Submitted: May 16, 2016
from United States District Court for the District of South
Dakota - Aberdeen
WOLLMAN, LOKEN, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
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.
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
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.
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.
Bull claims that her conduct "in the heat of battle,
" while both she and the victim were drunk, is not
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,
[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 ...