United States of America v. Moses Runs Against

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-2908
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Moses Runs Against
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the District of South Dakota - Western
____________
Submitted: April 11, 2023
Filed: April 27, 2023
____________
Before GRUENDER, WOLLMAN, and ARNOLD, Circuit Judges.
____________
ARNOLD, Circuit Judge.
While driving under the influence of alcohol one night in Indian country,
Moses Runs Against crossed the centerline and crashed into another car, killing two
people and seriously injuring two others. Runs Against pleaded guilty to two counts
of involuntary manslaughter, see 18 U.S.C. §§ 1112, 1153, and the district court1
1The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.

-- 1 of 5 --

sentenced him to two consecutive 84-month prison terms. He challenges the sentence
on appeal. We affirm.
The crash claimed the life of the driver of the other car as well as the driver's
mother. The crash also seriously injured the driver's twelve-year-old daughter and
another passenger, both of whom were flown from the scene to a hospital. By the time
of the sentencing hearing about eight months after the accident, the driver's daughter
was able to walk, though with difficulty, while the other injured passenger remained
in the hospital.
Runs Against was charged with two counts of involuntary manslaughter and
two counts of assault resulting in serious bodily injury. See 18 U.S.C. § 113(a)(6),
1153. As part of a plea agreement, the government agreed to dismiss the assault
charges in exchange for Runs Against's guilty plea to the manslaughter charges. A
presentence investigation report calculated his Sentencing Guidelines range to be
57–71 months' imprisonment.
Before sentencing, the government moved "for consecutive sentences on each
count of conviction and for an upward variance or departure." It sought consecutive,
statutory-maximum sentences of 96 months on each count. The government explained
that the sentencing considerations in 18 U.S.C. § 3553(a) supported an upward
variance and consecutive sentences. It noted that Runs Against had pleaded guilty to
assault resulting in serious bodily injury fifteen years before the crash when, as here,
he was driving under the influence and crashed his car, ejecting "[s]everal
passengers" and severely injuring his three-year-old son. He received a 57-month
prison sentence and a term of supervised release, and during his release term, he
violated several alcohol-related conditions, leading to another six-month prison
sentence. The government argued that Runs Against's history showed he had "an
extensive alcohol problem" and "that if given the chance, he will again seriously
injure or kill others." Finally, the government sought an upward departure under
-2-

-- 2 of 5 --

USSG § 5K2.21 because the facts underlying the dismissed assault charges didn't
affect the calculation of Runs Against's Guidelines range.
At the sentencing hearing, neither party objected to the PSR's Guidelines
calculation, and so the district court adopted the report, though it mistakenly recited
a Guidelines range of 46–57 months in prison—a range that was more favorable to
Runs Against. After hearing from the parties and from victims as to what sentence
was appropriate, the district court expressly considered many of the § 3553(a) criteria,
placing particular emphasis on the seriousness of the offense and on Runs Against's
criminal history. It observed to him that if his previous drunk-driving accident where
he seriously injured his three-year-old son wasn't "enough to scare you and make you
quit drinking for the rest of your life, I don't know what is."
The court concluded that "the guideline range is not sufficient," and so it
announced it would "both upward depart and upward vary." It stated that it would
depart upward under § 5K2.21 and under § 4A1.3(a)(1) because it thought Runs
Against's criminal-history category underrepresented his likelihood of reoffending,
given his record of alcohol-related incidents. The court acknowledged that Runs
Against immediately accepted responsibility and apologized, and so instead of giving
him consecutive maximum sentences, it opted instead "to give [him] one year credit
on each count."
Runs Against maintains on appeal that the district court failed to provide an
adequate explanation for its decision to depart upward on the ground that his
criminal-history category underrepresented his likelihood of reoffending, see USSG
§ 4A1.3(a)(1), especially since neither the PSR nor the government recommended this
departure (though, we point out, the government did seek an upward variance based
on Runs Against's criminal history). We review Runs Against's contention for plain
error since he did not object before the district court. See United States v. Walking
Eagle, 553 F.3d 654, 657 (8th Cir. 2009). Under this standard of review, Runs
Against must show that the district court committed an obvious error that affected his
-3-

-- 3 of 5 --

substantial rights. See United States v. Combs, 44 F.4th 815, 818 (8th Cir. 2022) (per
curiam). To show that an error affected his substantial rights, he must convince us
that a reasonable probability exists that he would have received a more favorable
sentence but for the error. See United States v. Harrell, 982 F.3d 1137, 1140 (8th Cir.
2020).
We hold that, even if the district court's explanation of the § 4A1.3(a)(1)
departure was plainly insufficient, Runs Against has failed to demonstrate a
reasonable probability that he would have received a more favorable sentence absent
the court's error. The district court expressly anchored its chosen sentence to the
maximum punishment set by Congress, not to the Guidelines. The record shows that
the sentence chosen, much like the one the government recommended, was a product
of an evaluation of the § 3553(a) criteria, in particular the nature and circumstances
of the offense and Runs Against's criminal history. The district court selected a
statutory-maximum sentence, though it did give Runs Against some credit for his
remorse and acceptance of responsibility. We are therefore convinced "that the
district court thought the sentence it chose was appropriate irrespective of the
Guidelines range," see Molina-Martinez v. United States, 578 U.S. 189, 200 (2016);
United States v. Ngombwa, 893 F.3d 546, 558 (8th Cir. 2018), and so any error here
did not affect Runs Against's substantial rights.
Runs Against also asserts that the court imposed a substantively unreasonable
sentence because it did not adequately consider the circumstances of his tumultuous
childhood or his sincere remorse and acceptance of responsibility. We disagree. The
PSR detailed some of the difficulties that Runs Against experienced as a child, but
at no point did he suggest to the district court that these matters deserved attention;
in fact, he did not discuss them at all during the sentencing hearing or in his letter to
the court before sentencing. We cannot fault the district court for giving them the
same attention that Runs Against did. As for Runs Against's remorse and acceptance
of responsibility, the district court expressly credited Runs Against and as a result
opted against the maximum sentence that the government requested. "A district court
-4-

-- 4 of 5 --

has wide latitude to assign weight to give factors, and the district court may give
some factors less weight than a defendant prefers or more weight to other factors, but
that alone does not justify reversal." United States v. Brown, 992 F.3d 665, 673–74
(8th Cir. 2021). We therefore hold that the district court did not abuse its discretion.
Cf. United States v. Fight, 625 F.3d 523, 526 (8th Cir. 2010).
Affirmed.
______________________________
-5-

-- 5 of 5 --