Submitted November 18, 2013.
Appeal from United States District Court for the District of South Dakota - Pierre.
For United States of America, Plaintiff - Appellee: Marie H. Ruettgers, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of South Dakota, Pierre, SD.
Eddie Hummingbird, Defendant - Appellant, Pro se, Terre Haute, IN.
For Eddie Hummingbird, Defendant - Appellant: Jana Miner, FEDERAL PUBLIC DEFENDER'S OFFICE, Pierre, SD.
Before RILEY, Chief Judge, MELLOY and KELLY, Circuit Judges.
Eddie Hummingbird pled guilty to one count of abusive sexual contact, in violation of 18 U.S.C. § § 1153, 2244(b), and 2246(3). The district court calculated his sentencing guideline range at 6-12 months. The court varied upward, sentencing Hummingbird to 24 months, the statutory maximum. Hummingbird appeals, contending the sentence is substantively unreasonable. We affirm.
On April 14, 2012, Hummingbird gave the victim, Michelle Two Charger, a ride from a bar in Kilgore, Nebraska, to her home on the Rosebud Sioux Indian Reservation in South Dakota. He asked to come inside Two Charger's home, and she agreed. There is a dispute as to what followed. After using the bathroom, Hummingbird entered Two Charger's master bedroom, where she was either exiting the room (according to Two Charger) or on the bed (according to Hummingbird). Two Charger reported to police that Hummingbird anally penetrated her by force. Hummingbird denied this, but admitted Two Charger was face down on the bed and he " intentionally touched her genitalia, groin, and inner thigh, skin to skin, without the victim's consent." Statement of Factual Basis at 1-2, No. 12-30101, ECF No. 42. Hummingbird also explained that he was intoxicated at the time and does not remember many details of that evening. Sentencing Tr. at 13-15, No. 12-30101, ECF No. 66.
In August 2012, Hummingbird was indicted on one count of aggravated sexual abuse, in violation of 18 U.S.C. § 2241(a). In March 2013, Hummingbird pled guilty to a superseding information charging him with one count of abusive sexual contact, in violation of 18 U.S.C. § 2244(b).
The Presentence Investigation Report (" PSR" ) recommended applying a cross-reference to aggravated sexual abuse, U.S. Sentencing Guidelines Manual (" USSG" ) § 2A3.1(a)(2) (2012), pursuant to U.S.S.G. § 2A3.4(c)(1). This cross-reference would have increased the base offense level from 12 to 30. The PSR also recommended additional increases due to specific offense characteristics: a four-level increase to the offense level pursuant to U.S.S.G. § 2A3.1(b)(1) due to the use of force, and a two-level increase pursuant to U.S.S.G. § 2A3.1(b)(4)(B)
due to serious bodily injury to the victim. At sentencing, however, the district court sustained Hummingbird's objections to the cross-reference, use of force, and serious bodily injury. It found the evidence about what occurred that evening in equipoise given the victim, Two Charger, did not testify. Consequently, the district court calculated a guideline range of 6-12 months. ...