                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-3039
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                 Charles Eagle Pipe

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

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

                           Submitted: October 15, 2018
                             Filed: January 7, 2019
                                 ____________

Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
                              ____________

LOKEN, Circuit Judge.

       Charles Eagle Pipe pleaded guilty to domestic assault by an habitual offender
in violation of 18 U.S.C. § 117. At sentencing, the district court1 determined that


      1
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota
Eagle Pipe’s advisory guidelines range was 30 to 37 months imprisonment. The court
departed upward because Eagle Pipe’s criminal history category substantially under-
represented the seriousness of his criminal history, see USSG § 4A1.3(a)(1), and
imposed a forty five month sentence, a one month downward variance from the
revised guidelines range. Eagle Pipe appeals the sentence, asserting that the court
committed procedural and substantive error. We conclude the contentions are
without merit and therefore affirm.

       Eagle Pipe’s Presentence Investigation Report (PSR) assigned one criminal
history point for a single qualifying adult conviction, placing him in Criminal History
Category I. The “Other Criminal Conduct” section listed sixty-nine entries totaling
one hundred prior convictions in the Standing Rock Sioux Tribal Court. Many were
convictions for domestic assault of Eagle Pipe’s wife, the victim of the domestic
assault offense of conviction. Tribal court convictions are not included in calculating
a defendant’s Criminal History Category. See USSG § 4A1.2(I). Accordingly, the
PSR identified § 4A1.3 as potentially warranting a departure, explaining:

      In this case, the defendant is in Criminal History Category I: however,
      he has a significant tribal criminal history that was not accounted for in
      the determination of the defendant’s Criminal History Category. Had
      the defendant’s tribal court record been in state or federal court, it would
      have resulted in 16 criminal history points, placing him in Criminal
      History Category VI.

Eagle Pipe filed no objections to the PSR.

      Prior to sentencing, the district court issued a memorandum to counsel noting
a possible upward departure. The court explained:

           The criminal history category is I. If all tribal court convictions
      were counted, the category would be VI. He has 101 tribal court

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      convictions, many for violence. He has nine pending charges in tribal
      court. In the 22 + years I have been on the bench, I do not recall anyone
      with that number of tribal court convictions. He has convictions for
      assaulting the same victim as the present victim seven previous times.
      It appears that he has learned nothing from the sentences imposed
      previously.

       At the sentencing hearing, defense counsel acknowledged that Eagle Pipe’s
very lengthy criminal history “pushes the sentence up a little bit,” but noted that Eagle
Pipe had served 365 days in tribal jail for the offense of conviction and urged the
court to impose a sentence within the 30 to 37 month guidelines range. The district
court noted that, in addition to his prior convictions, Eagle Pipe “has family violence,
simple assault, disorderly conduct, criminal mischief, domestic violence . . . and
criminal contempt [charges], all pending in Standing Rock Sioux Tribal Court.”

       After lengthy discussion with counsel, the district court found “that an upward
departure is appropriate here based on the inadequacy of the Criminal History
Category of the Defendant. He is about as far away from a Criminal History Category
of I as you could get.” Noting that Eagle Pipe’s tribal court convictions, if they
counted, would place him in Criminal History Category VI, the court ruled:

             I find that his Criminal History Category is a IV. That’s an
      upward departure. A criminal History Category of II is not adequate,
      nor is a Criminal History Category of III adequate, based upon one after
      another of these acts of violence.

The court found that Eagle Pipe’s revised advisory guidelines range was 46 to 57
months imprisonment, credited the twelve months he served in tribal custody “on
charges that are relevant conduct,” and imposed a “net sentence” of forty five months.




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         On appeal, Eagle Pipe argues the district court committed procedural error
because it failed to adequately explain why it rejected Criminal History Categories
I, II, and III and failed to compare Eagle Pipe’s criminal history with other defendants
in Category IV. Eagle Pipe did not object to the PSR’s determination that his tribal
court convictions would place him in Category VI if they counted. He did not object
when the district court recited that determination in giving advance notice of a
possible upward departure and again at the start of the sentencing hearing. He did not
object or request additional explanation when the district court explicitly stated that
Categories II and III were not adequate because of his many acts of violence. This
argument was waived in the district court. See United States v. Maxwell, 778 F.3d
719, 734 (8th Cir.), cert. denied, 135 S. Ct. 2827 (2015).

       Even if we reviewed this issue for plain error, there was none. The Guidelines
expressly state that an upward departure may be based on “[p]rior sentence(s) not
used in computing the criminal history category,” including “tribal offenses.” USSG
§ 4A1.3(a)(2)(A); see United States v. Shillingstad, 632 F.3d 1031, 1037 (8th Cir.
2011). A district court departing upwards under § 4A1.3(a)(1) need not
“mechanically discuss[ ] each criminal history category it rejects en route to the
category that it selects”; it need only provide “sufficient indicia of why the
intermediary categories are inappropriate.” United States v. Azure, 536 F.3d 922,
931-32 (8th Cir. 2008) (quotation omitted).

      Here, the PSR and the district court assigned hypothetical criminal history
points to Eagle Pipe’s tribal convictions, which placed him in Criminal History
Category VI, the highest category. The court specifically stated that it had considered
each intermediary criminal history category before selecting Category IV. This
process necessarily “use[d], 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.” USSG § 4A1.3(a)(4)(A); see United States v.
Azure, 596 F.3d 449, 454-55 (8th Cir.), cert. denied, 562 U.S. 906 (2010). As in

                                          -4-
Shillingstad, we conclude the district court “sufficiently explained that its decision
was based on [Eagle Pipe’s] extensive criminal record.” 632 F.3d at 1038.

       Eagle Pipe further argues that the district court committed plain procedural
error by “selecting a sentence based on clearly erroneous facts,” namely, the failure
to make a finding resolving some confusion in the record whether Eagle Pipe has 69,
100, or 101 prior tribal convictions, and the district court’s references to the
prevalence of domestic violence on the Standing Rock Sioux reservation. While
procedural error includes “selecting a sentence based on clearly erroneous facts,”
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc), this
contention is frivolous. Whether Eagle Pipe has 69 or 101 prior tribal convictions
obviously did not affect the district court’s finding that he “is about as far away from
a Criminal History Category of I as you could get.”

       Eagle Pipe did not challenge the court’s comments lamenting the prevalence
of domestic violence on the Standing Rock reservation and surmising that Eagle Pipe
may have committed other acts of domestic violence because such crimes often go
unreported. “As a consequence, the district court had no opportunity to clarify its
comments or to correct any potential error in the first instance. Nor was the district
court prompted to explain whether the comments had any effect on the ultimate
disposition of the case.” United States v. M.R.M., 513 F.3d 866, 870 (8th Cir.), cert.
denied, 555 U.S. 871 (2008). Accordingly, there was no error, much less plain error.
The record does not support a conclusion that these remarks were a “principal basis”
for the court’s choice of sentence. United States v. Stokes, 750 F.3d 767, 772 (8th
Cir. 2014); see United States v. Gant, 663 F.3d 1023, 1030 (8th Cir. 2011).

      Finally, Eagle Pipe argues the district court abused its discretion by imposing
a substantively unreasonable sentence because the court gave substantial weight to
an improperly determined upward departure and to its comments on domestic
violence the record does not support. As we have explained, the court imposed a

                                          -5-
well-supported, fully explained § 4A1.3 upward departure based on Eagle Pipe’s
extensive criminal history, and then varied slightly downward from the revised
advisory guidelines range. This is not “the unusual case when we reverse a district
court sentence -- whether within, above, or below the applicable Guidelines range --
as substantively unreasonable.” Feemster, 572 F.3d at 464.

      The judgment of the district court is affirmed.
                     ______________________________




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