                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT



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          No. 05-2367                 *
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                                      *
United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
John H. Sitting Bear,                 *
                                      *
            Appellant.                *      Appeals from the United States
                                      *      District Court for the
       ________________               *      District of South Dakota.
                                      *
          No. 05-2368                 *
       ________________               *
                                      *
United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
Melinda L. Marshall,                  *
                                      *
            Appellant.                *

                              ________________

                              Submitted: January 11, 2006
                                  Filed: February 7, 2006
                              ________________
Before MURPHY, HANSEN, and SMITH, Circuit Judges.
                        ________________

HANSEN, Circuit Judge.

       John H. Sitting Bear pleaded guilty to committing second degree murder in
Indian country, 18 U.S.C. §§ 1153 and 1111, and Melinda L. Marshall pleaded guilty
to aiding and abetting second degree murder in Indian country, 18 U.S.C. §§ 1153,
1111, and 2, following the tragic death of their four-year-old son, John, Jr. The
district court1 sentenced each of them to 228 months (19 years) of imprisonment, from
which they both appeal. We affirm as to each defendant.

                                   I. Background

       Sitting Bear and Marshall were the parents of four-year-old John, Jr., who died
following a period of abuse by Sitting Bear and Marshall. Marshall's sister raised
John, Jr. from the time of his birth until he was almost four years old while Marshall
was serving time in federal prison for assault with a deadly weapon. Marshall and
Sitting Bear fought for and won custody of John, Jr. around Christmas 2002. He died
less than six months later on June 19, 2003.

       Marshall and Sitting Bear each accused the other of various forms of abuse
against John, Jr. prior to his death. The evidence revealed that John, Jr. was toilet
trained when he was returned to his parents. Following his return to their custody,
Marshall got upset when John, Jr. made messes in his pants, and she often withheld
food from him so that she would not have to clean up after him. In the six months in
which John, Jr. was under Marshall's and Sitting Bear's care, he lost 19 pounds,
weighing only 30 pounds at the time of his death. Marshall also spanked John, Jr.


      1
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
                                         -2-
with the metal handle of a fly swatter on his back, legs, and buttocks. According to
Sitting Bear, these beatings were nearly daily. Sitting Bear was a forest firefighter and
was away from home for stretches at a time. Although he left the primary discipline
to Marshall, Marshall claimed that Sitting Bear frequently spanked John, Jr. with a fly
swatter, belt, or curtain rod as well.

       Both defendants claimed that the other beat John, Jr. on the evening of June 17.
It is undisputed, however, that on June 18, Sitting Bear woke John, Jr. early in the
morning as Sitting Bear was getting ready for a firefighter training class and sent
John, Jr. out to the outhouse to use the bathroom. Unsatisfied with John, Jr.'s slow
pace, Sitting Bear shoved John, Jr. out the door, causing John, Jr. to fall on the
cement. John, Jr. was still moving slowly when he returned to the house, so Sitting
Bear shoved him again, this time pushing him into a wall. Sitting Bear then picked
him up and swung him around by his arm, swinging his head into a table. John, Jr.
was unresponsive following the blow to his head. Sitting Bear and Marshall took
John, Jr. to the Rosebud hospital, and he was transported by air ambulance to Rapid
City Regional Hospital where he died the following day. Both were charged with first
degree murder and aiding and abetting first degree murder. Sitting Bear ultimately
pleaded guilty, without the benefit of a written plea agreement, to second degree
murder, and Marshall pleaded guilty, pursuant to a written plea agreement, to aiding
and abetting second degree murder.

       At the joint sentencing hearing held in May 2005, Sitting Bear and Marshall
continued to blame the other for various abuses to John, Jr., although Sitting Bear
admitted to his actions on June 18 that led to John, Jr.'s death. The district court
assessed a two-level enhancement to Sitting Bear's base offense level for obstruction
of justice based on Sitting Bear's interviews with the FBI investigators. The court also
granted Sitting Bear a three-level reduction for acceptance of responsibility, resulting
in a sentencing range of 151 to 188 months. The court determined that upward
departures no longer exist after United States v. Booker, 543 U.S. 220 (2005), and,

                                           -3-
applying the sentencing factors contained in 18 U.S.C. § 3553(a), sentenced Sitting
Bear to a non-Guidelines sentence of 228 months of imprisonment. The district court
determined Marshall's sentencing range to be 151 to 188 months, based in part on a
criminal history category III. Marshall had a prior felony conviction for assault with
a deadly weapon and was on supervised release from that conviction at the time of the
instant offense. Although not included in her criminal history score, Marshall also
had a prior child neglect conviction in tribal court (involving a different child) and
several child abuse arrests over the previous several years. The court likewise
sentenced Marshall to 228 months in prison, noting the irony of the fact that while
Marshall had committed most of the abuse over the prior six months in which she and
Sitting Bear had custody of John, Jr., it was Sitting Bear's actions that led to his
ultimate death. The court found them equally culpable in John, Jr.'s death.

      Sitting Bear appeals his sentence, arguing that the district court erred in
assessing the two-level enhancement for obstruction of justice, erred in sentencing
him above the sentencing range without giving notice under Federal Rule of Criminal
Procedure 32(h), and violated his right to due process by sentencing him above the
advisory Guidelines range without considering the departure factors contained in the
United States Sentencing Guidelines, resulting in an unreasonable sentence. Marshall
appeals her sentence, arguing that it is an unreasonable sentence in light of the
§ 3553(a) sentencing factors.

                                Sitting Bear's Sentence

      A.     Rule 32(h) Notice
      Sitting Bear's sentence above the advisory Guidelines range was not based on
an upward departure for which he was entitled to notice under Rule 32(h).2 Rather,

      2
       "Before the court may depart from the applicable sentencing range on a ground
not identified for departure either in the presentence report or in a party's prehearing
submission, the court must give the parties reasonable notice that it is contemplating
                                          -4-
it was a non-Guidelines sentence, a variance if you will, based upon the district court's
review of the case and Sitting Bear's history in light of all of the § 3553(a) sentencing
factors. Sitting Bear's claim to Rule 32(h) notice lacks merit under our circuit
precedent, see United States v. Long Soldier, 431 F.3d 1120, 1122 (8th Cir. 2005)
("[N]otice pursuant to Rule 32(h) is not required when the adjustment to the sentence
is effected by a variance, rather than by a departure."); United States v. Egenberger,
424 F.3d 803, 805 (8th Cir. 2005) (same), cert. denied, 2006 WL 37949, 74 U.S.L.W.
3393 (U.S. Jan. 9, 2006), and the district court did not err in failing to give Sitting
Bear any Rule 32(h) notice.

      B.      USSG § 3C1.1 Obstruction of Justice Enhancement

       Sitting Bear argues that his interviews with the investigators did not amount to
an obstruction of justice warranting a two-level enhancement under U. S. Sentencing
Guidelines Manual (USSG) § 3C1.1 (2003). We review the district court's factual
findings used to support an obstruction of justice enhancement for clear error, but we
apply a de novo review to the application of the enhancement to the facts found by the
district court. United States v. Vinton, 429 F.3d 811, 818 (8th Cir. 2005).

       The obstruction of justice enhancement applies if the defendant "willfully
obstructed or impeded, or attempted to obstruct or impede, the administration of
justice during the course of the investigation . . . of the instant offense of conviction."
USSG § 3C1.1. One example of behavior that triggers the enhancement is when a
defendant "provid[es] a materially false statement to a law enforcement officer that
significantly obstructed or impeded the official investigation . . . of the instant
offense."Id. § 3C1.1, comment. (n.4(g)). "Material" is defined as "evidence, fact,
statement, or information that, if believed, would tend to influence or affect the issue
under determination." Id., comment. (n.6).


such a departure. The notice must specify any ground on which the court is
contemplating a departure." Fed. R. Crim. P. 32(h).
                                            -5-
       Sitting Bear met with investigators several times beginning on June 18, the day
John, Jr. went into a coma and was hospitalized. Sitting Bear originally told FBI
agents on that date that John, Jr.'s injuries resulted from him falling off of the hood of
a parked car a few days prior to going into the coma. Sitting Bear denied ever hitting
John, Jr. Sitting Bear met with the agents two days later on June 20, after John, Jr.
had died, and added to his story that John, Jr. had fallen off of his bike a week prior
to entering the coma, had been knocked down by a dog, and had recently fallen from
a jungle gym. At this time Sitting Bear admitted to pushing John, Jr. out of the door
the morning that he went into the coma, causing him to hit his head on the cement
porch, but he continued to deny any further involvement.

       Sitting Bear and Marshall were both indicted on first degree murder charges in
August 2003. During an interview in February 2004, Sitting Bear told investigators
that Marshall had hit John, Jr. on the evening of June 17, knocking his head into a
door frame. It was not until an interview on April 7, 2004, nearly ten months after
John, Jr.'s death, that Sitting Bear told investigators about swinging John, Jr.'s head
into the table.

       The district court found that Sitting Bear lied on June 18 when he told the
investigators that John, Jr.'s injuries resulted from falling off of a parked car three days
earlier and when he denied hitting John, Jr. Sitting Bear's argument that the other
events that might have caused John, Jr.'s injuries actually happened, and therefore he
did not lie, misses the point. He may not have lied about the other accidents
occurring, but he certainly misled the investigators about the cause of John, Jr.'s
injuries that put him into a coma. We further reject Sitting Bear's brazen attempt to
construe his statement that he did not hit John, Jr. as technically truthful. Sitting
Bear's denial that he hit John, Jr., knowing full well that he had shoved John, Jr. into
a wall and swung his head into a table immediately prior to John, Jr. losing
consciousness, was a blatant lie in an attempt to place the blame for his son's injuries


                                            -6-
elsewhere. The district court's conclusion that Sitting Bear lied to the investigators
is not clearly erroneous.

       Lying to investigators in and of itself does not support a § 3C1.1 enhancement
for obstructing justice. The false statements must have been material to the
investigation. Further, general denials of guilt that are not made under oath do not
support an obstruction enhancement. See United States v. Yankton, 986 F.2d 1225,
1228 (8th Cir. 1993) (holding that a statement to tribal officers that "I did not rape .
. . my niece" was a general denial which would not support an obstruction
enhancement). But Sitting Bear did more than deny his guilt. He misled the
investigators with stories unrelated to his own actions in an attempt to divert the
investigators from focusing their attention on him, and he denied his own
involvement. The misleading stories and denial of any involvement were certainly
material to the investigation into the cause of John, Jr.'s injuries.

       We also agree with the district court that Sitting Bear's misleading statements
impeded the investigation. One of the investigators testified that Sitting Bear's
admission in April 2004 that he swung John, Jr. into the kitchen table "was a
significant step forward in the investigation." (Nov. 29, 2004, Sent. Tr. at 52.) Prior
to that time, the investigators were focused on both parents as the cause of John, Jr.'s
death, but the investigators had no basis for determining which of the two was
responsible for the ultimate act that sent John, Jr. into a coma and caused his death.
In February 2004, Sitting Bear implicated Marshall by telling the investigators that
Marshall had knocked John, Jr. into a door frame the night before he went into the
coma, but Sitting Bear continued to withhold the extent of his own actions on the
morning of June 18. Although Sitting Bear had no obligation to tell investigators
anything, once he chose to talk, he had an obligation to be truthful. Sitting Bear's
exculpatory explanations and attempts to point the finger at his codefendant without
providing the full picture of his own actions support the district court's application of

                                           -7-
the obstruction of justice enhancement. See United States v. Baker, 200 F.3d 558, 562
(8th Cir. 2000) (holding that statements to the investigator that provided an
exculpatory version of events and caused the investigator to conduct further analysis
of financial transactions was more than a mere denial of guilt and supported an
obstruction enhancement).

      C.     The Reasonableness of Sitting Bear's Sentence

        At sentencing, the district court stated that following Booker, "[t]here's no such
thing as an upward departure." (May 9, 2005, Sent. Tr. at 72; see also id. at 68, 71.)
We agree with Sitting Bear that the district court clearly erred in so concluding. As
we explained in United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.), cert.
denied, 126 S. Ct. 276 (2005), post-Booker, there are essentially three steps to
determining an appropriate sentence. First, the district court should determine the
applicable Sentencing Guidelines range without consideration of any Guidelines
departure factors, because the Guidelines remain an important sentencing factor. See
§ 3553(a)(4). Second, the district court, where appropriate, should consider the
departure provisions contained in Chapter 5, Part K and/or § 4A1.3 of the Guidelines,
as those sentencing provisions have not been excised by Booker. The resulting range
is the post-Booker advisory Guidelines range. Third, the district court should consider
the rest of the § 3553(a) factors in determining whether to impose the "Guidelines
sentence" as determined in the prior steps or a "non-Guidelines sentence" driven by
the other § 3553(a) considerations, and sentence the defendant accordingly. Haack,
403 F.3d at 1003; see also United States v. Denton, No. 05-1978, 2006 WL 162980,
at *7 (8th Cir. Jan. 24, 2006) (reviewing the sentence imposed by the district court
under the three-part Haack methodology). "When a court of appeals reviews a district
court's sentencing determination for reasonableness, the correct [G]uidelines range is
still the critical starting point for the imposition of a sentence." United States v. Hawk


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Wing, No. 05-2263, 2006 WL 27681, at *7 (8th Cir. Jan. 6, 2006) (internal marks
omitted).

       Sitting Bear argues that the district court's failure to consider an upward
departure under the Haack analysis deprived him of due process because it allowed
the district court to circumvent the assessment of justifying factors contained in the
departure Guidelines. Although the district court erred, the error was harmless. As
we recently noted in rejecting a similar argument in Long Soldier:

      The district court's erroneous belief that it could not depart upward did
      not deprive [Sitting Bear] of any substantial-or even beneficial-right. He
      was deprived merely of the opportunity to receive an upward departure
      and, perhaps, a longer sentence. As such, any error is harmless pursuant
      to Fed. R. Crim. P. 52(a).

431 F.3d at 1122. Further, there can be no due process violation without a showing
of undue harshness, see United States v. Wade, No. 05-2181, 2006 WL 73474, at *2
(8th Cir. Jan. 13, 2006), which is totally lacking here.

       Finally, Sitting Bear has failed to establish that his ultimate sentence is
unreasonable, i.e., that the district court abused its discretion in sentencing him to 228
months of imprisonment, or 40 months above the advisory Guidelines range
(computed without considering any grounds for an upward departure). After
considering Sitting Bear's minimal criminal history, background, and the specific facts
of the case, the district court stated, "[t]his is such an aggravated case. It is one thing
to cause the death of your child. But with this amount of torture that was going on I
am, of course, going to take that into account in sentencing here." (May 9, 2005, Sent.
Tr. at 79.) We conclude that the sentence is not unreasonable.




                                            -9-
                              III. Marshall's Sentence

       The only challenge Marshall makes to her sentence is its reasonableness. We
review the sentence imposed by the district court for an abuse of discretion. Long
Soldier, 431 F.3d at 1123. "A sentencing court abuses its discretion if its 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 in weighing those factors."
Id. Relevant factors for sentencing purposes are those factors identified in § 3553(a).

      Marshall points to § 3553(a)(6), the need to avoid unwarranted sentencing
disparity, and argues that she should have been sentenced based on her actual conduct,
which was child abuse. She believes that her 228-month sentence is extreme when
compared to two cases where defendants convicted of abusing children received
sentences of 51 and 63 months. We dismiss this disparate sentencing argument by
noting simply that those cases did not involve the six months of torture endured by
John, Jr. at the hands of his own mother or result in the children's death. Marshall
pleaded guilty to aiding and abetting second degree murder, not to committing child
abuse. Whoever aids and abets the commission of another crime is punishable as a
principal. 18 U.S.C. § 2. This is not the type of disparity with which Congress was
concerned.

       The district court found that Marshall and Sitting Bear were equally culpable
for the actions that led to and ultimately caused John, Jr.'s death. It supported its
sentence with findings that "up until the last day of [John, Jr.'s] life [Marshall] was
responsible for more of this child abuse than was Mr. Sitting Bear." (May 9, 2005,
Sent. Tr. at 72.) In addition, John, Jr. had at least seven impact injuries to his head
and 26 separate impact injuries to his back, buttocks, and legs. There was ample
evidence of nearly daily abuse, mostly by Marshall. The pathologist who performed

                                         -10-
the autopsy could not determine whether John, Jr.'s death was caused by the June 18
blow to his head or a combination of blows, some of which were older. During the
six months that John, Jr. was in his mother's and father's care, he lost 19 pounds.
Numerous witnesses testified that Marshall withheld food from him because he
messed his pants and she did not like cleaning up after him. The district court
considered Marshall's childhood, history of prior abuse toward her children, and the
testimony of various witnesses in setting Marshall's sentence 40 months above the
advisory Guidelines range. The district court amply supported the sentence it imposed
on Marshall, which we believe is more than reasonable.

       We likewise reject Marshall's argument that the district court erroneously
considered her criminal history in sentencing her outside of the Guidelines range
because her history was included in the Criminal History category III that resulted in
the 151- to 188-month advisory range. The district court relied in part on the abuse
inflicted against John, Jr., as well as abuse inflicted against her other children, none
of which was reflected in Marshall's criminal history. There was no improper double
counting of Marshall's criminal history.

                                   III. Conclusion

      The district court's judgments are affirmed.
                       ______________________________




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