United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1782
___________
United States of America, *
*
Plaintiff-Appellee, * Appeal from the United States
* District Court for the
v. * District of South Dakota.
*
Charles Little Bear, also known as * [UNPUBLISHED]
Dale Little Bear, *
*
Defendant-Appellant. *
___________
Submitted: December 16, 2010
Filed: February 25, 2011
___________
Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
A jury convicted appellant Charles Little Bear of abusive sexual conduct in
violation of 18 U.S.C. §§ 2244(a)(3) and 1153. The district court1 sentenced Little
Bear to forty-eight months’ imprisonment (4 years) and thirty years of supervised
release. Little Bear argues the district court (1) violated the Fifth and Sixth
Amendments in imposing a thirty-year term of supervised release; (2) violated the
Double Jeopardy Clause by imposing conditions on his supervised release that were
1
The Honorable Karen E. Schreier, Chief Judge, United States District Court
for the District of South Dakota.
not orally pronounced at sentencing; and (3) clearly erred by imposing a $750 fine.2
We affirm.
1. Term of supervised release
Little Bear argues that the district court increased his term of supervised release
from five years to thirty years because of his continued assertions of innocence,
thereby violating the Fifth and Sixth Amendments. Little Bear did not make this
argument at sentencing. Accordingly we review for plain error, which requires error,
that is plain, and affects the defendant’s substantial rights. United States v. Boone,
437 F.3d 829, 840 (8th Cir. 2006).
The record does not support Little Bear’s argument. Little Bear faced a
supervised release term of five years to life. See 18 U.S.C. § 3583(k). Section 3583
instructs courts to consider several of the factors set forth in 18 U.S.C. § 3553 in
determining the length of supervised release. Id. These include the nature and
circumstances of the offense, the history and characteristics of the offense, the need
for deterrence, and the need to protect the public from further crimes. Id.
The court’s decision to impose a thirty-year term of supervised release reflects
consideration of the appropriate statutory factors, not punishment for assertion of the
right to remain silent. The court’s explanation reflects concern for deterrence and the
nature of the offense: “if you are not willing to admit that what you did was wrong,
there’s nothing to say that you wouldn’t do it again. And you took advantage of
someone that was living in your same household.” The court’s decision also reflects
the need to protect the public: “the probation office can make sure that you don’t do
the same type of activity to someone else in the future.”
2
In his principal brief, Little Bear challenged his conviction and sentence. But
in his reply brief, Little Bear waived the challenges to his conviction and chose to
pursue only his sentencing arguments.
-2-
Little Bear seeks support in Mitchell v. United States, 526 U.S. 314 (1999). In
that case, the sentencing court determined that because Mitchell pleaded guilty, she
had no right to remain silent at sentencing with respect to her crimes. Id. at 318-19.
The Court held that determination violated the Fifth Amendment because the privilege
against self-incrimination has force until the sentence has been fixed and the judgment
of conviction has become final. Id. at 326. The Court expressly declined to speak on
the relationship between silence and acceptance of responsibility. Id. at 330.
In United States v. Spotted Elk, we rejected the argument that a district court
violates the privilege against self-incrimination by basing its choice of sentence within
the applicable range on the defendant’s failure to accept responsibility. 548 F.3d 641,
680 (8th Cir. 2008). In this case, the record reflects that the district court selected the
term of supervised release, in part, on Little Bear’s failure to accept responsibility.
Under Spotted Elk, the district court did not err, much less commit plain error that
substantially affected Little Bear’s rights.
Little Bear also contends the court’s action deters exercise of the right to
demand a jury trial. But we have previously rejected the argument that the denial of
an offense level reduction for acceptance of responsibility has a chilling effect on the
right to trial. United States v. Benitez, 531 F.3d 711, 717 (8th Cir. 2008). Here, we
see no chilling effect by the sentencing court’s selection of a sentence within the
sentencing range. See Spotted Elk, 548 F.3d at 680.
2. Conditions of supervised release
Little Bear contends that the district court violated the Double Jeopardy Clause
by including conditions of supervised release in its written judgment not pronounced
at sentencing. He relies on cases holding that “[w]here an oral sentence and the
written judgment conflict, the oral sentence controls.” United States v. Foster, 514
F.3d 821, 825 (8th Cir. 2008) (quotation omitted); see also United States v. Tramp,
-3-
30 F.3d 1035, 1037 (8th Cir. 1994) (“The oral pronouncement by the sentencing court
is the judgment of the court.”).
But no conflict exists between the pronouncement of the sentence and the
written judgment. The conditions pronounced at sentencing included the following:
“You shall comply with the standard conditions that have been adopted by this Court
and the following special conditions.” The court then recited the special conditions.
Little Bear did not object to the imposition of the unrecited standard conditions. The
judgment that followed contained thirteen conditions under the heading “STANDARD
CONDITIONS OF SUPERVISION,” none of which conflicted with the conditions
pronounced at sentencing. We conclude Little Bear’s argument is without merit.
3. Fine
Little Bear challenges the district court’s imposition of a $750 fine. He argues
the court failed to apply the factors enumerated in United States v. Houchin, 413 F.3d
750 (8th Cir. 2005). “A district court’s imposition of a fine and the determination of
the fine will not be reversed unless clearly erroneous.” United States v. Berndt, 86
F.3d 803, 808 (8th Cir. 1996).
The Guidelines require that “[t]he court shall impose a fine in all cases, except
where the defendant establishes that he is unable to pay and is not likely to become
able to pay any fine.” United States v. Hines, 88 F.3d 661, 663 (8th Cir. 1996)
(quoting U.S.S.G. § 5E1.1(a)). The district court need not provide detailed findings
under each of the factors enumerated in U.S.S.G. § 5E1.2(a), but must provide enough
information to show it considered the factors so that the appellate court can conduct
meaningful review. Houchin, 413 F.3d at 751-52.
In this case the guideline fine range was $6,000 to $60,000, but the district court
imposed a $750 fine. Little Bear objected to the imposition of the fine, relying on a
-4-
financial affidavit he filed with the court that he contended established his indigence
and inability to pay a fine. The court overruled his objection. The court relied on the
presentence investigation report to find that while incarcerated, Little Bear will have
opportunity to earn money and that his thirty years of supervised release provide
adequate time to pay $750. Although the district court did not exhaustively examine
each Houchin factor, its explanation finds support in the presentence investigation
report and is sufficient for meaningful review. We conclude the court did not clearly
err in imposing a $750 fine.
The judgment of the court is affirmed.
______________________________
-5-