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Date: 05-29-2019

Case Style:

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

Case Number: 18-2228

Judge: Gruender

Court: United States Court of Appeals for the Eighth Circuit on appeal from the District of South Dakota (Pennington County)

Plaintiff's Attorney: Gregg S. Peterman, Megan Poppen, Kathryn Rich

Defendant's Attorney: JOseph Ashley Parr

Description: 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.

Outcome: For the foregoing reasons, we affirm.

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