United States v. Boneshirt

662 F.3d 509, 2011 U.S. App. LEXIS 22036, 2011 WL 5119469
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 31, 2011
Docket10-3108
StatusPublished
Cited by36 cases

This text of 662 F.3d 509 (United States v. Boneshirt) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Boneshirt, 662 F.3d 509, 2011 U.S. App. LEXIS 22036, 2011 WL 5119469 (8th Cir. 2011).

Opinions

SMITH, Circuit Judge.

Bryan Boneshirt pleaded guilty, pursuant to a written plea agreement, to one count of second degree murder, in violation of 18 U.S.C. §§ 1153 and 1111. The district court1 sentenced him to 576 months’ imprisonment. On appeal, Boneshirt challenges the substantive reasonableness of his sentence. We affirm.

I. Background

On November 1, 2009, Boneshirt, then 17 years old, killed Marquita Walking Eagle. The night before, Boneshirt had consumed alcohol and partied with friends in St. Francis, South Dakota, on the Rosebud Indian Reservation. He continued to drink into the early morning hours, sleeping only for a couple of hours before resuming his drinking and partying. At some point on November 1, Walking Eagle, a 19-year-old, arrived at the party. She and Boneshirt left the party and eventually went, alone, to an abandoned house in St. Francis.

Inside the abandoned house, Boneshirt and Walking Eagle began to have consensual sexual intercourse. While doing so, Boneshirt called Walking Eagle by another female’s name. She became upset and struck Boneshirt twice. Boneshirt retaliated by striking her head and body, restraining her hands, grabbing her by the neck, and choking her until she became unresponsive. According to Boneshirt, when he noticed that Walking Eagle had stopped breathing, he “panicked” and moved her to another room in the abandoned house, concealing her body with a curtain. Shortly thereafter, Boneshirt’s father stopped by the abandoned house and talked with Boneshirt. Boneshirt did not tell his father anything about Walking Eagle.

Boneshirt then left the abandoned house, with Walking Eagle’s body still concealed inside. He walked to his father’s [512]*512residence, where he told his brother that he thought he had killed Walking Eagle. Boneshirt’s brother then went to the abandoned house to check on Walking Eagle. While waiting on his brother, Boneshirt packed a bag of clothes and telephoned several family members to tell them what he had done. After his brother called and confirmed that Walking Eagle was dead and that law enforcement had been notified, Boneshirt left his father’s residence and started walking to his mother’s residence.

Shortly thereafter, tribal police apprehended Boneshirt in a nearby field. After his arrest, Boneshirt reportedly said, “I did not do anything.” The police then advised him of his Miranda rights; Boneshirt requested to speak to his mother and with counsel but then stated, “I didn’t do it. I was there, but I didn’t do it.” During a subsequent interview, however, Boneshirt described his altercation with Walking Eagle and confessed to killing her but insisted that he had not intended to kill her.

Boneshirt was initially charged as a juvenile offender with first-degree murder. He thereafter entered into a plea agreement with the government, agreeing to transfer his case to adult court and plead guilty to second-degree murder. The written plea agreement contained a waiver of defenses and appeal rights, which stated:

The defendant hereby waives all defenses and his right to appeal any non-jurisdictional issues. The parties agree that excluded from this waiver is the Defendant’s right to appeal any decision by the Court to depart upward pursuant to the sentencing guidelines as well as the length of his sentence for a determination of its substantive reasonableness should the Court impose an upward departure or an upward variance pursuant to 18 U.S.C. § 3553(a).

At the plea hearing, the district court engaged in a colloquy with Boneshirt about his guilty plea and his plea agreement. The court did not, however, address the waiver of appeal rights in the plea agreement. After the colloquy, the court accepted Boneshirt’s guilty plea.

While awaiting sentencing, Boneshirt was incarcerated at the Hughes County Jail in Pierre, South Dakota. During this time, Boneshirt, by this time 18 years old, participated in a plan to escape from jail with fellow inmates Randy Little Shield and Robert Kelly.

The presentence investigation report (PSR) calculated a total offense level of 42. Because of Boneshirt’s involvement in the plan to escape from jail, the PSR included a two-level enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, and recommended against a three-level reduction for acceptance of responsibility, pursuant to § 3E1.1. The PSR also indicated that Boneshirt had several juvenile tribal-court convictions, including two previous incidents of aggravated assault. Because they were tribal convictions, however, the offenses did not result in any criminal history points. Thus, based on Boneshirt’s criminal history category of I and his offense level of 42, the PSR recommended an advisory Guidelines range of 360 months’ to life imprisonment.

In his sentencing memorandum, Boneshirt objected to the allegation that he had participated in a plan to escape from jail. He also objected to the PSR’s denial of the reduction for acceptance of responsibility and application of the enhancement for obstruction of justice. In addition, Boneshirt argued that the court should impose a below-Guidelines sentence in light of the 18 U.S.C. § 3553(a) factors. Specifically, he argued for leniency based on his youth and intoxicated state at the time of the offense, his difficult childhood, and his al[513]*513cohol-related neurodevelopmental disorder.

At the sentencing hearing, several witnesses testified about the alleged plan to escape from jail. On June 9, 2010, Boneshirt and four other inmates were detained in the wor ^release area of the jail. A jail official tei tied that he observed, on a surveillanc1 \camera, some of the inmates in the wo __ release area behaving suspiciously that night. Early the next morning, jail officials entered and searched the work-release area. The officials found a small metal “shank” in Little Shield’s bunk, a cinder block under Little Shield’s bunk, a hole in the suspended ceiling in the bathroom, and an L-shaped pipe above the bathroom ceiling. The officials conducted a brief pat-down search of all five inmates, including Boneshirt. They did not find any contraband on Boneshirt’s person, his bunk, or any of his property.

Subsequently, the officers separately removed each inmate from the work-release area and interviewed them. Boneshirt denied any knowledge of or involvement in an escape plan. Once the work-release area was empty, officials conducted another search and located an eight-inch metal shank in a toilet-paper dispenser in the bathroom.

Little Shield also testified about the escape plan. He acknowledged that he had state and federal criminal charges pending and that his testimony could adversely affect his sentencing. Nevertheless, Little Shield testified that he, Boneshirt, and two other inmates — Kelly and Robert Quiver— had discussed three different escape plans.

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Bluebook (online)
662 F.3d 509, 2011 U.S. App. LEXIS 22036, 2011 WL 5119469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-boneshirt-ca8-2011.