*1 America, UNITED STATES
Plaintiff-Appellee, RICHART, Faye Defendant-
Wanda
Appellant.
No. 10-1977. Appeals, Court of Circuit.
Eighth Jan.
Submitted: 8, 2011.
Filed: Dec.
MELLOY, Judge. Circuit Richart jury guilty After found Wanda conspiracy count of to make false of one in violation of 18 U.S.C. statement a false making and one count statement the dis- violation 18 U.S.C. to sixty court1 sentenced her months’ trict count, imprisonment on each served consecutively, years’ supervised and three sentence, appeals ar- release. guing that the district court committed a two-level procedural imposing error offense, adjustment for in the her role *5 imposing and in run- departure, ning the two sentences consecutive to each other. Richart also contends the dis- by impos- trict court abused its discretion substantively unreasonable sentence by imposing special and conditions of su- For pervised release. the reasons stated below, we affirm. Background
I. 6, 2008, February On Wanda Richart husband, “Bubba” Ric- and her Charles hart, making, with con- charged were and make, spiring false statements to an §§ agent FBI in violation of 18 U.S.C. charges 1001. These were result investigation by the FBI of an into and Bubba’s four- disappearance Wanda niece, Richart. teen-year-old Christina daughter of de- Christina was the Bubba’s living been with ceased brother and had missing when she went Wanda and Bubba In FBI the summer of 1999. Pitts, AFPD, Fayette- Angela Lorene investigating disappear- Christina’s began ville, AR, for appellant. ance, during of that the course investi- Harris, AUSA, Rock, C. Little Patrick FBI gation, repeatedly agents Wanda told AR, for appellee. gone had live with that Christina lie, was a
aunt in California. This which MURPHY, BYE, MELLOY, authorities from prevent Wanda told Before really happened had discovering what Judges. Circuit of Arkansas. Wright, Susan Unit- trict 1. The Honorable Webber Judge Eastern ed States District for the Dis- fact, died in she Christina. Christina had because was afraid of Wanda. She living Richarts’ continued with during the bathroom the house Wanda and Bubba time, for about a month At after the summer of 1999. Christina died. Holdman, brother, According to day on the younger and her Mi- she Christina out, moved chael, Bubba, put Wanda her hand on Hold- living with Wanda and were man’s throat and told her that she could son, along young with Wanda and Bubba’s leave, if anybody but that she told any- Steven. Two other individuals also lived in thing really about happened what Richard Burton and Joann house: Christina, Wanda would find her and kill Holdman, pregnant. who baby. her and her Holdman also asserted trial, Joann Holdman At testified that on telephoned that Wanda her soon after died, day Christina Christina and Wan- baby Holdman delivered March got argument, da into an and that at a told her to “remember what we point, certain told Wanda Christina that about,” talked which interpreted Holdman she needed bath and forced her into the aas renewal of the threat. After that bathroom, argument where the continued. call, phone Holdman had no further con- Holdman stated after about ten or However, tact with Wanda. she testified hearing fifteen minutes of Wanda and at trial that agent when FBI Mike Lowe Christina yelling each other the bath- interviewed her June of she lied room and the sounds splashing cry- *6 and told him that Christina’s aunt had a ing, she heard “thud” and then she taken Christina to live with her. When anymore.” “didn’t hear Christina Accord- pressed, Holdman stated that she could Holdman, ing to when the bathroom door not remember whether she told Lowe that opened, lying Christina was in of front had gone Christina to live with her mother bathtub, breathing. Holdman testified aunt, or her but that whichever one Wanda that she pulse felt Christina’s neck for a say, had told her to that is what she would that, and was unable to find one and when have explained told Lowe. Holdman that put head, she her hand on Christina’s she she told Lowe this lie because she was still “mushy felt spot.” a Holdman stated that afraid of Wanda. When Lowe in returned suggested when she calling for an ambu- 2008, January of though, Holdman told lance, Wanda her told “not to do nothing him the truth about Christina because she stupid I and that if did anything stupid, “didn’t want to scared anymore.” she would kill me my baby.” and The testimony Burton’s trial was that after following morning, accompanied Holdman four burying adults returned from Wanda, Bubba, and bury Burton to body, Christina’s Wanda instructed them body Christina’s Upon the woods. re- people to tell that gone Christina had to house, turning to the Wanda and Bubba with live an aunt in northern Arkansas or gathered up Christina’s clothes and be- Oklahoma. Burton stated that he was in- longings and burned them. by 2005, terviewed Lowe in October of
When asked if there was a discussion 2006, of April and in of October and about what to tell people they if asked that on each occasion he told lie happened Christina, what had Holdman up Wanda had come with. Bubba also testified that Wanda instructed the group testified at Wanda’s trial. He stated that say that Christina’s mother had re- died, on the night Christina he not call did turned and taken Christina to police live with the and call for did not an ambu- her. Holdman stated that did not she tell lance because Wanda told him not to. He anybody what happened had to Christina testified that he did not remember who the FBI involved police, sas became story about state with the false up came first for Christina. Christina, when the search but that happened what of by Lowe in October interviewed he was 2, 2009, jury a found On December Wan- occa- of on both November 2005 and charges. of guilty da Richart both federal had sions, Lowe Christina he told 22, 2010, nolo January pled she conten- On aunt in California. with an gone to live charge of in Arkansas state court to dere told also stated Wanda Bubba murder, and sentenced degree second going same lie about Christina FBI the imprisonment. Her federal to 360 months’ an aunt. In Decem- live in California with 23, 2010. place April took however, again met Bubba ber of Report Investigation The Pre-Sentence truth time told the Lowe and this with (“PSR”) level a base offense recommended happened to Christina. about what 2B1.1, pursuant of six to U.S.S.G. pursuant at trial two-level enhancement testified Donna Walker2 3Bl.l(c) leader, being “an Richart, brother, organizer, came Christina’s Michael of the May manager, supervisor” conspiracy or with her and her husband to live Based on from to make false statements. removed having after been eight a criminal total level of Depart- care offense Bubba’s Wanda and (“DHS”). I, advisory history Ac- Guide- category Human ment of Services Walker, range impris- was zero to six months’ DHS involved lines cording to became The PSR also referenced reported suspected onment. Michael’s school after 5K2.9, provides which for an first stated that when she abuse. Walker Bubba, May departure to reflect the seriousness met with Wanda committed the defendant had offense where told her Christina Wanda in order to conceal commis- great-aunt in Okla- offense gone to live with a 5K2.21, offense, sion of another July homa. Walker *7 upward for provides departure adopting which began process the husband that not uncharged conduct did Michael, based on again contacted Wan- and Walker pa- applica- enter into the determination necessary in order to obtain some da range. At Ric- sentencing, during ble Guidelines testified that perwork. Walker objections to the conversation, made factual about hart several she also asked that PSR, that relevant Christina, including two are told her that and Wanda First, objected to the appeal. her Richart live an aunt in gone had with Christina in agents she lied FBI allegation that discrepancy noted the California. Walker murder only not Christina’s ac- order to hide previous and the story this between Wanda, exploi- sexual physical but also abuse and but had received from count she in However, and the other minors be- of Christina matter. tation pursue the did not Second, ob- care. his the Richarts’ continued to ask about cause Michael had stating that she jected paragraphs for sister, to search began Walker uncle, to kill Holdman and Holdman’s was threatened who Through Christina. objected to the Arkansas, Richart also unborn child. Fordyce, in chief police the the for her role in enhancement missing two-level getting succeeded Walker PSR language to the offense and early filed in and report child departure. regarding Arkan- at behest of September of subsequently adoptive May of and care in is Richart’s Walker Michael Donna Michael adopted and her took him. She husband mother. from Richarts’ after he removed just harm, court found that trial The district Christina but also has caused testimony allegations supported many And, harm to people. other Richart lied in order to conceal Christina’s course, with, nothing this has to do real- and that Richart threatened to kill murder ly, the imposed, but had Therefore, Holdman. district court Walker, been for Ms. this crime would objections overruled Richart’s to those gone I undetected believe. statements. The district court found that allegations physical about and sexual that, Court ... [T]he finds on all based supported abuse were not the trial tes- 3553(a) the considerations in Section ... However, timony. sentencing, Lowe this is fair sentence circum- he had testified interviewed stances, I because, and am finding brothers, younger Christina’s Norman and all, first of I don’t know how much time Richart, boys Michael and both told actually she will do in I custody. state him that physically Wanda and Bubba just don’t know. And I find that she Christina, Norman, sexually abused murdered her niece and that a zero-to- testimony, Michael. On the basis this far, six month sentence is far too inade- the district court overruled ob- Richart’s quate for such a brutal offense. And
jection to the statements re- PSR ... I know she is not sen- being physical garding and sexual abuse. Fur- [murdering tenced her niece]. She ther, the district court held that the two- being it, lying sentenced for about but level enhancement for role in the offense one reason that go she was able to so was appropriate because Richart “was long being without detected is that she perpetrator of the idea to lie about what did. She was successful in happened carrying to Christina.” Before sentenc- Richart, while, lie this for a un- permitted the district court she caused government told harm to call wit- as a result of lie. Walker as a And she ness. brutal, Walker testified that lied about something very Richart’s lie about Christina’s Mi- up. whereabouts caused she covered it chael to maintain dream of seeing his sister again that this caused him emo- speculation, This is I admit. But had tional harm. she not lied about what happened to this *8 The district court sentenced to Richart child and had not in been successful the statutory maximum of 60 im- months’ covering up many years for so what had count, prisonment on each to run consecu- happened, might she have even been tive to each other for a total of 120 months’ convicted of far a more serious offense.
imprisonment and consecutive to Richart’s I it, don’t know. But she lied about and undischarged state sentence. The district Christina’s remains still have not been court stated its reasons for imposing the found, I as far as know. instant sentence:
I do believe that Ms. Richart murdered sentence, She has received a 360-month niece.... I really don’t know how and I am considering that. And I much time don’t Ms. Richart will do in [state prison]. I know how much realize of that time will that she does not she good health, in and I serve do believe Arkansas. And I don’t think that this that, did, sentence is appropriate what under 18 United she 360-month sen- 3553(a). States Code Section I really adequate think tence is because she lied that this crime of hers has caused and up she covered it and it for worked Cir.2011) (internal quotation marks al- a lot of harm. and she caused years omitted). “Procedural errors in- punishment terations And I find that this (or deserves, ‘failing improperly mes- to and it also sends clude calculate she committing range, from the sage calculating) treating to deter others Guidelines mandatory, failing similar offenses. the Guidelines as to 3553(a) factors, selecting consider the three court also ordered The district facts, clearly sentence based on erroneous count, on each supervised release years of failing adequately explain the chosen or other, im- run concurrent each ” (quoting Id. Gall v. United sentence.’ supervised of re- special conditions posed States, U.S. 128 S.Ct. special require conditions lease. These (2007)). reviewing “In a sen- L.Ed.2d in participate sex-offender error, procedural tence for we review the having her from prohibit treatment findings factual for clear district court’s age contact with minors under direct application its error and of [Guidelines permission without written eighteen of (internal quotations novo.” Id. marks de office, entering probation from from the omitted). frequently any into area where children possessing, and from subscrib- congregate, (i) in Adjustment for Role Offense video, any or to, viewing magazines, ing or or depicting children in the nude literature Richart contends that The sexually positions. explicit in calculating advisory court erred explained impos- that its reason range by applying a two-level Guidelines finding special conditions was these pursuant enhancement U.S.S.G. physical- had abused children 3Bl.l(c). that Richart A district court increase appeals her sen- ly sexually. Richart a defendant’s offense level two levels tence, arguing procedurally is both organizer, the defendant was an lead “[i]f substantively unreasonable. unsound er, or of one or more manager, supervisor” contends that She also participants activity. other the criminal imposing two of 3Bl.l(c). its discretion abused determining U.S.S.G. of re- special supervised conditions adjustment applies, the whether the dis lease. trict court should consider such factors as: making of decision authori exercise
II. Discussion participation of ty, the nature offense, A. recruit Procedural Error commission of the right ment the claimed accomplices, of imposition we “When review larger to a share the fruits sentences, whether inside or outside crime, degree participation range, apply a deferential Guidelines *9 offense, or planning organizing United abuse-of-discretion standard.” illegal activity, scope nature (8th Feemster, 455, F.3d 461 v. 572 States authority degree and the of control and (en banc) Cir.2009) (internal quotations exercised over others. omitted). a reviewing “In defen marks 4; § sentence, 3B1.1 cmt. n. see also Unit- we first ensure that the U.S.S.G. dant’s 374, Rodriguez, v. 112 F.3d 377 significant commit ed States district court did not factors). (8th In error; then, significant (applying ap- absent procedural factors, recognized error, we have plying we the sentence these procedural review ‘leader,’ ‘organizer,’ ‘man- terms “[t]he reasonableness.” United substantive (8th to be Frausto, 992, ‘supervisor’ are construed ager,’ F.3d 995 v. 636 States 1046 McDonald, “merely suggest” 521 they States v. than to others that
broadly.” United (8th Cir.2008). 975, “To sub- also commit Nor F.3d the offense. are we con- would, ject to a role enhancement under coming up vinced that with the lie 3Bl.l(c), only manage alone, need a defendant application be sufficient to warrant 3Bl.l(c). participant,” or one other United supervise adjustment of an How- (8th Davis, ever, v. 583 F.3d definitively States we need not decide Cir.2009), simple “the fact that a de- ap- whether the district court erred con- fendant recruits new members into a plication of the Guidelines to the facts finding a spiracy supports the defendant any because find error was harm- supervisor.” a being manager or United Shuler, less. See United States v. F.3d Payton, States (8th Cir.2010) (“Because Cir.2011) (internal quotations marks omit- advisory, procedural Guidelines are now ted). However, § 3Bl.l’s enhancement in determining advisory errors sen- merely apply “does not to a defendant who tencing range subject are to harmless er- suggests committing offense.” Jackson, analysis.”); ror United States v. n. 4. U.S.S.G. 3B1.1 emt. (8th Cir.2010) (“[A] apply- court’s harmless error in objection In overruling Richart’s ing the Guidelines not require does a re- enhancement, the district court stated: mand.”). [Richart], fact, I find that was perpetrator of the idea to lie about what place, argument the first Richart’s Christina, happened to about where she that the facts of her not support case do just was taken. This was all not to hide unpersuasive. enhancement is Based about who picked up, but the fact case, on the record in this there is suffi- that she was murdered. And en- support cient evidence to a finding that apply hancement not to a is to defendant leader, organizer, Richart was an manager merely suggests committing who the of- supervisor. “A or defendant di- need not fense. That’s correct. The Court finds rectly control others in organization actually that this defendant committed organizer.” as functioned the offense and that she actually did lie Morris, was, course, agents she in the Cir.1994). Rather, simple “the fact a conspiracy lie as well. defendant recruits new a members into Richart does not contest conspiracy supports finding of the defen- finding court’s factual one she being supervisor.” dant or manager up who came with the idea lie about (internal Payton, 636 at 1048 quota- However, happened what to Christina. omitted). Here, tions marks the trial tes- she contends that this not sufficient to timony supports finding that Richart did 3Bl.l(e) support an enhancement under Burton, “merely more suggest” “merely suggest[ed]” because she that Holdman, and Bubba lie about what had Burton, Holdman, perpetrate and Bubba happened to Christina. Bubba testified the lie and did not “con- exercise sufficient died, the night that on Christina Wanda authority” trol and them to over warrant told him not to police call the or ambu- application of the enhancement. lance, and Holdman testified that Wanda
We do not think the fact
baby
that Richart
to kill her
her
threatened
unborn
actually told
agents
the lie to FBI
and if she called for an ambulance. Both Hold-
actually participated
conspiracy
in the
to man and Burton testified that Wanda in-
supports
lie
a
group
conclusion that she did more
the
tell people
structed
(ii)
Departure or
Upward
with an aunt.
Variance
gone to live
had
Christina
Drapeau,
v.
See United
Next, Richart contends that
the
Cir.1997)
(affirming applica-
procedural
district court committed
error
the defen-
the
where
tion of
enhancement
imposing
upward departure
in
based on
in
of
friends
the craft
“instructed his
dant
§
policy
5K2.9. Section 5K2.9 is a
U.S.S.G.
his
firebombs”
“directed
constructing
statement,
provides,
which
“If the defen
for the
ingredients
the
friends
obtain
committed the offense in order to
dant
firebombs,
friends
[the defendant’s]
an
facilitate or conceal the commission of
added)).
(emphases
obeyed his commands”
offense,
the
other
the
increase
Further,
that Wanda
Holdman stated
guideline range
re
sentence above
child
to kill her and
unborn
threatened
flect the actual seriousness of
defen
really
anybody
hap-
if
what
she ever told
The
dant’s conduct.”
found
Thus,
ample
there is
pened to Christina.
upward departure
appropriate
that an
was
Richart did more
that Wanda
evidence
§
lied
under
5K2.9 because Richart
to cov
to her
merely proffer suggestions
up the
fact
she murdered
er
friends.
that her
in
argues
Christina. Richart
act
Second,
district court did not
while the
lying
agents
federal
in order to conceal
imposed
explicitly
that it would have
state
wrongdoing
her own
is not outside the
any
regardless of
error
the same sentence
and, therefore,
typical
of
“heartland”
cases
3Bl.l(c) adjust-
§
application
departure
a
is unwarranted. Richart re
Davis,
ment,
United States
cf.
Robertson,
lies on
United States
(concluding
1094-95
(8th Cir.2003), in
F.3d 1028
which we re
a
any
classifying
defendant as
error
versed the district court’s decision to de
as
would be harmless
career offender
Robertson,
§
part
under
5K2.9.
it
specifically
district court
stated
would
explained
possibility
even if
we
that “the
that a
impose the same sentence
defen-
offender),
interrogator
a career
suspect
dant was not deemed
would lie to an
case,
highly
facts
this
unusual
exposure
to minimize his
to criminal
order
extremely unlikely
that the district court
certainly
prosecution most
have
would
imposed
would
lower sentence ab-
into
the Sentenc
been” taken
account
3Bl.l(c)
Al-
sent
enhancement.
establishing
guide
ing Commission
in-
though the two-level enhancement
for a
of 18
range
line
violation
U.S.C.
level from six to
creased Richart’s offense
Therefore,
held
1001. Id. at
we
advisory
eight, this had no effect on the
“a
in which the defendant know
case
guideline range, which remained zero to
agent regarding
ingly lies
a federal
Thus,
six
with or without the
months.
the agent’s investigation”
fact material to
3Bl.l(c)
adjustment,
the district court
outside the heartland of
]
does not “fall[
very
would have started from
same
merely
offenses
because
defen
such
departing upward. Addition-
point before
aspects
told the lie to conceal
dant
specifically
ally, the district court
sen-
which he
arrested.”
Id.
offense for
statutory
maximum
tenced Richart to
mis-
Richart’s reliance on Robertson is
counts, and its
sentence on both
list
placed. Although we concluded Robert-
any
not
doing
so did
include
reasons
case,
that,
ac-
in that
the defendant’s
son
leadership role.
reference to Richart’s
We
the heartland of
tions did
fall outside
any
applying
error in
conclude that
3Bl.l(c)
offenses,
acknowledged
§ 1001
that a
was harm-
enhancement
if the de-
departure would be warranted
less.
*11
“
§
‘significantly
5K2.9 would
conduct
differs
have been harmless.
fendant’s
”
(quoting
justified
Id. at 1031
from the norm.’
The district court
its decision
Evans,
F.3d
States
impose
advisory
United
a sentence above the
(5th Cir.1998) (affirming
upward
§a
5K2.9
guideline range
by referencing
both
departure
3553(a).
for extortion
from sentence
§
§
U.S.S.G.
5K2.9
18 U.S.C.
on
of the viola-
based
“the sheer scale
Therefore,
it is unclear whether the dis-
tions,”
apart
which set the offense
from
imposed
upward departure
trict court
an
taken into account
the incidental violations
upward
or an
variance. The distinction is
Commission)). Here,
by
Sentencing
immaterial, however, where,
here,
as
concluded,
agree,
and we
appropriately
district court
considered
significantly
that
case differs
Richart’s
3553(a)
§
explained the relevant
factors.
from the norm. As the district court ex-
Washington,
United States v.
plained,
case
this is not a
of “someone who
(8th Cir.2008)
(finding
sig-
866-67
“no
agent
is
to a federal
about
lying
whether
nificant procedural error” when the dis-
...
paid
he
a tax or wrote a check
it’s
trict court “described its sentence
aas
lying
agent
about
to a federal
about what
upward departure’
‘variance or
from the
happened
person
to a child when the
lying
range
Guidelines
and drew no distinctions
child.” Richart
murdered the
lied
fed- between the two terms” because the court
agents
up
eral
in order to
a particu-
cover
“appropriately considered the
fac-
relevant
and,
result,
larly
crime,
brutal
aas
she
3553(a)”
§
“provided
tors of
an ade-
successfully avoided detection of
quate
variance”);
explanation for the
cf.
many years. Further,
crime
the dis-
Villareal-Amarillas,
trict
court believed
“had
[Richart]
(8th Cir.2009)
(“After
Book-
covering up
been successful in
[Christina’s
er,
only
sentencing
constraints on
years ...,
for many
murder]
so
might
she
statutory
judges are the
maximum and
have even been
of a
convicted
far more
minimum for
at
the offense
issue and the
serious offence” than
degree
second
mur-
statutes,
sentencing
particularly 18 U.S.C.
addition,
der.
In
only
Richart’s lies not
3553(a).
cabined,
judge
The
but also
prevented discovery of her underlying
liberated,
3553(a)
(inter-
factors.”
by giv-
crime but also increased the harm
marks, alterations,
quotation
nal
and cita-
brother, Michael,
hope
Christina’s
false
omitted));
Jones,
tion
United States v.
of being reunited with Christina. Richart
(8th Cir.2007)
(holding
argue
any
does not
of these factual
the district court
err in declining
did not
erroneous,3
findings
clearly
are
and the
depart
advisory guidelines
from the
range
district court did not err as a
matter
law
jail
based on the defendant’s
misconduct
in concluding that such
warranted
facts
3553(a)
yet imposing
a variance under
upward departure
5K2.9.
misconduct).
jail
Here,
based on the same
event,
any
any
procedural error
explicitly
the district court
found that the
imposing
departure pursuant
imposed
appropriate
was fair and
any
3. We are
unable
detect
evidence
that the lie caused Michael emotional harm.
However,
supporting
specula-
record
the district court's
any
Richart has not attacked
might
tion
clearly
that Richart
have been convicted
these factual determinations as
errone-
result,
of a
purposes
more serious offense in state court had
ous. As a
for the
this
carrying
she
appeal,
not been successful in
lie
we will assume
long.
any
for so
Nor
"selecting
are
aware of
more
did not
err
a sentence based on
Gall,
clearly
people
reliable evidence of harm to other
erroneous facts.”
at
552 U.S.
non-expert testimony
Walker’s
justifications Here, that the district court twice stated pro- significant committed no court district 3553(a) “carefully § considered” had F.3d at Washington, 515 cedural error. addition, explained court factors. Gall, at 867; 552 U.S. also see length imposing its reasons for at some significant procedur- (finding “no S.Ct. 586 sixty-month Ric- sentences: consecutive “cor- Judge the District al where error” up cover the fact that she hart lied to applicable Guidelines calculated rectly her niece it was unclear how murdered ar- parties present allowed both range, actually she would serve much time they ap- as to what believed guments murder; suc- for the prison state be, considered should propriate cessfully long peri- carried on the lie for a 3553(a) factors, thoroughly § all time, just causing harm not od of reasoning”). his documented “many people”; but to other Christina being Richart from prevented have
lie reasons, we also re For similar a more offense convicted for serious the district ject argument Richart’s murder; Richart’s crime degree second failing degree explain court erred gone undetected but for Donna would Supreme “The Court variance. Walker; imprisonment and 120 months’ sentencing court that a explained Gall provided just punishment for Richart’s of- sen explain the chosen adequately ‘must oth- message and “sends deter fense appellate meaningful allow for tence to committing offenses.”4 ers from similar perception promote and to consider- review explanation “demonstrated] This ” Deegan, v. sentencing.’ statutory sentencing fair United States factors.” ation of the (8th VillareaUAmarillas, (quoting The at 899. 586). Gall, How that it consid- U.S. S.Ct. court’s reasons show district 3553(a) factor, court to con- ever, require a district first which “we do ered the section rehearse each of the the nature circumstances categorically cerns 3553(a) offense, im of the when it well as the factors on record as seriousness offense, just for long punishment, the need as as it is clear poses a sentence deterrence, fall for all of which the need considered.” United States they were 3553(a) Cir.2006). Fur- the second factor. Dieken, ther, court the need the district considered required courts Nor have we disparities to avoid unwarranted sentence findings on the record about specific make defendants, 3553(a) similarly-situated among factor. each 3553(a) factor, finding the sixth Perkins, 1107, 1110 Cir. which is conduct of a different 2008). to that Richart’s generally required that is “[A]ll who lied to from that of defendants evidence order appellate court is satisfy the agents about their involvement the relevant federal court was aware of the district on our review refer crimes. Based factors,” less-serious “[i]f are colloquy, we lengthy sentencing contained of the of the considerations ences some “ ‘consid- the district court 3553(a), ordinarily are satisfied satisfied §in we and has parties’ arguments ered court was aware the district own le- exercising [its] basis statute.” reasoned contents of relevant entire above, making determina- factual not err in these does not did because Richart As noted otherwise, tions. argue assume *13 1050 ” (alteration decisionmaking authority.’
gal original) (quoting United United Ervasti, Starfield, F.3d 675 States v. 201 States v. 563 1045-46 (8th Cir.2000)). States, However, (quoting Rita the now-adviso- 338, 356, ry 127 S.Ct. “cannot 551 168 Guidelines mandate sentence U.S. (2007)). Accordingly, within or range L.Ed.2d 203 we find the calculated concurrent procedural sentencing.” no error in the district court’s Id. at 821. addition to Guidelines, vary statutory § to the the up decision to maxi- “18 U.S.C. 3584 and 18 mum each count. U.S.C. are ‘statutory on relevant con- cerns’ to for the district court consider in (iii) Consecutive Counts reaching its ultimate sentence.” Id. Sec- tion multiple 3584 states “[i]f terms of further, argues, Richart imprisonment imposed are aon defendant running the district court erred in the two at the time ... same the terms run sixty-month sentences consecutive to each or concurrently consecutively,” and directs “[W]e other. review the district court’s court, “in determining to impose decision consecutive sentences whether terms imposed the are to be or- for reasonableness.” United States v. dered concurrently to run consecutively, or Rutherford, Cir. shall ... 2010). consider the factors set forth in that the contends 3553(a).” Thus, section applicability “[t]he impose court’s decision to consecutive sen §of involving 5G1.2 cases multiple tences was unreasonable because it violat counts Rutherford, is narrow.” ed U.S.S.G. 5G1.2 and because there was “Notably § at 821. 5G1.2 does not alter- not a run sufficient basis to the counts natively the limit district court’s discretion consecutively. states, Section 5G1.2 in rel consecutively sentence when the total part: evant punishment is less than statutory the max- (c) If the imposed sentence on the count words, § imum. In other 5G1.2 does not carrying highest statutory maximum only describe may impose time a court adequate is to achieve the total punish- (emphasis consecutive sentences.” Id. ment, then the sentences on all counts omitted); Jarvis, see also United concurrently, except shall run to the ex- (8th Cir.2010) (“Al- by tent required otherwise law. though court consider must (d) If the sentence imposed the count when fashioning [Guidelines appropri- carrying highest statutory maximum sentence, ate do not con- [Guidelines less the total punishment, then trol whether sentences run concurrently or imposed sentence on one or more of (internal omitted)). consecutively.” citation the other counts run consecutively, shall but only necessary the extent pro- sentences, fashioning “In whether equal duce a combined sentence to the consecutive, concurrent or a district court punishment. total respects, In all other must still continue to appro determine the sentences on all counts shall run concur- priate Guidelines range and then consider rently, except to the extent otherwise 3553(a) Rutherford, factors.” by required law. Here, F.3d at con We phrase have defined the range, sidered the Guidelines which the “ ‘total punishment’ to precise parties agreed mean ‘the was properly calculated to months, determined zero between and six before judge from within appropriate considering [Guide factors forth in set ” 3584(b) lines range.’ Rutherford, 3553(a), 599 F.3d at required by § as consider the substantive reasonableness in order to determine precedents, our imposed the sentence abuse-of- a consecutive or concur- impose whether ” Washington, standard.’ discretion See id. The district rent sentence. *14 Gall, (quoting at at of incar- F.3d U.S. stated that months expressly 586). “A court 128 S.Ct. abuses “is under appropriate ceration 3553(a).” imposes discretion and an unreasonable finding This Code Section that, when fails to consider a rele- the court’s conclusion sentence reflects sig- that should have up statutory the vant factor received departing after to even count, gives to weight; significant weight sen- nificant on each concurrent maximum factor; improper or irrelevant or con- would not be sufficient the tences and, therefore, ... case, only appropriate siders the factors but of the consecu- facts error required judgment.” commits a clear sentences were achieve Unit- tive Saddler, punishment. total ed States v. appropriate the Cir.2008) (internal quotations marks omit- the decision Richart contends that ted). Richart asserts error all three sixty-month con run the two sentences First, types. Richart contends that the to each other “constitutes addi secutive gave weight improper district court to her upward departure independent tional murder, for state sentence Christina’s from the calculated upward departure the which the district court deemed inade- statutory the maximum range to guideline quate. Specifically, she contends that the in procedurally failing erred and the “clearly by instant sentence was driven” sufficiently support or this explain and / Moreover, this one factor. she asserts reject too. argument, We this departure.” district court should not have the II.A.(ii), above, explained in Part As we her state be- considered conviction at all adequately demonstrated the district court already is taken ac- cause this factor into statutory sentencing consideration establishing count the by the Guidelines determining that 120 months’ factors level for a violation of 18 base offense appropriate was an sen imprisonment Second, argues Richart U.S.C. not procedurally The court did err tence. give court failed to suffi- achieving objective by varying up to this weight advisory guideline cient to the statutory count maximum on each the Finally, range. Richart contends that running the consecutive to two sentences by factors on the district court did relied correctly other. The district court each months, of 120 support sentence advisory range, guideline calculated the greater necessary which was 3553(a) factors, properly considered purposes achieve set forth a 120-month sentence based on selected 3553(a)(2). clearly that were not erro findings factual neous, adequately explained cho do not with Richart that agree We Gall, 51, 128 See 552 U.S. sen sentence. imposed by the district court Frausto, 586; at 995. Con S.Ct. solely by was driven its belief that procedural find no error in sequently, we for murder was state sentence Christina’s analysis. the district court’s inadequate. gave While the district fact significant weight B. Reasonableness Substantive niece murdered her and to uncertain actually serve appeal, on if amount of time Richart will “Our second task gave prison, in state court also several are certain that the district court’s sound,’ concluding for that the sen- is to ‘then other reasons ‘procedurally decision imposed including: by taken into appropriate, tence account Guidelines something about establishing guideline Richart’s lie was range for a vio- many very peo- brutal and caused harm to lation of 1001. successfully ple; that Richart carried on any case, “we previously allowed time, long period might lie for variances already based factors taken have been convicted of more otherwise into account advisory guidelines,” mur- degree offense than second serious where the fully Guidelines do not account der; gone that Richart’s crime would have factors, those or “when a district court Walker; but for Donna undetected *15 3553(a) § applies broader in considerations imprisonment provided that months’ 120 Jones, granting the variance.” 509 at
just punishment
from
and deterred others
(internal
omitted)
914
quotations marks
committing similar offenses. Neverthe-
(affirming an upward variance based on
less,
we to
that
were
conclude
the district
the
jailhouse
defendant’s
misconduct even
ought
court
not to have considered Ric-
though that misconduct
also
the basis
all,
at
hart’s state conviction
would
remand
denying
for
a two-level
for accep-
decrease
See,
likely
necessary.
e.g.,
be
United
tance of responsibility,
the
because
miscon-
(8th
477,
Bertling,
States v.
611 F.3d
482
duct “not only
his lack
demonstrated
of
Cir.2010) (“To
sure,
the
district
acceptance
but,
of responsibility,
...
[also]
discussed other
for varying
reasons
from
3553(a)
clearly
was relevant to other
fac-
appellants’]
advisory
guidelines
[the
tors”);
Fiorito,
States
640 F.3d
ranges, but that fact alone does not allow
(8th Cir.2011)
338,
(“[W]e
352
have held
sentences.”);
us to affirm the
Unit-
accord
impose
that
district court
Hunt,
636,
up-
ed
521
649
(“[I]t
ward
already
variance based on
in-
facts
does not matter that the
advisory
cluded
the
sentencing guide-
district court
...
relied on
number
where
advisory guidelines
relevant facts in
it
lines
the
sentencing,
its
if
also
do not
(internal
fully
relied on facts that it could
account
properly
not
for those facts.”
consider.”).
quotation
omitted));
marks and alteration
Chase,
also
see
United States v.
560 F.3d
believe,
not
though,
We do
Ric-
(8th Cir.2009)
(“[Factors
hart’s state murder
“im-
conviction was an
already
have
taken
been
into account in
proper or irrelevant factor” for
district
the
calculating
advisory
guideline range,
court to
agree
consider.
with the
We
dis-
such as
lack
defendant’s
of criminal his-
trict
second-degree
court that “the
murder
can
tory,
nevertheless form the basis of a
way
no
offense[]
enhanced under the
variance.”);
Roberson,
United States v.
...
[Guidelines
the sentence
re-
[Richart]
(8th Cir.2009)
(un-
Fed.Appx.
ceived
either
count----
It
might
published) (affirming the district court’s
been
for purposes
relevant conduct
of not
upward variance because
it is true
giving
history
“[w]hile
criminal
points,
but it
the Guidelines accounted for the
any way
did not in
serious-
guideline
affect the
...
ness
...
calculation of either
instant offense
conspiracy
court did
Further,
count or the
not
its
substantive count.”
abuse
discretion
con-
II.A.(ii), above,
cluding
as we
explained
Part
Guidelines did
account
not
for
extreme, dangerous,
circumstances of
[its]
Richart’s case take
out-
and random na-
ture”). Thus,
side the
typical
guideline
“heartland” of
even if though
18 U.S.C.
§ 1001 violations.
for a
Consequently,
range
we dis-
violation of 18 U.S.C.
agree with
argument
already
Richart’s
accounts for “the possibility that a
fact that she
already
killed her niece is
suspect
interrogator
would lie to an
(D)to provide the defendant with need-
exposure to criminal
minimize his
order
training,
Robertson,
ed educational or vocational
at
prosecution,”
care, or other correctional treat-
medical
varying
not err in
court did
in the
ment
most effective manner.
on its determination
based
upward
fully
do not
account
3553(a)(2).
the Guidelines
circumstances,
nature,
and seriousness
case,
In this
the district court var
offense,
U.S.C.
see
Richart’s
top
advisory
from
upward
ied
3553(a)(1), (2)(A).
“we can-
Accordingly,
guideline range by fifty-four months on
district court abused
say
count, and ran the two sentences
each
much
to an
weight
too
giving
discretion
a total
consecutive
each other
achieve
Bar-
States v.
improper factor.” United
variance
114 months from what
Cir.2009).
rett,
as “the initial bench
Gall characterizes
mark.”
long
repeat
bears
period
and,
of time
lie,
absent
aside a
might
sentence merely
have been
because
convicted of a more seri-
—set
we
ous
would have
offense than
decided
degree murder;
second
another one is
it
was
more appropriate.
unclear how
A
much time
district
court’s sen
would
actually
tence
serve in
need not
prison;
be
state
the most
Richart’s
appropriate
lie
one,
caused
just
harm not
only
need
to
Christina but
to
reasonable one.”
“many other people”; United
v.
120
im-
States
Irey,
months’
1191
(11th
prisonment provided
(en
just
Cir.2010)
punishment
banc) (citations
for
omit
Richart’s offense
ted);
and “sends message
see also
Kane,
to
United States v.
deter others from
(8th
similar
committing
Cir.2011)
of- F.3d
(holding
fenses.”
that although this court’s assessment of
Cir.2008)
an
(affirming
upward variance
“similarly
were
co-defendants
two
whether
of 432
a sentence
months
achieve
weighing 105
purposes
situated”
explaining
imprisonment,
3553(a)(6)
different”
months’
“would be
“[bjecause
judge is in a
sentencing
lens of
court’s,
through the
“viewed
district
fac-
weigh
acted within
position
relevant
Gall,
superior
...
(internal
quotation
3553(a),
fact
that we
discretion”
tors
broad
Garate,
v.
omitted));
States
United
‘that a different
reasonably conclude
might
marks
Cir.2008) (“Gall
(8th
1026, 1029
F.3d
is insufficient
appropriate
sentence
court’”)
fact that
clear that
quite
of the district
justify reversal
... or that
differently,
facts
some
weighed
Gall,
128 S.Ct.
U.S. at
(quoting
individual decades
we,
our own
applying
McDonald,
586);
v.
States
sentencing judges
as
experience
prior
(8th Cir.2008) (un-
Fed.Appx.
478-79
would
systems,
and state
the federal
both
Supreme
(recognizing
published)
...
the same
have imposed
not
rule that
rejection
appellate
of an
Court’s
sitting as the
been
had we
“extraordinary circumstances”
requires
justify reversal of
court,
‘is insufficient
variance,
af-
extraordinary
justify
”
Gall, 552 U.S.
(quoting
court.’
downward variance
firming a 130-month
586)).
51, 128
at
S.Ct.
“[ujnder
more deferential abuse-of-dis-
upheld
Supreme
Indeed,
previously
has
this court
review outlined
cretion
(internal
absolute
larger,
quotation
even
marks
in Gall”
comparable,
Court
variances,
Larrabee,
the sen-
in deference to
omitted));
month
United States
Cir.2006)
advantage”
“institutional
tencing judge’s
(affirming
un-
import
months).
judging
their
finding facts
variance of 128
51-52,
3553(a). Gall,
552 U.S.
der
Ultimately,
determined
see,
586;
e.g., United
128 S.Ct.
of Richart’s offense
the circumstances
1029, 1038
Foy, 617
particularly
were
typical,
but
were
upward variance
(affirming a 218-month
*18
ordinary, justify-
of the
egregious and out
(1)
... un-
are not entitled
“[w]e
because
Giving
significant upward
a
variance.
overturn
review to
our deferential
der
required
the district court as
deference
might have
sentencing
because we
decision
Gall,
say that
by
we cannot
sentence
reasonably concluded
different
judgment
of
a clear error
committed
court
(2) “the
district
appropriate”;
was
See
relevant
factors.
weighing
sub-
requires,
precedent
as our
provided
(“Because
Kane,
of the
sented a closer addition, such conditions Gall, although ... light of is un- “[i]n greater deprivation must “involve[] no major departure controversial liberty reasonably necessary” by a significant more supported should be achieve these purposes must be “con- one, justification justifica- minor than a any sistent with pertinent policy state- proportionate” tion precisely need not be ments Sentencing issued Commis- (internal quotation marks and citations 3583(d). sion.” omitted)). omitted) (emphasis According- Richart contends that special con ly, we that Richart’s sentence is find sub- ditions one and are three unwarranted un stantively and affirm the judg- reasonable der because fac court’s ment court. of the district tual finding that Richart physically and Special C. Conditions of sexually abused the children in her care Supervised Release clearly erroneous. See United States v. Douglas, 646 F.3d Cir. objects Richart Lastly, to two 2011) (recognizing that review the dis special supervised of the conditions re trict findings court’s at sentencing factual imposed by lease the district court. She error). for clear She concedes that if the argues that the district court abused its clearly district court did not err in finding imposing special discretion in condition one, physically sexually she abused which her to requires participate in care, treatment, children her then special sexual condi special offender con three, proper. tions were At sentencing, dition which forbids direct contact dis trict with approval objection minors absent written overruled Richart’s from her probation prohibits allegations officer and in the PSR physically sexually from entering areas children abused frequent. the children “We review the district court’s her care imposition testimony based supervised Agent terms and conditions of testimony Lowe. Lowe’s was as fol release for an of discretion.” abuse Unit lows: ed States v. Jorge-Salgado, 520 F.3d Q: And allegation let’s address the (8th Cir.2008) (internal quotation physical abuse and sexual abuse omitted). marks “The district court is af Christina, *19 against Michael, and forded wide discretion imposing condi you Norman. Have interviewed supervised tions on a defendant’s release Michael Richart about this? so long they as the requirements meet of A: Yes. 3583(d).” 18 U.S.C. United States v. Q: you Have interviewed Norman Ric-
Boston, 660, Cir.2007). 494 667 F.3d hart about this? 3583(d) Section requires any special imposed conditions must be “reasonably A: Yes. related” to “the nature circumstances Q: The allegations physi- of sexual and offense, history the defendant’s abuse, cal does it who come from? characteristics, the deterrence of criminal A: It Norman comes from and Michael. conduct, protection of the public from Q: they they And were said abused defendant,
further crimes of the and the physically sexually? educational, vocational, defendant’s medici nal or Yes, other correctional needs.” A: they See did.
1057 Walker, both at trial of Donna who stated Q: By whom? Richart sentencing at that Michael Richart. and Bubba A: Wanda to live with her and her husband came Lowe’s asserts Richart reported suspected his teachers after sup to insufficiently reliable testimony is Therefore, conclude that abuse. we finding port district court’s because its court did not abuse discretion district hearsay. “A district is uncorroborated testimony determining that Lowe’s was sentencing at as wide discretion court has Woods, at probably accurate. 596 F.3d or its to kind of information considered light of Lowe’s and Walker’s testi- Atkins, v. 250 States source.” United mony, finding the district court’s factual 1203, (citing 1212 Unit F.3d sexually abused children Johnson, 1259, F.2d 1276 v. 767 ed States clearly “ As her care erroneous. (8th Cir.1985)). any ... resolving ‘In such, special conditions one and three are important a factor dispute concerning reasonably related to the goals determination, sentencing the court 3553(a). Bender, F.3d Ac- 566 at 751. consider relevant information without may cordingly, we affirm the district court’s rules admissibility under the regard to supervised of the conditions of imposition trial, applicable provided of evidence release. indicia that the information has sufficient probable accu reliability support its III. Conclusion ” Pratt, v. racy.’ United (8th Cir.2009) Accordingly, judgment affirm the 1165, (emphasis omit 6A1.3(a)). the district court. ted) “In (quoting U.S.S.G. words, testimony hearsay
other relevant BYE, Judge, dissenting. Circuit sufficiently if reliable considered testimony is reasons demonstrate long Supreme ago too Court Not v. probably accurate.” United States “In as ar- sentencing, in other observed: (8th Cir.2010) Woods, 445, eas, at times judges district make mistakes (citing Sharpfish, United States times, they substantive. At will that are (8th Cir.2005)). “The deter that are unreasonable. impose sentences hearsay mination of whether evidence mis- courts exist to correct such Circuit sufficiently support reliable they takes when occur.” Rita United depends partic on the facts of the decision States, 551 U.S. S.Ct. case, ular and is committed the sound (2007). The 168 L.Ed.2d district (quot court.” Id. discretion varied from the 0 to 6 months here Cassidy, States v. range and sentenced Richart to Guideline (8th Cir.1993)). statutory imprisonment 120 months’ —the recognized making, conspiring that maximum—for The make, *20 hearsay, agent. to an FBI testimony but held false statements Lowe’s was 120-month is by allega- district court’s it was corroborated other The that correct, PSR, ought of to namely type that Norman was mistake tions in the substantively by holding care the sentence from and Bubba’s and removed Wanda reasonable, majority today abandons reports based prior to Christina’s death on “ abuse, that we have been ordered post Michael removed ‘the of was respon- review and the care also hold in from their after Christina’s death ” goes it.’ States v. sibility evi- with United reported. abuse was Lowe’s because (8th Cir.2011) Kane, testimony F.3d 1136 was corroborated dence Irey, 612 much (quoting actually States v. F.3d time she will do in United state Cir.2010) (en banc)). custody. just I don’t know. And I find Therefore, respectfully I dissent. that she murdered her niece and a far, month zero-to-six sentence is far too addressing a While substantive reason- inadequate for such brutal offense. totality challenge, we consider the ableness And she I also—and know that she is circumstances and review the sen- being not sentenced for that offense. tencing decision for abuse court’s being it, She is lying sentenced for about v. Reynolds, United discretion. but one reason that was able go she (8th Cir.2011). A sentenc- “ long for so being without detected ‘(1) its discretion if it: court abuses that she did. fails to consider a relevant factor that (2) significant weight, should have received sentence, got 30-year And she I
gives significant weight improper or and, don’t I again, don’t (3) know factor, only or irrelevant considers know— actually how much of that she will time appropriate weighing factors but those I serve. And believe that she could factors a clear error judg- commits ” have—I speculation, don’t know. This is Shakal, ment.’ States v. United I But admit. had (8th Cir.2011) she lied about (quoting happened what to this child and Feemster, had not States v. banc)). covering been successful it (en up so words, In other “ many years happened, what had exists, she ‘substantive review in substantial might have even been convicted of a far part, to correct sentences are based ” more serious offense. on weighing unreasonable decisions.’ Kane, Irey, 639 at 1136 (quoting cases)). (collecting 1193-94 Based on She has received a 360-month [state- us,
the record I before would conclude the sentence, court] and I am considering district court’s 120-month sentence is the that. IAnd don’t how know much of product weighing of unreasonable deci- time she will serve Arkansas. is, therefore, sions substantively un- think, did, IAnd don’t she what a 360- reasonable. month really adequate sentence is be- cause lied she and she it up covered The record demonstrates the it years worked and she caused a lot vary court’s decision from the 0 And I punish- harm. find that this is to 6 range, impose months Guideline deserves, ment that she and it also sentence, 120-month largely, rested if not message sends a to deter others from exclusively, the court’s desire to correct committing similar offenses. what perceived an inadequate state 36-37, Tr. at Sentencing second-degree sentence for Richart’s 39-41. mur- der Specifically, conviction. the court gave isolation, Read the district court’s last significant weight to the nature of Ric- statement suggest Richart’s sentence conviction, hart’s length state of her necessary provide just “to punish- sentence, state and the uncertain amount ment” and “to afford adequate deterrence of time she would actually serve state to criminal conduct.” See 18 U.S.C. prison. The court observed: 3553(a)(2)(A)-(B). Having reviewed the *21 record, a fair however,
[T]his is sentence under the cir- entire I am unconvinced cumstances, finding and I am that be- court “just punishment” meant cause, all, first of I make, don’t know for making, how conspiring false our court appeals, in the court of view it de- agent FBI when to an statements duty to correct ignore as cannot sentence 120-month Richart’s scribed case.”). Because she deserves.” in this weighing errors “punishment the court Rather, opinion circumstances and totality I am of supplant it did to Ric- the sentence us I would find imposed the record before inadequate state be perceived substantively what 120-month sentence hart’s But second-degree murder. for unreasonable, the sentence I would vacate court await- was before resentencing. and remand for offenses. her federal sentencing for sen- the court to be not before She time, for her state
tenced, the second fixating on its Accordingly, by
conviction. Richart’s state inadequacy
perceived in section listed factor
sentence —a 3553(a) significant gave —the thus, and, factor improper to an
weight ELAM, Appellant, Gerald v. See United its discretion.
abused Cir.2011) (8th Walters, discre- court abuses its (stating a district Larry DENNEY, Appellee. weight significant gives if it
tion factor); States v. also United see improper No. 10-3465. Cir.2006) Green, 456-57 sentencing court’s decision (recognizing Appeals, States Court must range from the Guideline depart Eighth Circuit. listed in section on the factors based 19, 2011. Sept. Submitted: 3553(a)). Moreover, even if the district the state convic- considered properly Filed: Dec. nature, cir- “the guise tion under 2, 2012. Rehearing Denied Feb. cumstances, of Richart’s seriousness (citing offense,” 18 U.S.C. see ante (2)(A)), 3553(a)(1), I would still conclude type in the of unreason- engaged
the court not tolerate ought weighing we
able and sentence conviction
giving the state See, e.g., United States weight. much
too Givens, where unreasonable
(holding a sentence much gave “too sentencing court “history and
weight” to the defendant’s enough gave “not
characteristics” of section portions to the other
[weight]
3553(a)”). to correct sen responsibility
It is our Rita, they occur. when
tencing mistakes 2456; also see S.Ct.
551 U.S. (“If anything re
Kane, F.3d at 1136 re- reasonableness of substantive
mains