*1 HEANEY, Before BEAM and Circuit FENNER,1 Judges, Judge. District HEANEY, Judge. Circuit appeal, criminal challenges district court’s
government downward Because the district court’s decision to downward was well within the discretion afforded it sentencing guidelines, we affirm. I. charged
Kevin Decora was with assault deadly weapon pled guilty. At with departed the district court guidelines range from a of 37- and sentenced Decora to three 46 months At the as- years probation. time sault, 22-year-old Decora was a resident Missouri, Fenner, sitting by designation. Gary 1. The Honorable A. Judge for the Western District States District
677 Dakota, Mission, any impact sentencing. the not have on a town on did South history in criminal score was zero. The Reservation His Tribal Rosebud Sioux departed district court downward from the lived on the reser- Dakota. He had South sentence of months recommended 37-46 years. Decora for a number of vation for a level 21 offense with a criminal in histo- school county high graduated ry placed probation for of and Decora on Univer- and attended Sinte Gleska Mission years. probation, three As a term of his time of Decora sity. At the to in a required participate Decora was in degree mental had earned his associate in- program substance abuse treatment health, to obtain and had one semester left testing drugs and alcohol. cluding been, had degree. bachelor’s Decora his be, in extensively continues to involved II. and extracurricular activities appeal Human the The sole issue on is whether such as the Services Club Club, Judge Bogue, the latter of which he served Senior District Andrew Lakota experience graduating judge thirty years with almost president. in as Since bench, school, employed has on the abused his discretion high Decora been granting Decora the downward every summer. States, 81, 518 See Koon U.S. evening of November 13 and the On 2035, 97-100, 116 L.Ed.2d S.Ct. 14, morning hours of November early (1996) (directing appellate apply courts to drinking. had Decora been On an standard in abuse-of-discretion review home, passed off-duty Mission way Decora ing to district court’s decision no-pass- police officer Jon Siedschlaw downward). sentencing may de court Decora ex- ing zone. Siedschlaw observed part if the court finds that there posted speed failing limit and ceeding the of a kind mitigating exists a circumstance stop radi- stop sign. for a Siedschlaw adequately or taken into con degree descrip- on-duty Tucker with a oed Officer formulating guidelines. sideration in vehicle, and officers fol- tion of the both § 5K2.0. “The decision as to See U.S.S.G. lowed Decora to his mother’s home departure to what extent whether and vehicle and Mission. Decora exited his warranted with the court rests initially officers. He approached the Id. case-specific on a basis.” requested placed his hands on ear as officers, depart, Judge making removed his his decision by the but then the cir- De- stated that the facts and Bogue hands. The officers then restrained handcuffs, cora, of the case it out of the placed him in and seated cumstances took dangerous the assault with patrol him in the back of the vehicle. heartland of weapon usually that he saw in his was in the of the vehi- cases While Decora back Siedschlaw, that because the cle, in the courtroom. He continued he kicked who was vehicle, Later, ordinary far removed from the front of the the head. case was so case, car, weapon he patrol dangerous with a he was removed from the as to describe Decora’s behavior groin kicked was inclined Decora Siedschlaw aberrant-seemingly random area. any planning, without thoughtless, done charged Decora was On November 10.) (Sentencing Tr. at reflexively. almost weapon dangerous with a with assault prior to the inci- Judge Bogue noted that (shod feet). pled guilty He to the indict- committed such an dent Decora had never April on 1998 and was sentenced ment violence, nor has he since. act of Re- July 1998. The Pre-Sentence on (PSR) Additionally, Judge Bogue found indicated a level port total offense circum- mitigating sentencing, Decora there were of 21. At the time of case, adversity namely, as a stances prior had three tribal DUI convictions Rosebud, Dakota, the reser- Decora had faced on juvenile in South defendant (1989). architect Breyer, resilience” he Justice vation and the “remarkable recently guidelines, in his determina- stated had nonetheless shown 10.) guidelines preserved Tr. at have the district (Sentencing tion to succeed. incident, Decora was court’s traditional discretion At the time of the *3 in away receiving allowing depart from a it to only one semester unusual cases. Justice Steven degree. Many of Decora’s teach- Associate college University Ne- Judge Breyer, Address at the of colleagues ers and sent letters Law, College Symposium well re- braska on the Bogue indicating that Decora is Sentencing at the Federal Guidelines spected community in his Uni- Criminal (Nov. 1998). 18, versity great promise Breyer he as stressed and that shows Justice community importance discretionary a leader and a role model. the author- the concluded, young “This man in Judge Bogue ity sentencing judge promoting of the promise in an other- great shows a deal of in equity fairness and the individual case. situation. A despairing dismal and wise Id. ruin his life term of incarceration would Koon, Supreme the stressed Court purpose be good and no would served that, 11.) Tr.
thereby.” (Sentencing at A district court’s decision to sentencing guidelines provide that ... in Guidelines will most cases be factors such as education and vocational deference, due substantial for it embod- record, skills, employment family ies the traditional exercise of discretion community responsibility and ties are not by a court.... Whether a determining in ordinarily relevant wheth- given present degree factor is to a appli- er should a sentence be outside adequately by considered the commis- guidelines range. cable See U.S.S.G. sion, discouraged or whether a factor 5H1.2, 5H1.5, However, §§ 5H1.7. U.S.S.G. justifies departure nonetheless § provides part: in relevant 5K2.0 present it is in excep- some unusual or or cir-
[A]n offender characteristic other way, tional are matters determined in is, in cumstance that the Commission’s part by comparison large with the facts view, ordinarily in “not relevant” deter- of other Guidelines cases. District mining whether sentence should be have an advantage Courts institutional applicable guideline range outside the appellate making over courts in these may if be relevant to this determination determinations, especially sorts of as such characteristic or circumstance is they many see so more Guidelines cases present to an degree unusual and distin- appellate than courts do.
guishes the case from the “heartland”
(citation omitted). Here,
Although sentencing guidelines normally my see courtroom.” designed uniformity are to achieve in fed 9.) Tr. (Sentencing sentencing, they preserve eral also for the sentencing judge depart. Judge Bogue the discretion to further stated that he was States, adversity v. young See Mistretta 488 U.S. “well aware of the that a 367, position 714 man in S.Ct. 102 L.Ed.2d faces on the [Decora’s] 10.) id.; tion. see also United States Tr. at See (Sentencing reservation.” Crow, Big 1331-32 of the adversi- knowledge Judge Bogue’s Cir.1990) (describing mitigating him factors enabled the reservation ties of life on reservation). on an Indian As present factors not judgment to make the Star, education, relevant, combination of the One here it'is the such as ordinarily and the leadership difficulty in the of life on the reservation experience, and work extraordinary and nature of De- an unusual present community, were case. cora’s educational record and Decora’s degree distinguished provided leadership that allows for the expressly This determination Weise, U.S.S.G. guidelines. See Cf. *4 (8th Cir.1996) (“The (departure not warrant 506 comment. Commission 5K2.0 where, life, the of an ed aside from reservation possibility does not foreclose that, rela family of a com- defendant’s work record and extraordinary case because tionships or circum- were not otherwise characteristics bination of such stances, enough departure); to warrant United significantly differs 575, 577 Buffalo, v. 10 F.3d by guidelines States White ‘heartland’ cases covered (8th Cir.1993) statutory (departure not warranted important to the way in a that is of presented where defendant no evidence though even none purposes of standing in- and his or circumstances his of the characteristics case.”). unusual); sufficiently was not distinguishes the work record dividually Prestemon, States v. 929 F.2d guided by Finally, Judge Bogue was also (8th 1991) (departure based on 1278 Cir. Star, v. decision United States One our adoptee pro defendant’s status as bi-racial (8th Cir.1993), factually which is 60 hibited). The district court also consid sup- and very to the instant case similar bond, that released on ered the fact while discretion. The de- ports his exercise of completed an intensive successfully Decora was convicted of as- fendant One Star program, participated in-patient treatment at weapon. See id. dangerous sault with a program following in an alcohol after-care a base offense 60. The recommended PSR treatment, attended Alcoholics his range of 33-41 guideline level of 20 awith Tr. Anonymous meetings. See id. at 60-61. imprisonment. months Gee also, 7-8; Allery, at see granted a downward The district court Cir.1999) (8th (noting 614 Star to five departure and sentenced One if it may, rehabilitation is post-offense that among probation upon, years conditioned unusual, for a sufficiently grounds furnish things, participation substance other departure) (citing United States downward id. at 61. The dis- program. abuse See 820, 823 Cir. Kapitzke, 130 F.3d v. upon its departure trict based its court 1997)). prior one only that had finding One Star history of conviction and no other that even government argues others, threatening thus he did injuring or warranted, the departure is if a downward any appear dangerous to be is excessive. We departure probation to sufficiently ad- was proclivity to violence Star, affirmed this court disagree. One condition of by dressed the no alcohol departure to the district court’s The court also consid- probation. See id. dis as a reasonable exercise of probation possessed Star ered the fact One noting that guidelines, under the cretion “ and that he had weapon for self-defense quin ‘is impose probation to the decision ” responsibilities strong family ties and call.’ 9 F.3d at tessentially judgment history. id. employment See good Passmore, v. 984 (quoting United States (8th Cir.1993)). Judge Bo fac- F.2d considered these The district court consideration, circum all of the gue, in mitigating cir- light of the unusual tors case, just made stances Decora’s the Indian reserva- cumstances of life on tus, is to take into consideration permissi- call and quintessential judgment prohibited by Congress. I specifically imposed probation. bly would remand for the district court III. without rebanee on a resentence defendant of life on the generalization adversities Judge Bogue’s deci- conclude that We reservation. De- depart downward and sentence sion to probation was within years cora three by retained discretion of the
court under the structure by our case law. supported Therefore, judgment district
court is affirmed. CLEMMONS, Appellant, Eric D.
FENNER, Judge, dissenting. District tak- the district court erred believe DELO, Appellee. Paul K. into consideration the defendant’s ra- ing No. 96-4118. background imposing cial when sentence. *5 Prestemon, Appeals, States Court (8th Cir.1991), noted: this Court Eighth Circuit. establishing Guide- [I]n Submitted Jan. 1999. lines, Congress expressly directed the Sentencing Commission to “assure that May Filed 1999. policy statements are En Rehearing Rehearing Banc race, sex, entirely neutral to the na- July Denied 1999. creed, origin, tional and socioeconomic of offenders.” status U.S.C. 994(d).
§
Congressional
This
directive
clearly
set
forth in Guidelines
reason,
appellee’s
5H1.10. For
background
race or racial
cannot be a
basis for
See United States
Diaz-Villafane,
sideration of when sentence). imposing majority opinion, As reflected in the sentencing judge present case made basing it clear that he was his decision to sentencing guidelines on personal ad- knowledge general living versities one faces on a reservation. sense, By considering, general that a person was raised or lives on reserva- tion, ghetto, raised or lives or other- particular wise from a socioeconomic sta-