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United States v. Bull

United States Court of Appeals, Eighth Circuit

July 11, 2016

United States of America Plaintiff-Appellee
v.
Belle Brave Bull Defendant-Appellant

          Submitted: May 16, 2016

         Appeal from United States District Court for the District of South Dakota - Aberdeen

          Before WOLLMAN, LOKEN, and BENTON, Circuit Judges.

          BENTON, Circuit Judge.

         Belle Brave Bull pled guilty to voluntary manslaughter and assault with a dangerous weapon, in violation of 18 U.S.C. §§ 1153, 5032, 1112, and 113(a)(3). She appeals her sentence, objecting to an upward departure and the reasonableness of her sentence. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

         Intoxicated, Brave Bull and a group of friends began to argue. She lunged toward one of them with a metal object, accidentally striking someone else causing a deep laceration to the head. She continued arguing with yet another friend, Frances Kathryne Wanna, outside. Wanna tried to calm the group down by pretending to call the police. Brave Bull threatened her with a shovel for being a "snitch." Wanna curled up on the ground, crying. Brave Bull followed her into the house, pushing her backwards down a flight of basement stairs. Brave Bull and another friend went to check on her. She appeared to be crying. No one touched her. No one called for medical help because some in the group had prior felonies and were on probation or supervised release. The group left without Wanna. Two hours later, police found her dead, still at the bottom of the steps in a contorted position. The fall dislocated a femur and the first and second vertebrae, immobilizing her. Medical experts testified she probably lived up to an hour-and-a-half to two hours after the fall, and that she likely would have survived with immediate medical attention.

         The district court sentenced Brave Bull to 162 months' imprisonment, departing upward from criminal history category I to category VI. Brave Bull contends the district court erred in departing upward on its three bases-U.S.S.G. § 5K2.8 for conduct that was "unusually heinous, cruel, brutal, or degrading to the victim, " U.S.S.G. § 5K2.21 for dismissed charges, and U.S.S.G. § 4A1.3 for inadequacy of Brave Bull's criminal history category and likelihood of recidivism. She also objects to the reasonableness of the sentence.

         I.

         A.

         "This court reviews an upward departure, if objected-to, for abuse of discretion." United States v. White Twin, 682 F.3d 773, 775 (8th Cir. 2012). Under § 5K2.8:

If the defendant's conduct was unusually heinous, cruel, brutal, or degrading to the victim, the court may increase the sentence above the guideline range to reflect the nature of the conduct. Examples of extreme conduct include torture of a victim, gratuitous infliction of injury, or prolonging of pain or humiliation.

         Brave Bull claims that her conduct "in the heat of battle, " while both she and the victim were drunk, is not extreme conduct.

         The district court did not abuse its discretion in departing upward under §5K2.8. Brave Bull intentionally pushed Wanna down the basement stairs, and after checking, left her there without help. The district court, viewing photographs, said:

[A]ny person, other than somebody who was blind, could know by looking at those photographs and actually looking at the victim that she was not fine and that she was dying. You can look at that and see in these pictures, just that alone, that the victim ...

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