113634P.pdf   11/05/2013  United States  v.  James Bruguier
   U.S. Court of Appeals Case No:  11-3634
   U.S. District Court for the District of South Dakota - Sioux Falls   
   [PUBLISHED] [Shepherd, Author for the Court En Banc] 
   Criminal case - Criminal law. In order to establish a violation of 18 
   U.S.C. Sec. 2242(2), the government must show not only that the victim was 
   incapacitated but that the defendant knew the victim was incapable of 
   appraising the nature of the conduct or physically incapable of declining 
   participation in or communicating unwillingness to engage in the sexual 
   act; here the failure to give defendant's proposed instruction on this 
   element deprived him of his defense that he did not know the victim was 
   incapacitated or otherwise unable to deny consent; as a result, 
   defendant's conviction under section 2242(2) must be reversed and the case 
   remanded for a new trial; evidence was sufficient to convict defendant of 
   burglary under South Dakota Codified Laws Sec. 22-32-1. Riley, Chief 
   Judge, with Bright, Circuit Judge, concurring. Murphy,with Bye, Colloton, 
   Gruender and Benton, Circuit Judges, dissenting. 
  
113634P.pdf   12/21/2012  United States  v.  James Bruguier
   U.S. Court of Appeals Case No:  11-3634
   U.S. District for the District of South Dakota - Sioux Falls   
   [PUBLISHED] [Murphy, Author, with Bright and Colloton, Circuit Judges] 
   Criminal Case - conviction and sentence. District court did not abuse its 
   discretion in instructing jury by declining to add a fifth element of 
   knowledge that victim was physically incapable of declining or communication 
   her unwillingness to participate.  Burguier's argument that instruction 
   constructively amended the indictment fails.  Evidence was sufficient to 
   sustain burglary conviction.  District court did not commit procedural 
   error in applying five-level enhancement for a pattern of covered sex 
   offenses under section 4B1.5(b)(1) and correctly grouped the offenses.  
   Bruguier was not eligible for an acceptance of responsibility reduction.  
   The district court did not err in applying the vulnerable victim enhancement.  
   Judge Bright dissents. (Opinion filed 12/13/2012 now contains Judge 
   Bright's dissent).  
  
113634P.pdf   12/13/2012  United States  v.  James Bruguier
   U.S. Court of Appeals Case No:  11-3634
   U.S. District Court for the District of South Dakota - Sioux Falls   
   [PUBLISHED] [Murphy, Author, with Bright and Colloton, Circuit Judges] 
   Criminal Case - conviction and sentence. District court did not abuse its 
   discretion in instructing jury by declining to add a fifth element of 
   knowledge that victim was physically incapable of declining or communication 
   her unwillingness to participate.  Burguier's argument that instruction 
   constructively amended the indictment fails.  Evidence was sufficient to 
   sustain burglary conviction.  District court did not commit procedural 
   error in applying five-level enhancement for a pattern of covered sex 
   offenses under section 4B1.5(b)(1) and correctly grouped the offenses.  
   Bruguier was not eligible for an acceptance of responsibility reduction.  
   The district court did not err in applying the vulnerable victim enhancement.  
   Judge Bright dissents.