United States v. Terry Dean Iceman , 821 F.3d 979 ( 2016 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 14-3833
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Terry Dean Iceman
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the District of Minnesota - St. Paul
    ____________
    Submitted: December 14, 2015
    Filed: May 2, 2016
    ____________
    Before WOLLMAN, LOKEN, and BYE, Circuit Judges.
    ____________
    BYE, Circuit Judge.
    A jury convicted Terry Dean Iceman of strangulation in violation of 18 U.S.C.
    § 113(a)(8). At the time Iceman committed the offense, the United States Sentencing
    Commission had yet to promulgate a corresponding sentencing guideline. The
    district court1 found the Guideline section for Domestic Violence, United States
    Sentencing Guideline Manual (U.S.S.G) § 2A6.2, to be the most analogous to
    Iceman's offense of conviction and sentenced him to 41 months' imprisonment.
    Iceman appeals his sentence arguing (1) the district court erred in finding the
    Domestic Violence guideline to be the most analogous provision; and (2) the district
    court violated the Ex Post Facto Clause by sentencing him in accordance with a new
    sentencing guideline not in effect at the time of his offense instead of the guidelines
    in effect at the time of the offense.
    We find the Domestic Violence guideline is the most analogous guideline
    because it is the only provision that accounts for the intimate relationship between the
    attacker and victim. We further find the district court sentenced Iceman under the
    guideline in effect at the time of his offense of conviction, and therefore did not
    violate the Ex Post Facto Clause. We affirm.
    I
    On the evening of July 17, 2013, Iceman and his live-in girlfriend, Lori Sayers,
    were at the home of their friends, Carol Strong and Darryl Raincloud. Strong's and
    Raincloud's home was located on the Red Lake Indian Reservation in Northern
    Minnesota. The two couples started drinking heavily that evening and continued
    through the next morning. Raincloud left the residence sometime prior to 9:00 a.m.,
    while Strong, Sayers, and Iceman remained.
    At approximately 9:00 a.m., Strong and Sayers locked Iceman out of the house
    because he was intoxicated and acting strangely. Shortly thereafter Strong and Sayers
    relented and permitted Iceman to enter the house. Once inside the home, Iceman
    1
    The Honorable Michael J. Davis, Chief Judge of the United States District
    Court for the District of Minnesota.
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    began breaking items and grabbed Sayers by the hair. Iceman dragged Sayers from
    the residence, across the porch, and threw her near the fire pit which was still
    smoldering from the night before. During this altercation, Strong called law
    enforcement to remove Iceman from the residence. Sayers managed to escape and
    placed a second phone call to law enforcement.
    After Sayers placed the call, Iceman grabbed Sayers again and struck her
    repeatedly, removed her pants, and ripped her shirt. Strong attempted to intervene by
    striking Iceman with her cane but Iceman threw her cane into the woods. Iceman then
    pulled Sayers's underwear off of her body, wrapped the underwear around her neck,
    and began strangling her. Next Iceman twisted Sayers's underwear around her neck,
    told her he was going to kill her, and dragged her down towards the smoldering fire.
    At this point, Sayers's underwear ripped. Iceman took Sayers's underwear and said,
    "These are mine," and placed the underwear in his pocket. Iceman then punched
    Sayers in the face several times, kissed her, and said, "See you at home." Sayers
    testified at trial that Iceman sexually assaulted her during this altercation.
    Sayers was taken to the Red Lake Hospital for medical attention. Hospital staff
    noted she had abrasions all over her body and smelled of soot. They also observed
    burn holes in Sayers's pants. Sayers's neck was visibly swollen and she had bruising
    on her face, neck, and upper chest.
    A grand jury charged Iceman in a two-count indictment with one count of
    aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(1); and one count of
    strangulation in violation of 18 U.S.C. § 113(a)(8). A jury found Iceman guilty of
    strangulation and acquitted him of aggravated sexual abuse.
    Following his conviction for strangulation, the district court held Iceman's
    sentencing hearing on December 2, 2014. At the time Iceman committed the offense
    the Sentencing Commission had not yet promulgated a corresponding guideline. In
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    the absence of a corresponding guideline, the district court relied on U.S.S.G.
    § 2X5.1–which instructs the sentencing court to apply the most analogous Guidelines
    provision to the offense of conviction.
    The district court considered two guideline provisions: the Domestic Violence
    guideline and Minor Assault, U.S.S.G. § 2A2.3 (2013). At the time of sentencing, the
    United States Sentencing Commission had recently enacted a corresponding guideline
    for strangulation under Aggravated Assault, U.S.S.G. § 2A2.2. The government
    conceded this corresponding guideline was inapplicable to Iceman's sentence as his
    offense occurred prior to the enactment of the Aggravated Assault guideline. The
    district court did not mention the Aggravated Assault guideline in the sentencing
    hearing or Statement of Reasons for Imposing the Sentence.
    Ultimately the district court determined the Domestic Violence guideline was
    the most analogous provision because Iceman had an intimate relationship with the
    victim. The sentencing range under the Domestic Violence guideline was 41 to 51
    months. The district court sentenced Iceman to 41 months' imprisonment, and he
    filed this timely appeal.
    II
    A
    Iceman argues the district court erred in finding the Domestic Violence
    guideline to be the most analogous guideline because it only applies to offenses
    related to 18 U.S.C. §§ 2261-2262, which are federal statutes that involve domestic
    violence in interstate commerce. Iceman instead asserts the Minor Assault guideline
    is more analogous because Sayers only suffered minor injuries as a result of Iceman's
    attack. We disagree.
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    "[W]e give due deference to the court's fact-bound selection of the most
    analogous guideline." United States v. Allmon, 
    594 F.3d 981
    , 987 (8th Cir. 2010)
    (quoting United States v. Ferrara, 
    334 F.3d 774
    , 777 (8th Cir. 2003)). In the absence
    of an expressly promulgated guideline, the Sentencing Guidelines direct the district
    court to apply the most analogous offense guideline to the felony offense. U.S.S.G.
    § 2X5.1 (2013). This inquiry involves two steps. First, the district court must
    "determine whether there are any guidelines which are sufficiently analogous to the
    defendant's crime." United States v. Osborne, 
    164 F.3d 434
    , 437 (8th Cir. 1999).
    Second, the district court must "choose the most analogous guideline from the
    sufficiently analogous offense guidelines, if indeed there are more than one." 
    Id. U.S.S.G. §
    2A6.2 (2013) is entitled "Stalking or Domestic Violence" and
    applies to stalking and domestic violence crimes under 18 U.S.C. §§ 2261 (interstate
    domestic violence), 2261A (stalking), 2262 (interstate violation of a protection order),
    and 117 (domestic assault by an habitual offender). See U.S.S.G. app. A. (Statutory
    Index). Under this guideline a defendant may receive enhancements for inter alia
    violations of protection orders and a pattern of activity involving stalking,
    threatening, harassing, or assaulting the same victim. U.S.S.G. § 2A2.3 (2013) is
    entitled "Minor Assault" and applies to simple assaults not punishable by more than
    6 months; assault resulting in substantial bodily injury to an individual who has not
    attained the age of 16; as well as a variety of different assaults or injuries committed
    within Indian country or against government officials (foreign or domestic),
    government employees, servicemen, witnesses, informants, persons authorized to
    serve or execute search warrants and seizures, nuclear inspectors, maritime
    navigators, stowaways on aircrafts or vessels, or damage to the aircraft, aircraft
    facilities, international airports, post office, maritime platforms, and/or vessel itself.
    See 18 U.S.C. §§ 32(a)(b), 37, 112, 113(a)(5), 113(a)(7) 115(a), 115(b)(1), 351(e),
    1153, 1389, 1512(a), 1513, 1751(e), 2116, 2199, 2231, 2280, and 2291; 21 U.S.C.
    § 675; 42 U.S.C. §§ 2000e-13, 2283; U.S.S.G. app. A. (Statutory Index). Not only
    does the Minor Assault guideline not contain any enhancements for violence between
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    spouses, intimate partners, or dating partners, but the corresponding statutes do not
    reference this aggravating factor either. 
    Id. The facts
    of Iceman's strangulation conviction are consistent with domestic
    violence. Iceman and Sayers were in an intimate relationship, lived together, and
    after Iceman viciously attacked Sayers he kissed her and told her he would "See [her]
    at home." The existence of an intimate relationship between the attacker and victim
    is an aggravating circumstance unique to acts of domestic violence. The district court
    recognized this fact in its Statement of Reasons for Imposing the Sentence and
    expressly found the Domestic Violence guideline was the most analogous provision
    "especially in light of Defendant's relationship to the victim." We agree.
    The Domestic Violence guideline is also the most analogous guideline to
    Iceman's strangulation conviction because it is the only guideline with corresponding
    statutes that contain the same element of the existence of an intimate relationship
    between the attacker and victim. A jury convicted Iceman of strangulation in
    violation of 18 U.S.C. § 113(a)(8), which criminalizes, "Assault of a spouse, intimate
    partner, or dating partner2 by strangling, suffocating, or attempting to strangle or
    suffocate . . . ." (Emphasis added). An essential element of the offense is the
    existence of an intimate relationship between the attacker and his victim. Most of the
    offenses under the Domestic Violence guideline contain the same essential element.
    See 18 U.S.C. §§ 2261(a)(1), 2261(a)(2), 2261A(1)(A)(iii), 2261A(2)(B)(iii), and
    117(a)(1) (2013). None of the offenses under the Minor Assault guideline contain
    this element. See 18 U.S.C. §§ 32(a)(b), 37, 112, 113(a)(5), 113(a)(7) 115(a),
    115(b)(1), 351(e), 1153, 1389, 1512(a), 1513, 1751(e), 2116, 2199, 2231, 2280, and
    2291; 21 U.S.C. § 675; 42 U.S.C. §§ 2000e-13, 2283; U.S.S.G. app. A. (Statutory
    2
    Under 18 U.S.C. § 2266(10), the term "dating partner" is defined as "a person
    who is or has been in a social relationship of a romantic or intimate nature with the
    abuser."
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    Index). Iceman's argument that the Domestic Violence guideline is inapplicable
    because it involves interstate travel is a red herring. Instead the common thread
    between these statutes is the existence of an intimate relationship; the interstate travel
    element is simply a jurisdictional hook.
    In giving due deference to the district court's fact-bound selection, we find it
    properly determined the Domestic Violence guideline is the most analogous
    provision.
    B
    Iceman argues the district court erred by sentencing him in accordance with the
    newly effective Aggravated Assault guideline, which was in effect at the time of his
    sentencing but not at the time of the offense of conviction, and therefore violated the
    Ex Post Facto Clause. We disagree.
    Iceman did not object to the district court's application of Domestic Violence
    § 2A6.2 on ex post facto grounds at sentencing. Consequently, the Court reviews
    Iceman's claim for plain error. Fed. R. Crim. P. 52(b); United States v. Bolden, 
    596 F.3d 976
    , 983 (8th Cir. 2010). "To obtain relief under a plain-error standard of
    review, the party seeking relief must show that (1) there was an error, (2) the error is
    clear or obvious under current law, (3) the error affected the party's substantial rights,
    and (4) the error seriously affects the fairness, integrity, or public reputation of
    judicial proceedings." United States v. Melton, 
    738 F.3d 903
    , 905 (8th Cir. 2013)
    (quoting United States v. Green, 
    701 F.3d 541
    , 543 (8th Cir. 2012)).
    Under the Sentencing Guidelines, "[t]he court shall use the Guidelines Manual
    in effect on the date that the defendant is sentenced." U.S.S.G. § 1B1.11(a).
    However, "[i]f the court determines that use of the Guidelines Manual in effect on the
    date that the defendant is sentenced would violate the ex post facto clause . . . the
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    court shall use the Guidelines Manual in effect on the date that the offense of
    conviction was committed." U.S.S.G. § 1B1.11(b)(1); see Peugh v. United States,
    
    133 S. Ct. 2072
    , 2077-78 (2013) (holding that the district court violates the Ex Post
    Facto Clause when a defendant is sentenced under current Guidelines providing for
    a higher sentencing range than the Guidelines in effect at the time of the offense.).
    Iceman committed the offense of strangulation in July 2013 when no
    corresponding guideline provision existed. A month before Iceman's sentencing, the
    Sentencing Commission enacted the Aggravated Assault guideline, which
    corresponds with convictions under 18 U.S.C. § 113(a)(8). The sentencing range was
    the same under both the Domestic Violence and Aggravated Assault guidelines.
    Iceman therefore speculates the district court utilized the Domestic Violence
    guideline to functionally sentence him in accordance with the proposed Aggravated
    Assault guideline which violates the Ex Post Facto Clause.
    This argument is contrary to the record. At sentencing, the government
    acknowledged the Aggravated Assault guideline was inapplicable to Iceman's
    sentence as his offense occurred prior to its promulgation. The district court
    considered all evidence presented at the sentencing hearing and ultimately determined
    the Domestic Violence guideline was the most analogous provision because it
    accounted for Iceman's intimate relationship with his victim. There is no evidence
    in the record to indicate the district court sentenced Iceman in accordance with the
    Aggravated Assault guideline. The district court's sentence therefore does not violate
    the Ex Post Facto Clause. We find that the district court committed no error–let alone
    plain error–in imposing its sentence.
    III
    For the foregoing reasons, we affirm the district court.
    ______________________________
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