                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-3817
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the District of
                                         * Nebraska.
Terry L. Harlan,                         *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: May 11, 2004

                                   Filed: May 14, 2004
                                    ___________

Before WOLLMAN, HANSEN, and BYE, Circuit Judges.
                         ___________

BYE, Circuit Judge.

      A jury convicted Terry L. Harlan of assault with a dangerous weapon and
assault resulting in serious bodily injury, in violation of 18 U.S.C. § 1153 and §
113(a), respectively, for beating his girlfriend Delilah Freemont with a board in their
home on the Omaha Indian Reservation. Concluding the Sentencing Guidelines
understated Mr. Harlan's criminal history and inadequately considered the severity
of Ms. Freemont's physical and psychological injury, the district court1 departed

      1
       The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.
upward from Criminal History Category I to III. On appeal, Mr. Harlan argues the
evidence was insufficient to support the conviction and the district court erred in
imposing the upward departure. We affirm.

                                          I

    On October 5, 2002, Mr. Harlan and Ms. Freemont lived at Unit 26 on the
Omaha Indian Reservation in Macy, Nebraska.2 Both were enrolled members of the
Omaha Tribe.

      The couple spent part of the afternoon at home drinking beer and watching
college football with Ms. Freemont's siblings, Lizzie Avila and Myron Freemont.
Some time after 3:00 p.m., Ms. Avila and Mr. Freemont left to obtain more beer, and
they returned to Unit 26 between 7:00 and 8:00 p.m. to find Ms. Freemont
unconscious on the floor drenched in her own blood. Other than Mr. Harlan, no other
person was in the residence.

       At trial, Ms. Freemont testified she and Mr. Harlan started arguing after her
siblings departed and Mr. Harlan started beating her with a board when she attempted
to leave. She recalled the board repeatedly struck her head, face, knees, arms, and
back before she lost consciousness.

       When Ms. Freemont's siblings returned to Unit 26, they knocked on the door
and heard the television playing inside, but no one responded. After Mr. Freemont
looked through the kitchen window and threatened to kick in the door, Mr. Harlan
finally opened the door. Upon seeing Ms. Freemont lying unconscious in her own
blood on the livingroom floor, Mr. Freemont left to seek help at the tribal police


      2
        The couple had an infant daughter, but the record does not reflect whether the
child lived with her parents in Unit 26.

                                         -2-
department located one block away and Ms. Avila attended to Ms. Freemont. Mr.
Harlan then explained Ms. Freemont had gone next door and then returned home with
the injuries. He then changed his account, stating he woke up to find his cousins
beating Ms. Freemont.

       Meanwhile, Mr. Freemont returned with Omaha Tribal Police Officer Bertucci,
who had already called for an ambulance. Officer Bertucci observed Ms. Freemont's
blood loss and attenuated pulse and called for an ambulance a second time. After
escorting the ambulance to the hospital, Officer Bertucci returned to Unit 26 and there
discovered a board smeared with a red substance appearing to be blood. At the tribal
jail, Officer Bertucci observed specks of a like substance splattered on Mr. Harlan's
face. In the morning, Ms. Freemont provided Officer Bertucci with an oral and
written statement alleging Mr. Harlan had beaten her with a board.

       Ms. Freemont was life-flighted from the Winnebago Public Health Service
Hospital to the Mercy Medical Center, a level-two trauma center in Sioux City, Iowa.
Emergency room doctor Scott Murray observed Ms. Freemont suffered fractures to
her nasal bone, left orbital rim, and left ulnar bone. Dr. Murray described the latter
as a nightstick-type fracture, meaning the arm had been struck while Ms. Freemont
was in a defensive stance. Ms. Freemont's eyes were swollen shut, and she had more
than thirty-five centimeters of deep lacerations just on her scalp. Otolaryngologist
David Wagner observed a "degloving" injury consisting of parallel lacerations which
had lifted a swatch of scalp from Ms. Freemont's head. These scalp lacerations
required more than 120 staples to close. Both Dr. Murray and Dr. Wagner opined
Ms. Freemont's injuries caused extreme physical pain and presented a protracted and
obvious disfigurement. They also agreed the injuries were consistent with the use of
a board as the weapon.

      The instant offense is not the first time Mr. Harlan has run afoul of the law. In
1980, a federal court convicted him of voluntary manslaughter for killing a man with

                                         -3-
a knife. Starting in October 1997, Harlan accrued at least four tribal convictions, two
for disorderly conduct and at least two for assaults on Ms. Freemont.3

       The Presentence Report (PSR) assessed Criminal History Category I and a base
offense level of 15. Pursuant to United States Sentencing Guidelines (U.S.S.G.) §
2A2.2(b)(2)(B), the district court applied a four-level enhancement for use of a
dangerous weapon, and pursuant to U.S.S.G. § 2A2.2(b)(3)(E), the court assessed a
five-level enhancement for permanent bodily injury to the victim. Thus, the court
determined the applicable offense level was 24. Mr. Harlan neither objected to nor
now appeals these assessments.

       The government moved for an upward departure on the grounds the Guidelines
understated Mr. Harlan's criminal history and the offense culminated from a series of
brutal assaults Mr. Harlan had perpetrated upon Ms. Freemont. The court departed
upward to Category III, found the post-departure Guidelines range to be 63 to 78
months, and sentenced Mr. Harlan to 72 months of imprisonment.4 On appeal, Mr.
Harlan challenges the upward departure and argues the evidence was insufficient to
support his conviction.

                                           II

      In reviewing the sufficiency of the evidence, we view the evidence in the light
most favorable to verdict, resolving evidentiary conflicts in favor of the government,


      3
        Mr. Harlan's appellate brief states there were three tribal convictions for
assault against Ms. Freemont prior to the instant offense; the government's brief states
there were only two such convictions.
      4
      Without the departure, the applicable Guidelines range under Category I
would have been 51 to 63 months. Thus, Mr. Harlan's 72-month sentence exceeded
the maximum Category-I sentence by 9 months.

                                          -4-
and accepting all reasonable inferences drawn from the evidence that support the
jury's verdict. United States v. Espino, 317 F.3d 788, 792 (8th Cir. 2003). Put
simply, we affirm if a reasonable juror could have found the defendant guilty beyond
a reasonable doubt. See United States v. Harmon, 194 F.3d 890, 892 (8th Cir. 1999).

       Sufficient evidence supports the jury's verdict in this case. First, Ms. Freemont
identified Mr. Harlan as the assailant and gave detailed testimony of the assault. See
United States v. L.B.G., 131 F.3d 1276, 1278 (8th Cir. 1997) (stating the
uncorroborated testimony of a single witness may suffice to sustain a conviction).
Mr. Harlan argues Ms. Freemont was inebriated at the time of the assault and so may
have misidentified Mr. Harlan as the attacker. Because "it is the sole province of the
jury to weigh the credibility of a witness," United States v. Enriquez, 201 F.3d 1072,
1074 (8th Cir. 2000), we reject this argument. Ms. Freemont well knew Mr. Harlan,
and her testimony was consistent with both the medical evidence and the statement
she gave the day after the attack. These facts were sufficient to permit a reasonable
juror to rely on Ms. Freemont's identification and testimony.

      The circumstantial and physical evidence also supports the verdict. When Ms.
Avila and Mr. Freemont returned to Unit 26, as when they left, only two people were
within – the victim and the accused. Ms. Avila and Mr. Freemont knocked on the
door repeatedly and Mr. Freemont threatened to kick in the door before Mr. Harlan
responded. Mr. Harlan then gave Ms. Avila contradictory explanations for Ms.
Freemont's injuries, stating first Ms. Freemont had come home bleeding and then
explaining his cousins had attacked her while he slept. From such evidence, a juror
could reasonably infer guilt. The physical evidence confirmed the inference. Officer
Bertucci observed Mr. Harlan's face was speckled with a substance appearing to be
blood, and the officer found a board smeared with a like substance in the washroom
of Unit 26. In sum, the evidence in the record is more than sufficient to support the
conviction.



                                          -5-
                                            III

       Mr. Harlan next argues the district court erroneously relied on impermissible
factors in assessing the upward departure. Prior to the enactment of the Prosecutorial
Remedies and Other Tools to End the Exploitation of Children Today (PROTECT)
Act, Pub. L. No. 108-21, 117 Stat. 650 (2003), we would have reviewed the district
court's departure under a unitary abuse-of-discretion standard. Now, we review de
novo whether the district court based the departure on a permissible factor, and we
review for abuse of discretion the reasonableness of a permissible departure. United
States v. Flores, 336 F.3d 760, 763 (8th Cir. 2003).5

        The district court appears to have based the departure on four factors: (1) Mr.
Harlan's prior convictions in tribal court, (2) Mr. Harlan's voluntary manslaughter
conviction in federal court, (3) the severity of the physical injuries, and (4) the alleged
extreme psychological harm. Mr. Harlan challenges the permissibility of all but the
first of these factors.

       A sentencing court may depart upward on the basis of "prior sentence(s) not
used in computing the criminal history category (e.g., sentences for foreign and tribal
offenses)." U.S.S.G. § 4A1.3(a)(2)(A). In departing upward on such basis, "the court
shall determine the extent of a departure . . . by using, as a reference, the criminal
history category applicable to a defendant whose criminal history or likelihood to
recidivate most closely resembles that of the defendant's."               U.S.S.G. §
4A1.3(a)(4)(A). In other words, the sentencing court should be guided, at least in
part, by the criminal history category which would have applied had the uncounted
prior convictions been computed.



      5
       The sentencing court's findings of fact are reviewed for clear error. Flores,
336 F.3d at 763.

                                           -6-
        Had Mr. Harlan's tribal convictions been taken into account in his criminal
history score, his two assault convictions would have added at least one point each
to the score, depending on the length of the corresponding sentences.6 See U.S.S.G.
§ 4A1.1. Similarly, his manslaughter conviction would have added three points to his
score because the conviction resulted in a prison sentence exceeding one year and one
month. Id. In all, the prior convictions would have added at least five points to Mr.
Harlan's criminal history score, and these points would have required a sentence
under Category III. See U.S.S.G. § 5A, Sentencing Table (mandating a Category III
sentence for defendants with 4, 5, or 6 criminal history points). In applying Category
III in this case, therefore, the district court appears to have used as a reference the
category applicable to a defendant whose criminal history or likelihood to recidivate
most closely resembled Mr. Harlan's.

       Mr. Harlan argues the district court improperly took into account his federal
manslaughter conviction. A prior conviction serves as the basis for an upward
departure if the defendant was convicted of the past offense, or was still serving time
for the past offense, within the fifteen-year period immediately preceding the instant
offense. See U.S.S.G. § 4A1.2(e)(1). Because he was released from prison for the
manslaughter conviction approximately fifteen years and one month before his assault
upon Ms. Freemont, he argues the conviction constitutes an impermissible factor.

      The Sentencing Guidelines, however, contain an exception to the applicable
period:

      If the court finds that a sentence imposed outside [the fifteen-year]
      period is evidence of similar, or serious dissimilar, criminal conduct, the
      court may consider this information in determining whether an upward
      departure is warranted under § 4A1.3 (Adequacy of Criminal History
      Category).

      6
          U.S.S.G. § 4A1.2(c) would have excluded the disorderly-conduct convictions.

                                          -7-
U.S.S.G. § 4A1.2, cmt. n.8. Mr. Harlan's manslaughter conviction evidences
criminal conduct similar to aggravated assault. Moreover, manslaughter constitutes
serious criminal conduct and so again falls under the exception to § 4A1.2. As the
district court explained:

      The fact [Mr. Harlan] has a prior manslaughter conviction that is a
      month out, I think, needs to be taken into account, although I don't agree
      with the government that the full weight of the conviction needs to be
      taken into account because it has been so long since the manslaughter
      conviction. . . .

Sentencing Transcript at 177-79. In our view, the district court properly decided to
apply the exception and consider the manslaughter conviction. Lest the exception
consume the rule, we think the decision to apply the exception requires balancing the
severity of the past conviction with length of the temporal extension. Here, the court
dealt with a homicide which fell outside the fifteen-year period by merely a month.
While surely the exception is not without limit,7 we conclude the manslaughter
conviction, as well as the tribal convictions, was a permissible basis for the departure.

       Finally, Mr. Harlan contends Ms. Freemont's physical and psychological
injuries were impermissible factors. He points out the five-level enhancement already
took these factors into account and so the court engaged in impermissible double
counting. Because his criminal record represents an independently adequate basis for
the departure, however, we need not reach the other factors the district court may
have considered. See United States v. Long Turkey, 342 F.3d 856, 859 n.2 (8th Cir.
2003).



      7
      As an obvious example, we doubt a sentencing court could properly rely on
a minor similar offense occurring many years outside the applicable period in
imposing an upward departure.
                                    -8-
       We now review for abuse of discretion the reasonableness of the upward
departure based on Mr. Harlan's prior convictions. As explained, the district court
would have sentenced him under Criminal History Category III, had the Guidelines
accounted for his prior convictions, and by departing upward to Category III, the
district court imposed a sentence only 9 months longer than that authorized without
any departure under Category I. Under these circumstances, the district court acted
well within its sound discretion when it decided to impose the departure.

                                        IV

      For the reasons we have discussed above, we affirm both the judgment of
conviction and the upward departure.
                      ______________________________




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