at 14; State of New Mexico v. Peshlakai, Cause No. FR2005-446 (San Juan County, New Mexico). Paragraph 42 of the PSR discusses a case in San Juan County Magistrate Court, Case number FR2005h146. See PSR ¶ 42, at 14. That case charged Peshlakai with kidnapping, criminal sexual penetration, criminal sexual contact — felonies, and aggravated battery — a misdemeanor. See id. The USPO provided the following details: On June 14, 2005, a detective for the New Mexico State Police was dispatched to the San Juan Regional Hospital Emergency Room in Farmington, New Mexico, in reference to a possible rape. Upon arrival, the agent made contact with the alleged victim ..., and conducted an interview with her. According to [the victim], she and her friends were standing outside a bar in Farming-ton, when a man, later identified as the defendant, exited the bar. [The victim]’s friends gave money to the defendant to buy beer for them, and then the defendant asked [the victim] to go with him. The two got into the defendant’s vehicle, but the defendant did not stop to buy the beer. Instead, the defendant drove onto Navajo Route 36 and parked his vehicle just off of the dirt road. As [the victim] started to get out of the vehicle, the defendant reportedly put his hand down the top of her dress and touched her breasts, ripping off some of the buttons on her dress in the process. After [the victim] attempted to run away and scream for help, the defendant caught up to her and drug her by the hair back to his vehicle. He then reportedly forced her into the back of his vehicle, where he ripped off her panties and the rest of the buttons on her dress. At that point, the defendant allegedly penetrated [the victim]’s vagina with his penis. When the defendant was done after approximately 15 minutes, [the victim] asked him if she could retrieve her sandal, as it had fallen off when he drug her back to the vehicle. The defendant allowed her to do so. While [the victim] was putting her clothes back on, the defendant fled the area on foot. At that time, [the victim] crawled over to a large chainlink fence and found someone to call the police. It should be noted that while the detective was interviewing [the victim], he noticed she only had one sandal with her. When he asked about her other sandal, [the victim] informed the agent that her other sandal was in the defendant’s vehicle. The detective also noticed that [the victim] had a bump on the left side of her forehead, scrapes and scratches on her left arm, a large bump and scrape on her left buttocks, and large bumps and scrapes on her left leg. All of these injuries appeared to be consistent with having been drug along the ground. Shortly thereafter, the defendant’s vehicle was impounded, and the officer who secured the vehicle observed a pair of pink panties and one sandal matching [the vietim]’s other sandal in the vehicle. Sometime later, the agent interviewed the defendant, and asked, “So you raped her?” the defendant stated, “Well yeah, I can put it that way.” Based on this information, a warrant was issued for defendant’s arrest on June 28, 2005. It appears the warrant was served while the defendant was in federal custody for the instant offense, and the New Mexico State Police in Farmington, New Mexico, placed a detainer on the defendant at that time. PSR ¶ 42, at 14-15. Several delays in this federal case were occasioned by Peshlakai waiting to see what, if anything, might happen in that state case. See, e.g., Unopposed Motion to Vacate February 2006 Trial ¶ 2, at 1, filed Feb. 7, 2006 (Doc. 25); Unopposed Motion to Vacate March 2006 Trial ¶ 2, at 1 (Doc. 28)(“Reeently the prosecution disclosed an ongoing investigation involving another female victim. In the defendant’s police statement to the investigator, it appears that he is reciting his version of the facts in this case [and] appears unaware of an unrelated investigation.”); Unopposed Motion to Vacate April 2006 Trial, filed Mar. 31, 2006 (Doc. 31); Unopposed Motion to Vacate June 2006 Trial, filed June 6, 2006 (Doc. 41); Unopposed Motion to Vacate July 2006 Trial, filed July 17, 2006 (Doc. 45). Peshlakai represents that, in June 2007, the Assistant United States Attorney of record, on his information and belief, informed Peshlakai’s counsel that the state prosecutor did not intend to prosecute the dormant state charge. See Sentencing Memo ¶ 16, at 6. Peshlakai also reports that, on June 22, 2007, the state public defender of record, Christian Hatfield, of Gallup, New Mexico, confirmed this implicit nolle prosequi via electronic mail. See id. In accordance with 18 U.S.C. § 3661, the USPO included paragraph 42, which references San Juan County Magistrate Court Case No. FR2005-445, because at the time of the original disclosure of the PSR, this case was still pending against Peshlakai. See Original PSR ¶ 42, at 11. Since the original disclosure of the PSR, however, the USPO has learned that this case was dismissed on September 20, 2007. See Addendum, at 2. The Prosecutor filed a nolle prosequi because of this federal case. See Re-Disclosed PSR ¶ 42, at 14. Consequently, this case is no longer pending. See id. The USPO therefore amended paragraph 42 to show that this similar case is now a part of the “Other Arrests” section of the PSR and to reflect that the case has been dismissed. Id.; PSR ¶ 42, at 14-15. In the Addendum, the USPO noted that, “[p]ursuant to 18 U.S.C. § 3661, no limitation shall be placed on the information concerning the defendant’s background, character, and conduct, which the Court may receive and consider for the purposes of imposing an appropriate sentence.” Addendum, at 2. The USPO stated that it included paragraph 42 in its PSR, as other information under 18 U.S.C. § 3661. See id. The USPO denies that it included this information in the PSR to prejudice the Court. See Addendum, at 2. H. THE OCTOBER 16, 2007 SENTENCING HEARING. At the October 16, 2007 sentencing hearing, the United States called the victim, Sandra T., to support its position that the USPO had correctly enhanced Peshlakai’s offense level for infliction of serious bodily injury and for abduction. See Tr. 14:13 (Spiers). In response, Peshlakai took the stand, primarily to rebut the allegation of abduction. See Tr. at 39:11-12 (Aarons). After hearing the testimony and oral argument on all objections, the Court continued the hearing to review the transcript and study the law to determine accurately the advisory guideline sentence. The Court stated that, after it decided the objections, it would reset the sentencing hearing to hear arguments on Peshlakai’s request for a variance under United States v. Booker. Thus, this opinion and order addresses only the objections in Peshlakai’s Sentencing Memorandum. At the hearing, the attorneys for the parties made some important concessions. Peshlakai’s counsel, Mr. Steve Aarons, acknowledged that he was shifting his argument away from a legal argument on U.S.S.G. § 2A3.1(b)(l) and making it a Booker argument instead. See Tr. at 7:15-8:1 (Aarons & Court). Mr. Aarons also conceded that there was force. Q. [B]ut you’re conceding there was force here? A. Right. There is the absence of consent by the defendant taking sex and being physical with her, and that’s — that’s why he has always for that — to the extent wanted to plead guilty. Yes, we concede that there was — that he did have his way and took advantage of her and hit her.... Tr. at 72:1-11 (Court & Aarons). Mr. Aarons further agreed that, under some circumstances, there can be “psychomatic or emotional injuries” that would satisfy the serious bodily injury enhancement requirements. Tr. at 68:4-13 (Court & Aarons). Mr. Aarons argued, however, that such injuries would have to be “beyond the pale” and something more serious than an “average sexual assault.” Tr. at 68:13-19 (Aarons). Later, Mr. Aarons stated: “I think there could be a case where the psychological trauma is so persuasive that the Court would overlook or look beyond the absence of bodily injury and look to — because the mind is part of the body and emotions are part of the holistic person.” Tr. at 85:1-5 (Aarons). Mr. Aarons admitted that his understanding of the victim’s testimony was that, before Peshlakai raped her, they were driving back towards the main road and Peshlakai told her to park where he then raped her in the backseat. See Tr. at 86:24-87:3 (Aarons). The United States somewhat abandoned the position taken by the USPO in paragraph 26 of the re-disclosed PSR, did not believe that Sandra T. was abducted at the bar, did not argue that she was forced to drive to the desolate area where she was first sexually abused. See Tr. at 89:24-90:2 (Spiers). Rather, the United States took the position that she was not abducted until Peshlakai forced her to drive to the hill, where he sexually abused her a second time. Mr. Paul Spiers, for the United States, argued that the abduction occurred when Peshlakai told the victim to drive up the nearby hill and park near a fenced gate. See Tr. at 91:5-12 (Court & Spiers). When he tells her, after he’s beaten her, stripped her of her clothes, and he tells her to drive up to the top of the hill and park the car, that is the abduction. Pri- or to that he has been tackling her and doing all the other things that we’ve heard about, beating her, stripping of her of her clothing. Then he orders her at that point to drive the car up to the top of the hill and park the car and then he pulls her into the backseat and rapes her, we are submitting that at that point, going from point A, at the bottom of the hill to the top of the hill and parking her car under his command is the abduction. * * * * Driving all the driving between the Anasazi bar and to the point where she thinks he’s getting out to relieve himself, that part is her as she said being a nice person, thinking that she was helping somebody out, giving him a ride home. Tr. at 89:24-90:25 (Spiers). The United States argued that if a but for test were applied to the facts and circumstances of this case, then “but for the force that [Peshlakai] had used against [Sandra T.] and but for the command that he made upon her she never would have driven from point A to point B. She would have driven home.” Tr. at 90:15-20 (Spiers). THE COURT: So if you have — if you have the PSR, the Addendum in front of you, the response number 7 where she manages to break free from the defendant and then he forced to get back with him in the vehicle, at those two points no abduction has occurred, if I understand what you’re saying, the abduction occurred when he told her to drive up the nearby hill and park near a fenced gate. MR. SPIERS: Yes. THE COURT: So up to that point, there’s not — there’s not been an abduction; that’s when the abduction occurs. MR. SPIERS: Yes, sir. THE COURT: And that is the abduction, nothing that occurred before or after that’s relevant, that’s the relevant abduction here? MR. SPIERS: Yes, sir. Tr. at 91:1-16 (Court & Spiers). Mr. Aarons admitted that Peshlakai’s argument regarding paragraph 34 of the PSR — which involved the USPO’s mistake in paragraph 34 in Peshlakai him one criminal history point for a misdemeanor shoplifting charge — was moot. See Tr. at 95:23-96:1 (Court & Aarons). RELEVANT NEW MEXICO CRIMINAL LAW When Peshlakai filed his Sentencing Memorandum, it must have appeared to him that certain aspects of his criminal history would invoke some examination of certain aspects of state law. The procedural history of the state cases, however, appears to make much, if not at all, of that analysis of state law unnecessary. Nevertheless, so that the objections and the Court’s ruling on them are clear, the Court will briefly set forth the relevant state law. A. CONDITIONAL DISCHARGE. Unlike conditional discharges for other crimes, the New Mexico Legislature crafted a special procedure to defer prosecution for first offenders involving possession of a controlled substance. Compare N.M.S.A. 1978 § 30-31-28C (first offenses involving possession of controlled substances) (“[Discharge and dismissal under this section shall be without court adjudication of guilt.”)(emphasis added), with N.M.S.A. 1978 § 31-20-13 (setting forth general rule for conditional discharge of other New Mexico crimes) (stating that “the court may, without entering an adjudication of guilt, enter a conditional discharge order and place the person on probation on terms and conditions authorized by Sections 31-20-5 and 31-20-6 NMSA 1978. A conditional discharge order may only be made available once with respect to any person.”)(emphasis added). Peshlakai sets forth the above law to argue that paragraph 34 of the original PSR was mistaken in penalizing him one criminal history point for a misdemeanor shoplifting charge. See Sentencing Memo. ¶¶ 2-5, at 1-2. Peshlakai argues that “a review of that case indicates someone else, not [Peshlakai] received a drug conditional discharge for possession of less than one ounce of marijuana.” Sentencing Memo. ¶ 3, at 1. Peshlakai also argues that a diversion from judicial process, such a deferred prosecution, is not counted. See Sentencing Memo. ¶ 5, at 2 (citing U.S.S.G. § 4A1.2(f) and United States v. Miller, 56 F.3d 719, 722 (6th Cir.1995)). B. UNLAWFUL TAKING OF A MOTOR VEHICLE. Under the laws of New Mexico, the unlawful taking of a motor vehicle constitutes a felony offense. See N.M.S.A.1978 § 66-3-504(A). Peshlakai argues that there is a constitutional prohibition against counting prior uncounseled misdemeanor convictions. See Sentencing Memo. ¶ 9, at 4. He argues that the use of his prior conviction discussed in the original PSR at paragraph 36 “causes additional concern because under the laws of New Mexico the unlawful taking of a motor vehicle constitutes a felony offense.” Id. He argues that his conviction for unlawful taking of a vehicle, which was a tribal court case, cannot be used to support guilt or enhance punishment for this offense. See id. (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)). RELEVANT LAW REGARDING SENTENCING GUIDELINES Peshlakai’s objections implicate a number of the sentencing guidelines. As the United States Court of Appeals for the Tenth Circuit has emphasized, it is important for the district court to determine first the correct advisory guideline sentence before it determines whether to deviate from that guideline sentence. While some of Peshlakai’s arguments in support of his objections overlap with his arguments for a variance under United States v. Booker, the Court will address here only his objections and consider his arguments for a variance at the continuance of the sentencing hearing. A. 18 U.S.C. § 3661. Pursuant to 18 U.S.C. § 3661, “[n]o limitation shall be placed on the information concerning the defendant’s background, character, and conduct that the court may receive and consider for the purposes of imposing an appropriate sentence.” See United States v. Soehnge, 210 Fed.Appx. 816, 818 n. 1 (10th Cir.2007) (noting that the district court was within its bounds to take evidence not included in the plea agreement or the indictment to determine relevant conduct for sentencing); United States v. Jardine, 184 Fed. Appx. 728, 730 (10th Cir.2006)(noting that 18 U.S.C. § 3661 remains “in full effect even after Booker.”)(citing United States v. Magallanes, 408 F.3d 672, 684 (10th Cir. 2005)); United States v. Magallanes, 408 F.3d 672, 684 (10th Cir.2005)(noting that the Guidelines and Booker did not alter the sentencing court’s discretion under 18 U.S.C. § 3661)(citing United States v. Watts, 519 U.S. 148, 152, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997)); United States v. Bennett, 147 Fed.Appx. 761, 763 (10th Cir.2005)(noting the “broad power of sentencing courts to consider information beyond the indictment.”); United States v. Hanrahan, No. CR 04-1978 JB, 2006 WL 4061161 (D.N.M. Sept. 3, 2006)(Browning, J.). B. THE LEGAL STANDARD FOR ENHANCEMENTS. On disputed facts, the United States bears the burden of proving by a preponderance of evidence the propriety of a sentence enhancement. See United States v. Guzman, 318 F.3d 1191, 1198 (10th Cir.2003). The district court cannot shift the burden of proof to the defendant on an enhancement. See id. (noting that the district court improperly shifted the burden to the defendant because it found an enhancement was properly imposed, “because the court relied solely on hearsay statements and representations about police reports described second-hand in the [PSR]” and the “the government did not present any live witness or documentary evidence.”). Because the district court’s interpretation of the sentencing guidelines presents a legal question, on appeal, the Court of Appeals will review the interpretation de novo. See United States v. Plotts, 347 F.3d 873, 875 (10th Cir.2003). Peshlakai suggests that contrary precedent notwithstanding, constitutional due process requires a jury to find abduction beyond a reasonable doubt. See Sentencing Memo. at 12 n. 2 (stating that, “[c]ontrary precedent notwithstanding, constitutional due process still requires a jury to find abduction beyond a reasonable doubt.”). Peshlakai supports his argument by citing to United States v. Lynch, 397 F.3d 1270 (10th Cir.2005), and United States v. Conlan, 500 F.3d 1167 (10th Cir. 2007) (Seymour, J.). At the hearing on this matter, however, Peshlakai’s counsel conceded that he believed the Court needed to find sufficient evidence for an enhancement by preponderance of the evidence. See Tr. at 65:8-9, 69:20 (Aarons). In any case, the Tenth Circuit’s opinions in United States v. Lynch and United States v. Conlan do not support a greater burden of proof than preponderance of the evidence. In United States v. Conlan, 500 F.3d at 1168-69, the United States had objected to a variance that the USPO recommended for the court to impose a sentence below the advisory guideline range. See id. It “repeatedly argued to the district court that [the defendant] had the burden of overcoming a presumption that the advisory guideline range was reasonable.” Id. The Tenth Circuit held that the district court erred in imposing “the appellate presumption of reasonableness to the advisory guidelines when sentencing” rather than “impose a sentence sufficient, but not greater than necessary to comply with the purposes of section 3553(a)(2).” Id. The Tenth Circuit remanded because the district could failed to sentence in accordance with the United States v. Booker standards. See id. See also United States v. Zuni, 506 F.Supp.2d 663, 682 (D.N.M.2007)(sustaining the defendant’s objection to an assertion that the defendant kidnaped and sexually assaulted his ex-girlfriend because it did not “find by a preponderance of the evidence — based on the evidence that it heard at trial, given under oath, and subject to cross-examination — that a sexual assault took place.”). C. DOUBLE COUNTING. Impermissible double counting “occurs when the same conduct on the part of the defendant is used to support separate increases under separate enhancement provisions which necessarily overlap, are indistinct, and serve identical purposes.” United States v. Blake, 59 F.3d 138, 140 (10th Cir.1995). See id. at 139-40 (stating that it is impermissible for a sentencing court to “enhance a defendant’s sentence for robbery under the Guidelines by reason of his use of a firearm if the defendant has been separately convicted and is being sentenced ... for using the firearm in the commission of the same robbery.”); United States v. Pearson, 211 F.3d 524, 526 (10th Cir.2000)(“[S]omething more must be done.”). “The bar on double counting comes into play only if the offense itself necessarily includes the same conduct as the enhancement.” United States v. Senn, 129 F.3d 886, 897 (7th Cir.l997)(emphasis in the original)(explaining that enhancement of the defendant’s sentence based upon U.S.S.G. § 2D1.1(b)(2)(B), which enhances a defendant’s drug trafficking sentence for acting as the captain/navigator of a smuggling ship was proper because in the defendant’s “case, the offense of importation covers a multitude of methods used by smugglers to bring drugs to the United States — it does not necessarily include the conduct of captaining a boat.”). See United States v. Ford, 21 F.3d 759, 765 (7th Cir. 1994)(“[T]he base offense level prescribed by the guidelines for a particular crime presumably reflects, or ‘includes,’ those characteristics considered by Congress to inhere in the crime at issue.”)(quoting United States v. Butt, 955 F.2d 77, 89 (1st Cir.1992)); United States v. Reese, 2 F.3d 870, 895 (9th Cir.1993)(“[T]he use of a single aspect of conduct both to determine the applicable offense guideline and to increase the base offense level mandated thereby will constitute impermissible double counting only where, absent such conduct, it is impossible to come within that guideline.”). Double counting does not occur even “[t]he same acts may be enhancing conduct, e.g., recklessly creating a substantial risk of death or serious bodily injury to another under § 2L1.1(b)(5), even though they also contributed to the outcome of death or serious bodily injury under § 2L1.1(b)(6).” United States v. Cardena-Garcia, 362 F.3d 663, 667 (10th Cir.2004). “Specifically, § 2L1.1(b)(5) allows for an enhancement based upon the defendant’s intentional or reckless conduct, with no consideration of the outcome; whereas § 2L1.1(b)(6) provides for an enhancement based upon the outcome ... with no consideration of the defendant’s intentional or reckless conduct.” United States v. Cardena-Garcia, 362 F.3d at 667 (emphasis in the original). “The Sentencing Commission plainly understands the concept of double counting and expressly forbids it where it is not intended.” United States v. Archdale, 229 F.3d 861, 869 (9th Cir.2000) (citations omitted). In United States v. Wimberly, 60 F.3d 281 (7th Cir.1995), the United States Court of Appeals for the Seventh Circuit held that the “Guidelines provide ... enhancements as punishment mechanisms distinct from the underlying offense.” 60 F.3d at 288. See id. (explaining that while the defendant was convicted of engaging in a sexual act with a person under 12 years of age, the trial court appropriately applied a 4-level increase due to the victim’s age under U.S.S.G. § 2A3.1(b)(2) because that guideline applies to both 18 U.S.C. § 2241 and § 2242 and a violation of § 2242 does not require that the victim be less than 12 years old and a conviction under either statute results in the same base offense level of 27 months and therefore the enhancement for victims under 12 years of age, § 2A3.1(b)(2), does not constitute double counting because it is a punishment mechanism distinct from the underlying offense). In United States v. Rice, 358 F.3d 1268 (10th Cir.2004), cert. denied, judgment vacated, 543 U.S. 1103, 125 S.Ct. 1028, 160 L.Ed.2d 1014 (2005), opinion reinstated, 405 F.3d 1108 (10th Cir.2005), the Tenth Circuit held that the district court impermissibly double counted the defendant’s conduct in violation of the Sentencing Guidelines. See id. at 1276. The defendant pled guilty to transportation of a videotape containing child pornography. See id. The video he transported was one that he produced himself with a young girl in Mississippi. See id. The guideline applicable to his pleaded offense was U.S.S.G. § 2G2.2, which would provide a base offense level of 17. See id. That guideline included a cross-reference to U.S.S.G. § 2G2.2(c), which provides that, if the offense involves causing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, then a different guideline would be applicable, providing a base offense level of 27. See id. The trial court then also used the conduct underlying the defendant’s production of that videotape to increase his criminal history category pursuant to § 4A1.3. See id. The defendant argued that “double use amounts to impermissible double counting.” Id. The Tenth Circuit agreed with the defendant “that the double use of the Mississippi conduct violated the Sentencing Guidelines.” Id. D. U.S.S.G. § 2A3.1(b)(l). U.S.S.G. § 2A3.1 deals with “Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse.” The statutory provisions involved are 18 U.S.C. §§ 2241, 2242. Section 2241, which involves the crime of aggravated sexual abuse, requires the defendant to have knowingly caused another to engage in a sexual act: (i) by using force against that other person; or (ii) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping. Section 2242, in contrast, defines sexual abuse as causing another person to engage in a sexual act by threatening or placing that other person in fear “other than by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping.” Ú.S.S.G. § 2A3.1(b)(1) provides: “If the offense involved conduct described in 18 U.S.C. § 2241(a) or (b), increase by 4 levels.” This provision ends discussion whether rape always or only sometimes involves the use of force. Moreover, it should be noted that the U.S.S.G. does not require enhancement for crimes under 18 U.S.C. § 2242. According to the Federal Sentencing Guidelines Handbook, “Section 2A3.1(b)(l) applies where the use of force is sufficient to compel the victim’s submission to the sexual assault.” Moreover, “the enhancement does not require a showing that greater force was used than would be required to sustain a conviction under 18 U.S.C. § 2241(a)-(b).” R. Haines Jr., F. Bowman, III, & J. Woll, Federal Sentencing Guidelines Handbook at 239 (“Handbook”). To support the application of a 4-level increase for the use of force, pursuant to subsection (b)(1), the Handbook refers to United States v. Running Horse, 175 F.3d 635 (8th Cir.1999), in which the United States Court of Appeals for the Eighth Circuit held that “force sufficient to obtain a conviction under 18 U.S.C. § 2241(a) will also sustain an enhancement under § 2A3.1(b)(1).” Id. at 239 n. 17. In United States v. Talk, 13 F.3d 369, 370-71 (10th Cir.1993), the defendant was convicted of committing rape on Indian land in the United States District Court for the District of New Mexico. The district court did not apply a 4-level upward adjustment for use of force in connection with the rape, because “the actions of the defendant were not at a level or degree that would justify a four-level adjustment pursuant to 2A3.1(b)(1).” Id. at 372. The district court interpreted U.S.S.G. 2A3.1(b)(1) to mean that, even though a defendant is convicted under 18 U.S.C. § 2241, “an upward adjustment is warranted only if there existed some degree of force that exceeded the ‘average’ force necessary to rape someone.” Id. While the Tenth Circuit in United States v. Talk stated that it “emphathize[d] with the district court’s efforts to fashion a just sentence, the Court of Appeals stated that the official commentary to the Guidelines is clear: ‘The base offense level represents sexual abuse as set forth in 18 U.S.C. § 2242. An enhancement is provided for use of force; threat of death, serious bodily injury, or kidnapping; or certain other means as defined in 18 U.S.C. § 2241.’ ” 13 F.3d at 372 (quoting U.S.S.G. § 2A3.1, cmt. (backg’d)). The Tenth Circuit, through the Honorable Paul Kelly, Jr., United States Circuit Judge, was clear in its interpretation of this commentary: “We read this commentary to mean that a four-level upward adjustment is mandatory for all defendants convicted under 18 U.S.C. § 2241.” Id. (citing United States v. Bordeaux, 997 F.2d 419, 420 (8th Cir.1993)). The Tenth Circuit then found that the district court had erred in failing to apply such a mandatory upward adjustment, and remanded the case with instructions to vacate the sentence and resentence in accordance with the appellate opinion. See id. In United States v. Pena, 216 F.3d 1204 (10th Cir.2000), the defendant pled guilty to two counts of aggravated sexual abuse, and the Honorable LeRoy C. Hansen, Jr., United States District Judge, gave the defendant a sentence that included enhancements under the Sentencing Guidelines based on use of force. See 216 F.3d at 1207. The Tenth Circuit affirmed. See id. at 1212. Judge Kelly, in an opinion for the appellate panel, held that application of enhancements for use of force did not constitute impermissible “double counting,” because enhancements serve distinct purposes and are aimed at different harms. Id. at 1209-10. Judge Kelly stated that the essence of the defendant’s “double counting” argument in that case was that a sentencing enhancement for the use of force is implicit in the U.S.S.G. § 2A3.1(b)(2)(A) enhancement for a victim under twelve years of age. See 216 F.3d at 1209. The defendant asserted that, because children under the age of twelve are legally incapable of consent to sexual acts, there is a presumption that force was applied. See id. The United States responded “that the enhancement provisions of §§ 2A3.1(b)(2)(A) and 2A3.1(b)(1) address different conduct, do not overlap and serve different purposes.” Id. The Tenth Circuit in United States v. Pena agreed with the United States’ argument. The Court stated that a court may apply separate enhancements to reach distinct aspects of the same conduct. See 216 F.3d at 1209. As to § 2A3.1(b)(1), Judge Kelly stated: “Enhancement pursuant to § 2A3.1(b)(1) punishes the actual use of force used to overbear the will of another in perpetrating aggravated sexual abuse.” 216 F.3d at 1210. Judge Kelly summarized: “Child sexual abuse can take place even in the face of factual consent by the victim. The same cannot be said of adult rape.” 216 F.3d at 1210-11. The defendant in United States v. Pena also argued that, because a force enhancement is mandatory in the context of adult rape, citing United States v. Talk, 13 F.3d 369, 371-372 (10th Cir.1993), but not in the context of aggravated sexual abuse of a child, it is clear that the latter offense has an implicit enhancement for the use of force. See 216 F.3d at 1210-1211. Judge Kelly stated that this argument is without merit. See id. at 1211. “Thus, in a case involving the sexual abuse of a child, the guidelines provide the sentencing judge with the flexibility to apply a force enhancement depending on the -facts. The force enhancement is not mandatory — not because it is already contemplated by enhancements for the youth of the victim— but rather because unlike adult rape, it may not always be appropriate given the factual predicates of the crime.” 216 F.3d at 1210-11. E. SERIOUS BODILY INJURY. U.S.S.G. § 2A3.1, the guideline for “Criminal Sexual Abuse” also allows an enhancement for “serious bodily injury.” U.S.S.G. § 2A3.1(b)(l) and U.S.S.G. § 2A3.1(b) states: “(1) If the offense involved conduct described in 18 U.S.C. § 2241(a) or (b), increase by 4 levels.... (4)(A) If the victim sustained permanent or life-threatening bodily injury, increase by 4 levels; (B) if the victim sustained serious bodily injury, increase by 2 levels; or (C) if the degree of injury is between that specified in subdivisions (A) and (B), increase by 3 levels.” U.S.S.G. § 2A3.1, Application Note 1, Definitions, states that, for purposes of this guideline, “ ‘serious bodily injxxry’ ” [has] the same meaning given those