                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-1634
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                Darshan Featherman

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

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

                            Submitted: March 11, 2019
                              Filed: June 21, 2019
                                 [Unpublished]
                                 ____________

Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
                          ____________

PER CURIAM.

      Darshan Featherman (“Darshan”) pled guilty to one count of felony child abuse
and neglect in violation of 18 U.S.C. § 1153 and S.D. Codified Laws (SDCL) § 26-10-
1. The district court1 sentenced Darshan to 120 months of imprisonment. On appeal,
Darshan argues the sentence was substantively unreasonable. We disagree and affirm.

                                      I. Background

       I.W.C. and J.W.C., two and three years old, respectively, each weighed
approximately thirteen pounds when they were discovered by Oglala Sioux Tribe
Department of Public Safety (“OST DPS”) law enforcement officers. While
responding to an unrelated call at the residence of Roberta Featherman (“Roberta”),
OST DPS found the two siblings in a severely emaciated state. I.W.C. was extremely
weak and could hold her head up only for a few moments. J.W.C. had a bed sore that
was necrotic and all the tissue had worn away, exposing the bone. The doctor who
treated the children described their condition as the worst case of starvation he had
seen, likening it to the condition of concentration camp prisoners during World War
II, and suggested they were just days from death.

      The children’s mother had given custody of I.W.C. to her sister, Darshan, and
custody of J.W.C. to her mother, Roberta. Darshan was unable to care for I.W.C. due
to substance abuse problems, and therefore she often left I.W.C. in Roberta’s care.
Roberta and Darshan withheld food from I.W.C. and J.W.C. for roughly three months.

      Seven co-defendants, including Darshan, were charged and indicted with two
counts of assault resulting in serious bodily injury in violation of 18 U.S.C.
§§ 113(a)(6) and 1153 and two counts of felony child abuse and neglect in violation
of 18 U.S.C. § 1153 and SDCL § 26-10-1. Pursuant to a plea agreement, Darshan
pled guilty to one count of felony child abuse and neglect and the other counts were
dismissed. As part of the factual basis for her guilty plea, Darshan stated that while



      1
       The Honorable Jeffrey L. Viken, Chief Judge, United States District Court for
the District of South Dakota.

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I.W.C. was in her custody, she “withheld necessary nourishment from I.W.C. nearly
resulting in her starving to death.”

       The district court observed the United States Sentencing Commission
Guidelines (“Guidelines” or “U.S.S.G.”) have no expressly promulgated guideline for
felony child abuse and neglect. Because the district court also found no sufficiently
analogous guideline, it relied on the 18 U.S.C. § 3553(a) factors as instructed by
U.S.S.G. § 2X5.1 when determining Darshan’s sentence. The court found instructive
the nature and extent of the harm to I.W.C. and the need for a just punishment for the
crime. The district court imposed a sentence of 10 years of imprisonment, five years
less than the statutory maximum. Darshan appeals her sentence.

                                   II. Discussion

        Darshan argues her sentence is substantively unreasonable. “When reviewing
a sentence for its substantive reasonableness, we apply an abuse-of-discretion
standard.” United States v. Hairy Chin, 850 F.3d 398, 403 (8th Cir. 2017). This
standard is “narrow and deferential.” United States v. Feemster, 572 F.3d 455, 464
(8th Cir. 2009) (en banc). “A district court abuses its discretion when it (1) fails to
consider a relevant factor that should have received significant weight; (2) gives
significant weight to an improper or irrelevant factor; or (3) considers only the
appropriate factors but in weighing those factors commits a clear error of judgment.”
Id. at 461.

       We find no abuse of discretion here. The district court reviewed the presentence
report, victim impact statements, Darshan’s allocution letter, and the sentencing
memorandum. The court also listened to the arguments of counsel. The district court
then properly considered the circumstances of the case pursuant to the § 3553(a)
factors. Noting this “horrific crime” was “about as close to a homicide of two
children as you can get without a death occurring,” the court emphasized the need for

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the sentence to reflect the seriousness of the offense. The district court’s imposition
of a 10-year sentence — five years less than the statutory maximum — was
substantively reasonable. For the reasons expressed below, we reject Darshan’s
specific arguments to the contrary.

      We first address Darshan’s argument the court abused its discretion when
considering the § 3553(a)(6) factor of avoiding unwarranted sentencing disparities.
To support her argument, Darshan cites two child abuse cases where the victim died
and the perpetrator received a 10-year sentence: United States v. Shangreaux, No.
5:15-CR-50136 (D. S.D. May 18, 2017) and United States v. Poitra, No. 5:11-CR-
50133 (D. S.D. Jan. 3, 2013). Darshan argues her case is not comparable because her
neglect of I.W.C. did not result in the child’s death.

       While Shangreaux and Poitra differ from Darshan’s case in that the abuse
caused the death of a child in those cases, we do not believe this difference justifies
finding an abuse of discretion. The facts here are similarly extreme: I.W.C. was on
the brink of death, and the evidence shows she would likely have died within days if
she had not been discovered by the OST DPS. Due to the severe nature of the abuse
and the close proximity of I.W.C. to death, the district court did not abuse its
discretion by issuing a comparable sentence to those in Shangreaux and Poitra.

       Darshan also argues her sentence creates an unwarranted disparity with a
similarly situated co-defendant initially charged with the same crime as Darshan, but
who received a punishment of pretrial diversion. We reject this argument for two
reasons. First, we are not convinced Darshan and the co-defendant are “similarly
situated.” Unlike Darshan, the co-defendant was not a custodian of the child and was
just eighteen years old. Second, “[w]hen a single defendant asserts on appeal that a
similarly situated co-conspirator was sentenced differently, and both sentences are
within the range of reasonableness, there is no principled basis for an appellate court
to say which defendant received the ‘appropriate’ sentence.” United States v. Fry, 792

                                         -4-
F.3d 884, 893 (8th Cir. 2015). On the record before us, we cannot say Darshan’s
sentence is unreasonable simply because of disparity with the co-defendant’s pretrial
diversion.

       Lastly, Darshan argues her sentence is substantively unreasonable because if
she had assaulted the child in addition to neglecting the child there would have been
an applicable Guidelines range of 41 to 51 months (based on a total offense level of
22). Darshan contends such an upward variance from the Guidelines would not be
supported even if this “worse” conduct was involved in her offense. Thus, Darshan
argues a 10-year sentence in her case, when her conduct did not involve an assault,
must be unreasonable. This argument is also without merit. The Supreme Court made
clear in Gall v. United States that the Guidelines serve as a “starting point” for
sentencing and are not the “only consideration.” 552 U.S. 38, 49 (2007). The same
factors that make the 10-year sentence reasonable under § 3553(a) without the
Guidelines would also make the sentence reasonable with the Guidelines.
Additionally, the Guidelines themselves allow for an upward departure where
significant injury resulted and was either “intentionally inflicted” or, as here,
“knowingly risked.” See U.S.S.G. § 5K2.2. The court was within its discretion to
enter a 10-year sentence considering the severity of the neglect and the harm caused
to the child.

                                 III. Conclusion

      For the reasons set forth herein, we affirm.
                       ______________________________




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