United States Court of Appeals

For the Eighth Circuit

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No. 19-1210

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United States of America

lllllllllllllllllllllPlaintiff - Appellant

v.

Darwin Wade Red Cloud, also known as Darwin Raisch

lllllllllllllllllllllDefendant - Appellee

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Appeal from United States District Court 

for the District of South Dakota - Rapid City

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 Submitted: February 13, 2020

Filed: July 23, 2020

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Before LOKEN, BENTON, and KELLY, Circuit Judges. 

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KELLY, Circuit Judge.

Darwin Red Cloud pleaded guilty to second-degree murder in violation of

18 U.S.C. §§ 1111(a) and 1153. The district court1 imposed a sentence of 48 months

1The Honorable Jeffrey L. Viken, then Chief Judge, United States District

Court for the District of South Dakota. 
of incarceration, followed by five years of supervised release. The government

appeals the sentence imposed as substantively unreasonable.

Red Cloud’s son, D.K.E., was born on August 20, 2014. At the time, Red

Cloud was 20 years old, and D.K.E.’s mother, J.K.E., was 15. The two had sole

custody of their son. On October 11, 2014, J.K.E. went to check on the infant in his

crib and found he was not breathing. Later that day, D.K.E. was pronounced dead at

the Pine Ridge Indian Health Services Hospital. The autopsy reported the cause of

death as “gross changes compatible with emaciation/dehydration.” 

Red Cloud pleaded guilty to a superseding indictment alleging one count of

second-degree murder. Taking into account Red Cloud’s lack of a criminal history

and his acceptance of responsibility, the presentence investigation report calculated

a total offense level of 37, and a Guidelines range of 210 to 262 months’

incarceration. Neither party objected to this range.

We review the substantive reasonableness of a sentence for an abuse of

discretion. Gall v. United States, 552 U.S. 38, 51 (2007). In so doing, we “take into

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

the Guidelines range” and when the sentence varies from the Guidelines range, we

“give due deference to the district court’s decision that the [18 U.S.C.] § 3553(a)

factors, on a whole, justify the extent of the variance.” Id. We may not reverse

simply because we “might reasonably have concluded that a different sentence was

appropriate.” Id. It is “the unusual case where we reverse a district court

sentence—whether within, above, or below the applicable Sentencing Guidelines

range—as substantively unreasonable.” United States v. Feemster, 572 F.3d 455, 464

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

A district court abuses its discretion and imposes a substantively unreasonable

sentence when it “(1) fails to consider a relevant factor that should have received

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significant weight; (2) gives significant weight to an improper or irrelevant factor; or

(3) considers only the appropriate factors but in weighing those factors commits a

clear error of judgment.” Id. at 461 (cleaned up).

The district court properly considered the § 3553(a) factors. An expert’s

forensic interview of Red Cloud indicated he has significant cognitive impairments

that affected his ability to properly care for a newborn child. The district court relied

on this and concluded that Red Cloud’s “personal history and characteristics

and . . . limitations can’t be overlooked, they are sentencing factors and they are

mitigating.” See 18 U.S.C. § 3553(a)(1).

The district court considered “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of

similar conduct.” See id. § 3553(a)(6). The court stated that it saw Red Cloud’s case

as “different from other cases involving the death of children” because, for example,

“[m]ost of those cases involve violence” or “had real aggravating factors involved.” 

As the district court saw it, the facts of this case were “much more aligned with the

reckless disregard for the safety and life of others.” Section 3553(a)(6) requires that

the sentence disparities not be “unwarranted,” and the district court clearly explained

why any possible disparity here was warranted. The court also noted the need for the

sentence to provide “adequate deterrence to criminal conduct.” See id.

§ 3553(a)(2)(B). However, it concluded this factor did not weigh in favor of a

lengthier sentence because, on these facts, the need for additional deterrence, both to

Red Cloud and to society at large, was not “significant.” 

In addition to considering the goals of deterrence and responsibility, avoiding

unwarranted disparities, and imposing just punishment, the district court told Red

Cloud that it was fashioning a sentence that would “pay attention to the other

behaviors and get you the resources you need. So rehabilitation and treatment are

necessary as well.” See id. § 3553(a)(2)(D) (directing the district court to consider

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the need for the sentence imposed to “provide the defendant with needed educational

or vocational training, medical care, or other correctional treatment in the most

effective manner”). At sentencing, Red Cloud was 26 years old. The district court

noted he had “a life ahead” of him, and needed “support and help” going

forward—not solely punishment for his role in the death of D.K.E. The court also

noted Red Cloud had a history with substance abuse, and imposed the five-year term

of supervised release in part so Red Cloud could receive the resources to address his

chemical dependency issues.

The district court did not abuse its discretion by imposing a below-Guidelines

sentence. A variance of this magnitude from the Guidelines requires “serious

consideration” from the district court. Gall, 552 U.S. at 46. “The sentencing judge

should set forth enough to satisfy the appellate court that he has considered the

parties’ arguments and has a reasoned basis for exercising his own legal

decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007). When,

as here, “the judge imposes a sentence outside the Guidelines, the judge will explain

why he has done so.” Id. at 367. It is evident the district court gave this matter the

serious consideration it required. The court found the sentencing range “too severe”

for the facts of this case because “there are more mitigating factors than aggravating

[ones]” and the Guidelines did not adequately reflect this. The court expressly

weighed the § 3553(a) factors and sought to balance the seriousness of the offense

with Red Cloud’s specific “personal history and characteristics and . . . limitations.” 

That balancing is within the sound discretion of the district court. 

The judgment of the district court is affirmed.

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