United States v. Lori Wisecarver , 911 F.3d 554 ( 2018 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 17-3606
    ___________________________
    United States of America
    lllllllllllllllllllllPlaintiff - Appellee
    v.
    Lori Ann Wisecarver
    lllllllllllllllllllllDefendant - Appellant
    ____________
    Appeal from United States District Court
    for the District of South Dakota - Rapid City
    ____________
    Submitted: October 15, 2018
    Filed: December 20, 2018
    ____________
    Before SHEPHERD, KELLY, and STRAS, Circuit Judges.
    ____________
    SHEPHERD, Circuit Judge.
    Lori Ann Wisecarver pled guilty to second-degree murder in violation of 18
    U.S.C. §§ 1111(a) and 1153. The district court1 granted the government’s request for
    an upward departure or an upward variance, sentencing Wisecarver to 480 months
    1
    The Honorable Jeffrey L. Viken, Chief Judge, United States District Court for
    the District of South Dakota.
    imprisonment. She appeals, alleging her sentence is substantively unreasonable.
    Having jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we affirm.
    In 2014, Wisecarver and her husband received custody of J.L., then about two
    years old, based on a distant family relationship. J.L. and his siblings had been
    removed from their mother’s custody due to her drug abuse. In the months that
    followed, Wisecarver physically abused J.L., motivated largely by frustration over
    toilet-training issues. Wisecarver’s physical abuse of J.L. culminated on February 24,
    2015 when an ambulance brought the boy to the Pine Ridge Indian Health Services
    Hospital. J.L. was pronounced dead shortly after arrival. The boy’s autopsy revealed
    that he had been abused for some time; he was covered in old and new injuries,
    including bruises, burn-like injuries to his face, and injuries to his genitals. He died
    from multiple blunt trauma injury, including catastrophic injuries to the head and
    abdomen. When interviewed about J.L.’s death, Wisecarver initially denied killing
    the child, claiming he had fallen due to a seizure. The subsequent investigation
    contradicted this claim. Several individuals, including J.L.’s pediatrician, denied that
    the child had seizures, and witnesses familiar with the family reported seeing
    Wisecarver hit J.L.’s head against a concrete floor, duct tape the child to a toilet, rub
    the child’s face in urine, and put the child in a washing machine. In September 2015,
    the government charged Wisecarver and her husband with first-degree murder and
    several counts of child abuse. To avoid a mandatory life sentence, Wisecarver pled
    guilty to second-degree murder and signed a statement admitting to repeated physical
    abuse of J.L. that resulted in his death.
    Wisecarver’s presentence investigation report (PSR) generated a United States
    Sentencing Guidelines range of 210-262 months imprisonment due, in part, to
    Wisecarver’s lack of criminal history. At sentencing, the government sought an
    upward departure or upward variance to 480 months, contending that the PSR’s
    calculation of the appropriate Guidelines range failed to consider the “exceptionally
    heinous, cruel, brutal, or degrading” nature of the crime and the original dismissed
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    charges. United States Sentencing Commission, Guidelines Manual, §§ 2A1.2,
    comment. (n.1) (stating “an upward departure may be warranted” in second degree
    murder cases involving heinous conduct), 5K2.8 (noting a court may depart upward
    to reflect the “unusually heinous” nature of the offense conduct), 5K2.21 (stating a
    “court may depart upward to reflect the actual seriousness of the offense based on
    conduct . . . dismissed as part of a plea agreement . . . .”). The district court granted
    both the upward departure and the upward variance. It cited U.S.S.G. § 5K2.0—the
    Guidelines’ policy statement for grounds for departure, including aggravating or
    mitigating circumstances—as additional support for its decision. The district court
    found that both the Guidelines’ departure provisions and the 18 U.S.C. § 3553(a)
    variance factors led the court to impose the same above-guidelines sentence of 40
    years imprisonment. Wisecarver now challenges the district court’s upward variance
    and upward departure. She contends that her sentence is substantively unreasonable,
    arguing it is disparately long compared to the sentences imposed on similar
    defendants.
    We review the substantive reasonableness of a sentence using “a deferential
    abuse of discretion standard,” considering “the totality of the circumstances,
    including the extent of any variance from the Guidelines range.” Gall v. United
    States, 
    552 U.S. 38
    , 41, 51 (2007). A district court abuses its discretion when it fails
    to give significant weight to a relevant factor; “gives significant weight to an
    improper or irrelevant factor;” or considers the proper factors but “commits a clear
    error of judgment” in weighing them. United States v. Feemster, 
    572 F.3d 455
    , 461
    (8th Cir. 2009) (en banc) (internal quotation marks omitted). It is “the unusual case
    when we reverse a district court sentence—whether within, above, or below the
    applicable Guidelines range—as substantively unreasonable.” 
    Id. at 464
    (quoting
    United States v. Gardellini, 
    545 F.3d 1089
    , 1090 (D.C. Cir. 2008)).
    One of the seven § 3553(a) factors requires that the court consider “the need
    to avoid unwarranted sentence disparities among defendants with similar records who
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    have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). However, it is
    not necessarily an abuse of discretion to impose an above-range sentence, including
    the statutory maximum, in “extraordinary” cases in which there are “aggravating
    circumstances . . . not adequately taken into account by a shorter term of
    imprisonment.” United States v. Lovato, 
    868 F.3d 681
    , 684 (8th Cir. 2017)
    (affirming a sentence that was virtually quadruple the recommended Guidelines range
    when the defendant regularly sexually abused a minor over the course of eight and
    a half years). When a disparity arises between a defendant’s sentence and the
    sentences given in other similar cases, this difference must be weighed against the
    other six factors. United States v. Soliz, 
    857 F.3d 781
    , 783 (8th Cir. 2017), cert.
    denied, 
    138 S. Ct. 567
    (2017). Furthermore, a “district court has wide latitude to
    weigh the § 3553(a) factors in each case and assign some factors greater weight than
    others in determining an appropriate sentence.” United States v. Bridges, 
    569 F.3d 374
    , 379 (8th Cir. 2009).
    Wisecarver argues that her sentence is disproportionately severe compared to
    the sentences given in other cases involving the deaths of children. She therefore
    contends that outrage, rather than proper balancing of the § 3553(a) factors, primarily
    drove the district court’s analysis. However, the district court was explicit in its
    reasoning. It emphasized that it “thought about [the sentence] long and hard,” Sent.
    Tr. 30, Dist. Ct. Dkt. 157, and stressed that Wisecarver’s case was unusual compared
    to other child death cases because J.L.’s autopsy demonstrated that he “sustained
    repeated and over a period of time really brutal and heinous and cruel injuries which
    finally resulted in the child’s death.” Sent. Tr. 31. The court described its struggle
    to find comparable cases involving such severe and sustained child abuse; it stated
    it had seen only one other case that “would even come close to being more horrific
    than this homicide of an infant.” Sent. Tr. 33. All of the cases cited by Wisecarver
    are distinguishable from her own, involving neglect rather than violent abuse, single
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    incidents rather than prolonged mistreatment, or multiple abusers rather than one.2
    In addition to clearly considering potential sentence disparity, the district court
    expressly weighed other statutory considerations justifying the sentence imposed
    including the seriousness of the offense, Wisecarver’s need for treatment, the interest
    in deterring similar criminal conduct, and the need to protect the public from further
    crimes. See 18 U.S.C. § 3553(a)(2). While the district court clearly “assign[ed] . .
    . greater weight” to the seriousness of the offense than it did to other factors, under
    § 3553(a), it had “wide latitude” to do so. See United States v. Maxwell, 
    664 F.3d 240
    , 247 (8th Cir. 2011) (quoting 
    Bridges, 569 F.3d at 379
    ). Therefore, the court did
    not abuse its discretion in granting an upward variance.
    Finally, Wisecarver fails to allege any specific error in the district court’s
    application of the Guidelines’ departure provisions. Instead, she broadly contends
    that its use of the departure provisions resulted in a substantively unreasonable
    sentence. Rather than identifying a sole source for its enhanced sentence, the district
    court framed a Guidelines departure based on “heinous” conduct and a variance based
    on the § 3553(a) factors as alternative bases for arriving at the same 40-year sentence.
    In such instances, if “the district court did not abuse its substantial discretion in
    varying upward . . . , any error in alternatively imposing an upward departure [is]
    harmless because ‘the district court would have imposed the same sentence absent the
    error.’” United States v. Grandon, 
    714 F.3d 1093
    , 1098 (8th Cir. 2013) (quoting
    United States v. Idriss, 
    436 F.3d 946
    , 951 (8th Cir. 2006)). Therefore, because the
    district court did not abuse its discretion in varying upward, we necessarily find no
    reversible error in the district court’s reference to the departure provisions, and we
    need not discuss the district court’s departure analysis.
    2
    Though the government also charged Wisecarver’s husband with J.L.’s death,
    it is undisputed that he was away from the home at the time Wisecarver fatally
    harmed J.L. and that Wisecarver was the primary abuser of the child.
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    Because the district court did not abuse its discretion in imposing Wisecarver’s
    sentence, we affirm.
    ______________________________
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