                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-3208
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

            Makayla Kills In Water, also known as Makayla Iron Cloud

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

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

                               Submitted: April 3, 2017
                                Filed: April 28, 2017
                                   [Unpublished]
                                   ____________

Before GRUENDER, MURPHY, and KELLY, Circuit Judges.
                         ____________

PER CURIAM.

       Makayla Kills In Water pled guilty to assault resulting in serious bodily injury
after having shaken her two year old stepdaughter. In her plea agreement, she and the
government jointly recommended a sentence of seven years imprisonment. The
district court1 sentenced her to ten years imprisonment, and Kills In Water appeals.
She argues that the district court had either to accept the parties' joint sentencing
recommendation or allow her to withdraw her guilty plea. We affirm.

    Paragraph B of Kills In Water's plea agreement was entitled "PLEA
AGREEMENT PROCEDURE - NO RIGHT TO WITHDRAW PLEA IF COURT
REJECTS RECOMMENDATION." It provided as follows:

      The United States and the Defendant agree that this Plea Agreement is
      presented to the Court pursuant to Rule 11(c)(1)(A) and (B) of the
      Federal Rules of Criminal Procedure which, among other things,
      authorizes the United States . . . to make recommendations or agree not
      to oppose the Defendant's request for a particular sentence. Such
      agreements and recommendations are not binding on the Court, and the
      Defendant may not withdraw his [sic] plea of guilty if the Court rejects
      them.

In the section that set out the parties' joint sentencing recommendation, the plea
agreement stated that "[t]he Defendant understands that any recommendation made
by her or the United States is not binding on the [Court]. The Defendant further
understands that she may not withdraw her plea of guilty if the Court rejects any
recommendation." During the change of plea hearing, Kills In Water orally
confirmed several times that she understood that the sentencing recommendation did
not bind the court and that she would not be permitted to withdraw her guilty plea if
the court declined to follow the recommendation.

      At sentencing the district court accepted the plea agreement and also
acknowledged the joint recommendation of the parties. The court decided, however,
not to follow the recommendation and sentenced Kills In Water to ten years

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

                                         -2-
imprisonment because it considered her offense conduct to have been extreme,
causing a permanent disability to her stepdaughter.

       Kills In Water argues that the district court erred by failing to accept the plea
agreement's joint sentencing recommendation and not allowing her the opportunity
to withdraw her guilty plea. She argues that she entered into the plea agreement
under Rule 11(c)(1)(C), which provides that the court must apply the agreed on
sentence if it accepts the agreement. The plea agreement of Kills In Water stated
clearly and repeatedly, however, that it had been entered into under Rule 11(c)(1)(B)
so that the court could accept her guilty plea without allowing her to withdraw her
plea even if the court were to reject its sentencing recommendation. See United
States v. Schiradelly, 617 F.3d 979, 982 (8th Cir. 2010) (per curiam). The sentencing
court was not bound by the parties' agreement and did not err by sentencing Kills In
Water above its recommended sentence.

      For these reasons we affirm the district court.
                      ______________________________




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