United States of America v. Frenchone One Horn, also known as Frenchone Kills In Water

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-3548
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Frenchone One Horn, also known as Frenchone Kills In Water
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the District of South Dakota - Western
____________
Submitted: October 17, 2022
Filed: March 14, 2023
____________
Before SMITH, Chief Judge, BENTON and SHEPHERD, Circuit Judges.
____________
SMITH, Chief Judge.
Frenchone One Horn pleaded guilty to two counts of assault resulting in
serious bodily injury, one count of health care fraud, and one count of obtaining
controlled substances by fraud. One Horn caused multiple persons, including her
daughter and significant other, to inflict serious bodily injury on themselves. In some
instances, she inflicted the injuries herself by using a rock to smash their hands. One

-- 1 of 5 --

Horn secured their injuries to enable them to obtain pain medication for her use. Their
injuries and the lack of prompt, proper treatment ultimately resulted in amputated
fingers.
The district court1 sentenced One Horn to 144 months in prison, a 36-month
upward variance. She appeals, challenging the substantive reasonableness of her
sentence. She argues that it resulted from “an unreasonable weighing decision in that
it was unjustified by the record and explanation.” Appellant’s Br. at 5. One Horn
contends that the district court failed to explain the low weight it accorded her
mitigation points and supporting evidence. One Horn also argues that the district
court’s articulated reasons did not warrant an upward variance because the calculated
Guidelines range sufficiently accounted for them.
“We review the substantive reasonableness of a sentence for abuse of
discretion.” United States v. Petersen, 22 F.4th 805, 807 (8th Cir. 2022).
“[D]istrict court[s] should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range.” United States v. Feemster, 572 F.3d
455, 460–61 (8th Cir. 2009) (en banc) (quoting Gall v. United States, 552 U.S. 38,
49 (2007)). The court should then “afford[] both parties an opportunity to argue ‘for
whatever sentence they deem appropriate’”; thereafter, “it ‘should then consider all
of the [18 U.S.C.] § 3553(a) factors to determine whether they support the sentence
requested by a party.’” Id. at 461 (quoting Gall, 552 U.S. at 49–50).
A district court abuses its sentencing discretion when it (1) fails to
consider a relevant factor that should have received significant weight;
(2) gives significant weight to an improper or irrelevant factor; or (3)
1The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota.
-2-

-- 2 of 5 --

considers only the appropriate factors but in weighing those factors
commits a clear error of judgment.
Petersen, 22 F.4th at 807 (internal quotation marks omitted). “The district court need
not thoroughly discuss every § 3553(a) factor; rather, a district court must make it
clear on the record that it has considered the factors in making a decision as to the
appropriate sentence.” United States v. Leonard, 785 F.3d 303, 307 (8th Cir. 2015)
(per curiam). And the district court “should set forth enough to satisfy the appellate
court that [it] has considered the parties’ arguments and has a reasoned basis for
exercising [its] own legal decisionmaking authority.” United States v. Kay, 717 F.3d
659, 663 (8th Cir. 2013) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)).
Within-Guidelines-range sentences may be accorded a presumption of
reasonableness on appeal, but sentences outside the Guidelines range cannot. Gall,
552 U.S. at 51. “Where a sentence is outside the advisory guideline range, we ‘may
consider the extent of the deviation, but must give due deference to the district court’s
decision that the § 3553(a) factors, on a whole, justify the extent of the variance.’”
United States v. Lopez, 856 F. App’x 61, 63 (8th Cir. 2021) (per curiam) (quoting
Gall, 552 U.S. at 51). “[T]he fact that the appellate court might reasonably have
concluded that a different sentence was appropriate is insufficient to justify reversal
of the district court.” United States v. Luleff, 574 F.3d 566, 570 (8th Cir. 2009)
(quoting Gall, 552 U.S. at 51).
In addition, “[a] district court’s choice to assign relatively greater weight to the
nature and circumstances of the offense than to the mitigating personal characteristics
of the defendant is well within its wide latitude in weighing relevant factors.” United
States v. Farmer, 647 F.3d 1175, 1180 (8th Cir. 2011). But “[w]here the defendant
or prosecutor presents nonfrivolous reasons for imposing a different sentence, . . . the
judge will normally go further and explain why he has rejected those arguments.”
Kay, 717 F.3d at 663.
-3-

-- 3 of 5 --

The sentencing transcript belies One Horn’s argument that the district court
wrongly weighed the sentencing factors. On this record, we are satisfied that the court
considered her mitigation points and had a reasoned basis for its decision. One Horn’s
assertions that “anyone who would do these acts obviously would not have been in
her right mind” and that “the crimes were triggered by desperate instinct and
addiction, not by sober-minded deliberation,” Appellant’s Reply Br. at 2, were
rejected. The district court found that injuring one’s own child is “not so uncommon
as to put [it] outside the bounds of human behavior if a person is functioning in a way
that they know exactly what they’re doing.” R. Doc. 60, at 77:12–14. The court also
noted that One Horn appreciated the nature of her actions because
[t]he judgments made are too consistent over time, and the nature of the
conduct is too similar and extended temporally to be viewed as . . . the
result of a mental illness or an addiction so deep that the person couldn’t
appreciate the wrongfulness of their conduct or the seriousness of the
consequences to the victims here.
Id. at 78:21–79:2.
Further, despite One Horn’s assertions to the contrary, the district court
expressly accounted for her upbringing, prior abuse, and addiction. It stated, “we
can’t overlook the reality that she’s had a very difficult journey in life herself, and
then struggling with the addiction issues,” id. at 80:3–5, but that “[i]t’s not offered
as an excuse for the behavior,” id. at 80:5–6. The district court also noted that the
seriousness of the crime warranted commensurate consequences, “especially when
there’s physical injury to five different victims in the setting of these facts.” Id. at
80:23–24.
One Horn also argues that the district court should have considered her need
for rehabilitation. But the district court addressed this need when imposing a term of
supervised release, stating, “I really do see the term of supervised release as being
-4-

-- 4 of 5 --

rehabilitative here. . . . [T]he best way to protect the community is to make sure that
you get the help that you need, Ms. One Horn, in terms of rehabilitation.” Id. at 81:7-
14.
Ultimately, the court “assign[ed] relatively greater weight to the nature and
circumstances of the offense,” rather than One Horn’s “mitigating personal
characteristics,” which was “within [the district court’s] wide latitude in weighing
relevant factors.” Farmer, 647 F.3d at 1180. The district court noted the
“extraordinary” nature of One Horn’s assaults and that they are the “real counts here
that are extreme and require punishment.” R. Doc. 60, at 81:18–20. The district court
commented on the “cruel” nature of the conduct and stated that it came “close to the
nature of being offenses which really constitute a form of torture.” Id. at 79:17–19.
The district court also acknowledged the conduct of the dismissed counts in the case.
The defendant’s egregious acts warranted an above-Guidelines sentence. After
due consideration of the facts and the relevant factors, the resulting sentence was not
substantively unreasonable. In short, “[t]his is not the unusual case when we reverse
a district court’s sentence as substantively unreasonable.” Kay, 717 F.3d at 664
(cleaned up).
Accordingly, we affirm.
______________________________
-5-

-- 5 of 5 --