U.S. v. Has No Horses, 00-2861

• Decision Date: 15 March 2001
• Docket Number: No. 00-2861,00-2861
• Citation: 261 F.3d 744
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE v. TIMOTHY HAS NO HORSES, DEFENDANT - APPELLANT Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 744

261 F.3d 744 (8th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE v. TIMOTHY HAS NO HORSES, DEFENDANT - APPELLANT

No. 00-2861

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: March 15, 2001

Filed: August 16, 2001

Appeal from the United States District Court for the District of South Dakota. [Copyrighted Material Omitted] Before Bye and John R. Gibson, Circuit Judges, and Frank,¹ District Judge.

Gibson, Circuit Judge

Timothy Has No Horse² appeals the judgment entered following his plea of guilty to a charge of assault with a dangerous weapon in violation of 18 U.S.C. §§ 113(a)(3), 1153 (1994 & Supp. IV 1998) and the order denying his motion to withdraw his plea. He argues that the district court³ erred by not allowing him to withdraw his plea and that the government breached the plea agreement. We affirm.

On the day before trial was to have commenced, Has No Horse entered into a plea agreement that incorporated the following facts: In the late evening of June 7 and the early morning of June 8, 1999, Has No Horse, a member of the Oglala Lakota Nation, was at his mother's house on the Pine Ridge Indian Reservation along with Pam White Bull and others. An altercation began when he started shouting at White Bull. During the course of the fight, without just cause or excuse, he broke a beer bottle and cut White Bull's forearm with the broken edge, intending to inflict bodily harm upon her.

In the plea agreement, the government agreed to recommend that the district court find that Has No Horse accepted personal responsibility for his conduct and that the court reduce his offense level by two in accordance with U.S.S.G. § 3E1.1(a). The government also agreed that Has No Horse was entitled to a one-level reduction pursuant to U.S.S.G. § 3E1.1(b)(2). Has No Horse agreed and understood that the government would recommend a two-level enhancement for bodily injury pursuant to U.S.S.G. § 2A2.2(b)(3)(A). The government agreed to recommend a sentence at the low end of the guideline range and to not recommend an upward departure. The agreement stated, "The defendant understands that any recommendation made by the United States or defendant is not binding on the Court. The defendant further understands that he may not withdraw his plea of guilty if the Court rejects any recommendation."

Has No Horse pleaded guilty on January 11, 2000. The district court read the charge from the indictment, and Has No Horse acknowledged that he understood what he was charged with. He answered the court's questions affirmatively, admitting that he had read the plea agreement and had an ample opportunity to study it with his attorney. He further agreed that he understood that the agreement did not bind the court to a particular sentence, that it contained terms that were merely recommendations which the court could reject, that he might receive a sentence different from what he expected, and that if he was unhappy with his sentence he would not have an opportunity to withdraw his plea of guilty.

The court informed him that the maximum sentence for assault with a dangerous weapon was ten years. It explained that, if the case went to trial, the government would have to prove the following elements of his offense beyond a reasonable doubt: that he assaulted White Bull, that he intended to do bodily harm, that he used a dangerous weapon to commit the assault, that the act was committed without just cause or excuse, that Has No Horse is an Indian, and that the offense occurred in Indian country. The court explained that "just cause or excuse would include any acts committed by accident, self-defense or some other innocent reason."

The presentence investigation report, dated February 25, 2000, recommended an enhancement for obstruction of justice based on White Bull's telephone call to the tribal public safety commission several days after the assault. She reported that Has No Horse told her to lie and say that she fell down the steps. White Bull also stated that Has No Horse told his brother, who witnessed the incident, to lie to the authorities. The report recommended no adjustment for acceptance of responsibility because Has No Horse denied telling White Bull and his brother to lie to law enforcement. The report recommended a two-level enhancement because White Bull sustained bodily injury. Has No Horse submitted a number of objections to the presentence report, including objections to these three recommendations.

On April 7, 2000, three days before his sentencing was to take place, Has No Horse filed a motion to withdraw his plea of guilty with a supporting affidavit. His motion to withdraw was based on several things: advice he received regarding his sentence; the court's alleged failure to advise him of the elements of the offense; the government's agreement to a three-level reduction for acceptance of responsibility and breach of that agreement by failing to object to the presentence report; lack of consideration for the plea agreement; and lack of prejudice to the government if the plea were withdrawn. At oral argument on the motion, Has No Horse argued that because the government had agreed to recommend the three-level reduction for acceptance of responsibility, he reasonably understood he would get a reduction and not a two-level increase for obstruction of justice. Has No Horse pointed out that at the time he entered into the plea agreement, the government was aware of the allegations of White Bull that supported the presentence report's recommendation for obstruction. The government affirmed several times that it would recommend credit for Has No Horse's acceptance of responsibility at sentencing.

The district court inquired whether the essence of Has No Horse's motion was that he was dissatisfied with the presumptive sentence contained in the presentence report, and his counsel responded that it was a primary reason for filing the motion. The court stated that the only issue was whether Has No Horse acted voluntarily, knowingly, and of his own free will when he entered the plea. The court then read through nearly the entire transcript of the plea colloquy. The court found that Has No Horse knew what he was doing when he entered his plea of guilty and knew that he was subjecting himself to a possible ten-year sentence. The court further found that Has No Horse's dissatisfaction with the presumptive sentence contained in the report was not sufficient grounds to grant his request to withdraw his plea.

At the sentencing hearing, the district court referred to the various objections Has No Horse made to the presentence investigation report, including his objection to the obstruction of justice enhancement. The court discussed who bore the burden of proof on the objections, stated that the government had the burden on obstruction of justice, and directed the government to proceed and assume its burden. The government called White Bull as a witness and first questioned her about the injuries she sustained as a result of the assault. When the government began questioning her about facts related to obstruction, Has No Horse argued that the government had an obligation not to get into that issue. The court stated that the government must establish the facts posited by the presentence report notwithstanding the plea agreement. The government then affirmed that it was standing by its agreement to recommend acceptance of responsibility. The court stated that because Has No Horse objected to the obstruction enhancement, the government was required to explore the issue. White Bull then testified that Has No Horse told her to tell the police that she fell down the stairs and to deny that he struck her. She confirmed that she initially lied to the police and later told them what actually happened.

Before the court sentenced Has No Horse, the Assistant United States Attorney stated:

Your Honor, the only thing I want to say is I've never been put in a position as I have with this matter. Having agreed the defendant accepted responsibility he then proceeds to file a motion to withdraw his plea in which he questions whether or not he was advised that the offense needed to have been committed without just cause or excuse. After that he files over a dozen objections which directly attack the...