United States v. Stimac

• Decision Date: 25 July 2022
• Docket Number: 21-2412
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Brett James STIMAC, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

40 F.4th 876

UNITED STATES of America, Plaintiff - Appellee

v.Brett James STIMAC, Defendant - Appellant

No. 21-2412

United States Court of Appeals, Eighth Circuit.

Submitted: February 18, 2022

Filed: July 25, 2022

Counsel who presented argument on behalf of the appellant and appeared on the brief was Brian N. Toder, of Minneapolis, MN.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Emily Anne Polachek, AUSA, of Minneapolis, MN.

Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Appellant Brett James Stimac, who is not an enrolled member of the Red Lake Band of Chippewa Indians, pled guilty to one count of wildlife trafficking, in violation of the Lacey Act, 16 U.S.C. §§ 3372(a)(1) and 3373(d)(2) (Count 1), and one count of trespass on Indian land, in violation of 18 U.S.C. § 1165 (Count 2), for entering the Red Lake Indian Reservation (the Reservation), removing the head of a bear that he had killed two days before, and transporting the bear's head off the Reservation. As relevant to this appeal, at sentencing, the district court¹ applied a two-level increase to Stimac's offense level pursuant to United States Sentencing Guidelines § 2Q2.1(b)(1)(B) based upon its findings that Stimac had a history of fish and wildlife violations and that the offense conduct involved violations of a number of laws over several days. The district court sentenced Stimac to 15 months imprisonment and 1 year supervised release. Stimac appeals his sentence, and having jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

On September 1, 2019, Stimac purchased a no-quota license issued by the Minnesota Department of Natural Resources (DNR), which allowed him to hunt a bear in a specified area that did not include the Reservation and was not valid until September 2, 2019. Notwithstanding these restrictions, Stimac drove to the Reservation on September 1st with the specific intent to hunt a bear and shot an American black bear estimated to weigh between 300 and 700 pounds using a compound bow. At some point on September 1st, he sent a text message reading, "Time to go kill a bear." Stimac responded to another text message on September 2nd, stating: "Sorry just seeing this. I was bear hunting and didn't get home until 11:30 last night." When asked where he was, he replied: "Up at red," presumably meaning the Reservation. He also sent a message that day stating: "I shot one last night but lost it but there are a ton up there and I'm gonna shoot another one." On September 2nd, Stimac drove Meghan Carlson, an acquaintance that Stimac met online, to three garbage dumps on the Reservation with the intent to shoot another bear. Stimac did not shoot another bear that day, but he located the carcass of the bear that he shot on September 1st. Stimac took photographs with the carcass and subsequently uploaded those photographs to Facebook with the caption: "Got it done last night with an absolute giant over 700 pounds." Stimac returned to the Reservation again on September 3rd, sawed off the bear's head with a yellow hacksaw, removed the head from the Reservation, and took the head to a taxidermy shop.

On September 12, 2019, Stimac appeared on a hunting podcast and claimed that he killed the bear on September 2nd, contradicting his September 2nd Facebook post, which stated that he had killed the bear the night before. By this time, the September 2nd Facebook post had caught the attention of DNR Officer James B. Guida, and on September 15th, DNR officers executed a search warrant at Stimac's home and seized his cell phone, 71 one-pound packages of ground meat that Stimac told officers was bear meat but testing later confirmed to be deer meat, and a compound bow. Stimac voluntarily spoke with DNR officers on September 15th and told Officer Guida that he killed the bear on September 2nd in Polk County, which is an area where his no-quota license would have permitted him to hunt a bear. On September 16th, Officer Guida spoke with Stimac again, and Stimac stated that he actually killed the bear on September 1st. On September 21st, Carlson pointed law enforcement to the area where she had observed the bear's carcass on September 2nd, and Officer Guida asked Officer Paul Smith, a game warden with the Reservation, to locate the carcass. Officer Smith located the carcass near a garbage dump, which is a well-known feeding ground for bears on the Reservation. The bear's head was missing, and a yellow hacksaw was found near the bear's carcass that testing later revealed was covered in "bear material." On September 25th, Officer Guida interviewed Stimac for a third time, and Stimac appeared remorseful and stated that he should not have shot the bear.

On December 6, 2019, the government filed a two-count misdemeanor information charging Stimac with wildlife trafficking and trespass on Indian land. Stimac pled guilty to both counts, admitting at his change of plea hearing that he entered the Reservation on September 1, 2019, without permission from the Red Lake Tribal Counsel to hunt and remove wildlife and that, on or about September 3, 2019, he removed the head of a black bear from its carcass and transported the bear's head off the Reservation, but denying that he shot the bear. At sentencing, Stimac maintained that he did not kill the bear, but after hearing the testimony of four government witnesses and reviewing the government's exhibits, the district court found that the government had proven by a preponderance of the evidence that, between September 1 and 3, 2019, Stimac entered the Reservation with the specific intent to hunt a bear; shot a bear with a compound bow, killing the animal; sawed off the bear's head; and removed the bear's head from the Reservation. The district court further found that it appeared that Stimac violated "at least four state laws ... in connection with the commission of this offense."

The district court then addressed whether USSG § 2Q2.1(b)(1)(B), which provides that a defendant's base offense level should be increased by two levels where "the offense ... involved a pattern of similar violations," applied in this case. Though it stated that the language of this provision "focuses on the current offense," the district court found that the enhancement applied regardless of whether § 2Q2.1(b)(1)(B) refers to applicable prior violations or violations committed in connection with the offense of conviction because Stimac had a history of fish and wildlife violations and it was uncontested that, over a period of several days, Stimac violated a number of laws when he trespassed onto the Reservation for the purpose of illegal hunting, killed a bear, sawed off the bear's head, and removed the head from the Reservation. Applying this enhancement as well as a 2-level downward adjustment for acceptance of responsibility, the district court found that Stimac had a total offense level of 6 and a criminal history category of V, which put his Guidelines range at 9 to 15 months imprisonment. The district court sentenced Stimac at the top of the Guidelines range, sentencing him to 12 months imprisonment on Count 1 and 3 months imprisonment on Count 2, to run consecutively, and 1 year supervised release on each count, to run concurrently. Stimac appeals the district court's application of § 2Q2.1(b)(1)(B) and requests that this Court remand for resentencing.

II.

Stimac argues that there was no "pattern of similar violations" in his case supporting application of § 2Q2.1(b)(1)(B), regardless of whether the provision refers to applicable prior violations or violations committed as part of the offense. "When considering whether there is procedural error, we review the district court's factual findings for clear error and its application or interpretation of the Guidelines de novo." United States v. Halter, 988 F.3d 1042, 1047 (8th Cir. 2021) (emphasis omitted). "[Stimac's] argument requires us to interpret the [G]uidelines, and ‘[w]e employ basic rules of statutory construction when interpreting the Guidelines.’ " United States v. Collins, 754 F.3d 626, 630 (8th Cir. 2014) (third alteration in original) (citation omitted). We begin our analysis with the plain language of § 2Q2.1(b)(1)(B). Cf. United States v. Behrens, 644 F.3d 754, 755 (8th Cir. 2011) ("As with any question of statutory interpretation, our analysis begins with the plain language of the statute." (citation omitted)). Where the plain language of the Guidelines is unambiguous, our inquiry is complete. See United States v. Clayborn, 951 F.3d 937, 939 (8th Cir. 2020) ("Our inquiry ‘will most often begin and end with the text and structure of the Guidelines.’ " (citation omitted)). When determining whether a particular Guidelines provision is plain and unambiguous, this Court must read all parts of that provision together, giving full effect to each part. Cf. Owner-Operator Indep. Driver's Ass'n v. Supervalu, Inc., 651 F.3d 857, 863 (8th Cir. 2011) ("In determining whether statutory language is plain and unambiguous, the [C]ourt must read all parts of the statute together and give full effect to each part." (citation omitted)). If a provision is ambiguous, meaning that "it is susceptible to more than one reasonable interpretation," then "we ‘may examine legislative history and other authorities to determine [Congress's] legislative intent’ behind the provision." Cf. id. at 862-63 (alteration in original) (citation omitted) (stating same in context of statutory interpretation).

Section 2Q2.1(b)(1)(B) provides that "[i]f the offense ... involved a pattern of similar violations, increase by 2 levels." The background provided in the commentary to § 2Q2.1(b)(1)(B) states that

[t]his section applies to violations of the Endangered Species Act, the Bald Eagle Protection Act, the Migratory Bird Treaty, the Marine Mammal Protection Act, the Wild Free-Roaming Horses and Burros Act, the Fur Seal Act, the Lacey Act , and to violations of 18

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