`FILED
`United States Court of Appeals
`Tenth Circuit
`
`July 24, 2023
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`UNITED STATES OF AMERICA,
`
` Plaintiff - Appellee,
`
`v.
`
`AMANDA LYN WALKER,
`
` Defendant - Appellant.
`_________________________________
`
`
`
`
`
`No. 22-5005
`
`UNITED STATES OF AMERICA,
`
` Plaintiff - Appellee,
`
`v.
`
`CRAIG ALAN MORRISON, a/k/a Craig
`Allen Morrison,
`
` Defendant - Appellant.
`_________________________________
`
`
`
`
`
`No. 22-5014
`
`Appeals from the United States District Court
`for the Northern District of Oklahoma
`(D.C. No. 4:20-CR-00196-JFH-2)
`(D.C. No. 4:20-CR-00196-JFH-1)
`_________________________________
`
`Katayoun A. Donnelly, Azizpour Donnelly LLC, Denver, Colorado, for Defendant –
`Appellant Amanda Lyn Walker.
`
`John C. Arceci, Assistant Federal Public Defender, Office of the Federal Public Defender
`(Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado,
`for Defendant – Appellant Craig Alan Morrison.
`
`
`
`
`
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`Appellate Case: 22-5005 Document: 010110892891 Date Filed: 07/24/2023 Page: 2
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`Chantelle Dial, Assistant United States Attorney (Clinton J. Johnson, United States
`Attorney, with her on the briefs), Tulsa, Oklahoma, for Plaintiff – Appellee.
`_________________________________
`
`Before HARTZ, McHUGH, and CARSON, Circuit Judges.
`_________________________________
`
`McHUGH, Circuit Judge.
`_________________________________
`
`Craig Alan Morrison and Amanda Lyn Walker brought Ms. Walker’s three-
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`year-old son, R.T., to the emergency room and told doctors that R.T. had jumped off
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`his bed and hit his head on his scooter. After examining R.T., doctors discovered
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`bruising across most of R.T.’s body, internal bleeding, and severe injuries to R.T.’s
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`internal organs—injuries the doctors determined did not line up with Mr. Morrison’s
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`and Ms. Walker’s story. The doctors contacted the police, who initiated a child abuse
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`investigation, ultimately leading to a grand jury indictment of Mr. Morrison for two
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`counts of child abuse, under the Assimilated Crimes Act, 18 U.S.C. § 13, and Okla.
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`Stat. tit. 21, § 843.5(A) (2019), and of Ms. Walker for two counts of enabling child
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`abuse, under the Assimilated Crimes Act, 18 U.S.C. § 13, and Okla. Stat. tit. 21,
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`§ 843.5(B) (2019). Mr. Morrison and Ms. Walker were indicted under the
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`Assimilated Crimes Act because R.T. is an Indian and the offense conduct took place
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`within the boundaries of the Muscogee (Creek) Reservation. They were tried in a
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`joint trial and the jury returned guilty verdicts on all four counts. In separate
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`sentencing proceedings, the district court granted the Government’s motions for
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`upward variances from United States Sentencing Guidelines sentences for both
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`Mr. Morrison and Ms. Walker. The district court sentenced Mr. Morrison to a
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`2
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`300-month term of imprisonment, 195 months greater than the high end of his
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`Guidelines range, and Ms. Walker to 120 months in prison, 63 months over the high
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`end of her Guidelines range.
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`Mr. Morrison and Ms. Walker filed separate appeals, collectively raising ten
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`challenges to their convictions and sentences. Because Mr. Morrison and Ms. Walker
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`were tried in one trial, and each joins several of the other’s arguments on appeal, we
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`address their appeals together. Determining none of their arguments are meritorious,
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`we affirm Mr. Morrison’s and Ms. Walker’s convictions and sentences.
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`I.
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`BACKGROUND
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`A.
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`Factual Background1
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`In July 2019, Mr. Morrison and Ms. Walker began a romantic relationship.
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`Within a week, Mr. Morrison moved into Ms. Walker’s home where Ms. Walker’s
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`adult daughter, Katana Partain; Ms. Partain’s boyfriend, John Webb; Ms. Partain’s
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`minor daughter; Ms. Walker’s minor daughter, M.L.; and Ms. Walker’s two-year-old
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`son, R.T., were also living. Not long after moving in, Mr. Morrison became involved
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`with raising R.T.—potty training R.T., helping R.T. to transition to sleep in his own
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`bed, and transitioning R.T. from bottles to sippy cups.
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`
`1 All facts are drawn from evidence presented at Mr. Morrison’s and
`Ms. Walker’s joint trial. Where there was conflicting testimony, we recite the facts
`based on the evidence most favorable to the jury’s verdict. See United States v.
`Espinoza, 338 F.3d 1140, 1146–47 (10th Cir. 2003).
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`3
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`On one occasion, in August 2019, Mr. Morrison wanted R.T. to eat pizza, but
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`R.T. was resisting. Mr. Morrison shoved the pizza into R.T.’s mouth, causing R.T. to
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`choke and cry. Ms. Partain yelled at Mr. Morrison to stop. Ms. Walker saw
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`Mr. Morrison shoving the pizza into R.T.’s mouth while R.T. was choking and
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`crying, but she went to her room and closed the door. When Ms. Partain checked on
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`Ms. Walker, Ms. Walker explained that she did not want to hear R.T. crying.
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`Ms. Partain, Mr. Webb, and Ms. Partain’s minor child moved out of Ms. Walker’s
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`home in late September 2019.
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`Mr. Morrison lost his job in December 2019 and became more involved in
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`R.T.’s care while Ms. Walker was working. Around this time, R.T. came to
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`Ms. Partain’s house and she noticed a dark handprint-shaped bruise on R.T.’s face
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`and small bruises on R.T.’s buttocks. Ms. Partain took pictures of the bruises and
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`sent them to Ms. Walker, asking Ms. Walker about R.T.’s injuries. Ms. Walker told
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`Ms. Partain the handprint-shaped bruise on R.T.’s face was the result of
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`Mr. Morrison unintentionally slapping R.T. while Mr. Morrison was having a night
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`terror and the bruising on R.T.’s buttocks was caused by him falling off his bed.
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`During this same period, Mr. Morrison’s cousin, Misty Dawn Hill, regularly
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`spoke with Mr. Morrison. On one occasion, Mr. Morrison told Ms. Hill that he “made
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`[R.T.] a man-sized peanut butter and jelly sandwich, and that [R.T.] wasn’t eating it
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`so he sent him to lay down. And he heard the child choking and he immediately ran
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`and got him up.” Morrison ROA Vol. III at 210. Mr. Morrison told Ms. Hill that he
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`4
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`was frustrated by R.T.’s frequent crying and “that he would give the child something
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`to cry about.” Id. at 211.
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`In February 2020, Mr. Morrison and Ms. Walker brought R.T. to the
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`emergency room, informing the doctors R.T. had hurt himself jumping from his bed
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`and falling onto his scooter. Upon examination, the hospital discovered R.T. had
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`many severe external and internal injuries that could not be explained by R.T.
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`jumping off his bed. The hospital took photographs of R.T.’s injuries and contacted
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`the Tulsa police. Officers came to the hospital, took statements from Mr. Morrison
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`and Ms. Walker, and photographed R.T.’s injuries. Mr. Morrison and Ms. Walker
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`denied having harmed R.T. or having knowledge of any other person harming him.
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`The responding officers referred the case to a child crisis detective, William Hays, to
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`investigate.
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`The following morning, Dr. Christine Beeson, a pediatric physician
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`completing a child abuse fellowship, examined R.T. Dr. Beeson’s examination
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`revealed extensive injuries including blunt force trauma injuries to R.T.’s liver and
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`pancreas, muscle damage, injury to R.T.’s kidneys, severe bruising on R.T.’s
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`buttocks and going down his leg, bruises on the inside and outside of both of his ears,
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`his right and left cheeks and jawlines, his right forearm, his right shoulder, his
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`shoulder blade and upper back, and the back of his ribcage. CT scans revealed that
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`R.T. had a frontal hematoma, a hematoma around his right adrenal gland, and
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`extensive internal bleeding. Dr. Beeson took additional photographs of R.T. when she
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`5
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`completed the examination. Based on her examination of R.T., Dr. Beeson concluded
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`R.T. suffered “[c]hild physical abuse.” Id. at 341.
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`While examining R.T., Dr. Beeson spoke with Ms. Walker about R.T.’s
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`history. Ms. Walker informed Dr. Beeson that R.T. had “a two or three month history
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`of easy bruising that she had noticed, and she was worried about leukemia.” Id. at
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`318. Reviewing R.T.’s blood work and labs, Dr. Beeson determined R.T. did not
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`have a bleeding disorder or condition that would cause easy bruising. That same day,
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`Detective Hays interviewed Ms. Walker and Mr. Morrison. Ms. Walker told
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`Detective Hays that prior to taking R.T. to the hospital, she had been at work until the
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`afternoon and R.T. had been with Mr. Morrison. Ms. Walker further stated that when
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`she got home from work in the afternoon, she saw R.T. running around naked and did
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`not see any injuries or bruises on him. Ms. Walker explained she took R.T. to the
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`hospital after hearing a crash from R.T.’s bedroom and noticing an injury to his head.
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`Mr. Morrison told Detective Hays the same story. When Detective Hays asked about
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`R.T.’s extensive bruising that did not seem consistent with their story, both
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`Mr. Morrison and Ms. Walker stated they had not seen it. Ms. Walker minimized
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`R.T.’s injuries when speaking to Detective Hays, stating they were not the result of
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`abuse but “were just normal injuries and that [R.T.] gets these all the time.” Id. at
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`231.
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`R.T. remained hospitalized for a total of four days. The week after R.T. was
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`hospitalized, Ms. Walker asked Ms. Partain not to tell the police about the incident
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`6
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`where Mr. Morrison force-fed R.T. pizza or where Mr. Morrison hit R.T. during a
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`night terror.
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`B.
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`Procedural Background
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`1.
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`Indictment and Trial
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`The state of Oklahoma arrested Mr. Morrison and Ms. Walker and charged
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`them with child abuse offenses in March 2020. Following the Supreme Court’s
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`decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), Oklahoma dismissed the
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`charges for lack of jurisdiction because the victim in the case, R.T., is an Indian and
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`the offense conduct occurred in Tulsa, within the boundaries of the Muscogee
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`(Creek) Reservation.2 See McGirt, 140 S. Ct. at 2468 (holding Congress never
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`disestablished the Muscogee (Creek) Reservation). A federal grand jury indicted
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`Mr. Morrison and Ms. Walker under the Assimilated Crimes Act, 18 U.S.C. § 13,
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`charging Mr. Morrison with one count of child abuse, in violation of Okla. Stat. tit.
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`21, § 843.5(A), and Ms. Walker with one count of enabling child abuse, in violation
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`of Okla. Stat. tit. 21, § 843.5(B), based on R.T.’s February 2020 injuries. In a
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`superseding indictment, the grand jury charged Mr. Morrison with two counts of
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`2 Prior to the Supreme Court’s decision in Oklahoma v. Castro-Huerta, 142 S.
`Ct. 2486 (2022), there was a general belief that Oklahoma lacked jurisdiction over
`crimes committed by Indians or against Indians in Indian country. See McGirt v.
`Oklahoma, 140 S. Ct. 2452, 2479 (2020) (“States are . . . free to apply their criminal
`laws in cases of non-Indian victims and defendants, including within Indian
`country.”). However, in Castro-Huerta, the Supreme Court recognized Oklahoma has
`concurrent jurisdiction over crimes committed by non-Indians against Indians in
`Indian country. See Castro-Huerta, 142 S. Ct. at 2491.
`
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`7
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`child abuse and Ms. Walker with two counts of enabling child abuse, adding separate
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`counts based on the handprint-shaped bruise documented by Ms. Partain on R.T.’s
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`face in December 2019. The criminal information sheets filed with the superseding
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`indictment listed all four counts as felonies and stated the maximum penalty for each
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`count was life imprisonment.
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`Prior to trial, the Government offered plea deals to Ms. Walker and
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`Mr. Morrison. Specifically, the Government offered Mr. Morrison a deal under which
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`he would plead guilty to one count of child abuse, the February 2020 incident, and
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`receive a sentence of ten years. The Government offered Ms. Walker a deal under
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`which she would plead guilty to one count of enabling child abuse, based on the
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`February 2020 incident, and receive a three-year sentence. Both Ms. Walker and
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`Mr. Morrison rejected the offers. Also, before the trial, Ms. Walker and Mr. Morrison
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`jointly proposed jury instructions asking the jury to determine whether their conduct
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`for each count constituted a misdemeanor or felony.
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`Over the course of a three-day trial, the Government elicited testimony from
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`Michael Scott Dean, a Tulsa police officer who photographed R.T. and took
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`statements from Mr. Morrison and Ms. Walker the night they took R.T. to the
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`hospital; a hospital employee who confirmed that pictures of R.T. the Government
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`submitted as evidence were from R.T.’s medical record; Kelsey Hess, a forensic
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`interviewer who attempted to interview R.T; R.T.’s biological father, Dennis
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`Tooamhimpah; Mr. Webb, Ms. Partain’s boyfriend; Ms. Partain, Ms. Walker’s adult
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`daughter; Ms. Hill, Mr. Morrison’s cousin; Detective Hays, the detective who
`8
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`investigated the case; and Dr. Beeson, the child abuse specialist who evaluated R.T.
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`As part of its case-in-chief, the Government also presented photos taken by
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`Ms. Partain of R.T.’s December 2019 injuries, the written statements Ms. Walker and
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`Mr. Morrison gave to Officer Dean the night they brought R.T. to the hospital, a
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`video of the forensic interview Ms. Hess conducted with R.T., videos of interviews
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`Detective Hays conducted with Mr. Morrison and Ms. Walker, photos of R.T.’s
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`February 2020 injuries taken by the hospital, photos of R.T.’s February 2020 injuries
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`taken by Officer Dean, and photos of R.T.’s February 2020 injuries taken by
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`Dr. Beeson. Following the completion of the Government’s case-in-chief, both
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`Mr. Morrison and Ms. Walker moved for judgments of acquittal under Federal Rule
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`of Criminal Procedure 29; the district court denied their motions. Mr. Morrison then
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`rested his case. Ms. Walker called her minor daughter, M.L., as a witness, and also
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`testified in her own defense.
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`Prior to instructing the jury, the district court asked the Government,
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`Mr. Morrison, and Ms. Walker if any party had any objections to the proposed
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`instructions. They did not. The jury returned a guilty verdict against Mr. Morrison on
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`both counts of child abuse and against Ms. Walker on both counts of enabling child
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`abuse.
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`2. Ms. Walker’s Sentencing Proceedings
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`Following Ms. Walker’s conviction, the United States Probation Office
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`prepared a Presentence Investigation Report (“PSR”). The PSR determined there was
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`no directly applicable Guideline for Ms. Walker’s enabling child abuse conviction,
`9
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`but that the most analogous Guideline was §2A2.2, which set a base offense level of
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`14 for aggravated assault offenses. The PSR applied three offense level
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`enhancements: (1) a seven-level enhancement under §2A2.2(b)(3)(C) due to R.T.
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`sustaining permanent or life-threatening bodily injury, (2) a two-level enhancement
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`based on R.T. being a vulnerable victim under §3A1.1(b)(1), and (3) a two-level
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`enhancement under §3A1.3 based on R.T. having been physically restrained in the
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`course of the offense. The PSR also applied a two-level deduction under §3B1.2 due
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`to Ms. Walker being a minor participant in the underlying offense, resulting in a total
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`offense level of twenty-three. Based on Ms. Walker’s total offense level of twenty-
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`three and criminal history category of I, her Guidelines range was 46 to 57 months.
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`The PSR stated the Probation Office had identified no factor warranting a departure
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`or variance from a Guidelines sentence.
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`Ms. Walker objected to both the seven-level enhancement based on R.T.
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`having sustained a permanent or life-threatening bodily injury and the two-level
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`enhancement based on R.T. having been physically restrained, arguing neither of
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`these enhancements were supported by sufficient evidence. The Probation Office
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`overruled Ms. Walker’s objections. The Government submitted a motion for an
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`upward variance to a term of 120 months, contending the Guidelines range did not
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`sufficiently account for the harm done to R.T. The Government analogized to 18
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`U.S.C. § 3559(f), a federal sentencing statute that was not charged in Ms. Walker’s
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`case, noting the statute required a ten-year minimum sentence for any crime of
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`violence resulting in serious bodily harm to a child. Ms. Walker submitted a motion
`10
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`for a downward variance from a Guidelines sentence, requesting that she receive a
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`term of probation rather than imprisonment. Ms. Walker argued a downward variance
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`was appropriate based on the § 3553(a) factors because she had accepted
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`responsibility for her role in R.T.’s injuries, played a minor role in the offense, had
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`attended parenting classes, and was a productive member of society with gainful
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`employment. Prior to sentencing, the district court informed Ms. Walker and the
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`Government that it was considering an upward variance from the Guidelines range
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`set out in the PSR based on the § 3553(a) factors.
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`At Ms. Walker’s sentencing hearing, the court heard a victim impact statement
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`from R.T.’s father, Mr. Tooahimpah, and R.T.’s assigned guardian ad litem.
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`Mr. Tooahimpah requested that Ms. Walker receive the maximum sentence possible
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`based on the suffering she caused R.T. Mr. Tooahimpah told the court that when R.T.
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`came to live with him, he “was broke[n] emotionally and physically.” Walker ROA
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`Vol. III at 570. R.T.’s guardian ad litem informed the court that R.T. was going to
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`“need significant and ongoing counseling for many, many years” explaining that
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`although R.T.’s bruises had healed, he would have to cope with the trauma he
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`suffered for a long time. Id. at 574.
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`Ms. Walker argued the seven-point enhancement in the PSR was not warranted
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`as no testimony at trial demonstrated R.T. suffered permanent or life-threatening
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`injuries. Ms. Walker also argued against the two-level enhancement based on R.T.
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`having been physically restrained, stating that only Ms. Partain testified at trial that
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`Ms. Walker was present when Mr. Morrison forced R.T. to eat pizza, while other
`11
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`witnesses stated Ms. Walker was not present during the incident. The court overruled
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`Ms. Walker’s objections to both enhancements, determining Dr. Beeson’s testimony
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`demonstrated R.T. suffered life-threatening injuries and Ms. Partain’s testimony was
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`sufficient to show Ms. Walker was present when Mr. Morrison force fed R.T.
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`The court then turned to the § 3553(a) factors. The Government argued an
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`upward variance was warranted because Ms. Walker was an experienced mother,
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`suffered no abuse or threats from Mr. Morrison, Ms. Walker enabled the abuse of
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`R.T. over several months, and Ms. Walker never cooperated with the Government’s
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`investigation, choosing to defend Mr. Morrison rather than R.T. Following the
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`Government’s argument, Ms. Walker informed the court she was no longer seeking a
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`downward variance and instead, asked the court to impose a Guidelines sentence. The
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`court agreed with the PSR’s finding that the Guideline addressing aggravated assault
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`was the most analogous Guideline, but determined the Guideline failed to fully
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`account for the severity of Ms. Walker’s crime. The court concluded that evidence
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`adduced at trial and the victim impact statements at the sentencing hearing
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`demonstrated Ms. Walker allowed Mr. Morrison to move into her home with R.T.
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`just a few days after they started dating, witnessed Mr. Morrison act aggressively
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`with R.T. shortly after he moved in and left the room, continued to leave R.T. in
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`Mr. Morrison’s care, explained away suspicious bruises and marks on R.T., and
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`continued to cover for Mr. Morrison during the investigation. The court also noted
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`that the multitude of injuries identified by Dr. Beeson at the trial demonstrated R.T.’s
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`abuse had been ongoing, as opposed to a single incident. The court agreed with the
`12
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`Government that 18 U.S.C. § 3559(f), a federal statute setting a minimum mandatory
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`sentence of ten years for crimes of violence against children causing serious bodily
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`injuries, was analogous to the criminal conduct here. The court then stated, “An
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`upward variance in this matter will adequately reflect the seriousness of the offense,
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`provide just punishment, afford deterrence to further criminal conduct, and protect
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`the public from further crimes by this defendant. Therefore the motion—the
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`government’s motion [for an upward variance] is granted.” Id. at 593.
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`The court then asked Ms. Walker if she wanted to make a statement, and
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`Ms. Walker took the opportunity to allocute. Ms. Walker asked the court to give her a
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`Guidelines sentence, explaining that she now recognized the mistake she had made
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`letting Mr. Morrison into her life, that she had never previously been in trouble with
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`the law, that she had been taking parenting classes, and that she wanted to be present
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`in her children’s lives. The court proceeded to sentence Ms. Walker to two sentences
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`of 120 months’ imprisonment that would run concurrently.
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`3. Mr. Morrison’s Sentencing
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`Like Ms. Walker’s PSR, Mr. Morrison’s PSR determined the most analogous
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`Guideline to child abuse was USSG §2A2.2, the Guideline for aggravated assault
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`offenses. The PSR also added the same offense level enhancements as were added for
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`Ms. Walker—a seven-level enhancement based on USSG §2A2.2(b)(3)(C) because
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`R.T. “sustained permanent or life-threatening bodily injury,” Morrison ROA Vol. V
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`at 6; a two-level enhancement pursuant to USSG §3A1.1(b)(1) because R.T. was a
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`vulnerable victim; and a two-level enhancement based on USSG §3A1.3 because
`13
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`R.T. “was physically restrained in the course of the offense,” id. at 7. In support of
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`the two-level enhancement under §3A1.3, the PSR noted “[Mr.] Morrison restrained
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`R.T. while he choked him with pizza, hotdogs, or sandwiches on various occasions.”
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`Id. at 7. With a base offense level of 14, and the three enhancements, the PSR
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`calculated an adjusted offense level of 25. The PSR calculated a total criminal history
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`score of 7, establishing a criminal history category of IV, based on Mr. Morrison’s
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`prior convictions for domestic assault and battery by strangulation, violation of
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`protective order, conspiracy to manufacture controlled drugs, unlawful possession of
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`methamphetamine, and possession or selling paraphernalia. Based on his total offense
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`level of 25 and criminal history category of IV, the PSR stated the Guidelines range
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`was 84 to 105 months. The PSR noted the Probation Office had identified no basis
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`for a departure or variance from a Guidelines sentence.
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`As with Ms. Walker, the Government submitted a motion for an upward
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`variance from a Guidelines sentence pursuant to the § 3553(a) factors. The
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`Government argued that, although USSG §2A2.2 was the most analogous Guideline,
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`a variance was necessary because §2A2.2 applied to aggravated assault generally and
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`did not adequately “address the harms of child abuse.” Morrison ROA Vol. II at 35.
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`The Government posited 18 U.S.C. § 3559(f), which sets a twenty-five-year
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`mandatory minimum sentence if a defendant is convicted of kidnapping or maiming a
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`child and a ten-year mandatory minimum sentence where a defendant is convicted for
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`a crime of violence resulting in serious bodily injury to a child, demonstrates how the
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`aggravated assault Guideline does not align with the accountability Congress has
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`imposed in child abuse cases. The Government also noted other federal statutes that
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`impose high mandatory minimums for crimes against children. Applying the
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`§ 3553(a) factors, the Government argued the nature and circumstances of the
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`offense; Mr. Morrison’s history and characteristics; and the need for the sentence
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`imposed to reflect the seriousness of the crime, promote respect for the law, and
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`provide just punishment for the offense, justified an upward variance to a 300-month
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`term.
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`Mr. Morrison objected to the seven-level special offense characteristic and
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`two-level victim related adjustment enhancements in the PSR. Regarding the seven-
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`level enhancement pursuant to §2A2.2(b)(3)(C), Mr. Morrison argued there was
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`insufficient evidence presented at trial for the court to determine that R.T. had
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`sustained permanent or life-threatening injuries. Challenging the two-level
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`enhancement under §3A1.3, Mr. Morrison argued there was insufficient evidence to
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`establish that Mr. Morrison had physically restrained R.T. in the course of the
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`offense. Mr. Morrison also objected to the proposed upward variance, arguing the
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`Government was attempting to impose a trial penalty based on Mr. Morrison’s choice
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`not to accept its plea offer. In support of his argument, Mr. Morrison noted that the
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`Government had agreed to lower sentences, ranging from two years to twenty years’
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`imprisonment, in similar cases also involving heinous child abuse offenses where the
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`Government had reached plea agreements with the defendants. Prior to
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`Mr. Morrison’s sentencing hearing, the district court informed both parties that the
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`court was considering an upward variance from a Guidelines sentence.
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`At the sentencing hearing, the court again heard testimony from
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`Mr. Tooahimpah and R.T.’s guardian ad litem. Mr. Tooahimpah testified that R.T.
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`“was broken emotionally and physically” when he came to live with him, hid from
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`others, and struggled to communicate, make eye contact, or show emotion. Morrison
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`ROA Vol. III at 16. Mr. Tooahimpah stated he “would like to see [Mr. Morrison] get
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`the max sentencing” as “[t]here [was] no amount of time or punishment that could
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`justify the abuse [R.T.] endured.” Id. at 20. R.T.’s guardian ad litem testified that
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`R.T. would potentially need life-long counseling to cope with the trauma he endured.
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`Addressing Mr. Morrison’s objections to the PSR, the court overruled his
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`objection to the seven-level enhancement under §2A2.2(b)(3)(C), determining
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`Dr. Beeson’s testimony at the trial provided sufficient evidence that R.T.’s injuries
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`were life-threatening. Next, after reviewing the definition of “physically restrained”
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`under §1B1.1, comment note 1(L), and Tenth Circuit caselaw interpreting that
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`definition, the court determined Mr. Morrison’s act of holding R.T. while force
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`feeding him pizza satisfied the definition, and it overruled Mr. Morrison’s objection
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`to the application of §3A1.3. Ultimately, the court adopted the PSR in full.
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`Addressing the § 3553(a) factors, Mr. Morrison argued there was no need to depart
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`from a Guidelines sentence as his case was not abnormal and that in cases involving
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`similar conduct the Government had agreed in plea agreements to significantly lower
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`sentences than it requested for Mr. Morrison. The district court judge noted he had
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`reviewed the cases Mr. Morrison had cited where similar offenses resulted in lower
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`prison terms through plea agreements but that he could speak to only one of the
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`cases, where he was the sentencing judge. The district court judge explained that, in
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`that case, he had agreed to a twenty-year sentence only because there was an
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`acceptance of responsibility and a request from the victim’s family for the court to
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`accept the plea agreement. The court then noted that although the aggravated assault
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`Guideline was the most analogous to Mr. Morrison’s crimes, Mr. Morrison’s “case
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`show[ed] how inappropriate a strict application of the aggravated assault guideline
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`would be to address the harms of child abuse.” Id. at 36.
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`The court proceeded to assess the § 3553(a) factors in relation to
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`Mr. Morrison’s case. First, the court determined “[t]he nature and circumstances of
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`the offenses” were “grave” considering the pattern of abuse adduced by testimony at
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`the trial and the severity of R.T.’s injuries. Id. at 36–37. The court further determined
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`Mr. Morrison’s “history and characteristics” supported an upward variance because
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`of Mr. Morrison’s “prior conviction for a domestic assault and battery by
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`strangulation.” Id. at 37. The court noted Mr. Morrison’s prior domestic violence
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`conviction, which resulted in him being incarcerated, had not deterred him from
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`continuing to act with escalating violence towards a more vulnerable victim. Finally,
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`addressing the possibility of disparities between sentences, the court noted “that strict
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`application of the guideline provisions to assimilated crimes would cause, rather than
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`mitigate, disparity between [Mr. Morrison] and other defendants with similar
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`records.” Id. at 38. The court determined the Government’s analogy to the minimum
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`sentences under 18 U.S.C. § 3559(f) was persuasive and showed “that Congress gives
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`great weight to consequences for committing a violent crime against a child.” Id. at
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`38. Determining a Guidelines sentence would be “woefully inadequate,” the court
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`“f[ound] that an upward variance [was] warranted in [Mr. Morrisons’] case” and
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`stated “the [G]overnment’s motion will be granted in terms of a request for an
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`upward variance.” Id. at 39. After stating it was granting the Government’s motion
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`for an upward variance, the district court gave Mr. Morrison the opportunity to
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`allocute. Mr. Morrison declined to address the court. The court then sentenced
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`Mr. Morrison to 300 months’ imprisonment.
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`4.
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`Appeals
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`Mr. Morrison and Ms. Walker timely filed notices of appeal. On appeal,
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`Ms. Walker raises five challenges to her conviction, two of which are joined by
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`Mr. Morrison. She also raises one challenge to her sentence. Mr. Morrison raises four
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`challenges to his sentence, all of which Ms. Walker joins.
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`First, Ms. Walker, joined by Mr. Morrison, argues under plain error review
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`that Okla. Stat. tit. 21, § 843.5(B) is unconstitutionally vague, stating the statute does
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`not set any standard or element to distinguish between misdemeanor and felony
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`offenses. In his notice of joinder, Mr. Morrison contends the same argument applies
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`equally to his statute of conviction, Okla. Stat. tit. 21, § 843.5(A). Second and
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`relatedly, Ms. Walker, joined by Mr. Morrison, argues the district court plainly erred
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`by not adopting their proposed instructions asking the jury to determine whether
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`Ms. Walker’s and Mr. Morrison’s conduct constituted misdemeanor or felony
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`offenses. Third, Ms. Walker asserts the district court plainly erred by failing to
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`instruct the jury about two exceptions to child abuse listed under Okla. Stat. tit. 10A,
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`§ 1-1-105(2) (2019), accidental harm and the ordinary use of force as a means of
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`discipline. Fourth, Ms. Walker contends the district court erred in denying her motion
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`for acquittal because the Government presented insufficient evidence to satisfy the
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`knowledge element necessary for conviction under § 843.5(B). Fifth, Ms. Walker
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`argues the district court’s cumulative e