United States v. Arnold J. Pemberton

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1302
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Minnesota.
Arnold James Pemberton, *
*
Defendant - Appellant. *
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Submitted: June 18, 2004
Filed: April 22, 2005
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Before BYE, JOHN R. GIBSON, and BOWMAN, Circuit Judges.
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BYE, Circuit Judge.
Arnold James Pemberton appeals his convictions and sentences following a
plea of guilty to three counts of assault with a dangerous weapon in violation of 18
U.S.C. §§ 113(a)(3), 1151, 1153(a), and 2. We affirm.
I
On April 18, 2002, Pemberton and his cousin Randy Garrigan got into a fight
with Robert "Whitey" Anderson and Leland Lussier at a bar in Bemidji, Minnesota.
Following the altercation, Pemberton and Garrigan obtained a rifle and a handgun and
drove around until they found Anderson, Leland Lussier and Melissa Lussier on a
country road on the Red Lake Indian Reservation. A second confrontation ensued in
which Garrigan shot and seriously wounded both Anderson and Leland Lussier.
Pemberton shot at the trio but it is undisputed the bullets fired from his weapon did
not strike anyone. Melissa Lussier was uninjured in the shootout.
Pemberton and Garrigan were charged in a seventeen-count superceding
indictment with assault with intent to commit murder, assault resulting in serious
bodily injury, assault with a dangerous weapon, conspiracy to use a firearm in
furtherance of a crime of violence and aiding and abetting. The indictment alleged
Pemberton and Garrigan were non-Indians under 18 U.S.C. § 1152, and alternatively,
that Pemberton and Garrigan were Indians under 18 U.S.C. § 1153(a).
Pemberton entered into a plea agreement with the government and pleaded
guilty to Counts 6, 7 and 8, which, inter alia, alleged Pemberton was an Indian under
§ 1153(a). In return for Pemberton's plea of guilty, the government dismissed the
remaining counts.
The plea agreement Pemberton signed states he is an Indian and fired at
Anderson, Leland Lussier and Melissa Lussier without justification and with the
intent to do them bodily harm. The agreement further states Pemberton was unaware
of any facts justifying his actions or the actions of Garrigan. The plea agreement also
states Anderson sustained permanent or life-threatening injuries and Lussier sustained
serious bodily injury. Finally, Pemberton stipulated to a four-level enhancement
under United States Sentencing Guidelines § 2A2.2(b)(3)(A), because permanent,
life-threatening or serious bodily injuries resulted from the assault.
At the change of plea hearing, Pemberton testified he was not an enrolled
member of any tribe but considered himself an Indian. Pemberton further testified his
parents were both Indians and his mother was an enrolled tribal member. Change of
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Plea Tr. 19-20. Pemberton also admitted the facts surrounding the assault, as outlined
above, and conceded the applicability of the four-level enhancement for permanent,
life-threatening or serious bodily injury. Change of Plea Tr. 20-22. The district
court1 accepted the guilty plea and ordered a presentence investigation.
The Presentence Investigation Report (PSR) identified Pemberton as an Indian
who was born on the Red Lake Reservation and lived there with his mother, father
and later his girlfriend's family. The PSR indicated Pemberton has a three-year-old
daughter who lives with his girlfriend on the reservation. Finally, the PSR stated he
attended grade school and high school on the Red Lake Reservation. Pemberton
offered no objection to any of the factual information contained in the PSR.
At sentencing, the district court imposed a fifty-seven month sentence – the low
end of the applicable guideline range. Once again, Pemberton offered no objection
to any of the factual information developed at the change of plea hearing, or
contained in the plea agreement and the PSR. On appeal, however, he argues the
district court lacked jurisdiction over him because there was insufficient factual basis
to conclude he was an Indian under § 1153(a). He further contends the four-level
enhancement was inapplicable because the injuries were solely attributable to the
actions of Garrigan who was acquitted at trial of any wrongdoing.
II
Pemberton first argues the district court lacked jurisdiction because there was
insufficient evidence to establish his status as an Indian under § 1153(a). A dispute
over his status as an Indian or non-Indian, while relevant to the matter of proof at
trial, did not deprive the district court of jurisdiction. See United States v. White
1
The Honorable Joan E. Lancaster, United States District Judge for the District
of Minnesota.
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Horse, 316 F.3d 769, 772 (8th Cir. 2003). "As the Supreme Court has recently made
clear, the matter of jurisdiction has to do only with 'the court's statutory or
constitutional power to adjudicate the case.'" Id. (quoting United States v. Cotton,
535 U.S. 625, 630 (2002) (citation omitted) (emphasis in original)). "Subject-matter
jurisdiction in every federal criminal prosecution comes from 18 U.S.C. § 3231 . . . .
That's the beginning and the end of the 'jurisdictional' inquiry." Id. (quoting Hugi v.
United States, 164 F.3d 378, 380 (7th Cir. 1999)); see also United States v. Beck, 250
F.3d 1163, 1165-66 (8th Cir. 2001) ("[T]he nexus with interstate commerce, which
courts frequently call the 'jurisdictional element,' is simply one of the essential
elements of § 844(i) . . . . It is not jurisdictional in the sense that it affects a court's
subject matter jurisdiction, i.e., a court's constitutional or statutory power to
adjudicate a case.") (quoting United States v. Martin, 147 F.3d 529, 531-32 (7th Cir.
1998)). Thus, we hold the alleged dispute over Pemberton's Indian status did not
deprive the district court of jurisdiction.
Even if Pemberton's characterization of § 1153(a) as jurisdictional is correct,
it is well settled "[i]n order for a defendant who has pleaded guilty to sustain a
challenge to the district court's jurisdiction, he must establish that the face of the
indictment failed to charge a federal offense." Mack v. United States, 853 F.2d 585,
586 (8th Cir. 1988) (citation omitted). Here, he does not challenge the sufficiency of
the indictment, and it is apparent the indictment charged all the necessary elements,
including his Indian status under § 1153(a). While a guilty plea does not confer
jurisdiction, United States v. Mathews, 833 F.2d 161, 164 (9th Cir. 1987), "[a] guilty
plea admits factual allegations in the indictment that form the basis for federal
jurisdiction," Mack, 853 F.2d at 586 (citing Mathews, 833 F.2d at 164). We conclude
his guilty plea was sufficient to establish the factual predicate necessary for the
district court to find he was an Indian under § 1153(a).
We also reject Pemberton's claim that the admitted facts were insufficient to
establish he was an Indian. Relying on United States v. Lawrence, 51 F.3d 150, 152
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(8th Cir. 1995), he contends the only way to establish a defendant's Indian status is
to show he has some Indian blood2 and is recognized as an Indian by a tribe or the
federal government. We disagree. "Enrollment is the common evidentiary means of
establishing Indian status, but it is not the only means nor is it necessarily
determinative." United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979)
(citations omitted). In United States v. Dodge, 538 F.2d 770, 786 (8th Cir. 1976), this
court held defendants who hold themselves out to be Indians and who are of Indian
blood are Indians under § 1153. Here, the facts establish Pemberton identified
himself as an Indian. His parents were both Indians and his mother was an enrolled
member of the tribe. Additionally, he lived for long periods of time on the
reservation and attended grade school and high school on the reservation. He also has
a child and lived together with mother and child on the reservation. We conclude
these admitted facts are sufficient to establish his status as an Indian under § 1153(a).
Finally, Pemberton was charged under § 1153(a) as an Indian, as well as
§ 1152 which alleged he was a non-Indian. As part of the negotiated plea agreement,
Pemberton chose to plead guilty under § 1153(a) and admit he was an Indian.
[R]egardless of which statute applied (one of them certainly did)
[Defendant] was guilty of a federal crime because he, like
everyone else, is either an Indian or he is not. Between them, the
statutes apply to all defendants whatever their race or ethnicity.
In other words, we believe that the situation here is the same as it
would be if we were dealing not with two statutes but with a
single one that provided that it applied whether or not the
defendant was an Indian . . . .
White Horse, 316 F.3d at 773.
2
Pemberton does not dispute he has Indian blood.
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Pemberton next argues the four-level enhancement under § 2A2.2(b)(3)(A) was
inappropriate because there was insufficient evidence to establish the factual
predicate for the enhancement. He, however, admitted the underlying facts and
stipulated in the plea agreement to the applicability of the enhancement. Further, he
failed to object to application of the enhancement in the PSR or at the sentencing
hearing.
Because Pemberton raised no objection in the district court to the sufficiency
of this evidence, we review his claim for plain error and accord relief only if the
alleged error "affect[s] substantial rights [and] seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings." White Horse, 316 F.3d at 772(quoting Cotton, 535 U.S. at 632-33 (2002). Here, the facts admitted by him are
more than sufficient to withstand plain error review. Accordingly, we reject his
contentions and conclude he is bound by the agreement and his admissions. See
United States v. Wicker, 80 F.3d 263, 267 (8th Cir. 1996) (holding defendant's
admissions at plea hearing provided abundant evidence in support of guilty plea);
United States v. Peebles, 80 F.3d 278, 279 (8th Cir. 1996) (per curiam) (holding
defendant's claims of innocence are unavailing given admissions to the contrary in
plea agreement, stipulation, and at change-of-plea hearing); see also United States v.
Stuttley, 103 F.3d 684, 686 (8th Cir. 1996) (holding post-plea regrets are not a fair
and just reason to warrant withdrawal of guilty plea).
III
The order and judgment of the district court are affirmed.
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