Submitted: October 15, 2018
from United States District Court for the District of South
Dakota - Rapid City
SHEPHERD, KELLY, and STRAS, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
Ann Wisecarver pled guilty to second-degree murder in
violation of 18 U.S.C. §§ 1111(a) and 1153. The
district court granted the government's request for
an upward departure or an upward variance, sentencing
Wisecarver to 480 months imprisonment. She appeals, alleging
her sentence is substantively unreasonable. Having
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C.
§ 1291, we affirm.
2014, Wisecarver and her husband received custody of J.L.,
then about two years old, based on a distant family
relationship. J.L. and his siblings had been removed from
their mother's custody due to her drug abuse. In the
months that followed, Wisecarver physically abused J.L.,
motivated largely by frustration over toilet-training issues.
Wisecarver's physical abuse of J.L. culminated on
February 24, 2015 when an ambulance brought the boy to the
Pine Ridge Indian Health Services Hospital. J.L. was
pronounced dead shortly after arrival. The boy's autopsy
revealed that he had been abused for some time; he was
covered in old and new injuries, including bruises, burn-like
injuries to his face, and injuries to his genitals. He died
from multiple blunt trauma injury, including catastrophic
injuries to the head and abdomen. When interviewed about
J.L.'s death, Wisecarver initially denied killing the
child, claiming he had fallen due to a seizure. The
subsequent investigation contradicted this claim. Several
individuals, including J.L.'s pediatrician, denied that
the child had seizures, and witnesses familiar with the
family reported seeing Wisecarver hit J.L.'s head against
a concrete floor, duct tape the child to a toilet, rub the
child's face in urine, and put the child in a washing
machine. In September 2015, the government charged Wisecarver
and her husband with first-degree murder and several counts
of child abuse. To avoid a mandatory life sentence,
Wisecarver pled guilty to second-degree murder and signed a
statement admitting to repeated physical abuse of J.L. that
resulted in his death.
presentence investigation report (PSR) generated a United
States Sentencing Guidelines range of 210-262 months
imprisonment due, in part, to Wisecarver's lack of
criminal history. At sentencing, the government sought an
upward departure or upward variance to 480 months, contending
that the PSR's calculation of the appropriate Guidelines
range failed to consider the "exceptionally heinous,
cruel, brutal, or degrading" nature of the crime and the
original dismissed charges. United States Sentencing
Commission, Guidelines Manual, §§ 2A1.2,
comment. (n.1) (stating "an upward departure may be
warranted" in second degree murder cases involving
heinous conduct), 5K2.8 (noting a court may depart upward to
reflect the "unusually heinous" nature of the
offense conduct), 5K2.21 (stating a "court may depart
upward to reflect the actual seriousness of the offense based
on conduct . . . dismissed as part of a plea agreement . . .
."). The district court granted both the upward
departure and the upward variance. It cited U.S.S.G. §
5K2.0-the Guidelines' policy statement for grounds for
departure, including aggravating or mitigating
circumstances-as additional support for its decision. The
district court found that both the Guidelines' departure
provisions and the 18 U.S.C. § 3553(a) variance factors
led the court to impose the same above-guidelines sentence of
40 years imprisonment. Wisecarver now challenges the district
court's upward variance and upward departure. She
contends that her sentence is substantively unreasonable,
arguing it is disparately long compared to the sentences
imposed on similar defendants.
review the substantive reasonableness of a sentence using
"a deferential abuse of discretion standard,"
considering "the totality of the circumstances,
including the extent of any variance from the Guidelines
range." Gall v. United States, 552 U.S. 38, 41,
51 (2007). A district court abuses its discretion when it
fails to give significant weight to a relevant factor;
"gives significant weight to an improper or irrelevant
factor;" or considers the proper factors but
"commits a clear error of judgment" in weighing
them. United States v. Feemster, 572 F.3d 455, 461
(8th Cir. 2009) (en banc) (internal quotation marks omitted).
It is "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 seven § 3553(a) factors requires that the court
consider "the need to avoid unwarranted sentence
disparities among defendants with similar records who have
been found guilty of similar conduct." 18 U.S.C. §
3553(a)(6). However, it is not necessarily an abuse of
discretion to impose an above-range sentence, including the
statutory maximum, in "extraordinary" cases in
which there are "aggravating circumstances . . . not
adequately taken into account by a shorter term of
imprisonment." United States v. Lovato, 868
F.3d 681, 684 (8th Cir. 2017) (affirming a sentence that was
virtually quadruple the recommended Guidelines range when the
defendant regularly sexually abused a minor over the course
of eight and a half years). When a disparity arises between a
defendant's sentence and the sentences given in other
similar cases, this difference must be weighed against the
other six factors. United States v. Soliz, 857 F.3d
781, 783 (8th Cir. 2017), cert. denied, 138 S.Ct.
567 (2017). Furthermore, a "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).
argues that her sentence is disproportionately severe
compared to the sentences given in other cases involving the
deaths of children. She therefore contends that outrage,
rather than proper balancing of the § 3553(a) factors,
primarily drove the district court's analysis. However,
the district court was explicit in its reasoning. It
emphasized that it "thought about [the sentence] long
and hard," Sent. Tr. 30, Dist. Ct. Dkt. 157, and
stressed that Wisecarver's case was unusual compared to
other child death cases because J.L.'s autopsy
demonstrated that he "sustained repeated and over a
period of time really brutal and heinous and cruel injuries
which finally resulted in the child's death." Sent.
Tr. 31. The court described its struggle to find comparable
cases involving such severe and sustained child abuse; it
stated it had seen only one other case that "would even
come close to being more horrific than this homicide of an
infant." Sent. Tr. 33. All of the cases cited by
Wisecarver are distinguishable from her own, involving
neglect rather than violent abuse, single incidents rather
than prolonged mistreatment, or multiple abusers rather than
one.In addition to clearly considering
potential sentence disparity, the district court expressly
weighed other statutory considerations justifying the
sentence imposed including the seriousness of the offense,
Wisecarver's need for treatment, the interest in
deterring similar criminal conduct, and the need to protect
the public from further crimes. See 18 U.S.C. §
3553(a)(2). While the district court clearly "assign[ed]
. . . greater weight" to the seriousness of the offense
than it did to other factors, under § 3553(a), it had
"wide latitude" to do so. See United States v.
Maxwell, 664 F.3d 240, 247 (8th Cir. 2011) (quoting
Bridges, 569 F.3d at 379). Therefore, the court did
not abuse its discretion in granting an upward variance.
Wisecarver fails to allege any specific error in the district
court's application of the Guidelines' departure
provisions. Instead, she broadly contends that its use of the
departure provisions resulted in a substantively unreasonable
sentence. Rather than identifying a sole source for its
enhanced sentence, the district court framed a Guidelines
departure based on "heinous" conduct and a variance
based on the § 3553(a) factors as alternative bases for
arriving at the same 40-year sentence. In such instances, if
"the district court did not abuse its substantial
discretion in varying upward . . ., any error in
alternatively imposing an upward departure [is] harmless
because 'the district court would have imposed the same
sentence absent the error.'" United States v.
Grandon, 714 F.3d 1093, 1098 (8th Cir. 2013) (quoting
United States v. Idriss, 436 F.3d 946, 951 (8th Cir.
2006)). Therefore, because the district court did not abuse
its discretion in varying upward, we necessarily find no
reversible error in the district court's reference to the
departure provisions, and we need not discuss the district
court's departure analysis.
Because the district court did not abuse its discretion in
imposing Wisecarver's sentence, we affirm.