                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                   No. 99-3012SD
                                    ___________

United States of America,                 *
                                          *
             Appellee,                    *   Appeal from the United States
                                          *   District Court for the
      v.                                  *   District of South Dakota
                                          *
David Earl Antelope,                      *   [UNPUBLISHED]
                                          *
             Appellant.                   *

                                    ___________

                             Submitted: March 14, 2000
                                 Filed: April 14, 2000
                                   ___________

Before RICHARD S. ARNOLD and BEAM, Circuit Judges, and CONMY,1 District
      Judge.
                           ___________

PER CURIAM

        The defendant pled guilty to aggravated sexual abuse. 18 U.S.C. §§ 1153,
224(a)(1) & 2246(2)(A). The plea agreement contemplated the sentencing computation
as set out in the Pre-Sentence Report (PSR), namely an adjusted offense level of 32 and
a criminal history category of V producing a Guideline imprisonment range of 188 to


      1
        The Honorable Patrick A. Conmy, Senior United States District Judge for the
District of North Dakota, sitting by designation.
235 months. The District Court,2 departed upward to a criminal history category VI
and sentenced at the top end of the resulting 210 to 262 month range. The defendant
appeals and we affirm.

       On September 9, 1998, the defendant entered the home of a 71 year old woman
living in McLaughlin South Dakota and forcibly raped her. The victim was unable to
prevent the assault and ultimately escaped fleeing naked from the waist down to a
neighbors home. The defendant was quickly arrested and found to have a blood
alcohol content of 0.155. In addition to a knee injury requiring surgical repair, the
stress created by the incident has forced the victim to sell her home and move away
from the community where she had lived for 51 years and where her husband of 37
years is buried.

       The defendant appeals, raising two issues. The first is that the District Court
provided only one day advance notice of the possibility of an upward departure,
depriving the defendant of an opportunity to more fully prepare for a possible
countering of the evidence to be relied upon by the sentencing judge. The second issue
raised is a challenge to the upward departure itself.

       The PSR noted two factors which might justify or warrant an upward departure.
These were a prior conviction and sentence for rape and a criminal history category that
did not adequately reflect the defendant’s criminal past. The sentencing judge, one day
before the sentencing hearing, notified counsel of a possible departure based on these
two factors and a third, that being a finding of extreme psychological injury to the
victim.




      2
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.

                                          -2-
       The upward departure was a one level adjustment in the criminal history
category. This was based on the defendant’s 21 tribal court convictions for which no
points were assessed in the criminal history computation, pursuant to U.S.S.G. §
4A1.3, and a prior conviction for forcible rape, pursuant to U.S.S.G. § 2A3.1,
commentary (n.6). These factors provide a valid basis for the upward departure and,
as counsel admitted during argument, were not facts capable of challenge with any
period of advance notice. We treat the third stated reason, that of extreme
psychological injury to the victim as a statement of a reason by the court for its exercise
of discretion in selecting a sentence at the top of the available sentencing range.

       United States v. McCarthy, 97 F.3d 1562, 1580 (8th Cir. 1996) indicates that a
one day notice of intent to depart could be considered as reasonable notice. In that
case, as here, no objection was raised at time of sentencing and no prejudice could be
shown to have resulted from the timing of the notice. The facts used to find a basis for
departure in this case were set out in the PSR and were not challenged by the
defendant. Reliance by the sentencing court on matters not reflected in the PSR, or
found by the court to vary from the recitations of the report may well require greater
advance notice in order to provide the parties with an opportunity to verify or disprove
the validity of the court generated dispute.

       We find the notice sufficient and the upward departure a valid exercise of
discretion by the District Court.

A true copy.

  ATTEST:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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