U.S. v. Walking Eagle

• Decision Date: 26 January 2009
• Docket Number: No. 08-2450.,08-2450.
• Citation: 553 F.3d 654
• Parties: UNITED STATES of America, Appellee, v. John C. WALKING EAGLE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

553 F.3d 654

UNITED STATES of America, Appellee, v. John C. WALKING EAGLE, Appellant.

No. 08-2450.

United States Court of Appeals, Eighth Circuit.

Submitted: December 8, 2008.

Filed: January 26, 2009.

Gregg C. Magera, Aberdeen, SD, for appellant.

Thomas J. Wright, AUSA, Sioux Falls, SD, for appellee.

Before WOLLMAN, BYE, and RILEY, Circuit Judges.

RILEY, Circuit Judge.

The district court¹ sentenced John C. Walking Eagle (Walking Eagle) to 96 months imprisonment and 3 years supervised release after Walking Eagle pled guilty to one count of assault with a dangerous weapon. Walking Eagle appeals his sentence, arguing the district court (1) committed procedural error by departing upward based on under-representation of Walking Eagle's criminal history without giving an adequate explanation for the departure; and (2) imposed a substantively unreasonable sentence. We affirm.

I. BACKGROUND

On the evening of April 26, 2007, Walking Eagle went to Rick's Bar in McLaughlin, South Dakota, and attempted to sell DVDs to the bar owner, Rick Hettich (Hettich). Hettich declined, and Walking Eagle left the bar. Throughout the evening, Walking Eagle repeatedly returned to the bar, attempting to sell DVDs to the bar patrons to get money for alcohol. Walking Eagle did not purchase any alcohol but attempted to drink beer from other patrons' pitchers. At one point, Hettich asked Walking Eagle to leave because Walking Eagle was becoming a nuisance.

The last time Walking Eagle went into the bar that night, he got into a confrontation with two men, and Hettich escorted him outside. Walking Eagle did not leave, and, instead, began harassing the men from the doorway. The two men, along with a bartender and other patrons, went outside to confront Walking Eagle, and Walking Eagle responded by brandishing a four-inch buck knife. One of the patrons went back inside the bar and said, "[H]e's going to stab somebody!" Hettich requested everyone, other than Walking Eagle, to come back inside. When Hettich went outside to unhook a chain from the door to close the bar, Walking Eagle stabbed Hettich in the back with the knife.

Walking Eagle attempted to flee but was restrained by two of the bar patrons. A McLaughlin police officer arrested Walking Eagle and transported him to a detention facility in Fort Yates, North Dakota. Authorities noted Walking Eagle was highly intoxicated at the time of the incident. An ambulance transported Hettich to a hospital, where the knife was surgically removed from his back.

On May 23, 2007, a grand jury returned a two-count indictment against Walking Eagle, charging him with (1) assault with a deadly weapon in violation of 18 U.S.C. §§ 113(a)(3) and 1153, and (2) assault resulting in serious bodily harm in violation of 18 U.S.C. §§ 113(a)(6) and 1153. On March 20, 2008, Walking Eagle, pursuant to a plea agreement, entered a plea of guilty to Count I of the indictment.²

Walking Eagle's sentencing hearing took place on June 23, 2008. The presentence investigation report (PSR) calculated a total offense level of 20 and a criminal history category of IV. Based upon Walking Eagle's offense level and criminal history category, the advisory United States Sentencing Guidelines (Guidelines or U.S.S.G.) range was 51 to 63 months imprisonment. See U.S.S.G. § 5 Sentencing Table.

The district court determined Walking Eagle's criminal history category IV "substantially underrepresent[ed] . . . the seriousness of his criminal history" and "substantially underrepresent[ed] the likelihood that he will commit other crimes and other crimes of violence." Pursuant to U.S.S.G. § 4A1.3, the district court found a criminal history category of VI would be more appropriate based on Walking Eagle's history, and because the highest criminal history category is VI, the district court "depart[ed] vertically" to an offense level of 21. Based on Walking Eagle's adjusted criminal history category of VI and his adjusted offense level of 21, the advisory Guidelines range was 77 to 96 months imprisonment. The district court sentenced Walking Eagle to 96 months imprisonment and 3 years supervised release. Walking Eagle appeals his sentence, arguing the district court (1) committed procedural error by failing to explain adequately a basis to support the upward departure, and (2) imposed a substantively unreasonable sentence.

II. DISCUSSION

A. Upward Departure

Walking Eagle contends the district court "committed significant procedural errors by failing to explain the upward departure adequately." A district court commits procedural error by "failing to adequately explain the chosen sentence including an explanation for any deviation from the Guidelines range." Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). "A district court's departure from the advisory guidelines is reviewed for abuse of discretion." United States v. Miller, 484 F.3d 968, 970 (8th Cir.2007) (citing United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005)). The government, however, suggests we should review Walking Eagle's objection on appeal for plain error, because Walking Eagle did not object at sentencing to the district court's explanation for its sentence.

Our court has previously held, when a defendant fails to "object at sentencing to the adequacy of the district court's explanation or consideration of [18 U.S.C.] § 3553(a)," we must review the objection on appeal for plain error. United States v. Gray, 533 F.3d 942, 945 (8th Cir.2008) (citing United States v. Perkins, 526 F.3d 1107, 1111 (8th Cir.2008)); see also United States v. Vaughn, 519 F.3d 802, 804 (8th Cir.2008) ("If a defendant fails to object timely to a procedural sentencing error, the error is forfeited and may only be reviewed for plain error." (citations omitted)). The rationale of reviewing for plain error under these circumstances is that without an objection at sentencing, "the district court had no opportunity to clarify its comments or to correct any potential error in the first instance." United States v. M.R.M., 513 F.3d 866, 870 (8th Cir. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 171, 172 L.Ed.2d 123 (2008). This reasoning applies to Walking Eagle's objection to the adequacy of the district court's explanation for the upward departure, which the district court easily could have addressed upon timely objection. We conclude the district court committed no procedural error, plain or otherwise, in departing upward.

"Upward departures under § 4A1.3(a) are applicable if `reliable information indicates [that] the defendant's criminal history category substantially under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes.'" United States v. Mosby, 543 F.3d 438, 441-42 (8th Cir.2008) (quoting U.S.S.G. § 4A1.3(a)(1)). "When contemplating and structuring such a departure, the district court should consider both the nature and extent of a defendant's criminal history." United States v. Hacker, 450 F.3d 808, 812 (8th Cir.2006) (citing United States v. Gonzales-Ortega, 346 F.3d 800, 802 (8th Cir.2003)). In deciding the likelihood that a defendant may commit other crimes, a court may "take into account any `evidence of obvious incorrigibility'" and "conclude that . . . leniency has not been effective." United States v. Herr, 202 F.3d 1014, 1016 (8th Cir.2000) (quoting United States v. Goings, 200 F.3d 539, 542 (8th Cir.2000)).

"To impose an upward departure," the district 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." United States v. Day, 998 F.2d 622, 625 (8th Cir.1993) (citations omitted). "This process does not `require a ritualistic exercise in which the sentencing court mechanically discusses each criminal history category it rejects en route to the category that it selects.'" United States v. Azure, 536 F.3d 922, 931 (8th Cir.2008) (quoting Day, 998 F.2d at 625). If the district court reaches Category VI, which is the highest criminal history category, but determines "the Guidelines range is still inadequate, it may impose a reasonable sentence above the Category VI range." Day, 998 F.2d at 625. See U.S.S.G. § 4A1.3(a)(4)(B).

At the sentencing hearing, the district court recited Walking Eagle's lengthy criminal history. The court noted six of Walking Eagle's seven criminal history points resulted from assault convictions. The court discussed Walking Eagle's various tribal court convictions, for which no criminal history points were assessed. These convictions included simple assault, multiple assault and batteries, communicating threats, and assaulting an officer. Next, the court addressed Walking Eagle's 1991 federal court conviction in North Carolina for assault by striking, and his 1997 federal court conviction in North Carolina for assault with a dangerous weapon and assault resulting in serious bodily injury. In both instances, Walking Eagle violated the terms of his probation or supervised release. The court outlined Walking Eagle's 2003-2004 convictions in Sioux Falls, South Dakota, for disorderly conduct, consumption of alcohol in a public place, domestic violence, and simple assault. The court also noted Walking Eagle has several children he has never supported, and he has a criminal record in Montana. At one point, Walking Eagle was ordered to leave the State of Montana after he assaulted a police officer in Billings.

The district court related how Walking Eagle had been disciplined while in prison for "possession of drug paraphernalia, use of drugs, possessing intoxicants, refusing a Breathalyzer, and assault resulting in serious injury." The court concluded, "It would appear . . . the defendant has learned almost nothing from the previous time that he has spent in custody. I believe that he is very dangerous to...