United States of America v. Isadore White Calf

United States Court of Appeals
For the Eighth Circuit
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No. 20-1321
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United States of America
Plaintiff - Appellee
v.
Isadore White Calf
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Rapid City
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Submitted: November 16, 2020
Filed: February 10, 2021
[Unpublished]
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Before SHEPHERD, STRAS, and KOBES, Circuit Judges.
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PER CURIAM.
Isadore White Calf sexually abused his daughter for over a decade. After
raping and impregnating her, he pleaded guilty to one count of aggravated sexual

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abuse in violation of 18 U.S.C. §§ 2241(a)(1), 2246(2)(A), and 1153.1 The district
court2 both varied and departed upward, sentencing him to 240 months in prison
followed by lifetime supervised release. White Calf argues this sentence is
substantively unreasonable. We affirm.
The presentence investigation report set White Calf’s total offense level at 31
and his criminal history category at I, resulting in a Guidelines range of 108 to 135
months in prison. At sentencing, the district court assessed a six-level upward
departure pursuant to U.S.S.G. § 5K2.21, resulting in a new Guidelines range of 210
to 262 months. The district court also varied upward after consideration of the
factors in 18 U.S.C. § 3553(a) and sentenced White Calf to 240 months
imprisonment to be followed by lifetime supervised release.
“A district court’s decision to depart upward from the advisory guideline
range is reviewed for abuse of discretion, and the extent of that departure is reviewed
for reasonableness.” United States v. Ruvalcava-Perez, 561 F.3d 883, 886 (8th Cir.
2009). “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 considers only the appropriate factors but in
weighing those factors commits a clear error of judgment.” United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (citation omitted) (cleaned up).
We conclude that the district court did not abuse its discretion in imposing an
upward departure. Section 5K2.21 allows for an upward departure to “reflect the
actual seriousness of the offense based on conduct . . . underlying a charge dismissed
as part of a plea agreement . . . .” See U.S.S.G. § 5K2.21. At sentencing, the district
1 In exchange for White Calf pleading guilty to the aggravated sexual abuse
charge, the Government dismissed an additional charge of aggravated sexual abuse
of a minor, which carries a 30-year mandatory minimum sentence.
2 The Honorable Jeffrey L. Viken, United States District Judge for the District
of South Dakota.

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court noted that an upward departure was warranted because White Calf had abused
his daughter for most of her life, fathered her child, and the sexual abuse was often
accompanied by violence. The court also evaluated the conduct of the dismissed
offense, explaining that the presentence report contained “quite a bit of information
about sexual abuse of other minors, all of them females,” which served as “a basis
to depart upward to reflect the actual seriousness of the offense.” Id. at 19.
The court noted that White Calf did not object to the presentence report and
the court had to consider the § 3553(a) factors, including “the seriousness of the
offense, the offense conduct that [White Calf] admitted, [and] . . . the need for
punishment,” finding those were “all very heavy factors here.” Id. at 21. While the
district court acknowledged White Calf’s competency evaluation and psychological
examinations, it determined that the higher sentence would send a message to the
community and protect the public from future criminal behavior. Finally, the court
found that in “balanc[ing] the [§ 3553(a)] factors,” there was “no doubt” in this case
that “the need for punishment is real.” Id. at 22.
The district court did not abuse its discretion in evaluating the seriousness of
the offense and assessing a six-level upward departure. Nor did the district court
abuse its discretion in consideration of the § 3553(a) factors. Considering the gravity
of White Calf’s sexual abuse of his daughter, the conduct in the underlying dismissed
charge, and the need for punishment, it was reasonable for the district court to
impose a sentence of 240 months. White Calf’s sentence is affirmed.
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