U.S. v. Thundershield

• Decision Date: 22 January 2007
• Docket Number: No. 06-2340.,06-2340.
• Citation: 474 F.3d 503
• Parties: UNITED STATES, Appellee, v. Duane Collins THUNDERSHIELD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 503

474 F.3d 503

UNITED STATES, Appellee, v. Duane Collins THUNDERSHIELD, Appellant.

No. 06-2340.

United States Court of Appeals, Eighth Circuit.

Submitted: November 17, 2006.

Filed: January 22, 2007.

Gargy G. Colbath, argued, Assistant Federal Public Defender, Rapid City, South Dakota (Jeffrey L. Viken, on the brief), for appellant.

Mara M. Kohn, argued, Assistant U.S. Attorney, Rapid City, South Dakota (Marty J. Jackley, on the brief), for appellee.

Before LOKEN, Chief Judge MELLOY, Circuit Judge, and SCHILTZ,¹ District Judge.

SCHILTZ, District Judge.

Duane Collins Thundershield, Jr. ("Thundershield") was convicted by a jury of one count of sexual abuse of a person "incapable of appraising the nature of the conduct; or . . . physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act[.]" 18 U.S.C. § 2242(2) (2000) (amended 2006). The district court² sentenced Thundershield to a term of 151 months in prison and 10 years of supervised release. Thundershield appeals his sentence, arguing that the district court erred in applying a two-level obstruction-of-justice enhancement. Thundershield also argues that his sentence is unreasonable. We affirm.

I. Background

Thundershield is a 22-year-old member of the Spirit Lake Sioux Indian Tribe. His victim, Marisha Mesteth Loefer ("Loefer"),³ is his 24-year-old step-sister. Thundershield's father, Duane Sr., married Loefer's mother, Susan, when Thundershield was 11. For the most part, Thundershield lived with his father and stepmother until he turned 18. At the time of the offense that is the subject of this appeal, Thundershield lived at the home of his aunt, Margaret Cutt, in Wanblee, South Dakota.

On the evening of February 12, 2005, Thundershield visited his father and stepmother's house in Wanblee. Both his father and stepmother were there, along with a number of other relatives. Loefer was also there, visiting from Sioux Falls. Everybody drank a lot, and eventually Susan helped the very intoxicated Loefer to bed.

What happened next is disputed. At trial, Thundershield testified that he left the home after a family argument, returned to his aunt's house, watched television with his nephew, and then slept until he was awakened by the police the next day. Thundershield's nephew corroborated this version of events.

According to Susan, after she put Loefer to bed, she returned to the living room. Thundershield left the living room sometime later, and, when Thundershield did not promptly return, Susan grew suspicious and went looking for him. Susan noticed that the door to Loefer's bedroom was ajar, opened it, and saw Thundershield raping Loefer (who was unconscious). Susan threw Thundershield out of the house and, with difficulty, revived Loefer. Loefer was taken by ambulance to Pine Ridge Hospital, where she was found to have vaginal bruising. No seminal fluid was present, and Thundershield's DNA did not match any sample taken from Loefer.

During the investigation and trial of the case, Thundershield changed his version of events a number of times. Most significantly, Thundershield gave a taped statement to FBI agent Charles Cresalia when Cresalia arrested him on July 1, 2005. In that statement, Thundershield claimed that he went into Loefer's bedroom because he wanted to have sex with her, but that Susan interrupted him "[b]efore he could get anything started." Tr. 235-36; see also Thundershield Tr. 26-27, 49, 52, 62.⁴ At trial, Thundershield testified that he had lied to Cresalia. Thundershield insisted that he never wanted to have sex with Loefer and that he never went into her bedroom. Thundershield Tr. 26-27, 28, 42, 49.

Thundershield made a number of other conflicting statements. For example:

• Thundershield told Cresalia that he was drunk on the night of the alleged rape, but he testified at trial that he had not been drunk and that his earlier statement to Cresalia was a lie. Thundershield Tr. 35.

• On the day after the alleged rape, Thundershield told Bureau of Indian Affairs investigator Carl Martinez that, when he had arrived at his father's house on the prior evening, only his brother was home, and he and his brother watched television for about an hour until his father, stepmother, and Loefer arrived. (Shortly after their arrival, Thundershield told Martinez, Thundershield went to his aunt's home.) Tr. 204-05. At trial, Thundershield testified that he had lied to Martinez. Thundershield admitted that a number of family members, including Loefer, had been at the house when he arrived. Thundershield Tr. 33-34, 36.

• Thundershield testified at trial that Cresalia had called him in late June — before Cresalia arrested him — to arrange a meeting for July 1. Thundershield Tr. 40-41. Cresalia adamantly denied doing so. Tr. 229.

The jury convicted Thundershield of sexual abuse. At sentencing, the government requested an enhancement for obstruction of justice based on the lies that Thundershield told to investigators and based on Thundershield's alleged perjury during trial. The district court found that Thundershield "committed perjury by providing false information" and specified the pages of the trial transcript on which evidence of Thundershield's perjury appeared. Sentencing Tr. 7. On those pages, Thundershield denies sexually assaulting Loefer, claims that his statements to Cresalia were lies, and claims that Cresalia called him prior to his July 1 arrest.

Based on its finding of perjury, the district court applied a two-level enhancement to Thundershield's offense level under U.S.S.G. § 3C1.1 (2005),⁵ resulting in a sentencing range of 151 to 188 months.⁶ The district court then sentenced Thundershield to 151 months in prison, with a 10-year term of supervised release. Thundershield appeals that sentence.

II. Analysis

In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the United States Supreme Court rendered the Sentencing Guidelines advisory, but not irrelevant. The Guidelines "remain[] the critical starting point for the imposition of a sentence under § 3553(a)." United States v. Mashek, 406 F.3d 1012, 1016 n. 4 (8th Cir.2005). In imposing a sentence, district courts should first determine the proper sentencing range under the Guidelines, then analyze whether any departure or variance from that range is appropriate, and finally apply the factors set forth in 18 U.S.C. § 3553(a). See United States v. Rivera, 439 F.3d 446, 448 (8th Cir.2006). In reviewing a sentence, we ask first whether the district court correctly applied the Guidelines, and then whether the sentence was reasonable in light of the § 3553(a) factors. Booker, 543 U.S. at 261, 125 S.Ct. 738; United States v. Hadash, 408 F.3d 1080, 1082 (8th Cir. 2005); see also United States v. Beal, 463 F.3d 834, 836 (8th Cir.2006) (standard of review is whether the sentence was reasonable and whether the district court abused its discretion), pet. for cert. filed, No. 06-8498 (Dec. 21, 2006).

A. Obstruction-of-Justice Enhancement

We review the district court's construction and application of the Sentencing Guidelines de novo. United States v. Nichols, 416 F.3d 811, 821 (8th Cir. 2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1633, 164 L.Ed.2d 345 (2006), and cert. denied, ___ U.S. ___, 126 S.Ct. 1807, 164 L.Ed.2d 543 (2006). But "[w]hether [Thundershield] committed perjury and in doing so obstructed justice is a factual finding, and we will reverse the district court's imposition of a sentencing enhancement only upon a showing of clear error." United States v. Garcia-Gonon, 433 F.3d 587, 592 (8th Cir.2006). The government bears the burden of proving the facts necessary to support a finding of obstruction by a preponderance of the evidence. United States v. Flores, 362 F.3d 1030, 1037 (8th Cir.2004); United States v. O'Dell, 204 F.3d 829, 836 (8th Cir.2000).⁷

Section 3C1.1 of the Guidelines provides:

If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant's offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the offense level by 2 levels.

U.S.S.G. 3C1.1. A finding of perjury is sufficient to support an enhancement under this Guideline. O'Dell, 204 F.3d at 836. But a district court cannot find that a defendant committed perjury "simply because a defendant testifies on his own behalf and the jury disbelieves him." Flores, 362 F.3d at 1037 (8th Cir.2004) (citation and quotations omitted). Instead, the district court must find that the defendant gave "false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory." United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993).

Thundershield raises various objections to the manner in which the district court enhanced his sentence under U.S.S.G. § 3C1.1. Before turning to those objections, we note that there is little doubt that an enhancement under the Guideline was available. The Guideline applies not only to conduct that occurs at trial, but also to conduct that occurs during the investigation of a charge. By Thundershield's own admission, he told one set of lies to FBI agent Cresalia and another set of lies to BIA agent Martinez. Those lies involved the heart of the case — Thundershield's activities on the evening of the alleged rape. The district court found that, at trial, Thundershield told yet more lies. As to certain facts (such as whether Thundershield went into Loefer's bedroom), Thundershield argues that he lied to investigators but told the truth at trial, while the government argues that Thundershield told the truth to investigators but lied at trial....