United States of America v. Fred Quiver, a/k/a Fred Brings Plenty

Elizabeth 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 court1 found an advisory sentencing

guidelines range of 130 to 162 months’ imprisonment but sentenced Quiver to 180

months’ imprisonment. We affirm.

Quiver 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 crossexamination

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

1The Honorable Jeffrey L. Viken, Chief Judge, United States District Court for

the District of South Dakota.

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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.

Quiver 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. 2014).

Quiver 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.”

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Quiver 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 5K2.21.2 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”).

As to 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,

2During the sentencing hearing, the court invoked U.S.S.G. § 5K2.8 (extreme

conduct) and § 5K2.21 (dismissed or uncharged conduct) as potential grounds for an

upward departure. But the statement of reasons instead identified § 5K2.0

(aggravating or mitigating circumstances) and § 5K2.22 (sex offender characteristics)

as reasons for the departure. “Where an oral sentence and the written judgment

conflict, the oral sentence controls.” United States v. Johnson, 719 F.3d 660, 672

(8th Cir. 2013).

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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’ imprisonment.

For the foregoing reasons, we affirm.