Submitted: March 15, 2019
from United States District Court for the District of South
Dakota - Rapid City
GRUENDER, BENTON, and GRASZ, Circuit Judges.
Gruender, Circuit Judge.
LeBeau murdered Emily Bluebird by strangling her and by
striking her head with a hammer. Fred Quiver was present
during the murder. Quiver and LeBeau took Bluebird's body
to the bathroom shower and washed it. Quiver poured bleach
over Bluebird's body to destroy DNA evidence. Quiver and
LeBeau moved Bluebird's body four times before it was
discovered approximately three weeks after the murder. Quiver
pleaded guilty to being an accessory to a second-degree
murder in violation of 18 U.S.C. §§ 3, 1153. The
district court found an advisory sentencing guidelines
range of 130 to 162 months' imprisonment but sentenced
Quiver to 180 months' imprisonment. We affirm.
first argues that he received ineffective assistance of
counsel. "Generally, ineffective assistance of counsel
claims are better left for post-conviction proceedings."
United States v. Cook, 356 F.3d 913, 919 (8th Cir.
2004). Such claims are proper on direct appeal only in
"exceptional cases" where "the record has been
fully developed," to "avoid a plain miscarriage of
justice," or "when trial counsel's
ineffectiveness is readily apparent or obviously
deficient." Id. at 919-20. This is not such an
"exceptional case." First, the issue was never
raised before the district court, and the record is not fully
developed. Prior counsel has not had the opportunity to
address or explain the decisions made in Quiver's case,
there was no cross-examination of counsel by Quiver, and the
district court made no determination regarding whether
counsel's performance was deficient. Cf. United
States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006)
(finding that the record was fully developed where the
district court held an evidentiary hearing at which the
defendant presented evidence regarding alleged ineffective
assistance of counsel and where both parties represented at
oral argument that the record was fully developed). Second,
we see no basis for concluding that "trial counsel's
ineffectiveness is readily apparent or obviously
deficient." Counsel filed a motion for a downward
variance, objected to portions of the presentence
investigation report ("PSR") prepared in the case,
had some objections sustained, and sought other changes to
the PSR that were ultimately adopted by the district court.
Quiver alleges that his counsel "likely failed" to
research relevant case law or investigate other reasons for a
downward departure or variance but does not cite any evidence
of such failures. Third, Quiver fails to show a plain
miscarriage of justice where he remains free to pursue his
claim through a § 2255 action. See United States v.
Sanchez-Gonzalez, 643 F.3d 626, 629 (8th Cir. 2011)
(concluding that "declining to consider this claim on
appeal would not constitute a plain miscarriage of
justice" where the defendant "remains free to
pursue her ineffective assistance claim through a section
2255 action"). Thus, we decline to consider Quiver's
ineffective assistance of counsel claim on direct appeal.
also appeals his above-guidelines sentence. "We review a
district court's sentence in two steps: first, we review
for significant procedural error; and second, if there is no
significant procedural error, we review for substantive
reasonableness." United States v. O'Connor,
567 F.3d 395, 397 (8th Cir. 2009). "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).
"Our review of the substantive reasonableness of a
sentence for abuse of discretion is highly deferential."
United States v. Cole, 765 F.3d 884, 886 (8th Cir.
alleges that the district court committed procedural error by
failing to adequately explain the sentence. We conclude that
the district court's explanation was sufficient. It
carefully considered all the § 3553(a) factors and
thoroughly documented its reasoning. The court noted
Quiver's extensive criminal history, "pattern of
behavior from an early age," and the seriousness of the
offense, in which Quiver had participated in the
"concealment of a murder that [he] witnessed,
participated in cleaning up and pouring bleach on the body,
and then moved the body four times, while this family is at a
complete loss as to what happened." The court then
concluded that "[t]he factors balance heavily in favor
of sending a message to the larger community and
demonstrating there are serious consequences for this level
of criminal behavior."
also argues that it was procedural error for the district
court to apply an upward departure pursuant to U.S.S.G.
§§ 5K2.8 or 5K2.21. But "any procedural error in
imposing an upward departure . . . would have been
harmless" because "[t]he district court justified
its decision to impose a sentence above the advisory
guideline range by referencing both [the ground for
departure] and 18 U.S.C. § 3553(a)," and the court
"appropriately considered and explained the relevant
§ 3553(a) factors." See United States v.
Richart, 662 F.3d 1037, 1048 (8th Cir. 2011). Therefore,
the district court committed no significant procedural error.
See id. at 1049; see also United States v.
Washington, 515 F.3d 861, 866-67 (8th Cir. 2008)
(finding "no significant procedural error" when the
district court "described its sentence as a
'variance or upward departure' from the Guidelines
range," "appropriately considered the relevant
factors of § 3553(a)," and "provided an
adequate explanation for the variance").
the substantive reasonableness of the sentence, "it will
be the unusual case when we reverse a district court
sentence-whether within, above, or below the applicable
Guidelines range-as substantively unreasonable."
United States v. Feemster, 572 F.3d 455, 464 (8th
Cir. 2009) (en banc). "A district court abuses its
discretion and imposes an unreasonable sentence when it fails
to consider a relevant factor that should have received
significant weight; gives significant weight to an improper
or irrelevant factor; or considers only the appropriate
factors but commits a clear error of judgment."
O'Connor, 567 F.3d at 397. "Where [a]
district court in imposing a sentence makes an individualized
assessment based on the facts presented, addressing the
defendant's proffered information in its consideration of
the § 3553(a) factors, such sentence is not
unreasonable." United States v. Parker, 762
F.3d 801, 812 (8th Cir. 2014) (internal quotation marks
omitted). Here, the district court's justifications for
imposing a 180-month sentence "rest on precisely the
kind of defendant-specific determinations that are within the
special competence of sentencing courts, as the Supreme Court
has repeatedly emphasized." See Feemster, 572
F.3d at 464. Therefore, we cannot say that the district court
abused its discretion in sentencing Quiver to 180 months'
foregoing reasons, we affirm.
The Honorable Jeffrey L. Viken, Chief
Judge, United States District Court for the District of ...