United States Court of Appeals

For the Eighth Circuit

___________________________

No. 17-3657

___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Matthew St. Pierre

lllllllllllllllllllllDefendant - Appellant

____________

Appeal from United States District Court 

for the District of South Dakota - Aberdeen

____________

Submitted: October 15, 2018

Filed: January 11, 2019

____________

Before SHEPHERD, KELLY, and STRAS, Circuit Judges.

____________

SHEPHERD, Circuit Judge.

Matthew St. Pierre pled guilty to aiding and abetting second-degree murder in

violation of 18 U.S.C. §§ 2, 1111, and 1153. Pursuant to a plea agreement, the

government recommended a United States Sentencing Guidelines range of 292-365
months imprisonment. The district court rejected the plea agreement’s recommended

1

sentencing range, adopted a higher range, and sentenced St. Pierre to 480 months

imprisonment. St. Pierre appeals, contending the government breached the plea

agreement and the district court committed procedural and substantive error in

calculating his sentence. Having jurisdiction pursuant to 18 U.S.C. § 3742 and 28

U.S.C. § 1291, we conclude the government did not breach the plea agreement. 

Therefore, the appeal waiver is enforceable with respect to the other claims raised

here, and we dismiss the appeal.

G.K.I.W., a five-year-old girl, lived with her mother, Desarae Makes HimFirst,

and St. Pierre, her mother’s domestic partner, on the Standing Rock Sioux Indian

Reservation. On Wednesday, October 5, 2016, staff at G.K.I.W.’s elementary school

noticed the child had bruising on her face, including her cheek and forehead. When

asked what happened, G.K.I.W. said St. Pierre hit her while he was drunk. She began

crying when staff asked if she had been hurt anywhere else. A school nurse found

additional bruises on G.K.I.W.’s collarbone, and staff alerted the South Dakota

Department of Social Services Child Protection Services (DSS) and the Standing

Rock Sioux Tribe Child Protection Services (SRST-CPS). A DSS social worker

examined G.K.I.W. and found even more bruising on the child’s stomach. Though

SRST-CPS said they would respond to the claim, they did not do so before G.K.I.W.

returned home.

The next day, school officials tried to contact SRST-CPS multiple times, but

SRST-CPS did not return their calls. Eventually, G.K.I.W.’s school called the Fort

Yates Police Department, but once again, no one responded to the call. The school

officials were particularly concerned because there would be no school the following

day (Friday) or the following Monday, and they feared for G.K.I.W.’s safety at home

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

1

District of South Dakota.

-2-
that long without an investigation. Despite these concerns, G.K.I.W. was allowed to

return home.

When school resumed the following Tuesday, October 11, G.K.I.W. was

absent. Her sister said she was sick. School officials again called SRST-CPS and

again heard nothing, with the call going directly to voicemail. They also left a

message for DSS. Finally, G.K.I.W.’s school sent its own school resource officer

(SRO) to conduct a welfare check at G.K.I.W.’s home. The SRO went to Makes Him

First’s address, but Makes Him First refused to let the SRO see G.K.I.W. She said

the child became bruised by fighting with her sister and that G.K.I.W. was asleep but

would be in school the next day.

However, around 1:30 the following morning, Makes Him First brought

G.K.I.W. to the hospital. The child was not breathing and was cold to the touch;

bruises covered most of her body, including large bruises on her chest and thigh. 

Despite attempts to resuscitate G.K.I.W., she died shortly thereafter. Investigators

later determined the cause of death to be a tear in the child’s abdomen caused by

abuse to her torso.

Makes Him First eventually admitted to investigators that she had abused

G.K.I.W. by hitting her with a shoe and punching her. She initially did not implicate

St. Pierre, and St. Pierre denied abusing the child. However, after being indicted for

the child’s death, Makes Him First described how St. Pierre abused G.K.I.W. in the

days leading up to her death. Makes Him First said that for three nights in a

row—Sunday, Monday, and Tuesday—St. Pierre entered G.K.I.W.’s room late at

night and abused the child. He accused G.K.I.W. of not sleeping before shining a

light in her face and then physically assaulting her by pulling her hair, pushing her

chest, striking her thigh, and grabbing her neck. G.K.I.W. found the injuries to her

chest particularly painful, as St. Pierre had already left bruises there by abusing her

throughout the week. Makes Him First admitted that on Tuesday, she and St. Pierre

-3-
kept G.K.I.W. home from school because they feared getting into trouble if school

staff noticed that G.K.I.W. was covered in bruises. She stated the abuse escalated

throughout the week; by Tuesday night, St. Pierre was picking G.K.I.W. up by the

neck and choking her repeatedly until she blacked out. Makes Him First said she

began crying and begging St. Pierre to stop hurting the child, but he ignored her. At

one point, St. Pierre held G.K.I.W. by the neck and shook her so severely that when

he put her back down, she could not stand. G.K.I.W.’s speech then became

unintelligible, and she began to behave strangely. Makes Him First asked to give the

child a bath. St. Pierre poured water onto the child’s face, and Makes Him First

demanded they go to the hospital. G.K.I.W. turned pale, and her breathing shallowed. 

She began to foam at the mouth. Makes Him First attempted to assist the child’s

breathing while St. Pierre started the car. On the way to the hospital, St. Pierre told

Makes Him First that he would not go to prison for her child, and she needed to come

up with a lie to explain the child’s injuries. Makes Him First explained she initially

lied to investigators out of her fear of St. Pierre.

When investigators interviewed other household members, they heard

repeatedly that St. Pierre had a violent anger problem. In the days before the murder,

one person asked St. Pierre and Makes Him First about G.K.I.W.’s frequent crying,

and the couple said the child simply woke up that way. Another person had been told

that St. Pierre had once pushed G.K.I.W. into a wall. On the day G.K.I.W. died, a

witness stated St. Pierre and Makes Him First acted strangely, appearing more

nervous than sad and whispering to one another. In November 2016, the government

indicted St. Pierre as Makes Him First’s co-defendant. 

St. Pierre eventually pled guilty to aiding and abetting second-degree murder. 

The plea agreement recommended a sentencing range of 292-365 months

imprisonment. The parties agreed the base offense level was 38 but agreed to a

two-point enhancement for a vulnerable victim pursuant to United States Sentencing

Commission, Guidelines Manual, § 3A1.1(b) and a three-point reduction for timely

-4-
acceptance of responsibility pursuant to USSG § 3E1.1, resulting in a total offense

level of 37. They also agreed that St. Pierre’s criminal history category was IV. St.

Pierre waived his right to appeal on most grounds. The plea agreement expressly

stated that its recommendations were not binding on the district court, and if the

district court rejected its proposals, St. Pierre could not withdraw his plea. At his

change-of-plea hearing,St.Pierre stated he understood that the court would determine

his actual advisory Guidelines range and that it was not bound by the plea

agreement’s recommendation. He further said that he understood his appellatewaiver

would cover the majority of grounds on which he could raise an appeal.

The presentence investigation report (PSR) prepared for St. Pierre’s sentencing

hearing recommended a sentencing range of 360 months to life imprisonment. In

arriving at a total offense level of 41, the PSR included an enhancement for

obstruction of justice pursuant to USSG § 3C1.1, to which St. Pierre objected. The

probation officer who wrote the report filed an amended PSR and addendum in

response to St. Pierre’s objections. The addendumdefended the obstruction ofjustice

enhancement by noting Makes Him First testified that St. Pierre told her to lie about

what happened to G.K.I.W. At the sentencing hearing, the government stated that it

“adopt[ed]” the amended report and addendum but that it was “not asking the Court

to go above” the stipulated sentencing range. As outlined in the plea agreement, the

government asked the district court to grant St. Pierre a three-point reduction for

timely acceptance of responsibility and joined in St. Pierre’s motion for a downward

departure or variance to reach the plea agreement’s sentencing range.

The district court declined to follow the plea agreement’s recommendations. 

It found that St. Pierre’s acceptance of responsibility was not timely and agreed with

the PSR addendum that an obstruction of justice enhancement was appropriate. The

district court stated that the prolonged and severe nature of the abuse against

G.K.I.W. made this case unlike any it had seen. It adopted the PSR’s recommended

sentencing range and sentenced St. Pierre to 480 months imprisonment. St. Pierre

-5-
appeals, contending the government breached the plea agreement by adopting the

PSR addendumand that the district court committed procedural and substantive error

in deciding his sentence.

We first determine whether the government breached the plea agreement such

that St. Pierre may appeal. “We review questions regarding the interpretation and

enforcement of plea agreements de novo.” United States v. Mosley, 505 F.3d 804,

808 (8th Cir. 2007). “If the government breached the plea agreement,” St. Pierre may

proceed with his appeal “despite the appellate waiver.” United States v. Quebedo,

788 F.3d 768, 775 (8th Cir. 2015). “[I]n determining whether the government has

fulfilled its obligations under a plea agreement, we look to the agreement’s

provisions.” United States v. Kramer, 12 F.3d 130, 131 (8th Cir. 1993) (citing United

States v. Coleman, 895 F.2d 501, 505 (8th Cir. 1990)). If the government “actively

advocate[s] for an outcome different from the one it had promised” to seek, it

breaches the plea agreement. United States v. Fowler, 445 F.3d 1035, 1038 (8th Cir.

2006). In United States v. Thompson, the parties’ plea agreement applied a specific

Guidelines section for possession of a firearm, but after the PSR used the more severe

felonious assault section, the prosecutor accepted its recommendation out of “an

obligation to advise the Court of what the facts are.” 403 F.3d 1037, 1039 (8th Cir.

2005). Without being prompted by the court, the prosecutor argued that the facts to

which Thompson had stipulated supported felonious assault. Id. at 1038, 1040. The

court held that the prosecutor had, “[i]n essence,” argued against the plea agreement

provision and therefore breached the agreement. Id. at 1040-41.

In St. Pierre’s plea agreement, the government agreed to recommend a sentence

of 292-365 months imprisonment. The agreement made no mention of an obstruction

of justice enhancement and did not require that the government join in any of St.

Pierre’s objections to the PSR. At sentencing, the government repeatedly requested

a sentence within the agreed-upon range. And, unlike in Thompson, when St. Pierre

objected to the obstruction-of-justice enhancement in the PSR, the government did

-6-
not argue that the facts supported the enhancement; it merely said “there is evidence

there” and immediately emphasized its request for a downward departure or variance

to reach the agreed-upon sentencing range. To be sure, as St. Pierre suggests, the

government could have simply not addressed the obstruction enhancement at all, and

the government’s statement that it “adopt[ed]” the amended PSR and addendum

seems, on its face, to indicate agreement with it. However, viewed in context, the

government’s chosen course did not constitute breach. Rather, the government

advocated for the 292-365 month sentencing range outlined in the plea agreement no

less than six times at sentencing, including in its discussion of the PSR addendum. 

Because the government promised to recommend a sentence within the agreed-upon

Guidelines range and consistently did so, it did not breach the plea agreement.

Having found the plea agreement enforceable, we turn to whether St. Pierre

waived his right to appeal. “Whether a valid waiver of appellate rights occurred is

a question of law that we will review de novo.” United States v. Sisco, 576 F.3d 791,

795 (8th Cir. 2009). “When reviewing a purported waiver, we must confirm that the

appeal falls within the scope of the waiver and that both the waiver and the plea

agreement were entered into knowingly and voluntarily.” United States v. Andis, 333

F.3d 886, 889-90 (8th Cir. 2003) (en banc). We will not “enforce an otherwise valid

waiver if to do so would result in a miscarriage of justice.” Id. at 891.

First, St. Pierre’s appeal must fall within the scope of his waiver. Under the

plea agreement, St. Pierre waived “his right to appeal any non-jurisdictional issues.” 

The parties excluded from the waiver instances in which the district court departed

or varied upward. Because St. Pierre’s appeal does not raise a jurisdictional issue and

the district court did not impose an upward departure or upward variance from the

360 months to life imprisonment sentencing range it adopted, this appeal falls within

the scope of the waiver. 

-7-
Second, the waiver and plea agreement must have been entered into knowingly

and voluntarily. “[A] district court can help ensure that a plea agreement and

corresponding waiver are entered into knowingly and voluntarily [by] properly

question[ing] a defendant about his or her decision to enter that agreement and waive

the right to appeal.” Id. at 890-91. Here, the district court did exactly that. At St.

Pierre’s change-of-plea hearing, it cautioned, “[I]f you don’t like what I do in your

case . . ., you have no place to go. You cannot go to the Court of Appeals in St.

Louis, Missouri, and you cannot go to the United States Supreme Court.” While

noting that St. Pierre could still appeal a sentence that varied or departed upward, the

district court emphasized that that was an “exception” to St. Pierre’s broad appellate

waiver, saying, “[I]f I make a mistake in your case and you don’t like it, you are stuck

with it. And so you are giving up very valuable rights. Do you understand all of that,

sir?” St. Pierre responded, “Yes, sir.” The district court then verified that no one had

threatened or coerced St. Pierre into pleading guilty and that St. Pierre would enter

his plea “voluntarily on [his] part and of [his] own free will.” Thus, the record

indicates that St. Pierre entered into the plea agreement knowingly and voluntarily.

Finally, enforcing the waiver must not result in a miscarriage ofjustice. “[T]his

exception is a narrow one,” principally allowing the appeal of illegal sentences that

are greater than the maximum statutory penalty. Id. at 891-92. In contrast, “an

allegation that the sentencing judge misapplied the Sentencing Guidelines or abused

his or her discretion is not subject to appeal in the face of a valid appeal waiver.” Id.

at 892. Because St. Pierre’s appeal is grounded in alleged errors by the district court

in applying the Sentencing Guidelines, no miscarriage of justice occurs in enforcing

the appellate waiver. Therefore, the waiver is valid and enforceable.

Even if we considered the merits of St. Pierre’s arguments alleging procedural

and substantive error, we would affirm the sentence of the district court. See United

States v. Cook, 252 F. App’x 114, 115 (8th Cir. 2007) (per curiam). When reviewing

the sentence of a district court, we first affirm the absence of significant procedural

-8-
error, such as failing to consider the 18 U.S.C. § 3553(a) factors. Gall v. United

States, 552 U.S. 38, 51 (2007). This does not require “‘robotic incantations’ that each

statutory factor has been considered.” United States v. Lamoreaux, 422 F.3d 750,

756 (8th Cir. 2005) (quoting United States v. Crosby, 397 F.3d 103, 113 (2d Cir.

2005)). Rather, “all that is generally required to satisfy the appellate court is evidence

that the district court was aware of the relevant factors.” United States v. Perkins,

526 F.3d 1107, 1110 (8th Cir. 2008). 

St. Pierre contendsthat the district court committed procedural error by failing

to consider the disparity between his sentence and the sentences imposed on similar

defendants. However, the district court explicitly discussed similar cases cited by St.

Pierre and described St. Pierre’s case as “far from” those examples, saying, “I have

never seen such a case as this in the 22-plus years I have sat on the bench, the cruelty

day in and day out.” Because the district court appropriately considered the

sentencing factors, it did not commit significant procedural error.

After confirming the absence of procedural error, we examine the substantive

reasonableness of the sentence, using a “deferential abuse-of-discretion standard.” 

Gall, 552 U.S. at 41, 51. A district court abuses its discretion only if it “fails to

consider a relevant factor that should have received significant weight;” “gives

significant weight to an improper or irrelevant factor;” or “commits a clear error of

judgment” in weighing the proper factors. United States v. Feemster, 572 F.3d 455,

461 (8th Cir. 2009) (en banc) (quoting United States v. Kane, 552 F.3d 748, 752 (8th

Cir. 2009)). A sentence within the Guidelines range is presumptively reasonable, and

“it will be 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)). The “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).

-9-
Here, St. Pierre’s sentence was within the Guidelines range calculated by the

district court and is presumptively reasonable. The district court clearly considered

sentence disparity, and it had “wide latitude” to assign great weight to the

circumstances of the case and to emphasize the abuse G.K.I.W. had suffered. Id. at

379. Therefore, the district court did not abuse its discretion in imposing St. Pierre’s

sentence, and we would affirm the district court’s judgment even absent the appellate

waiver. 

Because the government did not breach the plea agreement and St. Pierre

waived his ability to appeal on these grounds, we dismiss the appeal.

STRAS, Circuit Judge, concurring in part and concurring in the judgment.

I agree with the court’s explanation of why St. Pierre’s appeal waiver requires

us to dismiss his appeal, but I would end the opinion there. Once we dismiss St.

Pierre’s appeal, there is nothing left to do. To proceed further and address the

underlying merits, as the court does, both defeats the appeal waiver and is at odds

with the judgment, which is to dismiss rather than affirm. Accordingly, I join the

court’s opinion except its unnecessary discussion of the merits of St. Pierre’s appeal.

______________________________

-10-