                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-2057
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                    Justin Birdhorse

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

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

                           Submitted: November 15, 2012
                             Filed: December 12, 2012
                                  ____________

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

MURPHY, Circuit Judge.

       Justin Birdhorse pled guilty to raping S.T. in violation of 18 U.S.C. § 2242(2).
His plea agreement stated that the government would recommend a reduction in his
offense level if he accepted responsibility for his crime during his presentence
interview. The agreement also contained a provision waiving his right to appeal any
non jurisdictional issue so long as his sentence was within the guideline range.
Birdhorse made statements to the probation officer which caused the government to
argue at sentencing that he had not accepted responsibility and should therefore not
receive the reduction to his guideline level. The district court1 agreed and sentenced
Birdhorse to 276 months after applying a vulnerable victim enhancement and a use
of force adjustment without any reduction for acceptance of responsibility. Birdhorse
appeals, and we affirm.

       Birdhorse and S.T. are from Wakpala, South Dakota which is located within
the Standing Rock Sioux Indian Reservation. S.T. lived there with her mother and
her mother’s boyfriend, whose son Birdhorse lived next door. Birdhorse frequently
visited S.T.’s residence to see his father and to do laundry. After S.T. went to sleep
in her bedroom around 1 a.m. on August 12, 2011, Birdhorse entered her house in an
intoxicated state. He saw S.T. was asleep, then removed her pants and underwear,
and began raping her. S.T. awoke and yelled “Get off me” and “No.” She tried to
push Birdhorse off and was able to escape to the bathroom. Birdhorse then left the
house, and S.T. ran to a community center and called the police. A hospital
examination revealed hickies on her neck, bruises on her forearms and right knee, and
Birdhorse’s DNA inside her vagina.

      Birdhorse was indicted on two counts. Count I charged him with violating 18
U.S.C. § 2242(2) by knowingly engaging in a sexual act with a person who is
incapable of appraising the nature of the conduct or was physically incapable of
declining participation. Count II charged him with violating 18 U.S.C. § 2241(a) by
knowingly causing a person to engage in a sexual act by use of force or threat.

      Birdhorse initially denied that he had raped S.T.. Once confronted with all the
evidence against him, however, he agreed to plead guilty to Count I. The government
agreed in return to dismiss Count II. Birdhorse then admitted in a signed statement


      1
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.

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of facts that he had entered S.T.’s room, removed her clothing as she slept, and raped
her.

       In a written plea agreement the government agreed to recommend a two level
reduction for acceptance of responsibility, “provided no evidence is disclosed in the
presentence report which indicates [Birdhorse] has not demonstrated a recognition
and affirmative acceptance of personal responsibility for his criminal conduct.” The
plea agreement also required Birdhorse to 1) testify truthfully during his change of
plea hearing; 2) participate truthfully with the probation officer in the presentence
investigation; 3) and exhibit conduct consistent with acceptance of responsibility.
In the written agreement Birdhorse also waived his right to appeal any non
jurisdictional issues unless the court were to depart or vary from his guideline range.

      At the change of plea hearing, Birdhorse affirmed the statement of facts that
he had previously signed. The district court explained the plea agreement permitted
him to appeal an upward departure or variance, both of which would allow for a
sentence longer than that provided by the advisory sentencing guideline range. The
court went on to inform Birdhorse that “the danger to you in that regard is that I will
be deciding what the facts are. And based upon what I find the facts to be, I will
decide what your advisory guideline range is.” Birdhorse said he understood.

       When interviewed by the probation officer compiling his presentence report
(PSR), Birdhorse altered his account of the rape. Birdhorse now said he had been
planning to leave S.T.'s house, but she told him "to stay,” wanted to have sex with
him, pulled him into her bedroom, and removed his clothes. He claimed he tried to
get off S.T. but “she held onto him" and began screaming at him when he tried to
leave. Birdhorse also “believed S.T. had been drinking alcohol, although he did not
observe her drinking.” When the probation officer asked why he had previously
admitted to having had sexual intercourse with S.T. while she was asleep, he said that
he had not wanted "to go to trial and risk being convicted of both Counts.”

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       The PSR recommended a total offense level of 36 for Birdhorse, including a
four level upward adjustment for the use of force and a two level vulnerable victim
enhancement because S.T. had been asleep at the time of the sex act. Based on
Birdhorse’s interview, the probation officer recommended no reduction for
acceptance of responsibility. Birdhorse raised objections to the use of force
adjustment, the vulnerable victim enhancement, and the recommendation against an
acceptance of responsibility reduction.

       At the sentencing hearing the government argued, on the basis of Birdhorse's
statements to the probation officer, against a reduction for acceptance of
responsibility. Birdhorse responded that the court should apply the reduction because
his plea and admissions had established his acceptance of responsibility. The district
court adopted all of the recommendations in the PSR and calculated a guideline range
of 235 to 293 months. Its calculation included adjustments for the use of force and
a vulnerable victim. The district court declined to grant an acceptance of
responsibility reduction because Birdhorse’s statements to the probation officer were
“completely contrary to what he told investigators earlier and what he admitted to me
under oath when he pled guilty.” Birdhorse was then sentenced to 276 months.

       Birdhorse appeals his sentence, contending that the government violated the
plea agreement by opposing an acceptance of responsibility reduction to the offense
level. Since Birdhorse never objected in the district court that the government had
breached its plea agreement, our review is for plain error. United States v. Martin,
583 F.3d 1068, 1074 (8th Cir. 2009). An error is plain when it has not been
affirmatively waived by the defendant, or the error is "clear or obvious," "affect's the
defendant's substantive rights," and the failure to remedy would "undermine the
fairness, integrity, or public reputation of judicial proceedings." Id.

      The plea agreement stated that the government would recommend a two level
reduction for acceptance of responsibility “provided no evidence is disclosed in the

                                          -4-
presentence report which indicates [Birdhorse] has not demonstrated a recognition
and affirmative acceptance of personal responsibility for his criminal conduct.” At
sentencing the government did not recommend the two level reduction because the
PSR indicated that Birdhorse had changed his version of the facts at his presentence
interview with the probation officer. Birdhorse contends to the contrary that he had
fully complied with the plea agreement because “at no time” after entering into it did
he “deny that he was guilty.” He states that did not deny responsibility for the crime
at the presentence interview, but rather truthfully reflected his heavily intoxicated
memory of the rape.

       We see no plain error. The government’s promised recommendation of a
sentence reduction was contingent on Birdhorse demonstrating that he had accepted
responsibility for his crime. Birdhorse undermined such a finding by claiming during
his presentence interview that S.T. had been the aggressor and had screamed when
he tried to leave. After reasonably concluding that Birdhorse had not accepted
responsibility, the government did not breach its agreement by not seeking the two
level reduction for acceptance. The district court found that Birdhorse’s conduct was
“not close to acceptance of responsibility” and adopted the PSR's recommendation
not to apply the reduction. On this record, Birdhorse has not shown that the district
court plainly erred by not finding that the government had breached the plea
agreement.

      Birdhorse additionally argues that the district court erred in calculating his
sentence. He contends that the district court erred by adding an adjustment for the
use of force and a vulnerable victim enhancement. The government notes that
Birdhouse waived his right to appeal such issues in his plea agreement, preserving
only his right to appeal a sentence above the guideline range. Since the district court
did not sentence Birdhorse above the guideline range, he has waived his right to
appeal such sentencing issues. A waiver is enforceable if the issue “falls within the
scope of the waiver,” was entered “knowingly and voluntarily,” and enforcement of

                                         -5-
the waiver will not cause a “miscarriage of justice.” United States v. Andis, 333 F.3d
886, 890 (8th Cir. 2003) (en banc).

       Birdhorse made his plea agreement knowingly and voluntarily. The district
court questioned Birdhorse at the change of plea hearing and specifically explained
that under the parties' agreement he would be unable to appeal its determination of
the guideline range. See id., at 890–91. We conclude that Birdhorse's waiver was
valid and now prevents him from contesting the sentence or district court’s
calculation of the guideline range.

      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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