United States v. Belle Brave Bull , 828 F.3d 735 ( 2016 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 15-2143
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Belle Brave Bull
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the District of South Dakota - Aberdeen
    ____________
    Submitted: May 16, 2016
    Filed: July 11, 2016
    ____________
    Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.
    ____________
    BENTON, Circuit Judge.
    Belle Brave Bull pled guilty to voluntary manslaughter and assault with a
    dangerous weapon, in violation of 18 U.S.C. §§ 1153, 5032, 1112, and 113(a)(3).
    She appeals her sentence, objecting to an upward departure and the reasonableness
    of her sentence. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
    Intoxicated, Brave Bull and a group of friends began to argue. She lunged
    toward one of them with a metal object, accidentally striking someone else causing
    a deep laceration to the head. She continued arguing with yet another friend, Frances
    Kathryne Wanna, outside. Wanna tried to calm the group down by pretending to call
    the police. Brave Bull threatened her with a shovel for being a “snitch.” Wanna
    curled up on the ground, crying. Brave Bull followed her into the house, pushing her
    backwards down a flight of basement stairs. Brave Bull and another friend went to
    check on her. She appeared to be crying. No one touched her. No one called for
    medical help because some in the group had prior felonies and were on probation or
    supervised release. The group left without Wanna. Two hours later, police found her
    dead, still at the bottom of the steps in a contorted position. The fall dislocated a
    femur and the first and second vertebrae, immobilizing her. Medical experts testified
    she probably lived up to an hour-and-a-half to two hours after the fall, and that she
    likely would have survived with immediate medical attention.
    The district court sentenced Brave Bull to 162 months’ imprisonment,
    departing upward from criminal history category I to category VI. Brave Bull
    contends the district court erred in departing upward on its three bases—U.S.S.G. §
    5K2.8 for conduct that was “unusually heinous, cruel, brutal, or degrading to the
    victim,” U.S.S.G. § 5K2.21 for dismissed charges, and U.S.S.G. § 4A1.3 for
    inadequacy of Brave Bull’s criminal history category and likelihood of recidivism.
    She also objects to the reasonableness of the sentence.
    I.
    A.
    “This court reviews an upward departure, if objected-to, for abuse of
    discretion.” United States v. White Twin, 
    682 F.3d 773
    , 775 (8th Cir. 2012). Under
    § 5K2.8:
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    If the defendant’s conduct was unusually heinous, cruel, brutal, or
    degrading to the victim, the court may increase the sentence above the
    guideline range to reflect the nature of the conduct. Examples of extreme
    conduct include torture of a victim, gratuitous infliction of injury, or
    prolonging of pain or humiliation.
    Brave Bull claims that her conduct “in the heat of battle,” while both she and the
    victim were drunk, is not extreme conduct.
    The district court did not abuse its discretion in departing upward under
    §5K2.8. Brave Bull intentionally pushed Wanna down the basement stairs, and after
    checking, left her there without help. The district court, viewing photographs, said:
    [A]ny person, other than somebody who was blind, could know by
    looking at those photographs and actually looking at the victim that she
    was not fine and that she was dying. You can look at that and see in
    these pictures, just that alone, that the victim was seriously injured and
    needed medical attention immediately.
    The district court also said:
    As I say, I was struck primarily . . . of the cruelty of these young people
    in leaving Frannie there to die. I do not understand that—how anyone
    could do that.
    ....
    . . . . When you leave somebody that you know or should have known
    is dying and has been very severely injured, that is conduct that is
    heinous, cruel, and brutal beyond the normal assault case.
    The court concluded that “the conduct here is outside the heartland of the typical
    voluntary manslaughter case.” See United States v. Iron Cloud, 
    312 F.3d 379
    , 382
    (8th Cir. 2002) (applying § 5K2.8 where defendant’s conduct allowing the victim “to
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    be swept away by the rushing current and did nothing to try to save her” was “outside
    the heartland of the typical voluntary manslaughter case”). This court “respect[s] the
    district court’s superior feel for the case” when reviewing U.S.S.G. §5K2.8. 
    Id. B. Brave
    Bull did not object to the upward departures under the guidelines
    sections 5K2.21 and 4A1.3. This court reviews these departures for plain error.
    United States v. Mees, 
    640 F.3d 849
    , 854 (8th Cir. 2011). Under plain-error review,
    the defendant must show: (1) an error; (2) that is plain; (3) that affects substantial
    rights, and (4) seriously affects the fairness, integrity, or public reputation of judicial
    proceedings. United States v. Ault, 
    598 F.3d 1039
    , 1042 (8th Cir. 2010).
    Under § 5K2.21, “[t]he court may depart upward to reflect the actual
    seriousness of the offense based on conduct (1) underlying a charge dismissed as part
    of a plea agreement in the case, or underlying a potential charge not pursued in the
    case as part of a plea agreement or for any other reason; and (2) that did not enter into
    the determination of the applicable guideline range.” “A sentencing court may rely
    upon dismissed charges in fashioning a reasonable sentence.” United States v. Azure,
    
    536 F.3d 922
    , 932-33 (8th Cir. 2008). “In order to rely upon a dismissed charge for
    purposes of sentencing, the government must prove the defendant committed the
    alleged offense by a preponderance of the evidence.” 
    Id. at 933.
    “[A]lthough the
    quantum of proof is less than the beyond-a-reasonable-doubt formulation used at trial,
    the burden of proof remains unchanged at sentencing: the government bears the
    burden.” 
    Id. The district
    court noted the dismissal of second degree murder count
    due to a plea agreement, and that Brave Bull’s initial shovel-assault of Wanna was
    never charged. Brave Bull argues there was insufficient evidence that she killed
    Wanna with “malice aforethought.” See 18 U.S.C. § 1111(a).
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    The district court did not plainly err in departing upward under § 5K2.21.
    “Malice may be shown . . . by evidence of conduct which is reckless and wanton, and
    a gross deviation from a reasonable standard of care, of such a nature that the
    factfinder is warranted in inferring that defendant was aware of a serious risk of death
    or serious bodily harm.” United States v. French, 
    719 F.3d 1002
    , 1008 (8th Cir.
    2013) (brackets and quotations omitted). By the unobjected-to facts, Brave Bull
    called Wanna a “snitch” and threatened her with a shovel while she was curled up on
    the ground asking to go home. After pushing Wanna down the stairs backwards,
    Brave Bull checked on her without seeking medical help. See United States v.
    Schiradelly, 
    617 F.3d 979
    , 984 (8th Cir. 2010) (“[F]act statements in the PSR, to
    which Schiradelly did not object, adequately supported a finding that the dismissed
    charges were properly proved.”). Here, the district court found that “when you push
    somebody down the stairs backwards, you are, of course, taking a great risk. And I
    don’t think that being drunk excuses this type of cruelty . . . .” See United States v.
    Eder, 
    836 F.2d 1145
    , 1149 (8th Cir. 1988) (finding “[t]he evidence supports an
    inference of malice by the jury because Eder was aware of the serious risk of death
    to Shelena and failed to act” where defendant inflicted head injury to victim, then
    fled with victim, neglecting her medical needs until she died). The facts here
    demonstrate, by a preponderance of the evidence, that Brave Bull was aware of a
    serious risk of death to Wanna when she pushed her down the stairs and left her
    immobilized with no medical assistance.
    Brave Bull challenges the district court’s departure under § 4A1.3. She first
    argues she had no notice of the district court’s finding that her criminal history
    category substantially under-represented the seriousness of her criminal history and
    the likelihood of recidivism. To the contrary, paragraph 50 in the PSR, listing 11
    convictions, states that “sentences resulting from tribal court convictions are not
    counted, but may be considered under § 4A1.3.” Brave Bull thus had notice of a
    potential upward departure under § 4A1.3. See White 
    Twin, 682 F.3d at 776
    (noting
    PSR listed defendant’s extensive history in tribal courts, and district court did not
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    abuse discretion in departing under § 4A1.3 sua sponte). Cf. United States v.
    Adetiloye, 
    716 F.3d 1030
    , 1038 (8th Cir. 2013) (“[T]he district court was not required
    to provide separate notice under Rule 32(h) in this case because the PSR already
    listed § 2B1.1 cmt. n. 19(A) as a ground for departure.”).
    Brave Bull also asserts that the district court did not adequately explain the
    extent of its departure from a category I to VI. “To impose an upward departure
    under § 4A1.3, the sentencing court first must proceed along the criminal history axis
    of the sentencing matrix, comparing the defendant’s criminal history with the criminal
    histories of other offenders in each higher category . . . .” 
    Azure, 536 F.3d at 931
    .
    This does not need to be a “ritualistic exercise in which the sentencing court
    mechanically discusses each criminal history category it rejects en route to the
    category that it selects. But the sentencing court must adequately explain why it
    determines that the intermediary categories fail to meet the purposes of § 4A1.3.”
    
    Mees, 640 F.3d at 854
    (internal citation and quotation marks omitted).
    Brave Bull emphasizes that her tribal convictions were non-violent. See United
    States v. Gonzales-Ortega, 
    346 F.3d 800
    , 802 (8th Cir. 2003) (“The Guidelines do
    note that the nature of the prior offenses and not the sheer number of prior offenses
    ‘is often more indicative of the seriousness of the defendant’s criminal record.’”).
    Her prior history consisted of mostly underage substance-abuse crimes, failure to
    appear for court, and disorderly conduct. In addition to two pending underage
    alcohol consumption charges, the court found she was violating substance-abuse laws
    “on almost a daily basis” by “ingesting methamphetamine.” The district court also
    discussed Brave Bull’s relevant conduct in the instant offense—including the
    uncharged assault with the shovel. See 
    Mees, 640 F.3d at 854
    (finding the instant
    offense—one charge for theft concerning federal funds—did not encompass all
    defendant’s criminal conduct that occurred as a part of the embezzlement scheme).
    The district court does not have to “specifically mention that it had considered the
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    criminal histories of other offenders in each intermediate criminal history category,”
    but its findings must adequately explain and support the departure. 
    Id. at 855.
    It is not readily apparent, from the record, why the intermediate categories fail
    to meet the purposes of § 4A1.3. However, even if the district court did not
    adequately explain the increase from category I to category VI under § 4A.13, it did
    not affect Brave Bull’s substantial rights. The district court also departed under §
    5K2.8 and § 5K2.21, because the offense was “heinous, cruel, and brutal,” and the
    range did not adequately reflect the seriousness of the offense based on the dismissed
    second degree murder charge. The court found that Brave Bull’s base offense level
    would have been 35 if she had pled guilty to second degree murder. The district court
    specifically found that under category I and level 35, the guideline range would be
    168 to 210 months. In the end, the court left the offense level at 27, choosing to
    increase only the criminal history category—resulting in a lower guideline range of
    130 to 162 months. The district court’s increase to a criminal history category VI,
    even if error, did not substantially affect Brave Bull’s rights due to the other bases for
    departure that the court found. See Molina-Martinez v. United States, 
    136 S. Ct. 1338
    , 1346 (2016) (“There may be instances when, despite application of an
    erroneous Guidelines range, a reasonable probability of prejudice does not exist. The
    sentencing process is particular to each defendant, of course, and a reviewing court
    must consider the facts and circumstances of the case before it.”).
    II.
    This court reviews the substantive reasonableness of the sentence for abuse of
    discretion. United States v. Feemster, 
    572 F.3d 455
    , 461 (8th Cir. 2009) (en banc).
    “A district court abuses its discretion and imposes an unreasonable sentence when it
    fails to consider a relevant and significant factor, gives significant weight to an
    irrelevant or improper factor, or considers the appropriate factors but commits a clear
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    error of judgment in weighing those factors.” United States v. White, 
    816 F.3d 976
    ,
    987 (8th Cir. 2016).
    The district court appropriately considered the § 3553(a) sentencing factors.
    At the hearing, the court discussed Brave Bull’s age, difficult upbringing, and lack
    of parental supervision. The court detailed at length the nature and circumstances of
    the offense and the need to provide just punishment, acknowledging “that a mother
    of a very small child has been taken away.” The court addressed Brave Bull’s history
    of substance abuse, recommending to the Bureau of Prisons that she be allowed to
    participate in the substance-abuse treatment program. Finally, the court “carefully
    considered” the § 3553 sentencing factors and explained, “A sentence of 7.25 years
    for this type of conduct is totally inadequate, and I also think that the sentence that
    the Government is asking for is excessive. That would be 25 years.” The court
    sentenced Brave Bull to 162 month’s imprisonment. After the upward departure the
    guidelines range was 130 to 162 months. The court’s 162-month sentence is
    appropriate. 
    Feemster, 572 F.3d at 461
    (“If the defendant’s sentence is within the
    Guidelines range, then we ‘may, but [are] not required to, apply a presumption of
    reasonableness.’” (citing Gall v. United States, 
    522 U.S. 38
    , 51 (2007)).
    *******
    The judgment is affirmed.
    ______________________________
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