United States Court of Appeals
For the Eighth Circuit
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No. 16-1091
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Velnita Jolette Hairy Chin
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Aberdeen
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Submitted: October 17, 2016
Filed: March 6, 2017
[Published]
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Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
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PER CURIAM.
Velnita Hairy Chin, a member of the Standing Rock Sioux Tribe and resident
of the Tribe’s reservation, pleaded guilty to one count of child abuse, in violation of
18 U.S.C. § 1153(a) and S.D. Codified Laws § 26-10-1. The United States Probation
Office recommended in Hairy Chin’s presentence investigation report (PSR) that she
receive a total offense level of six and a criminal history category II, providing her
with a sentencing range of one to seven months’ imprisonment. Hairy Chin thereafter
objected to the PSR’s recommended two-level increase for the victim’s bodily injury
pursuant to U.S.S.G. § 2A2.3(b)(1)(A).
At the sentencing hearing, the government requested an upward departure from
the suggested sentencing range recommended in the PSR in light of (1) the extreme
conduct precipitating the charge, (2) the dismissed and uncharged conduct, and (3)
Hairy Chin’s understated criminal history. The district court,1 after reviewing the
circumstances of Hairy Chin’s case, granted the government’s request. The court
assigned Hairy Chin a total offense level of 12 and a category VI criminal history,
resulting in a Guidelines range of 30 to 37 months’ imprisonment. Notably, the
district court sentenced her to 37 months’ imprisonment, which was the high end of
the applicable Guidelines range. In doing so, the court did not explicitly rule on Hairy
Chin’s objection to the PSR’s recommended two-level increase for the victim’s bodily
injury. Hairy Chin appeals her sentence, asserting that the district court erred by
failing to rule on her objection. She also argues that the district court abused its
discretion by imposing an unreasonable sentence. We disagree and affirm the
judgment of the district court.
I. Background
On the evening of June 23, 2015, the Bureau of Indian Affairs (BIA) received
a complaint about unsupervised children playing outside Hairy Chin’s home. When
the BIA officer arrived at the residence, he discovered seven unattended children
under the age of 12, including a crying infant strapped into a car seat. In the
basement, the officer found Hairy Chin unconscious and apparently inebriated. After
identifying Hairy Chin as the responsible adult, the officer arrested her for child
neglect. Emergency medical technicians arrived and transported the infant to the
1
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
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hospital because of his inconsolable crying. When asked about the child, Hairy Chin
admitted to dropping the baby the previous day but asserted that the child was fine.
At the hospital, the infant was diagnosed with abrasions on his legs from the
extensive time in the car seat, bruising on his right leg and right buttock, diaper rash,
air in his lungs from continual crying, and an ear infection. Child Protection Services
(CPS) removed all seven children from the residence and placed them in alternative
homes.
Hairy Chin has a lengthy criminal history. Her state and federal convictions
include theft, damage to property, and child endangerment. In addition, Hairy Chin
has accumulated more than 40 convictions in the Standing Rock Tribal Court. These
convictions, although not counted in her PSR criminal history, include multiple
counts of disorderly conduct, eight counts of child neglect, driving while under the
influence, possession of drugs, criminal contempt, and aggravated assault. In 2012,
Hairy Chin pleaded guilty to federal child-abuse charges. The facts of the 2012
incident mirror the current case remarkably. Hairy Chin brought her four-month-old
daughter to the hospital because of a seizure. Medical professionals determined that
the infant suffered from several head injuries and a severe infection. The multiple
head injuries were at different stages of healing, indicating a pattern of being dropped
or mishandled. Hairy Chin served one year of imprisonment as a result. The present
offense occurred just six months after she completed supervised release. Despite her
criminal record, CPS placed four of Hairy Chin’s grandchildren in her care—all under
the age of five. She was also the primary caregiver for three of her own minor
children.
At sentencing, the government introduced testimony from the BIA officer sent
to Hairy Chin’s home and photographic evidence of the injuries sustained by the
infant confined in the car seat. The CPS worker in charge of the four grandchildren
also took the stand. The CPS worker admitted that she failed to perform a background
check on Hairy Chin and failed to perform a home inspection before placing the four
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grandchildren in her care. In response to this testimony, the district court interjected,
“If this is the way that the child protection agency is being run, children are at great
risk [at the Standing Rock Sioux Reservation].” After hearing arguments from
defense counsel, the district court discussed Hairy Chin’s criminal history at length:
And so this is an outrageous history of one crime after another
and, more importantly, one crime after another of abusing children,
including a conviction in this Court.
***
Clearly, an upward departure is proper here.
***
We have all of these multiple counts of conviction for which the
defendant did not receive a criminal history point, and I’ve gone through
all of those convictions. This is an outrageous case, very frankly.
The district court determined that the number and seriousness of Hairy Chin’s past
criminal convictions placed her into a criminal history category VI pursuant to
U.S.S.G. § 4A1.3. The court adopted the PSR’s offense-level calculation of six,
which included the two-level increase under U.S.S.G. § 2A2.3(b)(1)(A) for the bodily
injury sustained by the infant, and increased that level to 12 pursuant to U.S.S.G.
5K2.21 for the six dismissed counts of child abuse regarding the other six children
in Hairy Chin’s custody on the night of her arrest. The court determined Hairy Chin’s
Guidelines range to be 30 to 37 months’ imprisonment and sentenced her to 37
months.
II. Discussion
“We review a sentence in two parts: first, we review for significant procedural
error, such as an improper calculation of the advisory sentencing guidelines range;
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and second, absent significant procedural error, we review for substantive
reasonableness.” United States v. Fischer, 551 F.3d 751, 754 (8th Cir. 2008).
Hairy Chin argues that the district court procedurally erred and that her sentence is
substantively unreasonable. We will examine both of these contentions in turn.
A. Procedural Error
A significant procedural error can occur if the district court fails to consider the
sentencing factors in 18 U.S.C. § 3553(a), selects a sentence based on clearly
erroneous facts, or fails to adequately explain its chosen sentence. Gall v. United
States, 552 U.S. 38, 51 (2007). “In reviewing a sentence for procedural error, we
review the district court’s factual findings for clear error and its application of the
guidelines de novo.” United States v. Barker, 556 F.3d 682, 689 (8th Cir. 2009). We
will find clear error only if the review produces “the definite and firm conviction that
a mistake has been committed.” United States v. Adetiloye, 716 F.3d 1030, 1036 (8th
Cir. 2013) (quoting United States v. Lalley, 257 F.3d 751, 758 (8th Cir. 2001)).
“Compliance with rules of criminal procedure is reviewed de novo.” United States v.
Theimer, 557 F.3d 576, 577 (8th Cir. 2009).
Hairy Chin argues that the district court committed reversible error by failing
to rule on her objection to the PSR’s recommended two-level increase for the victim’s
bodily injury pursuant to U.S.S.G. § 2A2.3(b)(1)(A). The district court ruled against
the PSR objections generally.2 The court did not make a specific finding on whether
the injury sustained by the infant in Hairy Chin’s care met the definition of “bodily
injury” under U.S.S.G. § 1B1.1. Hairy Chin asserts that this oversight fell below the
standard set out by Federal Rule of Criminal Procedure 32(i)(3)(B), which requires
a sentencing court to rule on any disputed PSR objection. She points to United States
v. Fetlow, 21 F.3d 243 (8th Cir. 1994), for the proposition that a blanket overruling
2
The district court stated: “The presentence report speaks for itself in that
regard. So that—the objections are overruled, in any event.”
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of all objections to the PSR violates Rule 32. “Where the findings of the sentencing
court render the appellate court unable to determine the legal basis upon which they
were made, a remand for further findings is warranted.” Id. at 248. In Fetlow, the
government presented no evidence at the sentencing hearing in response to the
defendant’s three objections to his PSR calculation, and it was unclear if the district
court relied exclusively on the allegations reported in the PSR. See id. at 248–49. We
remanded the case to the sentencing court because upon review, we could not
determine if the sentencing court based its ruling upon evidence with “sufficient
indicia of reliability.” Id. at 249.
Hairy Chin presents a different case entirely. She disputes the legal conclusion
of what constitutes bodily injury under § 1B1.1, not whether the district court relied
on reliable evidence in making its finding. To establish the facts relating to the two-
level increase, the sentencing court heard testimony from the BIA officer who saw the
infant, and the court viewed photographic evidence of the infant’s injuries. “If the
sentencing court elects to make a finding, the government must produce evidence
sufficient to convince the court by a preponderance of the evidence that the fact in
question exists.” Id. at 249–50. Unlike Fetlow, none of the factual allegations in this
case are disputed. Although the district court did not make a specific ruling on the
PSR objection, the record reflects sufficient reliable evidence for the district court to
make a well-informed decision about whether Hairy Chin’s conduct warranted a two-
level increase pursuant to U.S.S.G. § 2A2.3(b)(1)(A). The district court was able to
and did make this determination on the record before it. The absence of a specific
ruling on Hairy Chin’s objection is not by itself a significant procedural error because
the record reflects sufficient evidence for the district court’s findings to receive
meaningful appellate review.
B. Substantive Reasonableness
When reviewing a sentence for its substantive reasonableness, we apply an
abuse-of-discretion standard. Gall, 552 U.S. at 51. “A district court abuses its
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discretion when it (1) fails to consider a relevant factor that should have received
significant weight; (2) gives significant weight to an improper or irrelevant factor; or
(3) considers only the appropriate factors but in weighing those factors commits a
clear error of judgment.” United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009)
(en banc) (quotation omitted). This review is “narrow and deferential.” Id. at 464
(quoting United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008)).
Hairy Chin argues that the district court improperly weighed the significance
of her 40 tribal convictions in elevating her criminal history category. She asserts that
because the district court did not enhance her criminal history category for the tribal
convictions when it sentenced her in 2012, the court should be consistent and ignore
them once again. When sentencing Hairy Chin in the 2012 case, however, the district
court sentenced her to only 12 months because of uncertainty about her personal
responsibility for the victim-child’s multiple head injuries—not because the previous
tribal convictions lacked relevance. The district court did not abuse its discretion by
deciding to count Hairy Chin’s tribal convictions in reaching its sentence.
She also argues that the court should have weighed her good behavior since the
2012 conviction in her favor with a lighter sentence. The facts, however, belie this
argument. Once released from custody in 2013, Hairy Chin spent nine months of
supervised released pregnant with the child that she later injured. When this child
reached six months old, Hairy Chin was arrested once again for abusing an infant in
her care. The court had ample basis for discounting her alleged mitigating good
behavior, especially considering Hairy Chin’s virtual repeat offense to the 2012
conviction.
Additionally, Hairy Chin argues that the district court gave improper weight
to the bad acts of CPS and the Standing Rock Tribal Court. She argues that the
district court, angered by these third parties’ inaction, unfairly assessed the
seriousness of her actions. She points to numerous expressions of frustration by the
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district court when discussing the failings of CPS and the seemingly ineffective
sentencing efforts of the tribal court. To be sure, the record does reflect numerous
negative remarks by the district court toward various officials, but the record also
reflects the court’s relevant disappointment with the behavior of Hairy Chin. Nothing
in the sentencing transcript indicates that the district court gave significant weight to
the actions of CPS or third parties in determining Hairy Chin’s final sentence. Rather,
the transcript demonstrates an individualized assessment of Hairy Chin’s history and
the circumstances surrounding the conviction.
The district court properly weighed the circumstances of the case and the past
history of Hairy Chin’s criminal child neglect to make “precisely the kind of
defendant-specific determinations that are within the special competence of
sentencing courts.” Feemster, 572 F.3d at 464 (quoting Gardellini, 545 F.3d at 1095).
The district court did not abuse its discretion; Hairy Chin’s final sentence is not
substantively unreasonable.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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