                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-3819
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota.
Trudell Smith, Jr.,                     *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: May 17, 2012
                                Filed: June 14, 2012
                                 ___________

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

SHEPHERD, Circuit Judge.

       Trudell Smith, Jr. pled guilty to burglary in violation of 18 U.S.C. § 1153
pursuant to a plea agreement. After an upward departure, the district court1 sentenced
Smith to 57 months imprisonment and 5 years of supervised release. Smith appeals
his sentence. We affirm.




      1
       The Honorable Roberto A. Lange, United States District Judge for the District
of South Dakota.
                                          I.

       On July 16, 2011, after a long night of drinking, Smith broke into the home of
Mattie High Pipe through the window of a bedroom. The bedroom was shared by
High Pipe’s daughter Rosa Aguilar and Aguilar’s four-year-old daughter, E.A.
Aguilar awoke to sounds of E.A. crying “Mommy” and observed Smith on top of E.A.
in the child’s bed. E.A.’s pajama bottoms and underwear had been removed, though
Aguilar knew that E.A. had on both when she went to sleep and E.A. was not known
to remove them. Aguilar attempted to pull Smith away from her child. Aguilar then
heard Smith zip his shorts, and Smith subsequently fled the house. High Pipe saw
Smith leave the house and found Aguilar and E.A. crying in the bedroom. After
leaving High Pipe’s home, Smith went to the home of his brother and threatened to
commit suicide.

       The Government charged Smith with aggravated sexual abuse of a child, in
violation of 18 U.S.C. §§ 1153, 2241(c) and 2246(2)(A) and with first degree
burglary, in violation of 18 U.S.C. § 1153 and South Dakota Codified Law § 22-32-1.2
Smith pled guilty to the federal and state burglary charges, and the Government
dropped the sexual assault charges. In the plea agreement, the parties agreed that the
Government could present evidence at sentencing supporting an upward departure.

       The Presentence Investigation Report (PSR) calculated a Guideline sentence of
18 to 24 months for Smith’s burglary conviction. At sentencing, the court heard the
testimony of High Pipe and Aguilar relating to the sexual assault. The court also
heard evidence that there was no physical evidence that E.A. had been sexually
assaulted, other than E.A.’s statement that she felt pain when urinating. None of


      2
       The incident occurred on the Rosebud Sioux Indian Reservation. “18 U.S.C.
§ 1153[] creates federal jurisdiction for cases in which an Indian commits one of a list
of enumerated crimes against another Indian in Indian country, including . . .”
burglary. United States v. Ashley, 255 F.3d 907, 910 n.3 (2001).

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Smith’s DNA was found on E.A., nor was any of her DNA found on him. The court
was also aware that Smith had two previous convictions for aggravated sexual assault,
one of which involved Smith entering the bedroom of the victim while she slept.
Accordingly, the district court concluded that Smith had been preparing to sexually
assault E.A. during the burglary but was prevented from doing so by Aguilar.

       Based on this information, the court determined that had the sexual assault
charges against Smith been presented to a jury, a jury likely would have convicted
Smith of attempted sexual assault. Accordingly, the court determined that the
attempted sexual assault was a factor that should be considered in calculating Smith’s
sentence for the burglary charge and found that an upward departure was appropriate
based on uncharged conduct under United States Sentencing Commission, Guidelines
Manual, §5K2.21. The court sentenced Smith to 57 months imprisonment, which was
within Smith’s Guideline range for an offense of attempted sexual assault.

                                          II.

       Smith’s first argument on appeal is that the district court based its decision to
depart upward on erroneous factual findings. We review “under a clearly erroneous
standard . . . whether the circumstances justifying departure actually exist.” United
States v. Crumb, 902 F.2d 1337, 1339 (8th Cir. 1990). Smith argues the district court
clearly erred in crediting Aguilar’s and High Pipe’s sentencing testimony because the
testimony was factually inconsistent and inconsistent with prior statements given by
the two.

       Specifically, the investigator reports recorded immediately following the
incident indicate that Aguilar stated to investigators that she came into the bedroom
when she heard her daughter screaming; however, at sentencing, she stated that she
was sleeping in the room when the incident occurred. Additionally, Aguilar testified
at sentencing that she attempted to pull Smith off of her daughter, but this detail had


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not been included in any of the investigators’ reports. Moreover, it was unclear from
Aguilar’s testimony whether there was any light in the room by which she could have
observed Smith and her daughter. Also, Aguilar was not wearing her glasses at the
time of the incident, and the court discovered at the hearing that Aguilar’s sight
without her glasses was poor. Inconsistences also existed in High Pipe’s relation of
the incident. High Pipe testified that the man she observed in her home was around
five feet, six inches tall, though Smith is over six feet tall. High Pipe testified the
whole incident lasted four seconds, but Aguilar testified the incident was closer to one
minute.

       The district court expressly found Aguilar and High Pipe to be credible
eyewitnesses. The court noted that Aguilar was able to see well enough to identify
Smith as the man who entered her home on the night of the incident. Additionally, the
court noted that Smith’s stated reason for entering the home—to steal things in order
to acquire liquor to continue his night of drinking—was nonsensical because there was
no place open from which to buy liquor at 3:00 a.m. in the town of 500 where the
incident occurred. Considering all the evidence, the court concluded that what Aguilar
observed “only makes sense as being described as the preparation for a sexual
assault,” and determined the evidence supporting that finding went well beyond a
preponderance of the evidence.

       “‘[A] district court’s credibility determinations [at sentencing] are virtually
unreviewable on appeal.’” United States v. Bridges, 569 F.3d 374, 378 (8th Cir.
2009) (quoting United States v. Wunder, 414 F.3d 1019, 1022 (8th Cir. 2005)). This
is because the district court “has a ‘distinct advantage’ in evaluating the credibility of
witnesses.” United States v. Vinton, 631 F.3d 476, 481 (8th Cir.), cert. denied, 132
S.Ct. 213 (2011) (citation omitted). At sentencing when confronted with their
previous inconsistent statements, both Aguilar and High Pipe stated that their
testimony at sentencing was true and correct and indicated that their previous
statements must have been recorded incorrectly. The district court was in the position


                                           -4-
to evaluate their testimony, and the district court did not clearly err by crediting the
sentencing testimony of two eyewitnesses. Additionally, we note that Smith admitted
to breaking into and being in the home on the night in question, offered no logical
reason for being there, and had two prior convictions for sexual assault. Accordingly,
we conclude that the court did not err in entering the departure.

       Second, Smith argues that in announcing its ultimate sentence, the district court
procedurally erred because it did not consider Smith’s acceptance of responsibility.
Smith did not raise this objection at sentencing; thus our review is for plain error.
United States v. Deegan, 605 F.3d 625, 629 (8th Cir. 2010). Smith was given a three-
level reduction for acceptance of responsibility in the PSR for his convicted offense
of burglary, resulting in a recommended offense level of 14. Finding that the
accompanying sentencing range failed to appropriately consider uncharged conduct,
the court entered an upward departure under U.S.S.G. §5K2.21. This is the correct
order for entering the reduction for acceptance of responsibility, pursuant to the
Sentencing Guidelines. See U.S.S.G. §1B1.1 (stating that the adjustment for
acceptance of responsibility is to be assessed before a departure is entered).

       Next, Smith argues that his sentence violates the Due Process Clause because
it punished him for the attempted sexual assault, though his guilt on the assault charge
was determined by a judge using a preponderance of the evidence standard rather than
by a jury using a reasonable doubt standard. The Sentencing Guidelines expressly
allow a district court to consider uncharged conduct in entering an upward departure.
U.S.S.G. §5K2.21 (“The court may depart upward to reflect the actual seriousness of
the offense based on conduct (1) underlying a charge dismissed as part of the plea
agreement in the case . . . .”). Despite the court’s express authority to enter upward
departures based on uncharged conduct, Smith argues doing so violates the principle
of United States v. Booker, 543 U.S. 220, 244 (2005). Booker affirmed the Court’s
opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000), and stated that “[a]ny fact
(other than a prior conviction) which is necessary to support a sentence exceeding the


                                          -5-
maximum authorized by the facts established by a plea of guilty or a jury verdict must
be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id.
Smith argues that his sentence was increased based on judicially found facts
determined by a preponderance of the evidence in violation of Booker because
without considering the evidence of the attempted sexual assault charge, his sentence
would have been between 12 and 24 months rather than the 57-month sentence he
received. This argument is without merit. Booker only prevents a judge from using
judicially found facts to sentence a defendant outside of the statutory maximums. See
United States v. Villareal-Amarillas, 562 F.3d 892, 898 (8th Cir. 2009). Smith’s
sentence of 57 months was not greater than the maximum allowed by statute, thus the
district court did not violate Booker. Smith was sentenced to 57 months imprisonment
for his crime of burglary, and the judicially found fact that Smith committed an
attempted sexual assault was merely a sentencing factor that the judge was entitled to
consider in determining an appropriate sentence. See United States v. Galloway, 976
F.2d 414, 425 (8th Cir. 1992) (en banc) (“Because a defendant’s uncharged crimes are
treated as sentencing factors, the rights to indictment, jury trial, and proof beyond a
reasonable doubt simply do not come into play.”). Accordingly, the court did not err.



      Finally, Smith contends that his sentence is substantively unreasonable when
compared to the crime of burglary and is only reasonable if the attempted sexual
assault is considered. Because it was appropriate for the court to consider the
attempted sexual assault in entering Smith’s sentence, we need not address this
argument.

                                         III.

      For the foregoing reasons, we affirm.
                      ______________________________



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