FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30381
Plaintiff-Appellee, D.C. No.
v. 1:10-cr-00034-
MARCIA ANN GOODBEAR, RFC-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Argued and Submitted
December 7, 2011—Seattle, Washington
Filed April 13, 2012
Before: M. Margaret McKeown and Richard C. Tallman,
Circuit Judges, and Barry T. Moskowitz, District Judge.*
Opinion by Judge Tallman
*The Honorable Barry T. Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
3983
UNITED STATES v. GOODBEAR 3985
COUNSEL
L. Sanford Selvey II, Selvey Law Firm, L.L.C., Billings,
Montana, for defendant-appellant Marcia Ann Goodbear.
3986 UNITED STATES v. GOODBEAR
Michael W. Cotter, United States Attorney, Lori Harper Suek,
Assistant United States Attorney, Michael S. Shin, Assistant
United States Attorney, United States Attorney’s Office, Bil-
lings, Montana, for plaintiff-appellee United States of Amer-
ica.
OPINION
TALLMAN, Circuit Judge:
We examine the reasonable foreseeability of criminal con-
duct arising from the tragic death of a young girl in Indian
country in fashioning an appropriate sentence for misprision
of felony. Defendant-Appellant Marcia Ann Goodbear
(“Goodbear”) appeals her sentence of 37 months in custody,
three years of supervised release, and $12,763.66 in restitu-
tion, imposed following her guilty plea to assault resulting in
substantial bodily injury, 18 U.S.C. §§ 1153(a) and 113(a)(7),
and misprision of felony, 18 U.S.C. § 4.1 We consider: (1)
whether the four-level increase for use of a dangerous weapon
under USSG § 2A2.2(b)(2)(B)2 was reasonable; (2) as an
issue of first impression, whether use of a minor can be attri-
buted to another for the purposes of applying an enhancement
pursuant to USSG § 3B1.4 for a misprision of felony offense
and, if so, whether a two-level adjustment under § 3B1.4 for
using a minor to assist in avoiding detection of, or apprehen-
sion for, the offense was reasonable in this case; and (3)
whether Goodbear’s 37-month sentence was reasonable. We
1
In relevant part, the crime of misprision of felony applies to an individ-
ual who “having knowledge of the actual commission of a felony cogniza-
ble by a court of the United States, conceals and does not as soon as
possible make known the same to some judge or other person in civil or
military authority under the United States.” 18 U.S.C. § 4.
2
All references to the Sentencing Guidelines are to the 2010 United
States Sentencing Commission Guidelines Manual (“Sentencing Guide-
lines,” “Guidelines,” or “USSG”).
UNITED STATES v. GOODBEAR 3987
have jurisdiction under 28 U.S.C. § 1291, and we affirm in
part, vacate the sentence, and remand for resentencing.
I
A
On August 28, 2008, Lyrik Goodbear (“Lyrik”), Adrian
Goodbear’s six- year-old daughter and Goodbear’s stepdaugh-
ter, was brought to the Indian Health Service Clinic (“IHS”)
in Lame Deer, on the Northern Cheyenne Indian Reservation
in southeastern Montana. Lyrik was unconscious, not breath-
ing, appeared to be brain dead, and had bruises all over her
body. Upon examining Lyrik, IHS determined that her inju-
ries were the result of physical abuse. IHS notified the Bureau
of Indian Affairs Law Enforcement (“BIA Tribal Police”).
Lyrik was flown to Billings, Montana, for further treatment at
St. Vincent Medical Center (“St. Vincent’s”). Goodbear
accompanied Lyrik on the flight.
A doctor at IHS informed the BIA Tribal Police that Lyrik
was brought to the reservation emergency room by her father,
Adrian Goodbear, and that he had informed the emergency
room staff that Lyrik had fallen from a tree. While undergoing
medical treatment at St. Vincent’s, the medical staff there also
determined that Lyrik’s injuries did not appear to be the result
of accidental trauma.
Lyrik had suffered extensive injuries to her head, back,
abdomen, and legs and the staff at St. Vincent’s determined
that Lyrik did not have brain activity. She was flown to Den-
ver Children’s Hospital in Denver, Colorado (“Children’s
Hospital”) for further care. There, medical personnel con-
firmed that Lyrik suffered from multiple injuries, including a
lacerated liver, lacerated spleen, and subdural hematoma. The
staff at Children’s Hospital also agreed that Lyrik’s injuries
were caused by non-accidental trauma. On August 30, 2008,
3988 UNITED STATES v. GOODBEAR
Lyrik was pronounced dead after tests confirmed that she still
did not have brain activity.
An autopsy was conducted on September 2, 2008. The cor-
oner determined that Lyrik died from blunt force trauma to
the head and abdomen consistent with having been violently
beaten and kicked. The autopsy further revealed multiple con-
tusions and abrasions on her body’s surface, along with a
“right acute subdural hematoma.”
S.G.3, Adrian Goodbear’s two-year-old daughter and Good-
bear’s step-daughter, was also injured on August 28, 2008.
Goodbear later admitted to authorities that she hit S.G. on the
back of the head with an open hand after Adrian Goodbear
assaulted Lyrik, but before they had taken Lyrik to the hospi-
tal. As a result of Goodbear striking S.G., the child flew for-
ward, hit a wall, fell to the floor, and suffered a swollen bruise
above her left eye. A doctor told investigators that after
reviewing photographs of S.G.’s injuries, he would have
likely testified that the injury to her left eye was “substantial”
because of the temporary disfigurement and swelling.
Agents of the Federal Bureau of Investigation (“FBI”) and
the BIA Tribal Police interviewed Adrian Goodbear, Good-
bear, and K.H.4, Goodbear’s teenage son from a previous mar-
riage, who lived with her and Adrian Goodbear.
Adrian Goodbear initially told investigators that he found
Lyrik unconscious at the base of a tree, that she did not have
any visible bruises when he brought her to IHS, and that he
tried to resuscitate Lyrik by performing CPR. When Adrian
Goodbear was confronted with the inconsistencies between
his statements and the medical findings regarding Lyrik’s
injuries, he requested an attorney.
3
Because the victim is a minor, we refer to her by her initials.
4
Because K.H. is also a minor, we similarly refer to him by his initials.
UNITED STATES v. GOODBEAR 3989
K.H., Goodbear’s thirteen-year-old son, was also inter-
viewed. K.H. also initially told investigators that Lyrik had
fallen from a tree. At a subsequent interview, K.H. changed
his story and admitted to investigators that he saw Adrian
Goodbear strike Lyrik with a belt and heard Lyrik screaming
inside the family mobile home. K.H. further stated that he
witnessed Adrian Goodbear and Goodbear attempt to resusci-
tate Lyrik, and that Adrian Goodbear told him to falsely tell
investigators that Lyrik had fallen from a tree.
On August 29, 2008—one day before Lyrik was pro-
nounced dead—Goodbear, while at St. Vincent’s in Billings,
was interviewed regarding Lyrik’s injuries. Goodbear told an
agent that Lyrik had fallen from a tree and that Adrian Good-
bear had found her. Goodbear further informed the agent that
she and her husband attempted to administer CPR to Lyrik
before bringing her to IHS.
That afternoon, investigators again interviewed Goodbear
at her home. Goodbear then changed her story and told them
that Adrian was angry with Lyrik, brought her into the bed-
room of their mobile home, and closed the door. She then
heard Adrian Goodbear hit Lyrik for approximately twenty
minutes. During that time, Lyrik was crying and screaming.
Goodbear stood by and did nothing to stop the assault. After
approximately twenty minutes, Lyrik became silent. Good-
bear stated that approximately thirty minutes later, Adrian
opened the door, asked Goodbear to come into the bedroom,
and admitted that he kicked and struck Lyrik with his hands.
Goodbear told investigators that she and Adrian attempted to
resuscitate Lyrik for approximately thirty minutes. Goodbear
encouraged Adrian to bring Lyrik to the hospital, but Adrian
refused because he believed he would go to jail. They contin-
ued to attempt to resuscitate Lyrik until Goodbear’s father
convinced them to take her to a hospital.
On February 18, 2010, Adrian Goodbear pled guilty to Sec-
ond Degree Murder, for which he received a sentence of life
imprisonment.
3990 UNITED STATES v. GOODBEAR
On February 19, 2010, following her arrest, Goodbear pro-
vided a statement to authorities in which she admitted that she
concealed the true cause of her stepdaughter’s injuries from
treating medical personnel and that Adrian Goodbear had, in
fact, severely beaten Lyrik. Goodbear, who was pregnant at
the time of the incident, further told investigators that she did
not disclose the truth because she was afraid of Adrian Good-
bear.
At the hearing on Goodbear’s motion to change her plea,
Goodbear pled guilty to misprision of felony as to Adrian
Goodbear’s assault on Lyrik and her own assault on S.G.
Goodbear admitted she hit S.G. in an alleged effort to prevent
her from entering the room where Adrian was hitting Lyrik.
She expressed remorse for injuring S.G. and admitted that
S.G. suffered substantial bodily injury as a result of her
assault.
B
At sentencing, Goodbear requested a downward departure
from the lower-end of the Guideline calculations. Dr. Bruce
Chessen, a psychologist, testified on her behalf. Dr. Chessen,
who met with Goodbear in May 2010 at defense counsel’s
request, diagnosed her with dysthymic disorder, generalized
anxiety disorder, posttraumatic stress disorder, physical abuse
victim, and mixed personality disorder. Dr. Chessen also
opined that Goodbear was victimized in her relationship with
Adrian Goodbear. He suggested that Goodbear was unable to
intervene and stop Adrian Goodbear from hurting Lyrik
because she was both afraid of being injured herself and wor-
ried that Adrian would hurt her unborn child. Dr. Chessen
also concluded Goodbear was unable to intervene because of
Battered Woman’s Syndrome, and opined that as a result, she
was unable to stop Adrian Goodbear from injuring Lyrik.
On December 16, 2010, Goodbear was sentenced to a
prison term of 37 months, which consisted of ten months for
UNITED STATES v. GOODBEAR 3991
the assault and 37 months for misprision of felony, with both
sentences to run concurrently. In addition, Goodbear was sen-
tenced to three years of supervised release and was ordered to
pay restitution in the amount of $12,763.66, to be reimbursed
to Montana Medicaid for the care of S.G.
In determining the sentence, the district court considered
the 18 U.S.C. § 3553(a) factors and the advisory Guideline
range for misprision by calculating specific offense character-
istics, victim related adjustments, and a role in the offense
adjustment for the underlying crime committed by Adrian
Goodbear.5 The district court acknowledged that the Guide-
lines were just one of the factors to be considered. Specifi-
cally, because Goodbear pled guilty to misprision of felony,
the court determined that under USSG § 2X4.1—the base
offense level for misprision of felony, 18 U.S.C. § 4—the
offense should be “9 levels lower than the offense level for
the underlying offense, but in no event less than 4, or more
than 19.” USSG § 2X4.1(a). The district court determined that
the “underlying offense” was the assault on Lyrik by Adrian
Goodbear, in violation of 18 U.S.C. § 113(a)(6), for which the
Guideline provides for a base offense level of 14. USSG
§ 2A2.2(a).
The district court also imposed numerous enhancements,
two of which now serve as the subject of this appeal. First, the
court held that a belt used by Adrian Goodbear to strike Lyrik
could be regarded as a dangerous weapon in this case because
“[i]t was an instrument utilized to inflict bodily injury,”
5
The Commentary to USSG § 1B1.3 states that “[i]n the case of . . .
misprision . . . the conduct for which the defendant is accountable includes
all conduct relevant to determining the offense level for the underlying
offense that was known, or reasonably should have been known, by the
defendant.” USSG § 1B1.3, cmt. n.10; see also United States v. Robinson,
94 F.3d 1325, 1328 (9th Cir. 1996) (“Commentary in the Sentencing
Guidelines that interprets or explains a guideline is binding unless it vio-
lates the Constitution or a federal statute or is inconsistent with that guide-
line.” (citing Stinson v. United States, 508 U.S. 36, 38 (1993))).
3992 UNITED STATES v. GOODBEAR
allowing for a four-level increase under § 2A2.2(b)(2)(B).
Second, the district court imposed a two-level increase under
§ 3B1.4 for use of a minor, finding the adjustment appropriate
because it was “reasonable to conclude” that Goodbear “knew
or should have known” that Adrian Goodbear told K.H. to lie
about Lyrik’s alleged fall from a tree. USSG § 1B1.3, cmt.
n.10 (“In the case of . . . misprision . . . the conduct for which
the defendant is accountable includes all conduct relevant to
determining the offense level for the underlying offense that
was known, or reasonably should have been known, by the
defendant.” (emphasis added)).
In addition to discussing the Guidelines, Chief Judge Rich-
ard F. Cebull explained:
The thing that stood out from the first time I
learned about this case was the fact that this defen-
dant did nothing. She stood. She was there, present,
while the girl was being beat to death for 20 minutes.
Then there was silence in the room for 30 minutes.
All that time, the defendant did nothing. And then
rather than, during that period of time, call the
police, go next door, go for help, take [S.G.], hug
her, get her out of there, she, this defendant,
assault[ed] [S.G.].
Then after there was silence for 30 minutes, there
was another 30 minutes. This defendant and Adrian
Goodbear sat there with that lifeless little girl and
allegedly attempted resuscitation. Who knows if that
little girl would have survived had she been taken for
immediate care, which was minutes away at Lame
Deer. Who knows if she would have survived after
this beating had she been taken to a medical facility
rather than waiting for a whole hour.
The court also stated that it was “aware of the nature and
circumstances of [the] offense” and Goodbear’s “history and
UNITED STATES v. GOODBEAR 3993
characteristics.” The court, however, had “no sympathy at all”
for Goodbear because the consequences of her inactions and
Adrian Goodbear’s actions “far outweigh[ed] any such con-
sideration.” Thus, in light of these facts and that the sentence
imposed “must reflect the seriousness of the offense, promote
respect for the law, and provide just punishment,” as well as
“afford adequate deterrence to criminal conduct, protect the
public from further crimes of the defendant, provide her with
needed educational or vocational training, medical care, or
other correctional treatment in the most effective manner,” the
court imposed a 37-month sentence.
II
We review “the district court’s interpretation of the Sen-
tencing Guidelines de novo, the district court’s application of
the Guidelines to the facts for abuse of discretion, and the dis-
trict court’s factual findings for clear error.” United States v.
Loew, 593 F.3d 1136, 1139 (9th Cir. 2010) (quoting United
States v. Garro, 517 F.3d 1163, 1167 (9th Cir. 2008)). “Al-
though the Guidelines are only advisory, a material error in
calculating the sentencing range is grounds for resentencing.”
Id. (citation omitted).
A
We consider whether the four-level increase for use of a
dangerous weapon under USSG § 2A2.2(b)(2)(B) was an
abuse of discretion. Application Note 1(D) to § 1B1.1 defines
“dangerous weapon” as “an instrument capable of inflicting
death or serious bodily injury; or . . . an object that is not an
instrument capable of inflicting death or serious bodily injury
but . . . closely resembles such an instrument.” The severity
of the injury is covered by a separate offense characteristic.
USSG § 2A2.2(b)(3).6
6
The court imposed a seven-level enhancement by applying
§ 2A2.2(b)(3)(C).
3994 UNITED STATES v. GOODBEAR
[1] We have held that “an upward adjustment under
§ 2A2.2(b)(2)(B) is authorized only when a defendant used an
instrument capable of causing serious bodily injury with the
intent to injure his victim,” United States v. Dayea, 32 F.3d
1377, 1380 (9th Cir. 1994), and that a belt can be such an
instrument. Specifically, in United States v. Riggins, 40 F.3d
1055, 1057 (9th Cir. 1994), we expressly held, in considering
a sufficiency of the evidence argument, that “as a matter of
law, a . . . belt can be [a] dangerous weapon[ ],” and stated
that the “determination whether an object constitutes a ‘dan-
gerous weapon’ turns not on the object’s latent capability
alone, but also on the manner in which the object was used.”
Id. (citation omitted) (holding that a belt and shoe that a
mother used to severely beat her two-year-old son were dan-
gerous weapons because of the manner in which they were
used).
[2] Goodbear fails to distinguish Riggins from the case
presently before us. There is no dispute that Adrian Goodbear
was seen striking Lyrik with a belt. Consequently, the district
court did not clearly err in finding that Adrian Goodbear
“used an instrument capable of causing serious bodily injury.”
See Dayea, 32 F.3d at 1380. Goodbear’s argument that Adrian
did not intend to injure Lyrik is belied by Lyrik’s death.7
Since both requirements under Dayea are met, the district
court did not abuse its discretion in imposing the sentencing
enhancement. We therefore hold that the district court prop-
erly applied the four-level enhancement pursuant to USSG
§ 2A2.2(b)(2)(B) because the belt used by Adrian Goodbear
to beat Lyrik was employed as a “dangerous weapon.”
B
[3] We consider as an issue of first impression whether, for
purposes of applying a § 3B1.4 enhancement, the use of a
7
Goodbear’s “objection” to the supplemental excerpts of record—
pictures documenting the extent of Lyrik’s injuries—is denied as moot.
UNITED STATES v. GOODBEAR 3995
minor can be attributed to another for a misprision of felony
offense.8
Goodbear argues that the district court erred in applying a
two-level enhancement directed by § 3B1.4 because the
record does not suggest that there was an “affirmative act by
[her] to direct, command, encourage, intimidate, counsel,
train, procure, recruit or solicit a minor in this case.” Specifi-
cally, she disputes the district court’s application of a two-
level enhancement under § 3B1.4—for using a minor to assist
in avoiding detection of or apprehension for the offense—
because she disagrees with the district court’s finding that she
knew or should have known that Adrian Goodbear would use
K.H. to help conceal the murder by instructing K.H. to lie
about how Lyrik incurred her injuries. This position fails to
analyze the applicability of the § 3B1.4 enhancement in the
context of a misprision offense.
[4] We begin with the rules of statutory construction to
determine if the district court erred in imposing the enhance-
ment. See Robinson, 94 F.3d at 1328 (“This Court applies the
rules of statutory construction when interpreting the Sentenc-
ing Guidelines.” (citation omitted)). We first look to the plain
meaning of the words used. See id. (applying the rule of statu-
tory construction to interpret the Guidelines and stating that
“[i]f the language of a statute is unambiguous, the plain mean-
ing controls” (citing Powell v. Tucson Air Museum Found.,
771 F.2d 1309, 1311 (9th Cir. 1985))). Whether the two-level
8
Neither Goodbear nor the government cite to cases on point from our
circuit or sister circuits to support their argument. Goodbear cites to
United States v. Pojilenko, 416 F.3d 243, 248 (3rd Cir. 2005), to argue that
“the enhancement under § 3B1.4 cannot be attributed to a defendant based
on the conduct of a co-conspirator unless the defendant was directly
involved with the ‘use’ of the minor.” (emphasis in original). Pojilenko,
however, is not a misprision of felony case and is therefore inapplicable
here. United States v. McClain, 252 F.3d 1279 (11th Cir. 2001), another
case upon which Goodbear relies, is also not a misprision case and as a
result, is similarly inapplicable.
3996 UNITED STATES v. GOODBEAR
enhancement under § 3B1.4 is appropriate here is driven by
the plain language of § 2X4.1 and its commentary. See id.
[5] Because Goodbear pled guilty to misprision of felony,
§ 2X4.1 directs us to look to the underlying offense—the
assault and murder of Lyrik. See USSG § 2X4.1, cmt. n.1
(“‘Underlying offense’ means the offense as to which the
defendant is convicted of committing the misprision.”). The
Guidelines and their commentary therefore instruct the court
to determine the offense level for the underlying offense
exactly as it would have had the defendant been convicted of
that offense, and from there, to apply the misprision guideline
provision.9 See id. § 2X4.1(a) (“Base Offense Level: 9 levels
lower than the offense level for the underlying offense, but in
no event less than 4, or more than 19.”).
[6] Key to our analysis, however, is that Application Note
1 to § 2X4.1 directs the court to “[a]pply the base offense
level plus any applicable specific offense characteristics that
were known, or reasonably should have been known, by the
defendant.” USSG § 2X4.1 cmt. n.1 (emphasis added). The
district court found that it was reasonable to conclude that
Goodbear knew or should have known that Adrian Goodbear
told K.H. to lie—Goodbear herself actively assisted in helping
9
Under § 3B1.4, a two-level enhancement for use of a minor to commit
a crime is appropriate “[i]f the defendant used or attempted to use a person
less than eighteen years of age to commit the offense or assist in avoiding
detection of, or apprehension for, the offense.” Id. According to the com-
mentary, “ ‘[u]sed or attempted to use’ includes directing, commanding,
encouraging, intimidating, counseling, training, procuring, recruiting, or
soliciting.” Id. at cmt. n.1; see Robinson, 94 F.3d at 1328 (“Commentary
in the Sentencing Guidelines that interprets or explains a guideline is bind-
ing unless it violates the Constitution or a federal statute or is inconsistent
with that guideline.”). The record establishes that Adrian Goodbear
instructed K.H. to lie to the authorities about the cause of Lyrik’s injuries.
Consequently, an enhancement under § 3B1.4 would have been appropri-
ate for Adrian Goodbear. Under § 2X4.1, the enhancement is similarly
applicable to Goodbear if the use of the minor by Adrian Goodbear was
reasonably foreseeable to her. See USSG §§ 2X4.1, 3B1.4.
UNITED STATES v. GOODBEAR 3997
Adrian Goodbear conceal the murder by maintaining the same
false story of an accidental fall from a tree to attending medi-
cal personnel and both Goodbear and K.H. admitted that
Adrian Goodbear instructed each of them to lie. The district
court therefore did not clearly err in finding that Goodbear
knew, or it was reasonable to assume that she should have
known, that Adrian Goodbear would use K.H. to lie to author-
ities, as he instructed Goodbear to tell the same lie. There was
no abuse of discretion in adding the two-level enhancement
under § 3B1.4 because it was reasonably foreseeable to Good-
bear that Adrian would use K.H., a minor, to avoid being held
responsible for Lyrik’s murder.
C
[7] Goodbear argues that her 37-month sentence was
unreasonable under 18 U.S.C. § 3553(a), but premises her
argument on the impropriety of the sentencing enhancements.
Because both enhancements were proper, we reject the basis
of her claim. However, apparently overlooked by everyone
was the fact that Goodbear’s 37-month sentence for the mis-
prision of felony offense exceeded the statutory maximum in
18 U.S.C. § 4, which states that a defendant who is guilty of
a misprision of felony offense “shall be . . . imprisoned not
more than three years.” 18 U.S.C. § 4. The judgment specifi-
cally attributes 37 months to the misprision of felony count,
and the district court explicitly stated at the sentencing hear-
ing that the sentences were to run concurrently.10 Accordingly,
we vacate Goodbear’s sentence in part because the district
court was required to set the sentence for the misprision of
felony offense at no more than 3 years (36 months).
10
The court stated: “pursuant to 18 U.S.C. [§ ] 3553(a), and after consid-
ering the U.S. Sentencing Guidelines and policy statements, it is the judg-
ment of the Court that the defendant, Marcia Ann Goodbear, is hereby
committed to the custody of the U.S. Bureau of Prisons for a term of 37
months. This term consists of ten months for Count II and 37 months for
Count III, with both counts to run concurrently.”
3998 UNITED STATES v. GOODBEAR
Nor did either party alert the court to another error that may
have occurred in calculating the combined offense level under
USSG § 3D1.4. The district court properly assigned one unit
to the misprision of felony conviction under count three of the
indictment and zero units to the assault resulting in substantial
bodily injury conviction under count two, but improperly
added one level to the adjusted offense level for the mispri-
sion of felony conviction to get to a combined adjusted
offense level of twenty-two, rather than twenty-one.11 Because
there is no increase in offense level for only one unit under
§ 3D1.4, the final adjusted offense level after a three-level
reduction for acceptance of responsibility under § 3E1.1
should have been eighteen. See United States v. Cabaccang,
481 F.3d 1176, 1187 n.6 (9th Cir. 2007) (reviewing a sentence
imposed in accordance with § 3D1.4 and stating that because
“the total number of units was one . . . no more increases in
offense level were warranted”); see also United States v. Leni-
ear, 574 F.3d 668, 671 n.2 (9th Cir. 2009) (discussing
§ 3D1.4 and stating “[t]he count with the highest offense level
constitutes one unit, as does each count that is either equally
serious or between one and four levels less serious”).
[8] Consequently, we vacate Goodbear’s sentence for the
misprision of felony offense and remand for resentencing.
III
The district court properly applied a four-level enhance-
ment as directed by USSG § 2A2.2(b)(2)(B) because the belt
used by Adrian Goodbear when beating his six-year-old
daughter to death qualified as a dangerous weapon. Further,
the district court did not abuse its discretion in applying the
two-level enhancement under USSG § 3B1.4 after finding
11
Specifically, the district court stated: “the adjusted offense level for
Group 1 is 11; zero units. The adjusted offense level for Group 2 is 21;
that gives rise to 1 unit. The total number of units, 1. The greater adjusted
offense level, 21. The increase in the offense level is 1.” (emphasis added).
UNITED STATES v. GOODBEAR 3999
that it was reasonably foreseeable to Goodbear that Adrian
Goodbear would use K.H., a minor, to avoid being held
responsible for the murder of Lyrik. We therefore affirm the
application of the sentencing enhancements under
§§ 2A2.2(b)(2)(B) and 3B1.4.
There was plain error in sentencing Goodbear to 37-months
for misprision of felony because that sentence exceeds the
statutory maximum of 36 months in 18 U.S.C. § 4. Conse-
quently, we vacate Goodbear’s sentence for the misprision of
felony offense and remand for resentencing.
AFFIRMED IN PART, SENTENCE VACATED IN
PART, and REMANDED FOR RESENTENCING.