United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2323
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Homer Billy Cook, II, *
*
Appellant. *
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Submitted: March 9, 2010
Filed: August 3, 2010
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Before RILEY, Chief Judge,1 JOHN R. GIBSON and MURPHY, Circuit Judges.
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RILEY, Chief Judge.
Homer Billy Cook, II, pled guilty to engaging in and attempting to engage in
sexual contact with the intent to abuse M.D., in Indian country, when M.D. was
incapable of appraising the nature of the conduct and was physically incapable of
declining participation and communicating unwillingness to engage in the sexual
conduct, in violation of 18 U.S.C. §§ 1153, 2244(a)(2), 2242, and 2246(3). The
probation office prepared a presentence investigation report (PSR) for the district
1
The Honorable William Jay Riley became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 1, 2010.
court,2 calculating Cook’s advisory range under the United States Sentencing
Guidelines (U.S.S.G. or Guidelines) was 21 to 27 months imprisonment. At
sentencing, the district court departed upward from the Guidelines range and sentenced
Cook to the statutory maximum for his crime—36 months imprisonment. See 18
U.S.C. § 2244(a)(2).
Cook appeals his sentence, arguing the district court erred in departing upward.
We review a district court’s departure from the advisory Guidelines for an abuse of
discretion.3 See United States v. Miller, 484 F.3d 968, 970 (8th Cir. 2007) (citing
United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir. 2005)). “A sentencing court
abuses its discretion if it ‘fails to consider a relevant factor . . . gives significant weight
to an improper or irrelevant factor, or . . . commits a clear error of judgment.’” United
States v. Ruvalcava-Perez, 561 F.3d 883, 886 (8th Cir. 2009) (quoting United States
v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005)). The Guidelines provide for upward
departures based upon the inadequacy of the criminal history categories. See U.S.S.G.
§ 4A1.3. “If reliable information indicates that the defendant’s criminal history
category substantially under-represents the seriousness of the defendant’s criminal
history or the likelihood that the defendant will commit other crimes, an upward
departure may be warranted.” Id. at (a)(1). “When contemplating and structuring such
a departure, the district court should consider both the nature and extent of a
defendant’s criminal history.” United States v. Hacker, 450 F.3d 808, 812 (8th Cir.
2006) (citation omitted).
2
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
3
At sentencing, Cook’s counsel resisted any upward departure from Cook’s
advisory Guidelines range. We therefore reject the government’s suggestion that we
should review for plain error.
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The district court departed upward because it found Cook’s properly calculated
criminal history category of III substantially under-represented his actual criminal
history and the likelihood he will commit further crimes. The Guidelines list several
situations which may form the basis for an upward departure. See § 4A1.3(a)(2).
Among these are when prior sentences for tribal offenses were not used in computing
the criminal history category. Id. at (a)(2)(A). After noting Cook’s criminal history
category of III, the district court stated, “[i]f he had a criminal history category of V,
his range would be 33 to 41 months, which would encompass the statutory maximum
of 36 months.” The district court then considered Cook’s “large number of convictions
in the Cheyenne River Sioux Tribal Court” and found Cook’s “criminal history
category understates his actual criminal history category -- substantially understates
it -- and substantially understates the likelihood that he will commit other crimes. He
has got quite a record for somebody who is 27 years of age.” The district court also
made clear Cook’s unscored tribal convictions were relevant to its analysis of the 18
U.S.C. § 3553(a) factors.
We hold the district court did not abuse its discretion in finding Cook’s criminal
history category understates his actual criminal history and likelihood of recidivism.
Standing alone, Cook’s tribal convictions, including seven which were alcohol related,
support the district court’s departure finding. The fact Cook is able to point to contrary
evidence, notably that he was previously convicted only of misdemeanors, does not
require reversal, and merely shows that, when the district court exercised its discretion,
some facts may have weighed against the upward departure.
The district court also made comments at sentencing which Cook suggests show
the court based Cook’s sentence, at least in part, on what the court saw as a “substantial
break” Cook received in his plea agreement with the government. The break the court
referred to is the government’s agreement to drop the charge of Sexual Abuse of a
Minor Incapable of Consenting, in violation of 18 U.S.C. § 2242, which carries a
statutory maximum of life imprisonment, in exchange for Cook’s plea of guilty to
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Sexual Contact with a Person Incapable of Consenting, in violation of 18 U.S.C.
§ 2244(a)(2), which bears a statutory maximum of 36 months imprisonment. Cook
argues the district court committed a significant procedural error in considering the
dismissed sexual abuse charge at sentencing without finding the absence of any
defense by a preponderance of the evidence. Although it is well settled that a
sentencing court may consider uncharged conduct in determining whether to depart
upward, see e.g., United States v. Schwalk, 412 F.3d 929, 933 (8th. Cir. 2005), Cook
contends the court procedurally erred because it did not consider whether Cook had a
good defense to the dismissed charge.
Cook relies upon United States v. Azure, 536 F.3d 922 (8th Cir. 2008), to
support his uncharged-conduct argument. In Azure, the district court departed upward
from the lowest criminal history category (I) to the highest (VI), based upon testimony
about the defendant’s (1) uncharged prior assaults, (2) aggressive behavior, (3) “history
of violence while in school,” and (4) dismissed murder charge. Id. at 931-33. We
remanded for resentencing in that case because the district court failed to “provide
sufficient indicia of why the intermediary [criminal history] categories [were]
inappropriate,” and because we doubted evidence the defendant was a playground
bully in elementary school was relevant to her criminal history category, observed that
much of the uncharged conduct were alcohol related assaults and mutual aggression
in domestic violence situations, and concluded the district court erred in allocating the
burden of proof for self defense to the dismissed murder charge. Id. at 932-33. We
also noted that stating sufficient indicia of why intermediate categories are
inappropriate is “particularly important when the upward departure takes the defendant
from the lowest to the highest criminal history category.” Id. at 932.
This is not a case like Azure. Here, the district court only departed upward two
criminal history categories, from category III to category V, and, unlike the court in
Azure, the district court grounded its decision on both the dismissed charge and on
Cook’s tribal court convictions. We reiterate that district courts are not required to
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engage in a “ritualistic exercise in which the sentencing court mechanically discusses
each criminal history category it rejects en route to the category that it selects.” United
States v. Day, 998 F.2d 622, 625 (8th Cir. 1993) (quoting United States v. Lambert,
984 F.2d 658, 663 (5th Cir. 1993) (en banc)) (internal marks omitted). There is no
suggestion the district court departed upward based on Cook’s conduct on the
playground. The fact that the uncharged conduct in this case, as well as many of the
tribal court convictions, involved alcohol tends to exacerbate the seriousness of Cook’s
criminal history, rather than to mitigate it as in Azure. See United States v. Herr, 202
F.3d 1014, 1016-17 (8th Cir. 2000) (quoting United States v. Goings, 200 F.3d 539,
542 (8th Cir. 2000)) (“In deciding the likelihood that a defendant may commit other
crimes, a court may ‘take into account any evidence of obvious incorrigibility’ and
‘conclude that leniency has not been effective.’” (internal marks omitted)). Like the
district court, we applaud Cook’s post-conduct decision to limit his alcohol intake.
Also like the district court, we cannot ignore Cook’s lengthy history of alcohol
addiction, alcohol related convictions, and the fact Cook was intoxicated at the time
he committed this crime. Finally, although Cook argues he had a substantial defense
to the abuse charge—insufficiency of the evidence—there is no evidence the district
court misallocated the burden of proof, as in Azure. Upon review of the record, we
conclude the evidence, for sentencing purposes, was sufficient for the district court to
find the conduct occurred. See United States v. Branch, 591 F.3d 602, 611 (8th Cir.
2009) (quoting United States v. Farrington, 499 F.3d 854, 859 (8th Cir. 2007))
(“[S]entencing judges are only required to find sentence-enhancing facts by a
preponderance of the evidence.”).
We affirm the district court’s judgment.
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