U.S. v. Bad Marriage

• Decision Date: 30 December 2004
• Docket Number: No. 03-30404.,03-30404.
• Citation: 392 F.3d 1103
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vernon Lee BAD MARRIAGE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

392 F.3d 1103

UNITED STATES of America, Plaintiff-Appellee, v. Vernon Lee BAD MARRIAGE, Jr., Defendant-Appellant.

No. 03-30404.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 8, 2004.

Filed December 30, 2004.

David F. Ness, Federal Defender, Great Falls, MT, for the defendant-appellant.

Joshua A. Van de Wetering (argued), Assistant United States Attorney, Missoula, MT; Joseph E. Thaggard (briefed), Assistant United States Attorney, Great Falls, MT, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana, Sam E. Haddon, District Judge, Presiding. D.C. No. CR-03-00029-SEH.

Before: PREGERSON, FERGUSON, and CALLAHAN, Circuit Judges.

FERGUSON, Circuit Judge:

This case is a powerful indictment of the criminal justice system. Our social and penal policies are failing to alleviate alcohol abuse on Indian reservations and the crime to which it gives rise. These problems cry out for treatment, not simply more prison time.

Vernon Lee Bad Marriage, Jr. ("Bad Marriage") is a member of the Blackfeet Indian Tribe with an extensive history of alcohol abuse and a lengthy criminal record. He was convicted of assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153(a), and sentenced under the U.S. Sentencing Guidelines. The District Court departed upward from the applicable sentencing range on the grounds that Bad Marriage's criminal history score did not adequately reflect the seriousness of his past criminal history and the likelihood that he would commit other crimes. Because we hold that the upward departure was not justified under the facts of this case, we reverse and remand for resentencing.

FACTUAL HISTORY AND PROCEDURAL BACKGROUND

I. Facts of Current Offense

On January 30, 2003, Bad Marriage was released from tribal jail on the Blackfeet Indian Reservation so that he could attend an Alcoholics Anonymous meeting. Instead, he went to the home of Leeta Old Chief, his girlfriend. After having consensual sex, the couple drove to visit friends. At Bad Marriage's sister's house, an argument ensued between Bad Marriage and Old Chief, and he began hitting her. The two went to the old rodeo grounds behind his sister's home. There, Bad Marriage kicked and beat Old Chief in the thighs and pelvis.

At the rodeo grounds, Bad Marriage and Old Chief had anal sex. Old Chief later gave conflicting accounts of whether the sex was consensual or forced. She initially told an FBI agent, and Bad Marriage's mother, that she had been raped. Bad Marriage was indicted for aggravated sexual abuse based on that allegation. Old Chief later retracted the claim, and said she had falsely accused Bad Marriage because she was angry at him for beating her and for corresponding with another woman.

Once Old Chief told law enforcement officers that she would no longer be willing to testify that Bad Marriage had forced her to have sex, the government dismissed the indictment in exchange for Bad Marriage's agreement to plead guilty to assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153. Bad Marriage accordingly pled guilty.

II. Bad Marriage's Criminal and Social History

The Presentence Report prepared following Bad Marriage's guilty plea documented 35 prior convictions from state courts in Washington and Montana. In addition, the report showed approximately 60 convictions in the Blackfeet Tribal Court. Bad Marriage's adult state criminal record consisted of crimes committed between 1988, when the defendant was nineteen, and 2002. These convictions were almost entirely misdemeanors resulting in little or no jail time.

Four of his state court convictions were for assault: (1) a 1991 fourth degree assault/domestic violence conviction resulting in a ten day jail sentence; (2) a 1997 assault conviction resulting in a $120 fine; (3) a 1999 assault conviction for which he received a $270 fine; and (4) a 2002 conviction for partner/family member assault for which he served eight days.¹

The record also included a 1989 second-degree burglary conviction for which Bad Marriage served thirty days in jail; a 1989 conviction for unlawful use of a weapon; a 2000 conviction for driving under the influence of alcohol ("DUI"); a 1993 conviction for violation of a contact order, resulting in his longest sentence of thirty-seven days; ten convictions for criminal trespass; over fifteen convictions for theft; and several convictions for obstructing a police officer or for disorderly conduct.

All of the theft incidents described in the Presentence Report appear to be shoplifting offenses. In each of these cases, Bad Marriage is described as having stolen beer, cigarettes, or chips from a convenience store. For example, in July 1999, Bad Marriage was arrested, and later convicted, three times for stealing a bag of chips or eating nachos at a convenience store. The most expensive item that Bad Marriage is described as having stolen is a few cases of beer.

Most of Bad Marriage's 60 convictions from Blackfeet Tribal Court were for disorderly conduct or public intoxication. Several convictions were for escape from tribal jail or for assault. These convictions, in accordance with U.S.S.G. § 4A1.2(i), were not counted for purposes of determining the defendant's criminal history score.

Bad Marriage was intoxicated during numerous incidents described in the Presentence Report. Of the 23 state criminal convictions for which any factual detail is provided, evidence of intoxication or alcohol use is apparent from seventeen of these convictions: these include incidents where Bad Marriage is described as intoxicated, where he attempted to steal alcohol, or where he engaged in disorderly conduct in a bar.

In addition, the Presentence Report describes Bad Marriage's long history of alcohol and drug abuse. Bad Marriage first tried alcohol at the age of nine, and began regularly using it at eighteen. He last used alcohol on the night of the instant offense. Since his thirties, Bad Marriage also regularly smoked marijuana. Bad Marriage advised the probation officer preparing his Presentence Report that he was in need of treatment. The Report indicated that Bad Marriage was admitted to a treatment center in August 1988, but did not describe whether he completed that treatment. In 1998, Bad Marriage was admitted to the Blackfeet Chemical Dependency Center and dismissed one month later with a diagnosis of alcohol and cannabis dependence. That treatment center reported that he made satisfactory progress during treatment, and that his prognosis was good provided that he followed his continuing care plan. No information is provided on any treatment or progress after that date.

The Presentence Report attributed one criminal history point each to seven of Bad Marriage's convictions in accordance with U.S.S.G. § 4A1.1. Points were assigned for: three of the assault convictions;² a 1999 criminal trespass and disorderly conduct offense; a 1999 conviction for theft and disorderly conduct; a 1999 conviction for theft; and the 2000 DUI conviction. No points were assigned to Bad Marriage's shoplifting convictions because of this Court's decision in United States v. Lopez-Pastrana, 244 F.3d 1025 (9th Cir.2001), which held that shoplifting offenses should be excluded from computation under U.S.S.G. § 4A1.2(c)(1).

Bad Marriage's convictions resulted in seven criminal history points, but his total was capped at four points pursuant to U.S.S.G. § 4A1.1(c). This score established a criminal history category of level III.

III. Sentencing

At sentencing, the District Court ruled, based on U.S.S.G. § 4A1.3 (policy statement), that the criminal history computation of level III underrepresented both the seriousness of Bad Marriage's past criminal conduct and the likelihood that he would commit future crimes. The Court accordingly departed upward one level to assign Bad Marriage a criminal history score of IV. The Court sentenced Bad Marriage to 41 months in prison, the high end of the sentencing range determined by the Guidelines for defendants with his offense score and adjusted criminal history level. In addition, the Court sentenced Bad Marriage to three years of supervised release, including the conditions that Bad Marriage participate in a substance abuse program, abstain from the consumption of alcohol, and obtain mental health treatment.

During the hearing, the District Court explained its decision to depart upward as follows:

I look at this matter in its entirety. And I make the determination that I make based upon the entire history that is before me, taking into account all of the components of this history, which include 35 or more separate adult convictions, one of which was for the unlawful use of — with a weapon, two of which are for domestic or partner assault, a total of three by the record before me, involved one manner or another of assaultive behavior.

The guidelines clearly contemplate that this court may take into account, not necessarily count in some numerical fashion, but take into account tribal convictions, which on the record before me are some 60 or more in number ...

Taking all of that into account, the record, whether it be counted for history points per se or not, is one of almost 100 separate convictions in this man's adult life, substantial number of which have involved behavior directed to other human beings.

This is an individual who on the record has essentially an adult life devoted to criminal conduct, and much of it of a violent nature. And I conclude on the basis of this record that there is indeed every likelihood that this individual would return to criminal conduct in the future if given the opportunity. And it is therefore my finding that both components of 4A1.3 have been met on this record.

The day after the sentencing hearing, the District Court amended its statement of reasons to state that its...