                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 19-1210
                         ___________________________

                              United States of America

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

             Darwin Wade Red Cloud, also known as Darwin Raisch

                        lllllllllllllllllllllDefendant - Appellee
                                       ____________

                    Appeal from United States District Court
                  for the District of South Dakota - Rapid City
                                   ____________

                           Submitted: February 13, 2020
                              Filed: July 23, 2020
                                 ____________

Before LOKEN, BENTON, and KELLY, Circuit Judges.
                           ____________

KELLY, Circuit Judge.

      Darwin Red Cloud pleaded guilty to second-degree murder in violation of
18 U.S.C. §§ 1111(a) and 1153. The district court1 imposed a sentence of 48 months


      1
       The Honorable Jeffrey L. Viken, then Chief Judge, United States District
Court for the District of South Dakota.
of incarceration, followed by five years of supervised release. The government
appeals the sentence imposed as substantively unreasonable.

       Red Cloud’s son, D.K.E., was born on August 20, 2014. At the time, Red
Cloud was 20 years old, and D.K.E.’s mother, J.K.E., was 15. The two had sole
custody of their son. On October 11, 2014, J.K.E. went to check on the infant in his
crib and found he was not breathing. Later that day, D.K.E. was pronounced dead at
the Pine Ridge Indian Health Services Hospital. The autopsy reported the cause of
death as “gross changes compatible with emaciation/dehydration.”

      Red Cloud pleaded guilty to a superseding indictment alleging one count of
second-degree murder. Taking into account Red Cloud’s lack of a criminal history
and his acceptance of responsibility, the presentence investigation report calculated
a total offense level of 37, and a Guidelines range of 210 to 262 months’
incarceration. Neither party objected to this range.

       We review the substantive reasonableness of a sentence for an abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). In so doing, we “take into
account the totality of the circumstances, including the extent of any variance from
the Guidelines range” and when the sentence varies from the Guidelines range, we
“give due deference to the district court’s decision that the [18 U.S.C.] § 3553(a)
factors, on a whole, justify the extent of the variance.” Id. We may not reverse
simply because we “might reasonably have concluded that a different sentence was
appropriate.” Id. It is “the unusual case where we reverse a district court
sentence—whether within, above, or below the applicable Sentencing Guidelines
range—as substantively unreasonable.” United States v. Feemster, 572 F.3d 455, 464
(8th Cir. 2009) (en banc) (cleaned up).

      A district court abuses its discretion and imposes a substantively unreasonable
sentence when it “(1) fails to consider a relevant factor that should have received

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significant weight; (2) gives significant weight to an improper or irrelevant factor; or
(3) considers only the appropriate factors but in weighing those factors commits a
clear error of judgment.” Id. at 461 (cleaned up).

       The district court properly considered the § 3553(a) factors. An expert’s
forensic interview of Red Cloud indicated he has significant cognitive impairments
that affected his ability to properly care for a newborn child. The district court relied
on this and concluded that Red Cloud’s “personal history and characteristics
and . . . limitations can’t be overlooked, they are sentencing factors and they are
mitigating.” See 18 U.S.C. § 3553(a)(1).

       The district court considered “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of
similar conduct.” See id. § 3553(a)(6). The court stated that it saw Red Cloud’s case
as “different from other cases involving the death of children” because, for example,
“[m]ost of those cases involve violence” or “had real aggravating factors involved.”
As the district court saw it, the facts of this case were “much more aligned with the
reckless disregard for the safety and life of others.” Section 3553(a)(6) requires that
the sentence disparities not be “unwarranted,” and the district court clearly explained
why any possible disparity here was warranted. The court also noted the need for the
sentence to provide “adequate deterrence to criminal conduct.” See id.
§ 3553(a)(2)(B). However, it concluded this factor did not weigh in favor of a
lengthier sentence because, on these facts, the need for additional deterrence, both to
Red Cloud and to society at large, was not “significant.”

      In addition to considering the goals of deterrence and responsibility, avoiding
unwarranted disparities, and imposing just punishment, the district court told Red
Cloud that it was fashioning a sentence that would “pay attention to the other
behaviors and get you the resources you need. So rehabilitation and treatment are
necessary as well.” See id. § 3553(a)(2)(D) (directing the district court to consider

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the need for the sentence imposed to “provide the defendant with needed educational
or vocational training, medical care, or other correctional treatment in the most
effective manner”). At sentencing, Red Cloud was 26 years old. The district court
noted he had “a life ahead” of him, and needed “support and help” going
forward—not solely punishment for his role in the death of D.K.E. The court also
noted Red Cloud had a history with substance abuse, and imposed the five-year term
of supervised release in part so Red Cloud could receive the resources to address his
chemical dependency issues.

       The district court did not abuse its discretion by imposing a below-Guidelines
sentence. A variance of this magnitude from the Guidelines requires “serious
consideration” from the district court. Gall, 552 U.S. at 46. “The sentencing judge
should set forth enough to satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356 (2007). When,
as here, “the judge imposes a sentence outside the Guidelines, the judge will explain
why he has done so.” Id. at 367. It is evident the district court gave this matter the
serious consideration it required. The court found the sentencing range “too severe”
for the facts of this case because “there are more mitigating factors than aggravating
[ones]” and the Guidelines did not adequately reflect this. The court expressly
weighed the § 3553(a) factors and sought to balance the seriousness of the offense
with Red Cloud’s specific “personal history and characteristics and . . . limitations.”
That balancing is within the sound discretion of the district court.

      The judgment of the district court is affirmed.
                     ______________________________




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