                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1485
                                   ___________

United States of America,             *
                                      *
            Plaintiff-Appellee,       *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of South Dakota.
Lester Michael Weasel Bear, Jr.,      *
                                      *
            Defendant-Appellant.      *
                                 ___________

                             Submitted: November 18, 2003

                                  Filed: February 2, 2004 (Corrected 3/10/04)
                                   ___________

Before MURPHY, LAY, and FAGG, Circuit Judges.

                                   ___________

MURPHY, Circuit Judge.

       Defendant Lester Michael Weasel Bear, Jr. pled guilty to robbery and second
degree murder in Indian Country, in violation of 18 U.S.C. §§ 1153, 1111(a), and
2111, but reserved his right to appeal any sentence in excess of 30 years. The United
States Sentencing Guidelines applied at sentencing, and they provide that where a
murder as defined in 18 U.S.C. § 1111 takes place in the course of a federal robbery,
the guideline for first degree murder should be used. U.S.S.G. § 2B3.1(c)(1). The
district court applied that guideline and made some uncontested adjustments, arriving
at a final offense level of 42 and a sentencing range of 360 months to life. The court
sentenced Weasel Bear to 55 years on each count, to be served concurrently. On
appeal, Weasel Bear challenges the use of the cross reference to first degree murder
and the 55 year sentence on the robbery count for which the statutory maximum is 15
years. We affirm in part and reverse in part.

       Late in the evening of December 31, 2001 Lester Michael Weasel Bear (Weasel
Bear), who was then 19, and his 14 year old brother walked to the home of 82 year
old Richard Tall on the Pine Ridge Indian Reservation. They intended to steal Tall's
Lincoln Town Car and had a baseball bat and tools with them. After unsuccessfully
attempting to hotwire the car, they broke into Tall's house to get his car keys. Tall
was asleep so Weasel Bear jostled his foot to wake him, and Tall grabbed a stick to
defend himself. Weasel Bear pushed Tall back onto his bed and struck his head and
body repeatedly with the bat. Tall held up his hands defensively before falling to the
floor, saying "I quit." Although Weasel Bear found and took the car keys, the
brothers were not able to start any of Tall's cars so they left.

       Weasel Bear returned to Tall's home the next morning to try again to take a car.
This time Weasel Bear's 17 year old brother went along, and the two found Tall dead.
An autopsy later showed that Tall had died of brain hemorrhaging caused by blunt
force trauma to the head. He also suffered fractured ribs and contusions to his hands,
arms, chest, abdomen, and lung.

       While his brother took money and guns from Tall's house, Weasel Bear
switched car batteries and eventually started the Lincoln. The brothers then drove
around in the car, purchased some marijuana, stole gasoline, ate lunch, and did some
shopping. Meanwhile a neighbor found Tall's body, noticed the missing car, and
notified authorities. Police soon spotted Weasel Bear and his brother on a rural road.
After a high speed chase, the brothers were arrested and the stolen guns were
discovered in the trunk of the car.

                                          2
      On January 16, 2002 a federal grand jury indicted Weasel Bear for robbery,
burglary, and unlawful killing with malice aforethought during the perpetration of a
burglary and robbery. Weasel Bear pled guilty on October 21, 2002 to killing with
malice aforethought (second degree murder) and robbery. He reserved his right to
appeal any sentence in excess of 30 years.

        At sentencing the district court followed the cross reference in the robbery
guideline, U.S.S.G. § 2B3.1(c)(1), requiring application of the guideline for first
degree murder if a robbery victim has been "killed under circumstances that would
constitute murder under 18 U.S.C. § 1111." The court applied the base offense level
for first degree murder which is 43, U.S.S.G. § 2A1.1., and also commented that the
facts would have supported a first degree murder conviction. After a two level
enhancement for a vulnerable victim and a three level reduction for acceptance of
responsibility, the total offense level was determined to be 42 with a sentencing range
of 360 months to life. The court sentenced Weasel Bear to 55 years on each count to
be served concurrently, and Weasel Bear appeals.

      Weasel Bear contests application of the guideline cross reference to first degree
murder and the 55 year sentence on the robbery count. We review the application of
the sentencing guidelines to the facts de novo and findings of fact for clear error.
United States v. Willey, 350 F.3d 736, 738 (8th Cir. 2003).

       The sentencing guideline for the offense of robbery states "[if] a victim was
killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had
such a killing taken place within the territorial or maritime jurisdiction of the United
States, apply § 2A1.1 (First Degree Murder)." U.S.S.G. § 2B3.1(c)(1). Weasel Bear
argues that this cross reference applies only if the victim was killed outside the
territorial jurisdiction of the United States and that it does not fit his case because Tall
was killed within such jurisdiction.

                                             3
        The guideline at issue, § 2B3.1(c)(1), cannot be understood without
considering the statute to which it refers, 18 U.S.C. § 1111. Section 2B3.1(c)(1)
follows the felony murder rule incorporated in 18 U.S.C. § 1111(a) which defines any
killing committed in the course of a robbery or other enumerated felony as first
degree murder and provides that such an offense should be sentenced under the first
degree murder guideline. See also United States v. Shea, 211 F.3d 658, 673-74 (1st
Cir. 2000) (discussing the guideline cross reference and its incorporation of the felony
murder rule in 18 U.S.C. § 1111(a)). Section 1111(b) addresses sentencing options
for first and second degree murder as defined in § 1111(a) and committed "within the
special maritime and territorial jurisdiction of the United States." 18 U.S.C. §
1111(b).

       The cross reference in § 2B3.1(c)(1) to the first degree murder guideline in §
2A1.1 requires a sentencing court to consider the full context of the defendant's
offense and to account for any killing in the course of a federal robbery, regardless
of the situs of the killing. This permits sentencing consideration of the total extent
of injury inflicted upon anyone victimized by the offense. In this case, Weasel Bear
both committed a robbery and killed his victim within federal territorial jurisdiction,
so he comes within the scope of both 18 U.S.C. § 1111 and § 2B3.1(c)(1). Weasel
Bear cites no authority for his attempt to limit application of § 2B3.1(c)(1) to killings
occurring outside the territorial jurisdiction of the United States, and the guideline's
cross reference to the first degree murder guideline, § 2A1.1, is to be applied to
killings fitting the definition in § 1111 and occurring within the territorial jurisdiction
of the United States. See, e.g., United States v. Harris, 238 F.3d 777, 778-79 (6th Cir.
2001) (affirming application of § 2B3.1(c)(1) to second degree murder during a
robbery where both crimes took place within federal territorial jurisdiction).

      We decline to adopt Weasel Bear's strained reading of the guideline which
would result in a lesser punishment for a killing committed in the course of a federal
robbery within the territorial jurisdiction of the United States than, for example, for


                                            4
a killing committed in the course of a federal robbery of a bank which is outside
federal territorial jurisdiction. The cases do not support such a reading. See, e.g.,
Shea, 211 F.3d at 673-75 (applying § 2B3.1(c)(1) to killings in course of bank
robbery outside special maritime or territorial jurisdiction of the United States). The
language of § 2B3.1(c)(1) is intended to ensure that sentences for killings committed
in the course of a federal robbery reflect the seriousness of the real offense conduct
and provide just punishment for the offenses. See 28 U.S.C. § 991(b)(1)(B); 18
U.S.C. § 3553(a)(2)(A). Cf. U.S.S.G. § 1B1.3(a)(1)(A) (base offense level should be
determined on basis of "all acts and omissions committed . . . or willfully caused by
the defendant"); United States v. Wilson, 992 F.2d 156 (8th Cir. 1993) (federal
firearms sentencing properly took account of attempted murder as relevant conduct).

      We conclude that the district court correctly applied the cross reference in this
case. Weasel Bear pled guilty to second degree murder during the course of a robbery
within federal jurisdiction, a crime meeting the definition of murder under § 1111,1
and the court did not err by applying § 2B3.1(c)(1) to Weasel Bear's killing of Tall
during a robbery on the Pine Ridge Reservation within the territorial jurisdiction of
the United States.

       Weasel Bear also argues that application of the cross reference converted his
second degree murder plea into a de facto conviction for first degree murder and that
the district court improperly used his factual proffer to find that he had committed
premeditated murder without his having expressly consented to its use for that
purpose. In its comments at sentencing the district court did find that the killing was

      1
       We note that Weasel Bear probably could have been charged with and
convicted of first degree murder since 18 U.S.C. § 1111 defines murder in the first
degree to include any murder committed in the perpetration of any burglary or
robbery.



                                          5
premeditated and that Weasel Bear could have been charged with and convicted of
first degree murder absent the plea agreement. Weasel Bear is not entitled to prevail
on this argument, however, because the cross reference applies to his case even in the
absence of premeditation. One who commits a murder as defined by 18 U.S.C. §
1111 during the course of a federal robbery is to be sentenced under the first degree
murder guideline. See U.S.S.G. § 2B3.1(c)(1). The statute defines murder to include
not only premeditated killings, but also both second degree murder committed
without premeditation and any killing with malice aforethought in the course of a
robbery. See 18 U.S.C. § 1111(a). Weasel Bear pled guilty to murder in the second
degree in the course of a federal robbery, and we conclude that the circumstances of
his crime meet the requirements of the cross reference. He was therefore properly
sentenced under the first degree murder guideline.

       Weasel Bear further argues that the application of the cross reference
undermined the purpose of the guideline grouping rules. The sentencing guidelines
generally require that crimes which involve substantially the same harm to a single
victim and which are part of the same act or transaction be grouped together for
purposes of sentencing. U.S.S.G. § 3D1.2. Under the grouping rules the most serious
charge, that is the one with the highest offense level, provides the base offense level
for the group, and related charges within the group are taken into account through
upward adjustments. U.S.S.G. §§ 3D1.3, 3D1.4. Weasel Bear argues that in his case
the most serious charge is second degree murder rather than robbery and that the
court erred by using robbery as the base charge and then applying the cross reference.

        Weasel Bear's grouping argument is without merit because the sentencing
guidelines specifically exclude the cross reference in § 2B3.1(c)(1) from the operation
of the grouping rules. See U.S.S.G. § 3D1.2. Not only do killing and robbery not
inflict substantially the same harm on a victim, but § 2B3.1(c)(1) accounts for both
offenses committed by Weasel Bear. While the application of the cross reference to
first degree murder appears to Weasel Bear to be contrary to the general grouping

                                          6
principle in § 3D1.2, the fact that the Sentencing Commission has expressly excluded
§ 2B3.1(c)(1) from the grouping rules is conclusive. See Shea, 211 F.3d 673-74
(rejecting argument that robbery and murder offenses should be grouped under §
3D1.3 and applying first degree murder guideline under § 2B3.1(c)(1)).

       Weasel Bear finally argues that the district court erred by sentencing him to
more than the statutory maximum of 15 years for robbery. The court's judgment and
commitment order indicates that Weasel Bear was sentenced to "55 years (660
months) on each of Counts I and II, to be served concurrently." The government
concedes that the district court's written judgment is contrary to law, but argues that
its oral pronouncement of a 55 year sentence reflects the total intended time to be
served. Nevertheless, the court's oral statement does not differentiate between the
counts or indicate in any way that its sentence on the robbery count was within the
statutory maximum of 15 years. We therefore reverse and remand for resentencing
on that count.

       For these reasons, the judgment of the district court is affirmed in respect to the
murder count, but reversed in respect to the robbery count. We accordingly remand
for resentencing on the robbery count.
                       ______________________________




                                            7
