                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   __________

                                   No. 11-3206
                                   __________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota.
Boyd William White Twin,                *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: May 18, 2012
                                Filed: June 27, 2012
                                 ___________

Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
                           ___________

BENTON, Circuit Judge.

       Boyd William White Twin pled guilty to assault with a dangerous weapon, in
violation of 18 U.S.C. § 113(a)(3). See also 18 U.S.C. § 1153 (establishing
jurisdiction over offenses committed by Indians within Indian country). The district
court1 sentenced him to 84 months’ imprisonment, followed by three years’
supervised release. On appeal, White Twin challenges his sentence arguing that the
district court improperly granted departures that were already adequately taken into
consideration by the Guidelines and were not supported by the record. White Twin

      1
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
also objects to the six months added to his sentence for smiling at sentencing. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.

      This court reviews an upward departure, if objected-to, for abuse of discretion.
Gall v. United States, 552 U.S. 38, 51 (2007) (“Regardless of whether the sentence
imposed is inside or outside the Guidelines range, the appellate court must review the
sentence under an abuse-of-discretion standard.”); United States v. Vasquez, 552 F.3d
734, 738 (8th Cir. 2009). The district court granted departures under four separate
Guidelines: U.S.S.G. § 4A1.3—criminal history inadequacy; § 5K2.3—extreme
psychological injury; § 5K2.8—extreme conduct; and, § 5K2.21—dismissed and
uncharged conduct.

       Under § 4A1.3, a district court may depart upward “[i]f reliable information
indicates that the defendant’s criminal history category substantially under-represents
the seriousness of the defendant’s criminal history or the likelihood that the defendant
will commit other crimes.” The district court may look to prior sentences that were
not used in calculating the criminal history category, including sentences for tribal
offenses. United States v. King, 627 F.3d 321, 323 (8th Cir. 2010), quoting U.S.S.G.
§ 4A1.3(a)(2)(A). In this case, the presentence report (PSR) listed White Twin’s
extensive criminal history in the tribal courts. While he did not dispute the PSR’s
details, White Twin objects to the district court’s sua sponte application of the
enhancement. He claims that the Government—which made a plea agreement to
recommend a Guideline sentence—retains the burden of persuasion on sentencing
departures. District courts, however, may use their discretion to impose an
enhancement sua sponte. See United States v. Milton, 153 F.3d 891, 897 (8th Cir.
1998). The district court did not abuse its discretion in departing from the Guidelines
under § 4A1.3.

      Under § 5K2.3, a district court may depart upward if a victim suffers
“psychological injury much more serious than that normally resulting from

                                          -2-
commission of the offense.” Such psychological injury occurs “only when there is
a substantial impairment of the intellectual, psychological, emotional, or behavioral
functioning of a victim, when the impairment is likely to be of an extended or
continuous duration, and when the impairment manifests itself by physical or
psychological symptoms by changes in behavior patterns.” U.S.S.G. § 5K2.3.
District courts must examine the nature of the defendant’s conduct to determine the
likely scope of harm. Id.

       White Twin, again, did not object to the PSR’s findings, or to the testimony at
sentencing. He argues that because the factual basis for his § 5K2.3 enhancement is
in the PSR and the testimony of one victim, it is not sufficiently based on factual
findings supported by the record. See United States v. Fawbush, 946 F.2d 584, 586
(8th Cir. 1991) (finding that any departure from the Guidelines “must be based on
factual findings supported by the record”).

       To support his argument, White Twin cites United States v. Cammisano, 917
F.2d 1057 (8th Cir. 1990), holding that the PSR’s facts were not sufficiently
corroborated to support an upward departure. That case, however, is different from
White Twin’s. Cammisano objected to the PSR’s allegations. Cammisano, 917 F.2d
at 1060. Also, the PSR there recommended an upward departure based on the
allegation that Cammisano was involved with La Cosa Nostra, without recounting
specific acts. Id. While the Government attempted to buttress this recommendation
with testimony of crimes inherent to La Cosa Nostra, it offered no evidence that
Cammisano had committed specific Mafia-related crimes. Id. at 1062. In White
Twin’s case, unobjected-to allegations are corroborated by specific testimony.

      The PSR’s findings, by themselves, may provide enough factual support for a
departure. If a defendant does not object to the factual allegations in a PSR, they may
be accepted as true for purposes of sentencing. United States v. Paz, 411 F.3d 906,
909 (8th Cir. 2005) (“Facts presented in a PSR are deemed admitted unless the

                                          -3-
defendant objects to those facts.”); United States v. Yahnke, 395 F.3d 823, 825 n.2
(8th Cir. 2005) (“[The defendant] admit[ted] the violations occurred, both by not
objecting to the [PSR] and in his brief to this court.”); United States v. Bougie, 279
F.3d 648, 650 (8th Cir. 2002) (“In instances when a defendant has not objected to
‘specific factual allegations contained in the PSR, a district court may accept the facts
as true for purposes of sentencing,’” quoting United States v. Young, 272 F.3d 1052,
1055 (8th Cir. 2001)). Here, the PSR details the crime in question, relating how
White Twin assaulted his companion at home, in front of their children (all of whom
were under nine). The PSR explains that White Twin’s violent acts caused his
children to try to intervene on behalf of their mother, but they were assaulted
themselves. The PSR relates how he violently and repeatedly threatened his
companion, telling her to choose which child he should kill first—an exchange the
children likely heard. The PSR describes how this event caused the children extreme
psychological difficulties requiring counseling. These specific findings sufficiently
support an upward departure, and are also corroborated by testimony. The district
court did not abuse its discretion in departing from the Guidelines under § 5K2.3.

      Under § 5K2.8, a district court may depart “[i]f the defendant’s conduct was
unusually heinous, cruel, brutal, or degrading to the victim.” Examples of such
extreme conduct include “torture of a victim, gratuitous infliction of injury, or
prolonging of pain or humiliation.” Id.

      White Twin disputes this departure, claiming his acts were no more extreme
than those contemplated by the Guidelines. The Guidelines already impose an
“aggravated assault” base-offense level, a four-level enhancement for the use of a
weapon, a three-level enhancement for bodily injury, and a two-level enhancement
because White Twin’s 8-year-old and 7-year-old were vulnerable victims. White
Twin claims that the base-offense level and these enhancements fully capture the
nature of his offense. However, “if a factor included in the applicable [G]uidelines
and adjustments is present to a degree substantially in excess of that which is

                                           -4-
ordinarily involved in the offense, an upward departure will be upheld.” United
States v. Clark, 45 F.3d 1247, 1252 (8th Cir. 1995); U.S.S.G. § 5K2.0. There can be
no doubt that White Twin’s extreme and inhumane conduct both physically and
psychologically harmed his victims. At sentencing, the district court found “that
[White Twin’s] conduct was unusually heinous, cruel, brutal and degrading to the
victim and to the little children,” explaining that

      this isn't a situation where [ ] one gang [is] fighting another one in the
      street or something. Nor is it a situation when two males are fighting and
      one goes overboard, uses a knife or something. This is his family, his
      children. And I -- I think, as I said, that this is outrageous. Physically
      grabbing the one child by the throat and throwing him on the couch, that
      is outrageous. That the mother --that the children are trying to protect
      their mother and this Defendant continues to beat her up and then brings
      out the knife and threatens them -- threatens all of these people. They
      were lucky to escape.

The district court did not abuse its discretion in finding that White Twin’s conduct
was sufficiently extreme to warrant a § 5K2.8 departure.

       Under § 5K2.21, a district court may impose an upward departure for dismissed
or uncharged conduct, in order to “reflect the actual seriousness of the offense,” based
on conduct underlying a charge dismissed as part of a plea agreement which did not
otherwise enter into the determination of the Guideline range. White Twin argues
that his dismissed offenses should not have been considered because the Guidelines
exceed their congressional mandate by allowing the consideration of uncharged and
dismissed offenses, and because such a departure promotes disrespect for the law.
In sum, he argues that a “sentence imposed by the court should not be unreasonably
high under all the circumstances of the case and should not differ substantially from
the sentence given to another similarly situated defendant convicted of a similar
offense.”



                                          -5-
      White Twin’s argument ignores settled law. “A sentencing court may rely
upon dismissed charges in fashioning a reasonable sentence.” United States v. Azure,
536 F.3d 922, 932-33 (8th Cir. 2008) (citations omitted). “A dismissed charge may
even be relied upon if it was dismissed as part of a plea agreement in the case.” Id.

      White Twin’s argument—that a defendant’s sentence “not be unreasonably
high under all of the circumstances” nor “differ substantially from the sentence given
to another similarly situated defendant convicted of a similar offense”—actually
supports the 5K2.21 departure in this case. The district court considered the
dismissed offenses to determine the specific circumstances and situation of the
defendant and the offense. The base-offense level and its enhancements did not
encompass the seriousness of the context of the offenses here. The district court did
not abuse its discretion in departing under § 5K2.21.

       Finally, at sentencing, the district court initially imposed a sentence of 78
months. After he pronounced that sentence, the district court noted that White Twin
was “smiling.” The court then imposed an additional six months, stating that the 84
months’ sentence is based upon §§ 5K2.21, 5K2.3, 5K2.8, the “[p]sychological
injury, unusual cruelty, torture, and other reasons listed by the probation officer in the
presentence report,” and White Twin’s dismissed charges.

       White Twin claims that the district court abused its discretion by considering
an improper factor–his smile. This court reviews the substantive reasonableness of
a sentence for abuse of discretion. United States v. Feemster, 572 F.3d 455, 461 (8th
Cir. 2009) (en banc). A district court abuses its discretion when it “gives significant
weight to an improper or irrelevant factor” in sentencing. United States v. Williams,
624 F.3d 889, 896-97 (8th Cir. 2010).




                                           -6-
       The district court did not abuse its discretion by increasing White Twin’s
sentence by six months after he smiled.2 The court was uniquely situated to observe
his demeanor, and personally charged with reviewing the § 3553(a) factors. District
courts have wide discretion in determining a fair and just sentence. See United States
v. Gant, 663 F.3d 1023, 1029-30 (8th Cir. 2011). A district court may consider a
defendant’s attitude and demeanor when exercising its sentencing discretion. See
United States v. Robinson, 662 F.3d 1028, 1033 (8th Cir. 2011). Congress has
provided that “[n]o limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted of an offense which a court
of the United States may receive and consider for the purpose of imposing an
appropriate sentence.” 18 U.S.C. § 3661. The district court based its increase in the
sentence not solely on the smile, but a combination of it and other factors. The
district court did not abuse its discretion in considering White Twin’s smile.

      The judgment of the district court is affirmed.
                     ______________________________




      2
        The Government claims that review should be for plain error. The
Government ignores that White Twin, himself, immediately responded, “I am not
smiling,” after the judge said, “You think that’s humorous, sir? Let the record show
that the Defendant is smiling.” This sufficiently alerted the court to the objection, as
demonstrated by the court’s explanation of the sentence given. See United States v.
Stacey, 531 F.3d 565, 567-68 (8th Cir. 2008) (“[P]reserving an issue is a matter of
making a timely objection to the trial court and clearly stating the grounds for the
objection, so that the trial court has an opportunity to prevent or correct the error in
the first instance.”) (citations omitted).
                                          -7-
