U.S. v. Winters

• Decision Date: 09 August 2005
• Docket Number: No. 04-3210.,04-3210.
• Citation: 416 F.3d 856
• Parties: UNITED STATES of America, Appellee, v. Stacy WINTERS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

416 F.3d 856

UNITED STATES of America, Appellee, v. Stacy WINTERS, Appellant.

No. 04-3210.

United States Court of Appeals, Eighth Circuit.

Submitted: March 17, 2005.

Filed: August 9, 2005.

Mitchell D. Johnson, argued, Rapid City, SD, for appellant.

John E. Haak, Asst. U.S. Attorney, argued, Sioux Falls, SD (Gregg S. Peterman, Asst. U.S. Attorney, Rapid City, SD on the brief), for appellee.

Before MURPHY, HEANEY, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

Stacy Winters pleaded guilty to voluntary manslaughter and use of a firearm in relation to a crime of violence in violation of 18 U.S.C. §§ 1112, 1153, 924(c). Under the United States Sentencing Guidelines, Winters was subject to a maximum sentence of 191 months' imprisonment. The district court¹ ruled that the United States Sentencing Guidelines were not mandatory and sentenced Winters to 240 months' imprisonment. We affirm.

I. Background

On January 1, 2003, Winters and his brothers were drinking alcohol and driving through Pine Ridge Village, a neighborhood on the Pine Ridge Indian Reservation. Around dusk, Winters encountered Lucien Janis. Winters, known to be affiliated with the TB gang, and Janis, a member of the Ter. Ter. gang, exchanged unpleasantries. Winters left and went to Louis "Boy" Winters's home to get a gun.

Boy gave Winters a Colt .45 semi-automatic pistol and a loaded magazine. Winters and his brothers continued to drive around Pine Ridge Village consuming alcohol and eventually drove back to the place where Winters and Janis exchanged words. Winters and one of his brothers confronted Janis. Janis said, "Give me the gun, I'll shoot myself," and then Winters shot Janis in the head at close range, killing him instantly. Winters and his brothers then fled the scene back to Boy's residence. Winters gave Boy the Colt .45 and told him that Winters was in trouble and needed to get out of town. Winters was arrested the following day.

A first indictment charged Winters with second-degree murder and use of a firearm in the commission of a crime. In a superseding information, the second-degree murder charge was replaced with a charge of voluntary manslaughter. Winters pleaded guilty to both charges and the court ordered a presentence investigation report ("PSI") to be prepared. The PSI noted that while the judges in the District of South Dakota agreed that Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), rendered the Guidelines unconstitutional, the Guideline computation was being provided for use on an advisory basis.

Under the non-guideline statutory sentence, manslaughter carried a possible ten-year maximum sentence and the firearm charge carried a mandatory ten-year sentence to be served consecutively with the manslaughter. Winters faced a non-guideline statutory maximum of twenty years' imprisonment (240 months). The PSI indicated that Winters was subject to a range of 41 to 51 months' imprisonment for the manslaughter² and a mandatory 120 months for the firearm charge. Accordingly, the PSI recommended a Guideline range for Winters between 161 and 171 months. The district court, however, rejected the recommendation to make a downward adjustment resulting in a Guideline range between 177 and 191 months.

The district court, treating the Guidelines as discretionary, sentenced Winters to 240 months' imprisonment—the statutory maximum. In a statement of reasons, the court stated:

In light of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the District Court ruled the Guidelines unconstitutional in this case. Therefore, the Guidelines are not binding on the Court, but they were taken into consideration. The Court also considered the factors set forth in 18 U.S.C. § 3553(a) in imposing the sentence in this case.

Winters objected to the district court holding the United States Sentencing Guidelines unconstitutional and argued that he should be sentenced under the Guidelines. The district court refused. Winters then filed the instant appeal.

Prior to the submission of this case, the United States Supreme Court issued its opinion in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), extending Blakely to the federal guidelines, and, thus, foreclosing Winters's argument on appeal. Nonetheless, because Booker also mandated that appellate courts review sentences for reasonableness in light of the factors enunciated in 18 U.S.C. § 3553(a), Booker, 125 S.Ct. at 764-66 (Breyer, J.), we requested that Winters submit a supplemental brief addressing the reasonableness of his sentence.

II. Reasonableness

We start by noting that because the district court did not use the Guidelines in a mandatory fashion, Winters did not suffer a Booker-styled Sixth Amendment violation. See Booker, 125 S.Ct. at 750 (Stevens, J.)(explaining that there would be no Sixth Amendment violation "if the guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts."). Thus, this case comes to the court in a fashion similar to that of Respondent Fanfan in Booker's companion case. With respect to Fanfan, the Court stated:

In respondent Fanfan's case, the District Court held Blakely applicable to the Guidelines. It then imposed a sentence that was authorized by the jury's verdict—a sentence lower than the sentence authorized by the Guidelines as written. Thus, Fanfan's sentence does not violate the Sixth Amendment. Nonetheless, the Government (and the defendant should he so choose) may seek resentencing under the system set forth in today's opinions. Hence we vacate the judgment of the District Court and remand the case for further proceedings consistent with this opinion.

United States v. Booker, ___ U.S. ___, ___, 125 S.Ct. 738, 769, 160 L.Ed.2d 621 (2005).

The Court, however, directed appellate courts:

to apply ordinary prudential doctrines, determining, for example, whether the issue was raised below and whether it fails the "plain-error" test [for violations of the Sixth Amendment]. . . [and] in cases not involving a Sixth Amendment violation, [to determine] whether resentencing is warranted [after] application of the harmless-error doctrine.

Booker, 125 S.Ct. at 769.³ In this case, the district court went through the analytical sentencing-framework prescribed by Booker. Specifically, the district court consulted the Guidelines in an advisory fashion and looked to the factors in 18 U.S.C. § 3553(a). Thus, there was no Booker error.

As such, we review Winters's sentence for reasonableness in light of § 3553(a). See United States v. Killgo, 397 F.3d 628, 630-31 & n. 4 (8th Cir.2005) (explaining that part of Booker's remedial command requires appellate courts to review the sentence for reasonableness). Accordingly, we must review Winters's sentence with respect to the following factors:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—

(i) issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(ii) that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a).⁴

In his original appeal, Winters argued that the district court erred in refusing to grant him an offense-level reduction for acceptance of responsibility. Because § 3353(a)(4), and the mandates of Booker, require courts to consult the Guidelines, an erroneous application of the Guidelines will be but one factor in applying the reasonableness standard. We review a district court's denial of an acceptance of responsibility adjustment under U.S.S.G. § 3E1.1 for clear error. United States v. Patten, 397 F.3d 1100, 1104-05 (8th Cir.2005). A district court's factual determination on whether a defendant has demonstrated...