United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-1909

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United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * District of North Dakota. 

Mitchell Dean Cree, *

 * [PUBLISHED]

Appellant. *

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 Submitted: December 28, 1998

 Filed: February 2, 1999

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Before FAGG, BEAM, and LOKEN, Circuit Judges. 

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PER CURIAM.

On the morning of June 8, 1997, Mitchell Dean Cree, an American Indian,

confronted his wife, who was in the process of obtaining a divorce, in front of her

home on Indian trust land in North Dakota. Cree dragged his wife from her car and

kicked and beat her repeatedly. Brandishing a knife, Cree forced her into the

passenger side of her car and abducted her at knife point to an abandoned house not

on Indian lands, where he handcuffed and raped her before returning her to her house.

Cree’s wife was treated for injuries including a cut on her face that required seventeen

stitches and left a scar still visible at Cree’s trial seven months later, a broken tooth that

required extraction, and bruises all over her body. A jury convicted Cree of

kidnapping, assault resulting in serious bodily injury, and interstate domestic violence
The HONORABLE PATRICK A. CONMY, United States District Judge for 1

the District of North Dakota. 

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in violation of 18 U.S.C. §§ 113(a)(6), 1153, 1201(a)(2), and 2261(a), (b). Cree

appeals his conviction and sentence. We affirm. 

Cree attacks his conviction and sentence on the ground that his trial counsel

provided ineffective assistance in preparing for and conducting the trial and sentencing

hearing. We agree with the government that the record on direct appeal is not

sufficiently developed to address these issues. Accordingly, they must be raised in a

28 U.S.C. § 2255 proceeding. See United States v. Santana, 150 F.3d 860, 863 (8th

Cir. 1998). 

In determining Cree’s sentence, the district court first grouped his three

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offenses and then determined his base offense level based upon the most serious

offense, kidnapping. See U.S.S.G. § 3D1.4. When another offense is committed

during a kidnapping, the sentencing court applies the offense section appropriate for

the other offense if it is higher than 23, the base offense level for kidnapping. See

U.S.S.G. § 2A4.1(b)(7)(A). Here, the court began with the base offense level for

criminal sexual abuse, which is 27. See U.S.S.G. § 2A3.1; United States v. Barnett,

5 F.3d 795, 798-800 & n.6 (5th Cir.1993), cert. denied, 510 U.S. 1137 (1994). The

court added a four-level increase for use or display of a dangerous weapon, see

U.S.S.G. § 2A3.1(b)(1) (1997); a four-level increase because the scar on the victim’s

face was a permanent bodily injury, see U.S.S.G. § 2A3.1(b)(4)(A); and a four-level

increase because of the abduction, see U.S.S.G. § 2A3.1(b)(5). The offense level of

39 resulted in a Guidelines sentencing range of 262 to 327 months. The court

sentenced Cree to 262 months in prison and three years of supervised release. 

On appeal, Cree first argues that the base offense level for criminal sexual abuse

does not apply because the federal government had no jurisdiction over the sexual

assault he committed outside of Indian country. However, the Guidelines specifically
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direct the sentencing court to consider state and local offenses when applying

§ 2A4.1(b)(7). See U.S.S.G. § 2A4.1, comment. (backg’d.); United States v. Pollard,

986 F.2d 44, 46-47 (3d Cir.), cert. denied, 508 U.S. 956 (1997). Cree next argues that

the evidence was insufficient to support the four-level increases for use of a dangerous

weapon and for inflicting a permanent injury. We disagree. Based upon the victim’s

testimony, the district court found “that a weapon was in fact used and that it was used

to cut the victim on the face and that there is a result from that cut which fits the

permanence requirements of the guidelines, particularly on the face of a relatively

young woman.” These findings are not clearly erroneous. See United States v.

Saknikent, 30 F.3d 1012, 1013 (8th Cir. 1994) (standard of review); U.S.S.G. § 1B1.1,

comment. (n.1(h)) (defining “[p]ermanent or life-threatening bodily injury” to include

“an obvious disfigurement that is likely to be permanent”). 

The judgment of the district court is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.