U.S. v. Collins Spencer Catch the Bear, 83-1526

• Decision Date: 14 February 1984
• Docket Number: No. 83-1526,83-1526
• Citation: 727 F.2d 759
• Parties: UNITED STATES of America, Appellee, v. COLLINS SPENCER CATCH THE BEAR, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 759

727 F.2d 759

77 A.L.R.Fed. 311

UNITED STATES of America, Appellee, v. COLLINS SPENCER CATCH THE BEAR, Appellant.

No. 83-1526.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 13, 1983.

Decided Feb. 14, 1984.

Philip N. Hogen, U.S. Atty., D.S.D., Reed Rasmussen, Asst. U.S. Atty., Rapid City, S.D., Lee Schoenbeck, Legal Intern., for appellee.

James D. Leach, Rapid City, S.D., for Collins Spencer Catch The Bear.

Before LAY, Chief Judge, and HEANEY and ARNOLD, Circuit Judges.

HEANEY, Circuit Judge.

Collins Spencer Catch The Bear appeals from the district court's ¹ denial of his motion to reduce his sentence pursuant to Fed.R.Crim.P. 35 and his subsequent motion for reconsideration and oral argument. Catch The Bear pled guilty to escaping from a halfway house and was sentenced to the maximum term, five years. See 18 U.S.C. Secs. 751(a), 4082(d) (1982). He essentially argues his sentence should be reduced because it is excessive given the mitigating circumstances of his case. He also contends the district court considered materially false information in deciding upon the sentence. He requests either reversal and remand

for resentencing or remand for an evidentiary hearing. We affirm.

BACKGROUND

At the time he was living at the halfway house, Catch The Bear was serving a sentence under the Federal Youth Corrections Act, 18 U.S.C. Sec. 5010(b) (1982), for larceny of property worth over $100 on an Indian reservation, 18 U.S.C. Secs. 1153, 661 (1982). He was originally incarcerated at the Federal Correctional Institution at Englewood, Colorado. After approximately eight months at that institution, on June 4, 1982, he was transferred to Friendship House, Inc., a community treatment center located in Rapid City, South Dakota. Catch The Bear claims he encountered a hostile staff member when he arrived at the Friendship House and found employment extremely difficult to obtain. A week after his arrival, he signed out of the Friendship House and failed to return.

According to Catch The Bear, he went from the Friendship House to an Indian encampment called the Yellow Thunder Camp, located twelve miles from Rapid City. The presentence report described Yellow Thunder Camp as "an extremely controversial encampment consisting of a loosely organized group of people of several different races who are attempting to claim 800 acres of land located in the Black Hills National Forest, which they state rightfully belongs to the American Indian for religious purposes and under the terms and conditions outlined in the Fort Laramie Treaty of 1868." The continued existence of the Yellow Thunder Camp has become the subject of a legal battle between the United States, which claims the occupation of National Forest land is illegal, and camp members, who seek a special use permit to establish a religious, cultural and educational community. United States Marshals Service v. Means, 724 F.2d 642, 643-44 (8th Cir.1983) (interlocutory appeal from district court's order directing the United States Marshal Service to pay costs and fees for camp witnesses).

While Catch The Bear was living at the Yellow Thunder Camp, Clarence Tollefson was shot to death inside the camp boundaries. Affidavits and portions of depositions submitted by Catch The Bear in support of his Rule 35 motion indicate that the police arrested James Jones, the "Chief of Security" at the camp, as their main suspect in the shooting. Jones subsequently obtained immunity from prosecution for murder, escape, and firearms violations, and all other offenses he committed in the county where the Yellow Thunder Camp is located in exchange for his testimony that Catch The Bear shot Tollefson. Relying on Jones' account of the shooting, state authorities indicted Catch The Bear for first degree murder. A South Dakota state court dismissed this charge during the prosecution's opening statement. According to Catch The Bear, FBI gunshot residue analyses done the day of the shooting were positive for Jones and two other suspects, in direct contradiction with Jones' version of the shooting.

Catch The Bear pled guilty to escape from the Friendship House on November 1, 1982, while the state murder charge was still pending. After considering the presentence report, the district court sentenced Catch The Bear to five years imprisonment, the maximum sentence, on December 6, 1982. When the murder charge was dismissed, Catch The Bear moved the district court for a reduction of his sentence and for a hearing on March 31, 1983. In the order denying the motion, dated April 11, 1983, the district court stated it had not considered the pending murder charge in sentencing Catch The Bear for escape. The district court further noted that Catch The Bear had two previous felony convictions and had associated with known felons while at the Yellow Thunder Camp. Catch The Bear filed a motion for reconsideration and oral argument on April 13, 1983. The district court denied these motions and Catch The Bear appealed to this Court.

DISCUSSION

The trial court has discretion in sentencing and sentences within the statutory maximum are not generally reviewable by the court of appeals. United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); United States v. Bangert, 645 F.2d 1297, 1306 (8th Cir.), cert denied, 454 U.S. 860, 102 S.Ct. 314, 70 L.Ed.2d 158 (1981). Catch The Bear argues, however, that his case falls into the small category of reviewable cases where the sentence imposed is "greatly excessive under traditional concepts of justice or manifestly disproportionate to the crime or the criminal." Woosley v. United States, 478 F.2d 139, 147 (8th Cir.1973), and cases cited therein.

We consider Catch The Bear's sentence a long one in the circumstances of this case. A number of mitigating factors favor a sentence below the statutory maximum. Catch The Bear's personal history is filled with foster homes and struggles with alcoholism. He was only nineteen years old when he walked away from the Friendship House, which is not the most egregious form of escape from federal custody. Furthermore, sentencing data in the presentence report indicates that Catch The Bear's sentence for escape is three times greater than the national average for that crime. For the 317 defendants in the nation convicted of escape between July 1, 1980, and June 30, 1981, the average sentence was twenty months. For the two defendants convicted of escape in South Dakota between October 1, 1981, and September 30, 1982, the average prison sentence was twenty-one months. ² Given Catch The Bear's...