United States of America v. Charles Eagle Pipe

Charles Eagle Pipe pleaded guilty to domestic assault by an habitual offender

in violation of 18 U.S.C. § 117. At sentencing, the district court1 determined that

1The Honorable Charles B. Kornmann, United States District Judge for the

District of South Dakota

Eagle Pipe’s advisory guidelines range was 30 to 37 months imprisonment. The court

departed upward because Eagle Pipe’s criminal history category substantially underrepresented

the seriousness of his criminal history, see USSG § 4A1.3(a)(1), and

imposed a forty five month sentence, a one month downward variance from the

revised guidelines range. Eagle Pipe appeals the sentence, asserting that the court

committed procedural and substantive error. We conclude the contentions are

without merit and therefore affirm.

Eagle Pipe’s Presentence Investigation Report (PSR) assigned one criminal

history point for a single qualifying adult conviction, placing him in Criminal History

Category I. The “Other Criminal Conduct” section listed sixty-nine entries totaling

one hundred prior convictions in the Standing Rock Sioux Tribal Court. Many were

convictions for domestic assault of Eagle Pipe’s wife, the victim of the domestic

assault offense of conviction. Tribal court convictions are not included in calculating

a defendant’s Criminal History Category. See USSG § 4A1.2(I). Accordingly, the

PSR identified § 4A1.3 as potentially warranting a departure, explaining:

In this case, the defendant is in Criminal History Category I: however,

he has a significant tribal criminal history that was not accounted for in

the determination of the defendant’s Criminal History Category. Had

the defendant’s tribal court record been in state or federal court, it would

have resulted in 16 criminal history points, placing him in Criminal

History Category VI.

Eagle Pipe filed no objections to the PSR.

Prior to sentencing, the district court issued a memorandum to counsel noting

a possible upward departure. The court explained:

The criminal history category is I. If all tribal court convictions

were counted, the category would be VI. He has 101 tribal court

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convictions, many for violence. He has nine pending charges in tribal

court. In the 22 + years I have been on the bench, I do not recall anyone

with that number of tribal court convictions. He has convictions for

assaulting the same victim as the present victim seven previous times.

It appears that he has learned nothing from the sentences imposed

previously.

At the sentencing hearing, defense counsel acknowledged that Eagle Pipe’s

very lengthy criminal history “pushes the sentence up a little bit,” but noted that Eagle

Pipe had served 365 days in tribal jail for the offense of conviction and urged the

court to impose a sentence within the 30 to 37 month guidelines range. The district

court noted that, in addition to his prior convictions, Eagle Pipe “has family violence,

simple assault, disorderly conduct, criminal mischief, domestic violence . . . and

criminal contempt [charges], all pending in Standing Rock Sioux Tribal Court.”

After lengthy discussion with counsel, the district court found “that an upward

departure is appropriate here based on the inadequacy of the Criminal History

Category of the Defendant. He is about as far away from a Criminal History Category

of I as you could get.” Noting that Eagle Pipe’s tribal court convictions, if they

counted, would place him in Criminal History Category VI, the court ruled:

I find that his Criminal History Category is a IV. That’s an

upward departure. A criminal History Category of II is not adequate,

nor is a Criminal History Category of III adequate, based upon one after

another of these acts of violence.

The court found that Eagle Pipe’s revised advisory guidelines range was 46 to 57

months imprisonment, credited the twelve months he served in tribal custody “on

charges that are relevant conduct,” and imposed a “net sentence” of forty five months.

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On appeal, Eagle Pipe argues the district court committed procedural error

because it failed to adequately explain why it rejected Criminal History Categories

I, II, and III and failed to compare Eagle Pipe’s criminal history with other defendants

in Category IV. Eagle Pipe did not object to the PSR’s determination that his tribal

court convictions would place him in Category VI if they counted. He did not object

when the district court recited that determination in giving advance notice of a

possible upward departure and again at the start of the sentencing hearing. He did not

object or request additional explanation when the district court explicitly stated that

Categories II and III were not adequate because of his many acts of violence. This

argument was waived in the district court. See United States v. Maxwell, 778 F.3d

719, 734 (8th Cir.), cert. denied, 135 S. Ct. 2827 (2015).

Even if we reviewed this issue for plain error, there was none. The Guidelines

expressly state that an upward departure may be based on “[p]rior sentence(s) not

used in computing the criminal history category,” including “tribal offenses.” USSG

§ 4A1.3(a)(2)(A); see United States v. Shillingstad, 632 F.3d 1031, 1037 (8th Cir.

2011). A district court departing upwards under § 4A1.3(a)(1) need not

“mechanically discuss[ ] each criminal history category it rejects en route to the

category that it selects”; it need only provide “sufficient indicia of why the

intermediary categories are inappropriate.” United States v. Azure, 536 F.3d 922,

931-32 (8th Cir. 2008) (quotation omitted).

Here, the PSR and the district court assigned hypothetical criminal history

points to Eagle Pipe’s tribal convictions, which placed him in Criminal History

Category VI, the highest category. The court specifically stated that it had considered

each intermediary criminal history category before selecting Category IV. This

process necessarily “use[d], as a reference, the criminal history category applicable

to defendants whose criminal history or likelihood to recidivate most closely

resembles that of the defendant’s.” USSG § 4A1.3(a)(4)(A); see United States v.

Azure, 596 F.3d 449, 454-55 (8th Cir.), cert. denied, 562 U.S. 906 (2010). As in

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Shillingstad, we conclude the district court “sufficiently explained that its decision

was based on [Eagle Pipe’s] extensive criminal record.” 632 F.3d at 1038.

Eagle Pipe further argues that the district court committed plain procedural

error by “selecting a sentence based on clearly erroneous facts,” namely, the failure

to make a finding resolving some confusion in the record whether Eagle Pipe has 69,

100, or 101 prior tribal convictions, and the district court’s references to the

prevalence of domestic violence on the Standing Rock Sioux reservation. While

procedural error includes “selecting a sentence based on clearly erroneous facts,”

United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc), this

contention is frivolous. Whether Eagle Pipe has 69 or 101 prior tribal convictions

obviously did not affect the district court’s finding that he “is about as far away from

a Criminal History Category of I as you could get.”

Eagle Pipe did not challenge the court’s comments lamenting the prevalence

of domestic violence on the Standing Rock reservation and surmising that Eagle Pipe

may have committed other acts of domestic violence because such crimes often go

unreported. “As a consequence, the district court had no opportunity to clarify its

comments or to correct any potential error in the first instance. Nor was the district

court prompted to explain whether the comments had any effect on the ultimate

disposition of the case.” United States v. M.R.M., 513 F.3d 866, 870 (8th Cir.), cert.

denied, 555 U.S. 871 (2008). Accordingly, there was no error, much less plain error.

The record does not support a conclusion that these remarks were a “principal basis”

for the court’s choice of sentence. United States v. Stokes, 750 F.3d 767, 772 (8th

Cir. 2014); see United States v. Gant, 663 F.3d 1023, 1030 (8th Cir. 2011).

Finally, Eagle Pipe argues the district court abused its discretion by imposing

a substantively unreasonable sentence because the court gave substantial weight to

an improperly determined upward departure and to its comments on domestic

violence the record does not support. As we have explained, the court imposed a

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well-supported, fully explained § 4A1.3 upward departure based on Eagle Pipe’s

extensive criminal history, and then varied slightly downward from the revised

advisory guidelines range. This is not “the unusual case when we reverse a district

court sentence -- whether within, above, or below the applicable Guidelines range --

as substantively unreasonable.” Feemster, 572 F.3d at 464.

The judgment of the district court is affirmed.