United States v. Shumway

112 F.3d 1413 (1997)

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United States v. Shumway

United States Court of Appeals for the Tenth Circuit
112 F.3d 1413 (1997)

Facts

Earl Shumway (defendant) was experienced in looting archaeological sites. That is, he engaged in illegally finding, excavating, and selling archaeological artifacts for profit. Shumway and two others visited two separate archaeological sites, Dop-Ki Cave and Horse Rock Ruin, to loot them. Shumway excavated and removed a burial blanket that had been wrapped around the remains of an infant from Dop-Ki and sandals and a sleeping mat from Horse Rock Ruin. Shumway was indicted and convicted for violating the Archaeological Resources Protection Act (the act). At trial, the government (plaintiff) established, through the testimony of two archaeologists, that the archaeological value and cost of restoration and repair totaled $137,200 based on the cultural, scientific, and spiritual damage caused by Shumway’s taking of the artifacts. As a result, the sentencing judge implemented a sentencing enhancement of nine points with respect to Shumway’s offense level pursuant to the United States Sentencing Guidelines guidance for offenses in which the property taken was valued at over $120,000. The court used this method rather than the fair market value because the fair market value was a mere $9,122 and did not adequately reflect the damage caused. The district court sentenced Shumway to serve 78 months in prison. Shumway appealed.

Rule of Law

Issue

Holding and Reasoning (Brorby, J.)

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