United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-1485

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United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

 v. * District Court for the 

* District of South Dakota.

Lester Michael Weasel Bear, Jr., *

*

Defendant-Appellant. *

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Submitted: November 18, 2003

Filed: February 2, 2004 (Corrected 3/10/04)

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Before MURPHY, LAY, and FAGG, Circuit Judges.

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MURPHY, Circuit Judge.

Defendant Lester Michael Weasel Bear, Jr. pled guilty to robbery and second

degree murder in Indian Country, in violation of 18 U.S.C. §§ 1153, 1111(a), and

2111, but reserved his right to appeal any sentence in excess of 30 years. The United

States Sentencing Guidelines applied at sentencing, and they provide that where a

murder as defined in 18 U.S.C. § 1111 takes place in the course of a federal robbery,

the guideline for first degree murder should be used. U.S.S.G. § 2B3.1(c)(1). The

district court applied that guideline and made some uncontested adjustments, arriving
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at a final offense level of 42 and a sentencing range of 360 months to life. The court

sentenced Weasel Bear to 55 years on each count, to be served concurrently. On

appeal, Weasel Bear challenges the use of the cross reference to first degree murder

and the 55 year sentence on the robbery count for which the statutory maximum is 15

years. We affirm in part and reverse in part.

Late in the evening of December 31, 2001 Lester Michael Weasel Bear (Weasel

Bear), who was then 19, and his 14 year old brother walked to the home of 82 year

old Richard Tall on the Pine Ridge Indian Reservation. They intended to steal Tall's

Lincoln Town Car and had a baseball bat and tools with them. After unsuccessfully

attempting to hotwire the car, they broke into Tall's house to get his car keys. Tall

was asleep so Weasel Bear jostled his foot to wake him, and Tall grabbed a stick to

defend himself. Weasel Bear pushed Tall back onto his bed and struck his head and

body repeatedly with the bat. Tall held up his hands defensively before falling to the

floor, saying "I quit." Although Weasel Bear found and took the car keys, the

brothers were not able to start any of Tall's cars so they left.

Weasel Bear returned to Tall's home the next morning to try again to take a car.

This time Weasel Bear's 17 year old brother went along, and the two found Tall dead.

An autopsy later showed that Tall had died of brain hemorrhaging caused by blunt

force trauma to the head. He also suffered fractured ribs and contusions to his hands,

arms, chest, abdomen, and lung. 

While his brother took money and guns from Tall's house, Weasel Bear

switched car batteries and eventually started the Lincoln. The brothers then drove

around in the car, purchased some marijuana, stole gasoline, ate lunch, and did some

shopping. Meanwhile a neighbor found Tall's body, noticed the missing car, and

notified authorities. Police soon spotted Weasel Bear and his brother on a rural road.

After a high speed chase, the brothers were arrested and the stolen guns were

discovered in the trunk of the car. 
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On January 16, 2002 a federal grand jury indicted Weasel Bear for robbery,

burglary, and unlawful killing with malice aforethought during the perpetration of a

burglary and robbery. Weasel Bear pled guilty on October 21, 2002 to killing with

malice aforethought (second degree murder) and robbery. He reserved his right to

appeal any sentence in excess of 30 years. 

At sentencing the district court followed the cross reference in the robbery

guideline, U.S.S.G. § 2B3.1(c)(1), requiring application of the guideline for first

degree murder if a robbery victim has been "killed under circumstances that would

constitute murder under 18 U.S.C. § 1111." The court applied the base offense level

for first degree murder which is 43, U.S.S.G. § 2A1.1., and also commented that the

facts would have supported a first degree murder conviction. After a two level

enhancement for a vulnerable victim and a three level reduction for acceptance of

responsibility, the total offense level was determined to be 42 with a sentencing range

of 360 months to life. The court sentenced Weasel Bear to 55 years on each count to

be served concurrently, and Weasel Bear appeals.

Weasel Bear contests application of the guideline cross reference to first degree

murder and the 55 year sentence on the robbery count. We review the application of

the sentencing guidelines to the facts de novo and findings of fact for clear error.

United States v. Willey, 350 F.3d 736, 738 (8th Cir. 2003). 

The sentencing guideline for the offense of robbery states "[if] a victim was

killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had

such a killing taken place within the territorial or maritime jurisdiction of the United

States, apply § 2A1.1 (First Degree Murder)." U.S.S.G. § 2B3.1(c)(1). Weasel Bear

argues that this cross reference applies only if the victim was killed outside the

territorial jurisdiction of the United States and that it does not fit his case because Tall

was killed within such jurisdiction.
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The guideline at issue, § 2B3.1(c)(1), cannot be understood without

considering the statute to which it refers, 18 U.S.C. § 1111. Section 2B3.1(c)(1)

follows the felony murder rule incorporated in 18 U.S.C. § 1111(a) which defines any

killing committed in the course of a robbery or other enumerated felony as first

degree murder and provides that such an offense should be sentenced under the first

degree murder guideline. See also United States v. Shea, 211 F.3d 658, 673-74 (1st

Cir. 2000) (discussing the guideline cross reference and its incorporation of the felony

murder rule in 18 U.S.C. § 1111(a)). Section 1111(b) addresses sentencing options

for first and second degree murder as defined in § 1111(a) and committed "within the

special maritime and territorial jurisdiction of the United States." 18 U.S.C. §

1111(b). 

The cross reference in § 2B3.1(c)(1) to the first degree murder guideline in §

2A1.1 requires a sentencing court to consider the full context of the defendant's

offense and to account for any killing in the course of a federal robbery, regardless

of the situs of the killing. This permits sentencing consideration of the total extent

of injury inflicted upon anyone victimized by the offense. In this case, Weasel Bear

both committed a robbery and killed his victim within federal territorial jurisdiction,

so he comes within the scope of both 18 U.S.C. § 1111 and § 2B3.1(c)(1). Weasel

Bear cites no authority for his attempt to limit application of § 2B3.1(c)(1) to killings

occurring outside the territorial jurisdiction of the United States, and the guideline's

cross reference to the first degree murder guideline, § 2A1.1, is to be applied to

killings fitting the definition in § 1111 and occurring within the territorial jurisdiction

of the United States. See, e.g., United States v. Harris, 238 F.3d 777, 778-79 (6th Cir.

2001) (affirming application of § 2B3.1(c)(1) to second degree murder during a

robbery where both crimes took place within federal territorial jurisdiction).

We decline to adopt Weasel Bear's strained reading of the guideline which

would result in a lesser punishment for a killing committed in the course of a federal

robbery within the territorial jurisdiction of the United States than, for example, for
1

We note that Weasel Bear probably could have been charged with and

convicted of first degree murder since 18 U.S.C. § 1111 defines murder in the first

degree to include any murder committed in the perpetration of any burglary or

robbery. 

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a killing committed in the course of a federal robbery of a bank which is outside

federal territorial jurisdiction. The cases do not support such a reading. See, e.g.,

Shea, 211 F.3d at 673-75 (applying § 2B3.1(c)(1) to killings in course of bank

robbery outside special maritime or territorial jurisdiction of the United States). The

language of § 2B3.1(c)(1) is intended to ensure that sentences for killings committed

in the course of a federal robbery reflect the seriousness of the real offense conduct

and provide just punishment for the offenses. See 28 U.S.C. § 991(b)(1)(B); 18

U.S.C. § 3553(a)(2)(A). Cf. U.S.S.G. § 1B1.3(a)(1)(A) (base offense level should be

determined on basis of "all acts and omissions committed . . . or willfully caused by

the defendant"); United States v. Wilson, 992 F.2d 156 (8th Cir. 1993) (federal

firearms sentencing properly took account of attempted murder as relevant conduct).

We conclude that the district court correctly applied the cross reference in this

case. Weasel Bear pled guilty to second degree murder during the course of a robbery

within federal jurisdiction, a crime meeting the definition of murder under § 1111,1

and the court did not err by applying § 2B3.1(c)(1) to Weasel Bear's killing of Tall

during a robbery on the Pine Ridge Reservation within the territorial jurisdiction of

the United States. 

Weasel Bear also argues that application of the cross reference converted his

second degree murder plea into a de facto conviction for first degree murder and that

the district court improperly used his factual proffer to find that he had committed

premeditated murder without his having expressly consented to its use for that

purpose. In its comments at sentencing the district court did find that the killing was
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premeditated and that Weasel Bear could have been charged with and convicted of

first degree murder absent the plea agreement. Weasel Bear is not entitled to prevail

on this argument, however, because the cross reference applies to his case even in the

absence of premeditation. One who commits a murder as defined by 18 U.S.C. §

1111 during the course of a federal robbery is to be sentenced under the first degree

murder guideline. See U.S.S.G. § 2B3.1(c)(1). The statute defines murder to include

not only premeditated killings, but also both second degree murder committed

without premeditation and any killing with malice aforethought in the course of a

robbery. See 18 U.S.C. § 1111(a). Weasel Bear pled guilty to murder in the second

degree in the course of a federal robbery, and we conclude that the circumstances of

his crime meet the requirements of the cross reference. He was therefore properly

sentenced under the first degree murder guideline. 

Weasel Bear further argues that the application of the cross reference

undermined the purpose of the guideline grouping rules. The sentencing guidelines

generally require that crimes which involve substantially the same harm to a single

victim and which are part of the same act or transaction be grouped together for

purposes of sentencing. U.S.S.G. § 3D1.2. Under the grouping rules the most serious

charge, that is the one with the highest offense level, provides the base offense level

for the group, and related charges within the group are taken into account through

upward adjustments. U.S.S.G. §§ 3D1.3, 3D1.4. Weasel Bear argues that in his case

the most serious charge is second degree murder rather than robbery and that the

court erred by using robbery as the base charge and then applying the cross reference.

 Weasel Bear's grouping argument is without merit because the sentencing

guidelines specifically exclude the cross reference in § 2B3.1(c)(1) from the operation

of the grouping rules. See U.S.S.G. § 3D1.2. Not only do killing and robbery not

inflict substantially the same harm on a victim, but § 2B3.1(c)(1) accounts for both

offenses committed by Weasel Bear. While the application of the cross reference to

first degree murder appears to Weasel Bear to be contrary to the general grouping
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principle in § 3D1.2, the fact that the Sentencing Commission has expressly excluded

§ 2B3.1(c)(1) from the grouping rules is conclusive. See Shea, 211 F.3d 673-74

(rejecting argument that robbery and murder offenses should be grouped under §

3D1.3 and applying first degree murder guideline under § 2B3.1(c)(1)). 

Weasel Bear finally argues that the district court erred by sentencing him to

more than the statutory maximum of 15 years for robbery. The court's judgment and

commitment order indicates that Weasel Bear was sentenced to "55 years (660

months) on each of Counts I and II, to be served concurrently." The government

concedes that the district court's written judgment is contrary to law, but argues that

its oral pronouncement of a 55 year sentence reflects the total intended time to be

served. Nevertheless, the court's oral statement does not differentiate between the

counts or indicate in any way that its sentence on the robbery count was within the

statutory maximum of 15 years. We therefore reverse and remand for resentencing

on that count.

For these reasons, the judgment of the district court is affirmed in respect to the

murder count, but reversed in respect to the robbery count. We accordingly remand

for resentencing on the robbery count.

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