United States v. Richart

• Citation: 662 F.3d 1037
• Decision Date: 08 December 2011
• Docket Number: No. 10–1977.,10–1977.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Wanda Faye RICHART, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

662 F.3d 1037

UNITED STATES of America, Plaintiff–Appellee,

v.Wanda Faye RICHART, Defendant–Appellant.

No. 10–1977.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 12, 2011.Filed: Dec. 8, 2011.

Angela Lorene Pitts, AFPD, Fayetteville, AR, for appellant.

Patrick C. Harris, AUSA, Little Rock, AR, for appellee.

Before MURPHY, BYE, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

After a jury found Wanda Richart guilty of one count of conspiracy to make a false statement in violation of 18 U.S.C. § 371 and one count of making a false statement in violation of 18 U.S.C. § 1001, the district court ¹ sentenced her to sixty months' imprisonment on each count, to be served consecutively, and three years' supervised release. Richart appeals her sentence, arguing that the district court committed procedural error in imposing a two-level adjustment for her role in the offense, in imposing an upward departure, and in running the two sentences consecutive to each other. Richart also contends that the district court abused its discretion by imposing a substantively unreasonable sentence and by imposing special conditions of supervised release. For the reasons stated below, we affirm.

I. Background

On February 6, 2008, Wanda Richart and her husband, Charles “Bubba” Richart, were charged with making, and conspiring to make, false statements to an FBI agent in violation of 18 U.S.C. §§ 371 and 1001. These charges were the result of an investigation by the FBI into the disappearance of Wanda and Bubba's fourteen-year-old niece, Christina Richart. Christina was the daughter of Bubba's deceased brother and had been living with Wanda and Bubba when she went missing in the summer of 1999. In 2005, the FBI began investigating Christina's disappearance, and during the course of that investigation, Wanda repeatedly told FBI agents that Christina had gone to live with an aunt in California. This was a lie, which Wanda told to prevent authorities from discovering what had really happened to Christina. In fact, Christina had died in the bathroom of the Richarts' house during the summer of 1999. At that time, Christina and her younger brother, Michael, were living with Wanda and Bubba, along with Wanda and Bubba's young son, Steven. Two other individuals also lived in the house: Richard Burton and Joann Holdman, who was pregnant.

At trial, Joann Holdman testified that on the day Christina died, Christina and Wanda got into an argument, and that at a certain point, Wanda told Christina that she needed a bath and forced her into the bathroom, where the argument continued. Holdman stated that after about ten or fifteen minutes of hearing Wanda and Christina yelling at each other in the bathroom and the sounds of splashing and crying, she heard a “thud” and then she “didn't hear Christina anymore.” According to Holdman, when the bathroom door opened, Christina was lying in front of the bathtub, not breathing. Holdman testified that she felt Christina's neck for a pulse and was unable to find one and that, when she put her hand on Christina's head, she felt a “mushy spot.” Holdman stated that when she suggested calling for an ambulance, Wanda told her “not to do nothing stupid and that if I did anything stupid, she would kill me and my baby.” The following morning, Holdman accompanied Wanda, Bubba, and Burton to bury Christina's body in the woods. Upon returning to the house, Wanda and Bubba gathered up Christina's clothes and belongings and burned them.

When asked if there was a discussion about what to tell people if they asked what had happened to Christina, Holdman testified that Wanda instructed the group to say that Christina's mother had returned and taken Christina to live with her. Holdman stated that she did not tell anybody what had happened to Christina because she was afraid of Wanda. She continued living with Wanda and Bubba for about a month after Christina died. According to Holdman, on the day she moved out, Wanda put her hand on Holdman's throat and told her that she could leave, but that if she told anybody anything about what really happened to Christina, Wanda would find her and kill her and her baby. Holdman also asserted that Wanda telephoned her soon after Holdman delivered her baby in March of 2000 and told her to “remember what we talked about,” which Holdman interpreted as a renewal of the threat. After that phone call, Holdman had no further contact with Wanda. However, she testified at trial that when FBI agent Mike Lowe interviewed her in June of 2006, she lied and told him that Christina's aunt had taken Christina to live with her. When pressed, Holdman stated that she could not remember whether she told Lowe that Christina had gone to live with her mother or her aunt, but that whichever one Wanda had told her to say, that is what she would have told Lowe. Holdman explained that she told Lowe this lie because she was still afraid of Wanda. When Lowe returned in January of 2008, though, Holdman told him the truth about Christina because she “didn't want to be scared anymore.”

Burton's trial testimony was that after the four adults returned from burying Christina's body, Wanda instructed them to tell people that Christina had gone to live with an aunt in northern Arkansas or Oklahoma. Burton stated that he was interviewed by Lowe in October of 2005, in April of 2006, and in October of 2006, and that on each occasion he told the lie that Wanda had come up with. Bubba also testified at Wanda's trial. He stated that on the night Christina died, he did not call the police and did not call for an ambulance because Wanda told him not to. He testified that he did not remember who first came up with the false story about what happened to Christina, but that when he was interviewed by Lowe in October of 2005 and November of 2007, on both occasions, he told Lowe that Christina had gone to live with an aunt in California. Bubba also stated that Wanda told the FBI the same lie about Christina going to live in California with an aunt. In December of 2007, however, Bubba again met with Lowe and this time told the truth about what happened to Christina.

Donna Walker ² testified at trial that Michael Richart, Christina's brother, came to live with her and her husband in May of 2000 after having been removed from Wanda and Bubba's care by the Department of Human Services (“DHS”). According to Walker, DHS became involved after Michael's school reported suspected abuse. Walker stated that when she first met with Wanda and Bubba, in May of 2000, Wanda told her that Christina had gone to live with a great-aunt in Oklahoma. In July of 2001, Walker and her husband began the process of adopting Michael, and Walker again contacted Wanda in order to obtain some necessary paperwork. Walker testified that during that conversation, she also asked about Christina, and Wanda told her that Christina had gone to live with an aunt in California. Walker noted the discrepancy between this story and the previous account she had received from Wanda, but did not pursue the matter. However, because Michael continued to ask about his sister, Walker began to search for Christina. Through her uncle, who was the police chief in Fordyce, Arkansas, Walker succeeded in getting a missing child report filed in early 2005, and in September of 2005, at the behest of Arkansas state police, the FBI became involved in the search for Christina.

On December 2, 2009, a jury found Wanda Richart guilty of both federal charges. On January 22, 2010, she pled nolo contendere in Arkansas state court to a charge of second degree murder, and was sentenced to 360 months' imprisonment. Her federal sentencing took place on April 23, 2010. The Pre–Sentence Investigation Report (“PSR”) recommended a base offense level of six pursuant to U.S.S.G. § 2B1.1, and a two-level enhancement pursuant to § 3B1.1(c) for being “an organizer, leader, manager, or supervisor” of the conspiracy to make false statements. Based on a total offense level of eight and a criminal history category of I, the advisory Guidelines range was zero to six months' imprisonment. The PSR also referenced § 5K2.9, which provides for an upward departure to reflect the seriousness of the offense where the defendant committed the offense in order to conceal the commission of another offense, and § 5K2.21, which provides for an upward departure based on uncharged conduct that did not enter into the determination of the applicable Guidelines range. At sentencing, Richart made several factual objections to the PSR, including two that are relevant to her appeal. First, Richart objected to the allegation that she lied to FBI agents in order to hide not only Christina's murder but also physical abuse and sexual exploitation of Christina and the other minors in the Richarts' care. Second, Richart objected to paragraphs stating that she had threatened to kill Holdman and Holdman's unborn child. Richart also objected to the two-level enhancement for her role in the offense and to the language in the PSR regarding an upward departure.

The district court found that the trial testimony supported the allegations that Richart lied in order to conceal Christina's murder and that Richart threatened to kill Holdman. Therefore, the district court overruled Richart's objections to those statements. The district court found that the allegations about physical and sexual abuse were not supported by the trial testimony. However, at sentencing, Lowe testified that he had interviewed Christina's younger brothers, Norman and Michael Richart, and that both boys told him that Wanda and Bubba physically and sexually abused Christina, Norman, and Michael. On the basis of this testimony, the district court overruled Richart's objection to the statements in the PSR regarding physical and sexual abuse. Further, the district court held that the two-level enhancement for role in the offense was appropriate...