U.S. v. Osborne, 97-4268

• Decision Date: 08 January 1999
• Docket Number: No. 97-4268,97-4268
• Citation: 164 F.3d 434
• Parties: UNITED STATES of America, Plaintiff--Appellee, v. David OSBORNE, Defendant--Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 434

164 F.3d 434

UNITED STATES of America, Plaintiff--Appellee, v. David OSBORNE, Defendant--Appellant.

No. 97-4268.

United States Court of Appeals Eighth Circuit.

Submitted May 12, 1998.

Decided Jan. 8, 1999.

John Henry Mairose, Rapid City, SD, argued, for Appellant.

Ted L. McBride, Asst. U.S. Atty., Rapid City, SD, argued, for Appellee.

Before RICHARD S. ARNOLD, JOHN R. GIBSON, and FAGG, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

David Osborne pled guilty to one count of vehicular battery in violation of 18 U.S.C. §§ 7, 13, and 1152, which, in conjunction, assimilate state criminal law for offenses by non-Indians on Indian lands. See 18 U.S.C. §§ 7, 13, and 1152 (1994). Because the United States Sentencing Guidelines have no expressly promulgated guideline for vehicular battery, the district court ¹ sentenced Osborne under the aggravated assault guideline. Osborne appeals his sentence, arguing that the court should have instead sentenced him under the guideline for involuntary manslaughter. We affirm.

David Osborne is a non-Indian who lived within the boundaries of the Pine Ridge Indian Reservation in South Dakota. On October 25, 1996, Osborne and some friends were drinking at a Pine Ridge residence when an acquaintance asked Osborne to drive to Gordon, Nebraska, and retrieve a load of cinder blocks. Osborne drove to Gordon in his fiancee's Chevy Blazer, along with three passengers: Marlita Red Cloud, Wanbli Red Cloud, and Liberty Joe Morgan. On the way to Gordon, the foursome stopped in White Clay, Nebraska, where they picked up a trailer and a twelve pack of beer. The foursome continued drinking during the trip. After loading the cinder blocks onto the trailer in Gordon, Osborne stopped at a liquor store and purchased another twelve pack of beer and an eight pack of small Windsor whiskey bottles.

On the trip back to Pine Ridge, Myron Shaw and Golden Buckman followed the Blazer in a separate vehicle. At one point, a few cinder blocks fell off the trailer onto the highway. When the two vehicles stopped to reload the blocks, Shaw tried to convince Osborne to let someone else drive because Osborne had been crossing both the center and fog lines of the road, but Osborne refused. Shaw pulled his vehicle in front of the Blazer and set his cruise control at sixty-five miles per hour. Shaw noticed the Blazer approaching at a high rate of speed. Before hitting Shaw's vehicle, however, the Blazer turned right and rolled several times. Osborne and all three passengers were thrown from the Blazer.

Morgan sustained the most serious injuries, including a head injury and a broken hip, and remained comatose for several months. Marlita Red Cloud suffered a fractured pelvis, a fractured rib, and extensive bruising. Wanbli Red Cloud suffered injuries as well, but they were not addressed in the investigative reports. Osborne suffered injuries and was taken to a nearby hospital where blood tests revealed a blood alcohol level of 0.27 and the presence of marijuana in his system.

Osborne pled guilty to a violation of 18 U.S.C. §§ 7, 13, and 1152, predicated upon a violation of South Dakota Codified Laws § 22-16-42. ² Under 18 U.S.C. § 13, Osborne's state law crime becomes a federal offense for which he is sentenced under the federal guidelines. See United States Sentencing Commission, Guidelines Manual, § 2X5.1 (Nov.1997).

Because there is no expressly promulgated guideline for the offense of vehicular battery, the district court, in accordance with USSG § 2X5.1, looked for the most analogous specific offense guideline. The court determined that the involuntary manslaughter guideline and the aggravated assault guideline were almost equally analogous, except that death did not occur in this case. The court chose the aggravated assault guideline as the most analogous guideline. The court assigned Osborne a base offense level of fifteen, increased by six levels for permanent or life-threatening injury to a victim, and decreased by two levels for acceptance of responsibility for a total offense level of nineteen. Combining the offense level with a Category II criminal history, the district court determined Osborne's guideline range to be thirty-three to forty-one months and sentenced Osborne to thirty-six months imprisonment, three years probation, and $10,570 restitution.

Osborne first argues that the crime of aggravated assault is not sufficiently analogous to the crime of vehicular battery because vehicular battery requires a less culpable state of mind than aggravated assault. Secondly, Osborne argues that involuntary manslaughter, not aggravated assault, is the most analogous guideline to his crime. Finally, Osborne contends that the district court's application of the aggravated assault guideline was inconsistent with the court's remarks during the sentencing hearing and with the court's use of the involuntary manslaughter guideline in similar cases.

I.

Guideline 2X5.1 refers to the situation where there is no expressly promulgated guideline, and mandates that the most analogous offense guideline be applied. If there is not a sufficiently analogous guideline, then 18 U.S.C. § 3553(b) shall control. See USSG § 2X5.1.

Because the district court concluded that aggravated assault was the most analogous guideline to vehicular battery in this case, but concluded that involuntary manslaughter was the most analogous guideline to vehicular battery in the companion case we decide today, United States v. Allard, No. 97-4006, we feel it necessary to carefully analyze and articulate the procedures required by USSG § 2X5.1 and our standard of review.

This is particularly essential because, in addition to the two cases before us today, other cases that deal with vehicular battery as an assimilated crime have come before several of the district courts in our circuit.

Congress provided the standards of review for guideline appeals in 18 U.S.C. § 3742(e) (1994). ³ However, the precise application of the statutorily mandated standard of review to USSG § 2X5.1 is a question of first impression in this circuit and a disputed issue among other federal circuits.

The background note to USSG § 2X5.1 states specifically, "The court is required to determine if there is a sufficiently analogous offense guideline and, if so, to apply the guideline that is most analogous. Where there is no sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553(b) control." USSG 2X5.1, comment. (backg'd). This portion of the application note mandates a two-step analysis, and makes abundantly clear that there is a difference between a situation where the district judge is choosing the most analogous guideline among sufficiently analogous guidelines, and a situation where there is no sufficiently analogous guideline. In construing the guideline and the application note, we must give meaning to each of these terms.

The first step of the USSG § 2X5.1 analysis is to determine whether there are any guidelines which are sufficiently analogous to the defendant's crime; if there are no sufficiently analogous guidelines, then the defendant is to be sentenced using the general provisions of 18 U.S.C. § 3553(b) (1994). ⁴ See United States v. Cefalu, 85 F.3d 964, 966-69 (2d Cir.1996). Scant precedent exists regarding the appropriate standard of review on the district court's determination of whether a guideline is sufficiently analogous to the defendant's crime. We hold that the district court's determination as to whether there is a sufficiently analogous guideline to the defendant's crime is reviewed de novo. See United States v. Gabay, 923 F.2d 1536, 1545 (11th Cir.1991). First, the issue most generally will involve comparing the elements of federal offenses to the elements of the crime of conviction. Secondly, a determination that there is not a sufficiently analogous guideline will require the district court to impose sentence under 18 U.S.C. § 3553(b), which we are convinced is a legal issue.

The second step of the USSG § 2X5.1 analysis requires the district court to choose the most analogous guideline from the sufficiently analogous offense guidelines, if indeed there are more than one. Conflicting precedent exists regarding the appropriate standard of review of the district court's choice of the most analogous guideline. The circuits differ on whether the choice of the most analogous guideline is a question of law to be reviewed de novo ⁵ or is a question of applying the guidelines to the facts to be reviewed with due deference. ⁶ We are persuaded that the district court's choice of the most analogous guideline is to be reviewed with due deference for several reasons.

First, in choosing the most analogous guideline, the district court must take into account all the circumstances of the case and make factual findings to support its choice. Our own circuit has recognized this concept. See United States v. Clown, 925 F.2d 270, 271-72 (8th Cir.1991); see also, United States v. Fisher, 137 F.3d 1158, 1167 (9th Cir.1998). After the facts are found, the district court must decide which guideline is most analogous based upon those facts. We are persuaded that this evaluation in choosing the most analogous guideline is more factual in nature than legal. ⁷ Absent an indication that the district court misunderstood the legal standards, that is, it misunderstood the elements of the state offense or the analogous federal offenses, we will defer to its judgment as to how the facts fit into those elements. See Mariano, 983 F.2d at 1158.

Further, we believe this is what Congress intended. Choosing the most analogous guideline involves more than just interpreting the guidelines, in the sense of declaring the meaning of guideline terms. Instead, it involves evaluating which of two or more legal standards is most akin to the facts. Surely this process is an "application of the guidelines to the facts." Congress has explicitly mandated that we...