U.S. v. Rising Sun

Citation522 F.3d 989
Decision Date14 April 2008
Docket NumberNo. 06-30614.,06-30614.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Eugene Raymond RISING SUN, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Mark S. Werner, at argument, & Anthony R. Gallagher, on the briefs, Federal Defenders of Montana, Billings, MT, for appellant Eugene Rising Sun.

Corey Endo, at argument, and William W. Mercer & Lori Harper Suek, on the briefs, U.S. Attorney's Office, Billings, MT, for appellee United States.

Appeal from the United States District Court for the District of Montana; Richard F. Cebull, District Judge, Presiding. D.C. No. CR-05-00061-RFC.

Before: B. FLETCHER, ANDREW J. KLEINFELD, and RONALD M. GOULD, Circuit Judges.

GOULD, Circuit Judge:

Eugene Rising Sun ("Rising Sun") appeals two consecutive life sentences which were imposed after he pled guilty to two counts of second-degree murder. He argues that the sentencing court erred in applying the enhancement found at U.S.S.G. § 3A1.1(b)(1) for vulnerable victims because of the remote location where the murders occurred and in applying the enhancement found at U.S.S.G. § 3C1.1 for obstruction of justice because he threatened a witness and tried to destroy evidence before the police investigation began. Rising Sun also argues that the sentence was unreasonable. We have jurisdiction to hear the appeal under 28 U.S.C. § 1291, and we vacate and remand for resentencing.

I

Koren Diebert was reported missing on November 22, 2003. Five days later her body, along with that of LaFonda Big Leggins, was found in a ditch off Big Horn County Road 50A in Montana, which is part of the Crow reservation. An autopsy revealed that both young women had died from blunt force trauma to their heads caused by a heavy object.

Investigations by law enforcement authorities determined that Diebert and Big Leggins were last seen in the late evening of November 18 in the company of Rising Sun and his two brothers. One witness told investigators that Rising Sun had commented to her that "he had gotten rid of some of his stuff because it was evidence." Another witness reported seeing, on the morning of November 19, a maroon Corsica parked at an abandoned house on the Crow reservation where the Rising Sun family used to live. A third witness had linked that same car to the murders of Diebert and Big Leggins. The FBI obtained a search warrant for the abandoned house, which was executed on December 5, 2003. In a trash can outside the house, agents found items of clothing and jewelry that appeared to have blood stains on them and that also appeared to have been burned. DNA tests conducted on the items seized from the trash can revealed that these items contained blood from Diebert and Big Leggins.

Rising Sun's younger brother Moses was interviewed twice by law enforcement personnel. During the first interview, three days after Diebert was reported missing, he denied having seen either of the young women after the early evening of November 18. When interviewed again in January of 2004, however, Moses admitted that on November 18, after a night of heavy drinking, he and his two brothers had driven with Diebert and Big Leggins to a remote area several miles south of Harden, Montana so they could "party together." Moses said that the group decided to stop the car so that some of the occupants could relieve themselves, and that when the vehicle stopped, both Rising Sun and Big Leggins got out of it. Soon thereafter, Moses heard "a thump" and a woman screaming. He then saw Rising Sun "smack" Big Leggins and accuse her of being a "narc." According to Moses, Rising Sun dragged Big Leggins into a nearby ditch and then chased after Diebert and repeatedly hit her with an object he had obtained from the trunk.

Moses further stated that when the brothers returned to their mother's home later that night, Rising Sun took a shower and placed the clothes he had been wearing in a plastic bag. Moses also said that Rising Sun then told him not to tell his girlfriend about what had happened, and that when Moses said that he was going to tell, Rising Sun threatened him with a knife.

Rising Sun was indicted on one count of first-degree murder on May 20, 2005. Pursuant to a plea agreement, he later pled guilty to a superseding information charging him with two counts of second-degree murder under 18 U.S.C. §§ 1153(a) and 1111. As part of this plea agreement, Rising Sun stated his willingness to serve consecutive sentences on the two counts.

After assigning a base offense level of 33 for each count pursuant to the 2003 edition of the federal Sentencing Guidelines,1 the presentence report recommended applying two two-level enhancements, one for vulnerable victims under U.S.S.G. § 3A1.1(b)(1) because the killings occurred in a remote location, and one for obstruction of justice under U.S.S.G. § 3C1.1 because Rising Sun had attempted to destroy evidence and had threatened his brother Moses to prevent him from talking to his girlfriend about the murders. At Rising Sun's sentencing hearing in November 2006, the district court adopted both of these enhancements over Rising Sun's objections and also imposed a three-level upward departure based on Extreme Conduct and Criminal Purpose, resulting in an adjusted offense level of 39. The applicable sentencing range, taking into account Rising Sun's criminal history category of IV, was 360 months to life for each count of second-degree murder. The district court then determined that because of the heinous nature of these murders and Rising Sun's violent criminal history, it would impose the maximum allowable sentence of life for each offense, with the sentences to be served consecutively. This appeal followed.

II

We review a district court's interpretations of the federal Sentencing Guidelines de novo, its factual determinations for clear error, and its application of the Sentencing Guidelines to the facts as it has found them for abuse of discretion. United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.2005). If we apply this framework to one of the issues presented in this case, we review the district court's determination that Diebert and Big Leggins were vulnerable because they were assaulted in a remote location as a factual finding for clear error, while we review the conclusion that a two-level enhancement for vulnerable victims was appropriate because of that remote setting for abuse of discretion. See United States v. Weischedel, 201 F.3d 1250, 1252, 1255 (9th Cir. 2000). If upon review this court finds that the district court committed a "significant procedural error," see Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007), such as a "material error in the Guidelines calculation that serves as the starting point for the district court's sentencing decision, we will remand for resentencing pursuant to 18 U.S.C. § 3742(f)." United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir.2006). If no such material error in applying the Guidelines is found, however, we may go on to evaluate the sentence for its substantive reasonableness under an abuse of discretion standard. See Gall, 128 S.Ct. at 597; Cantrell, 433 F.3d at 1280.

III

Rising Sun argues that the "vulnerable victim" enhancement described in U.S.S.G. § 3A1.1(b)(1) should not have been applied to his sentence for two reasons. First, he contends that no personal traits of either Diebert or Big Leggins rendered them particularly susceptible to his criminal conduct. Second, he suggests that the two victims voluntarily accompanied him and his brothers to the remote location where they were killed and were not lured there as part of a deliberate scheme. We agree with the first of these objections and conclude that the "vulnerable victim" enhancement should not have been applied in Rising Sun's case because none of the victims' characteristics, alone or in combination with surrounding circumstances of the crime, made them more vulnerable to Rising Sun's criminal conduct than any other members of the public.

Section 3A1.1(b)(1) of the U.S. Sentencing Guidelines provides for a two-level enhancement where "the defendant knew or should have known that a victim of the offense was a vulnerable victim." Application note 2 in the commentary to this Guideline states that "`vulnerable victim' means a person ... who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct." § 3A1.1 cmt. n. 2. We have interpreted the "otherwise particularly susceptible" language as requiring the sentencing court to consider both the victim's characteristics and the "circumstances surrounding the criminal act." United States v. Peters, 962 F.2d 1410, 1417 (9th Cir.1992). However, although circumstances are to be considered, we also have held that where none of the victims' personal characteristics made them particularly susceptible to the crime at issue, the enhancement should not have been applied because nothing about the victims "render[ed] the defendant's conduct more criminally depraved" than if the same crime had been perpetrated against others. See United States v. Castellanos, 81 F.3d 108, 111 (9th Cir. 1996).

We reconciled these two precedents in United States v. Weischedel, explaining that in both Peters and Castellanos, "we examined the personal traits of the victims and the specific circumstances in which the victims found themselves when the crimes were committed, and asked whether there were any characteristics or circumstances that made the victims particularly susceptible to the crime." 201 F.3d 1250, 1254-55 (9th Cir.2000). Weischedel involved a married couple who sought to steal a car by representing to a car salesman that they were potential customers and asking him to accompany them on a test drive. Id. at 1252. After the three had driven to a remote area, the husband fatally shot the...

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