1

The Honorable Roberto A. Lange, United States District Judge for the District

of South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-3108

___________

United States of America, *

*

Appellee, *

* Appeal from the united States

v. * District Court for the 

* District of South Dakota.

Bryan Austin Boneshirt, *

*

Appellant. *

___________

Submitted: March 17, 2011

 Filed: October 31, 2011 

___________

Before SMITH, BRIGHT, and SHEPHERD, Circuit Judges.

___________

SMITH, Circuit Judge.

Brian Boneshirt pleaded guilty, pursuant to a written plea agreement, to one

count of second degree murder, in violation of 18 U.S.C. §§ 1153 and 1111. The

district court1

 sentenced him to 576 months' imprisonment. On appeal, Boneshirt

challenges the substantive reasonableness of his sentence. We affirm.
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I. Background

On November 1, 2009, Boneshirt, then 17 years old, killed Marquita Walking

Eagle. The night before, Boneshirt had consumed alcohol and partied with friends in

St. Francis, South Dakota, on the Rosebud Indian Reservation. He continued to drink

into the early morning hours, sleeping only for a couple of hours before resuming his

drinking and partying. At some point on November 1, Walking Eagle, a 19-year-old,

arrived at the party. She and Boneshirt left the party and eventually went, alone, to an

abandoned house in St. Francis.

Inside the abandoned house, Boneshirt and Walking Eagle began to have

consensual sexual intercourse. While doing so, Boneshirt called Walking Eagle by

another female's name. She became upset and struck Boneshirt twice. Boneshirt

retaliated by striking her head and body, restraining her hands, grabbing her by the

neck, and choking her until she became unresponsive. According to Boneshirt, when

he noticed that Walking Eagle had stopped breathing, he "panicked" and moved her

to another room in the abandoned house, concealing her body with a curtain. Shortly

thereafter, Boneshirt's father stopped by the abandoned house and talked with

Boneshirt. Boneshirt did not tell his father anything about Walking Eagle.

Boneshirt then left the abandoned house, with Walking Eagle's body still

concealed inside. He walked to his father's residence, where he told his brother that

he thought he had killed Walking Eagle. Boneshirt's brother then went to the

abandoned house to check on Walking Eagle. While waiting on his brother, Boneshirt

packed a bag of clothes and telephoned several family members to tell them what he

had done. After his brother called and confirmed that Walking Eagle was dead and

that law enforcement had been notified, Boneshirt left his father's residence and

started walking to his mother's residence.

Shortly thereafter, tribal police apprehended Boneshirt in a nearby field. After

his arrest, Boneshirt reportedly said, "I did not do anything." The police then advised
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him of his Miranda rights; Boneshirt requested to speak to his mother and with

counsel but then stated, "I didn't do it. I was there, but I didn't do it." During a

subsequent interview, however, Boneshirt described his altercation with Walking

Eagle and confessed to killing her but insisted that he had not intended to kill her.

Boneshirt was initially charged as a juvenile offender with first-degree murder.

He thereafter entered into a plea agreement with the government, agreeing to transfer

his case to adult court and plead guilty to second-degree murder. The written plea

agreement contained a waiver of defenses and appeal rights, which stated:

The defendant hereby waives all defenses and his right to appeal any

non-jurisdictional issues. The parties agree that excluded from this

waiver is the Defendant's right to appeal any decision by the Court to

depart upward pursuant to the sentencing guidelines as well as the length

of his sentence for a determination of its substantive reasonableness

should the Court impose an upward departure or an upward variance

pursuant to 18 U.S.C. § 3553(a).

At the plea hearing, the district court engaged in a colloquy with Boneshirt

about his guilty plea and his plea agreement. The court did not, however, address the

waiver of appeal rights in the plea agreement. After the colloquy, the court accepted

Boneshirt's guilty plea.

While awaiting sentencing, Boneshirt was incarcerated at the Hughes County

Jail in Pierre, South Dakota. During this time, Boneshirt, by this time 18 years old,

participated in a plan to escape from jail with fellow inmates Randy Little Shield and

Robert Kelly.

The presentence investigation report (PSR) calculated a total offense level of

42. Because of Boneshirt's involvement in the plan to escape from jail, the PSR

included a two-level enhancement for obstruction of justice, pursuant to U.S.S.G.
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§ 3C1.1, and recommended against a three-level reduction for acceptance of

responsibility, pursuant to § 3E1.1. The PSR also indicated that Boneshirt had several

juvenile tribal-court convictions, including two previous incidents of aggravated

assault. Because they were tribal convictions, however, the offenses did not result in

any criminal history points. Thus, based on Boneshirt's criminal history category of

I and his offense level of 42, the PSR recommended an advisory Guidelines range of

360 months' to life imprisonment. 

In his sentencing memorandum, Boneshirt objected to the allegation that he had

participated in a plan to escape from jail. He also objected to the PSR's denial of the

reduction for acceptance of responsibility and application of the enhancement for

obstruction of justice. In addition, Boneshirt argued that the court should impose a

below-Guidelines sentence in light of the 18 U.S.C. § 3553(a) factors. Specifically,

he argued for leniency based on his youth and intoxicated state at the time of the

offense, his difficult childhood, and his alcohol-related neurodevelopmental disorder.

At the sentencing hearing, several witnesses testified about the alleged plan to

escape from jail. On June 9, 2010, Boneshirt and four other inmates were detained in

the work-release area of the jail. A jail official testified that he observed, on a

surveillance camera, some of the inmates in the work-release area behaving

suspiciously that night. Early the next morning, jail officials entered and searched the

work-release area. The officials found a small metal "shank" in Little Shield's bunk,

a cinder block under Little Shield's bunk, a hole in the suspended ceiling in the

bathroom, and an L-shaped pipe above the bathroom ceiling. The officials conducted

a brief pat-down search of all five inmates, including Boneshirt. They did not find any

contraband on Boneshirt's person, his bunk, or any of his property. 

Subsequently, the officers separately removed each inmate from the workrelease area and interviewed them. Boneshirt denied any knowledge of or involvement

in an escape plan. Once the work-release area was empty, officials conducted another
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search and located an eight-inch metal shank in a toilet-paper dispenser in the

bathroom.

Little Shield also testified about the escape plan. He acknowledged that he had

state and federal criminal charges pending and that his testimony could adversely

affect his sentencing. Nevertheless, Little Shield testified that he, Boneshirt, and two

other inmates—Kelly and Robert Quiver—had discussed three different escape plans.

One plan involved crawling through the ceiling, and another involved "tak[ing] out

a correctional officer with a shank." Little Shield stated that Quiver had helped

Boneshirt climb into the bathroom ceiling on a number of occasions and that

Boneshirt had constructed a longer metal shank. After the pat-down search on the

morning of June 10, 2010, Little Shield said that he, Boneshirt, and Kelly sat down

at a table to play cards, and Boneshirt told the two of them not to snitch. At the time,

Boneshirt was wearing a blanket over his shoulders; according to Little Shield,

Boneshirt had previously used the blanket to move contraband around the workrelease area without being observed on the surveillance camera. Little Shield testified

that, after the pat-down search, Boneshirt stated that the guard did not find his metal

shank, which, according to Little Shield, had been hidden between Boneshirt's legs.

Little Shield testified that Boneshirt then took the shank to the bathroom, with the

blanket over his shoulders, and placed the shank in the toilet-paper dispenser.

The government also introduced a surveillance video of the work-release area,

which showed footage from the night of June 9 and the morning of June 10, 2010. The

video showed that, after the officers conducted the pat-down search and left the workrelease area, Boneshirt sat down at a table with Little Shield and Kelly to play cards.

He later walked around the work-release area with a blanket over his shoulders and

entered the bathroom, where the toilet-paper dispenser was located.

Following the testimony, the district court heard arguments from the

government and Boneshirt about the appropriate Guidelines calculation and the
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appropriate sentence. Boneshirt argued that the Guidelines produced an "extreme"

increase in Boneshirt's penalty, based on the alleged escape plan. He argued that the

evidence was insufficient to support applying an obstruction-of-justice enhancement,

under U.S.S.G. § 3C1.1, and denying an acceptance-of-responsibility reduction, under

§ 3E1.1. In any case, Boneshirt argued that he deserved a lower sentence because he

had fully confessed to killing Walking Eagle; showed genuine remorse when he

confessed and apologized to his family members immediately after the killing; was

mentally and emotionally still a child; and had endured a very difficult childhood,

including an alcohol-related neurodevelopmental disorder caused by his mother's use

of alcohol during pregnancy.

The district court first calculated the appropriate Guidelines range and overruled

Boneshirt's objections to the PSR based on the escape plan. The court explained that

"[t]here is no question there was some effort underway to get out of [jail]." Based on

the fact that Boneshirt, Little Shield, and Kelly had sat down at a table together after

the pat-down search, the court found that "[t]he evidence strongly indicates that the

three of them were in cahoots." Further, because Boneshirt had walked into the

bathroom with a blanket over his shoulders, the court found that it was likely that

Boneshirt had concealed the eight-inch shank during the pat-down search and later

discarded it in the toilet-paper dispenser. Although the court noted that Little Shield

was "far from the most credible witness," the court found that the surveillance video

and testimony from jail officials corroborated Little Shield's version of events. Thus,

the court found that the evidence was "strong" and "certainly meets a preponderance

of the evidence standard" to establish that Boneshirt had an "active role, if not the

central role" in the plan to escape from jail. As a result, the court applied the two-level

enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C1.1, and rejected the

two-level reduction for acceptance of responsibility, pursuant to § 3E1.1. Based on

Boneshirt's total offense level of 42 and criminal history category of I, the court

calculated a Guidelines range of 360 months' to life imprisonment.
2

Boneshirt presented data representing sentences for murder cases in the United

States District Courts for the Districts of North and South Dakota, where the

defendants, like Boneshirt, were represented by the Federal Public Defender. The

court declined to receive the chart as evidence based on "a certain lack of foundation,

lack of completeness."

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The court then discussed, at great length, the appropriate sentence under 18

U.S.C. § 3553(a). First, the court observed that the nature and circumstances of the

offense were "horrible," in light of the way Boneshirt had killed Walking Eagle,

whom Boneshirt had described as a friend. Second, the court considered Boneshirt's

history, including Boneshirt's "unfair" and "very troubled" childhood. The court

acknowledged Boneshirt's neurodevelopmental disorder but noted that Boneshirt was

surprisingly "coherent" in a letter to the court. Third, the court stated that Boneshirt's

"rehabilitation needs are vast." Fourth, the court opined that there was a significant

need to protect the public from Boneshirt's future crimes, especially in light of two of

Boneshirt's prior offenses, one when he held a knife to a 15-year-old's throat and

another when he brought a concealed weapon to school. Although the court explained

that it would carefully consider Boneshirt's juvenile history, the court found that

Boneshirt "does not have full control of his actions at times, and that quite obviously

there is a very violent side to [him]." Finally, the court explained that it had

considered "the kinds of sentences available, the sentencing range established by the

sentencing commission's guidelines, pertinent policy statements made by the

sentencing commission, and the need to avoid unwarranted sentencing disparities

among similar defendants as well as the need for restitution."

In addition, the court acknowledged that its sentence would be more severe than

the comparative sentences for murder that Boneshirt had presented at the hearing. The

court noted, however, that Boneshirt's chart of sentences2

 had failed to account for at

least one other case—involving two fatalities and a rape—that, in the court's view,

was "even sadder than this one."
-8-

Thereafter, the court sentenced Boneshirt to 576 months' imprisonment,

followed by five years of supervised release. The court acknowledged that the

sentence was very long but again explained that the sentence was "appropriate, given

the nature of the offense, the nature of the post-offense conduct, and the need to

protect society from Mr. Boneshirt." The court further explained that it "believe[d]

that there is just too much of a risk with Mr. Boneshirt being a part of society before

the point where he's of a very mature age."

II. Discussion

On appeal, Boneshirt argues that the district court imposed a substantively

unreasonable sentence. The government contends in opposition that Boneshirt waived

his right to appeal the substantive reasonableness of his sentence in his written plea

agreement. 

A. Waiver of Right To Appeal

The government argues that this court should dismiss Boneshirt's appeal

because it is barred by the appellate rights waiver in his written plea agreement. The

government contends that his appeal falls within the scope of the waiver, which only

preserved his right to appeal "a traditional Guideline departure or an upward

variance." Although it acknowledges that, at the plea hearing, the district court did not

specifically ask Boneshirt about the waiver of his right to appeal, the government

asserts that the record demonstrates that he knowingly and voluntarily entered into the

plea agreement, citing United States v. Michelsen, 141 F.3d 867, 871–72 (8th Cir.

1998) (concluding that a dialogue about the appeal waiver was "not a prerequisite for

a valid waiver of the right to appeal"), and United States v. Cheney, 571 F.3d 764, 767

(8th Cir. 2009) (enforcing an appeal waiver in a post-plea sentencing agreement

despite the lack of a colloquy about the waiver). Finally, the government maintains

that enforcing the waiver would not result in a miscarriage of justice.
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Boneshirt contends that he may maintain his appeal despite the waiver because

the district court failed to engage in the colloquy required by Federal Rule of Criminal

Procedure 11(b)(1)(N). Under this court's precedent, Boneshirt maintains, the waiver

of appellate rights cannot be enforced when the district court does not discuss the

waiver with the defendant prior to accepting his plea. See United States v. Laney, 261

F. App'x 913, 913 (8th Cir. 2008) (unpublished per curiam); United States v. Fugate,

158 F. App'x 748, 749 (8th Cir. 2005) (unpublished per curiam); United States v.

Rojas-Coria, 401 F.3d 871, 872 n.2 (8th Cir. 2005).

"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).

"The government bears the burden of proving that the defendant's appeal is barred by

the waiver." United States v. Mink, 476 F.3d 558, 562 (8th Cir. 2007).

Federal Rule of Criminal Procedure 11(b)(1)(N) requires that, "[b]efore the

court accepts a plea of guilty or nolo contendere . . . the court must inform the

defendant of, and determine that the defendant understands, . . . the terms of any

plea-agreement provision waiving the right to appeal or to collaterally attack the

sentence." We have frequently declined to enforce an appeal waiver when the record

does not establish that the district court engaged in the colloquy required by Rule

11(b)(1)(N). E.g., United States v. Slaughter, 407 F. App'x 83, 83 (8th Cir. 2011)

(unpublished per curiam) (declining to enforce an appeal waiver "given the minimal

discussion of the plea agreement and waiver at the plea hearing"); Fugate, 158 F.

App'x at 749 (declining to enforce an appeal waiver because the court did not engage

in the required colloquy); Rojas-Coria, 401 F.3d at 872 n.2 (finding that the appeal

was not barred by an appeal waiver where the court did not engage in the colloquy);

see also Laney, 261 F. App'x at 913 (declining to address the enforceability of an

appeal waiver—but considering the appeal nonetheless—when the transcript of the

plea hearing was not part of the record on appeal).
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We decline to enforce the appeal waiver in Boneshirt's plea agreement. The

record indicates that the district court never discussed with Boneshirt the appeal

waiver in the written plea agreement. At most, the court inquired whether Boneshirt

understood that he could not withdraw his guilty plea if the court ultimately sentenced

him to a longer sentence than he had expected. The court never mentioned his right

to appeal or a waiver of that right; the government does not dispute this fact. Instead,

it argues that our precedent in Michelsen and Cheney allows us to enforce the waiver.

Those cases, however, are inapposite. As Boneshirt correctly notes, we decided

Michelsen in 1998—before Rule 11(b) was amended to require courts to engage in a

colloquy about the appeal waiver. See Fed. R. Crim. P. 11 advisory committee's note

(1999 amend.). Likewise, our decision in Cheney explicitly noted that the colloquy

requirement in Rule 11(b)(1)(N) was inapplicable in that case because, unlike the

present case, the "sentencing agreement was reached after [the defendant's] plea

hearing." 571 F.3d at 767 n.4. Therefore, the government has failed to prove that

Boneshirt's appeal is barred by the waiver in his plea agreement.

B. Substantive Reasonableness

Boneshirt argues that his "576 month (48 years) imprisonment sentence, is

substantively unreasonable under the abuse-of-discretion standard considering the

totality of the circumstances presented by [his] case." (Emphasis added.)

The government responds that the district court did not impose an unreasonable

sentence and, therefore, did not abuse its discretion. The government argues that the

court considered the § 3553(a) factors, focusing, in particular, on the need to protect

the public from Boneshirt. The government also contends that the facts of this murder

were "egregious," and, on that basis, the court could have imposed a longer sentence

even in the absence of Boneshirt's involvement in the escape plan. Moreover, the

government asserts that Boneshirt's criminal history justifies a longer sentence. The

government notes that he has a history of committing violent crimes, and his

involvement in the plan to escape (which entailed dangerous weapons and could have
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resulted in harm to jail personnel) further demonstrates Boneshirt's violent

propensities. Thus, the government maintains that the court was justified in believing

that Boneshirt should be imprisoned until a "very mature age." Finally, the

government argues that Boneshirt's comparative analysis of murder sentences is

unhelpful because it failed to account for life sentences; in any case, the government

contends that the district court considered the analysis and found that a 576-month

sentence was warranted. Additionally, the government maintains that § 3553(a) does

not mandate an "average" sentence, especially because the Guidelines ranges are

already intended to account for average sentences. See United States v. Mistretta, 488

U.S. 361, 374–76 (1989). 

This court applies "a deferential abuse-of-discretion standard" in reviewing the

imposition of a sentence. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009)

(quotations and citations omitted). Generally, our first task is to "'ensure that the

district court committed no significant procedural error.'" Id. (quoting Gall v. United

States, 552 U.S. 38, 51 (2007)). '''Procedural error' includes 'failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as mandatory,

failing to consider the § 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.'" Id. (quoting Gall, 552 U.S.

at 51). 

In the absence of procedural error below, we "should then consider the

substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard." Gall, [552 U.S. at 51]. In conducting this

review, we are to "take into account the totality of the circumstances,

including the extent of any variance from the Guidelines range." Id. If

the defendant's sentence is within the Guidelines range, then we "may,

but [are] not required to, apply a presumption of reasonableness." Id. But

we are not permitted to apply a presumption of unreasonableness if the

sentence is outside the Guidelines range. Id. Instead, we "may consider

the extent of the deviation, but must give due deference to the district
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court's decision that the § 3553(a) factors, on a whole, justify the extent

of the variance." Id. We may not require "'extraordinary' circumstances

to justify a sentence outside the Guideline" and are prohibited from "the

use of a rigid mathematical formula that uses the percentage of a

departure as the standard for determining the strength of the justifications

required for a specific sentence." Id. at [47]. Just because we "might

reasonably have concluded that a different sentence was appropriate is

insufficient to justify reversal of the district court." Id. at [51].

Id. at 461–62. 

Here, Boneshirt alleges no form of procedural error. He did not challenge the

district court's calculation of the Guidelines range—including the district court's

application of the obstruction-of-justice enhancement under U.S.S.G. § 3C1.1 and

denial of an acceptance-of-responsibility reduction under § 3E1.1—or consideration

of the § 3553(a) factors. See id. at 461. "Because [Boneshirt] does not argue in his

briefs that the district court committed any procedural error, we bypass the first part

of our review and move directly to review the substantive reasonableness of his

sentence." United States v. O'Connor, 567 F.3d 395, 397 (8th Cir. 2009) (footnote

omitted). "[I]t will be the unusual case when we reverse a district court

sentence—whether within, above, or below the applicable Guidelines range—as

substantively unreasonable." Feemster, 572 F.3d at 464 (quotation and citation

omitted). 

The district court calculated a Guidelines range of 360 months' imprisonment

to life imprisonment based on Boneshirt's total offense level of 42 and criminal history

category of I. On appeal, Boneshirt has not alleged that the district court procedurally

erred in calculating the Guidelines range. See Feemster, 572 F.3d at 461. Under our

precedent, "[a] sentence that falls within a properly-calculated advisory [G]uidelines

range—as does [Boneshirt's] sentence—is presumptively reasonable on appeal."

United States v. Frausto, 636 F.3d 992, 997 (8th Cir. 2011).
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Boneshirt argues that his sentence is greater than necessary to meet federal

sentencing goals under 18 U.S.C. § 3553(a) and, therefore, is substantively

unreasonable. In doing so, Boneshirt notes that, absent the adjustments to his

Guidelines range resulting from his jail escape attempt, his Guidelines range would

have been 210 to 262 months' imprisonment—314 to 366 months less than the 576-

month sentence actually imposed. Boneshirt compares this sentence with his probable

sentence if he had simply been convicted of escape, in violation of 18 U.S.C. § 751(a).

He asserts that he would have been subject to more than a statutory maximum

sentence of five years' imprisonment. In other words, Boneshirt argues that the

increase to his sentence under the Guidelines, based on the weak evidence of his

involvement in the escape plan, was far greater than if he had simply been convicted

of and sentenced for an actual escape offense. Boneshirt also contends that his

sentence was 28.5 years longer than "the average murder sentence imposed by district

courts in the Eighth Circuit." Again, he asserts that this disparity can only be attributed

to the escape. 

Boneshirt's argument suggests that applying the escape Guidelines overemphasized the significance of his involvement in the escape plan—effectively

punishing him more harshly than a conviction for the same offense. He contends that

the district court should have declined to apply U.S.S.G. § 3C1.1. Additionally, he

argues that a 576-month sentence overstates the seriousness of his offense because,

as explained above, much of it is attributable to his "escape conspiracy conduct" and

not the present offense.

Boneshirt's argument fails for two primary reasons. First, as previously noted,

nowhere in his brief does Boneshirt argue that the district court procedurally erred in

applying the obstruction-of-justice enhancement and in denying him an acceptance-ofresponsibility reduction. Nor does he claim that the district court otherwise

erroneously calculated his Guidelines range. See Feemster, 572 F.3d at 461. Second,

Boneshirt's argument does not show that the district court abused its discretion in
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using § 3C1.1. Boneshirt's argument is, in effect, an attack on the soundness of

§ 3C1.1 itself. We have recognized that, under the Supreme Court's decision in Spears

v. United States, 555 U.S. 261, 129 S. Ct. 840, 843–44 (2009), a district court may

reject a particular Guideline based on a policy disagreement with that Guideline.

United States v. Talamantes, 620 F.3d 901, 902 (8th Cir. 2010) (per curiam). "But that

does not mean that a district court must disagree with any sentencing guideline,

whether it reflects a policy judgment of Congress or the Commission's characteristic

empirical approach." Id. (quotations and citation omitted). This court's role, on appeal,

is not to revisit those policy considerations; instead, we are limited to "determin[ing]

whether the court abused its discretion by imposing a substantively unreasonable

sentence on a particular offender." Id.

After a careful review of the sentencing record, we conclude that the district

court did not abuse its discretion in sentencing Boneshirt to 576 months'

imprisonment. Both the sentencing hearing transcript and the court's statement of

reasons explaining its sentence demonstrate that the court considered all of Boneshirt's

arguments and the § 3553(a) factors, ultimately imposing the sentence based on the

"nature of the offense, the nature of post-offense conduct, and the need to protect

society from Mr. Boneshirt." Cf. United States v. Townsend, 618 F.3d 915, 919 (8th

Cir. 2010) (holding that defendant's 120 month sentence, although twice the

mandatory minimum, was substantively reasonable, as the district court "specifically

enumerated the § 3553(a) factors in its lengthy sentencing colloquy and discussed

those factors, focusing primarily on [the defendant's] substantial criminal history and

drug abuse"). 

Boneshirt's sentence may be longer than other sentences for the same crime, but

that, by itself, does not establish that the district court abused its discretion. The record

shows that the court considered Boneshirt's statistical evidence of sentences in similar

cases but found them incomplete and unpersuasive. While § 3553(a)(6) requires courts

to consider "the need to avoid unwarranted sentence disparities among defendants
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with similar records who have been found guilty of similar conduct," (emphasis

added), it does not prohibit a sentencing court from finding that a disparity is, in fact,

"warranted." See, e.g., United States v. Vasquez, 433 F.3d 666, 671 (8th Cir. 2006)

(finding that a sentencing disparity between co-defendants was "not unwarranted"

where one "was responsible for a larger quantity of drugs and had a greater criminal

history" than the other). Here, the district court discounted Boneshirt's statistics.

Boneshirt only provided statistics for similar convictions; his statistics do not account

for whether the defendants had "similar records" or whether those offenses involved

"similar conduct." 18 U.S.C. § 3553(a)(6) (emphases added). Indeed, the court found

that the circumstances of Boneshirt's offense were particularly "horrible." Boneshirt's

statistics also fail to account for the existence of any enhancements, which necessarily

lengthen a given sentence. With these considerations, we cannot conclude that the

longer sentence imposed for Boneshirt was "unwarranted."

Finally, Boneshirt has not argued that the district court procedurally erred by

failing to consider the § 3553(a) factors. See Feemster, 572 F.3d at 461. Instead, in

arguing that his sentence is substantively unreasonable, he maintains that his history

and characteristics—including his juvenile status when he committed the offense, his

substandard upbringing, and his neurodevelopmental disorder—warranted a lower

sentence. But the record reflects that the district court "specifically enumerated the §

3553(a) factors in its lengthy sentencing colloquy and discussed those factors." See

Townsend, 618 F.3d at 919. In calculating the Guidelines range, the district court

observed that although "Mr. Boneshirt was—has been a juvenile" with "quite a

juvenile history," such history under the Guidelines did not "count against him in

terms of his criminal history category." 

After calculating the Guidelines range, the court considered "the nature and

circumstances of the offense and the history and characteristics of the defendant." 18

U.S.C. § 3553(a)(1). As noted, it described Boneshirt's crime as "horrible" and found

it "troubling . . . that Mr. Boneshirt would do that to someone he considers a friend
3

We are mindful that sentencing courts may not consider the offender's

rehabilitative needs in determining the length of the sentence to be imposed. Tapia v.

United States, 131 S. Ct. 2382, 2388–91 (2011). The sentencing court may, however,

-16-

and someone that he was, according to his story, romantically involved with at that

very moment." The court specifically considered "the history of the defendant," noting

that it had "received and reviewed many records on Mr. Boneshirt's history" and

stating, "Mr. Boneshirt, it is unfair how you were raised. You were troubled from a

very early age. You are very young, 17 years old, now 18. It is a factor that the Court

considers." (Emphasis added.) The court also considered Boneshirt's disadvantaged

upbringing and his neurodevelopmental disorder but expressed doubt about how much

that disorder affects Boneshirt based on his interactions with the court. The court

reiterated its knowledge of "the details of the history of the defendant" and noted that

it was "considering it all," including the "things [that] happened to Boneshirt that were

completely out of his control as a child." Nevertheless, the court concluded that

Boneshirt's life was one that "throughout has been largely out of control, both during

the time when he didn't have much control over his life and during times when he was

of an age where he was beginning to make decisions for himself." (Emphasis added.)

Next, the court considered the need to protect the public from Boneshirt's future

crimes. Id. § 3553(a)(2)(C). On this note, the court explained that it was "careful" in

considering "the juvenile history because it is a child, a person who is considered a

child under law until age 18, a juvenile." Nevertheless, the court found that his prior

assaults, combined with his involvement in the planned escape, demonstrated

Boneshirt's propensity for committing violent crimes. 

The court also stated, at the sentencing hearing and in its statement of reasons,

that it had considered several of the other § 3553(a) factors. The record shows that the

court considered all the appropriate factors, and nothing in the record demonstrates

a clear error of judgment on the court's part in weighing those factors. Similarly,

Boneshirt has not argued that the court considered any inappropriate factors.3
consider the offender's rehabilitative needs when making other sentencing decisions,

including "deciding whether to impose probation or supervised release." Id. at 2390.

Although the district court briefly observed that Boneshirt's "rehabilitation needs are

vast," it is unclear whether the court considered this fact with respect to the length of

Boneshirt's sentence or some other component of his sentence. Regardless, Boneshirt

has not argued that the district court abused its discretion by mentioning Boneshirt's

rehabilitative needs. See United States v. Frausto, 636 F.3d 992, 997 (8th Cir. 2011)

(finding that the appellant waived an issue by failing to make any supporting

arguments on appeal).

-17-

In sum, the record indicates that, over the course of a six-hour sentencing

hearing, the district court thoroughly considered all of Boneshirt's arguments, the

facts, and the law in attempting to fashion an appropriate sentence. The resulting

sentence is harsh but is within the calculated Guidelines range and hence may be

considered presumptively reasonable. Frausto, 636 F.3d at 997. Presumptively

reasonable, however, does not mean unassailable. Yet this record is lacking in a

demonstration of sentencing error on the part of the district court. Many reasonable

minds may have imposed a lesser sentence, but we conclude that the district court did

not abuse its discretion and impose an unreasonable sentence by selecting a high but

within-Guidelines sentence for a homicide offense.

III. Conclusion

Accordingly, we affirm the judgment of the district court.
-18-

BRIGHT, concurring in part and dissenting in part.

I concur with the majority that the appeal should not be barred by the waiver

in Boneshirt's plea agreement. I strongly dissent as to the sentence. 

Discretion in sentencing belongs with the district court, see United States v.

Likens, 464 F.3d 823, 827 (8th Cir. 2006) (Bright, J., dissenting), but that discretion

is not unfettered, United States v. Burns, 577 F.3d 887, 896-97 (8th Cir. 2009) (en

banc) (Bright, J., concurring). As this court observes, “[a] sentence is substantively

unreasonable if the district court fails to consider a relevant factor that should have

received significant weight, gives significant weight to an improper or irrelevant

factor, or considers only the appropriate factors but commits a clear error of judgment

in weighing those factors.” United States v. Lozoya, 623 F.3d 624, 626 (8th Cir.

2010) (quotation omitted). Stated another way, “‘substantive review exists, in

substantial part, to correct sentences that are based on unreasonable weighing

decisions.’” United States v. Kane, 639 F.3d 1121, 1136 (8th Cir. 2011) (quoting

United States v. Irey, 612 F.3d 1160, 1193–94 (11th Cir.2010) (en banc)).

In en banc this court has explained that it will be the “unusual” case when we

reverse a sentence as substantively unreasonable. United States v. Feemster, 572 F.3d

455, 464 (8th Cir. 2009) (en banc). However, “[i]n sentencing, as in other areas,

district judges at times make mistakes that are substantive. At times, they will impose

sentences that are unreasonable. Circuit courts exist to correct such mistakes when

they occur.” Rita v. United States, 551 U.S. 338, 354 (2007). While we review the

district court's sentencing decision for an abuse of discretion, “[t]here is a difference

. . . between recognizing that another usually has the right of way and abandoning

one's post.” Kane, 639 F.3d at 1136 (quotation omitted). 

Boneshirt's forty-eight-year sentence is substantively unreasonable because the

district court unreasonably weighed the facts at issue in the case. The district court
-19-

failed to give proper weight to the fact that Boneshirt was a juvenile when he

committed the crime, especially when his age is considered with his background and

upbringing. And further, the district court’s sentence placed too much weight on a

plan to escape by Boneshirt when he was pending sentencing.

First, federal and state courts treat juvenile offenders, even serious offenders,

differently than adults who commit serious crimes. Juveniles “have a ‘lack of

maturity and an underdeveloped sense of responsibility’; they ‘are more vulnerable

or susceptible to negative influences and outside pressures, including peer pressure’;

and their characters are ‘not as well formed.’” Graham v. Florida, 560 U.S. __, 130

S. Ct. 2011, 2026 (2010) (quoting Roper v. Simmons, 543 U.S. 551, 569–70 (2005)).

The Supreme Court noted that “developments in psychology and brain science

continue to show fundamental differences between juvenile and adult minds,” Id., and

“‘[i]t is difficult even for expert psychologists to differentiate between the juvenile

offender whose crime reflects unfortunate yet transient immaturity, and the rare

juvenile offender whose crime reflects irreparable corruption.’” Id. (quoting Roper,

543 U.S. at 573). “[T]he character of a juvenile is ‘more transitory’ and ‘less fixed’

than that of an adult.” Id. at 2038 (Roberts, C.J., concurring) (quoting Roper, 543

U.S. at 569–70). We still hold juvenile offenders responsible for their actions, but

because of these fundamental differences a juvenile’s offense “‘is not as morally

reprehensible as that of an adult.’” Id. at 2026 (quoting Thompson v. Oklahoma, 487

U.S. 815, 835 (1988) (plurality opinion)). 

The heavy criminal sentence here does not recognize the possibility of

rehabilitation for juveniles. Categorically, juveniles may not be sentenced to death,

Roper, 543 U.S. at 578, and they may not be sentenced to life in prison without the

possibility of parole for a nonhomicide crime, Graham, 130 S. Ct. at 2034. Part of the

rationale in those cases is that “[j]uveniles are more capable of change than are adults”

and “‘[f]rom a moral standpoint it would be misguided to equate the failings of a

minor with those of an adult, for a greater possibility exists that a minor’s character
4

By comparison, Graham was thirty-four days short of his eighteenth birthday

when he committed the home-invasion robbery that lead to his sentence. Graham, 130

S. Ct. at 2019. As the Supreme Court noted, “[t]he age of 18 is the point where

society draws the line for many purposes between childhood and adulthood,” Id. at

2030 (quotation omitted).

5

The mean sentence for murder in the Eighth Circuit over the past five years is

just under 250 months (20 years, 10 months), as calculated from the statistics tracked

by the United States Sentencing Commission. 

Fiscal

Year

Mean (in

months)

Number of

Cases

2010 285.3 10

2009 264.7 6

2008 150.2 5

-20-

deficiencies will be reformed.’” Graham, 130 S. Ct. at 2026–27 (quoting Roper, 543

U.S. at 570). “Maturity can lead to that considered reflection which is the foundation

for remorse, renewal, and rehabilitation.” Id. at 2032. A sentence for a juvenile needs

to take into consideration the transitory nature of youth and the possibility of

rehabilitation.

Here the district court ignored these principles in sentencing Boneshirt, who

was seventeen years old at the time of the crime, to forty-eight-years’ imprisonment.4

The district court calculated Boneshirt's total offense level at 42 and a criminal history

category of I, thus indicating an advisory guideline sentence of 360 months (30 years)

to life imprisonment. The sentencing judge justified, in part, his forty-eight-year

sentence based on the crime being “horrible” and his belief that Boneshirt needed a

lengthy incarceration to protect the public. Every murder is a horrible crime. Yet

despite the already severe sentence included in the low end of the guideline range of

360 months (30 years), the sentencing judge proceeded to disregard statistics

indicating much less harsh adult sentences for murder and hand down a sentence more

than double the mean sentence for murder in the Eighth Circuit over the last five

years.5

 While sentencing statistics are not determinative, they provide context for the
2007 247.2 9

2006 276 3

U.S. Sentencing Comm’n (USSC), Statistical Information Packet, Fiscal Year 2010,

Eighth Circuit 10 (2010); USSC, Statistical Information Packet, Fiscal Year 2009,

Eighth Circuit 10 (2009); USSC, Statistical Information Packet, Fiscal Year 2008,

Eighth Circuit 10 (2008); USSC, Statistical Information Packet, Fiscal Year 2007,

Eighth Circuit 10 (2007); USSC, Statistical Information Packet, Fiscal Year 2006,

Eighth Circuit 10 (2006). I also note that the 2010 statistics were not available at the

time of sentencing and, therefore, the mean would have been even lower. To reflect

life expectancy, life sentences and sentences over 470 months are capped at 470

months. USSC, 2010 Sourcebook of Federal Sentencing Statistics 161 (2010).

Murder includes first and second degree murder, felony with death resulting, and

conspiracy to murder with death resulting. Id. at 165. 

6

The district court was also “careful when considering juvenile history and

considering history from tribal court proceedings because of due process issues,” but

only in the context of discussing Boneshirt’s previous criminal conduct as a juvenile.

-21-

gravity of the sentence imposed. And in imposing such a harsh sentence, the only

consideration the district court gave to Boneshirt’s age was to note: “You are very

young, 17 years old, now 18. It is a factor that the Court considers.”6

The district court put the proper sentencing for juveniles on its head in this case

by not giving proper weight to Boneshirt’s age and treating him much harsher than a

similarly situated adult. Notwithstanding the broad sentencing discretion vested in

federal judges, see Gall v. United States, 552 U.S. 38, 50–51 (2007), this sentence is

wrong on its analysis of the facts and its application of sentencing requirements. 

Second, the district court did not give proper weight to Boneshirt’s background

and upbringing. Like many children born and raised in Indian Country, Boneshirt

suffered abuse beginning in infancy. See, e.g., United States v. Deegan, 605 F.3d 625,

639–42 (8th Cir. 2010) (Bright, J., dissenting). Boneshirt was born to an alcoholic

mother and she and his step-father heaped physical and emotional abuse on this young
7

It’s quite a paradox. In the record in this case, alcohol flowed everywhere at

the places Boneshirt and Ms. Walking Eagle visited and enjoyed. But they could not

buy cigarettes at the convenience store on the reservation. 

-22-

boy. From ages three to seven, he was shifted out of his mother's home on numerous

occasions and spent time with nine temporary foster families. His mental health

situation was bad; he was born with alcohol-related neurodevelopmental disorder, and

was diagnosed with a mood disorder and attention deficit hyperactivity disorder. 

In an attachment to the PSR, Dr. Manlove gave an insight into Boneshirt's

mental health, his alcoholism, and the relationship of these conditions to the crime.

“It appears that the problems related to his Alcohol Related Neurodevelopmental

Disorder, including mood swings and the impulsivity he had due to Attention Deficit

Hyperactivity Disorder, were catalyzed by his intoxication resulting in the events

leading to the death of Marquita Walking Eagle.” Dr. Manlove also noted that

“[a]ppropriate treatment for chemical dependency and psychiatric problems would

certainly diminish the likelihood of future dangerous acts” and “Boneshirt’s good

behavior at the . . . Juvenile Services Center suggests that as he matures he may be

more able to access and use the treatment process.”

As a longtime federal judge, I have seen and reviewed scores of cases in which

Indian males have been convicted of assaultive crimes, including murder. Alcohol has

played a substantial role in the crime in almost every one of those cases. See, e.g.,

United States v. Jensen, 423 F.3d 851, 853 (8th Cir. 2005), United States v. LeClair,

338 F.3d 882, 884–85 (8th Cir. 2003), United States v. Emeron Taken Alive, 262 F.3d

711, 712 (8th Cir. 2001). And alcohol obviously played a major role in the

unfortunate homicide of Ms. Walking Eagle.7

 Yet the sentencing judge chose a

sentence well above the average sentence for murder when, in context, the

circumstances were not outside of the usual, serious crime by an adult male Indian,

particularly on a reservation. 
8

The offense occurred in Todd County, South Dakota. 

-23-

In addition, the district court did not take into consideration Boneshirt’s life

expectancy. The sentencing judge specifically expressed the desire to protect the

public by ensuring that Boneshirt would be an old man when he was released: “the

Court believes that there is just too much of a risk with Mr. Boneshirt being a part of

society before the point where he’s of a very mature age.” However, the district court

did not properly consider Boneshirt's background as a Native American male, who has

a life expectancy of fifty-eight years. See Christopher J. L. Murray et al., Eight

Americas: Investigating Mortality Disparities across Races, Counties, and RaceCounties in the United States, 3 PLoS Med. 1513, 1514 (2006) (“Native American

males in the cluster of Bennet, Jackson, Mellette, Shannon, Todd, and Washabaugh

Counties in South Dakota had a life expectancy of 58 [years] in 1997–2001 . . . .”).8

Even if he earns all of his good time credit, which the district court was not optimistic

about, he will still serve more than forty years in prison. The district court anticipated

Boneshirt would be an old man when he was released, but in reality he may be a dead

man.

Finally, a significant event that increased the guideline range was an alleged

plan for an escape from the Hughes County Jail. Without that finding, Boneshirt’s

guideline for sentencing would have been much less. Boneshirt would have received

credit for acceptance of responsibility and no added points for obstruction of justice

(the escape issue), resulting in an advisory guideline range of 210 months (17 years,

6 months) to 262 months (21 years, 10 months). His final sentence was more than

twenty-six years over the maximum guidelines range without the escape attempt. 

If Boneshirt had attempted to escape after sentencing, he would have been

charged for attempted escape under 18 U.S.C. § 751(a), or instigating or assisting an

escape under 18 U.S.C. § 752(b), and faced a statutory maximum sentence of five

years. In this case, planning an escape attempt before sentencing added over twelve
-24-

years to Boneshirt’s minimum guideline range. Such an increase in Boneshirt’s

sentence is substantively unreasonable for one poorly-timed, impetuous act of a

teenager that, if attempted after sentencing, would carry a statutory maximum of five

years. For a similar adult offender for second-degree murder in category I, even with

obstruction of justice and no acceptance of responsibility, a thirty-year sentence

should be an ample punishment. But adding eighteen years, in part for an escape

conspiracy, which was unsuccessful and did no one any harm, seems clearly

excessive.

In sum, in failing to give fair and adequate consideration to a juvenile’s lack of

judgment and the likelihood of change for the better of a youthful offender, especially

in light of Boneshirt’s upbringing, and in placing too much emphasis on a plan to

escape, the district court was substantively unreasonable in weighing the facts and

sentenced this defendant far more harshly than a comparable adult criminal. This

excessive sentence should not stand regardless of the views of the majority. Thus, I

dissent, and I would remand for reconsideration and possible reduction of the

sentence.

______________________________