United States of America v. George Dull Knife

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-2884
___________________________
United States of America
Plaintiff - Appellee
v.
George Dull Knife
Defendant - Appellant
____________
Appeal from United States District Court
for the District of South Dakota - Western
____________
Submitted: January 8, 2024
Filed: February 26, 2024
[Unpublished]
____________
Before BENTON, ERICKSON, and KOBES, Circuit Judges.
____________
PER CURIAM.
Following an argument at his house, George Dull Knife got in his truck,
chased a woman and her son down, and fired several shots at their car, hitting her in
the hand. He pleaded guilty to assault with a dangerous weapon, 18 U.S.C.
§§ 113(a)(3), 1153. In the plea agreement, the Government agreed to dismiss one
count of assault with intent to commit murder, id. §§ 113(a)(1), 1153, and one count

-- 1 of 3 --

-2-
of discharging a firearm during and in relation to a crime of violence, id.
§ 924(c)(1)(A)(iii). The district court1 departed up or, alternatively, varied up from
a Guidelines range of 36 to 47 months in prison and sentenced him to 72 months.
Dull Knife argues that the district court abused its discretion by relying on the
conduct underlying his dismissed charges. See United States v. Shillingstad, 632
F.3d 1031, 1037 (8th Cir. 2011) (reviewing upward departure for abuse of
discretion); United States v. Ridings, 75 F.4th 902, 907 (8th Cir. 2023) (same for
upward variance). But a court may depart up under U.S.S.G. § 5K2.21 “to reflect
the actual seriousness of the offense based on conduct (1) underlying a charge
dismissed as part of a plea agreement . . . (2) that did not enter into the determination
of the applicable guideline range.” It may also consider that conduct in varying from
the Guidelines under the 18 U.S.C. § 3553(a) factors. Cf. United States v. Ruelas-
Carbajal, 933 F.3d 928, 930 (8th Cir. 2019) (sentencing court can even rely on
acquitted conduct in crafting a sentence, “so long as that conduct has been proved
by a preponderance of evidence” (quoting United States v. Watts, 519 U.S. 148, 157
(1997) (per curiam))). The Government need only “prove 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).
The Presentence Report’s unobjected-to description of Dull Knife’s conduct
“adequately supported a finding that the dismissed charges were properly proved,”
so the court could rely on them. See United States v. Schiradelly, 617 F.3d 979, 984
(8th Cir. 2010) (per curiam). Whether the sentence was a departure or a variance,
the court did not abuse its discretion.
Dull Knife also claims that the district court departed or varied up too much
because it gave too much weight to the dismissed-charge conduct and too little to
his mitigating circumstances. We review the reasonableness of an upward departure
1 The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota.

-- 2 of 3 --

-3-
and an upward variance for abuse of discretion. United States v. Cooke, 853 F.3d
464, 472 (8th Cir. 2017). A district court “abuses its discretion when it fails to
consider a relevant factor that should have received significant weight, gives
significant weight to an improper or irrelevant factor, or commits a clear error of
judgment in weighing the appropriate factors.” Id.
In mitigation, Dull Knife told the district court that a “manipulative person”
“influenced” his behavior by lying to him about the victim and her son. The court
listened to his explanation and recognized that what he did was out of character. It
also noted that Dull Knife was young, had strong family and community ties, and
was unlikely to commit another crime. But the court concluded that he deserved an
above-Guidelines sentence because he had committed an “unjustified and
inexplicable act of violence” with “terrible consequence[s]” for the victim. The
court carefully considered the seriousness of his offense, among other things, and
arrived at a reasonable sentence. See United States v. Wisecarver, 911 F.3d 554,
558 (8th Cir. 2018) (“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.” (citation omitted)).
We affirm the district court’s judgment.
______________________________

-- 3 of 3 --