United States Court of Appeals

For the Eighth Circuit 

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No. 20-3694

No. 20-3703

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United States of America

 Plaintiff - Appellee

v.

Palani Sam Bull Bear-Gardipe

 Defendant - Appellant

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Appeal from United States District Court 

for the District of South Dakota - Western

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Submitted: October 19, 2021

Filed: January 26, 2022

[Unpublished]

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Before GRUENDER, ERICKSON, and STRAS, Circuit Judges. 

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PER CURIAM.

Palani Bull Bear pleaded guilty to voluntary manslaughter in violation of 18 

U.S.C. §§ 1153 and 1112, discharge of a firearm during the commission of a crime 

of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii), and bank robbery in 
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violation of 18 U.S.C. § 2113(a). The district court1 sentenced Bull Bear to 120 

months’ imprisonment on the voluntary manslaughter conviction, varying upward

from an advisory sentencing guideline range of 78 to 97 months, and a concurrent 

sentence of 78 months’ imprisonment on the bank robbery conviction. Bull Bear 

also received a term of 120 months’ consecutive imprisonment on the conviction for 

discharge of a firearm during the commission of a crime of violence. See 18 U.S.C. 

§ 924(c)(1)(A)(iii) (stating that a 120-month sentence consecutive to that of the 

underlying crime is required for a violation of the statute). Thus, Bull Bear was 

sentenced to a total of 240 months’ imprisonment. Bull Bear appeals, arguing that 

the district court committed procedural errors and that his sentence is substantively 

unreasonable. 

“When we review the imposition of sentences, whether inside or outside the 

Guidelines range, we apply a deferential abuse-of-discretion standard.” United 

States v. Hayes, 518 F.3d 989, 995 (8th Cir. 2008) (internal quotation marks 

omitted). “We review a sentence first for procedural error.” United States v. 

Dengler, 695 F.3d 736, 739 (8th Cir. 2012) (internal quotation marks omitted). “In 

the procedural error analysis, a district court’s interpretation and application of the 

guidelines is reviewed de novo and its factual findings are reviewed for clear error.” 

Id. “Procedural error includes failing to calculate (or improperly calculating) the 

Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 

U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or 

failing to adequately explain the chosen sentence,” “including an explanation for any 

deviation from the Guidelines range.” United States v. Feemster, 572 F.3d 455, 461

(8th Cir. 2009) (en banc). 

Bull Bear raises several claims of procedural error. First, to the extent he 

argues that the district court abused its discretion by denying his motions for 

downward departures based on victim conduct under U.S.S.G. § 5K2.10, age under

1

The Honorable Karen E. Schreier, United States District Court for the District 

of South Dakota. 
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§ 5H1.1, and mental and emotional conditions under § 5H1.3, “[t]he discretionary 

denial of a motion for downward departure is unreviewable unless the court failed 

to recognize its authority to depart.” United States v. Andreano, 417 F.3d 967, 970 

(8th Cir. 2005). Here, the district court considered each of these grounds for a 

downward departure explicitly and made clear it did not consider Bull Bear

deserving of a downward departure on any of them. From this, we conclude that the 

district court recognized its authority to depart but determined that a discretionary 

departure was unwarranted. See United States v. Left Hand Bull, 901 F.2d 647, 650 

(8th Cir. 1990) (holding unreviewable the discretionary decision to deny a 

downward departure under USSG § 5K2.10); United States v. Jefferson, 816 F.3d 

1016, 1021 (8th Cir. 2016) (same for § 5H1.1); United States v. Dixon, 650 F.3d 

1080, 1084 (8th Cir. 2011) (same for § 5H1.3).

Second, Bull Bear claims that the district court based its sentence on clearly 

erroneous fact findings. His claim that the district court relied on erroneous fact

findings regarding who started the verbal altercation between Bull Bear and Brycee 

Red Owl, the victim of the voluntary manslaughter, is unreviewable because it 

challenges the district court’s denial of his § 5K2.10 downward departure motion. 

See Andreano, 417 F.3d at 970. To the extent that Bull Bear’s challenge is broader, 

there is no plain error. Bull Bear also argues that the district court relied on “facts 

outside the record” when it said that the bank teller robbed by Bull Bear was “going 

to have nightmares for the rest of her life,” and that it will be “hard for her to do that 

job” because she will wonder if every customer plans to rob her and “if she’s going 

to be able to go home that night alive.” Because Bull Bear did not object to the 

court’s statements when they were made, we review for plain error. See United 

States v. Harrell, 982 F.3d 1137, 1140 (8th Cir. 2020). We conclude that the court 

did not plainly err because “[t]he record does not support a conclusion that these 

remarks were a ‘principal basis’ for the court’s choice of sentence.” See United 

States v. Eagle Pipe, 911 F.3d 1245, 1248 (8th Cir. 2019).

Third, Bull Bear argues that the district court “failed to consider or discuss the 

[§] 3553(a) factors or even mention them.” When reviewing for procedural error, 
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“[w]e do not require a district court to provide a mechanical recitation of the 

§ 3553(a) factors when determining a sentence. Rather, it simply must be clear from 

the record that the district court actually considered the § 3553(a) factors in 

determining the sentence.” Feemster, 572 F.3d at 461. Here, the record makes clear 

that the district court considered the § 3553(a) factors in arriving at Bull Bear’s 

sentence. For example, the district court discussed Bull Bear’s age, background, and 

upbringing, see § 3553(a)(1) (directing the court to consider “the history and 

characteristics of the defendant”); the fact that Bull Bear committed “crimes of 

violence” that “involved a firearm,” see id. (directing the court to consider “the 

nature and circumstances of the offense”); the impact of Bull Bear’s actions on the 

victims and the community, see § 3553(a)(2)(A) (directing the court to consider “the 

need for the sentence imposed to reflect the seriousness of the offense”); and the fact 

that Bull Bear’s actions indicated that he was “not somebody that was trying to 

follow the law,” see id. (directing the court to consider “the need for the sentence 

imposed . . . to promote respect for the law”).

Finally, Bull Bear argues that the district court “failed to offer any explanation 

for the sentence imposed,” including “any reasons for deviating from the guideline 

range.” As noted above, however, the district court explained its sentence in terms 

of the § 3553(a) factors. And it addressed the upward variance specifically, 

explaining that it was appropriate because “[the killing of Red Owl] happened a 

month after the armed bank robbery, . . . both [crimes] involved a firearm, and [one 

of them] resulted in [a] death, when there was really no provocation at all for that 

death.”2

 We conclude that the district court provided a sufficient explanation of the 

sentence imposed. See United States v. Hill, 552 F.3d 686, 691-92 (8th Cir. 2009).

2

The district court first referred to the 120-month sentence on the voluntary 

manslaughter conviction as an “upward departure.” However, upon Bull Bear’s 

objection to lack of notice for a departure, the district court corrected its error when 

it denied the objection, stating, “I did not upward depart. I upward varied.” Because

the district court properly treated the deviation from the Guidelines as a variance, 

we accept this correction. Cf. United States v. Chase, 560 F.3d 828, 830-31 (8th Cir. 

2009) (rejecting the district court’s interchangeable use of “departure” and 
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In the absence of procedural error, we then consider the “substantive 

reasonableness” of a sentence “under an abuse-of-discretion standard.” Dengler, 

695 F.3d at 739. “When conducting this review, the court will, of course, take into 

account the totality of the circumstances, including the extent of any variance from 

the Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007). Here, the 

district court did not abuse its discretion when it varied upward on the voluntary 

manslaughter count. The district court considered the seriousness of the offenses, 

as well as the fact that they occurred just one month apart. See United States v. 

Senior, 935 F.2d 149, 151 (8th Cir. 1991) (finding that proximity in time is an 

appropriate factor to consider when deviating from the guidelines range). In light of 

the seriousness of the offenses and the close proximity in time between the two 

offenses, the sentence is not substantively unreasonable. See id.; United States v. 

Cunningham, 593 F.3d 726, 733 (8th Cir. 2010) (finding that a sentence was not 

substantively unreasonable when the “seriousness of th[e] offense” was a large part 

of the district court’s consideration). 

For the foregoing reasons, the judgment of the district court is affirmed.

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“variance” because it was unclear whether the district court “properly consider[ed] 

the factors it was required to consider”).