                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-1231
                                   ___________

United States of America,            *
                                     *
           Appellee,                 * Appeal from the United States
                                     * District Court for the District of
     v.                              * South Dakota.
                                     *
Tamara Azure a/k/a Tamara Wind,      *
                                     *
           Appellant.                *
                                ___________

                             Submitted: November 14, 2007
                                Filed: August 6, 2008
                                 ___________

Before MELLOY, BEAM, and SHEPHERD, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

      Tamara Wind1 pled guilty to two counts of assault with a dangerous weapon.
The district court sentenced Wind to a total term of 180 months’ imprisonment—96
months on one count and 84 months on the other, with the terms to be served
consecutively. On appeal, Wind alleges the district court erred in imposing its
sentence. For the reasons stated below, we reverse the judgment of the district court
and remand for resentencing.



      1
        The defendant indicated she preferred to be referred to as “Tamara Wind”
during the proceedings below, and we will respect her preference.
I.    Background

      A.     The Charges

       In February 2005, a grand jury returned an indictment alleging Wind assaulted
Rick Pickner (Count I) and Russell Obago2 (Count II) with a dangerous weapon with
intent to do bodily harm, in violation of 18 U.S.C. §§ 1153 and 113(a)(3). Events of
October 23, 2001, gave rise to these charges. In October 2001, Pickner and Wind
were living together and were romantically involved. Obago is Wind’s nephew. On
October 23, 2001, Obago agreed to give Wind a ride to obtain keys from Pickner.
Once Wind found Pickner and attempted to recover the keys, a fight erupted. Pickner
pushed Wind down and struck her with the key chain. Obago attempted to intervene
between Wind and Pickner. During the melee, Wind grabbed a barbeque fork and
attempted to strike Pickner. Wind’s blow scratched Pickner, but struck Obago; the
fork stuck in Obago’s head, causing injuries that required four stitches.

       A grand jury returned a superseding indictment in July 2005, adding a charge
of murder, a violation of 18 U.S.C. §§ 1153 and 1111, to the two counts included in
the original indictment. Count III charged Wind with killing Pickner on June 5, 2004,
by stabbing him in the chest with a knife. The events giving rise to this charge are
hotly contested by the parties.

      B.     The Plea

      The parties reached a plea agreement resolving the charges included in the
superseding indictment. Wind agreed to plead guilty to Counts I and II, and the
government agreed to dismiss Count III at sentencing. The plea agreement advised

      2
       The indictment identifies the victim as “Russell Obago.” Other places in the
record he is referred to as “Russell Obego.” We will use the spelling from the
charging document throughout this opinion.

                                         -2-
Wind she faced a maximum potential term of imprisonment of ten years for each
count of assault and noted she could be sentenced to consecutive terms of
imprisonment. The agreement did not limit the parties’ ability to make sentencing
recommendations to the court. The plea agreement included an appeal waiver, which
stated:

       WAIVER OF DEFENSES AND APPEAL RIGHTS: Defendant hereby
       waives any right to appeal any and all motions, defenses, probable cause
       determinations, and objections which she has asserted or could assert to
       this prosecution, and to the Court’s entry of judgment against her and
       imposition of sentence, including sentence appeals under 18 U.S.C. §
       3742. The parties agree that expressly excluded from this waiver of
       defenses and appeal rights is the defendant’s right to appeal the sentence
       for a determination of “reasonableness” should the Court impose a
       sentence above the advisory guideline range established by the Court for
       the offense.

The agreement incorporated by reference a statement providing a factual basis for
Wind’s pleas to Counts I and II. There was no mention of the facts underlying Count
III or the role the dismissed charge could play in Wind’s sentencing.

      Wind appeared before the district court to enter her guilty pleas. At the plea
hearing, the district court advised Wind of the maximum potential penalties she faced.
The court specifically noted that each count carries a maximum potential term of
imprisonment of ten years and that the sentences may be imposed consecutively.
Wind stated she understood she could be sentenced to twenty years.

      C.     Sentencing

      In anticipation of sentencing, the United States Probation Office prepared a
Presentence Investigation Report (PSR). The PSR outlined conduct relevant to the
offenses to which Wind pled guilty, listed behavior that did not qualify as relevant

                                          -3-
conduct—including a description of events related to dismissed Count III, cataloged
Wind’s criminal history, provided background information about Wind and her
family, and applied the United States Sentencing Guidelines to Wind’s offenses. The
PSR listed Wind’s total offense level as 21 and her criminal history category as I,
resulting in an advisory Guidelines range of 37 to 46 months. The PSR listed two
potential grounds for departure from that advisory Guidelines range: a § 5K2.10
downward departure due to the victim’s conduct in provoking the offense behavior
and a § 5K2.21 upward departure based upon the conduct underlying dismissed Count
III.

       Wind filed numerous objections to the PSR. Wind specifically challenged the
PSR’s descriptions and conclusions related to Pickner’s death on June 5, 2004. Her
remaining objections primarily challenged the accuracy or completeness of the PSR’s
descriptions of alleged prior acts of violence by Wind. The government did not object
to the PSR.

       Over the course of a number of months, the district court held a sentencing
hearing. During the hearing, both the government and Wind presented evidence
related to dismissed Count III. In fact, the vast majority of the sentencing proceeding
was dedicated to the events of June 5, 2004. The evidence showed that on June 4,
2004, Pickner and Wind were together at the Crow Creek Casino; both were drinking
alcohol. At some point they had an argument and separated. Pickner and his brother,
Michael Todd Red Bear, ended up at a friend’s house and kept drinking throughout
the night. The next morning, Wind borrowed a car from a friend and went to find
Pickner. She picked Pickner up from the friend’s house and drove him back to her
house. Red Bear rode along with Wind and Pickner. Pickner and Wind entered
Wind’s house, and Red Bear walked to a nearby home.

       Less than thirty minutes later, two of Wind’s young children found her injured
in her home. Medical personnel and law enforcement officers responded. Wind was

                                          -4-
taken to the hospital for treatment. She had seven stab wounds on her left arm and
back, one of which punctured her lung. Pickner was found dead on the bed. He had
three wounds: one stab wound on the left side of his chest that penetrated his heart and
two incise knife wounds on top of his forehead. Pickner’s blood alcohol level was
.296.

       The parties agreed on this basic outline of events. They reached different
conclusions on the circumstances surrounding Pickner’s death, however. The
government contended Wind killed Pickner while he was asleep or passed out on the
bed and then stabbed herself to make it look like she acted in self defense. Wind
argued the evidence supported a conclusion that Wind stabbed Pickner in self defense.
Both sides put on evidence in support of their theories. The government presented
testimony from various law enforcement agents, medical personnel, and other experts.
Wind countered with testimony from Wind’s treating physician, a forensic
pathologist, and an independent forensic science consultant. These witnesses
presented conflicting testimony about the seriousness of Wind’s injuries, the
likelihood that Wind’s wounds were self-inflicted, the timing and order of the various
stab wounds, and Pickner’s location and orientation when he was stabbed.

        The remaining evidence presented at the sentencing hearing addressed Wind’s
character, propensity for violence, and alleged prior acts of violence. The
government’s evidence included testimony from Pickner’s brothers about Wind’s
violent behavior during their days as students together in elementary and middle
school. Tom Pickner testified that Wind stabbed him in the leg with a pencil and
stated Wind bullied students for their lunch money. Witnesses testified to instances
of Wind biting people, including her then-husband Leonard Azure. Randy Pickner
testified that in January 2003, Wind attempted to stab Rick Pickner in the back. Wind
had thrown Pickner’s belongings from the house, and while Randy helped his brother
gather his things, Wind lunged at Rick Pickner with a knife. A social worker who had
worked with Wind and her family testified that Wind “threatened to kill [her].”

                                          -5-
       Wind presented evidence at the sentencing hearing to provide context to the
various allegations of violence included in the PSR and testified to at the sentencing
hearing. Viola Obago, Wind’s aunt, testified to violence Wind suffered at Pickner’s
hand, as did Delores Sazue and Deb Attikai. Viola Obago stated she had witnessed
Pickner kick, knock, drag, hit, and beat Wind. A neighbor boy testified to watching
Pickner drag Wind along the ground with her shirt ripped off. Wind’s treating
physician testified to treating Wind for injuries suffered when Pickner kicked her in
the face. Russell Obago testified that, on the day that Wind struck him with the
barbeque fork, Pickner hit Wind and threw her against the wall prior to Wind grabbing
the fork. Wind also highlighted portions of the PSR that demonstrated Leonard Azure
had been violent with her, as well.

       During the course of the hearing, the district court commented on its
reservations about this case. First, the court expressed a concern about the
investigation into Pickner’s death. The court described the investigation as “fouled
up,” “sloppy,” “a mess,” and “botched.” The court concluded “the constitutional
rights of the Defendant were violated” and noted that much of the government’s
evidence would have been suppressed had Count III proceeded to trial. Second, the
court was “troubled by the tail wagging the dog,” noting that Wind had pled guilty to
“two penny-ante assaults with a dangerous weapon” and that those convictions were
being converted into a sentencing hearing for murder.

       As the lengthy hearing came to a close, the court recalled the evidence
presented, made certain findings of fact, and declined to make other findings. The
court concluded, “If Mr. Pickner stabbed the Defendant and then laid down or passed
out on the bed while heavily intoxicated, it is certainly possible that the Defendant
stabbed him while he was unconscious and killed him. And I find that she did that,
that she stabbed him while he was unable to defend himself.” The court also stated
“whether [Pickner] assaulted [Wind] before or after or during the assault on him or
whether she inflicted the stab wounds herself, so what.” The court emphasized that

                                         -6-
he believed the timing of Wind’s injuries was immaterial and declined to make a
finding of fact as to any claim of self defense. However, the court explained it was
uncertain how to allocate the burden of proof: “Normally, of course, it’s the burden
of the Government to prove there was no self-defense. That’s the way it works in a
trial. I don’t know how it works in a sentencing hearing. Everything’s topsy-turvy,
I guess, in these sentence hearings.”

       The court adopted the Guidelines calculation included in the PSR, with the
applicable Guidelines range of 37 to 46 months. The court found the applicable
criminal history category I insufficient to reflect Wind’s past criminal conduct or the
likelihood that she would commit acts of violence in the future and therefore departed
upward pursuant to § 4A1.3. The court found that “a Criminal History Category of
VI is appropriate as to this Defendant, taking into account her past long and detailed
history of violence, including the use of dangerous weapons, knives, forks, and other
things, biting people.” With this departure from the lowest criminal history category
to the highest, Wind’s new advisory range was 77 to 96 months.

       The court then discussed the factors outlined in 18 U.S.C. § 3553(a). As to the
nature and circumstances of the offense, the district court described Wind’s counts of
conviction as “relatively minor.” The court focused on the history and characteristics
of the defendant and the need to afford deterrence, promote respect for the law, and
protect the public from further crimes by the defendant. The court noted “if you’re
simply looking at the offenses of conviction here, the upward departure that I have
indicated would not be appropriate, but for the finding of the Court that the public
needs to be protected from further crimes of this Defendant.” The court stated that the
need to avoid unwarranted sentence disparities did not apply, because “this
Defendant’s record is very unusual.”

      Having discussed the § 3553(a) factors, the court considered whether to impose
concurrent or consecutive sentences. The court acknowledged that, generally,

                                          -7-
sentences imposed at the same time are to be imposed concurrently. The court cited
18 U.S.C. § 3584 and Guidelines § 5G1.2 as guiding its decision regarding imposing
concurrent or consecutive sentences. The court determined it would impose
consecutive sentences and ordered Wind to a term of imprisonment of 96 months on
Count I, to be followed by a term of 84 months for Count II. Thus, each individual
sentence was within the adjusted advisory Guideline range, but the total length of
imprisonment of 180 months constituted a substantial upward variance from the range.
This appeal followed.

II.   Discussion

        Wind raises a number of challenges to the sentence imposed by the district
court. First, she challenges the upward departure based upon under-represented
criminal history. Second, Wind challenges the court’s reliance upon dismissed Count
III for sentencing purposes. Third, Wind alleges the court erred in its ruling on her
objections to the PSR. Fourth, Wind argues the court erred in imposing consecutive
sentences. Fifth, Wind alleges her ultimate sentence of 180 months’ imprisonment is
unreasonable. The government contends this court may only consider Wind’s final
argument as to the reasonableness of Wind’s ultimate sentence because the appeal
waiver covers her remaining arguments. We address those issues necessary for
resolution of this appeal.

      A.     Appeal Waiver

      As a threshold matter we must determine whether Wind waived the right to
pursue the arguments she raises on appeal. “As a general rule, a defendant is allowed
to waive appellate rights.” United States v. Andis, 333 F.3d 886, 889 (8th Cir. 2003)
(en banc). In determining whether particular claims are included under an appeal
waiver that was entered into knowingly and voluntarily by a defendant, we strictly
construe the provision and read any ambiguities against the government “and in favor

                                         -8-
of a defendant’s appellate rights.” Id. at 890. The government bears the burden to
prove “that a plea agreement clearly and unambiguously waives a defendant’s right
to appeal.” Id.

       The pertinent part of the plea agreement reads: “The parties agree that expressly
excluded from this waiver of defenses and appeal rights is the defendant’s right to
appeal the sentence for a determination of ‘reasonableness’ should the Court impose
a sentence above the advisory Guidelines range established by the Court for the
offense.” In interpreting identical language in another plea agreement, we found “the
range established by the Court” to be ambiguous and, resolving the ambiguity in favor
of the defendant, assumed the plea agreement permitted the defendant to challenge an
upward departure from the range originally established by the district court. United
States v. Kemp, 530 F.3d 719, 723 (8th Cir. 2008). We adopt the same approach here.
Thus, the applicable Guidelines range is 37 to 46 months, which Wind does not
challenge. Instead, Wind challenges the upward departure from that range, alleging
procedural and substantive errors by the district court in reaching its ultimate
sentence—a sentence Wind contends is unreasonable. The Supreme Court’s decision
in Gall v. United States, 128 S. Ct 586 (2007), teaches that appellate review for
reasonableness includes both procedural and substantive components. Id. at 597.
Wind’s preserved right to appeal for a “determination of ‘reasonableness’” therefore
encompasses the arguments she now asserts. See, e.g., United States v. Mousseau,
517 F.3d 1044, 1048–49 (8th Cir. 2008) (considering the district court’s factual
findings underlying an upward departure and whether the district court erred in
departing, as well as determining the reasonableness of the sentence, when the plea
agreement contained the same plea waiver language at issue here); United States v.
Shafer, 438 F.3d 1225, 1227 (8th Cir. 2006) (reviewing a district court’s imposition
of a concurrent sentence, rather than a consecutive sentence, for reasonableness).




                                          -9-
      B.     Procedural Reasonableness

       The Supreme Court’s decisions in United States v. Booker, 543 U.S. 220
(2005), Rita v. United States, 127 S. Ct. 2456 (2007), and Gall, 128 S. Ct. 586, guide
our consideration of the sentencing issues presented in this case. We review the
sentence for reasonableness. Gall, 128 S. Ct. at 594. Reasonableness review requires
us to “first ensure that the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the Guidelines range, treating
the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence—including an explanation for any deviation from the Guidelines range.” Id.
at 597. This list of potential procedural errors is not exhaustive, and other procedural
errors may be considered, as well. See United States v. Desantiago-Esquivel, 526
F.3d 398, 401 (8th Cir. 2008) (concluding that the list of “procedural impediments”
in Gall is not “all inclusive”). If the decision was “procedurally sound,” we then
review the “substantive reasonableness of the sentence,” applying an abuse-of-
discretion standard and considering the totality of the circumstances. Gall, 128 S. Ct.
at 597.

       Within this framework, we first consider whether the district court committed
any significant procedural error. We find it necessary to address two of the alleged
errors of procedure: (1) whether the district court erred in departing upward based
upon under-represented criminal history and (2) whether the district court erred in
relying upon dismissed Count III at sentencing.

             1.     Criminal History Departure

       The Gall Court made clear that the Guidelines remain “the starting point and
the initial benchmark” in reviewing a sentence. Id. at 596. Thus, our discussion
begins with the district court’s upward departure from criminal history category I to

                                         -10-
category VI pursuant to § 4A1.3. We review traditional departures from the advisory
Guidelines range for abuse of discretion. United States v. Rouillard, 474 F.3d 551,
555 (8th Cir. 2007).

       Section 4A1.3 permits an upward departure if “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.” U.S.S.G. § 4A1.3(a)(1). “When contemplating and structuring
such a departure, the district court should consider both the nature and extent of a
defendant’s criminal history.” United States v. Hacker, 450 F.3d 808, 812 (8th Cir.
2006). The extent of the departure should be determined “by using, as a reference, the
criminal history category applicable to defendants whose criminal history or
likelihood to recidivate most closely resembles that of the defendant’s.”
§ 4A1.3(a)(4)(A). We have previously described the process a court should use to
determine the extent of a departure based upon underrepresented criminal history:

      To impose an upward departure under § 4A1.3, the sentencing court first
      must proceed along the criminal history axis of the sentencing matrix,
      comparing the defendant’s criminal history with the criminal histories of
      other offenders in each higher category . . . .

United States v. Collins, 104 F.3d 143, 145 (8th Cir. 1997) (quoting United States v.
LeCompte, 99 F.3d 274, 280 (8th Cir. 1996)). This process does not “require a
ritualistic exercise in which the sentencing court mechanically discusses each criminal
history category it rejects en route to the category that it selects.” United States v.
Day, 998 F.2d 622, 625 (8th Cir. 1993) (internal quotation and alteration omitted).
However, the court must “adequately explain[]” why it concludes the intermediary
categories fail to meet the purposes of § 4A1.3. Id.; see also Collins, 104 F.3d at 145
(“Although the district court did not specifically mention that it had considered each
intermediate criminal history category, its findings were adequate to explain and
support the departure in this particular case.”).

                                          -11-
        The PSR calculated Wind’s criminal history category as falling within category
I, the lowest possible category. She was assigned only one criminal history point,
based upon a 2001 conviction for driving under the influence. The PSR reflects three
other criminal convictions that did not receive points. The most serious of these non-
counted offenses is a 1981 conviction for assault by striking, beating, and wounding,
resulting in a term of imprisonment of six months, with four suspended. No criminal
history points were assigned to this prior sentence because of its age. See U.S.S.G.
§ 4A1.2(e)(3). The district court specifically mentioned the lack of scoring of this
conviction as a factor in determining Wind’s criminal history category was
insufficient. If the sentence had been imposed within the permissible time frame, it
would have been assigned two criminal history points. See U.S.S.G. § 4A1.1(b)
(imposing two criminal history points for prior sentences of at least sixty days). The
other two convictions listed—for disorderly conduct and failing to have
insurance—also were too old to factor into Wind’s criminal history score. However,
it is unlikely either conviction would have been assigned any criminal history points
even if they were not time-barred. See U.S.S.G. § 4A1.2(c)(1) (listing disorderly
conduct and other petty offenses as generally excluded from criminal history
calculations). Thus, if one counts Wind’s time-barred convictions, she would have
three criminal history points, resulting in a criminal history category II.

       A sentencing court need not only rely upon uncounted prior convictions in
determining underrepresented criminal history, however. The Guidelines allow a
district court to consider “reliable information” demonstrating the criminal history
category assigned to a defendant does not accurately reflect her actual criminal history
or the likelihood that she will commit additional crimes. U.S.S.G. § 4A1.3(a)(1).
Among other things, a sentencing court may consider “[p]rior similar adult criminal
conduct not resulting in a criminal conviction,” in making this determination.
U.S.S.G. § 4A1.3(a)(2)(E); see also Collins, 104 F.3d at 145 (“Uncharged conduct can
properly be considered when departing under U.S.S.G. § 4A1.3.”). Here, the district
court heard testimony at sentencing about Wind’s prior assaults and considered

                                         -12-
material included in the PSR showing aggressive behavior. The court relied on Randy
Pickner’s testimony about Wind’s attempt to stab Rick Pickner after she threw his
belongings out of their house. The court credited David Powers’s testimony that
Wind assaulted a woman by biting her. The court looked to Wind’s “history of
violence while in school,” which involved bullying, stealing lunch money, and
stabbing with a pencil when Wind was in elementary and middle school,3 as testified
to by Tom Pickner. The court noted that the PSR and the testimony at sentencing
demonstrates that Wind is violent and angry when she drinks alcohol.

       The court departed upward to criminal history category VI from category I,
“taking into account [Wind’s] past long and detailed history of violence, including the
use of dangerous weapons, knives, forks, and other things, biting people.” The court
did not attempt to assign hypothetical criminal history points to the conduct that did
not result in convictions, and then determine what the appropriate criminal history
category would be. Nor did the court discuss intermediary categories II, III, IV, or V
before deciding upon category VI. While the district court is not required to engage
in a “ritualistic exercise in which the sentencing court mechanically discusses each
criminal history category it rejects en route to the category it selects,” Day, 998 F.2d
at 625 (internal quotation and alteration omitted), the court must provide sufficient
indicia of why the intermediary categories are inappropriate. This is particularly
important when the upward departure takes the defendant from the lowest to the
highest criminal history category. The court also did not compare Wind’s criminal
history with that of other defendants who are assigned criminal history category VI.
See United States v. Anderson, 886 F.2d 215, 216 (8th Cir. 1989) (per curiam)


      3
        We have not found a case that discussed elementary school bullying as a
grounds for an upward departure for underrepresented criminal history. The fact we
have not seen the issue discussed does not preclude its use. However, use of
elementary school conduct, on the playground no less, gives us pause. If the district
court decides to rely upon this conduct on remand we suggest the court explain why
and how it was relied upon.

                                         -13-
(reversing and remanding for resentencing a sentence with an upward departure to
criminal history category VI when the district court failed to compare the defendant’s
criminal history with the histories of other defendants who fall within that category).
Such a comparison would provide support for the court’s decision to use category VI,
as opposed to an intermediary category.

        Wind had only one prior relatively serious conviction. Much of the other
conduct the court relied upon as grounds for the upward departure were alcohol-
related assaults, and many of them were instances of mutual aggression in domestic
violence situations. Others were actions during Wind’s childhood. Without the
benefit of additional analysis by the district court, we cannot conclude that the district
court’s “findings were adequate to explain and support the departure in this particular
case.” Collins, 104 F.3d at 145. Failing to adequately explain an upward departure
is a significant procedural error, as is improperly calculating the advisory Guidelines
range. Gall, 128 S. Ct. at 597. Because, on this record, we conclude the district court
abused its discretion in determining the extent of the upward departure based upon
underrepresented criminal history, we must remand.

             2.     The District Court’s Use of Dismissed Count III at Sentencing

      In this case, dismissed Count III featured prominently in the court’s
consideration of Wind’s sentence.4 A sentencing court may rely upon dismissed
charges in fashioning a reasonable sentence. See U.S.S.G. § 5K2.21 (providing for


      4
       The court marked § 5K2.21 (dismissed and uncharged conduct) as one of the
grounds for its upward departure in its written statement of reasons. In its oral
pronouncements and the narrative portion of the written statement of reasons,
however, the court seemed to rely upon dismissed Count III primarily as a justification
for imposing consecutive sentences. Because we conclude reliance upon Count III at
sentencing was in error for the reasons articulated herein, the exact use of the
dismissed count is irrelevant.

                                          -14-
the use of dismissed or uncharged conduct at sentencing, if the conduct was not used
to determine the pre-departure Guidelines range). A dismissed charge may even be
relied upon if it was dismissed as part of a plea agreement in the case. See United
States v. Left Hand Bull, 477 F.3d 518, 521 (8th Cir. 2006) (stating that defendant did
not lose the benefit of his plea bargain when dismissed charge was relied upon for an
upward departure at sentencing). In order to rely upon a dismissed charge for
purposes of sentencing, the government must prove the defendant committed the
alleged offense by a preponderance of the evidence. See United States v. Bradford,
449 F.3d 910, 919-20 (8th Cir. 2007) (discussing the preponderance of the evidence
standard). In addition, “the government has the burden to prove the absence of any
defense by a preponderance of the evidence.” United States v. Betts, 509 F.3d 441,
445 (8th Cir. 2007). Thus, although the quantum of proof is less than the beyond-a-
reasonable-doubt formulation used at trial, the burden of proof remains unchanged at
sentencing: the government bears the burden.

        The district court did not correctly apply the burden of proof when considering
the absence of self defense as related to the conduct underlying dismissed Count III.
Count III alleged that Wind “willfully, deliberately, and with premeditation and with
malice aforethought” killed Pickner “by stabbing him in the chest with a knife.” At
the sentencing hearing, Wind countered this murder charge by raising self defense as
a justification for Pickner’s death. The court acknowledged that the government bears
the burden of proving an absence of self defense once the issue is called into question
during a trial, but indicated it was unsure of the proper allocation of the burden of
proof when considering the issue at sentencing. This was a significant procedural
error. After self defense became an issue at sentencing, the government bore the
burden of establishing Wind did not act in self defense by a preponderance of the
evidence.

      The failure to correctly assign the burden of proof on the question of self
defense calls into question the court’s conclusion that “she stabbed him while he was

                                         -15-
unable to defend himself.” We do not know if the court concluded the government
successfully proved a lack of self defense, or if the court concluded Wind failed to
show she stabbed Pickner in self defense. The court’s statement that “it is certainly
possible that the Defendant stabbed him while he was unconscious and killed him”
gives us pause. We are also troubled by the court’s refusal to specifically make a
finding of fact on self-defense. The court emphasized that there was “no indication
of any third person being involved here,” without resolving the “evidence . . . in
dispute” as to the circumstances surrounding the stab wounds inflicted upon Wind.
A finding of fact as to Wind’s claim of self defense was a necessary prerequisite to
considering the dismissed charge as a factor in Wind’s sentencing.

       The evidence at sentencing as to the circumstances of Pickner’s death was
conflicting, as the district court acknowledged. Much of the uncertainty dealt with
seriousness of Wind’s injuries, the likelihood that Wind’s wounds were self-inflicted,
the timing and order of the various stab wounds, and Pickner’s location and
orientation when he was stabbed. For example, two witnesses presented by the
defendant, Dr. John Jones, Wind’s treating physician, and Dr. Lindsey Thomas, a
forensic examiner who reviewed Wind’s medical records and other materials,
described Wind’s wounds as severe and life threatening. Dr. Thomas stated that, in
her opinion and based upon a reasonable degree of medical certainty, Wind “did not
stab herself.” Dr. Jones reached the same conclusion. His opinion was based both
upon his examination and treatment of Wind’s wounds and upon his knowledge of
Wind’s severe aversion to needles and shots. In contrast, Raymond Pierce, a retired
New York City Police Department Homicide Detective called by the government as
an expert, testified that he concluded Wind’s wounds were self-inflicted.

       Based upon the evidence presented at sentencing, we cannot conclude that the
district court’s failure to properly assign the burden of proof did not impact the court’s
findings related to Pickner’s death. Moreover, the district court relied upon its
conclusion that Wind stabbed Pickner when he was unable to defend himself in

                                          -16-
determining Wind’s sentence, specifically referencing this conclusion in its oral
pronouncements at the sentencing hearing, as well as in its written statement of
reasons. This procedural error cannot be considered harmless, and we must remand.

       C.    Substantive Reasonableness and Remaining Arguments

       Because we conclude the sentence imposed suffered from the above stated
procedural flaws, we need not consider the substantive reasonableness of the ultimate
sentence imposed by the district court. See United States v. Pepper, 518 F.3d 949,
953 (8th Cir. 2008). We also refrain from addressing other arguments Wind raises
that are intertwined with that ultimate determination.

III.   Conclusion

      For the foregoing reasons, we vacate Wind’s sentence and remand for
resentencing consistent with this opinion.
                       ______________________________




                                        -17-
