United States of America v. Dirk Garnier

United States Court of Appeals
For the Eighth Circuit
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No. 22-2702
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United States of America
Plaintiff - Appellee
v.
Dirk Garnier
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Western
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Submitted: March 17, 2023
Filed: July 7, 2023
[Unpublished]
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Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Dirk Garnier pled guilty to voluntary manslaughter and discharge of a firearm
during a crime of violence, in violation of 18 U.S.C. §§ 1153, 1112, and
924(c)(1)(A)(iii). The presentence investigation report (“PSR”) recommended a
guideline range of 63 to 78 months of imprisonment for the manslaughter offense.
The firearm offense carried a mandatory minimum sentence of 120 months, to be

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served consecutively to any other sentence. The district court1 sentenced Garnier to
96 months of imprisonment for the manslaughter offense and 120 months of
imprisonment for the firearm offense. Garnier appeals the substantive
reasonableness of the sentence. We affirm.
Garnier and Beau Blacksmith were drinking together at Garnier’s home. An
argument arose between Blacksmith, Blacksmith’s girlfriend, and Garnier’s wife.
Garnier left the scene to retrieve a sawed-off shotgun. When he returned, Garnier
pointed the weapon at Blacksmith who held up his hands and yelled to Garnier, “It
doesn’t have to come down like that!” Garnier then shot and killed Blacksmith.
When a police officer arrived, Garnier pointed his weapon at the officer. The officer
shot Garnier in the shoulder after Garnier refused to put the weapon down.
An initial indictment charged Garnier with second-degree murder and
discharge of a firearm during the commission of a crime of violence. A superseding
indictment charged Garnier with voluntary manslaughter and discharge of a firearm
during the commission of a crime of violence. Garnier pled guilty to the charges in
the superseding indictment. The PSR recommended an offense level of 26 and a
criminal history category of I, resulting in a recommended guideline range of 63 to
78 months of imprisonment. Garnier did not file any objections to the PSR.
Before sentencing, the government filed a motion for an upward departure or
variance and the defense filed a motion for a downward departure or variance. At
sentencing, Garnier objected generally to the government’s motion for an upward
departure or variance. After adopting the PSR, the district court said: “There is
dismissed and uncharged conduct, which is a real consequence here. I don’t often
consider that factor. It’s federal sentencing guidelines 5K2.21, where a judge can
depart upward based on the seriousness of the conduct and the charges which could
have been brought and were not, or charges which were brought, like the second-
1 The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota.

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degree murder charge, but they are going to be dismissed as a result of the plea
agreement[.]” In discussing dismissed and uncharged conduct, the district court
noted Garnier didn’t have the “specific intent or the premeditation that would be
required for a murder case” and the crime was committed in the “heat of passion.”
The district court also discussed several serious non-homicide charges that could
have been brought based on undisputed facts in the PSR, including possession of an
unregistered firearm, use of an unregistered firearm in a crime of violence, assault
on a federal officer, and brandishing a firearm.
After concluding an upward departure was warranted and considering the
§ 3553(a) factors, the district court sentenced Garnier to 96 months of imprisonment
for the voluntary manslaughter offense. Garnier then objected to the fact that “the
Court did not provide the parties any notice of intent to depart upward in this case.”
But see Fed. R. Crim. P. 32(h) (stating notice is not required if the grounds for
departure are identified in a party’s prehearing submission). The district court
responded by saying: “I also found the same sentence would apply, for the reasons
I’ve stated, under an upward variance, 18 United States Code Section 3553(a), and
the relevant conduct which I have addressed.”
Garnier now appeals, arguing the sentence is substantively unreasonable
because the district court improperly relied on the dismissed second-degree murder
charge and failed to give proper weight to Blacksmith’s own misconduct. On appeal,
we review a sentence “in two steps: ‘first, [we review] for significant procedural
error; and if there is none, for substantive reasonableness.’ If an alleged procedural
error was not raised in the district court, we review it for plain error. If there is no
procedural error, we then review a sentence for reasonableness in relation to the
advisory sentencing range and the factors from § 3553(a) . . . .” United States v. Hall,
931 F.3d 694, 696 (8th Cir. 2019) (citations omitted).
Garnier argues specifically that the district court improperly considered the
dismissed second-degree murder charge after the district court expressly found he
did not have the intent required for murder. United States Sentencing Guidelines

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§ 5K2.21 allows a district court to depart upward based on a charge dismissed as
part of a plea agreement or underlying conduct that was not charged, if the
government proves “the defendant committed the alleged offense by a
preponderance of the evidence.” United States v. Brave Bull, 828 F.3d 735, 739 (8th
Cir. 2016) (citation omitted). Although Garnier objected generally to the upward
departure, Garnier did not object to the consideration of the second-degree murder
charge. As such, we review the district court’s consideration of the second-degree
murder charge for plain error. Id. “Under plain-error review, the defendant must
show: (1) an error; (2) that is plain; (3) that affects substantial rights; and (4)
seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
Id. (citation omitted).
Garnier argues that the district court’s finding as to intent means the district
court could not have found second-degree murder by the preponderance of the
evidence. To show second degree murder the government must show Garnier killed
Blacksmith with “malice aforethought.” Id. (“Malice may be shown . . . by evidence
of conduct which is reckless and wanton, and a gross deviation from a reasonable
standard of care, of such a nature that the factfinder is warranted in inferring that
defendant was aware of a serious risk of death or serious bodily harm.” (citation
omitted). The specific intent to kill a human being is not required for second-degree
murder. 18 U.S.C. § 1111; United States v. Cottier, 908 F.3d 1141, 1147 (8th Cir.
2018) (noting “malice aforethought” for second degree murder can be proved by
showing the defendant possessed “an intent willfully to act in callous and wanton
disregard of the consequences to human life”). The plea agreement specifies Garnier
shot Blacksmith after Blacksmith “held up his hands and yelled to [Garnier], ‘It
doesn’t have to come down like that!’” Given the uncontested facts in the plea
agreement, Garnier’s arguments related to intent do not show it was an error for the
district court to consider the dismissed second-degree murder charge.
Regardless, even if there were an error, it did not affect Garnier’s “substantial
rights[.]” Brave Bull, 828 F.3d at 739. To find there was plain error, “the error must
have affected the defendant’s substantial rights, which in the ordinary case means he

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or she must ‘show a reasonable probability that, but for the error,’ the outcome of
the proceeding would have been different[.]” Molina-Martinez v. United States, 578
U.S. 189, 194 (2016) (citations omitted). The district court was clear that a higher
sentence was required due to the uncontested aspects of the crime. The district court
highlighted several uncharged crimes, including the possession of an unregistered
firearm, a felony which “[p]eople go to prison for . . . regularly out of this court
because of the dangerous nature of that weapon[]” and “assault on a federal officer,
which by itself would result in a severe prison sentence.” Because any departure was
based on the totality of the circumstances, mention of the second-degree murder
charge did not affect Garnier’s substantial rights. Additionally, the district court
could have considered, and noted it did consider, the underlying conduct as part of
the nature and circumstances of the offense that would justify an upward variance
under § 3553(a).
Finally, Garnier argues the district court abused its discretion by failing to
consider Blacksmith’s own misconduct during the incident. “An abuse of discretion
occurs if a sentencing court fails to consider a relevant factor that should have
received significant weight, gives significant weight to an improper or irrelevant
factor, or considers only the appropriate factors but commits a clear error of
judgment in weighing those factors.” United States v. Miller, 34 F.4th 663, 665 (8th
Cir. 2022) (citation omitted). The district court found Garnier’s behavior was not in
any manner excused by Blacksmith’s own behavior, noting “there was absolutely no
reason, other than a very high level of intoxication, that you would have shot Mr.
Blacksmith.” The district court was not required to give greater weight to
Blacksmith’s conduct.
Accordingly, we affirm the judgment of the district court.
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