United States of America, Appellee/cross-Appellant v. Casey Marie Yirkovsky, Appellant/cross-Appellee

totally almost without mined to be merit. appropriate

“A award is if the reduced fee

relief, significant, however is limited in

comparison scope litigation Eckerhart, Hensley

a whole.” 461 U.S.

424, 440, S.Ct. L.Ed.2d 40

(1983). Hеre, prevailed Mrs. Geissal on question liability and then wasted parties,

valuable resources of all the in-

cluding an plan, litigating ERISA mone-

tary remedy questions that should have

been settled. The district court did not reducing by

abuse discretion in fifty its

percent the award determined the lode-

star method. judgment district court is and the case

reversed is remanded for

further consideration of the issues dis- II.A.(2)

cussed Part opinion. this In respects,

all other the judgment of the

district court is affirmed. Appellant’s Mo- Supplemental"

tion To Strike Appendix is

denied. America,

UNITED STATES of

Appellee/Cross-Appellant,

Casey YIRKOVSKY, Marie

Appellant/Cross-

Appellee. 02-1176,

No. 02-1462. Appeals, States Court of

Eighth Circuit.

Submitted: Oct. 2002.

Filed: July 2003. Hammond, loaded, B. argued, Jonathan Cedar and a shotgun, digital sawed-off IA, Rapids, appellant. scale, ammunition, crossbow, and arrows in Yirkovsky’s bedroom. AUSA, Murphy, argued, Richard L. Ce- IA, appellee. Rapids, dar Howard, Yirkovsky’s Patrice friend of eight years, usually testified that she visit- HANSEN,1 Judge, Before Chief Yirkovsky’s ed residence once or twice a HEANEY and MORRIS SHEPPARD Yirkovsky week. dating Ricky had been ARNOLD, Judges. Circuit Black, Jr., Jordan who Yirkovsky’s shared HANSEN, Judge. Circuit bedroom, and Howard had dating been trial, jury Stockfleet, After a found Casey Marie William stayed who in the sec- Yirkovsky guilty being of an unlawful user ond bedroom of the two-bedroom house. of a controlled in possession substance of a After an incident which someone tried firearm, in violation of 18 U.S.C. to break into the house while Yirkovsky (2000), § 922(g)(3) and possessing an un- a.m., was home alone acquired at 3 Black firearm, registered in violation of 26 shotguns the Yirkovsky’s protection. 5861(d) (2000). U.S.C. The district Howard was seeing reg- accustomed to the Yirkovsky’s denied motion judg- shotgun ular next to the front door and the ment acquittal and sentenced her to two shotgun sawed-off in the bedroom that Yir- four-year concurrent terms of рrobation, kovsky shared, and Black except on an with year spent one to be in a community occasion when Black showed Stockfleet corrections center. how to use regular shotgun and Yir-

Yirkovsky convictions, appeals her and kovsky and Howard watched. Black below, for the reasons stated we affirm. moved out of the residence approximately government The cross-appeals three sen- it, week before police searched and matters, tencing and for the reasons dis- (but Yirkovsky had purchased yet had not below, cussed we vaсate Yirkovsky’s sen- installed) a new lock for the entrance door. tence and remand for resentencing.

Howard had Yirkovsky known and Black time, for a fairly long I. Yirkovsky’s appeal and throughout their relationship, Black came and went as he trial, Four witnesses testified at and pleased. Thus, although Black had moved their testimony was as follows. Officer out prior search, about week he Lance Miller marijuana recovered stems left behind his dogs, two his clothing, and seeds, and drug materials, packaging and personal his other effects. Although drug consumption paraphernaliа from the kovsky ready had access to the shotguns trash left outside residence. that Black acquired had for her protection, He applied then for and received a search Howard never saw handle them warrant. Detective Healy Dan gathered them, or claim ownership secured and Yirkovsky the evidence during seized told execution of Howard the search that she did warrant: a not like having loaded shotgun and a them in blowgun inside her home. Howard house characterized door, near the front marijuana and con- Black’s relationship with Yirkovsky sumption paraphernalia room, living physically abusive: he frequently her, hit 1. The Honorable David stepped R. Hansen close of business on March 2003. He has Judge down as Chief of the United States been succeeded the Honorable James B. Appeals Court of Eighth for the Circuit Loken. if her, eyes. session of contraband he has owner- and blackened bruised ship, dominion or control over the con- Nonetheless, stayed together itself, or dominion traband over the long of time and span over a with Black in which the contraband con- premises changes three residence. through ceаled. shotguns that the parties stipulated physical proximity Mere to contraband in interstate com- transported had been person pos- is insufficient to convict a shotgun was and that the sawed-off merce session with intent to distribute. How- Elam, Robert unregistered. Detective ever, knowledge presence combined in the of the resi- participated search who thing with control over the is construc- him dence, Yirkovsky told testified that knowledge, If there is possession. tive acquired shotguns Black had the that by proof per- control is established the attempted to the break-in response the premises son has dominion over Yirkovsky home when was place took which the contraband is concealed. alone. Cruz, v. 285 F.3d 697 no evidence. presented The defense (8th Cir.2002) (case citations and internal Yirkovsky guilty of both jury The found omitted). definition, marks Under this court denied her charges, and the district Yirkovsky possession had constructive judgment acquittal. motion for undisputed it is the firearms because Yirkovsky argues that appeal, On she had dominion over the residence and denying erred in present. the district court knew the firearms were acquittal because judgment motion for rejected sufficiency-of- previously We evidence that she there was insufficient challenge to a conviction for the-evidence constructively possessed the actually or possession of a firearm where constructive highly review is firearms. Our standard of police the trial evidence showed that the jury’s verdict: we must deferential searched the residence where defen light in the most favor view the evidence living at the time and seized the dant was verdict, accept we must all able to the firearm from the bedroom the defendant supporting inferences the ver reasonable Although with his wife. the defen shared dict, if only we will reverse no rational and ownership wife claimed the fire dant’s jury guilty have found could arm, we affirmed the defendant’s convic beyond a reasonable doubt. See United “ownership is irrelevant tion because (8th Kirkie, v. States possession.” the issue of See United Cir.2001). rationally If trial evidence 270, 274 Boykin, States theories, conflicting two we will supports Cir.), denied, 888, 114 cert. 510 U.S. S.Ct. theory jury’s not disturb the choice of the (1993). 241, 126 L.Ed.2d the convictions. See United supports meaningful is no distinction be- There 962, 964 Chipps, deemed sufficient tween the еvidence .2002). Cir presented at Boykin and the evidence discussing

In our recent case crim- most at the kovsky’s living trial. was posses- on constructive liability inal based seizure, ap- at the time of residence sion, possession we defined constructive after Black had moved a week proximately follows: from firearms were recovered out. The near the front Yirkovsky’s bedroom and can be either

Possession of contraband residence, areas over which she held door of the actual or constructive. We have . or shared do- either exclusive pos- has constructive exercised that an individual testify, Black did not if minion. but even and he was convicted after a trial at which that he was the he had testified owner of neither he nor his wife testified. The dis- shotguns, ownership his is irrelevant to granted trict court the husband’s motion Yirkovsky’s possession. for judgment acquittal, and this court affirmed because the trial evidence was The inference most favorable to the equally probative spouse’s guilt of either defense that can drawn from the be trial prove beyond did not a reasonable testimony is that Black brought the fire doubt that the husband was responsible against arms into the residence Yirkov beating the infant to death. See id. at wishes, sky’s and she did not remove them The distinguished 1299-1300. Hall court during week after he moved out be case which a defendant’s conviction for thought cause he might she return some murdering an infant was upheld because day guns gone. and hurt her if the were he the only present was one at the time jury was no obligated means injuries were inflicted. See id. The give credence to this inference. See Unit applies same distinction Yirkovksy, here: Hitt, ed States v. F.3d Black, not residing at the house when (“Witness Cir.2001) credibility is within the the guns were seized. Blaсk had moved province jury, which we are not before, out a week and Yirkovsky was on review.”) allowed to But even if the jury verge of changing the lock on the inference, did draw this it does not dis residence’s entrance door. prove Yirkovsky’s possession constructive shotguns. “[T]he essence con Because the evidence was sufficient to possession direct, structive physical is not allow a jury reasonable to find that Yirkov- control, ability but the to object reduce an sky constructively firearms, possessed the otherwise, actual possession; to construc we аffirm her convictions.2 possession tive would have no meaning at Holm, II. government’s

all.” The cross-appeal United States v. 1119, Cir.1988). If someone had The government cross-appeals three again tried to break into the house while First, sentencing issues. presentence alone, Yirkovsky was home for example, (PSR) report recommended that Yirkovsky nothing would have stopped her from us should not receive a accep- reduction for ing either of the loaded and readily acces tance of responsibility put because she had shotguns sible repel to the intruder. government to its burden proof at The instant case differs from trial on the possession element of her Hall, States v. 999 F.2d 1298 Cir. objected, the firearms. Yirkovsky and at 1993), a case at argument. mentioned oral sentencing, the district granted court her a In that an infant was beaten to death two-level acceptance-of-responsibility re- while only his mother and her Second, husband duction. the PSR recommended present. were The husband and wife were that Yirkovsky should receive a two-level each physically capable of inflicting the reduction having for a minor role in the injuries, and each of them told authorities activity. criminal government The did not story different about injuries how the object, Yirkovsky objected, but requesting ‍‌​‌‌‌​‌​​​‌​​‌‌​​​​​‌​​‌​‌‌‌‌‌​‌​‌​​‌‌‌‌​‌‌‌​​​‌‍Only occurred. the husband charged, was a four-level reduction having for a minimal 2. We pleaded guilty note that Black pos- to principle with the posses- that constructive sessing shotgun the sawed-off may joint and was sen- sion be rather than exclusive. See forty Sianis, tenced to prison months in and three United States v. years supervised Cir.2002). release. This is consistent accep- a reduction for granting court the district sentencing, At role. Third, responsibility. tance of reduction. a four-level her granted re- granted the district in the offense B. Role on the for a downward

quest abused physically Black had basis for clear error We review relationship. during their grant Yirkovsky to district court’s decision reduction under a four-level minimal-role responsibility Acceptance A. (2000). 3B1.2(a) § See United U.S.S.G. trial States v. goes Lopez-Arce, A defendant who (8th Cir.2001). Yirkovsky had burden acceptance-of- an eligible be may still reduction, her entitlement to the prove in “rare situations reduction responsibility id., on no additional evi put see and she goes where a defendant example, ... sentencing at to show her minimal dence preserve assert issues to trial to Sentencing Commis (e.g., participation. to make guilt factual relate to do not adjust downward or a sion “intended challenge to statute a constitutional will be used for a minimal of a to ment applicability statute challenge to the examples conduct).” listing as “some infrequently,” Sentencing Guidelines U.S. his comment, (2000). very in a (n.2) no other role played who 3E1.1, one Manual operation than large drug smuggling eligibil novo the defendant’s de We review ship marihuana when, here, part single of a it turns offload a reduction ity for re [who] ment” and “an individual defense whether the question legal on the single smuggling for a cruited as a guilt. courier trial relates to factual asserted involving a small amount of Barris, F.3d 35 transaction See United comment, (n.2) 3B1.2, Cir.1995). drugs.” U.S.S.G. (2000). that a held defendant previously We decision, by an earlier guided to are goes if he We guilt his factual

challenges Ali, 63 F.3d 710 constructively United States whether he trial on the issue Cir.1995). was the that defendant firearm, ineligible him In making a possessed possession of being of a felon reduc- convicted aceeptance-of-responsibility an for thе showed Webber, evidence a firearm. The tion. See United who Cir.2002). a ear passenger a are not defendant was We FedAppx. 469 driver had a that the loaded unpub- was unaware it is an by Webber because bound pulled the car police However, handgun. rely we on When may opinion. lished over, firearm shoved the toward the driver value” “persuasive because it for its defendant, police and the found in the presented issue addresses the squarely leg. The defendant’s defen- gun under the published opinion case and “no the instant a four-level argued that he deserved as dant court would serve this or another of mi- 28A(i). a reduction or two-level minimal-role We con- 8th Cir. R. well.” See cul- he was because less nor-role reduction pos- challenge a to constructive clude that culpable and driver less pable than the guilt factual challenge a to session is being convicted of average person than the possession actual surely challenge as a to a firearm. possession a felon in guilt: and challenge to factual actual is a rejected argument, his district court are alternative possession constructive that he not affirmed, concluding we of the of- satisfying an element ways of See id. at to reduction. jury. entitled fense, by the and each is decided in 718-19. court erred the district Accordingly, sixteen,

Yirkovsky’s argument is essen was in a resulting Guidelines culpable she is less than tially the same: range twenty-seven thirty-three to Stockfleet, Black, culpable than she is less in prison. months Under what we have culpable typical than the and she is less determined to be the correct Guidelines being drug user defendant convicted calculations, her total offense level is twen- possession possess of a firеarm and of ty, for a range forty-one Guidelines ing unregistered an firearm. We conclude fifty-one prison. months in The district clearly the district court erred grant court’s decisions on whether to granting Yirkovsky a four-level minimal- kovsky departure a downward and how Although agree reduction. we tend to role departure grant much of a made her Black, Yirkovsky culpable is than less eligible probation imprison- rather than mere fact that a defendant is less “[t]he say ment. We cannot with confidence culpable than his codefendants does not that, given starting point, the correct participant’ entitle defendant to ‘minor sta district court would have made the same Lopez-Arce, tus.” 267 F.3d at 784. decisions regarding departure. downward adjustment war “Whether downward Accordingly, departure we leave the issue only by compar ranted is determined not open on resentencing, remand: at the dis- ing the acts of each in relation trict court should consider anew whether par to the relevant conduct for which the stringent meets the standard accountable, ticipant is held but also and, so, for a downward if how measuring participant’s each individual much to depаrt. culpability and relative against acts elements of the offense.” Id.

fully satisfied the elements of each offense III. convicted, of which she was and certain aspects of her criminal activity exceeded reasons, For these we affirm Yirkov- minimum necessary guilty be found sky’s convictions but vacate her sentence (e.g., of the offenses pos her concurrent and remand resentencing consistent marijuana, presence session of other opinion. with this weapons, the fact that both firearms were accessible, kept readily loaded and and the HEANEY, Judge, dissеnting. Circuit fact that shotguns one of the was sawed- off). using And defendant Ali as a I respectfully majori- dissent from point reference for what constitutes an ty’s reversal of the district court’s sentenc- average typical person or pos convicted of ing majority’s reductions. The treatment firearm, sessing a it is clear that Yirkovsky of this case disturbing reflects a trend possessed the firearms for a significantly toward increasingly punitive sentencing. longer period of time. Moreover, disregards the district court’s Although we have overturned the four- that, discretion to fashion a sentence aftеr reduction, level minimal-role we will leave having opportunity to hear all the evi- Yirkovsky with a two-level minor-role re- dence and evaluate the through defendant duction because the PSR recommended it actions, her words and would better serve government object and the did not to it at both the society. defendant and that time. A simple survey of appeals recent from

C. Downward criminal sentences bears out this trend. May government Under district court’s Since appeal- Guidelines cal- culations, Yirkovsky’s total twenty-five offense level ed cases in which the district

943 sentеnce, court reduced the defendant’s sentence. one would expect to see a similar those, our court reversed the district reversals, Of pattern of inasmuch as we have 'times, twenty-three and affirmed employed similar standards of review for v. Compare United States Ma only twice. both upward and adjustments downward drigal, (8th Cir.2003) (affirm 738 327 F.3d and departures. Unfortunately, that is not reduction), ing district court’s sentence May the case. Since we were Jauregui, v. United States 314 F.3d presented with appeals forty-six from up (8th Cir.2003) with United (same), 961 departures. those, ward Of we reversed Swick, (8th v. States 334 F.3d 784 Cir. two, only аnd affirmed the forty- other 2003) (reversing district court’s sentence four. Compare United v. States Robert Dyck, United States v. reduction), son, (8th Cir.2003) (revers 324 F.3d 1028 (8th Cir.2003) (same), United States v. 736 and United ing sentence), increase Aguilar-Portillo, 334 F.3d 744 (8th Cir. v. Bougie, States (8th 279 F.3d 648 Cir. Johnson, 2003) (same), United States v. 2002) (same), ‍‌​‌‌‌​‌​​​‌​​‌‌​​​​​‌​​‌​‌‌‌‌‌​‌​‌​​‌‌‌‌​‌‌‌​​​‌‍ with United States v. Ches (8th Cir.2003) (same), United 318 F.3d 821 borough, 333 F.3d 872 (8th Cir.2003) (af Patterson, States v. (8th 315 F.3d 1044 sentence), United firming increase Roberts, Cir.2003) (same), United States v. Agee, States v. (8th Cir.2003) 333 F.3d 864 (8th Cir.2002) (same), Unit 313 F.3d 1050 Orchard, United v. (same), States Butler, v. (8th ed States 296 F.3d 721 (8th Cir.2003) (same), United States 1133 Webber, Cir.2002) (same), United v. States Tarantola, v. (8th Cir.2003) 332 F.3d 498 (8th Cir.2002) (same), 39 Fed.Appx. 469 (same), United States v. Aguilar-Lopez, Stone, United States v. 39 Fed.Appx. 478 (8th Cir.2003) (same), United 329 F.3d 960 (8th Cir.2002) (same), United States v. Se Thornerg, States v. (8th 326 F.3d 1023 arcy, (8th Cir.2002) (same), 938 Fletcher, Cir.2003) (same), United States v. Reinke, v. (8th United States 283 F.3d 918 (8th Cir.2003) (same), United 322 F.3d 508 Cir.2002) (same), United States v. Jime Elk, States v. Thin (8th 321 F.3d 704 Cir. nez, (8th Cir.2002) (same), 282 F.3d 597 2003) (same), Vagenas, United States v. King, United v. (8th States 280 F.3d 886 (8th Cir.2003) (same), United 318 F.3d 819 Cir.2002) (same), United States v. Peter Lalley, States v. (8th sen, 317 F.3d 875 Cir. (8th Cir.2002) (same), 276 F.3d 432 Rose, 2003) (same), v. United States Sheridan, 315 270 F.3d 669 (8th Cir.2003) United (8th (same), Cir.2001) United States v. Lo F.3d 956 (same), Villalobos-Cuellar, Cir.2001) States v. pez-Salas, FedAppx. 266 F.3d 842 Buckendahl, (8th Cir.2003) United States v. United States v. (same), (same), ‍‌​‌‌‌​‌​​​‌​​‌‌​​​​​‌​​‌​‌‌‌‌‌​‌​‌​​‌‌‌‌​‌‌‌​​​‌‍Evans, (8th Cir.2001) (same), (8th Cir.2002) F.3d 753 (same), 314 F.3d 329 Hasan, Johnson, United States v. 245 F.3d 682 Cir. Fed.Appx. Patterson, United States v. 2001)(same), Cir.2002) (same), United States v. (8th Cir.2001) (same), Cloud, Fed.Appx. 17 496 Iron (8th Cir.2002) 312 F.3d 379 Smith, United States v. (8th 240 F.3d 732 Leaf, (same), United States v. 306 F.3d 529 Lang Cir.2001) (same), United v. States (8th Cir.2002) (same), United States v. made, (8th Cir.2001) (same), 236 F.3d 931 Bell, (8th Cir.2002) Fed.Appx. 46 390 Heilmann, United States v. 235 F.3d 1146 (same), Scolaro, United States v. 299 F.3d (8th Cir.2001) (same), and United States v. (8th Cir.2002) (same), United States v. 956 Aldaz-Loya, No. 99-4339, 2000 WL 688228 Zimmer, (8th Cir.2002) 299 F.3d 710 (8th 2000) (same). 30, May Cir. Garcia-Zuniga, United States v. (samе), (8th Cir.2002) (same), Fed-Appx. 37 When comes cases which the 848 Wilson, increased the defendant’s United States v. district Fed.Appx. 36 577 944 Cir.2002) (same), message it sends to district eourts-that

(8th States v. United Cir.2002) (8th likely are far more FedAppx. 834 more severe sentences Bussey, 33 Brown, (same), v. 287 F.3d States review. As to appellate United to withstand Cir.2002) (same), (8th States v. United I the district court kovsky’s 684 believe Cir.2002) (8th (same), Fellers, 721 285 F.3d sentencing granting did not err in (8th Evans, 285 F.3d 664 v. reductions, United States and would affirm the sentence Cir.2002) (same), v. United States Gardu imposed. (8th

no-Bustos, Fed.Appx. 830 Cir. 37 2002) (same), Callaway, States v. United I. OF RESPONSIBIL- ACCEPTANCE Cir.2002) (8th (same), FedAppx. 771 32 ITY ADJUSTMENT Plummer, 22 FedAppx. v. States United sen- Despite guideline the strictures Cir.2001) (8th (same), v. United States 676 courts still retain the au- tencing, district (8th Cir.2001) Evans, 1069 thority reduce a defendant’s sentence (same), Hampton, v. 260 United States clearly demonstrates where defendant Cir.2001) (8th (same), United F.3d 832 acceptance responsibility. USSG (8th 467, Sarff, FedAppx. 13 v. States § 3E1.1. Because the district court is Cir.2001) (same), Lashley, United States v. position to whether a de- the best assess (8th Cir.2001) (same), 251 706 United F.3d has, fact, accepted fendant as a matter of (8th Cloud, FedAppx. 8 579 v. Red States responsibility, sentencing review a “[w]e Cir.2001) (same), King United States v. deny an aecep- court’s decision to award оr (8th Cir.2001) ston, (same), 740 tance-of-responsibility reduction for clear Crow, 11 Big FedAppx. v. United States Ervasti, v. F.3d error.” United States 201 (8th Cir.2001) (same), United States v. 641 (8th 1029, Cir.2000); 1043 see also USSG (8th Cir.2001) Hawk, Loud 245 F.3d 667 comment, (n.5) (“The 3E1.1, sentencing Starnes, (same), United States v. Fed. judge unique position is to evaluate (8th Cir.2001) (same), Appx. 639 United acceptance responsibility. defendant’s (8th Lewis, v. 235 F.3d 394 States Cir. reason, For this the determination of the 2000) (same), Wyatt, United States ‍‌​‌‌‌​‌​​​‌​​‌‌​​​​​‌​​‌​‌‌‌‌‌​‌​‌​​‌‌‌‌​‌‌‌​​​‌‍v. Nos. sentencing judge great is entitled to defer- 99-3989, 99-3990, 99-3991, 99-3992, & 99- review.”). ence on (8th 3993, Oct.5, 2000 WL 1474099 Cir. 2000) (same), United States v. government, citing con- Levi Ervasti (8th Cir.2000) (same), F.3d 677 a sentencing cedes that our court reviews 99-4118, Handley, v. No. WL regard to acceptance court’s decision with 2000) 12, (same), July Cir. (Gov’tBr. responsibility for clear error. Hernandez-Ramos, United States v. No. 19.) Nonetheless, majority substi- 99-3413, 12, July 2000 WL 960945 Cir. review, tutes its own de novo standard of 2000) (same), Garcia, v. United States No. attempting shape the issue as one 99-3650, 2000 WL Cir. June entirely legal. simply I cannot how see 2000) (same), and United States the resolution of whether defendant is (8th Cir.2000) Sample, 213 F.3d 1029 eligible for a acceptance reduction (same). responsibility purely legal question. ais Alverez, words, during In other the same three Cf. (8th Cir.2000) (“Although we year period consistently that our court was sentences, interpretation review the district court’s reversing shorter we were con- sentencing guide- and of the sistently affirming longer ones. It is diffi- construction ‘[wjhether novo, contrast, quali- cult for me to and I lines de a defendant reconcile this deeply am concerned with the trend and fies for a minor reduction is a fact, challenge order to whether their conduct is of the determination question ” (altera- regard, In this Yir- criminally prohibited. error.’ for clear which we review omitted)). (citation Thus, at kovsky’s archetypal: case is no time original) in tion clearly try the did my analysis throughout proceedings under thesе she I undertake in government, many standard. to the and erroneous obstruct getting was of assistance. After ways she acceptance responsibility agree I in this members the search warrant to defen- apply not often reductions do police department sought out go to trial: dants who time, kovsky, who was not home the for apply not intended to adjustment This is in executing assistance the warrant. She puts government who the to a defendant help, accompanied police to and agreed by denying at trial proof to its burden police back to the house. Shе allowed the guilt, factual elements of the essential home, purse, opened to search her and convicted, guilt then admits only and bulls, Ricky pit Black’s two restrained Conviction expresses and remorse. Anthrax, and while Steel officers searched trial, however, automatically does not candidly admitted to pos- the home. She defendant from consideration preclude a sessing using marijuana, and and she told In a reduction. rare situations for such the officers where the house Black’s demonstrate an may clearly a defendant trial, weapons put were lоcated. At she on crim- for his acceptance responsibility witnesses, challenge any and did not no though even he exercises inal conduct factual of the govern- material assertions a trial. This right to his constitutional ment’s witnesses. occur, where a defen- may example, for preserve trial to assert and goes govern- dant to not Yirkovsky did contest guilt to factual Indeed, issues that do not relate allegations. ad- ment’s factual she challenge make a constitutional (e.g., house, in the guns mitted that the were challenge applica- to the there, to a stаtute or and that she was a that she lived conduct). bility of a statute to his Yirkovsky simply argued that drug user. comment, (and admitted) did not alleged facts (n.2). 3E1.1, § The ma USSG charged. crimes This is not constitute the opinion jority, citing unpublished our legal challenge challenge; a factual it is Webber, Fed.Appx. 469 applicability of a criminal statute to (8th Cir.2002), deni holds the extent that one’s conduct. To Webber- possession of al of actual or constructive majority case the admits unpublished an making challenge, a factual guns 3-suggests an in- precedential value has no departure. this I find ineligible result, it is at odds with relevant consistent of what constitutes this broad definition unworkable, deci- commentary published and guideline con challenge” “factual circuits, thus not of other should the clear intent of the sentenc sions flicts with See, 3E1.1, e.g., USSG be followed. ing guideline commission reserve comment, (n.2) (expressly permitting use go trial for those who unconstitutional), 28A(i) rec- opin- opinions was I (stating unpublished lished 3. 8th Cir. R. 28A(i) value). binding ognize remains precedential While I that Rule ions have no States, circuit, v. United my as to whether a rule such as this have doubts Anastasoff banc) (8th Cir.2000) (en muster, 28A(i) F.3d can withstand constitutional States, ("The сonstitutionality portion of Rule of that see v. United Anastasoff 28A(i) Cir.2000) J., opinions concurring) says unpublished (Heaney, which open an precedential effect remains (agreeing Judge that Cir- have no with Richard Arnold Circuit.”) unpub- question in this limiting precedential value cuit rule for a miti- qualifies in a defendant whether responsibility acceptance for clear error. gating to role reduction goes to trial defendant cases where Alverez, v. of a statute applicability “challenge to (8th Cir.2000). majority While the conduct”); States v. Brous to [her] (5th Cir.1993) (“We that this is our standard purports agree to sаrd, review, analysis an examination of its that as with Broussard agree really doing it is un- 924(c)(1) reveals that what is offense, responsi accepted he § review, substituting dertaking a de novo ownership guns bility. He admitted judgment for that of the district He its own and their location. found in his home 924(c)(1) § court. that to contend went to trial uneontested facts. apply did not to these discussion, reading majority’s After guilt to factual not relate This issue does impression is left with the that United one Note Application is used in phrase as that (8th Cir.1995), 63 F.3d 710 is States Ali 2.”) grounds by other J.E.B. overruled on Yirkovsky indistinguishable so as bar T.B., 127, 114 511 U.S. ex rel. Alabama mitigating rоle re eligibility from for the (1994). 1419, 128L.Ed.2d 89 S.Ct. claimed, The in Ali duction. defendant Moreover, I am convinced that even not does, culpable than he was less disqualify a de challenge would factual gun in a case be average defendant The relevant departure. fendant from this cause of the circumstances of the crime. guide commentary makes clear true, course, Id. at 719. And it is available for line reduction remains in both and the defendant Ali consideration, if the district court’s even Id. mitigating moved for role reductions. defendant his or her constitution exercises However, in at 713. the district court Ali 3E1.1, right al comment. to trial. USSG reduction, grant did not the sentence (n.2); v. Montano- accord United States question before us was whether that Gudino, 506-07 Cir. clearly choice was erroneous. Id. 718-

2002) defen (recognizing that rare cases court, affirming 19. In the district we did dant who denies essential elements of not limit those instances in which the miti acceptance crime could be awarded of re available; rather, gating role reduction is sponsibility departure pretrial based on simply recognized we that the decision to conduct). or not statements and Whether deny or grant the reduction was within the actually the defendant should receive the court, purview of the district and our limit matter, departure is another one which is ed role was to review that decision for left to the district court’s sound discretion. majority clear error. Id. at 719. The clearly Because the district court did not attempts morph holding Ali’s that the err in be this discretion should clearly denying district court did not err left undisturbed. a sentence reduction under Ali’s facts into a Circuit mandate that a reduction is not II. ROLE ADJUST- MITIGATING available under factual simi circumstances MENT lar to in Ali. if Perhaps those we reviewed majority’s that Yir- both Ali and under a de determination case kovsky not a minimal standard withstand novo this would scruti stands, however, exemplary ny. I As it fails to ac pattern of what believe is overstepping appellate ground our court its limited count for the vast middle which sentencing. obligated its discretion to role We are district is within deny finding grant review the district court’s as to either or a sentence reduction. mind, Yirkovsky squarely falls my To America, UNITED STATES of A ground. sentencing this middle

within Appellee, a defendant’s offense may reduce it finds the defen- four levels where level in a minimal participant to be dant TAYLOR, Defendаnt, Francis This reduction “is USSG 3B1.2. crime. who are to cover defendants intended Mary Appellant. Taylor, E. culpable the least those plainly among 01-2874, Nos. 01-3872. Id., a group.” in the conduct of involved comment, (n.4). ease, district In this of Appeals, United States Court Yirkovsky’s conduct court considered Eighth Circuit. Ricky to that of co-defendant contrast Submitted: Jan. 2003. accounts, By all Black lived at the Black. search, ac- shortly until before the house July Filed: 2003. brought them to the

quired guns,

house, and demonstrated to others how hand, other Yirkov-

guns worked. On the to have control over the

sky never claimed guns, and did not

guns, never touched the Moreover, house. being

like them witness,

according physi- to one Black was likely would

cally abusive Yirkovsky if she had touched

have beaten predi- offense was guns. ‍‌​‌‌‌​‌​​​‌​​‌‌​​​​​‌​​‌​‌‌‌‌‌​‌​‌​​‌‌‌‌​‌‌‌​​​‌‍guns fact that she allowed the

cated on the on this

to remain in her residence. Based

evidence, that the simply agree I cannot finding court erred

district

be a minimal the offenses.

CONCLUSION

Being respect of the view that we are to position in the superior

the district court’s for the reasons

sentencing process and herein, I would affirm the district

stated

court.

Case Details

Case Name: United States of America, Appellee/cross-Appellant v. Casey Marie Yirkovsky, Appellant/cross-Appellee

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jul 31, 2003

Citation: 338 F.3d 936

Docket Number: 02-1176, 02-1462

Court Abbreviation: 8th Cir.