United States v. Deegan

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 08-2299
___________

United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Dana Deegan, *
*
Appellant. *
___________

Submitted: December 9, 2008
Filed: May 25, 2010
___________

Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.
___________

COLLOTON, Circuit Judge.

Dana Deegan pled guilty pursuant to a plea agreement to second-degree murder,
in violation of 18 U.S.C. §§ 1111 and 1153. The district court1 sentenced Deegan to
121 months’ imprisonment, which was the bottom of the advisory guideline range.
Deegan appeals the sentence, and we affirm.

1
The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.
 I.

Deegan is a member of the Three Affiliated Tribes. On October 20, 1998,
Deegan secretly gave birth to a baby boy in the bathroom of her home on the Fort
Berthold Indian Reservation. The baby was alive and breathing when he was
delivered. Deegan had kept her pregnancy hidden, and no other adult was present at
the time of the delivery. Deegan’s three other minor children were in the home, but
they were unaware of the birth.

Approximately two hours after delivering her son, Deegan fed, cleaned, and
dressed him, and then placed him in a basket. She then left the house with her three
other children, intentionally leaving the baby alone without food, water, or a
caregiver. Deegan did not return to her home for approximately two weeks. When
she returned, she found the baby dead in the basket where she had left him. She put
his remains in a suitcase, and deposited the suitcase in a rural ditch area near her
residence.

On November 4, 1999, a man working on a fence line found the suitcase
containing the baby’s remains. He reported the discovery to law enforcement, and the
Federal Bureau of Investigation (“FBI”) commenced an investigation. In March 2004,
Deegan voluntarily submitted a DNA sample to the FBI. Nearly three years later, in
February 2007, the FBI completed mitochondrial DNA analysis on the Deegan sample
and confirmed that Deegan was the mother of the deceased baby. When Deegan was
interviewed by the FBI in late February 2007, she falsely claimed that the baby was
stillborn. Interviewed a second time in May 2007, Deegan repeated the false story and
provided a written statement to that effect.

Later during the May 2007 interview, however, Deegan admitted that her earlier
statements were false and acknowledged that the baby had been born alive. She stated
that she intentionally left him alone in her home, knowing that he would die. When

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asked why she did so, Deegan responded that she was unable to care for a fourth child,
neither she nor her common-law husband were employed, and her husband spent what
little money they did have to purchase drugs.

On June 6, 2007, a grand jury returned a two-count indictment charging Deegan
with first-degree murder and making false statements to the FBI. Deegan pled not
guilty to both charges. On November 11, 2007, Deegan entered into a written plea
agreement with the government, in which she agreed to plead guilty to one count of
second-degree murder. In the factual portion of the agreement, Deegan acknowledged
that the baby was born alive and breathing when she delivered him, and that she
unlawfully and with malice aforethought caused his death by leaving him alone in the
house for approximately two weeks. On November 30, 2007, the government filed
an information charging Deegan with second-degree murder.

On December 10, 2007, Deegan pled guilty to second-degree murder. At the
plea hearing, the district court noted that the sentencing guidelines in effect at the time
of Deegan’s offense provided for an advisory sentence of eight to ten years’
imprisonment for second-degree murder. The court advised Deegan that based on
“what little information” it had about the offense at the plea hearing, the court was
“not comfortable” with a range of eight to ten years, because the terms of
imprisonment for other defendants convicted of second-degree murder “were not even
close to that range.” The court remarked that there were a number of provisions in the
advisory guidelines “that would justify an upward departure.”

In an order filed on January 22, 2008, the court formally notified the parties that
it was “contemplating an upward departure from the applicable Sentencing Guideline
range,” based on USSG § 5K2.8, which provides for an increased sentence where “the
defendant’s conduct was unusually heinous, cruel, brutal, or degrading to the victim.”
The court expressed its view that Deegan’s conduct “was unusually heinous, cruel,
and brutal,” but stated that it would await review of the presentence investigation

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report (“PSR”), psychological evaluations, and a review of relevant case law before
making a final decision on sentencing.

Applying the 1997 sentencing guidelines in effect at the time of the offense, the
PSR recommended an advisory sentencing range of 121 to 151 months’
imprisonment, which corresponded to a total offense level of 32 and a criminal history
category of I. The total offense level represented a base offense level of 33, USSG §
2A1.2 (1997), a two-level upward adjustment for knowledge of a vulnerable victim,
id. § 3A1.1(b), and a three-level decrease for acceptance of responsibility, id.
§ 3E1.1(a), (b). Deegan objected to the two-level vulnerable-victim adjustment,
arguing that there had been no factual finding that the infant was vulnerable, and that
she had not admitted as much in the plea agreement.

Following preparation of the PSR, both parties submitted sentencing
memoranda to the court. Deegan again objected to the two-level vulnerable-victim
adjustment. She also urged the court to vary from the advisory guidelines and
sentence her to probation or to a very short period of incarceration. She based her
argument for leniency on what she described as her “psychological and emotional
condition” at the time of the offense, her history as a victim of abuse, and the fact that
she acted impulsively, among other reasons.

As support, she submitted a report prepared by Dr. Phillip Resnick, an expert
in “neonaticide.” “Neonaticide” is a term coined by Resnick to describe the killing
of an infant within the first twenty-four hours following birth. See Susan Hatters
Friedman et al., Child Murder by Mothers: A Critical Analysis of the Current State of
Knowledge and a Research Agenda, 162 Am. J. Psychiatry 1578, 1578 (2005). The
report addressed what Resnick viewed as an “extraordinary number of mitigating
circumstances,” and expressed the opinion that a prison sentence was not necessary
to deter other women from committing neonaticide. The report concluded that
Deegan suffered from an extensive history of abuse throughout her childhood and as

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an adult, suffered from major depression and dissociation at the time of the homicide,
acted impulsively in leaving her baby alone, presented a very low risk of reoffending,
and did not merit a lengthy prison sentence, especially because other women
convicted in state court of committing similar offenses were usually sentenced to no
more than three years in prison.

At the sentencing hearing on May 18, 2008, the district court adopted the
sentencing guideline calculation in the PSR. The court agreed with the probation
office that the vulnerable-victim enhancement was warranted, and that Deegan’s
advisory range was 121 to 151 months’ imprisonment. Finally, after calling Dr.
Resnick to testify about his report and hearing arguments from counsel and testimony
from Deegan herself, the court sentenced Deegan to 121 months’ imprisonment.

On appeal, Deegan argues that the sentence of 121 months’ imprisonment is
unreasonable, because the advisory guideline for second-degree murder is not based
on empirical data and national experience, and because the sentence imposed is
greater than necessary to comply with the statutory purposes of sentencing set forth
in 18 U.S.C. § 3553(a)(2). As we understand Deegan’s brief on appeal, she argues
that the district court committed both procedural and substantive errors when
imposing sentence. Deegan raised no procedural objection in the district court, so we
consider her claims of procedural error under the plain-error standard, United States
v. Gray, 533 F.3d 942, 945 (8th Cir. 2008), which requires as conditions for relief that
Deegan show an obvious error that affected her substantial rights and seriously
affected the fairness, integrity, or reputation of judicial proceedings. United States v.
Olano, 507 U.S. 725, 732 (1993). No objection was required to preserve Deegan’s
substantive claim that the sentence imposed is unreasonably long with regard to
§ 3553(a), United States v. Wiley, 509 F.3d 474, 476-77 (8th Cir. 2007), but we review
the substantive reasonableness of the sentence under a deferential abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 41 (2007).

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 II.

A.

Deegan appears to raise four alleged procedural errors at sentencing. One is
that the district court “failed on the record to engage in any meaningful discussion
whatsoever of the § 3553(a) factors.” The Supreme Court in Gall explained that a
sentencing court “must adequately explain the chosen sentence to allow for
meaningful appellate review and to promote the perception of fair sentencing.” 552
U.S. at 50. Deegan did not object to the adequacy of the district court’s explanation
or request any elaboration. On plain error review, we conclude that the explanation
is not obviously inadequate.

As the Supreme Court has explained, “[t]he appropriateness of brevity or
length, conciseness or detail, when to write, what to say, depends upon
circumstances.” Rita v. United States, 551 U.S. 338, 356 (2007). “The law leaves
much, in this respect, to the judge’s own professional judgment.” Id. “[A] district
court is not required to provide a ‘full opinion in every case,’ but must ‘set forth
enough to satisfy the appellate court that he has considered the parties’ arguments and
has a reasoned basis for exercising his own legal decisionmaking authority.’” United
States v. Robinson, 516 F.3d 716, 718 (8th Cir. 2008) (quoting Rita, 551 U.S. at 356).
Sentencing courts need not “categorically rehearse the § 3553(a) factors on the record,
as long as it is clear that the court considered those factors.” United States v.
Hernandez, 518 F.3d 613, 616 (8th Cir. 2008). Nor have we required district courts
to make specific findings on the record about each § 3553(a) factor. Perkins, 526 F.3d
at 1110. “[A]ll that is generally required to satisfy the appellate court is evidence that
the district court was aware of the relevant factors.” Id.

The district court in this case said plenty to avoid an obvious shortcoming under
a plain error standard of review. The court twice stated that it had “carefully

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considered” the § 3553(a) factors, even remarking that it had “spent many, many days
and nights thinking about this case.” The court listed nearly all of the § 3553(a)
factors on the record. Dr. Resnick, the expert who reported on Deegan’s
psychological condition, structured his testimony at the sentencing hearing around
many of the § 3553(a) factors, and cross-examination highlighted other statutory
factors. The court heard all of this testimony and took it into account. The court read
Resnick’s written report, which was explicit in its reference to the § 3553(a) factors,
“at least three times.” The court twice stated that it had carefully reviewed the PSR,
the parties’ sentencing memoranda, the psychological evaluation of Deegan by
another doctor, the many letters of support filed on her behalf, and the DVD
presentation by her family. See United States v. Henson, 550 F.3d 739, 743 (8th Cir.
2008) (observing that the presentence report contains extensive information regarding
the factors under § 3553(a)).

In explaining why it chose a sentence of 121 months’ imprisonment rather than
a greater punishment, the court acknowledged that Deegan’s life had not been “easy,”
and that it had been plagued with physical abuse and sexual abuse. Referring back to
its statement at the plea hearing that it was likely to impose a sentence above the
advisory range of eight to ten years, the court observed that Resnick’s report and
testimony were “helpful and insightful,” and that the court had gained “far better
insight” into the case after reviewing the report. The court told Deegan that it had
“real compassion for [her] and [her] family and what [she had] gone through,”
including the fact that she had three children and that her brother had been murdered.
The court said that it “underst[ood] why [Deegan] took the steps that she did in 1998,”
and that “under the circumstances,” a sentence under the 2007 guidelines in effect at
the time of sentencing, i.e., 19.5 to 24.5 years’ imprisonment, would not have been
fair.

But the court also thought a lesser sentence would not be sufficient, explaining
that it must “ensure that justice is done,” and that it could not “ignore the fact that

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there was an innocent life that was lost.” The court remarked that justice in this case
probably “lies between the extremes of public opinion,” and that the advisory range
of 121 to 151 months’ imprisonment was reasonable for “a case of this nature.”

This discussion is sufficient to permit meaningful appellate review and to
ensure the public that Deegan’s case was given fair consideration. In the face of this
record, which shows a district judge deliberating at length over a difficult case, and
even changing his tentative conclusion between the plea hearing and the sentencing
hearing, we cannot agree with our dissenting colleague that the district court
“exercised no discretion.” Post, at 62. Deegan has not established plain error that
would require a remand for a more elaborate statement of reasons.

B.

Deegan also argues that the court procedurally erred by treating the advisory
guidelines as mandatory. Gall, 552 U.S. at 51. This contention is based on an isolated
statement by the district court at the sentencing hearing, to which Deegan lodged no
objection:

In this case, the sentencing guidelines provide for a sentence range of
121 to 151 months. That’s 10 to 12-and-a-half years. I’m required to
impose those guidelines that were in effect in October of 1998. If the
guidelines that were in effect today were imposed, your sentence would
be in the range of 19-and-a-half to 24-and-a-half years.

(S. Tr. at 60) (emphasis added).

The court evidently misspoke when it used the word “impose” (rather than
“consider”), because the record as a whole makes clear that the court understood its
discretion to sentence outside the advisory guideline range. There is no reason to
believe that the district court applied the guidelines as mandatory, and if Deegan had

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objected at sentencing to the word “impose,” we are confident that the court would
have corrected itself. Elsewhere, the court clearly explained that it was aware of its
discretion to vary from the advisory guideline range:

I’m also familiar with the recent decisions from the United States
Supreme Court in the cases of Gall and Kimbrough which have
established that district court judges around the country in the federal
system have discretion to impose nonguideline sentences or variances
from the sentencing guidelines. And I’m equally aware of my authority
and my discretion to impose a nonguideline sentence.

....

. . . I’m aware of my discretion and authority to impose a
nonguideline sentence or to depart from the guidelines. I have chosen
in this case to impose a guideline sentence. I’m not going to exercise my
discretion and depart and impose a nonguideline sentence because I
believe that the sentencing range that’s been provided for in the
sentencing guidelines in this particular case is reasonable.

(S. Tr. 56, 58-59) (emphases added). On Deegan’s contention that the district court
treated the guidelines as mandatory, there is no plain error warranting relief.2

2
We disagree with the dissent that the district court’s description of the chosen
sentence as “reasonable” demonstrates that the court applied an impermissible
presumption of reasonableness to the advisory guideline sentence, post, at 44, or that
the court misunderstood its duty under § 3553(a) to select a sentence that is
“sufficient, but not greater than necessary” to comply with the purposes of
§ 3553(a)(2). Post, at 50. As in United States v. Vaughn, 519 F.3d 802, 805 (8th Cir.
2008), where the sentencing court said it was to impose a “reasonable sentence,” there
is no plain error, because the record as a whole shows that the court followed the
proper procedure under Gall.

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 C.

Deegan also contends that the district court committed procedural error by
considering the advisory guideline range that applied to Deegan’s offense under the
2007 sentencing guidelines. Deegan committed the offense in 1998, and the court
calculated her advisory range according to the 1997 guidelines, which were in effect
at the time of the offense. The court apparently followed the rule that application of
the guidelines in effect at the time of sentencing would violate the Ex Post Facto
Clause, see United States v. Bell, 991 F.2d 1445 (8th Cir. 1993); USSG § 1B1.11(b),
although the endurance of that rule is an open question in this circuit after United
States v. Booker, 543 U.S. 220 (2005), now that the guidelines are merely a starting
point that a court must consult and take into account. See United States v. Anderson,
570 F.3d 1025, 1033 n.7 (8th Cir. 2009) (assuming, without deciding, that the Ex Post
Facto Clause applies to a district court’s application of the sentencing guidelines after
Booker); compare, e.g., United States v. Demaree, 459 F.3d 791, 795 (7th Cir. 2006)
(holding that use of the guidelines in effect at time of sentencing does not violate Ex
Post Facto Clause after Booker), with United States v. Turner, 548 F.3d 1094, 1098-
1101 (D.C. Cir. 2008) (disagreeing with Demaree).

Although the court used the 1997 guidelines as the initial starting point, it also
discussed the advisory range that would apply under the 2007 guidelines. The court
observed that if Deegan had been sentenced under the 2007 guidelines, her advisory
sentence would have been almost twice as long as the sentencing range under the 1997
guidelines. The court also noted that if Deegan had been convicted of voluntary
manslaughter rather than second-degree murder, then her advisory range under the
2007 guidelines would be roughly the same range as the advisory range for second-
degree murder under the 1997 guidelines. With this background, the court concluded:

I guess what I’m trying to say is that if we used guidelines today, the
sentence would be double what you’re currently looking at, and I don’t

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 think that’s fair under the circumstances. But when I reflect upon what
a voluntary manslaughter charge carries under the current guidelines and
what second degree murder carries under the guidelines that existed in
1998, I believe that those are reasonable guidelines for a case of this
nature.

Deegan did not object to the district court’s reference to the 2007 guidelines,
and we see no obvious error in the court’s consideration of that information. Now that
the guidelines are merely advisory, district courts are free to vary from the advisory
range “based solely on policy considerations,” Kimbrough v. United States, 552 U.S.
85, 101 (2007) (internal quotation omitted), or to sentence within the advisory range
based on policy considerations. The 2007 guidelines simply represent another policy
view – different from the view embodied in the 1997 guidelines – of the appropriate
sentence under § 3553(a) for second-degree murder or voluntary manslaughter in a
run-of-the-mine case. The court was free to consider that view as part of its analysis
of the appropriate sentence for Deegan under § 3553(a). There was no plain
procedural error.

D.

Deegan’s remaining procedural argument is that the district court erred by
assuming that the advisory guideline for second-degree murder was the product of
empirical data and national experience. She points to this excerpt from the district
court’s comments at sentencing:

We have sentencing guidelines in the federal system that are designed to
ensure that sentences are consistent and uniform throughout the country
for people that commit this type of crime with the same type of criminal
history that you have. The sentencing guidelines have been in effect for
almost 20 years, and they are designed to provide some honesty in
sentencing and to achieve some consistency in the federal system, and
they’re based upon an analysis of hundreds of thousands of cases. Every

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 year there are hundreds of thousands of cases that – in which defendants
are sentenced around the country, and the Sentencing Commission
compiles all that data and they try to develop sentencing guidelines that
are fair and are reasonable.

Deegan did not object to these comments at sentencing, and we see no obvious error
that warrants relief.

Insofar as Deegan argues that the court procedurally erred by “selecting a
sentence based on clearly erroneous facts,” see Gall, 552 U.S. at 51, we disagree. The
court’s discussion of the guidelines was an accurate statement about the general
purpose and methodology behind the sentencing guidelines. See generally USSG Ch.
1, Pt. A, intro. comment. The court never suggested that the Sentencing Commission
based the guideline on an analysis of hundreds of thousands of “neonatacide” cases,
or that Deegan’s offense was a typical fact pattern for second-degree murder.

The district court may have believed that the second-degree murder guideline
considered in Deegan’s case was based on empirical data and national experience, but
Deegan has not shown that this premise would have been incorrect. Citing United
States v. Grant, No. 07-242, 2008 WL 2485610, at *4-5 (D. Neb. June 16, 2008),
Deegan argues that amendments to the murder guidelines promulgated in 2002, 2004,
2006, and 2007 were not based on empirical data and national experience. But
whatever the merits of that position, these amendments say nothing about how the
Sentencing Commission established the 1997 guideline for second-degree murder, on
which Deegan’s advisory range was based.3

3
In its Fifteen Year Report, the Commission explained that murder was one of
the offenses for which the original Commission, “either on its own initiative or in
response to congressional actions, established guideline ranges that were significantly
more severe than past practice.” See U.S. Sentencing Comm’n, Fifteen Years of
Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice
System is Achieving the Goals of Sentencing Reform 47 (2004). The report further

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 Even with respect to the 1997 guideline, moreover, the district court simply
treated the advisory guideline range as an initial starting point, while determining the
final sentence after consideration of all of the § 3553(a) factors taken as a whole.
There is no showing that an erroneous assumption about the underlying basis for the
second-degree murder guideline drove the determination of Deegan’s sentence.

In sum, Deegan has not identified an obvious procedural error at sentencing.
The district court correctly calculated the advisory guideline range, allowed the parties
to present evidence and argument regarding the sentence to be imposed, recognized
its discretion to impose a sentence outside the advisory range, considered all of the §
3553(a) factors, determined the final sentence based on those factors, and adequately
explained its rationale.

III.

A.

We also conclude that Deegan’s sentence at the bottom of the advisory
guideline range is substantively reasonable. We review the substantive reasonableness
of the sentence under a deferential abuse-of-discretion standard, see Gall, 552 U.S. at
41, cognizant that “it will be the unusual case when we reverse a district court
sentence – whether within, above, or below the applicable Guidelines range – as

observed that for violent crimes, “the Commission was careful to ensure that average
sentences . . . at least remained at current levels, and it raised them where the
Commission was convinced that they were inadequate.” Id. at 68. It explained that
“[f]or murder and aggravated assault, the Commission felt that past sentences were
inadequate since these crimes generally involved actual, as opposed to threatened,
violence.” Id. Nothing in these statements is inconsistent with an assumption that the
second-degree murder guideline was based on empirical data and national experience,
although the data and experience may have led the Commission to conclude that the
average sentence should be increased.

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substantively unreasonable.” United States v. Feemster, 572 F.3d 455, 464 (8th Cir.
2009) (en banc) (internal quotation omitted). While many critics of the mandatory
federal sentencing system believed that the guidelines resulted in excessive terms of
imprisonment, the post-Booker system is not a one-way ratchet in favor of leniency.
A district judge who favors a tough sentence is entitled to the same degree of
deference as a district judge who opts for a lesser punishment.

Where, as here, a sentence imposed is within the advisory guideline range, we
typically accord it a presumption of reasonableness. See United States v. Harris, 493
F.3d 928, 932 (8th Cir. 2007). The presumption “simply recognizes the real-world
circumstance that when the judge’s discretionary decision accords with the
Commission’s view of the appropriate application of § 3553(a) in the mine run of
cases, it is probable that the sentence is reasonable.” Rita, 551 U.S. at 350. But even
if we do not apply such a presumption here, on the view that Deegan’s offense is not
a “mine run” second-degree murder, the district court did not abuse its considerable
discretion by selecting a sentence of 121 months’ imprisonment.

The record in this case includes evidence in aggravation and mitigation. As the
district court observed in its presentencing order, a court reasonably could view
Deegan’s offense as “unusually heinous, cruel, and brutal,” and deserving of harsh
punishment. She left a newborn baby alone in a basket in an empty house without
food and water for two weeks until the child died. Deegan countered with testimony
from an expert who believes, among other things, that women who commit
“neonaticide” are unlikely to reoffend, and that harsh punishment of such an offender
is unlikely to deter others from committing the same offense. Deegan also presented
evidence of her troubled personal history and family circumstances, and of course we
share our dissenting colleague’s condemnation of violence against American Indian
women.

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 Deegan’s mitigating evidence convinced the district court that a sentence of
more than ten years, which the court had contemplated at the time of the guilty plea,
was greater than necessary to satisfy the statutory purposes of sentencing. But we are
firm in our view that the district court did not abuse its discretion by refusing to
impose a more lenient sentence. Whatever the deterrent effect of this sentence,
general or specific, and whatever Deegan’s personal history, the court was entitled to
consider the need for the sentence imposed to “reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense.” 18
U.S.C. § 3553(a)(2)(A). The district court was justified in saying that it could not
“ignore the fact that there was an innocent life that was lost,” and that there was a
“need to ensure that justice is done.” The court believed that justice in this case “lies
between the extremes of public opinion,” and that may be so. There likely are those,
like Deegan’s expert, who believe that a term of imprisonment is unnecessary, and
there may be others who feel that no term of imprisonment is too long for one who
murders a helpless infant in this manner. We need only determine whether the district
court’s middle ground is a permissible choice. Applying a deferential abuse-of-
discretion standard, we conclude that the sentence of 121 month’s imprisonment is
reasonable with regard to § 3553(a).

B.

Our dissenting colleague contends that Deegan’s sentence is unreasonably long,
and that we should direct the district court to impose a shorter term of imprisonment.
We believe that such a disposition would be inconsistent with the substantial
deference now owed to the judgments of the sentencing courts. Cf. United States v.
Burns, 577 F.3d 887, 896 (8th Cir. 2009) (en banc) (Bright, J., concurring) (asserting
that Gall “puts the discretion at sentencing in the district court, just where it should
be, with due regard for the guidelines and the statutes relating to the goals of
sentencing. Appellate courts are not sentencing courts.”). The guidelines are advisory
only, and we “must review all sentences – whether inside, just outside, or significantly

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outside the Guidelines range – under a deferential abuse-of-discretion standard.” Gall,
552 U.S. at 41. The question is not whether the former mandatory guideline system
would have called for a downward departure below the mandatory guideline range,
cf. post, at 38-41, but whether the district court’s sentence of 121 months’
imprisonment is reasonable in light of the statutory considerations described in §
3553(a).

To support its conclusion that the district court’s chosen sentence was
unreasonably harsh, the dissent cites a case involving a student at North Dakota State
University (“NDSU”) who was prosecuted in North Dakota state court and sentenced
to probation. The record of this case includes almost nothing about the NDSU case.
Defense counsel stated that his summary, recounted by the dissent, post, at 56, was
drawn from a newspaper article. The district court surely did not abuse its discretion
by failing to conform Deegan’s federal sentence to a North Dakota state court case
about which no evidence was presented.

We disagree, moreover, with the dissent’s contention that the district court
should have considered the “disparity” between Deegan’s sentence and the sentence
that may have been imposed if Deegan, like the NDSU student, had been prosecuted
in state court. Post, at 56-57, 59, 65-66. This argument contradicts the well-settled
proposition that “the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct,” 18 U.S.C. §
3553(a)(6), refers only to disparities among federal defendants. It would have been
error for the district court to consider potential federal/state sentencing disparities
under § 3553(a)(6). United States v. Jeremiah, 446 F.3d 805, 807-08 (8th Cir. 2006)
(“Unwarranted sentencing disparities among federal defendants remains the only
consideration under § 3553(a)(6) – both before and after Booker.”); United States v.
Deitz, 991 F.2d 443, 447 (8th Cir. 1993) (“If, at the time of sentencing, federal courts
were to take into consideration a potential state sentence based upon similar state-
charged offenses, the Sentencing Commission’s goal of imposing uniformity upon

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federal sentences for similarly situated defendants would be impeded, not
furthered.”).4

* * *

For the foregoing reasons, we conclude that the district court did not commit
plain procedural error, and the court’s sentence of 121 months’ imprisonment is not
substantively unreasonable with regard to 18 U.S.C. § 3553(a). The judgment of the
district court is affirmed.

BRIGHT, Circuit Judge, dissenting.

I respectfully dissent.

This case concerns the crime of neonaticide, which is the killing of a newborn
child on the first day of life. This crime is practically unknown in the federal courts.
Neonaticide is a crime relating to family and domestic concerns and, thus, federal
courts do not generally deal with these crimes. Indeed, excluding habeas cases, my
research has disclosed only one other reported federal case discussing and deciding
a neonaticide crime. See United States v. Tom, 494 F.3d 1277 (10th Cir. 2007), rev’d
and remanded to 327 F. App’x 93 (10th Cir. 2009).

4
Even if two different sentences had been imposed in federal court, moreover,
one district judge has no obligation after Booker to follow the decision of another
district judge. Cf. post, at 41 & n.25. District judges now are permitted to apply their
own policy views when determining what punishment is sufficient for a particular
offense under 18 U.S.C. § 3553(a), Spears v. United States, 129 S. Ct. 840, 843 (2009)
(per curiam); Kimbrough v. United States, 552 U.S. 85, 101 (2007), and there
inevitably will be some disparity in the sentencing of similarly-situated offenders.
Booker, 543 U.S. at 263 (“We cannot and do not claim that use of a ‘reasonableness’
standard will provide the uniformity that Congress originally sought to secure.”).

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 In the view of this judge, the procedure followed and the imposition of a ten-
year-plus prison sentence on Ms. Deegan, a young American Indian woman,
represents the most clear sentencing error that this dissenting judge has ever seen.5

For reversal, the dissent relies on the following Supreme Court cases: Gall v.
United States, 552 U.S. 38 (2007), Rita v. United States, 551 U.S. 338 (2007), Koon
v. United States, 518 U.S. 81 (1996), and the holdings in United States v. Alvizo-
Trujillo, 521 F.3d 1015 (8th Cir. 2008), and United States v. Greene, 513 F.3d 904
(8th Cir. 2008). See also Kimbrough v. United States, 552 U.S. 85, 91, 96, 109 (2007)
(discussing and commenting on sentencing procedure and stating the greatest respect
to variance from guidelines when particular case is outside the “heartland”).

5
As a federal judge, I had never heard of the term “neonaticide” nor encountered
a case of neonaticide until this case. From reading the record, I daresay the same lack
of knowledge existed in the district court personnel until neonaticide was explained
by Dr. Phillip Resnick. The defense counsel, William D. Schmidt of Bismarck, North
Dakota, an assistant public defender, should be commended for his research on the
subject and in bringing Dr. Resnick to testify about neonaticide.
This judge has read and reviewed several hundred federal sentencing cases. Of
those, the procedure and sentence here is among the most grossly wrong and unfair
that I have ever encountered. The result: a harsh, discriminate, and improper sentence
upon an American Indian woman living on a reservation. The conduct of the district
court in this case and the majority’s affirmance violates every sentencing principle
enunciated by the Supreme Court after United States v. Booker, 543 U.S. 220 (2005).
This one of a kind sentence by a federal sentencing judge, not a state judge as
would be the usual case, occurred only by reason of the defendant’s residence on an
Indian reservation in North Dakota. I justify the length of this dissent on the basis that
every aspect of the sentencing procedure and the substance of the sentence deserves
careful examination. This federal court on appeal should not approve a prison
sentence for this reservation crime which this judge believes is unfair and improper
under the law and facts.

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 I.

SUMMARY OF CONTENTIONS AND STANDARD OF REVIEW

A. Summary of Contentions

Ms. Deegan’s crime consisted of a special sort of homicide called
“neonaticide,” well documented in medical and legal literature, which describes the
conduct of a parent, ordinarily the mother, who is often suffering from depression or
other mental illness causing the death of an infant child within twenty-four hours of
birth.

First, Ms. Deegan’s conduct as neonaticide does not now, nor has it ever, come
within the “run-of-the-mine” guidelines for second-degree murder, the charge to
which Ms. Deegan pleaded guilty. But the district court mistakenly believed that this
case fell within the second-degree murder guidelines. Thus, the sentence imposed was
procedurally gross error.

Second, the district court presumed that the guidelines were reasonable. This
is plain error.

Third, because this case is outside the heartland of second-degree murder cases,
the district court’s 18 U.S.C. § 3553(a) analysis was flawed at its beginning, and this
case required imposition of a sentence completely apart from the guidelines and under
§ 3553(a). This the district court did not do.

Fourth, analysis of the § 3553(a) factors demonstrates that Ms. Deegan’s
sentence is substantively unreasonable. The district court’s approach to sentencing
served to elevate a guidelines sentence above an individualized assessment of the facts

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and circumstances of this case. Each error compounded the next one and these
mistakes require reversal and remand.

Finally, the failure to follow proper sentencing procedures and methodology led
to a highly excessive sentence for Ms. Deegan. Her crime requires a different
approach than taken by the district court and approved by the majority.

B. Standard of Review

I express my disagreement with the majority’s application of plain error in
reviewing this sentence. In my view, defense counsel preserved the errors argued on
appeal.

The majority asserts:

On appeal, Deegan argues that the sentence of 121 months’
imprisonment is unreasonable, because the advisory guideline for
second-degree murder is not based on empirical data and national
experience, and because the sentence imposed is greater than necessary
to comply with the statutory purposes of sentencing set forth in 18
U.S.C. § 3553(a)(2). As we understand Deegan’s brief on appeal, she
argues that the district court committed both procedural and substantive
errors when imposing sentence. Deegan raised no procedural objection
in the district court, so we consider her claims of procedural error under
the plain-error standard. United States v. Gray, 533 F.3d 942, 945 (8th
Cir. 2008) which requires as conditions for relief that Deegan show an
obvious error that affected her substantial rights and seriously affected
the fairness, integrity, or reputation of judicial proceedings. United
States v. Olano, 507 U.S. 725, 732 (1993). We review the substantive
reasonableness of the sentence under a deferential abuse-of-discretion
standard. Gall v. United States, 128 S. Ct. 586, 597 (2007).

Maj. op. at 5.

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 Further, the majority reviews the following under the plain error standard: (a)
the district court’s failure to meaningfully discuss the § 3553(a) factors, id. at 6; (b)
treating the advisory guidelines as mandatory, id. at 9; (c) procedural error by
applying the 2007 Guidelines to the instant offense, id. at 10; and (d) applying the
second-degree murder guidelines to “this type of crime.” Id. at 11.

Comparing the sentencing transcript with Ms. Deegan’s brief establishes that
these errors were asserted in the district court and raised on appeal. At sentencing,
defense counsel, in responding to the prosecutor’s recommendation for a guideline
sentence of 121 months, asserted that: (a) the guideline sentence was far greater than
necessary (Sent. Tr. 46-47); (b) such a sentence was not warranted under the § 3553(a)
factors (Sent. Tr. 46-52); (c) a guideline sentence would result in a sentencing
disparity as compared to a neonaticide sentence imposed in a North Dakota state court
(Sent. Tr. 50-53); and (d) a variance, a non-guideline sentence, should be imposed
after proper consideration of the § 3553(a) factors (Sent. Tr. 55-56, 59). The district
court clearly recognized the request of defense counsel when the court said, “The
request in this case is for the imposition of a variance or a nonguideline sentence to
be imposed in accordance with 18 USC Section 3553(a).” Sent. Tr. 56 (emphasis
added).

The contentions raised on appeal, see Appellant’s Brief at 19-24, that the
sentence was “unreasonable,” “greater than necessary,” and that a guideline sentence
should not apply to Ms. Deegan, were the same arguments raised before the district
court.

Defense counsel should not need to say more to preserve error in a criminal
sentence. Ms. Deegan requested a non-guideline sentence and stated reasons in
support of that recommendation. When defense counsel asserted that the prosecutor’s
recommendation called for a sentence that was flawed and excessive, and requested
a lesser sentence, the sentencing issue should be considered fully preserved. See Rita,

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551 U.S. at 345 (error raised), 351 (sentencing procedures discussed); but see United
States v. Bain, 586 F.3d 634 (8th Cir. 2009).

To state that matters raised by Ms. Deegan should be considered as plain error
is incorrect. But in any event, the procedural and substantive mistakes here are great
and require reversal under any standard of review–plain error or preserved error.6

As will be discussed more fully, the prosecutor mistakenly told the sentencing
judge:

The United States believes that the Sentencing Commission took into
account these type of events, these type of crimes when it put together
sentencing guidelines such as exist in the 1997 edition. Given that fact,
Your Honor, we believe that a guideline sentence would effectively meet
the requirements of Section 3553, all of those goals of sentencing.

6
The dissent recognizes that in the usual case where the crime is in the heartland
of the guidelines, the claim that the court did not fully consider the § 3553(a) factors
will be plain error unless the defendant objects to the sentencing judge’s analysis of
the § 3553(a) factors. See, e.g., United States v. Gray, 533 F.3d 942, 945 (8th Cir.
2008); Alvizo-Trujillo, 521 F.3d at 1018. But here we have a distinctly different
situation. This crime did not fit the guideline because it was outside the heartland.
The request by defense counsel here was for “a nonguideline sentence to be imposed
in accordance with 18 USC Section 3553(a).” Sent. Tr. 56. Moreover, the
circumstances here squarely come within 18 U.S.C. § 3553(b)(1), which states that
“[i]n the absence of an applicable sentencing guideline, the court shall impose an
appropriate sentence, having due regard for the purposes set forth in [§ 3553]
subsection (a)(2).”
Thus, when Ms. Deegan requested a non-guideline sentence, and the sentencing
judge denied the request and imposed a guideline sentence, nothing further needed to
be said to preserve the error. The failure to sentence completely outside the
guidelines, in light of the record here, should be reviewed as preserved error.

-22-
Sent. Tr. 43 (emphasis added). The sentencing judge adopted and echoed that
principle in imposing a guideline sentence of ten years and one month (121 months)
imprisonment, echoing a resounding “yes” to this incorrect advice as the court said the
guidelines are for people like you who “commit this type of crime with the same type
of criminal history that you have.” Sent. Tr. 59. And further adding, “I’m required
to impose those guidelines . . . .” Id. Such statements imply more than a presumption
that the guidelines apply to Ms. Deegan and constitute plain error. Thus, there exists
plain error in sentencing procedure leading to an excessive, improper, and unfair
sentence. See Alvizo-Trujillo, 521 F.3d at 1018.

II.

BACKGROUND

To understand the errors in sentencing, this case requires a full accounting of
Ms. Deegan’s life. All of the facts discussed below were before the district court at
the sentencing hearing and were not disputed by the government.7

A. Childhood Abuse

Ms. Deegan’s life is marked by a history of extensive and cruel abuse. Her
alcoholic father beat her on an almost daily basis and dominated every aspect of life
in the Deegan family. Ms. Deegan reported having out-of-body experiences during
the beatings, as if she was watching herself being assaulted from outside of her body.
Some of the beatings were so severe that her father kept her home from school to

7
Dr. Resnick, the expert who examined Ms. Deegan, testified that he had
reviewed FBI reports, family and medical records, and an interview with Mr. Hale and
had not found any major contradictions. In other words, the supporting documents in
the case “substantiated Ms. Deegan’s version of what had gone on in her life.” Sent.
Tr. 16.

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avoid reports to Child Protective Services. She and her siblings were eventually
removed from her parents’ house due to the abuse, placed in a variety of foster homes,
and periodically returned to her parents’ house. While in foster care, Ms. Deegan was
separated from her siblings where she experienced physical abuse from some of her
foster family members. In conversation with Dr. Resnick, Ms. Deegan said, “I think
I will be forgiven [by my maker]. I’ve lived my hell throughout my childhood.” Add.
2, p.12 (Resnick Report).

Ms. Deegan also suffered extensive and cruel sexual abuse. At five years of
age, her father’s drinking buddies began sexually abusing her. By age nine, five or
six perpetrators had forced her to participate in oral, vaginal, and anal sex. One of the
perpetrators held her head under water several times to make her submissive and
threatened her so she would not disclose the abuse.8 At age eleven, the sexual abuse
ended when Ms. Deegan finally disclosed the abuse to her mother. Her father
responded by beating her for being a “slut and allowing it to happen.” Add. 2, p. 5
(Resnick Report).

Ms. Deegan spent much of her childhood caring for and protecting her six
younger siblings. Her siblings reported that she frequently suffered physical abuse in
their stead. As an adult the abuse continued and Ms. Deegan protected her siblings
from her father’s alcoholic, depressive, and abusive states. On one occasion, her
father attacked her while she was pregnant with her second child. She jumped through
a window to escape. Add. 2, p. 7 (Resnick Report).

8
In today’s world we speak of similar conduct as a form of torture–water
boarding. The abuse this child suffered is almost beyond imagination.

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 B. Abuse from Shannon Hale

At age fifteen, Ms. Deegan began a relationship with Shannon Hale, the son of
one of her foster parents. Mr. Hale continued the abuse. On one occasion, after Mr.
Hale physically assaulted her, Ms. Deegan was admitted to a psychiatric hospital for
thirty days to receive assistance for the domestic violence she had endured. She bore
four children fathered by Mr. Hale, including the infant victim in this case.

After Ms. Deegan’s third child was born, she became depressed. At this time
in her life, Mr. Hale was physically abusing her two to three times per week, forcing
her to have sexual intercourse with him, and refusing to care for their children.9 He
was not present at any of the births or to take Ms. Deegan home after the deliveries
of the children. Mr. Hale continued abusing Ms. Deegan throughout their
relationship, including during her pregnancies. Prenatal care records document that
two days before she delivered their third child, Mr. Hale choked her and threw her
onto gravel, causing injuries that persisted for several months.10

9
FBI reports support Ms. Deegan’s account of the extensive abuse she suffered.
Mr. Hale acknowledged in an interview with the FBI that he had physically,
emotionally, and verbally abused Ms. Deegan on a regular basis. Mr. Hale further
acknowledged that he was a bad husband, Ms. Deegan was a good woman, and Ms.
Deegan had done a good job raising their children without his assistance.
10
Ms. Deegan’s medical records document this injury:

7/29/97: Twenty-four year old patient comes in to evaluate injuries
sustained in an altercation with her boyfriend last night. She is 37 weeks
pregnant. She wishes to press charges. Her boyfriend was inebriated.
Her boyfriend was with another woman. A brutal fight ensued ending
up with the patient being thrown out on the gravel with her left leg
extended at a considerable angle and this caused a major injury we are
now inspecting. The pregnancy seems to be unaffected. Diagnosis:
Multiple contusions and abrasions. Hip ligament strain left, moderately
severe. (She had her baby two days later.)

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 Despite the abuse, Ms. Deegan did not leave Mr. Hale permanently because he
repeatedly assured her that he would reduce his drinking and stop abusing her. Ms.
Deegan reported that she sometimes went to live with her parents when the abuse was
most severe, but then her father would physically and verbally abuse her. Ms. Deegan
also explained that she did not feel that she could leave Mr. Hale because of her
relationship with his mother. Ms. Deegan reported that Mr. Hale’s mother “seemed
to make things okay,” caused her to feel safe, and encouraged her to stay with Mr.
Hale for the children’s sake. Ms. Deegan feared that if she left Mr. Hale, his mother,
a prominent member of the Indian community, would acquire custody of her
children.11

When Ms. Deegan learned she was pregnant with a fourth child (the child
victim), she did not believe she was really pregnant. Ms. Deegan reported she had not
developed a plan for coping with the birth of a fourth child because she had put the
pregnancy out of her mind. She had previously suffered three miscarriages. She
reported feeling so depressed that she could barely take care of herself and her three
children.

Ms. Deegan’s state of despair and depression was not merely the result of the
physical, verbal, and sexual abuse she suffered. Ms. Deegan lived in extreme poverty
and isolation. Both Ms. Deegan and Mr. Hale were unemployed. Ms. Deegan

Add. 2, p.16 (Resnick Report).
11
Greek mythology, as related by Homer in the Odyssey, tells the tale of Scylla
and Charybdis and provides an apt metaphor of Ms. Deegan’s dire circumstances.
The story relates that two sea monsters, Scylla and Charybdis, guarded the Strait of
Messina between Sicily and Calabria in Italy and gave sailors inescapable threats–pass
close to Scylla and be eaten by the monster, or veer to the other side closer to
Charybdis and be sucked in and destroyed by a whirlpool. S.H., Butcher and A. Lang,
The Odyssey of Homer 199-200 (MacMillan & Co. 1922) (1879). In today’s
vernacular, Ms. Deegan’s choice was between a “Rock and a Hard Place.”

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sustained herself and her family on food stamps and whatever money she could
acquire to provide food for her young children: ages one, two, and five. When Ms.
Deegan obtained any money, Mr. Hale took it and bought methamphetamine.

Dr. Resnick explained why Ms. Deegan stayed with Mr. Hale before the
homicide of her fourth child:

1) Ms. Deegan was raised in a home in which she saw her father
repeatedly beat her mother. This aberrant model of marriage was
all she knew.

2) Ms. Deegan feared that if she left Shannon Hale she would lose
her relationship with the Hale family. . . . Irene Hale encouraged
her to stay with Shannon so her children would have a father.

3) Ms. Deegan had virtually no financial resources. Shannon Hale
used any available money for his alcohol and methamphetamine
addiction. Irene Hale at least made sure that Ms. Deegan had
groceries so she could feed her daughters and herself.

4) Based on Ms. Deegan’s foster care experience, she knew that
leaving one family situation sometimes resulted in a worse
situation rather than an improvement.

5) As is common in men who batter their wives, Shannon Hale told
Ms. Deegan that he would not assault her again and promised to
control his drinking and use of illegal drugs.

6) Ms. Deegan did not have a viable alternative to staying with
Shannon Hale. If she took her daughters to live in her parental
home, she and her daughters would be subjected to physical and
emotional abuse by her father. No shelter for battered women was
available in her area.

7) Ms. Deegan was fearful that if she left Shannon, Irene Hale, who
enjoyed an excellent reputation in the community, would take her

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 daughters away from her. . . . Caring for her three daughters was
the most important thing in her life. She feared that if Shannon
Hale attempted to raise her three young daughters, they would not
be safe because of his methamphetamine addiction and his
demonstrated propensity for physical abuse.

8) Ms. Deegan feared that if she sought counseling for her marital
problems, she might lose her daughters’ custody.

9) On the prior occasions when Ms. Deegan sought help from
individuals and institutions, they failed to assist or protect her.

Add. 2, p. 20-21 (Resnick Report).

C. The Birth Circumstances

On October 20, 1998, at twenty-five years of age, alone in her mobile home
with her three children, Ms. Deegan went into labor with her fourth child. She
endured the labor alone, did not tell anyone she was in labor, and delivered the child
herself. She reported not feeling anything physically from the labor and that she had
assisted the infant to breathe when he was born. Ms. Deegan cleaned, diapered, and
fed her child. She then put clothes on him, placed him in a basket, and left him in the
home alone. When asked why she left her child in the home alone, she replied:

I couldn’t take anymore. I couldn’t handle it. I had everything on my
shoulders. I couldn’t even help myself. I had nobody to help me. I had
no job, no nothing. I had all my babies to care for, a welfare mom. I had
the feeling of being worthless. What could I do? I was overwhelmed
and depressed. I didn’t want to live through any of it anymore. I didn’t
want to be there anymore, as a spouse, as a mother, as a daughter.

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Add. 2, p. 11 (Resnick Report).12 Ms. Deegan returned to her home approximately
two weeks later. Ms. Deegan put her son’s body in a suitcase and placed the suitcase
in a ditch near her home. The body was discovered approximately one year later.

With an understanding of the background of Ms. Deegan and the circumstances
surrounding the infant’s death, I turn to a discussion of neonaticide.

III.

NEONATICIDE

Forty-three years ago, psychiatrist Dr. Phillip Resnick became interested in the
topic of parents causing the death of their children. He has written nearly 100 articles,
several on neonaticide and infanticide, and frequently presents and lectures on this
subject. Every year he teaches a course on neonaticide for the American Psychiatric
Association. He is considered the foremost neonaticide expert in this country.

12
Essentially, Ms. Deegan gave the same characterization of the circumstances
to the FBI:

Deegan stated that Shannon Hale was drinking heavily and using large
amounts of drugs including methamphetamine. He was frequently gone
for days or weeks at a time. Neither Deegan nor Hale were working, and
she was having difficulty finding money to feed her children. What little
money she did manage to find, Hale would take and use for drugs.
Deegan essentially was the sole provider and care giver for herself and
her three children. She felt that having another child to care for was
more than she could handle. So, she left Baby Doe alone to die because
she felt she could not care for another child under the circumstances.

Add. 2, p. 17 (Resnick Report).

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 As defined by Dr. Resnick:

[N]eonaticide is simply the killing of a newborn infant on the first day
of life. It’s actually a term that I coined in an article I wrote in 1969
where I was distinguishing that type of killing of a baby, which has very
different characteristics, from the killing of a baby who is older or a
child. And so neonaticide has universally been accepted now as a
particular phenomenon when the baby is killed the first day of life.

Sent. Tr. 16.

Dr. Resnick and other scholars explain the circumstances that lead to this tragic
crime. Such a mother is often in an overwhelming state of desperation at the time of
her infant’s birth and lacks adequate resources to mentally handle the situation of
delivering a child.13 She often conceals and denies her pregnancy, lacks insight into
the situation, shows poor judgment, is cognitively immature with limited intelligence,
and lacks sufficient coping skills.14 “[The] commonly reported profile [of a homicidal
mother] describes a woman usually in her twenties, who grew up or currently lives in
poverty, is under-educated, has a history of abuse (both physical and sexual), remains
isolated from social supports, has depressive and suicidal tendencies, and is usually
experiencing rejection by a male lover at the time of the murders.”15

“Although the majority of women who commit neonaticide do not have any
long-term psychological pathologies, it is likely that often they experience abnormal

13
See Drescher-Burke, K., Krall, J., and Penick, A., Discarded infants and
neonaticide: A review of the literature, Berkeley, CA: National Abandoned Infants
Assistance Resource Center, University of California at Berkeley, 4-5 (2004).
14
Id.
15
See Janet Ford, Note, Susan Smith and Other Homicidal Mothers – In Search
of the Punishment that Fits the Crime, 3 Cardozo Women’s L.J. 521, 538 (1996).

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mental functioning during their pregnancies.”16 “During a homicidal episode,
therefore, a mother may view a child as a mere extension of herself rather than as a
separate being. A mother’s suicidal inclinations may often transform into filial
homicide. In other words, killing her children may be much like killing herself.”17

In preparing to testify, Dr. Resnick conducted a six-hour interview of Ms.
Deegan and reviewed the relevant FBI, medical, psychiatric, and school records. He
diagnosed Ms. Deegan with suffering or having suffered from the following three
psychiatric disorders:

Major Depressive Disorder, recurrent, severe, without psychotic features
at the time of the homicide, now in partial remission.

....

Posttraumatic Stress Disorder, chronic.

This diagnosis is supported by Ms. Deegan’s history of exposure to
multiple traumatic events as a child of physical and sexual abuse. At the
time she had intense feelings of helplessness, horror, and the fear of
dying. . . .

Dysthymic Disorder

This diagnosis is based on the fact that during Ms. Deegan’s childhood
she had a depressed mood for most of the day for more days than not for
several years. Her depression was manifested by overeating, insomnia,
low self esteem, and feelings of hopelessness.

Add. 2, p.13 (Resnick Report). Dr. Resnick explained that at the time Ms. Deegan
delivered her infant, she was severely depressed, overwhelmed by the state of her life,

16
See Drescher-Burke, et al., supra note 9, at 5.
17
See Ford, supra note 11, at 538.

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and “simply did not have the psychological resources to care for a fourth child.” Sent.
Tr. 36.

Dr. Resnick further testified that women who commit neonaticide are unable
to cope with the pregnancy and endure great pain at the expense of keeping the child’s
birth a secret:

[Such women] are willing to put themselves through a great deal of
anguish. They often will deliver the baby with no anesthesia, no pain
relief, no emotional support. They’ll stifle their screams, and that is how
intensely important it is for them not to have their family, who may be
in the house, actually know that they’re pregnant and having a baby.

Sent. Tr. 33.

The manner in which Ms. Deegan delivered her child conforms with other
women’s acts of neonaticide. Ms. Deegan gave birth to the infant in the shower and
kept the birth a secret. She coped with the pain of childbirth by dissociating.18 Dr.
Resnick explained that just as Ms. Deegan had endured sexual assaults as a child by
having out-of-body experiences, she used dissociation to separate herself from the
intense pain of delivering the infant.

Dr. Resnick also addressed Ms. Deegan’s belief that she was not pregnant. Dr.
Resnick explained that, as is common in cases of neonaticide, Ms. Deegan neither
planned for the killing of the infant or for the caring of the infant. As he succinctly
stated, “They just put it out of their minds.” Sent. Tr. 28-29. Dr. Resnick further
testified that in Ms. Deegan’s case, it was particularly easy for her to convince herself
that she was not pregnant because she had previously miscarried three times and had
experienced regular menstrual spotting during her prior pregnancies. Dr. Resnick

18
Dissociation is “like an out-of-body experience” wherein the integrative
functions of the mind are dissociated from perception and experience. Sent. Tr. 35.

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explained that even though Ms. Deegan may have known she was pregnant, she may
have made the assumption that she might miscarry or just did not accept that she was
truly pregnant.

Dr. Resnick also testified that the manner in which Ms. Deegan carried out the
neonaticide indicated that it was an impulsive act. He explained, unlike one who
hides evidence of a crime, Ms. Deegan left her infant in a place where he “might have
been discovered and she would be caught.” Sent. Tr. 29.19 Dr. Resnick explained that
such conduct is not what one would expect from someone who is planning to take
another’s life and seeks to “get away with it.” Sent. Tr. 29. He further explained that
despite her psychological inability to cope with raising the child, Ms. Deegan still
sought to keep the infant close to her home because of her emotional attachment to
him.20 Dr. Resnick reasoned, “had it been other circumstances, [Ms. Deegan] would
have cherished the baby.” Sent. Tr. 30.

Finally, Dr. Resnick testified that Ms. Deegan did not have a significant support
system from her family and community. She lived in a mobile home in a rural area
of North Dakota. She lacked the financial resources to leave her abusive and troubled
family life. Ms. Deegan did not have outreach services with which she could have
received assistance, nor were there shelters for victims of domestic violence. At the
time of her actions, North Dakota did not yet have a Safe Haven Law, whereby
parents could bring a child for which they felt unable to provide care.21 Further,
individuals and institutions had consistently failed Ms. Deegan when she needed help.

19
Ms. Deegan left the infant fifty yards from her home.
20
When questioned as to why she placed the infant so close to her home, Ms.
Deegan replied, “I wanted the baby close to me and I did not want to let him go.”
Add. 2, p. 12 (Resnick Report).
21
North Dakota enacted a Safe Haven Law in 2001. See N.D.C.C. § 50-25.1-15.

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 It is apparent from Ms. Deegan’s background and the expert testimony in this
case that every adverse factor that may play some role in neonaticide was suffered to
an advanced degree by Ms. Deegan. As the dissent shows below, the district court
made two critical errors in evaluating the record. First, the court thought the
guidelines applied to this case. Second, the court recognized this testimony but failed
to properly apply this important evidence in imposing its sentence.

IV.

REVIEW OF SENTENCING

A. Inapplicability of second-degree murder guidelines

Ms. Deegan’s crime of neonaticide was a unique sort of homicide and
completely unlike the usual and ordinary killings that constitute second-degree murder
under federal law. As I have already observed, federal courts do not ordinarily deal
with these types of cases, which may be grist for the mills of state courts. Only
because this neonaticide occurred on an Indian reservation does this case become one
of federal jurisdiction. There exists no basis in the statements of the Sentencing
Commission or in reviewing federal appellate second-degree murder cases to conclude
that the crime of neonaticide comes within the federal second-degree murder
sentencing guidelines.

First, consider the Sentencing Reform Act of 1984 and the goals of the United
States Sentencing Commission. It is axiomatic that the Sentencing Reform Act,
through the imposition of mandatory guidelines, worked a sea-change in federal
sentencing. But even then, Congress recognized that the goals of certainty and
uniformity must in some instances yield to unique circumstances:

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 These provisions introduce a totally new and comprehensive
sentencing system that is based upon a coherent philosophy. They rely
upon detailed guidelines for sentencing similarly situated offenders in
order to provide for a greater certainty and uniformity in sentencing.

S. Rep. No. 98-225, at 38, reprinted in 1984 U.S.C.C.A.N. 3182, 3221 (emphasis
added). Likewise, the Sentencing Commission instructs that:

The sentencing court must select a sentence from within the guideline
range. If, however, a particular case presents atypical features, the Act
allows the court to depart from the guidelines and sentence outside the
prescribed range.

U.S.S.G. ch.1, pt. A, intro cmt. n.2 (1997) (emphasis added). Thus both Congress and
the Commission contemplated that not every crime would fall within the ambit of the
guidelines.

The presentence report is lamentable in this regard. Despite the seemingly
obvious fact that neonaticide is an unusual crime in federal court, the presentence
report makes no mention that this is an “atypical” case. Even more distressing, the
presentence report fails to indicate much in the way of the abusive circumstances Ms.
Deegan faced during her childhood and at the time she gave birth to the infant victim.
These circumstances, detailed so graphically in this dissent, were simply not a part of
the presentence report, which asserted that no factors warranted departure from the
guidelines.

Far worse than the omissions from the presentence report were the prosecutor’s
statements at sentencing, which lack any basis in fact or law, about the applicability
of the guidelines to Ms. Deegan’s conduct. At sentencing, Ms. Deegan’s counsel
requested a non-guideline sentence. But the prosecutor mistakenly informed the

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district court that the Sentencing Commission took this type of crime into
consideration in adopting the guidelines for second-degree murder:

MR. HOCHHALTER: Yes, Your Honor. Your Honor, the
United States Sentencing Commission was in existence back as early as
the late eighties and certainly at the time of this event, and certainly at
the time of events across the country where, as Dr. Resnick has pointed
out, this has been occurring for many years. The United States believes
that the Sentencing Commission took into account these type of events,
these type of crimes when it put together sentencing guidelines such as
exist in the 1997 edition. Given that fact, Your Honor, we believe that
a guideline sentence would effectively meet the requirements of Section
3553, all of those goals of sentencing.

Sent. Tr. 42-43 (emphasis added). After this statement, defense counsel again urged,
to no avail, that a guideline sentence was far greater than necessary.

Despite defense counsel’s request, the district court determined – entirely
without precedent – that the guidelines apply to “this type” of crime and that it
believed application of the guidelines was “reasonable.” The court stated:

Well, I have carefully reviewed the presentence report, and I adopt
the factual findings and the sentencing guideline calculations spelled out
in that presentence report that establish that this offense carries a total
adjusted offense level of 32, a criminal history category of 1.

....

We have sentencing guidelines in the federal system that are
designed to ensure that sentences are consistent and uniform throughout
the country for people that commit this type of crime with the same type
of criminal history that you have. The sentencing guidelines have been
in effect for almost 20 years, and they are designed to provide some
honesty in sentencing and to achieve some consistency in the federal

-36-
 system, and they’re based upon an analysis of hundreds of thousands of
cases. Every year there are hundreds of thousands of cases that – in
which defendants are sentenced around the country, and the Sentencing
Commission compiles all that data and they try to develop sentencing
guidelines that are fair and are reasonable.

In this case the sentencing guidelines provide for a sentence range
of 121 to 151 months. That’s 10 to 12-and-a-half years. I’m required to
impose those guidelines that were in effect in October of 1998.

....

Pursuant to the Sentencing Reform Act of 1984, it’s my judgment,
Ms. Deegan, that you shall be committed to the custody of the Bureau of
Prisons to be imprisoned for a period of 121 months. I am agreeing with
the Government’s recommendation in this case and adhering to the
guidelines because I believe that they are reasonable.

Sent. Tr. 55, 59, 60-61 (emphasis added). Notwithstanding the district court’s belief,
no basis exists to place neonaticide within the mine-run guidelines for second-degree
murder.

The foundation statements for application of the sentencing guidelines in this
case amounted to error of great proportions. Once Dr. Resnick’s report became
known, a modicum of research by any of the persons engaged in the sentencing
process would have easily disclosed that the guidelines did not contemplate crimes

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such as Ms. Deegan’s.22 An obligation to inform the judge of the applicable
sentencing procedures and law rested on the prosecutor.

In the seminal case of Koon v. United States, 518 U.S. 81 (1996),23 the Court
explained that the then-mandatory guidelines carve out a “heartland” of typical cases
and the Court provided an approach for delineating which cases fall within that
heartland. Koon concerned the well-publicized conduct of Los Angeles police
clubbing an arrestee, Rodney King, with their police batons. Id. at 86-87. In Koon,
the applicable guidelines called for a sentencing range of 70 to 87 months’
imprisonment for the convicted police officers. Id. at 89. The district court granted
a downward departure for several reasons, which the Ninth Circuit rejected. United
States v. Koon, 34 F.3d 1416 (9th Cir. 1994). The police officers petitioned for
certiorari to the United States Supreme Court. Koon, 518 U.S. at 91.

In the process of reviewing the sentence, the Court explained the difference
between ordinary or typical guideline cases and the “unusual” one:

22
The majority claims, “The [district] court never suggested that the Sentencing
Commission based the guideline on an analysis of hundreds of thousands of
‘neonaticide’ cases, or that Deegan’s offense was a typical fact pattern for second-
degree murder.” Maj. op. at 12. The record does not support such an interpretation.
I emphasize again the district court’s statement: “We have sentencing guidelines in
the federal system that are designed to ensure that sentences are consistent and
uniform throughout the country for people that commit this type of crime with the
same type of criminal history that you have.” Sent. Tr. 59 (emphasis added).
23
Koon was superseded on other grounds by statute. See 18 U.S.C. § 3742(e)
(providing for de novo review of departures). See also Rita, 551 U.S. at 361 (Stevens,
J., concurring). But of course, de novo review no longer applies after United States
v. Booker, 543 U.S. 220 (2005).

-38-
 A district judge now must impose on a defendant a sentence falling
within the range of the applicable Guideline, if the case is an ordinary
one.

....

The Commission intends the sentencing courts to treat each
guideline as carving out a ‘heartland,’ a set of typical cases
embodying the conduct that each guideline describes.
When a court finds an atypical case, one to which a
particular guideline linguistically applies but where conduct
significantly differs from the norm, the court may consider
whether a departure is warranted.

....

The Commission, in turn, says it has formulated each Guideline to apply
to a heartland of typical cases. Atypical cases were not “adequately
taken into consideration,” and factors that may make a case atypical
provide potential bases for departure.

Id. at 92-94 (internal citations omitted) (emphasis added).

The Supreme Court noted that because of Mr. King’s provocative behavior, the
guidelines should not apply. Id. at 105. The Court quoted the district court’s analysis
of heartland cases:

However, the convicted offenses fall under the same Guideline Sections
that would apply to a jailor, correctional officer, police officer or other
state agent who intentionally used a dangerous weapon to assault an
inmate, without legitimate cause to initiate a use of force.

-39-
 The two situations are clearly different. Police officers are always
armed with ‘dangerous weapons’ and may legitimately employ those
weapons to administer reasonable force. Where an officer’s initial use
of force is provoked and lawful, the line between a legal arrest and an
unlawful deprivation of civil rights within the aggravated assault
Guideline is relatively thin. The stringent aggravated assault Guideline,
along with its upward adjustments for use of a deadly weapon and bodily
injury, contemplates a range of offenses involving deliberate and
unprovoked assaultive conduct. The Guidelines do not adequately
account for the differences between such ‘heartland’ offenses and the
case at hand.

Id. at 102-03 (quoting Koon v. United States, 833 F. Supp. 769, 787 (C.D. Cal. 1993)).

Applying this rationale, whether Ms. Deegan’s conduct fell outside the
heartland and therefore was not contemplated by the sentencing guidelines depends
on whether her conduct significantly differed from the norm. “The norm” is certainly
not what we have here–an American Indian woman so beset by the serious problems
in her life she cannot cope with another child, cannot think with logic, and believes
she has no alternative but to run away and abandon her newborn child. Tragic yes,
typical no!

Is that just this writer’s assumption? What is in and what is out of the
heartland? To determine whether the Commission contemplated neonaticide by a
mother in its guidelines for second-degree murder, this writer inquired of the
Sentencing Commission. The response from Glenn Schmitt, Director of the Office
of Research and Data for the United States Sentencing Commission, is of great
interest:24

24
This December 8, 2008, letter is on file in this writer’s office. This writer
provided copies to the panel.

-40-
 We reviewed 157,000 federal criminal cases sentenced since June 2006
(the date when our records became stored electronically, which enables
us to review them more quickly than when they were stored off-site in
paper). We found 605 cases in which the guideline providing for the
highest punishment as either murder (2A1.1), 2nd degree murder
(2A1.2), voluntary manslaughter (2A1.3), or involuntary manslaughter
(2A1.4). Of these, the offender was a woman in 51 cases. We’ve gone
back into each of the 51 cases and reviewed them in light of your
inquiry.

....

In only one case did we find facts that meet the definition of neonaticide.
In that case a 26-year-old mother gave birth to a child (her fourth) at
home. She cleaned him, diapered[] him[,] dressed him, and fed him.
She then placed him in a basket and left eh [sic] house with her other
three children leaving the baby alone for two weeks. She testified that
she knew the baby would die. When she returned and found him dead,
she placed him in a suitcase and placed the suitcase in a ditch near her
residence on an Indian reservation where it was discovered.

....

. . . As you can see from this analysis, cases like this are exceedingly rare
in the federal system. . . .

Mr. Schmitt’s letter reflects that the Sentencing Commission was unable to locate
another case of neonaticide besides the present case, which it described. Similarly,
my research of non-habeas, federal appellate second-degree murder cases from 1975

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to the present discloses only one other clear case of neonaticide, with a drastically
lesser sentence than that imposed on Ms. Deegan.25

Further, Rita v. United States, 551 U.S. 338 (2007), makes clear that the district
court erred in imposing a guideline sentence. In Rita, the Court reaffirmed that the
Sentencing Commission intended for the guidelines to apply to the typical case but not
to cases outside the “heartland.” See Rita, 551 U.S. at 351 (“[The judge] may hear
arguments by prosecution or defense that the Guidelines sentence should not apply,
perhaps because (as the Guidelines themselves foresee) the case at hand falls outside
the ‘heartland’ to which the Commission intends individual Guidelines to apply,
USSG § 5K2.0[.]”). As the Court further explained, in a run of the mine case, the
“Guidelines [ ] seek to embody the § 3553(a) considerations, both in principle and in
practice.” Id. at 350. Therefore, “[a]n individual judge who imposes a sentence
within the range recommended by the Guidelines thus makes a decision that is fully
consistent with the Commission’s judgment in general.” Id.

Rita establishes that no neonaticide case was considered in developing the
guidelines. The Court in Rita stated that the Commission employed an empirical
approach when developing the guidelines by examining tens of thousands of
sentences. Id. at 349. The paucity of reported federal cases illustrates that neonaticide

25
I briefly mentioned the Tom case in my introduction. In Tom, on appeal after
reversal and remand in United States v. Tom, 494 F.3d 1277 (10th Cir. 2007), the
Tenth Circuit affirmed a variance from the second-degree murder guideline range of
168-210 months to 70 months’ imprisonment for a boyfriend who assisted in the
killing of his 15-year-old girlfriend’s son. 327 F. App’x at 94. This teenager gave
birth in the bathroom of her mother’s trailer on the Navajo Reservation, pleaded guilty
to first-degree murder, and was sentenced to 44 months’ probation. 327 F. App’x at
99. It is worthy of special note that this crime was committed on an Indian reservation
and the defendants were sentenced in a federal district court.

-42-
cases were not included in the sampling. Thus, a neonaticide case clearly falls outside
the “heartland” for second-degree murder sentences. Moreover, because neonaticide
is not accounted for by the guidelines, a guideline sentence is not “a decision that is
fully consistent with the Commission’s judgment in general.” See id. at 350.

When the prosecutor asserted, “[t]he United States believes that the Sentencing
Commission took into account these types of events,” Sent. Tr. 43, it is obvious that
he had done no legal or other research on the matter. Yes, the Sentencing
Commission examined second-degree murder cases when it formulated the guidelines
for that offense. But that certainly does not mean the Commission contemplated
neonaticide when formulating a sentencing range for second-degree murder offenses.

The prosecutor’s incorrect statement became an error of law when the judge
agreed that a guideline sentence needed to be applied. The judge believed that the
guideline sentence in this particular case was “reasonable” because “[the guidelines]
are designed to provide some honesty in sentencing and to achieve some consistency
in the federal system, and they’re based upon an analysis of hundreds of thousands of
cases.” Sent. Tr. 59. The judge stated that the guidelines apply “for people that
commit this type of crime with the same type of criminal history that you [Ms.
Deegan] have.” Id. (emphasis added). But this conclusion is wrong.

In Gall v. United States, 552 U.S. 38 (2007), the Court affirmed the sentencing
principles described in Rita.26 The Court made clear that a district court should begin

26
In describing Rita, the Court in Gall stated, “we held that when a district
judge’s discretionary decision in a particular case accords with the sentence the United
States Sentencing Commission deems appropriate ‘in the mine run of cases,’ the court
of appeals may presume that the sentence is reasonable.” 552 U.S. at 40 (quoting
Rita, 551 U.S. at 351).

-43-
all sentencing proceedings by correctly calculating the applicable guidelines range and
that the guidelines apply in “mine run” cases. Gall, 552 U.S. at 40, 49. This case falls
so far from the heartland of guideline sentencing that it is a complete stranger to
crimes ordinarily charged and considered as second-degree murder. As such, the
district court significantly erred in sentencing when it concluded that the guidelines
provided a “reasonable” sentence for neonaticide.

The inapplicability of the second-degree murder guidelines to this case requires
reversal and remand. The district court should not have applied a guideline sentence
because this is not a “mine run” case. Instead, the district court should have focused
significant attention on the § 3553(a) factors. As detailed in the following section,
Rita explains that the appropriateness of a district court’s § 3553(a) analysis depends
on the circumstances of the case. 551 U.S. at 356. The circumstances here require a
detailed and thorough analysis of the statutory sentencing factors, which the
sentencing judge failed to do.

The majority reasons that Ms. Deegan’s sentence is proper even if the case is
not a run-of-the-mine case. Maj. op. at 14. That approach is wrong. Ms. Deegan’s
crime is not a run-of-the-mine case. The district court erred at the first step of the
sentencing procedure. See Rita, 551 U.S. at 350-51. Based on Rita and Gall, the
district court erred in sentencing Ms. Deegan, and her sentence must be vacated.

-44-
 B. Presumption of Reasonableness

The district court stated it was “required” to impose the guidelines that were in
effect in 1998. Sent. Tr. 59. This amounts to a presumption and more that the
guideline is reasonable. The further comment, “I am agreeing with the Government’s
recommendation in this case and adhering to the guidelines because I believe that they
are reasonable[,]” in effect presumed the guidelines sentence was reasonable. Sent.
Tr. 61. Such an approach is plain error in this circuit. See Alvizo-Trujillo, 521 F.3d
at 1018 (stating that language that such a presumption applies is “a significant
procedural error”); Greene, 513 F.3d at 907.

Rita makes clear that “[i]n determining the merits of these arguments [that the
guidelines should not apply], the sentencing court does not enjoy the benefit of a legal
presumption that the guidelines sentence should apply.” 551 U.S. at 351 (emphasis
added). Further, as stated in Greene, the district court’s mandate is not to impose a
“reasonable” sentence, but “to impose ‘a sentence sufficient, but not greater than
necessary, to comply with the purposes’ of § 3553(a)(2).” 513 F.3d at 907 (quoting
United States v. Foreman, 436 F.3d 638, 644 n.1 (6th Cir. 2006)).

C. Section 3553(a)

I dissent from the majority’s conclusion that the district court did not err in
considering the 18 U.S.C. § 3553(a) factors.

In discussing sentencing procedure, the Court in Rita observed that the
sentencing court must give reasons for the sentence “in the typical case.” 551 U.S. at
356-57. Importantly, the Court adds:

-45-
 The appropriateness of brevity or length, conciseness or detail, when to
write, what to say, depends upon circumstances.

....

In the present context, a statement of reasons is important. The
sentencing judge should set forth enough to satisfy the appellate court
that he has considered the parties’ arguments and has a reasoned basis
for exercising his own legal decisionmaking authority. . . .
Circumstances may well make clear that the judge rests his decision
upon the Commission’s own reasoning that the Guidelines sentence is a
proper sentence (in terms of § 3553(a) and other congressional
mandates) in the typical case, and that the judge has found that the case
before him is typical.

Id.

As explained, Ms. Deegan’s crime was not “the typical case.” Therefore, the
district court could not just rely upon the Sentencing Commission’s reasoning that the
guideline sentence is a proper one. Instead, the district court needed to consider all
of the § 3553(a) factors and make an individualized assessment based on the facts
presented. Gall, 552 U.S. at 49-50.

The § 3553(a) factors include:

(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;

(2) the need for the sentence imposed–

(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense;

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 (B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the
defendant; and

(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional treatment
in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for–

(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guidelines–

....

(5) any pertinent policy statement–

....

(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar
conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a). With respect to § 3553(a), the sentencing judge made these
comments at the sentencing hearing:

The request in this case is for the imposition of a variance or a
nonguideline sentence to be imposed in accordance with 18 USC Section

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3553(a). And I am very familiar with each and every one of those
sentencing factors that I’m required to consider in every case. And
believe me, I’ve carefully considered them in this case.

....

In this case I have spent considerable time reflecting not only on
the presentence report, but on the sentencing memorandums of the
parties. I’ve carefully reviewed Dr. Peterson’s psychological evaluation
that I ordered. I’ve carefully reviewed Dr. Resnick’s report. I’ve read
it over at least three times. I’ve read every letter that was submitted in
this case, letters of support. I have reviewed the DVD that was shown
here in the courtroom several times. I’ve considered the testimony of Dr.
Resnick today and the arguments of counsel.

And I was very impressed with Dr. Resnick’s report and his
testimony here today. To me it was helpful and insightful, and I have
real respect for his opinions. He has – he’s a nationally renowned
specialist who has testified in some of the most famous cases that we
have experienced here in the United States. And his report was a very
reasonable, insightful report, and I have far better insight into what went
on in this case after reviewing Dr. Resnick’s report than I ever had at the
time that I took a change of plea from Ms. Deegan.

And I certainly have a much better understanding today as to all
the contributing factors and stressors that existed in her life back in 1998.
And I know that you haven’t had an easy life, Ms. Deegan. I know that
it was plagued with physical abuse and sexual abuse, both at the hands
of your father and the hands of the father of your children.

....

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 And believe me, I have real compassion for you and your family
and what you have gone through. . . .

But I also need to ensure that justice is done, and I don’t know if
anybody knows what justice is in this case. I reflected upon Mr.
Hochhalter’s [the prosecutor’s] comment in his brief that justice lies
between the extremes of public opinion, and that’s probably a pretty fair
assessment of where things lie in this case.

But after careful review of this entire record, I have in this case –
and I’m aware of my discretion and authority to impose a nonguideline
sentence or to depart from the guidelines. I have chosen in this case to
impose a guideline sentence. I’m not going to exercise my discretion
and depart and impose a nonguideline sentence because I believe that the
sentence range that’s been provided for in the sentencing guidelines in
this particular case is reasonable. . . .

Sent. Tr. 56-59.

The majority finds this a satisfactory analysis of the § 3553(a) factors. I do not.
The district court demonstrates familiarity with the sentencing record, but offers no
analysis of the record as it relates to the statutory factors.

To be sure, the district court states, “I have carefully considered all of the
factors.” But this statement does not constitute an “explanation” for why a ten-year
sentence is sufficient but not greater than necessary. See Gall, 552 U.S. at 51 (stating
a failure to “adequately explain” a chosen sentence is significant procedural error).
A “statement of reasons” explaining a particular sentence is not equivalent to stating
“I have considered all of the factors.” As explained in Rita, “[i]n the present context
[§ 3553(a) analysis], a statement of reasons is important. The sentencing judge should
set forth enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decisionmaking

-49-
authority.” 551 U.S. at 356.27 In my view, the district court never justified its
sentence under § 3553(a). It becomes so very plain that the district court made the
choice of a guideline sentence. However, it must follow that if the guidelines do not
apply to Ms. Deegan’s non-heartland crime, the court needed to explain its sentence
with respect to every factor under § 3553(a) in order to arrive at a proper sentence.
The district court’s “reasons” for imposing this sentence are wholly inadequate.

The district court states, “I cannot ignore the fact that there was an innocent life
that was lost, but believe me, I understand why you took the steps that you did. . . .”
Sent. Tr. 60. This seems to be a “reason” for the sentence. But every neonaticide
causes the death of a newborn child. That statement alone cannot justify this ten-year
sentence.

The district court states, “I don’t know if anybody knows what justice is in this
case,” but justice is reflected by the brief of the prosecutor that “justice lies between
the extremes of public opinion. . . .” Sent. Tr. 58. Wrong! Public opinion should not
factor into a sentence. The factors are those in section 3553(a). Public opinion is not
disclosed by the record in this case.

The district court states it was “obligated to apply the [1998] guidelines,” and
also noted that if it applied the 2008 Guidelines in effect at the time of sentencing, Ms.
Deegan’s sentence “would be in the range of 19-and-a-half to 24-and-a-half years.”
Sent. Tr. 55, 59-60. Wrong! The faulty underlying premise of both comments is that
the guidelines contemplated neonaticide.28
27
I recognize that § 3553(a) does not “insist” upon a full opinion in every case,
Rita, 551 U.S. at 356, but in a case like this, which presents circumstances far outside
the ballpark of normal cases, see Rita, 551 U.S. at 365 (Stevens, J., concurring), the
district court’s explanation for imposing a ten-year sentence is insufficient. Here we
have unstated “considerations” but almost nothing more.
28
Furthermore, applying the guidelines in effect at the time of sentencing may
be unconstitutional. See Maj. op. at 10.

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 The other “reason” offered by the district court for its sentence is the belief that
a guideline sentence is reasonable. This is simply not supported by the law. As
previously discussed, this is not a mine-run case to which the second-degree murder
guidelines apply. In other words, the district court could not simply “rest[] his
decision upon the Commission’s own reasoning that the Guidelines sentence is a
proper sentence. . . .” Rita, 551 U.S. at 357. Unfortunately, the district court did
exactly that in sentencing Ms. Deegan.

But even more erroneous, in finding the guidelines “reasonable,” the district
court stood sentencing procedure on its head. As explained in Greene, a district
court’s job is not to impose a “reasonable” sentence. 513 F.3d at 907. The district
court’s job is to impose a sentence sufficient but not greater than necessary to comply
with the purposes of § 3553(a). Id. Reasonableness is the appellate standard of
review in judging whether a district court has accomplished that task. Id. Analysis
of the § 3553(a) factors demonstrates the unreasonableness of Ms. Deegan’s ten-year
sentence.

1. Circumstances of the offense and characteristics of the defendant

This dissent amply describes the nature and circumstances of the offense and
the history and characteristics of the defendant. This factor favors leniency. The
district court never explained how the nature and circumstances of the offense and
history and characteristics of Ms. Deegan supported its determination that a ten-year
sentence was sufficient but not greater than necessary.

2. Deterrence and recidivism

As to deterrence, Dr. Resnick testified that incarcerating Ms. Deegan would not
likely deter other individuals from committing neonaticide. He explained that
deterrence was unlikely for several reasons, including:

-51-
 [T]hat since Ms. Deegan’s crime, safe haven laws have been passed in
all 50 states, and now if a woman feels overwhelmed by a baby, whether
she’s a teenager or whatever, she can drop that baby off at a hospital or
a police station, no questions asked, and not have to kill the baby. And
there have been more than a thousand drop-offs since those laws have
begun to be passed in 1999.

Secondly, when a women [sic] commits neonaticide, most of the
cases it is a teenager. Actually, the mean age for neonaticide in the
United States is age 19, and most of these young women are . . . willing
to put themselves through a great deal of anguish.

....

And women who are willing to put themselves through that I don’t
think are going to be significantly influenced by whether someone is
sentenced to ten years or two years or probation.

Sent. Tr. 33-34.

As to recidivism of Ms. Deegan, Dr. Resnick stated:

Ms. Deegan presents an extremely low risk that she would commit any
further conduct which was criminal in nature. With regard to harming
a future baby, that’s a nonissue because Ms. Deegan has had a tubal
ligation. She’s not going to have any more babies.

With regard to other criminal conduct, Ms. Deegan has been a
law-abiding citizen her entire life, has no juvenile offenses, no adult
offenses, not an alcohol or drug abuser, which is associated with
criminality, has shown considerable remorse for what she has done, and
is no longer in the desperate situation that she was in October 1998,
where she was abused, overwhelmed, did not feel that she could care for

-52-
 the baby, didn’t feel she could keep her babies – her three existing
children safe if she was overwhelmed with another baby.

And the one follow-up study which has been done in women who
have killed newborn children shows that most of them go on to marry
and be good mothers, and that suggests that this is a crime which is
based upon circumstances as opposed to bad character in the perpetrator.

And in Ms. Deegan’s case, we have an example of where she has
already in the nine years between the act and being brought to trial, has
already demonstrated the quality of being a good mother, so rather than
have to prognosticate, we have a nine-year period where we can show
that she has got her life together, been a good mother, and not been a risk
to the community.

Sent. Tr. 31-32. Dr. Resnick added:

[In spite of the abuse to Ms. Deegan], she has been a devoted, caring
mother and made every effort to protect her children, raise her children
to be good citizens so that – you know, there are occasions when there’s
what’s called a cycle of violence where children who are abused go on
to abuse their children. Not all mothers do that, but some do, and Ms.
Deegan has taken a protective role and made sure that her children are
well cared for.

Sent. Tr. 32.

As this testimony shows, the evidence before the district court overwhelmingly
established that incarcerating Ms. Deegan would not deter others from committing
neonaticide and that Ms. Deegan would not commit future crimes.

As with the first sentencing factor, the district court never addressed what role
deterrence and recidivism played in its ten-year sentence. Thus appellate review
-53-
seems limited to noting that (1) this factor favors leniency; and (2) the district court
never expressly discussed this factor.

3. Seriousness of offense

Of course neonaticide is a serious offense–as is any offense causing loss of life.
Dr. Resnick provided some interesting background as to how other governments look
at neonaticide.

There are 26 countries that have a particular law called an infanticide
statute. This exists in Canada. It exists in England. It exists in
Australia. And these countries have recognized that a woman taking a
young baby is sometimes due to psychiatric factors, and finding them
guilty of murder just does not comport with their sense of justice. So the
persons found guilty of infanticide, rather than murder, have the
equivalent sentence of voluntary manslaughter, rather than murder. And
in England, most of these women who are found guilty of infanticide are
placed on probation. They’re not considered a danger to the community.

Sent. Tr. 30.

Despite all of the reasons given by defense counsel, the prosecutor and court’s
sole reason (besides reliance on the guidelines) for imposing a ten-year prison
sentence was the tragic death of the infant. While it is tragic that a life was lost, that
is the nature of any neonaticide. That alone is not sufficient to justify this sentence.

4. Family ties

While the guidelines do not ordinarily consider matters such as family ties, such
a consideration is permissible under § 3553(a). Rita, 551 U.S. at 364-65 (Stevens, J.,
concurring). The defense presented and the court received as evidence a DVD relating
-54-
to the Deegan family. In that presentation, Ms. Deegan’s younger sister related that
Ms. Deegan protected her small siblings against the vicious abuses which their father
sought to inflict.

Also Ms. Deegan’s children exhibited their Native Indian regalia made by Ms.
Deegan. The youngest child described Ms. Deegan as smart, pretty, and elegant.

In her allocution, Ms. Deegan spoke of her children’s needs for her:

I’ve written a letter I’d like to read to you. [Judge], with respect
to the Court, my family and my community, I am humbly addressing you
today asking for a downward departure from the sentencing guidelines,
not for my own sake, but for the sake of my daughters. They are at the
age where they need me most now. I have spent my life trying to protect
them from all [ ] that I had to endure. They need me to guide them, to
love them and help them get through this difficult time, and to continue
to help them grow to be grown good women.

Sent. Tr. 54.

Instead of the prosecutor acknowledging that the children’s needs can play a
role in reducing a federal sentence, he justified the guideline sentence saying, “[T]he
punishment that comes to those siblings as well comes at the hand of the defendant.
Basically her choice is what has caused all of this.” Sent. Tr. 53. With respect to
these comments, I offer this observation as to the laying of blame. There is plenty of
blame to go around. Ms. Deegan’s father is dead. But what blame should be placed
on Mr. Hale who did not support the children he fathered and consistently abused Ms.
Deegan? And what about the failures of society to assist Ms. Deegan in her travail?

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 When it comes to blame, Dr. Resnick’s report needs to be recalled:

a) When Ms. Deegan reported being the victim of sexual abuse to
her mother at age 11, she reasonably expected protection from
further abuse. Instead, she received a beating from her father for
“whoring.”

b) After being removed from her parents by the Child Protective
Service, Ms. Deegan reasonably expected protection from further
abuse. Instead, she was later returned to her parents and suffered
further physical abuse from her father. Furthermore, while in
some foster homes, she was physically abused.

c) When Ms. Deegan became a foster daughter to Irene Hale, she
reasonably expected to be safe from physical abuse. Instead, she
was physically abused by Irene’s son, Shannon Hale.

d) When Ms. Deegan participated in joint therapy sessions with
Shannon Hale in his substance abuse treatment, she reasonably
expected Shannon’s behavior to improve. Instead, Shannon beat
her for “running her mouth.”

e) When Ms. Deegan filed for a restraining order against Shannon
Hale, she reasonably expected protection. Instead, a court officer
took Shannon home to their trailer drunk.

Add. 2, p. 21 (Resnick Report).

Indeed, the great improvement in lifestyle by Ms. Deegan after escaping her
abusive home meant a better life for her family. Did the prosecutor or the district
court give any weight to that accomplishment? No! Yet that factor lends strong
support to a lenient prison sentence. See Gall, 552 U.S. at 59 (stating that the district
court gave this factor “great weight”).

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 5. Promoting respect for the law and avoiding disparity

A district court should consider whether a sentence promotes respect for the law
and consider the need to avoid unwarranted disparity among defendants who have
been found guilty of similar conduct. 18 U.S.C. § 3553(a)(2)(A) and (a)(6).

The sentencing record reveals that defense counsel informed the court of
another neonaticide crime in the State of North Dakota, but committed by a young
woman, off the Indian reservation and, thus, subject to North Dakota state laws. As
the defense counsel described the case:

There was an NDSU student who gave birth to a child, wrapped
the baby up, stuck the child under a bed, and then ultimately disposed of
the child, very similar kinds of situations here. That person got three
years probation. Now, granted, certainly there are always differences in
every case, but my point, Your Honor, is that if this had happened
perhaps off the reservation, the consequences or at least the potential
consequences are significant. And in disparity situations. I don’t think
you can operate in a vacuum, that you’re dealing simply with disparities
in the federal system. I think you have to look at what goes on.

Sent. Tr. 51.

The prosecutor stated:

Your Honor, just to clarify, I think counsel suggested that [the] [
] case in Cass County was three years probation. I’m wondering if it was
three years prison term that was the sentence in that case. I’m not
positive, but I believe it was a prison term.

Sent. Tr. 52-53.

Also, Dr. Resnick informed the court that women who plead guilty to
neonaticide are “infrequently sentenced to more than three years in prison.” Add. 2,

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p. 24 (Resnick Report). These are all state sentences and, as observed by the majority,
ordinarily state sentences are not germane to showing disparities in sentencing.

But here, we ought to consider the difference in sentence between (1) Ms.
Deegan, a woman living in North Dakota and generally subject to state and tribal
laws, except as to some aspects of federal law because of her residency on an Indian
reservation, and (2) a North Dakota woman who committed a neonaticide crime off
the reservation.

As the court said in Gall, quoting with approval the reasoning of the district
court:

the unique facts of Gall’s situation provide support for the District
Judge’s conclusion that, in Gall’s case, “a sentence of imprisonment may
work to promote not respect, but derision, of the law if the law is viewed
as merely a means to dispense harsh punishment without taking into
account the real conduct and circumstances involved in sentencing.”

Gall, 552 U.S. at 54 (citations omitted).

This statement echoes the situation here. What respect should be given to
federal criminal law which imposed a harsh punishment for this woman’s crime on the
reservation, when compared to the lenient sentence upon a woman off the reservation
for this special crime of neonaticide? I submit that the sentence here promotes
disrespect for the law and the judicial system.29

In this regard, a letter from Ms. Deegan’s sister to the court before sentencing
becomes relevant and significant:

29
See Carol A. Brook, Racial Disparity Under the Federal Sentencing
Guidelines, 35 Litigation, 15, 19 (Fall 2008) (explaining that sentencing policies that
contribute to unwarranted disparity affect the efficaciousness of the goals of the
criminal justice system).

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 Our family has endured depression, anxiety, and post-traumatic stress
disorder [PTSD]. Our childhood home was a war zone; there were some
good times of laughter and love, but one never knew when an attack of
rage and violence was about to happen.

Our family has taken great lengths to reconcile the pain and scars that
have been left on our souls. Understanding the intergenerational
historical trauma of our American Indian Grandfathers and
Grandmothers that came before us, has helped my family to forgive and
love our father, knowing that he too suffered. Non-Indian people may
not easily internalize this sense of loss and powerlessness so deeply
ingrained by American Indian people still today. The cultural
deprivations and discriminations of our people merely because of our
heritage has contributed to the psychological deficits that Dana, at that
particular low time in her life, was unable to overcome. I fear that these
same cultural factors may also contribute to harsher penalties of an
already oppressed woman.

....

She was then as she is now, only trying to survive while caring for her
daughters. She has spent her adult life trying to protect her children from
a life she had to endure. If Dana is sentenced to prison, it is yet another
tragedy, this time in the name of justice, that her daughters will be
victims too.

R. at 29 (attachment to Defendant’s Sentencing Memorandum, sealed in the district
court) (emphasis added).

Reading this letter should give us all pause. How many of us can really
comprehend the misery of Ms. Deegan’s situation as described in this record? None
of these matters made any difference to the district court when sentencing under the
guidelines. I ask what respect should be given to this guideline sentence?

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 The sentence here is unjust, excessive, and treats a woman on the reservation
disparately with a woman off the reservation. Does this disparity not indicate another
example of unfair treatment of an American Indian living on a reservation?

In summary, with respect to § 3553(a) the district court committed several
errors. The district court believed the that the guidelines were “reasonable” and that
they applied to Ms. Deegan. Wrong! This is not a mine run case.

The district court’s § 3553(a) analysis was wholly insufficient considering the
circumstances of this case. The statute and the Supreme Court require a statement of
reasons, which in this case was not satisfied by the district court’s statement that it
“considered” the statutory factors.

The district court expressly relied on the Commission’s view of an appropriate
sentence, but the Commission never considered neonaticide. Examination of the
record in light of the § 3553(a) factors shows the substantive unreasonableness of Ms.
Deegan’s sentence.

Finally, the district court never explained how this ten-year sentence comports
with the most crucial aspect of sentencing: that a sentence be sufficient, but not greater
than necessary to comply with the purposes of § 3553(a). Instead, the court imposed
an almost mechanical sentence based on its erroneous view that the guidelines applied
to “this type of crime.”

D. Guideline Sentence as Virtually Mandatory

The reader may wonder how an experienced prosecutor and a well-regarded
district judge could err so grievously in the imposition of this sentence. Justice
Souter’s separate opinion in Rita may suggest the answer:

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 What works on appeal determines what works at trial, and if the
Sentencing Commission’s views are as weighty as the Court says they
are, a trial judge will find it far easier to make the appropriate findings
and sentence within the appropriate Guideline, than to go through the
unorthodox factfinding necessary to justify a sentence outside the
Guidelines range.

Rita, 551 U.S. at 391 (Souter, J., dissenting) (citations omitted).30 Moreover, as
Justice Stevens commented, “I am not blind to the fact that, as a practical matter,
many federal judges continued to treat the Guidelines as virtually mandatory after our
decision in Booker.” Id. at 366 (Stevens, J., concurring).

I ask isn’t that precisely describing the sentencing procedure and comments
here?

The majority stresses discretion by the district court. Maj. op. at 15. But the
sentencing judge did not exercise his discretion. He merely adopted the
recommendation of the prosecutor for a guideline sentence. Rather than consider the
specific facts and circumstances in this case, the district court imposed a guideline
sentence. This court addressed the limits of “discretion” in the pre-guideline case of
Woosley v. United States, 478 F.2d 139 (8th Cir. 1973) (en banc).

Woosley arose thirty-seven years ago when appellate courts almost never
reviewed the district court sentence. See Gore v. United States, 357 U.S. 386 (1958).
The relevant facts are as follows. A sincere and religiously motivated member of
Jehovah’s Witnesses had refused a conscientious objector classification in the
Selective Service draft and had refused to report for induction. 478 F.2d at 140. The

30
See also Brook, supra note 29, at 18 (“[T]he gravitational pull of the
guidelines remains strong.”).

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sentencing judge in Woosley recognized the defendant “as a fine young man.” Id.
However, the judge gave him the maximum sentence under the law (five years)
pursuant to the judge’s policy of always imposing the maximum penalty to men who
refused induction into the military. See id. at 140, 143. That sort of sentence was
imposed regardless of the underlying circumstances as to each defendant.

The Woosley court said, “we deal with a predetermined sentence resting upon
a policy followed by the trial judge. . . . A mechanical approach to sentencing [that]
plainly conflicts with the sentencing guidelines announced by the Supreme Court. .
. .” 478 F.2d at 143 (emphasis added) (citation omitted).

Here, rather than looking at the law espoused by the Supreme Court and truly
considering what sentence was sufficient but not greater than necessary, the court
imposed the guideline sentence. It blindly followed the government’s belief “that the
Sentencing Commission took into account these type of events, these type of crimes
when it put together sentencing guidelines. . . .” Sent. Tr. 43. Interestingly, the
district court observed that Ms. Deegan’s life had not been easy and he expressed
compassion for what she had gone through. But the judge disregarded the specific
circumstances of her crime and imposed the guideline sentence. This case was out of
the “heartland” and did not fall within the guidelines sentence structure. Despite that,
the district court failed to exercise its discretion in imposing a sentence.

In Woosley, the court observed that the great majority of individuals committing
a similar crime received probation, not a jail sentence. 478 F.2d at 147. Here the
judge gave no consideration to the plea for a lenient sentence, even though that matter
was brought to his attention by defense counsel and Dr. Resnick. The sentence in this
case manifests a gross abuse of discretion.

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 The Woosley en banc court concluded the opinion with this language, which I
suggest is very pertinent to this case:

We find it difficult to conceive of a situation offering more
compelling circumstances to justify leniency than that in the instant case.

....

The broad and unreviewable discretion possessed by federal district
courts in matters of sentencing does not extend to the meting out of
punishment manifestly disproportionate to the nature of the crime and
the character of the criminal.

Id. at 147-48. Although in a different time and relating to a different crime, the two
cases have parallels.

Yes, this judge stands by the view that district courts should exercise discretion
in sentencing. But that discretion is not unfettered. United States v. Burns, 577 F.3d
887, 897 (8th Cir. 2009) (en banc) (Bright, J., concurring). The record here makes
clear that the district judge exercised no discretion but merely agreed with and adopted
the government’s recommendation and applied the guideline sentence. This amounted
to grievous, gross error.

VII.

REMEDY

A simple remand for resentencing will not do. This neonaticide crime is a novel
one in the federal courts. As I have noted, I have never seen a crime as completely out
of the “heartland” as this one. As such, this court should provide the district court
with guidance. In Woosley, the circuit court remanded the sentence to the district

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court with special instructions, including one for the court to consider “changed
family circumstances which may disclose additional considerations dictating leniency
of treatment.” 478 F.2d at 148. Moreover, pending disposition of the en banc appeal,
this court released Woosley from prison on his personal recognizance. Id. at 140 n.2.

In Ms. Deegan’s circumstances, I suggest that (1) she be immediately released
from prison pending disposition of this appeal and resentencing; (2) the district court
reconsider the creation of a sentencing disparity between two North Dakota women
who both committed neonaticide; and (3) the district court consider imposing a new
sentence to time served in prison.

Regardless of the above suggestion, what judicial or societal harm can come
from a remand? The process of remanding for resentencing goes on every day in the
federal courts.

VIII.

CONCLUSION

Ms. Deegan’s case cries out for justice and a reversal. The guideline sentence
for second-degree murder does not apply to her crime of neonaticide. Ms. Deegan has
suffered enough. I will not put my imprimatur on this harsh sentence, which reeks
with error in the sentencing process. Ms. Deegan has suffered immense cruelty at the
hands of her father, his male friends, and the father of her children. Now her lifetime
of travail becomes magnified by an unjust and improper prison sentence. Her
sentence of ten years’ incarceration rests on a misreading or ignorance of the law.

For almost the first time in a federal appeal, this court addresses the fairness of
a sentence imposed on a woman on the Indian reservation whose prior life has been

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a “hell” and where the punishment ignores the needs of her children, who were the
objects of her protection in committing a tragic crime.

In essence, the issue in this case is whether the district court imposed a sentence
under § 3553(a). The majority says it did. Maj. op. at 13-14. I believe the answer is
a resounding No! The problem with the majority’s analysis is that the very words of
the actors in the sentencing process seem to disagree.31

In mine run cases, the guidelines account for § 3553(a), see Rita, 551 U.S. at
350-51, which lessens the need for extensive discussion of the § 3553(a) factors. The
Sentencing Commission never incorporated the § 3553(a) factors into a guideline that
applies to the crime of neonaticide; thus Ms. Deegan’s guideline sentence cannot
embody the § 3553(a) factors. Because the sentencing court could not properly rely
on the guidelines, Ms. Deegan’s sentence required a full analysis of these statutory
sentencing factors.

The majority relies on mine run cases for the proposition that district court
judges need not say much about the sentencing factors. See Maj. op. at 6-7 (citing
Rita v. United States, 551 U.S. 338 (2007) (mine run perjury, obstruction of justice,
making false statements); United States v. Robinson, 516 F.3d 716 (8th Cir. 2008)
(mine run conspiracy to commit bribery); United States v. Hernandez, 518 F.3d 613
(8th Cir. 2008) (mine run possession of methamphetamine with intent to distribute);
United States v. Perkins, 526 F.3d 1107 (8th Cir. 2008) (mine run revocation of
31
The probation officer said that no factors warranted a departure. Rev. PSR
¶ 63 (“None”); see also supra at 18-19. The prosecutor said “a guideline sentence is
the right choice.” Sent. Tr. 53; see also supra at 19. The district court said “I’m
required to impose those [1998] guidelines . . . I am agreeing with the Government’s
recommendation . . . and adhering to the guidelines because I believe that they are
reasonable.” Sent. Tr. 59, 61; see also supra at 19-20. But the guidelines do not
apply to neonaticide.

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supervised release); United States v. Henson, 550 F.3d 739 (8th Cir. 2008) (mine run
felon in possession)). But Ms. Deegan’s case is not a mine run case. This court
should not sanction this guideline sentence nor the cursory discussion of the § 3553(a)
factors.

The majority relies on the district court’s presentence order to conclude that a
court “could” reasonably view Ms. Deegan’s offense as “unusually heinous, cruel, and
brutal.” Maj. op. at 14. According to the majority, this characterization of Ms.
Deegan’s actions demonstrates the substantive reasonableness of her sentence. But
the district court ultimately rejected the characterization on which the majority relies.
The “heinous, cruel, and brutal” language in the district court’s presentence order
simply recites U.S.S.G. § 5K2.8, on which the district court contemplated, but
rejected, a sentencing departure. See Maj. op. at 3-4. Importantly, the presentence
order contemplating the departure was issued before the district court or any
participants in the sentencing process knew any substantial amount of information
about Ms. Deegan’s background and about neonaticide. The majority’s revival of
“heinous, cruel, and brutal” does not reflect the views of the district court, nor those
of a leading expert on neonaticide, and I strongly dispute that characterization of Ms.
Deegan.

The majority criticizes the dissent for comparing Ms. Deegan’s case to that of
another North Dakota neonaticide. Maj. op. at 16-17. The majority asserts that
almost nothing is known about the other North Dakota neonaticide that was
committed by an NDSU student. True, the details underlying her crime are not part
of the sentencing record. But a comparison of these women’s circumstances from the
record, in light of Dr. Resnick’s discussion of the § 3553(a) factors as related to
neonaticide, strongly indicates that Ms. Deegan is entitled to a lenient sentence,
similar to that of the NDSU student. And if the information before the judge and the
testimony of Dr. Resnick was insufficient, it should have been a red flag to investigate

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further to determine whether the circumstances of the NDSU case were comparable
to those of Ms. Deegan.

In any event, what we do know about the other North Dakota neonaticide
supports overturning Ms. Deegan’s harsh sentence. Both women committed
neonaticide. Both did so in North Dakota. But Ms. Deegan committed her crime on
a reservation and landed in federal court. Dr. Resnick reported that most women
receive sentences of not longer than three years’ incarceration, see Add. 2, p. 24
(Resnick Report), and the NDSU student received three years’ probation. On this
record, there is no just reason for the sentencing disparity between these two women.
As I previously asked, what respect should be given to federal criminal law which
imposed a harsh punishment for Ms. Deegan’s crime committed on the reservation,
when compared to the lenient sentence upon a woman off the reservation? Might an
informed observer say: just another injustice by the United States which Indians must
suffer.

The comparison of these two cases relates not to whether a federal court should
rely on state sentences, but is an issue of unfairness and injustice to an Indian woman
living on a reservation as compared to a woman not living on a reservation. The
majority may say different laws apply. The difference here rests not on the law, but
on the mistakes and misjudgment by a federal court as shown by the record.

I firmly believe that in these United States, through its courts or otherwise, Ms.
Deegan will receive Equal Justice Under the Law.

This case also lifts the curtain on the terrible abuse suffered by Ms. Deegan as
a young child and young woman on the Fort Berthold Indian Reservation in North
Dakota. Unfortunately, her suffering is not an isolated instance. The pervasive and
terrible abuse of women and children occurs on every Indian reservation in this
country. I address that matter in the Appendix to this dissenting opinion.

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 APPENDIX TO DISSENT

LIFTING THE CURTAIN ON ASSAULTS AGAINST WOMEN AND
CHILDREN IN INDIAN COUNTRY

In the dissent, I raise the question: where were the government and social
agencies during the many instances of physical, verbal, and sexual abuse suffered by
Ms. Deegan as a child and young adult, as well as her younger sisters and mother?

This dissent in part has examined the root cause, abuse after abuse after abuse
suffered by Ms. Deegan, that underlies the tragic death of the infant victim. Is that
abuse isolated to the Fort Berthold Indian Reservation or symptomatic of an existing
situation in all of Indian country?

Coincidentally, in examining the background of assault and abuse in this case,
a revealing and pertinent article about violence and sexual assault in Indian country
appeared in a popular legal publication. The article entitled, Strange Justice in Indian
Country, appeared in the National Law Journal of September 28, 2009. It reads in
part:

Conditions in this obscure country, as reported by sources ranging
from Amnesty International to a U.S. Senate committee, are appalling.
One in three women will be raped in her lifetime. Half the reported
murders and 72% of child sex crimes are never prosecuted. Ninety
percent of sexual assaults on native women are committed by men from
the dominant ethnic groups. The nation’s highest courts regularly
reverse convictions based solely on the defendant’s race.

This country is not Sudan, Rwanda or Kosovo during ethnic
cleansing. Rather, this is the state of law enforcement today on the 310
Indian reservations that are home to nearly a million Native American
citizens of the United States.
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 “Indian Country” – the federal government’s name for the 54
million acres of reservation lands in the United States–is larger than
Minnesota or Utah. The layers of social ills on most
reservations–alcohol and drug abuse, unemployment, malnutrition and
chronic disease–are a well-documented national shame. But the failure
of the U.S. government to provide equal legal protection to victims of
serious crimes, who happen to be Native American, is just bizarre.

....

The treatment of native peoples is one of the darkest chapters in
American history. Although nothing can be done to change that history,
extending basic legal protections to residents of Indian country, equal to
those enjoyed by their fellow citizens, is a modest goal.

As the dissent notes, the abuse and beatings perpetrated upon Ms. Deegan as
a child and young woman by her father, his friends, Mr. Hale, and others, although
known by some officials of tribal institutions, were never investigated, prosecuted, nor
the subject of correction. Ms. Deegan as an Indian woman does not stand alone as a
victim of abuse.

Violence against American Indian women is a pervasive problem. Federal
government studies consistently show that American Indian women are more likely
to be subject to sexual violence than other women in the United States.32 In fact,
American Indian women are more than two-and-a-half times more likely to be raped

32
Maze of Injustice: The Failure to Protect Indigenous Women from Sexual
Violence in the USA, Amnesty International USA 2 (2007).
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or sexually assaulted than other women.33 More than one out of every three American
Indian women will be raped during their lifetime.34

American Indian women are not only more likely to be raped and sexually
assaulted, but are also more likely to suffer a higher degree of additional physical
violence during those assaults. While 30 percent of the general population of United
States women report suffering physical injuries in addition to a rape, 50 percent of
American Indian women report such injuries.35 American Indian women are also
more likely to be a victim of a rape with a weapon.36 While 11 percent of all reported
rapes involve the use of a weapon, 34 percent of female American Indian rapes
involve a weapon.37

Notably, survivors of such brutal rapes and assaults suffer physically,
emotionally, and spiritually.38 American Indian women who have been sexually
assaulted report higher rates of depression, alcoholism, drug abuse, and suicidal
ideation.39

33
Id.; see also Amy Radon, Tribal Jurisdiction and Domestic Violence: The
Need for Non-Indian Accountability on the Reservation, 37 U. Mich. J. L. Reform
1275, 1280-81 (2004) (“[F]or every 1,000 American Indian females, 23.2 were
victims of intimate violence. This rate of victimization was nearly double that of
African Americans (11.2 for every 1,000), triple that of whites (8.1 per 1,000), and
twelve times the victimization rate of Asian Americans (1.9 per 1,000).”).
34
Maze of Injustice: The Failure to Protect Indigenous Women from Sexual
Violence in the USA, Amnesty International USA 2 (2007).
35
Id. at 5.
36
Sarah Deer, Sovereignty of the Soul: Exploring the Intersection of Rape Law
Reform and Federal Indian Law, 38 Suffolk U. L. Rev. 455, 457 (2005).
37
Id.
38
Sarah Deer, Toward an Indigenous Jurisprudence of Rape, 14 Kan. J. L. &
Pub. Pol’y 121, 123 (2004).
39
Id. at 124.
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 In addition to pervasive and damaging sexual violence, American Indians are
more likely to be victims of all violent crimes than any other race.40 In fact, American
Indians experience a per capita rate of violence twice that of other United States
residents.41 The same is true for American Indian women, who are over two times
more likely to be victims of violence.42

American Indian children are often victims of abuse. One American Indian
child out of 30 is subject to abuse or neglect.43 American Indian children are
approximately twice as likely to be victims of child abuse than the general population
of children.44

Sadly, violence and abuse on Indian reservations are likely greater than depicted
in these statistics. It is widely-accepted that reports of abuse and violence on Indian
reservations are under reported.45 Although “[v]iolence against women is one of the
most pervasive human rights abuses[,] [i]t is also one of the most hidden.”46 “Most
Indian women do not report such crimes because of the belief that nothing will be
done.”47

40
U.S. Dep’t of Justice, American Indians and Crime, v (Dec. 2004).
41
Id. at iv.
42
Id. at v.
43
U.S. Dep’t of Justice, American Indians and Crime, 15 (1999).
44
Id.
45
Maze of Injustice: The Failure to Protect Indigenous Women from Sexual
Violence in the USA, Amnesty International USA 2 (2007).
46
Id. at 1.
47
Id. at 2 (quoting Juana Majel, National Congress of American Indians, and
Karen Artichoker, Cangleska, Inc.-Sacred Circle). As this report explains, “interviews
with survivors, activists and support workers across the USA suggest that available
statistics greatly underestimate the severity of the problem. In the Standing Rock
Sioux Reservation, for example, many of the women who agreed to be interviewed
could not think of any Native women within their community who had not been
subjected to sexual violence.” Id.
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 Pictures occasionally speak louder than words. The attached illustration48
depicts a young American Indian girl in native dance regalia and emphasizes to the
reader the importance of protecting “the integral parts of [Indian] life.”49 The high
risks of violence to which American Indian women and children are exposed to on
their reservations requires urgent action by federal agencies, tribal personnel, and
other social services, and they should do all in their power to stop this terrible and
continuing abuse.

I conclude with this comment. The violence against women and children on
Indian reservations is a national scandal. It must be addressed not only as a criminal
matter but as a societal concern. If the violence against Ms. Deegan had been stopped,
even as late as her association with Mr. Hale, and, if she had been given moral and
societal assistance in raising the three children in her family, this crime of neonaticide
might never have occurred. The deterrence to such a crime, as here, will not be
attained by imposing a harsh punishment on Ms. Deegan. The problems of preventing
assault and abuse against women and children in Indian country need illumination,
and immediate steps must be taken to stop this terrible and wrongful conduct.
______________________________

48
Reproduced with the permission of the State Historical Society of North
Dakota and its publication, North Dakota History: Journal of the Northern Plains,
Vol. 69, front cover (2002).
49
Id. at back cover.
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