*1 judgment affirm the of the district We
court. America,
UNITED STATES
Appellee,
Stacy WINTERS, Appellant.
No. 04-3210. Appeals,
United States Court
Eighth Circuit.
Submitted: March 2005. Aug.
Filed: Johnson, argued, Rapid City,
Mitchell D. SD, appellant. law) by interpretation they are bound the arbitrator’s manner same (as requirements long interpretation
the FMLA’s
as those
bound
of the rest of the
disregard
agreement.
interpretations
are not
in manifest
*2
Haak,
ar-
then
Attorney,
Boy’s
Asst. U.S.
brothers
fled the scene back to
E.
John
Peterman,
Falls,
(Gregg
gave Boy
S.
residence. Winters
gued, Sioux
SD
the Colt .45
Attorney, Rapid City, SD on the
him that
Asst. U.S.
and told
Winters was in trouble
brief),
appellee.
get
for
and needed to
out of town. Winters
following day.
was arrested the
MURPHY, HEANEY, and
Before
A
charged
first indictment
Winters with
SMITH,
Judges.
Circuit
second-degree murder and use of a fire-
SMITH,
arm in the commission of a
In
Judge.
crime.
a
Circuit
information,
superseding
the second-de-
Stacy
pleaded guilty to volun-
Winters
gree
charge
replaced
murder
was
awith
tary manslaughter and use of a firearm
charge
voluntary
manslaughter. Win-
to a crime of violence
violation
relation
pleaded guilty
charges
ters
to both
and
924(c).
1112, 1153,
§§
of 18 U.S.C.
Under
a presentence investigation
ordered
Guidelines,
.the
(“PSI”)
report
prepared.
to be
The PSI
subject to a maximum sen-
Winters was
judges
noted that while the
in the District
The
imprisonment.
tence of 191 months’
agreed
Blakely
South Dakota
v.
court1 ruled that the United States
2531,
Washington, 542 U.S.
124 S.Ct.
mandatory
Sentencing Guidelines were
(2004),
On
Winters
tence, manslaughter carried a
ten-
possible
driving
drinking
were
alcohol and
brothers
year maximum sentence and the firearm
through
Ridge Village,
neighbor-
Pine
a
charge
mandatory ten-year
carried a
sen-
the Pine
Indian Reserva-
hood on
consecutively
tence to be served
with the
dusk,
Around
Winters encountered
tion.
manslaughter.
non-guide-
Winters faced
Winters, known to
affili-
Lucien Janis.
statutory
twenty years’
line
maximum of
Janis,
gang,
ated with the TB
and
a mem-
(240 months).
imprisonment
The
in-
PSI
gang, exchanged un-
ber of the Ter. Ter.
subject
dicated
Winters was
to a
pleasantries. Winters left and went
41
range
imprisonment
to 51 months’
“Boy”
get
gun.
Louis
Winters’s home to
manslaughter2
mandatory
and
Boy gave Winters a Colt .45 semi-auto-
charge.
months for the
Ac-
120
firearm
pistol
magazine.
matic
and a loaded
Win-
cordingly, the PSI recommended a Guide-
to drive
ters and his brothers continued
range
line
for
between 161 and
Winters
Ridge Village consuming
around Pine
alco-
court, however,
171 months. The district
eventually
place
drove back to the
hol
rejected the recommendation to make a
exchanged
where
and Janis
Winters
adjustment
resulting
in a
downward
words. Winters and one of his brothers
range
177
191
Guideline
between
said,
confronted Janis. Janis
“Give me
months.
myself,”
I’ll
and then
gun,
shoot
court, treating the
range,
Guide-
shot Janis in the head at close
discretionary,
instantly.
him
and his
lines as
sentenced Winters
killing
gave
Battey,
2. The PSI
Winters a three-level down-
1. The
Richard H.
United
Honorable
adjustment
responsi-
ward
Judge
of South
States District
for the District
otherwise,
subject
bility,
he would have been
Dakota.
range
to a
of between 57 and 71 months’
manslaughter.
imprisonment
voluntary
currently
be read as
imprisonment
statuto-
lines as
written could
to 240 months’
—the
reasons, merely advisory provisions that
recom-
In a statement of
ry maximum.
mended,
required,
rather than
the selec-
the court stated:
response
particular
tion of
sentences
Blakely Washington,
light
facts.”). Thus,
differing sets of
this case
159 L.Ed.2d
U.S.
S.Ct.
*3
to
court in a fashion similar to
comes
the
(2004),
ruled the
403
the District Court
that of
Fanfan in
Respondent
Booker’s
in this
Guidelines unconstitutional
case.
Fanfan,
companion
respect
case.
to
With
Therefore,
are not
the Guidelines
bind-
stated:
the Court
Court,
they
taken
ing on the
but
were
case,
respondent
Fanfan’s
the Dis-
into consideration. The Court also con-
to
Blakely applicable
trict Court held
factors set forth in 18 U.S.C.
sidered the
imposed
the Guidelines.
It then
sen-
in
imposing
in
the sentence
by
jury’s
tence that was authorized
the
this case.
verdict —a sentence lower than the sen-"
objected to
district court hold-
by
tence authorized
the Guidelines as
Sentencing
Guide-
ing
United States
Thus,
written.
Fanfan’s sentence does
argued
unconstitutional and
that he
lines
not violate the
Amendment.
Sixth
should be sentenced under the Guidelines.
(and
Nonetheless,
the Government
The district court refused. Winters then
choose) may
defendant should he so
appeal.
filed the instant
system
seek resentencing under the
set
case,
Prior
the submission
today’s opinions.
forth in
Hence we va-
Supreme
United States
Court issued its
judgment
cate the
of the District Court
—
Booker,
opinion in
pro-
and remand the case for further
U.S. —,
ceedings
opinion.
125 S.Ct.
cause Booker also mandated that
Court, however,
appellate
The
directed
courts review sentences
reasonableness
courts:
light
in
of the factors enunciated in 18
doctrines,
apply ordinary prudential
3553(a),Booker,
U.S.C.
II. Reasonableness
violation,
whether
[to determine]
resen-
by noting
tencing
start
application
We
because the
warranted [after]
of the harmless-error doctrine.
district court did not use the
Guidelines
fashion,
a mandatory
did not
suf- Booker,
case,
(1) 28, Code, the and circumstances of the taking nature United States into history any and the and characteris- account amendments offense made to defendant; guidelines policy tics of the such statements by Congress (regardless act of (2) imposed— the need for the sentence yet whether such amendments have to (A) to reflect the of the seriousness by incorporated Sentencing the offense, promote respect to for the Commission into amendments issued law, just punishment and to provide 28); 994(p) under section of title offense; (5) any pertinent policy statement— (B) adequate to afford deterrence to (A) by Sentencing issued the Com- conduct; criminal 994(a)(2) pursuant mission to section (C) protect public to from further 28, Code, of title United States sub- defendant; crimes of the and ject any to amendments made to such (D) provide to the defendant with policy by Congress statement act of or vocational needed educational (regardless of whether such amend- care, or other cor- training, medical yet incorporated by ments have to be treatment in the most effec- rectional Sentencing Commission into manner; tive amendments issued under section (3) available; the kinds of sentences 28); 994(p) of title (4) and the sen- the kinds of sentence (B) that, except provided as section tencing range for— established on the date the 3742(g), is effect (A) category of offense applicable defendant is sentenced. by applicable category committed (6) the need to avoid unwarranted sen- guide- in the of defendant as set forth disparities among defendants tence with lines— similar records who have been found (i) issued Com- conduct; guilty of similar pursuant mission to section (7) provide restitution to need 994(a)(1) 28, of title United States any victims of the offense. Code, subject any amendments 3553(a).4 § 18 U.S.C. by act of made to such original appeal, In Congress (regardless of whether yet argued such amendments have to be the district erred appellate judge rea- standard of review for 4. While we are to the sentence for ableness sonableness, courts, impose district courts are to Supreme appel- Court noted that crafting reasonable sentence. the reason- guilty plea him an offense-level re- defendant who enters refusing grant “[a] acceptance adjustment an under duction for not entitled to 3353(a)(4), and the mandates of Because right.” as a matter of [U.S.S.G. 3E1.1] courts to consult require Morris, v. 139 F.3d Guidelines, application an erroneous (8th Cir.1998) (brackets in original)(citing apply- one factor in Guidelines will be but 3). 3E1.1, n. cmt. U.S.S.G. standard. We re- ing reasonableness court, opportunity which had the to ob- accep- denial of an view a district court’s sentencing, at serve Winters’s demeanor adjustment responsibility tance of under was within its discretion to conclude that § 3E1.1 for clear error. United U.S.S.G. for his accepted responsibility he had Patten, v. 397 F.3d 1104-05 States offense. See id. Cir.2005). (8th A district court’s factual underlying turn Next we to the determination on whether defendant has remaining portions facts to address the responsibility demonstrated 3553(a). case, Winters, In this while great is entitled to deference and should intoxicated, got into argument an if clearly be reversed it is so errone- victim. He then left the scene and re ous as to be without foundation. United gun trieved a that he used to shoot the Arellano, States range victim at close the head. Winters Cir.2002). *5 scene, dispose then fled the and tried to of plea agreement, In the the Unit court gun.5 The district characterized to that agreed ed States recommend Win man” “hit “trigger Winters as and the acceptance of responsi ters demonstrated addition, In man.” the court noted that addition, bility. In the PSI indicated that the crime “was a malicious act which was § require Winters satisfied the 3E1.1 entirely senseless.” sentencing hearing, At the ments. Although the court district sentenced explained plea court that “a range, Winters outside the Guidelines we guilty trigger is not sufficient to accep sentence, say cannot that when responsibility guide tance of under the 3553(a) in light viewed of the relevant lines,” file, examining and that after factors, is unreasonable. The facts offer accep Winters would not be entitled to an tance responsibility riothing, voluntarily reduction. Indeed other than Winters’s degree departure late courts are familiar with the standard as of the under an abuse "long of discretion standard. the Federal Act has re- Joshua, (8th United States v. 40 quired important sentencing F.3d 951 use in cir- [its] 1994) Sweet, (citing Cir. United States v. 985 departures cumstances —both on review of (8th 1993)). respect F.2d Cir. With imposed ... review and on of sentences factor, explained to the third we have that it is applicable where there was no Guideline.” court, us, the district that makes this Previously, S.Ct. at our judgment call of reasonableness. United departures reasonableness standard for was Sweet, States v. 445 n. 2
judged parts: in three 1993). Accordingly, give Cir. we must "due First, law, question aas the court deter- regard superior to the district court's feel for mines whether the circumstances on which (internal omitted). quotations the case.” Id. departure the district court relied for are sufficiently degree unusual in kind or who, gun Boy, 5. Winters returned the Second, departure. question turn, warrant as a gave it to his wife with instructions to fact, Janis, the court determines whether the pass person, it on ato third Leon justifying departure actually circumstances get gave gun rid of it. Leon to a fourth Third, exist. person subsequently deference the district who notified the authori- court, weapon. the court reviews the ties and allowed them to recover the reasonableness reasons, foregoing the ab- For the capacity, to ameliorate conclude diminished that Winters’s sentence is reasonable and execution-style slaying ject brutality of an affirm. person. unarmed of an it as malicious and aptly
court described HEANEY, Judge, dissenting. Circuit Furthermore, ad- Winters has senseless. respectfully I dissent. I agree While A being prone to violence. mitted to majority’s with the holding that the dis- in this case com- twenty-year sentence error, trict court did not commit a Booker considerations ports with I disagree strongly majority’s with the af- 3553(a)(2) that the sentence reflect the firmance of My Winters’s sentence. rea- offense, promote re- seriousness First, sons twofold: the district court law, provide just punish- for the spect clearly in denying erred Winters reduc- offense, adequate ment for the afford de- tion his offense level for acceptance of conduct, protects to criminal terrence Second, in imposing the from further crimes of the de- public voluntary maximum sentence for man- fendant. slaughter, the district court failed to fash- heavily Congres- relies on the ion a sentence reflective of the sional statement Guidelines sen- Instead, factors. sentencing, at the court necessary tence is to avoid unwarranted subjective substituted its own assessment sentencing disparities. See 18 U.S.C. of what sentence imposed should be 3353(a)(6). explains statutory reasons, For be- factors. these two I would remand for statutory resentencing. cause he received the maximum sentence, quite his sentence will be differ- I. The Guidelines Issue persons ent from other with no criminal view, clearly the district voluntary history manslaugh- who commit *6 in However, failing apply erred judged ter. each case must be to. 3El.l(a), section Guidelines present
on facts and its own few cases will which states that a defendant is entitled to one. Applying facts like this Winters’s a reduction in if his offense level he “clear argument, range that the of reasonable- ly demonstrates of acceptance responsibili essentially ness is co-extensive with the ty for his Our court has offense.”6 held range, effectively Guidelines would render eligibility that a defendant’s for this ad mandatory. Guidelines We have been the. justment can exhibited outward directed to review sentence for reason- of acceptance responsi manifestations of in ableness based on all the factors listed Wivell, bility. United States v. 3353(a)(6). range The Guidelines is (8th Cir.1990). 156, 158 merely pos- one factor. cannot isolate We Here, sentencing disparity sible the exclusion the relevant Winters met criteria of acceptance responsibili- of the all the other factors. to establish his 'conduct; determining quali- prompt whether a defendant and related surrender to offense; provision, appropriate fies for this consider- committing after the authorities include, to, ations but are not limited recovery assisting authorities -in of rele- following: instrumentalities; vant and the fruits voluntary withdrawal from criminal con- timeliness of the defendant’s conduct in duct, or association with those in involved manifesting acceptance responsibili- of conduct; voluntary pay- such restitution ty- prior guilty plea; ment made to a admis- comment, 3E1.1, (n.l). USSG. regarding sions to authorities the offense on a normal basis. And what has recognized by both the did ty. This fact was not, offi- pretrial punish- and the services it government happened, believe is cer, re- recommended that Winters who today in I am here to let ment itself. acceptance reduction for ceive a three-level full re- accepting know I am the Court and outlined their reason- responsibility of my I would like sponsibility actions. court. this recommendation to the ing for that the pray to take this time to Court ignored court these recom- mercy forgiveness on me and show take and the fact that Winters had mendations I hope shown me. that God has actions. In- a full account of his given is a recognizes happened what Court stated, stead, Court simply “[t]he it horrible, horrible, mistake and horrible file concludes that examining this unfortunately loved ones as leave these discretion, the defendant would Court’s My for mine. mistake is irrevers- well as acceptance of be entitled to punish- I have no restitution or ible. guilty trigger A of is not sufficient to plea It up ment can make for life here. acceptance responsibility under life, people can although there who result, Tr. at 3. As a guidelines.” Sent. give mercy, me I want to let them know range increased from Winters’s very I am sincere about the re- 41 to 51 months to 57 to months. fact, my remorseful- morsefulness and certainly agree I with spiritual person me a ness made plea guilty that a does not entitle simple I will never commit a crime will insure to a three-level reduction for defendant again. Showing forgive- like this ever responsibility, but as give prosper ness will me a chance to clear, did much record makes again, give therefore me a chance to fully that. cooperated more than He up make all I can to the victim’s loved assist- government’s investigation. He productive ones as well as be citizen offense. prosecution ed another the United States. government of intent to He notified the Sorry Hope you I did.... what timely in a fashion. Most plead guilty me, your forgive it in man. importantly, statement at sen- find hearts Winters’s me, man, tencing demonstrates his sincere acknowl- ... you guys I know hate but edgment of and contrition for his criminal you your family, I not hurt I conduct: family, Forgive hurt too. me for part
I wanted to make this of the record *7 I what have done. regret of the total and remorse I have Tr. Sent. 18-19. brought for me to this court- what has cooperation Given Winters’s total and today. room If I could turn back his “outward manifestations time, I hands would take the knowl- Wivell, responsibility,” 893 F.2d at edge feelings understanding I and accep- he was entitled to a reduction for I today have and believe would have tance of concerning made better choices this adjust guidelines court’s failure to Key matter. words here are “would range accordingly was clear error. have, have, should and could have.” at night And this causes me to lie awake Light in II. Review of the Sentence of 18 actions; constantly contemplating my on 3553(a) § U.S.C. many sleepless nights. has caused me I I remand for a rea- would also second history; I sorry past am for criminal imposed son: the district court an unrea- history, say should the lack of criminal 3553(a) § respond light that I did not react and like I sonable sentence in statistics, publicly S.Ct. available studies or in- States factors.7 United dicating that a first offender (2005), convicted of that a district mandated manslaughter with a in firearm South Da- sentencing must consider not court in kota woulcl more than the thirteen 3553(a) serve fac- but the other guidelines, fifteen-year sentence the defendant review the district tors. Id. Our task is to would have faced with a sen- for reasonableness. court’s sentence Second, tence.9 as is clear from the sen- sentencing transcript The reveals tencing transcript, judge was court did not mention the the district upset that the prosecutor accepted plea during sentencing factors manslaughter, for trying rather than Win- hearing.8 gave The court rather the fol- or second-degree ters first- murder. lowing imposing two reasons for the ten- At sentencing, prosecutor strongly manslaughter con- year sentence disagreed with the district court’s assess- viction, mandatory con- in addition to the charging ment of its decision: using a in years gun secutive ten Though practiced I have not long as First, committing the offense: the court Honor, fully as Your investigated that the defendant would be hypothesized this matter. We conducted dozens of of a lifetime possibility faced with the concerned, As far interviews. as we are law, Dakota and in sentence under South no one knows this case as well as we do. not this case the defendant should receive guessed, you We are second as often he was simply a lesser sentence because know, following charging decisions in court rather being prosecuted federal years. sometimes for is not a valid than state court. This prosecutor repeatedly The reiterated the 3553(a) concern; a state sentence is not charge conviction was for the for this federal crime. Federal available supported. evidence Sent. Tr. 12-14. sentencing judges may attempt short, nothing there is about Winters their equalize federal sentences to state justify the circumstances of this case to approach This would analogs. criminal court’s the district dramatic variance from disparity national in significant result offense, guidelines. Until this Moreover, there is no evi- sentences. in spite of the obstacles Pine persevered record, any Ridge presents nor are there to its residents.10 He dence ten-year 7. The factors include: the nature and circum- 9. -Winters faced consecutive sen- history the offense and the stances of firearms tence for this conviction addition defendant; need for characteristics of the voluntary manslaughter sentence. to his imposed; the sentence the kinds of sentences available; the kinds sentence and the sen- Though deplorable conditions of Pine offense; any tencing range established for Ridge Indian Reservation cannot serve as an pertinent policy statement relevant to the of- actions, important excuse for Winters’s it is 3553(a) (citations fense. 18 U.S.C. ted); omit- note that the Pine Indian Reservation is Killgo, see also United States v. poorest places one of the often considered *8 628, (8th Cir.2005) (noting following likely America. Infants are twice as to die imposition review the sentences injury sickness or than other infants from unreasonableness, regard "judging for it with living the United States. The life ex- across 3553(a)”); Unit- factors in 18 U.S.C. Ridge pectancy men at Pine 56.5 Yahnke, 823, v. ed States years, figure a that rivals that of Central Afri- Cir.2005)(same). nations, can and is the lowest in northern hemisphere, exception of Haiti. 8. In the district court’s written' Statement of Reasons, More than one-third of the homes on Pine it stated that it "also considered electricity, plumbing or 3553(a) have no indoor U.S.C. factors set forth in 18 case,” living they often hold several families pro- imposing but the sentence in among B. Geh- two to three rooms. Edward vided no further elucidation of those factors. age twenty-two found himself at the CHARTER, record, AVIATION high a di-
with no criminal school INC., Appellant, spiritu- ploma, and member his tribe’s inexcusable, community. al His crime was of a and resulted the needless death GROUP/US; RESEARCH AVIATION community But fellow member. Moeggenberg, Appellees. Joseph of his ac- recognized gravity himself ably tions as his allocution demonstrated. 04-3040. No. duty of our province It is not the nor the Appeals, States Court of United an hoc sentencing attempt courts to ad Eighth Circuit. equalization perceived state and between sentencing disparities, leaving federal an Submitted: March 2005. individual like to suffer the bur- July Filed: of such an an affir- den exercise. With sentence, mance of his Winters will serve
sentence double that of fellow inmates who
have committed similar crimes. This sen- unjustified
tence is and unreasonable.
CONCLUSION
If pursu- Winters were to be sentenced dissent,
ant to this he would serve more years prison.
than thirteen in federal adequate
That sentence is to fulfill the sentencing goals. This district ignored
court Winters’s sincere responsibility, impose and went on to beyond
sentence far what the for, providing
called our court with no view,
justification for its decision. Accordingly,
this was an error. I would
reverse and remand to the resentencing consistent with this dis-
sent. III, Note, University, res Community Dakota State Rural Visions the Ghost Dance: 16, 2003, (December Empowerment
Native American and the Neo- Planning, Sociology 640 17 J.L. & POL. 140- Impulse, Colonial http://sdrurallife.sdstate.e at available du/Ru- 41(2001); Reservation, *9 Pine Indian ralPlanning''& Developmenl/PineRidge.pdf). Mini-Plan, Community South South Dakota: