United States v. Eddie Hummingbird
2014 U.S. App. LEXIS 3456
| 8th Cir. | 2014Background
- Hummingbird pled guilty to one count of abusive sexual contact under 18 U.S.C. §§ 1153, 2244(b), and 2246(3).
- District court calculated guidelines range as 6–12 months but varied upward to the statutory maximum of 24 months.
- PSR recommended cross-reference to aggravated sexual abuse (2A3.1(a)(2)), plus increases for force (4 levels) and serious bodily injury (2 levels).
- District court sustained objections to the cross-reference and adjustments, finding the offense evidence in equipoise due to victim's lack of testimony.
- The court treated the nature and circumstances of the offense as a primary factor in the variance and acknowledged the victim’s upsetting experience.
- Hummingbird objected to the upward variance as substantively unreasonable; the appeal contends the variance was improper and overly large.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Procedural error in variancing based on offense factors | Hummingbird argues re-emphasizing offense factors was error. | Hummingbird contends variance relied on improper factors. | No procedural error; §3553(a) factors properly considered. |
| Substantive reasonableness of upward variance | Sentence within reasonable bounds is necessary; variance too large. | District court properly weighed §3553(a) factors and justified variance. | Sentence, including variance, is substantively reasonable. |
| Impact of lack of witness testimony on cross-reference/adjustments | Lack of victim testimony undermines cross-reference and enhancements. | District court exercised discretion; evidence supports considering offense nature. | Discretion preserved; no abuse in resolving evidentiary uncertainties. |
Key Cases Cited
- United States v. Feemster, 572 F.3d 455 (8th Cir. 2009) (abuse-of-discretion standard for sentencing; deferential review)
- Gall v. United States, 552 U.S. 38 (Supreme Court 2007) (requires deferential review and considers §3553(a) factors)
- United States v. Chase, 560 F.3d 828 (8th Cir. 2009) (reaffirmed that §3553(a) factors may justify variance even if within advisory range)
- United States v. Bridges, 569 F.3d 374 (8th Cir. 2009) (district court has wide latitude to weigh §3553(a) factors)