U.S. v. John H. Sitting Bear, 05-2367.

Citation436 F.3d 929
Decision Date07 February 2006
Docket NumberNo. 05-2368.,No. 05-2367.,05-2367.,05-2368.
PartiesUNITED STATES of America, Appellee, v. JOHN H. SITTING BEAR, Appellant. United States of America, Appellee, v. Melinda L. Marshall, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Jana M. Miner, argued, Firest Assistant Federal Public Defender, of Pierre, South Dakota (Jeffrey L. Viken, on the brief), for appellant Sitting Bear.

Robert B. Anderson, argued, Pierre, South Dakota, for appellant Melinda Marshall.

Mark E. Salter, argued, Assistant United States Attorney, Sioux Falls, South Dakota (Michelle G. Tapken, on the brief), for appellee.

Before MURPHY, HANSEN, and SMITH, Circuit Judges.

HANSEN, Circuit Judge.

John H. Sitting Bear pleaded guilty to committing second degree murder in Indian country, 18 U.S.C. §§ 1153 and 1111, and Melinda L. Marshall pleaded guilty to aiding and abetting second degree murder in Indian country, 18 U.S.C. §§ 1153, 1111, and 2, following the tragic death of their four-year-old son, John, Jr. The district court1 sentenced each of them to 228 months (19 years) of imprisonment, from which they both appeal. We affirm as to each defendant.

I. Background

Sitting Bear and Marshall were the parents of four-year-old John, Jr., who died following a period of abuse by Sitting Bear and Marshall. Marshall's sister raised John, Jr. from the time of his birth until he was almost four years old while Marshall was serving time in federal prison for assault with a deadly weapon. Marshall and Sitting Bear fought for and won custody of John, Jr. around Christmas 2002. He died less than six months later on June 19, 2003.

Marshall and Sitting Bear each accused the other of various forms of abuse against John, Jr. prior to his death. The evidence revealed that John, Jr. was toilet trained when he was returned to his parents. Following his return to their custody, Marshall got upset when John, Jr. made messes in his pants, and she often withheld food from him so that she would not have to clean up after him. In the six months in which John, Jr. was under Marshall's and Sitting Bear's care, he lost 19 pounds, weighing only 30 pounds at the time of his death. Marshall also spanked John, Jr. with the metal handle of a fly swatter on his back, legs, and buttocks. According to Sitting Bear, these beatings were nearly daily. Sitting Bear was a forest firefighter and was away from home for stretches at a time. Although he left the primary discipline to Marshall, Marshall claimed that Sitting Bear frequently spanked John, Jr. with a fly swatter, belt, or curtain rod as well.

Both defendants claimed that the other beat John, Jr. on the evening of June 17. It is undisputed, however, that on June 18, Sitting Bear woke John, Jr. early in the morning as Sitting Bear was getting ready for a firefighter training class and sent John, Jr. out to the outhouse to use the bathroom. Unsatisfied with John, Jr.'s slow pace, Sitting Bear shoved John, Jr. out the door, causing John, Jr. to fall on the cement. John, Jr. was still moving slowly when he returned to the house, so Sitting Bear shoved him again, this time pushing him into a wall. Sitting Bear then picked him up and swung him around by his arm, swinging his head into a table. John, Jr. was unresponsive following the blow to his head. Sitting Bear and Marshall took John, Jr. to the Rosebud hospital, and he was transported by air ambulance to Rapid City Regional Hospital where he died the following day. Both were charged with first degree murder and aiding and abetting first degree murder. Sitting Bear ultimately pleaded guilty, without the benefit of a written plea agreement, to second degree murder, and Marshall pleaded guilty, pursuant to a written plea agreement, to aiding and abetting second degree murder.

At the joint sentencing hearing held in May 2005, Sitting Bear and Marshall continued to blame the other for various abuses to John, Jr., although Sitting Bear admitted to his actions on June 18 that led to John, Jr.'s death. The district court assessed a two-level enhancement to Sitting Bear's base offense level for obstruction of justice based on Sitting Bear's interviews with the FBI investigators. The court also granted Sitting Bear a three-level reduction for acceptance of responsibility, resulting in a sentencing range of 151 to 188 months. The court determined that upward departures no longer exist after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and, applying the sentencing factors contained in 18 U.S.C. § 3553(a), sentenced Sitting Bear to a non-Guidelines sentence of 228 months of imprisonment. The district court determined Marshall's sentencing range to be 151 to 188 months, based in part on a criminal history category III. Marshall had a prior felony conviction for assault with a deadly weapon and was on supervised release from that conviction at the time of the instant offense. Although not included in her criminal history score, Marshall also had a prior child neglect conviction in tribal court (involving a different child) and several child abuse arrests over the previous several years. The court likewise sentenced Marshall to 228 months in prison, noting the irony of the fact that while Marshall had committed most of the abuse over the prior six months in which she and Sitting Bear had custody of John, Jr., it was Sitting Bear's actions that led to his ultimate death. The court found them equally culpable in John, Jr.'s death.

Sitting Bear appeals his sentence, arguing that the district court erred in assessing the two-level enhancement for obstruction of justice, erred in sentencing him above the sentencing range without giving notice under Federal Rule of Criminal Procedure 32(h), and violated his right to due process by sentencing him above the advisory Guidelines range without considering the departure factors contained in the United States Sentencing Guidelines, resulting in an unreasonable sentence. Marshall appeals her sentence, arguing that it is an unreasonable sentence in light of the § 3553(a) sentencing factors.

Sitting Bear's Sentence
A. Rule 32(h) Notice

Sitting Bear's sentence above the advisory Guidelines range was not based on an upward departure for which he was entitled to notice under Rule 32(h).2 Rather, it was a non-Guidelines sentence, a variance if you will, based upon the district court's review of the case and Sitting Bear's history in light of all of the § 3553(a) sentencing factors. Sitting Bear's claim to Rule 32(h) notice lacks merit under our circuit precedent, see United States v. Long Soldier, 431 F.3d 1120, 1122 (8th Cir.2005) ("[N]otice pursuant to Rule 32(h) is not required when the adjustment to the sentence is effected by a variance, rather than by a departure."); United States v. Egenberger, 424 F.3d 803, 805 (8th Cir.2005) (same), cert. denied, ___ U.S. ___, 126 S.Ct. 1106, ___ L.Ed.2d ___ (2006), and the district court did not err in failing to give Sitting Bear any Rule 32(h) notice.

B. USSG § 3C1.1 Obstruction of Justice Enhancement

Sitting Bear argues that his interviews with the investigators did not amount to an obstruction of justice warranting a two-level enhancement under U.S. Sentencing Guidelines Manual (USSG) § 3C1.1 (2003). We review the district court's factual findings used to support an obstruction of justice enhancement for clear error, but we apply a de novo review to the application of the enhancement to the facts found by the district court. United States v. Vinton, 429 F.3d 811, 818 (8th Cir.2005).

The obstruction of justice enhancement applies if the defendant "willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation ... of the instant offense of conviction." USSG § 3C1.1. One example of behavior that triggers the enhancement is when a defendant "provid[es] a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation ... of the instant offense." Id. § 3C1.1, comment. (n.4(g)). "Material" is defined as "evidence, fact, statement, or information that, if believed, would tend to influence or affect the issue under determination." Id., comment. (n.6).

Sitting Bear met with investigators several times beginning on June 18, the day John, Jr. went into a coma and was hospitalized. Sitting Bear originally told FBI agents on that date that John, Jr.'s injuries resulted from him falling off of the hood of a parked car a few days prior to going into the coma. Sitting Bear denied ever hitting John, Jr. Sitting Bear met with the agents two days later on June 20, after John, Jr. had died, and added to his story that John, Jr. had fallen off of his bike a week prior to entering the coma, had been knocked down by a dog, and had recently fallen from a jungle gym. At this time Sitting Bear admitted to pushing John, Jr. out of the door the morning that he went into the coma, causing him to hit his head on the cement porch, but he continued to deny any further involvement.

Sitting Bear and Marshall were both indicted on first degree murder charges in August 2003. During an interview in February 2004, Sitting Bear told investigators that Marshall had hit John, Jr. on the evening of June 17, knocking his head into a door frame. It was not until an interview on April 7, 2004, nearly ten months after John, Jr.'s death, that Sitting Bear told investigators about swinging John, Jr.'s head into the table.

The district court found that Sitting Bear lied on June 18 when he told the investigators that John, Jr.'s injuries resulted from falling off of a parked car three days earlier and when he denied hitting John, Jr. Sitting Bear's argument that the other events that might have caused John, Jr.'s injuries actually happened, and therefore he did not lie, misses the point. He may not have lied about the other...

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