United States v. Boyd White Twin, 682 F.3d 773

White Twin pled guilty to assault with a dangerous weapon within Indian country under 18 U.S.C. § 113(a)(3) and § 1153.
District court sentenced him to 84 months’ imprisonment followed by three years’ supervised release.
On appeal White Twin contends the four upward departures were not supported by the record and were adequately reflected in the Guidelines.
White Twin also objects to an extra six months added for smiling at sentencing.
The panel reviews for abuse of discretion under Gall v. United States and related Eighth Circuit authority and affirms.
The judgment is affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court abused by sua sponte applying §4A1.3 upward departure.	White Twin argues the Government bears burden and the court erred.	White Twin contends the departure was not properly supported or justified.	No abuse; sua sponte §4A1.3 departure upheld.
Whether §5K2.3 psychological injury departure is supported by the record.	White Twin claims the PSR/testimony lack factual support.	White Twin asserts insufficient corroboration of the factual basis.	Findings corroborated by PSR and testimony; departure sustained.
Whether §5K2.8 extreme conduct departure was proper.	White Twin asserts the conduct was already captured by Guidelines.	White Twin argues no extraordinary brutality beyond guidelines.	District court properly found unusually heinous conduct warranting §5K2.8.
Whether §5K2.21 dismissed/unangered conduct may be considered.	White Twin argues dismissal/uncharged conduct should not influence sentence.	Court may consider dismissed charges to reflect seriousness.	Departure authorized; context supports sentence.
Whether adding six months for smiling at sentencing was an abuse of discretion.	White Twin contends demeanor alone cannot justify increase.	Court could consider demeanor along with other § 3553(a) factors.	No abuse; district court did not rely solely on a smile.

United States v. King, 627 F.3d 321 (8th Cir. 2010) (upward departure under § 4A1.3 allowed with additional history not in criminal history)
United States v. Milton, 153 F.3d 891 (8th Cir. 1998) (district courts may impose an upward departure sua sponte)
United States v. Paz, 411 F.3d 906 (8th Cir. 2005) (PSRs admitted if defendant does not object to factual allegations)
United States v. Yahnke, 395 F.3d 823 (8th Cir. 2005) (unobjected PSR facts may be treated as true for sentencing)
United States v. Bougie, 279 F.3d 648 (8th Cir. 2002) (unobjected PSR facts may be accepted for purposes of sentencing)
United States v. Fawbush, 946 F.2d 584 (8th Cir. 1991) (upward departures must be grounded in factual findings)
United States v. Azure, 536 F.3d 922 (8th Cir. 2008) (dismissed charges may be relied upon in sentencing)
United States v. Stacey, 531 F.3d 565 (8th Cir. 2008) (timeliness of objections preserves issues on appeal)
United States v. Feemster, 572 F.3d 455 (8th Cir. 2009) (en banc; standard for substantive reasonableness review)
United States v. Gant, 663 F.3d 1023 (8th Cir. 2011) (district courts have wide discretion in sentencing)
United States v. Robinson, 662 F.3d 1028 (8th Cir. 2011) (demeanor may be considered in sentencing)
Gall v. United States, 552 U.S. 38 (2007) (abuse-of-discretion review governs within/outside Guidelines)