United States of America v. Joshua Isaac Sharp

United States Court of Appeals
For the Eighth Circuit
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No. 23-3459
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United States of America
Plaintiff - Appellee
v.
Joshua Isaac Sharp
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Western
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Submitted: September 23, 2024
Filed: October 25, 2024
[Unpublished]
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Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
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PER CURIAM.
Joshua Sharp pleaded guilty to abusive sexual contact, see 18 U.S.C. §§ 1152
and 2244(a)(5), and possession of child pornography, see id. § 2252A(a)(5)(B). For
over two years, Sharp sexually abused T.P., the daughter of his girlfriend. T.P., a
Native American child between ages nine and eleven at the time, viewed Sharp as a
stepfather. Sharp at times forced T.P. to consume alcohol and marijuana prior to

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engaging in sexual acts. In one illustrative instance that took place in T.P.’s family
member’s home, Sharp showed T.P. pornographic videos and digitally penetrated
her while covering her mouth with his hand so she could not scream for help, then
forced her to perform oral sex on him. Sharp instructed T.P. not to tell anyone about
his conduct, and T.P. was afraid that Sharp would hurt her if she did not comply.
The district court1 accepted Sharp’s plea and sentenced him to 360 months’
imprisonment for abusive sexual contact, and 240 months’ imprisonment for
possession of child pornography, to be served concurrently. The sentence was based
on a total offense level of 42 and a criminal history category of IV, which supported
an advisory guidelines range of 360 months’ to life imprisonment. The offense level
included a four-level upward adjustment because “the offense involved conduct
described in 18 U.S.C. § 2241(a) or (b).” See U.S.S.G. § 2A3.1(b)(1). The district
court applied this upward adjustment because Sharp’s sexual abuse—which
included covering T.P.’s mouth to prevent her from screaming—involved the use of
force, see 18 U.S.C. § 2241(a)(1), and because he threatened her, see id. §
2241(a)(2).
Sharp appeals this sentence on two grounds. First, he argues that the district
court committed significant procedural error when it applied the four-level increase
to his offense level. Second, he argues that the sentence is substantively
unreasonable. We affirm the district court with respect to both.
We first address Sharp’s argument that the district court committed significant
procedural error when it applied the four-level increase to his offense level under the
guidelines. “We review a district court’s interpretation and application of the
Guidelines de novo . . . and the factual determinations underlying the district court’s
decision for clear error.” United States v. Mayer, 63 F.4th 680, 684 (8th Cir. 2023)
(internal citations and quotation marks omitted).
1 The Honorable Karen E. Schreier, United States District Judge for the
Western District of South Dakota.

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Starting with the underlying factual determinations, the district court did not
clearly err when it concluded that Sharp used force and threats against T.P. This
conclusion was based on the Presentence Investigation Report (“PSR”) and
accompanying testimony by the FBI case agent, Erik Doell. Among other episodes
of sexual abuse, the PSR recounts an instance when Sharp covered T.P.’s mouth so
she could not scream for help while he digitally penetrated her. PSR ¶ 11.
Additionally, “T.P. expressed fear [Sharp] might ‘slap’ or otherwise hurt her” if she
disclosed Sharp’s actions to anyone. Id. ¶ 13 (emphasis removed). Agent Doell
testified that the PSR’s descriptions of these events accurately summarize the
information that law enforcement learned from forensic interviews of T.P. Sharp
objected to these portions of the PSR, specifically to allegations of force or threats.
“If a defendant objects to factual statements in a PSR, then the sentencing court may
not rely on those facts unless the government proves them by a preponderance of the
evidence.” United States v. Bowers, 743 F.3d 1182, 1184 (8th Cir. 2014). The
district court, having considered Agent Doell’s testimony with respect to the
objected portions of the PSR, determined that the Government had proven by a
preponderance of the evidence that Sharp used force and threats against T.P. We
detect no clear error in the court’s factual determination.
Turning to the district court’s application of the guidelines, which we review
de novo, we find that the four-level enhancement was appropriate because “the
offense involved conduct described in 18 U.S.C. § 2241(a) or (b).” See U.S.S.G.
§ 2A3.1(b)(1). Sexual abuse involving the use of force and threats is covered by 18
U.S.C. § 2241(a).2 Accordingly, the four-level increase in Sharp’s offense level was
warranted.
2 Sharp also coerced T.P. into consuming alcohol and marijuana while
engaging in sexual conduct. See PSR ¶ 9. Although the district court does not rely
on this, it serves as an independent basis for the four-level enhancement, see 18
U.S.C. § 2241(b)(2), and “we may affirm” a sentence “on any ground supported by
the record.” United States v. Cutler, 87 F.4th 893, 895 (8th Cir. 2023).

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Next, Sharp argues that his sentence is substantively unreasonable. We
review his sentence for abuse of discretion. See Gall v. United States, 552 U.S. 38,
51 (2007). “A district court abuses its discretion when it (1) fails to consider a
relevant factor that should have received significant weight; (2) gives significant
weight to an improper or irrelevant factor; or (3) considers only the appropriate
factors but in weighing those factors commits a clear error of judgment.” United
States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (internal quotations
and citations omitted). We “typically accord” a sentence within the guidelines range
“a presumption of reasonableness.” United States v. Scales, 735 F.3d 1048, 1052
(8th Cir. 2013) (citation omitted). “[I]t will be the unusual case when we reverse a
district court sentence—whether within, above, or below the applicable Guidelines
range—as substantively unreasonable.” Feemster, 572 F.3d at 464.
Here, the sentence of 360 months’ imprisonment is within the guidelines
range of 360 months’ to life imprisonment. Sharp contends that the district court
erred in its weighing of the 18 U.S.C. § 3553(a) sentencing factors by giving too
little weight to mitigating aspects of Sharp’s background. He notes that the district
court’s sentencing decision did not address Sharp’s traumatic upbringing, lack of
education, and psychological issues—issues that were addressed in the PSR and by
Sharp’s counsel during sentencing. However, “[w]here the district court heard
argument from counsel about specific § 3553(a) factors, we may presume that the
court considered those factors,” even in the absence of a “mechanical recitation” by
the district court of the factors. United States v. Diaz-Pellegaud, 666 F.3d 492, 504
(8th Cir. 2012). Further, a “district court has wide latitude to weigh the § 3553(a)
factors in each case and assign some factors greater weight than others in
determining an appropriate sentence.” United States v. Wisecarver, 911 F.3d 554,
557 (8th Cir. 2018). The district court heard the mitigating factors put forth by
Sharp’s counsel. The court then based its sentence on the egregiousness of Sharp’s
conduct, how Sharp abused his stepfather-like role of authority, and the need to
protect the public from sex offenders. These are all permissible factors for the
district court to consider. See 18 U.S.C. § 3553(a). There was no clear error of

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judgment in the district court’s weighing of the § 3553(a) sentencing factors.
Therefore, we discern no abuse of discretion.
Affirmed.
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