United States v. Iceman

• Decision Date: 02 May 2016
• Docket Number: No. 14–3833.,14–3833.
• Citation: 821 F.3d 979
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Terry Dean ICEMAN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

821 F.3d 979

UNITED STATES of America, Plaintiff–Appellee

v.Terry Dean ICEMAN, Defendant–Appellant.

No. 14–3833.

United States Court of Appeals, Eighth Circuit.

Submitted: Dec. 14, 2015.

Filed: May 2, 2016.

Douglas Olson, AFPD, Minneapolis, MN, for Appellant.

Lisa D. Kirkpatrick, AUSA, Saint Paul, MN, for Appellee.

Before WOLLMAN, LOKEN, and BYE, Circuit Judges.

BYE, Circuit Judge.

A jury convicted Terry Dean Iceman of strangulation in violation of 18 U.S.C. § 113(a)(8). At the time Iceman committed the offense, the United States Sentencing Commission had yet to promulgate a corresponding sentencing guideline. The district court¹ found the Guideline section for Domestic Violence, United States Sentencing Guideline Manual (U.S.S.G) § 2A6.2, to be the most analogous to Iceman's offense of conviction and sentenced him to 41 months' imprisonment. Iceman appeals his sentence arguing (1) the district court erred in finding the Domestic Violence guideline to be the most analogous provision; and (2) the district court violated the Ex Post Facto Clause by sentencing him in accordance with a new sentencing guideline not in effect at the time of his offense instead of the guidelines in effect at the time of the offense.

We find the Domestic Violence guideline is the most analogous guideline because it is the only provision that accounts for the intimate relationship between the attacker and victim. We further find the district court sentenced Iceman under the guideline in effect at the time of his offense of conviction, and therefore did not violate the Ex Post Facto Clause. We affirm.

I

On the evening of July 17, 2013, Iceman and his live-in girlfriend, Lori Sayers, were at the home of their friends, Carol Strong and Darryl Raincloud. Strong's and Raincloud's home was located on the Red Lake Indian Reservation in Northern Minnesota. The two couples started drinking heavily that evening and continued through the next morning. Raincloud left the residence sometime prior to 9:00 a.m., while Strong, Sayers, and Iceman remained.

At approximately 9:00 a.m., Strong and Sayers locked Iceman out of the house because he was intoxicated and acting strangely. Shortly thereafter Strong and Sayers relented and permitted Iceman to enter the house. Once inside the home, Iceman began breaking items and grabbed Sayers by the hair. Iceman dragged Sayers from the residence, across the porch, and threw her near the fire pit which was still smoldering from the night before. During this altercation, Strong called law enforcement to remove Iceman from the residence. Sayers managed to escape and placed a second phone call to law enforcement.

After Sayers placed the call, Iceman grabbed Sayers again and struck her repeatedly, removed her pants, and ripped her shirt. Strong attempted to intervene by striking Iceman with her cane but Iceman threw her cane into the woods. Iceman then pulled Sayers's underwear off of her body, wrapped the underwear around her neck, and began strangling her. Next Iceman twisted Sayers's underwear around her neck, told her he was going to kill her, and dragged her down towards the smoldering fire. At this point, Sayers's underwear ripped. Iceman took Sayers's underwear and said, “These are mine,” and placed the underwear in his pocket. Iceman then punched Sayers in the face several times, kissed her, and said, “See you at home.” Sayers testified at trial that Iceman sexually assaulted her during this altercation.

Sayers was taken to the Red Lake Hospital for medical attention. Hospital staff noted she had abrasions all over her body and smelled of soot. They also observed burn holes in Sayers's pants. Sayers's neck was visibly swollen and she had bruising on her face, neck, and upper chest.

A grand jury charged Iceman in a two-count indictment with one count of aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(1) ; and one count of strangulation in violation of 18 U.S.C. § 113(a)(8). A jury found Iceman guilty of strangulation and acquitted him of aggravated sexual abuse.

Following his conviction for strangulation, the district court held Iceman's sentencing hearing on December 2, 2014. At the time Iceman committed the offense the Sentencing Commission had not yet promulgated a corresponding guideline. In the absence of a corresponding guideline, the district court relied on U.S.S.G. § 2X5.1 —which instructs the sentencing court to apply the most analogous Guidelines provision to the offense of conviction.

The district court considered two guideline provisions: the Domestic Violence guideline and Minor Assault, U.S.S.G. § 2A2.3 (2013). At the time of sentencing, the United States Sentencing Commission had recently enacted a corresponding guideline for strangulation under Aggravated Assault, U.S.S.G. § 2A2.2. The government conceded this corresponding guideline was inapplicable to Iceman's sentence as his offense occurred prior to the enactment of the Aggravated Assault guideline. The district court did not mention the Aggravated Assault guideline in the sentencing hearing or Statement of Reasons for Imposing the Sentence.

Ultimately the district court determined the Domestic Violence guideline was the most analogous provision because Iceman had an intimate relationship with the victim. The sentencing range under the Domestic Violence guideline was 41 to 51 months. The district court sentenced Iceman to 41 months' imprisonment, and he filed this timely appeal.

II

A

Iceman argues the district court erred in finding the Domestic Violence guideline to be the most analogous guideline because it only applies to offenses related to 18 U.S.C. §§ 2261 –2262, which are federal statutes that involve domestic violence in interstate commerce. Iceman instead asserts the Minor Assault guideline is more analogous because Sayers only suffered minor injuries as a result of Iceman's attack. We disagree.

“[W]e give due deference to the court's fact-bound selection of the most analogous guideline.” United States v. Allmon, 594 F.3d 981, 987 (8th Cir.2010) (quoting United States v. Ferrara, 334 F.3d 774, 777 (8th Cir.2003) ). In the absence of an expressly promulgated guideline, the Sentencing Guidelines direct the district court to apply the most analogous offense guideline to the felony offense. U.S.S.G. § 2X5.1 (2013). This inquiry involves two steps. First, the district court must “determine whether there are any guidelines which are sufficiently analogous to the defendant's crime.” United States v. Osborne, 164 F.3d 434, 437 (8th Cir.1999). Second, the district court must “choose the most analogous guideline from the sufficiently analogous offense guidelines, if indeed there are more than one.” Id.

U.S.S.G. § 2A6.2 (2013) is entitled “Stalking or Domestic Violence” and applies to stalking and domestic violence crimes under 18 U.S.C. §§ 2261 (interstate domestic violence), 2261A (stalking), 2262 (interstate violation of a protection order), and 117 (domestic assault by an habitual offender). See U.S.S.G. app. A. (Statutory Index). Under this guideline a defendant may receive enhancements for inter alia violations of protection orders and a pattern of activity involving stalking, threatening, harassing, or assaulting the same victim. U.S.S.G. § 2A2.3 (2013) is entitled “Minor Assault” and applies to simple assaults not punishable by more than 6 months; assault resulting in substantial bodily injury to an individual who has not attained the age of 16; as well as a variety of different assaults or injuries committed within Indian country or against government officials (foreign or domestic), government employees, servicemen, witnesses, informants, persons authorized to serve or execute search warrants and seizures, nuclear inspectors, maritime navigators, stowaways on aircrafts or vessels, or damage to the aircraft, aircraft facilities, international airports, post office, maritime platforms, and/or vessel itself. See 18 U.S.C. §§ 32(a)(b), 37, 112, 113(a)(5), 113(a)(7) 115(a), 115(b)(1), 351(e), 1153, 1389, 1512(a), 1513, 1751(e), 2116, 2199, 2231, 2280, and 2291 ; 21 U.S.C. § 675 ; 42 U.S.C. §§ 2000e–13, 2283 ; U.S.S.G. app. A. (Statutory Index). Not only does the Minor Assault guideline not contain any enhancements for violence between spouses, intimate partners, or dating partners, but the corresponding statutes do not reference this aggravating factor either. Id.

The facts of Iceman's strangulation conviction are consistent with domestic violence. Iceman and Sayers were in an intimate relationship, lived together, and after Iceman viciously attacked Sayers he kissed her and told her he would “See [her] at home.” The existence of an intimate relationship between the attacker and victim is an aggravating circumstance unique to acts of domestic violence. The district court recognized this fact in its Statement of Reasons for Imposing the Sentence and expressly found the Domestic Violence guideline was the most analogous provision “especially in light of Defendant's relationship to the victim.” We agree.

The Domestic Violence guideline is also the most analogous guideline to Iceman's strangulation conviction because it is the only guideline with corresponding statutes that contain the same element of the existence of an intimate relationship between the attacker and victim. A jury convicted Iceman of strangulation in violation of 18 U.S.C. § 113(a)(8), which criminalizes, “Assault of a spouse, intimate partner, or dating partner² by strangling, suffocating, or attempting to strangle or suffocate....” (Emphasis added). An essential...