605 F.3d 625 (8th Cir. 2010), 08-2299, United States v. Deegan

Docket Nº:08-2299.
Citation:605 F.3d 625
Opinion Judge:COLLOTON, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Dana DEEGAN, Appellant.
Attorney:William D. Schmidt, AFPD, argued, Bismarck, ND, Jeffrey L. Viken, Federal Public Defender, on the brief, for appellant. David D. Hagler, AUSA, argued, Clare R. Hochhalter, AUSA, on the brief, Bismarck, ND, for appellee.
Judge Panel:Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges. BRIGHT, Circuit Judge, dissenting.
Case Date:May 25, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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605 F.3d 625 (8th Cir. 2010)

UNITED STATES of America, Appellee,


Dana DEEGAN, Appellant.

No. 08-2299.

United States Court of Appeals, Eighth Circuit.

May 25, 2010

Submitted: Dec. 9, 2008.

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[Copyrighted Material Omitted]

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William D. Schmidt, AFPD, argued, Bismarck, ND, Jeffrey L. Viken, Federal Public Defender, on the brief, for appellant.

David D. Hagler, AUSA, argued, Clare R. Hochhalter, AUSA, on the brief, Bismarck, ND, for appellee.

Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.

COLLOTON, Circuit Judge.

Dana Deegan pled guilty pursuant to a plea agreement to second-degree murder, in violation of 18 U.S.C. §§ 1111 and 1153. The district court 1 sentenced Deegan to 121 months' imprisonment, which was the bottom of the advisory guideline range. Deegan appeals the sentence, and we affirm.


Deegan is a member of the Three Affiliated Tribes. On October 20, 1998, Deegan secretly gave birth to a baby boy in the bathroom of her home on the Fort Berthold Indian Reservation. The baby was alive and breathing when he was delivered. Deegan had kept her pregnancy hidden, and no other adult was present at the time of the delivery. Deegan's three other minor children were in the home, but they were unaware of the birth.

Approximately two hours after delivering her son, Deegan fed, cleaned, and dressed him, and then placed him in a basket. She then left the house with her three other children, intentionally leaving the baby alone without food, water, or a caregiver. Deegan did not return to her home for approximately two weeks. When she returned, she found the baby dead in the basket where she had left him. She put his remains in a suitcase, and deposited the suitcase in a rural ditch area near her residence.

On November 4, 1999, a man working on a fence line found the suitcase containing the baby's remains. He reported the discovery to law enforcement, and the Federal Bureau of Investigation (" FBI" ) commenced an investigation. In March 2004, Deegan voluntarily submitted a DNA sample to the FBI. Nearly three years later, in February 2007, the FBI completed mitochondrial DNA analysis on the Deegan sample and confirmed that Deegan was the mother of the deceased baby. When Deegan was interviewed by the FBI in late February 2007, she falsely claimed that the baby was stillborn. Interviewed a second time in May 2007, Deegan repeated the false story and provided a written statement to that effect.

Later during the May 2007 interview, however, Deegan admitted that her earlier statements were false and acknowledged that the baby had been born alive. She stated that she intentionally left him alone in her home, knowing that he would die. When asked why she did so, Deegan responded

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that she was unable to care for a fourth child, neither she nor her common-law husband were employed, and her husband spent what little money they did have to purchase drugs.

On June 6, 2007, a grand jury returned a two-count indictment charging Deegan with first-degree murder and making false statements to the FBI. Deegan pled not guilty to both charges. On November 11, 2007, Deegan entered into a written plea agreement with the government, in which she agreed to plead guilty to one count of second-degree murder. In the factual portion of the agreement, Deegan acknowledged that the baby was born alive and breathing when she delivered him, and that she unlawfully and with malice aforethought caused his death by leaving him alone in the house for approximately two weeks. On November 30, 2007, the government filed an information charging Deegan with second-degree murder.

On December 10, 2007, Deegan pled guilty to second-degree murder. At the plea hearing, the district court noted that the sentencing guidelines in effect at the time of Deegan's offense provided for an advisory sentence of eight to ten years' imprisonment for second-degree murder. The court advised Deegan that based on " what little information" it had about the offense at the plea hearing, the court was " not comfortable" with a range of eight to ten years, because the terms of imprisonment for other defendants convicted of second-degree murder " were not even close to that range." The court remarked that there were a number of provisions in the advisory guidelines " that would justify an upward departure."

In an order filed on January 22, 2008, the court formally notified the parties that it was " contemplating an upward departure from the applicable Sentencing Guideline range," based on USSG § 5K2.8, which provides for an increased sentence where " the defendant's conduct was unusually heinous, cruel, brutal, or degrading to the victim." The court expressed its view that Deegan's conduct " was unusually heinous, cruel, and brutal," but stated that it would await review of the presentence investigation report (" PSR" ), psychological evaluations, and a review of relevant case law before making a final decision on sentencing.

Applying the 1997 sentencing guidelines in effect at the time of the offense, the PSR recommended an advisory sentencing range of 121 to 151 months' imprisonment, which corresponded to a total offense level of 32 and a criminal history category of I. The total offense level represented a base offense level of 33, USSG § 2A1.2 (1997), a two-level upward adjustment for knowledge of a vulnerable victim, id. § 3A1.1(b), and a three-level decrease for acceptance of responsibility, id. § 3E1.1(a), (b). Deegan objected to the two-level vulnerable-victim adjustment, arguing that there had been no factual finding that the infant was vulnerable, and that she had not admitted as much in the plea agreement.

Following preparation of the PSR, both parties submitted sentencing memoranda to the court. Deegan again objected to the two-level vulnerable-victim adjustment. She also urged the court to vary from the advisory guidelines and sentence her to probation or to a very short period of incarceration. She based her argument for leniency on what she described as her " psychological and emotional condition" at the time of the offense, her history as a victim of abuse, and the fact that she acted impulsively, among other reasons.

As support, she submitted a report prepared by Dr. Phillip Resnick, an expert in " neonaticide." " Neonaticide" is a term coined by Resnick to describe the killing of

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an infant within the first twenty-four hours following birth. See Susan Hatters Friedman et al., Child Murder by Mothers: A Critical Analysis of the Current State of Knowledge and a Research Agenda, 162 Am. J. Psychiatry 1578, 1578 (2005). The report addressed what Resnick viewed as an " extraordinary number of mitigating circumstances," and expressed the opinion that a prison sentence was not necessary to deter other women from committing neonaticide. The report concluded that Deegan suffered from an extensive history of abuse throughout her childhood and as an adult, suffered from major depression and dissociation at the time of the homicide, acted impulsively in leaving her baby alone, presented a very low risk of reoffending, and did not merit a lengthy prison sentence, especially because other women convicted in state court of committing similar offenses were usually sentenced to no more than three years in prison.

At the sentencing hearing on May 18, 2008, the district court adopted the sentencing guideline calculation in the PSR. The court agreed with the probation office that the vulnerable-victim enhancement was warranted, and that Deegan's advisory range was 121 to 151 months' imprisonment. Finally, after calling Dr. Resnick to testify about his report and hearing arguments from counsel and testimony from Deegan herself, the court sentenced Deegan to 121 months' imprisonment.

On appeal, Deegan argues that the sentence of 121 months' imprisonment is unreasonable, because the advisory guideline for second-degree murder is not based on empirical data and national experience, and because the sentence imposed is greater than necessary to comply with the statutory purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). As we understand Deegan's brief on appeal, she argues that the district court committed both procedural and substantive errors when imposing sentence. Deegan raised no procedural objection in the district court, so we consider her claims of procedural error under the plain-error standard, United States v. Gray, 533 F.3d 942, 945 (8th Cir.2008), which requires as conditions for relief that Deegan show an obvious error that affected her substantial rights and seriously affected the fairness, integrity, or reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). No objection was required to preserve Deegan's substantive claim that the sentence imposed is unreasonably long with regard to § 3553(a), United States v. Wiley, 509 F.3d 474, 476-77 (8th Cir.2007), but we review the substantive reasonableness of the sentence under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).



Deegan appears to raise four alleged procedural errors at sentencing. One is that the district court " failed on the record to engage in any meaningful discussion whatsoever of the § 3553(a) factors." The Supreme Court in Gall explained that a sentencing court " must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing." 552 U.S. at 50, 128 S.Ct. 586. Deegan did not object to the adequacy of the district court's explanation or request any elaboration. On plain error review, we conclude that the explanation is not obviously inadequate.

As the Supreme Court has explained, " [t]he appropriateness of brevity or length, conciseness or detail, when to

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