411 F. App'x 927

8th Cir.

2011

UNITED STATES of America, Appellee, v. Myron Eugene JONES, Appellant.

No. 10-2187

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 14, 2011. Filed: March 2, 2011.

633 F.3d 925

for mental health and chemical dependency problems. The government sought an upward departure, requesting a 100 month sentence based on (1) the psychological harm to the victim, (2) the unusually heinous, cruel, brutal, or degrading conduct, and (3) because Jones‘s criminal history category did not adequately reflect the seriousness of his past criminal conduct and the likelihood of recidivism. See U.S.S.G. §§ 5K2.3, 5K2.8, 4A1.3.

At sentencing, the district court found the PSR‘s criminal history category of III was not an adequate reflection of Jones‘s criminal history due to uncounted tribal convictions. See § 4A1.2(i). The court also noted Jones had drug and alcohol problems, mental health issues, and a history of domestic assault. Based on these circumstances, the court found Jones had a “very significant propensity to reoffend,” and then sentenced Jones to 82 months imprisonment.

On appeal, Jones argues the district court erred by giving too much consideration to unscored tribal convictions noted in his PSR. Jones also argues the district court abused its discretion by failing to consider his individual characteristics such as his remorse, treatment for alcohol and mental health problems, and commitment to sobriety. See 18 U.S.C. § 3553(a).

We review sentences under a deferential abuse of discretion standard. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). “In reviewing [Jones‘s] sentence, we first ensure that the district court did not commit significant procedural error, such as an improper calculation of the advisory sentencing guidelines range; then, absent significant procedural error, we review the sentence for substantive reasonableness.” United States v. Jenkins, 578 F.3d 745, 748 (8th Cir. 2009), cert. denied, — U.S. —, 130 S. Ct. 1550, 176 L. Ed. 2d 141 (2010); Feemster, 572 F.3d at 461 (describing means of procedural error).

Here, the district court did not procedurally err in considering Jones‘s tribal convictions. The Guidelines specifically permit a district court to consider tribal court convictions for the purpose of determining the adequacy of a defendant‘s criminal history, see U.S.S.G. § 4A1.3(a)(2)(A), and this court has consistently approved tribal convictions as a permissible basis for departing upward from the advisory Guidelines range. See, e.g., United States v. Cook, 615 F.3d 891, 893 (8th Cir. 2010); United States v. Harlan, 368 F.3d 870, 874-75 (8th Cir. 2004). We have reviewed the record below and are satisfied that under the totality of the circumstances the district court considered all relevant sentencing factors, see 18 U.S.C. § 3553(a), and imposed a substantively reasonable sentence. See Feemster, 572 F.3d at 461.

We affirm the judgment.

JOHN CHISM BAIL BONDS, INCORPORATED, Appellant, v. Bruce PENNINGTON, individually, and in his official capacity as the elected Sheriff of Saline County; Ray Pennington, individually, and in his official capacity as the jail administrator for the Saline County Jail; Ken Casady, individually, and in his official capacity as the elected prosecutor of Saline County 22nd Judicial District; Judge Gary Arnold, Saline County Circuit Court, Second Division; Judge Bobby McCallister, Saline County Circuit Court, First Division; Judge Mike Robinson, Benton District Court; Judge Grisham Phillips, Saline County Circuit Court, Third Division; Judge Robert Herzfeld, Saline County Circuit Court, Fourth Division; Judge Curtis Rickard, Bryant District Court; Saline County, Arkansas, Appellees.

No. 09-3291.

United States Court of Appeals, Eighth Circuit.

Submitted: Dec. 13, 2010. Filed: March 2, 2011.

633 F.3d 927

Charles Daniel Hancock, Hancock & Lane, Little Rock, AR, for Appellant.

George D. Ellis, Ellis Law Firm, Benton, AR, Suzanne Hixson, Attorney General‘s Office, Little Rock, AR, for Appellees.

Before RILEY, Chief Judge, BEAM and BENTON, Circuit Judges.

PER CURIAM.

John Chism Bail Bonds, Inc. (JCBB) appeals part of the district court‘s¹ Fed. R. Civ. P. 12(b) dismissal of its civil rights lawsuit against certain public officials in Saline County, Arkansas (County). See generally John Chism Bail Bonds, Inc. v. Pennington, 656 F. Supp. 2d 929 (E.D. Ark. 2009). JCBB argues the district court erred in dismissing some of JCBB‘s 42 U.S.C. § 1983 claims against County Sheriff Bruce Pennington, County Jail Administrator Ray Pennington, and the County itself (collectively, the Pennington defendants).² Because JCBB does not challenge any other portion of the district court‘s dismissal order, we need not consider the Arkansas Attorney General‘s forty-five page brief, tendered on behalf of the County‘s prosecutor and judges, in support of the judgment below. See Jasperson v. Purolator Courier Corp., 765 F.2d 736, 740-41 (8th Cir. 1985) (holding the failure to raise an issue on appeal constitutes abandonment of that issue).

As relevant here, JCBB alleged the County‘s judges announced in a general administrative order that the County‘s courts would no longer accept cash or professional bonds, including JCBB‘s “credit bonds.” A “credit bond” apparently refers to the “practice whereby a bail bondsman will extend credit to a detainee for the premium for the bond, as opposed to requiring payment for the premium before issuing the bond.” John Chism Bail Bonds, 656 F. Supp. 2d at 931-32 n. 1.

In one particular criminal case, Special Judge Meredith Wineland³ set Boyce Williams‘s bond at $5,000 “as cash, professional, or anything acceptable by the Sheriff.” Bruce Pennington and Ray Pennington decided to require Williams to post a “sheriff‘s bond” in lieu of one of JCBB‘s bonds. A “sheriff‘s bond” seemingly refers to “the practice whereby the sheriff accepts cash or property for bail in lieu of a bail bond from a professional bail bondsman.” Id. at 932 n. 2 (citing Ark. Code Ann. §§ 16-84-103(a)(2), 16-84-105(b), and 16-84-107(a)).

JCBB contends the Pennington defendants, in requiring a sheriff‘s bond, abridged JCBB‘s Fourteenth Amendment rights to procedural and substantive due process. These § 1983 claims, which JCBB refers to as the “Williams claim,” are not explicitly discussed in the district court‘s order, but are controlled by the district court‘s broader holdings that JCBB‘s (1) individual capacity claims against Bruce and Ray Pennington are barred by quasi-judicial absolute immunity and (2) official capacity claims against the Pennington defendants should be dismissed under the abstention doctrines developed in R.R. Comm‘n of Tex. v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941) and Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424 (1943). It is not surprising the Williams claim is not discussed in the district court‘s order, because, as the Pennington defendants observe, “[t]his is an appeal of a tiny sliver of what transpired below.” Indeed, the amount in controversy here is apparently $500—JCBB‘s premium for Williams’ bond.

We agree with the district court‘s disposition of the Williams claim. Reviewing the dismissal of the individual capacity claims de novo, see Martin v. Hendren, 127 F.3d 720, 721 (8th Cir. 1997), we hold quasi-judicial absolute immunity protects the sheriff and jail administrator in their joint decision to require a sheriff‘s bond before releasing Williams. See Robinson v. Freeze, 15 F.3d 107, 109 (8th Cir. 1994) (holding quasi-judicial absolute immunity protects persons other than judges when they perform certain delegated judicial powers); cf. Curry v. Castillo (In re Castillo), 297 F.3d 940, 952-53 (9th Cir. 2002); Whitesel v. Sengenberger, 222 F.3d 861, 867-70 (10th Cir. 2000); Wilson v. Kelkhoff, 86 F.3d 1438, 1443-45 (7th Cir. 1996). Similarly, reviewing the dismissal of JCBB‘s official capacity claims against the Pennington defendants for an abuse of discretion, see Night Clubs, Inc. v. City of Fort Smith, Ark., 163 F.3d 475, 479 (8th Cir. 1998), we hold the district court did not abuse its discretion by abstaining in light of the uncertainty of the relevant decisional rules and the Arkansas state courts’ greater expertise in this area. See Pullman, 312 U.S. at 501; Burford, 319 U.S. at 327-34. The district court understandably declined to interfere in the County‘s bail bond practice, leaving this local dispute for the Arkansas courts to resolve in the first instance.

We affirm the judgment of the district court.

UNITED STATES of America, Appellee, v. Monty M. MARINER, Appellant.

No. 10-3228.

United States Court of Appeals, Eighth Circuit.

Submitted: March 1, 2011. Filed: March 4, 2011.

633 F.3d 930

Rick Lee Volk, Assistant U.S. Attorney, U.S. Attorney‘s Office, Bismarck, ND, for Appellee.

Monty M. Mariner, Oklahoma City, OK, pro se.

Orell D. Schmitz, Assistant Federal Public Defender, Federal Public Defender‘s Office, Bismarck, ND, for Appellant.

Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.

PER CURIAM.

Monty Mariner challenges the sentence

Notes

The Honorable J. Leon Holmes, Chief Judge, United States District Court for the Eastern District of Arkansas.

In their brief, the Pennington defendants wonder “why Saline County . . . is a party to this appeal.” We assume Saline County is a party because the official capacity claims against Bruce and Ray Pennington are claims against the County. See (“[T]he real party in interest in an official-capacity suit is the governmental entity and not the named official.“); (“[A]n official capacity suit is, in all respects other than name, to be treated as a suit against the entity.“).

Judge Wineland was not one of the judges who issued the administrative order.

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