United States v. Boneshirt, 10–3108.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtSMITH
Citation662 F.3d 509
PartiesUNITED STATES of America, Appellee, v. Bryan Austin BONESHIRT, Appellant.
Docket NumberNo. 10–3108.,10–3108.
Decision Date31 October 2011

662 F.3d 509

UNITED STATES of America, Appellee,
Bryan Austin BONESHIRT, Appellant.

No. 10–3108.

United States Court of Appeals, Eighth Circuit.

Submitted: March 17, 2011.Filed: Oct. 31, 2011.

[662 F.3d 511]

Neil Fulton, argued, Edward Albright, AFPD, on the brief, Pierre, SD, for appellant.

Timothy Marshall Maher, AUSA, argued, Pierre, SD, for appellee.

Before SMITH, BRIGHT, and SHEPHERD, Circuit Judges.

SMITH, Circuit Judge.

Bryan Boneshirt pleaded guilty, pursuant to a written plea agreement, to one count of second degree murder, in violation of 18 U.S.C. §§ 1153 and 1111. The district court 1 sentenced him to 576 months' imprisonment. On appeal, Boneshirt challenges the substantive reasonableness of his sentence. We affirm.

I. Background

On November 1, 2009, Boneshirt, then 17 years old, killed Marquita Walking Eagle. The night before, Boneshirt had consumed alcohol and partied with friends in St. Francis, South Dakota, on the Rosebud Indian Reservation. He continued to drink into the early morning hours, sleeping only for a couple of hours before resuming his drinking and partying. At some point on November 1, Walking Eagle, a 19–year–old, arrived at the party. She and Boneshirt left the party and eventually went, alone, to an abandoned house in St. Francis.

Inside the abandoned house, Boneshirt and Walking Eagle began to have consensual sexual intercourse. While doing so, Boneshirt called Walking Eagle by another female's name. She became upset and struck Boneshirt twice. Boneshirt retaliated by striking her head and body, restraining her hands, grabbing her by the neck, and choking her until she became unresponsive. According to Boneshirt, when he noticed that Walking Eagle had stopped breathing, he “panicked” and moved her to another room in the abandoned house, concealing her body with a curtain. Shortly thereafter, Boneshirt's father stopped by the abandoned house and talked with Boneshirt. Boneshirt did not tell his father anything about Walking Eagle.

Boneshirt then left the abandoned house, with Walking Eagle's body still concealed inside. He walked to his father's

[662 F.3d 512]

residence, where he told his brother that he thought he had killed Walking Eagle. Boneshirt's brother then went to the abandoned house to check on Walking Eagle. While waiting on his brother, Boneshirt packed a bag of clothes and telephoned several family members to tell them what he had done. After his brother called and confirmed that Walking Eagle was dead and that law enforcement had been notified, Boneshirt left his father's residence and started walking to his mother's residence.

Shortly thereafter, tribal police apprehended Boneshirt in a nearby field. After his arrest, Boneshirt reportedly said, “I did not do anything.” The police then advised him of his Miranda rights; Boneshirt requested to speak to his mother and with counsel but then stated, “I didn't do it. I was there, but I didn't do it.” During a subsequent interview, however, Boneshirt described his altercation with Walking Eagle and confessed to killing her but insisted that he had not intended to kill her.

Boneshirt was initially charged as a juvenile offender with first-degree murder. He thereafter entered into a plea agreement with the government, agreeing to transfer his case to adult court and plead guilty to second-degree murder. The written plea agreement contained a waiver of defenses and appeal rights, which stated:

The defendant hereby waives all defenses and his right to appeal any non-jurisdictional issues. The parties agree that excluded from this waiver is the Defendant's right to appeal any decision by the Court to depart upward pursuant to the sentencing guidelines as well as the length of his sentence for a determination of its substantive reasonableness should the Court impose an upward departure or an upward variance pursuant to 18 U.S.C. § 3553(a).

At the plea hearing, the district court engaged in a colloquy with Boneshirt about his guilty plea and his plea agreement. The court did not, however, address the waiver of appeal rights in the plea agreement. After the colloquy, the court accepted Boneshirt's guilty plea.

While awaiting sentencing, Boneshirt was incarcerated at the Hughes County Jail in Pierre, South Dakota. During this time, Boneshirt, by this time 18 years old, participated in a plan to escape from jail with fellow inmates Randy Little Shield and Robert Kelly.

The presentence investigation report (PSR) calculated a total offense level of 42. Because of Boneshirt's involvement in the plan to escape from jail, the PSR included a two-level enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, and recommended against a three-level reduction for acceptance of responsibility, pursuant to § 3E1.1. The PSR also indicated that Boneshirt had several juvenile tribal-court convictions, including two previous incidents of aggravated assault. Because they were tribal convictions, however, the offenses did not result in any criminal history points. Thus, based on Boneshirt's criminal history category of I and his offense level of 42, the PSR recommended an advisory Guidelines range of 360 months' to life imprisonment.

In his sentencing memorandum, Boneshirt objected to the allegation that he had participated in a plan to escape from jail. He also objected to the PSR's denial of the reduction for acceptance of responsibility and application of the enhancement for obstruction of justice. In addition, Boneshirt argued that the court should impose a below-Guidelines sentence in light of the 18 U.S.C. § 3553(a) factors. Specifically, he argued for leniency based on his youth and intoxicated state at the time of the offense, his difficult childhood, and his alcohol-related neurodevelopmental disorder

[662 F.3d 513]


At the sentencing hearing, several witnesses testified about the alleged plan to escape from jail. On June 9, 2010, Boneshirt and four other inmates were detained in the work-release area of the jail. A jail official testified that he observed, on a surveillance camera, some of the inmates in the work-release area behaving suspiciously that night. Early the next morning, jail officials entered and searched the work-release area. The officials found a small metal “shank” in Little Shield's bunk, a cinder block under Little Shield's bunk, a hole in the suspended ceiling in the bathroom, and an L-shaped pipe above the bathroom ceiling. The officials conducted a brief pat-down search of all five inmates, including Boneshirt. They did not find any contraband on Boneshirt's person, his bunk, or any of his property.

Subsequently, the officers separately removed each inmate from the work-release area and interviewed them. Boneshirt denied any knowledge of or involvement in an escape plan. Once the work-release area was empty, officials conducted another search and located an eight-inch metal shank in a toilet-paper dispenser in the bathroom.

Little Shield also testified about the escape plan. He acknowledged that he had state and federal criminal charges pending and that his testimony could adversely affect his sentencing. Nevertheless, Little Shield testified that he, Boneshirt, and two other inmates—Kelly and Robert Quiver—had discussed three different escape plans. One plan involved crawling through the ceiling, and another involved “tak[ing] out a correctional officer with a shank.” Little Shield stated that Quiver had helped Boneshirt climb into the bathroom ceiling on a number of occasions and that Boneshirt had constructed a longer metal shank. After the pat-down search on the morning of June 10, 2010, Little Shield said that he, Boneshirt, and Kelly sat down at a table to play cards, and Boneshirt told the two of them not to snitch. At the time, Boneshirt was wearing a blanket over his shoulders; according to Little Shield, Boneshirt had previously used the blanket to move contraband around the work-release area without being observed on the surveillance camera. Little Shield testified that, after the pat-down search, Boneshirt stated that the guard did not find his metal shank, which, according to Little Shield, had been hidden between Boneshirt's legs. Little Shield testified that Boneshirt then took the shank to the bathroom, with the blanket over his shoulders, and placed the shank in the toilet-paper dispenser.

The government also introduced a surveillance video of the work-release area, which showed footage from the night of June 9 and the morning of June 10, 2010. The video showed that, after the officers conducted the pat-down search and left the work-release area, Boneshirt sat down at a table with Little Shield and Kelly to play cards. He later walked around the work-release area with a blanket over his shoulders and entered the bathroom, where the toilet-paper dispenser was located.

Following the testimony, the district court heard arguments from the government and Boneshirt about the appropriate Guidelines calculation and the appropriate sentence. Boneshirt argued that the Guidelines produced an “extreme” increase in Boneshirt's penalty, based on the alleged escape plan. He argued that the evidence was insufficient to support applying an obstruction-of-justice enhancement, under U.S.S.G. § 3C1.1, and denying an acceptance-of-responsibility reduction, under § 3E1.1. In any case, Boneshirt argued that he deserved a lower sentence because he had fully confessed to killing

[662 F.3d 514]

Walking Eagle; showed genuine remorse when he confessed and apologized to his family members immediately after the killing; was mentally and emotionally still a child; and had endured a very difficult childhood, including an alcohol-related neurodevelopmental disorder caused by his mother's use of alcohol during pregnancy.

The district court first calculated the appropriate Guidelines range and overruled Boneshirt's objections to the PSR based on the escape plan. The court explained that “[t]here is no...

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