U.S. v. Sun Bear, 02-1196.

• Decision Date: 17 October 2002
• Docket Number: No. 02-1196.,02-1196.
• Citation: 307 F.3d 747
• Parties: UNITED STATES of America, Appellee, v. Marlon Dale SUN BEAR, a/k/a Dale Sun Bear, a/k/a Ben James, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

307 F.3d 747

UNITED STATES of America, Appellee, v. Marlon Dale SUN BEAR, a/k/a Dale Sun Bear, a/k/a Ben James, Appellant.

No. 02-1196.

United States Court of Appeals, Eighth Circuit.

Submitted: August 21, 2002.

Filed: October 17, 2002.

Rehearing and Rehearing En Banc Denied: December 4, 2002.^*

COPYRIGHT MATERIAL OMITTED

William A. Delaney, argued, Sioux Falls, SD (Robert Van Norman and Janna Miner, on the brief), for appellant.

Jeannine Huber, argued, Sioux Falls, SD (Randolph J. Seiler, on the brief), for appellee.

Before WOLLMAN, RILEY, and MELLOY, Circuit Judges.

RILEY, Circuit Judge.

Marlon Dale Sun Bear (Sun Bear) was charged with committing and aiding and abetting second degree murder, a violation of 18 U.S.C. §§ 1111, 1153 & 2. After Sun Bear pled guilty, the district court¹ determined he qualified as a career offender and sentenced him to 360 months in prison. On appeal, Sun Bear argues that he should not have been sentenced as a career offender. We affirm.

I. BACKGROUND

On May 9, 2001, Sun Bear spent the day drinking beer and smoking marijuana. In the evening, he began arguing with his uncle, Cordell Sun Bear (Cordell), over which of them would get to drink a can of beer. The argument turned into a fight. With the help of a friend, Lambert Gunhammer (Gunhammer), Sun Bear got the better of his uncle. He and Gunhammer kicked Cordell in the head and beat him repeatedly with a metal bar. Sun Bear and Gunhammer continued to beat Cordell after he was unconscious. Sun Bear then placed his uncle on a basement mattress where Cordell died of multiple injuries.

After Sun Bear pled guilty, the probation office issued a presentence investigation report (PSR) listing a total offense level of 32 and a criminal history category VI. The government objected that the PSR did not apply the career offender guideline, U.S.S.G. § 4B1.1 (2000). The district court then notified the parties that it would consider sentencing Sun Bear as a career offender and would also consider departing upward based on the inadequacy of Sun Bear's criminal history category.

At sentencing, the district court determined that three of Sun Bear's prior adult convictions were felony crimes of violence. The three offenses were (1) an attempted escape in 1995 in Sheridan County, Nebraska; (2) an attempted theft in 1997 of an operable vehicle in Cedar City, Utah and (3) an attempted burglary in 1995 of a commercial building in Gordon County, Nebraska. Based on these convictions, the district court found that Sun Bear is a career offender and increased his offense level to 37. See U.S.S.G. § 4B1.1.

After decreasing Sun Bear's offense level for acceptance of responsibility, the district court departed upward, back to an offense level of 37, based on its determination that criminal history category VI understated the seriousness of Sun Bear's criminal history. The district court then sentenced Sun Bear at the bottom of the guideline range to 360 months in prison.

On appeal, Sun Bear challenges only the district court's application of the career offender guideline. He argues that none of the three prior convictions relied upon by the district court is a felony crime of violence.

II. DISCUSSION

We review a district court's factual findings for clear error and its application of the sentencing guidelines de novo. United States v. Randolph Valentino Kills in Water, 293 F.3d 432, 435 (8th Cir.2002). If a sentencing argument was not properly presented below, we review the district court's decision related to that argument for plain error. United States v. Robinson, 20 F.3d 320, 323 (8th Cir.1994).

Under the sentencing guidelines, a "career offender" receives a higher offense level than defendants who are otherwise similarly situated. See U.S.S.G. § 4B1.1. A defendant is a career offender if: (1) he was at least eighteen years old at the time of the instant offense; (2) the instant offense is a felony crime of violence or a felony controlled substance offense; and (3) he has been convicted at least twice before for a felony crime of violence or a felony controlled substance offense. Id. The first two of these elements plainly apply to Sun Bear's case. The overriding issue presented on appeal is whether at least two of Sun Bear's prior convictions were for felony crimes of violence.

A. Attempted Escape

On August 4, 1995, Sun Bear pled guilty to attempted escape in Sheridan County, Nebraska. His offense involved running from law enforcement officers who were investigating him for criminal mischief. The only document the government produced as evidence of this conviction was the criminal complaint filed against Sun Bear in Sheridan County. The complaint alleged that Sun Bear did "employ force and threat in an attempt to unlawfully remove himself from official detention," and listed the violation as a "Class I Misdemeanor." According to the PSR, Sun Bear pled guilty to this offense and was sentenced to 180 days in jail.

In the Eighth Circuit, we have held that every escape from custody is a crime of violence. See United States v. Nation, 243 F.3d 467, 472 (8th Cir.2001) (following cases from other circuits). Under the career offender guideline, if a completed offense is a crime of violence, then an attempt to commit that offense is also a crime of violence. See U.S.S.G. § 4B1.2, cmt. n.1. Sun Bear does not contend that his attempted escape was not a crime of violence. Instead, he argues that the attempted escape he was charged with was only a misdemeanor under Nebraska law.

Under Nebraska law, escape itself is a felony. Generally, it is a Class IV felony — the lowest felony class under Nebraska law. See Neb.Rev.Stat. § 28-912(4). However, when the escapee "employs force, threat, deadly weapon, or other dangerous instrumentality to effect the escape," the crime becomes a Class III felony. See Neb.Rev.Stat. § 28-912(5)(b).

Sun Bear was charged only with attempted escape. In Nebraska, an attempt to commit a crime is generally classified one level below the actual crime attempted. See Neb.Rev.Stat. § 28-201(4). Thus, if Sun Bear was charged with attempting a Class III felony escape, his attempted escape would be a Class IV felony. If Sun Bear was charged only with attempting a Class IV felony escape, his attempted escape would be a Class I misdemeanor.

The best place to learn what a defendant was charged with is ordinarily the charging document itself. See United States v. Smith, 171 F.3d 617, 620-21 (8th Cir.1999). In this case, though, the complaint filed against Sun Bear is equivocal. In charging that Sun Bear did "employ force and threat in an unlawful attempt to remove himself from official detention," the complaint suggests that Sun Bear attempted to commit a Class III felony, and that his attempt was therefore a Class IV felony. However, the complaint goes on to identify Sun Bear's crime as a "Class I Misdemeanor," which would have been appropriate if Sun Bear were charged with attempting to commit a Class IV felony escape.

The government had the burden of proving the facts to support a career offender enhancement by a preponderance of the evidence. See United States v. Williams, 905 F.2d 217, 218 (8th Cir.1990). The government might have met this burden by producing the judgment of conviction from Sheridan County, Nebraska. The judgment presumably identifies the offense to which Sun Bear ultimately pled guilty and whether that offense was a felony or a misdemeanor. If the judgment had been produced, it would likely have clarified the serious ambiguity in the record before the district court.

In the absence of such evidence, and given the government's burden of proof, it is impossible to conclude that Sun Bear's attempted escape was a felony. In light of the complaint's ambiguous language, it is at least as likely that Sun Bear was charged with a misdemeanor as with a felony. Even if Sun Bear was charged with a felony attempted escape, he may have pled guilty to a misdemeanor under a plea agreement. The sentence Sun Bear actually received — 180 days in prison — is consistent with either a misdemeanor or a felony. Given the wholly inconclusive state of the record before the district court, Sun Bear's conviction for attempted escape cannot be treated as a felony for purposes of the career offender enhancement.

The issues surrounding this conviction were not well presented at Sun Bear's sentencing hearing. The attorneys who handled the case below (both different lawyers than those who argued the appeal) did not inform the district court about Nebraska's criminal classification scheme. As a result, the district court was led to believe, erroneously, that Sun Bear's attempted escape was punishable as if it were a completed offense. Because the district court was not presented with this crucial aspect of Nebraska law, its ruling may be subject to review only for plain error. See Robinson, 20 F.3d at 323. Even under the de novo standard we must affirm Sun Bear's sentence. As we explain below, Sun Bear's two remaining convictions were felony crimes of violence and thus support the district court's determination that Sun Bear is a career offender.

B. Attempted Theft

On November 10, 1997, Sun Bear pled guilty to attempted theft of an operable vehicle in Cedar City, Utah, and was sentenced to prison for zero to five years. This offense was a violation of section 76-6-404 of the Utah Code and an undisputed felony. We need only determine whether it was a crime of violence.

The guidelines divide "crimes of violence" into two categories. An offense falls into the first category if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 4B1.2(a)(1). An offense falls into the second category if it "is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another."...