Appellate Case: 20-5091 Document: 010110621281 Date Filed: 12/20/2021 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 20, 2021
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-5091
WILKIE BILL BURTRUM, a/k/a Junior,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:19-CR-00247-GKF-1)
_________________________________
Barbara L. Woltz, Research and Writing Specialist (Julia L. O’Connell, Federal Public
Defender, and Barry L. Derryberry, Assistant Federal Public Defender, with her on the
briefs) Northern and Eastern Districts of Oklahoma, Tulsa, Oklahoma, for Defendant –
Appellant.
Leena Alam, Assistant United States Attorney, Tulsa, Oklahoma (Clinton J. Johnson,
Acting United States Attorney; M. Scott Proctor and Shannon Cozzoni, Assistant United
States Attorneys, Tulsa, Oklahoma; Nicholas L. McQuaid, Acting Assistant Attorney
General, Robert A. Zink, Acting Deputy Assistant Attorney General, and Sofia M.
Vickery, Appellate Section Attorney, United States Department of Justice, Washington,
DC, with her on the briefs) for Plaintiff – Appellee.
_________________________________
Before McHUGH, EBEL, and EID, Circuit Judges.
_________________________________
McHUGH, Circuit Judge.
_________________________________
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After a bench trial, the United States District Court for the Northern District of
Oklahoma found Appellant Wilkie1 Bill Burtrum guilty of one count of aggravated
sexual abuse and one count of sexual abuse in Indian country under 18 U.S.C.
§ 2241(c) and
18 U.S.C. § 2242. Because Mr. Burtrum had previously been convicted
of aggravated sexual abuse in Indian country, the district court sentenced him to
mandatory life imprisonment on the first count pursuant to
18 U.S.C. § 3559(e). The
court sentenced him to 360 months on the second count. And it ordered Mr. Burtrum
to pay the victim $5,850 in restitution for the equivalent of a year-and-a-half of
weekly equine therapy sessions.
On appeal, Mr. Burtrum argues his aggravated sexual abuse conviction was
supported by insufficient evidence, his mandatory life sentence is unconstitutional,
and a portion of the restitution award was not reasonably certain or supported by
sufficient evidence. We hold the aggravated sexual abuse conviction was supported
by sufficient evidence, the mandatory life sentence is constitutional, and the
restitution award was a reasonably certain estimate supported by evidence. Therefore,
we affirm the conviction, sentence, and restitution award.
1
Mr. Burtrum’s first name has been spelled as both “Wilkie” and “Willkie” in
the record. See, e.g., ROA Vol. I at 1–11 (reflecting both spellings in the district
court docket). Because “Wilkie” is the spelling that currently appears on this court’s
docket, and the parties have not clarified which spelling is correct, we use the
“Wilkie” spelling in this order.
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I. BACKGROUND
A. Factual Background
In 1992, a jury sitting in the United States District Court for the Northern
District of Oklahoma convicted Mr. Burtrum of two counts of aggravated sexual
abuse of a child and two counts of abusive sexual contact with a child. More than
twenty-five years later, in 2018, Mr. Burtrum’s nine-year-old step-nephew, C.C.,
moved into a home on Mr. Burtrum’s property located in a Quapaw Nation allotment.
Mr. Burtrum developed a close relationship with C.C. He worked with C.C. nearly
every day, and he allowed C.C. to access a swimming pool on his property. But
Mr. Burtrum took advantage of their close relationship and sexually abused C.C.
when they were alone together.
In October 2019, David Buffalo, C.C.’s step-uncle, warned C.C.’s father that
Mr. Burtrum might be sexually abusing C.C. C.C.’s father took immediate action and
reported his concerns to the Quapaw marshals.
As part of their investigation, the Quapaw marshals interviewed Mr. Burtrum.
Mr. Burtrum denied sexually abusing C.C., but he admitted he may have accidentally
touched C.C.’s penis when they were moving a pickup truck together or when they
were trying to find lights at a warehouse. Mr. Burtrum also said, “[i]f the boy said I
touched his penis, I touched his penis.” ROA Vol. II at 59.
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B. Procedural Background
1. Trial
A federal grand jury returned an indictment against Mr. Burtrum with one
charge of aggravated sexual abuse under 18 U.S.C. § 2241(c) (aggravated sexual
abuse of a child) and one charge of sexual abuse under
18 U.S.C. § 2242 (sexual
abuse). With Mr. Burtrum’s consent, the district court held a bench trial on both
counts of the indictment. Prior to trial, the parties stipulated to the following facts:
(1) Mr. Burtrum is an Indian and a member of the Quapaw Nation; (2) in 1992,
Mr. Burtrum was convicted of two counts of aggravated sexual abuse with children
and two counts of abusive sexual contact with children in Indian country; and (3)
Mr. Burtrum’s property was within Indian country, as defined by
18 U.S.C. § 1151.
At trial, C.C. testified that Mr. Burtrum touched his “bad spots” “by [his]
butt.” Id. at 48. The prosecutor asked him to identify his “bad spots” on a diagram of
a male body, and C.C. circled the penis.
Id. The prosecutor then asked C.C. to
identify the butt on the diagram, so C.C. put an “X” over the butt. C.C. said
Mr. Burtrum touched his “bad spots” while they were alone in three locations:
Mr. Burtrum’s warehouse, the shed on the property, and Mr. Burtrum’s home.
Id.
C.C. testified that Mr. Burtrum touched him both over and under the clothes, and he
explained that Mr. Burtrum put his hand inside the top of his pants to touch C.C.’s
“bad spots” under the clothes. C.C. said Mr. Burtrum told him not to tell anyone
about the touching. He also said he did not remember if Mr. Burtrum had ever
accidentally touched his penis, but the touching he described was different from
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accidental touching. C.C. demonstrated how Mr. Burtrum would touch his penis by
putting his hand in a circle and rubbing with the thumb.
A Quapaw marshal also testified about the interview with Mr. Burtrum. The
marshal said Mr. Burtrum “initially denied any involvement,” but Mr. Burtrum also
stated, “[i]f the boy said I touched his penis, I touched his penis.” Id. at 59.
After the Government rested its case, Mr. Burtrum sought a directed verdict on
the aggravated sexual abuse charge. He argued the Government had not produced
evidence or testimony that Mr. Burtrum touched C.C.’s penis “not through the
clothing.” Id. at 81. Mr. Burtrum suggested that C.C.’s testimony could have meant
that Mr. Burtrum touched him under the pants but with underwear between
Mr. Burtrum’s hand and the penis, which would not satisfy the direct contact required
by § 2241(c). The Government responded that C.C. clearly “testified to both over and
under the clothing” touching. Id. at 82. The district court denied Mr. Burtrum’s
motion for a directed verdict and found him guilty of both counts.
2. Sentencing
Because Mr. Burtrum was convicted of aggravated sexual abuse for a second
time, he was subject to a mandatory life sentence under 18 U.S.C. § 3559(e). In a
sentencing memorandum and at the sentencing hearing, Mr. Burtrum argued the
mandatory life sentence was unconstitutional, both facially and as applied to him.
According to Mr. Burtrum, the Eighth Amendment requires sentences to be tailored
to the specific offender and the specific offense, and the mandatory life sentence
under § 3559(e) was not tailored to either. He acknowledged, however, that binding
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Supreme Court case law did not support his argument and that he was raising the
issue as a good faith argument for a change in the law.
The district court held the mandatory life sentence was constitutional under
binding Supreme Court precedent. Then, the district court imposed the mandatory life
sentence for the aggravated sexual abuse conviction and imposed a sentence of 360
months for the sexual abuse conviction, with the sentences to run concurrently.
The district court also heard evidence about restitution due from Mr. Burtrum
for the cost of C.C.’s therapy. Jessica Mullin, the program director at Modoc Youth
and Family Services, testified that C.C. would be a good candidate for equine
therapy. She explained patients typically attend therapy every week for at least a
year, after which the patient is evaluated to determine how much therapy is needed
going forward. She said in C.C.’s case, it would be best to have the option to provide
two years of therapy so he could taper off his sessions after the first year. She
explained the taper-off period would be based on need, and after a year “he may still
need weekly sessions. He may just need biweekly and then graduate to monthly and
then terminate from services.” ROA Vol. III at 56–57.
The Government sought restitution in an amount equivalent to two years of
weekly therapy so C.C. would have the flexibility to continue therapy on a weekly
basis throughout the second year as necessary. Mr. Burtrum argued only one year of
therapy was reasonably certain based on Ms. Mullin’s testimony. The district court
found the equivalent of a year-and-a-half of weekly therapy sessions was a
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reasonably certain estimate and ordered Mr. Burtrum to pay $5,850. The next day,
Mr. Burtrum timely filed his notice of appeal.
II. DISCUSSION
On appeal, Mr. Burtrum challenges his conviction under 18 U.S.C. § 2241(c),
arguing the evidence was not sufficient to support the conviction. He contends the
mandatory life sentence under § 3559(e) is unconstitutional. And he claims the
district court abused its discretion in determining the restitution amount. We address
each argument in turn, affirming the district court on all three issues.
A. Sufficient Evidence
1. Standard of Review
“We review the sufficiency of evidence de novo.” United States v. Sharp, 749
F.3d 1267, 1275 (10th Cir. 2014) (quotation marks omitted). This review is “highly
deferential,” meaning we consider the evidence and make reasonable inferences in
the light most favorable to the Government. United States v. Pickel,
863 F.3d 1240,
1251 (10th Cir. 2017). We “will not weigh conflicting evidence or consider witness
credibility.” United States v. Ramos-Arenas,
596 F.3d 783, 786 (10th Cir. 2010)
(internal quotation marks omitted). And we will reverse the conviction only “if no
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Pickel,
863 F.3d at 1251 (internal quotation marks omitted).
2. “Sexual Act”
Mr. Burtrum challenges his conviction for aggravated sexual abuse, claiming
there was not sufficient evidence that he engaged in a “sexual act” with C.C. See 18
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U.S.C. § 2241(c) (prohibiting “knowingly engag[ing] in a sexual act with another
person who has not attained the age of 12 years”). The definition of “sexual act”
includes “the intentional touching, not through the clothing, of the genitalia of
another person who has not attained the age of 16 years with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”
18 U.S.C. § 2246(2)(D). This definition requires “the direct touching of genitals with
certain sexual or abusive intents.”2 United States v. White,
782 F.3d 1118, 1137 (10th
Cir. 2015); cf.
18 U.S.C. § 2246(3) (defining “sexual contact” as intentional touching
of various sexual body parts either directly or through the clothing).
3. Analysis
Mr. Burtrum argues there was not enough evidence to support his conviction
for aggravated sexual abuse because there was no evidence that he made direct
contact with C.C.’s penis. He rejects C.C.’s testimony on this point as inconclusive,
stating, “it is possible that C.C. meant that Mr. Burtrum touched him under his pants,
but over his underwear.”3 Aplt. Br. at 18. Mr. Burtrum misapprehends the relevant
2
Mr. Burtrum argues a sexual act requires “‘skin-to-skin touching.’” Aplt. Br.
at 14 (quoting United States v. Forster, 549 F. App’x 757, 768 n.7 (10th Cir. 2013)
(unpublished)). However, Mr. Burtrum challenges only whether contact was made
with C.C.’s skin. Therefore, we need not decide whether the defendant’s skin must
also be uncovered and make direct contact with the victim’s skin to be a “sexual act”
within the meaning of the statute.
3
In his reply brief, Mr. Burtrum also asserts a new argument that he did not
raise in his opening brief or at trial: that C.C.’s testimony was ambiguous because he
identified his “bad spots” to include both his penis and his butt. Because touching of
the butt, whether over or under the clothes, would not constitute a sexual act, Mr.
Burtrum contends the evidence does not support the § 2241(c) conviction. See 18
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inquiry. “The question in a sufficiency-of-the-evidence challenge is not whether a
reasonable jury could possibly conceive of an alternative interpretation of the
evidence at trial.” United States v. White Bull, 646 F.3d 1082, 1089 (8th Cir. 2011). It
is whether a rational trier of fact could have found the elements beyond a reasonable
doubt. Pickel,
863 F.3d at 1251.
From C.C.’s trial testimony, a rational trier of fact could find that Mr. Burtrum
made direct contact with C.C.’s penis. C.C. testified Mr. Burtrum touched his “bad
spots” that were “by [his] butt.” ROA Vol. II at 48. When the prosecutor asked C.C.
to identify the “bad spots,” C.C. circled the penis on a diagram of a male body. Id.
The prosecutor also asked C.C. if Mr. Burtrum “touched [him] over or under his
clothing,” to which C.C. answered “[b]oth.” Id. at 49. C.C. further explained that
Mr. Burtrum “would put his hand inside” the top of his pants to touch him under the
clothes. Id. at 50. And C.C. demonstrated to the court how Mr. Burtrum would touch
him by making a circle with his hand and showing how Mr. Burtrum used his thumb
to rub the penis. Id. at 53. Finally, the Quapaw marshal testified that Mr. Burtrum had
stated, “[i]f the boy said I touched his penis, I touched his penis.” Id. at 59. From this
U.S.C. § 2246(2) (including touching of the genitalia of another person in the
definition of a sexual act). “An issue or argument insufficiently raised in the opening
brief,” like this one, “is deemed waived.” Commonwealth Prop. Advocates, LLC v.
Mortg. Elec. Registration Sys., Inc.,
680 F.3d 1194, 1200 (10th Cir. 2011) (quotation
marks omitted). An argument is also waived when it is not raised before the district
court and the appellant fails to make a plain-error argument on appeal. United States
v. Leffler,
942 F.3d 1192, 1196 (10th Cir. 2019). Mr. Burtrum did not make a plain-error argument here. Thus, Mr. Burtrum has waived this argument, and we will not
consider it.
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evidence, a reasonable fact finder could conclude Mr. Burtrum performed a sexual
act on C.C.
Mr. Burtrum disagrees, relying on the Eighth Circuit’s analysis in United
States v. White Bull. There, a jury convicted Mr. White Bull of five counts of
aggravated sexual abuse with a child in Indian country under § 2241(c). White Bull,
646 F.3d at 1086. Like Mr. Burtrum, Mr. White Bull argued the government had not
presented sufficient evidence that he engaged in “sexual acts” with a child.
Id. at
1088. The Eighth Circuit determined there was sufficient evidence to support a
conviction under one count because the victim “testified that [the defendant] touched
her ‘private part’ and her ‘middle’ while her pants and underwear were down” and
identified her “private part” by drawing “a circle on a figure around the area where
the torso meets the legs.”
Id. at 1089. The court affirmed this conviction because,
from the testimony, a jury could reasonably infer the defendant touched the victim’s
genitalia directly.
Id. With respect to the other four counts, however, the Eighth
Circuit reversed because the only evidence supporting those convictions was the
victim’s testimony that “it” happened four other times without specifying what “it”
meant.
Id. at 1090.
Mr. Burtrum argues that, as with the four unsupported counts in White Bull,
C.C.’s testimony did not include the details necessary to support an aggravated
sexual abuse conviction. In our view, however, C.C.’s testimony is most comparable
to the testimony that supported the first conviction in White Bull. There, as here, the
victim did not explicitly say the defendant touched her uncovered genitalia. But the
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court affirmed the conviction because there was enough evidence for a reasonable
fact finder to infer that Mr. White Bull touched her genitalia “not through the
clothing.” Id. at 1089.
We reach the same conclusion here. As in White Bull, a reasonable fact finder
could infer from the evidence that Mr. Burtrum touched C.C.’s penis under his
clothes, including under his underwear. Taking all reasonable interpretations of the
evidence in favor of the Government, as we must, we hold the evidence was
sufficient to support the conviction under § 2241(c).
B. Cruel and Unusual Punishment
With a repeat conviction of aggravated sexual abuse, Mr. Burtrum became
subject to a mandatory sentence of life imprisonment. See 18 U.S.C. § 3559(e)(1).
Mr. Burtrum argues that the mandatory life sentence is unconstitutional as applied to
him.4 We review the constitutionality of sentences de novo. United States v. Angelos,
433 F.3d 738, 750 (10th Cir. 2006); United States v. Eaton,
260 F.3d 1232, 1237
(10th Cir. 2001). Challenges to the constitutionality of a federal statute are also
reviewed de novo. United States v. Price,
265 F.3d 1097, 1106 (10th Cir. 2001).
According to Mr. Burtrum, the Eighth Amendment’s prohibition against “cruel
and unusual punishments” requires that sentences be imposed on a case-by-case basis
after considering the specific person and the specific crime. Mr. Burtrum concedes,
4
Mr. Burtrum told the district court his constitutional challenge of the
mandatory life sentence was both facial and as applied to him. On appeal, however,
Mr. Burtrum argues only that § 3559(e) is unconstitutional as applied to him, so we
limit our review to the as-applied challenge.
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however, that we cannot give him his requested relief under Harmelin v. Michigan,
501 U.S. 957 (1991).
In Harmelin, the Supreme Court determined the Eighth Amendment does not
require individualized sentencing in non-capital cases. 501 U.S. at 994–96.
Furthermore, “[t]he Eighth Amendment does not require strict proportionality
between crime and sentence. Rather, it forbids only extreme sentences that are
‘grossly disproportionate’ to the crime.” Id. at 1001 (Kennedy, J., concurring). To
determine whether a sentence is grossly disproportionate, courts compare the gravity
of the offense to the severity of the sentence.
Id. at 1005 (Kennedy, J., concurring);
see also Angelos,
433 F.3d at 750 (applying the narrow proportionality test Justice
Kennedy articulated in Harmelin).
Mr. Burtrum was convicted of two counts of aggravated sexual abuse of a
child in 1992, and he was convicted of another count of aggravated sexual abuse of a
child in 2020. It is beyond dispute that aggravated sexual abuse of a child is a serious
crime that can severely affect vulnerable child victims intellectually, emotionally,
and physically throughout their lives. As a result, Congress has determined that
“recidivism in sexual crimes against children ought to trigger a much harsher
sentence.” United States v. Kniffley, 729 F. App’x 406, 412 (6th Cir. 2018)
(unpublished); see
18 U.S.C. § 3559(e). Thus, although a mandatory life sentence is a
severe penalty, it is not disproportionately so. We agree with the district court that
Mr. Burtrum’s mandatory life sentence is constitutional, and we affirm the sentence.
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C. Restitution
Mr. Burtrum also challenges the amount the district court ordered him to pay
in restitution. “We review the legality of a restitution order de novo, the district
court’s factual findings for clear error, and the amount of restitution for abuse of
discretion.” United States v. Parker, 553 F.3d 1309, 1323 (10th Cir. 2009).
Federal law requires a district court to order a defendant who is convicted of a
sexual abuse offense to pay restitution for “medical services relating to physical,
psychiatric, or psychological care.” 18 U.S.C. § 2248. “Any dispute as to the proper
amount or type of restitution shall be resolved by the court by the preponderance of
the evidence.”
Id. § 3664(e). “[D]istrict courts must estimate the amounts that victims
will spend on future counseling with reasonable certainty, in accordance with the
procedures set forth in
18 U.S.C. § 3664.” United States v. Julian,
242 F.3d 1245,
1248 (10th Cir. 2001) (quoting United States v. Laney,
189 F.3d 954, 967 n.14 (9th
Cir. 1999)). We have also held that “restitution orders pertaining to costs associated
with medical and related services must be specific and contain details as to dollars
not generalities, and that the district court must support its restitution order with
findings of fact in the record.”
Id. (internal quotation marks omitted).
Mr. Burtrum argues the district court did not apply the reasonable certainty
standard and the evidence did not support a finding that therapy beyond one year was
reasonably certain. In our view, the record repudiates both claims.
First, the district court expressly “adopt[ed] the defendant’s suggested standard
of reasonable certainty and “award[ed] restitution in the amount of $5,850.” ROA
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Vol. III at 64. Second, the court’s finding was based on Ms. Mullin’s testimony that
C.C. would need one year of weekly sessions and that the sessions would taper off in
the second year if things were going well. This evidence supports a finding that
between one and two years of therapy was a reasonably certain estimate. Therefore,
the district court did not abuse its discretion by ordering Mr. Burtrum to pay $5,850,
the equivalent of a year-and-a-half of weekly therapy sessions, in restitution.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the conviction, sentence, and
restitution award.
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