Description: Tulsa, Oklahoma criminal defense lawyer represented defendant charged with kidnapping and assult of his ex-wife.

After they divorced in the summer of 2016, Hamett began stalking and
harassing A.H., who lived in Tulsa County, Oklahoma. She changed the locks on her
doors, installed a security system, and obtained a protective order against Hamett.
He did not stop stalking her, however, but instead surveilled her from the woods
outside her residence and spent months planning how to kidnap her. On April 25,
2017, he parked his truck at a nearby store, walked to A.H.’s house with a bag of
tools, and stayed hidden outside until she left for work. He then cut a hole in the side
of her house, climbed inside, and patched the hole.

When A.H. returned home from work, Hamett fired a taser at her, striking her
spine near the location of a previous spinal fusion and causing her extreme physical
pain. Hamett then pointed a loaded gun at A.H.; bound her wrists and ankles; and
threatened to kill himself, her, and anyone else who might walk into the house. Over
the next 26 to 27 hours, Hamett stole items from A.H.’s house, including a firearm
and ammunition she had purchased for self-defense; tied her up in the backseat of her
car and drove it to the store where his truck was parked; forced her into the back of
his truck, breaking at least one of her ribs in the process; sexually assaulted her;
threatened to kill anyone she asked for help; and kept her in constant fear for her life.
A.H. was eventually able to send a message to her family, and the police found A.H.
and Hamett at the hotel in Arkansas where Hamett had taken her.

In 2018, following a jury trial in which Hamett requested and was granted the
right to represent himself, a jury convicted Hamett of three felony counts:
kidnapping, possessing a stolen firearm and ammunition, and possessing firearms and
ammunition while subject to a domestic-violence protective order. The district court
sentenced Hamett to 240 months of imprisonment on the kidnapping count and
concurrent 120-month sentences on the other two counts.
In June 2020, a panel of this court reversed Hamett’s convictions and
remanded for a new trial, holding that his mid-trial waiver of his right to counsel was
invalid because it was not knowingly and intelligently made. See United States v.
Hamett, 961 F.3d 1249, 1263 (10th Cir. 2020).

Less than one month later, the Supreme Court issued its opinion in McGirt v.
Oklahoma, 140 S. Ct. 2452 (2020), holding that the Muscogee (Creek) Nation
Reservation had not been disestablished. Because Hamett is a member of the
Cherokee Nation and A.H.’s residence was now recognized to be on Indian land, the
McGirt decision caused more of Hamett’s crimes to fall under federal rather than
state jurisdiction. Accordingly, on remand the grand jury indicted Hamett on a
superseding indictment that (1) changed Count 1 to specifically allege kidnapping
“within Indian Country,” and (2) added nine additional counts. These additional
counts included charges of carjacking (Count 2), assault with a dangerous weapon in
Indian country (Count 7), and using or brandishing a dangerous weapon in
furtherance of both of those offenses (Counts 11 and 12).

A jury found Hamett guilty of all twelve counts, and it specifically found that
Counts 11 and 12 involved brandishment. Based on Hamett’s offense conduct, the
district court calculated an advisory Guidelines sentence of life imprisonment for
Counts 1 through 10. Moreover, Counts 11 and 12 each required a mandatory
Appellate Case: 21-5063 Document: 010110691964 Date Filed: 06/02/2022 Page: 3
minimum sentence of 84 months that could not run concurrently with the sentences
for any of the other counts. See 18 U.S.C. § 924(c)(1)(A)(ii) and (D)(ii).
Hamett asked the district court to impose a below-Guidelines sentence of 72
months for the first ten counts of the indictment, so that his total term of
imprisonment would be 240 months, consistent with the sentence imposed after his
first trial. He contended that a below-Guidelines sentence was appropriate based on
his age (then 62), his life expectancy, the lower likelihood of recidivism of older
offenders, the fact that he had no prior criminal history, and the discrepancy between
his sentence and the average sentence imposed for kidnapping offenses.

18 U.S.C. § 1201 provides the legal definition of the federal crime of kidnapping: Anyone who unlawfully seizes, confines, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof.

(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when—
(1) the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary, or the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense;
(2) any such act against the person is done within the special maritime and territorial jurisdiction of the United States;
(3) any such act against the person is done within the special aircraft jurisdiction of the United States as defined in section 46501 of title 49;
(4) the person is a foreign official, an internationally protected person, or an official guest as those terms are defined in section 1116(b) of this title; or
(5) the person is among those officers and employees described in section 1114 of this title and any such act against the person is done while the person is engaged in, or on account of, the performance of official duties,
shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.

Outcome: Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: