                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3210
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota.
Stacy Winters,                          *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: March 17, 2005
                                Filed: August 9, 2005
                                 ___________

Before MURPHY, HEANEY, and SMITH, Circuit Judges.
                          ___________

SMITH, Circuit Judge.

       Stacy Winters pleaded guilty to voluntary manslaughter and use of a firearm
in relation to a crime of violence in violation of 18 U.S.C. §§ 1112, 1153, 924(c).
Under the United States Sentencing Guidelines, Winters was subject to a maximum
sentence of 191 months' imprisonment. The district court1 ruled that the United States
Sentencing Guidelines were not mandatory and sentenced Winters to 240 months'
imprisonment. We affirm.


      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
                                  I. Background
        On January 1, 2003, Winters and his brothers were drinking alcohol and
driving through Pine Ridge Village, a neighborhood on the Pine Ridge Indian
Reservation. Around dusk, Winters encountered Lucien Janis. Winters, known to be
affiliated with the TB gang, and Janis, a member of the Ter. Ter. gang, exchanged
unpleasantries. Winters left and went to Louis "Boy" Winters's home to get a gun.

        Boy gave Winters a Colt .45 semi-automatic pistol and a loaded magazine.
Winters and his brothers continued to drive around Pine Ridge Village consuming
alcohol and eventually drove back to the place where Winters and Janis exchanged
words. Winters and one of his brothers confronted Janis. Janis said, "Give me the gun,
I'll shoot myself," and then Winters shot Janis in the head at close range, killing him
instantly. Winters and his brothers then fled the scene back to Boy's residence.
Winters gave Boy the Colt .45 and told him that Winters was in trouble and needed
to get out of town. Winters was arrested the following day.

       A first indictment charged Winters with second-degree murder and use of a
firearm in the commission of a crime. In a superseding information, the second-
degree murder charge was replaced with a charge of voluntary manslaughter. Winters
pleaded guilty to both charges and the court ordered a presentence investigation
report ("PSI") to be prepared. The PSI noted that while the judges in the District of
South Dakota agreed that Blakely v. Washington, 542 U.S. 296 (2004), rendered the
Guidelines unconstitutional, the Guideline computation was being provided for use
on an advisory basis.

      Under the non-guideline statutory sentence, manslaughter carried a possible
ten-year maximum sentence and the firearm charge carried a mandatory ten-year
sentence to be served consecutively with the manslaughter. Winters faced a non-
guideline statutory maximum of twenty years' imprisonment (240 months). The PSI
indicated that Winters was subject to a range of 41 to 51 months' imprisonment for

                                         -2-
the manslaughter2 and a mandatory 120 months for the firearm charge. Accordingly,
the PSI recommended a Guideline range for Winters between 161 and 171 months.
The district court, however, rejected the recommendation to make a downward
adjustment resulting in a Guideline range between 177 and 191 months.

       The district court, treating the Guidelines as discretionary, sentenced Winters
to 240 months' imprisonment—the statutory maximum. In a statement of reasons, the
court stated:

      In light of Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004),
      the District Court ruled the Guidelines unconstitutional in this case.
      Therefore, the Guidelines are not binding on the Court, but they were
      taken into consideration. The Court also considered the factors set forth
      in 18 U.S.C. § 3553(a) in imposing the sentence in this case.

Winters objected to the district court holding the United States Sentencing Guidelines
unconstitutional and argued that he should be sentenced under the Guidelines. The
district court refused. Winters then filed the instant appeal.

       Prior to the submission of this case, the United States Supreme Court issued its
opinion in United States v. Booker, 125 S. Ct. 738 (2005), extending Blakely to the
federal guidelines, and, thus, foreclosing Winters's argument on appeal. Nonetheless,
because Booker also mandated that appellate courts review sentences for
reasonableness in light of the factors enunciated in 18 U.S.C. § 3553(a), Booker, 125
S. Ct. 764–66 (Breyer, J.), we requested that Winters submit a supplemental brief
addressing the reasonableness of his sentence.



      2
      The PSI gave Winters a three-level downward adjustment for acceptance of
responsibility, otherwise, he would have been subject to a range of between 57 and
71 months' imprisonment for voluntary manslaughter.

                                         -3-
                                   II. Reasonableness
       We start by noting that because the district court did not use the Guidelines in
a mandatory fashion, Winters did not suffer a Booker-styled Sixth Amendment
violation. See Booker, 125 S. Ct. at 750 (Stevens, J.) (explaining that there would be
no Sixth Amendment violation "if the guidelines as currently written could be read
as merely advisory provisions that recommended, rather than required, the selection
of particular sentences in response to differing sets of facts."). Thus, this case comes
to the court in a fashion similar to that of Respondent Fanfan in Booker's companion
case. With respect to Fanfan, the Court stated:

      In respondent Fanfan's case, the District Court held Blakely applicable
      to the Guidelines. It then imposed a sentence that was authorized by the
      jury's verdict--a sentence lower than the sentence authorized by the
      Guidelines as written. Thus, Fanfan's sentence does not violate the Sixth
      Amendment. Nonetheless, the Government (and the defendant should
      he so choose) may seek resentencing under the system set forth in
      today's opinions. Hence we vacate the judgment of the District Court
      and remand the case for further proceedings consistent with this opinion.

United States v. Booker, 125 S. Ct. 738, 769 (2005).

      The Court, however, directed appellate courts:

      to apply ordinary prudential doctrines, determining, for example,
      whether the issue was raised below and whether it fails the "plain-error"
      test [for violations of the Sixth Amendment] . . . [and] in cases not
      involving a Sixth Amendment violation, [to determine] whether
      resentencing is warranted [after] application of the harmless-error
      doctrine.




                                          -4-
Booker, 125 S. Ct. at 769.3 In this case, the district court went through the analytical
sentencing-framework prescribed by Booker. Specifically, the district court consulted
the Guidelines in an advisory fashion and looked to the factors in 18 U.S.C. §
3553(a). Thus, there was no Booker error.

      As such, we review Winters's sentence for reasonableness in light of § 3553(a).
See United States v. Killgo, 397 F.3d 628, 630–31 & n.4 (8th Cir. 2005) (explaining
that part of Booker's remedial command requires appellate courts to review the
sentence for reasonableness). Accordingly, we must review Winters's sentence with
respect to the following factors:

      (1) the nature and circumstances of the offense and the history and
      characteristics of the defendant;
      (2) the need for the sentence imposed--
             (A) to reflect the seriousness of the offense, to promote respect
             for the law, and to provide just punishment for the offense;
             (B) to afford adequate deterrence to criminal conduct;
             (C) to protect the public from further crimes of the defendant; and
             (D) to provide the defendant with needed educational or
             vocational training, medical care, or other correctional treatment
             in the most effective manner;
      (3) the kinds of sentences available;
      (4) the kinds of sentence and the sentencing range established for–
             (A) the applicable category of offense committed by the
             applicable category of defendant as set forth in the guidelines–
                              (i) issued by the Sentencing Commission
                              pursuant to section 994(a)(1) of title 28, United
                              States Code, subject to any amendments made to
                              such guidelines by act of Congress (regardless of


      3
        The Court, however, did not apply either the plain-error test or harmless-error
test to Booker or Fanfan. Presumably, the Court vacated Fanfan's sentence and
remanded the case so that the district court would have the guidance of Booker in
calculating Fanfan's sentence.

                                          -5-
                             whether such amendments have yet to be
                             incorporated by the Sentencing Commission into
                             amendments issued under section 994(p) of title
                             28); and
                             (ii) that, except as provided in section 3742(g),
                             are in effect on the date the defendant is
                             sentenced; or
             (B) in the case of a violation of probation or supervised release,
             the applicable guidelines or policy statements issued by the
             Sentencing Commission pursuant to section 994(a)(3) of title 28,
             United States Code, taking into account any amendments made to
             such guidelines or policy statements by act of Congress
             (regardless of whether such amendments have yet to be
             incorporated by the Sentencing Commission into amendments
             issued under section 994(p) of title 28);
      (5) any pertinent policy statement--
             (A) issued by the Sentencing Commission pursuant to section
             994(a)(2) of title 28, United States Code, subject to any
             amendments made to such policy statement by act of Congress
             (regardless of whether such amendments have yet to be
             incorporated by the Sentencing Commission into amendments
             issued under section 994(p) of title 28); and
             (B) that, except as provided in section 3742(g), is in effect on the
             date the defendant is sentenced.
      (6) the need to avoid unwarranted sentence disparities among defendants
      with similar records who have been found guilty of similar conduct; and
      (7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a).4


      4
       While we are to judge the sentence for reasonableness, district courts are to
impose a reasonable sentence. In crafting the reasonableness standard of review for
appellate courts, the Supreme Court noted that appellate courts are familiar with the
standard as the Federal Sentencing Act has "long required [its] use in important
sentencing circumstances – both on review of departures . . . and on review of
sentences imposed where there was no applicable Guideline." Booker, 125 S. Ct. at

                                         -6-
        In his original appeal, Winters argued that the district court erred in refusing
to grant him an offense-level reduction for acceptance of responsibility. Because §
3353(a)(4), and the mandates of Booker, require courts to consult the Guidelines, an
erroneous application of the Guidelines will be but one factor in applying the
reasonableness standard. We review a district court's denial of an acceptance of
responsibility adjustment under U.S.S.G. § 3E1.1 for clear error. United States v.
Patten, 397 F.3d 1100, 1104–05 (8th Cir. 2005). A district court's factual
determination on whether a defendant has demonstrated acceptance of responsibility
is entitled to great deference and should be reversed only if it is so clearly erroneous
as to be without foundation. United States v. Arellano, 291 F.3d 1032, 1034 (8th Cir.
2002).

     In the plea agreement, the United States agreed to recommend that Winters
demonstrated acceptance of responsibility. In addition, the PSI indicated that Winters

766. Previously, our reasonableness standard for departures was judged in three parts:

      First, as a question of law, the court determines whether the
      circumstances on which the district court relied for departure are
      sufficiently unusual in kind or degree to warrant departure. Second, as
      a question of fact, the court determines whether the circumstances
      justifying departure actually exist. Third, with deference to the district
      court, the court reviews the reasonableness of the degree of departure
      under an abuse of discretion standard.

United States v. Joshua, 40 F.3d 948, 951 (8th Cir. 1994) (citing United States v.
Sweet, 985 F.2d 443, 445 (8th Cir.1993)). With respect to the third factor, we have
explained that it is the district court, not us, that makes this judgment call of
reasonableness. United States v. Sweet, 985 F.2d 443, 445 n.2 (8th Cir. 1993).
Accordingly, we must give "due regard to the district court's superior feel for the
case." Id. (internal quotations omitted).




                                          -7-
satisfied the § 3E1.1 requirements. At the sentencing hearing, the district court
explained that "a plea of guilty is not sufficient to trigger the acceptance of
responsibility under the guidelines," and that after examining the file, Winters would
not be entitled to an acceptance of responsibility reduction. Indeed "[a] defendant
who enters a guilty plea is not entitled to an adjustment under [U.S.S.G. § 3E1.1] as
a matter of right." United States v. Morris, 139 F.3d 582, 584 (8th Cir. 1998)
(brackets in original) (citing U.S.S.G. § 3E1.1, cmt. n.3). The district court, which had
the opportunity to observe Winters's demeanor at sentencing, was within its discretion
to conclude that he had not accepted responsibility for his offense. See id.

       Next we turn to the underlying facts to address the remaining portions of §
3553(a). In this case, Winters, while intoxicated, got into an argument with the
victim. He then left the scene and retrieved a gun that he used to shoot the victim at
close range in the head. Winters then fled the scene, and tried to dispose of the gun.5
The district court characterized Winters as the "trigger man" and the "hit man." In
addition, the court noted that the crime "was a malicious act which was entirely
senseless."

       Although the district court sentenced Winters outside the Guidelines range, we
cannot say that the sentence, when viewed in light of the relevant § 3553(a) factors,
is unreasonable. The facts offer nothing, other than Winters's voluntarily diminished
capacity, to ameliorate the abject brutality of an execution-style slaying of an
unarmed person. The district court aptly described it as malicious and senseless.
Furthermore, Winters has admitted to being prone to violence. A twenty-year
sentence in this case comports with the considerations in § 3553(a)(2) that the
sentence reflect the seriousness of the offense, promote respect for the law, provide

      5
       Winters returned the gun to Boy, who, in turn, gave it to his wife with
instructions to pass it on to a third person, Leon Janis, and get rid of it. Leon gave the
gun to a fourth person who subsequently notified the authorities and allowed them to
recover the weapon.

                                           -8-
just punishment for the offense, afford adequate deterrence to criminal conduct, and
protects the public from further crimes of the defendant.

       Winters relies heavily on the Congressional statement that a Guidelines
sentence is necessary to avoid unwarranted sentencing disparities. See 18 U.S.C. §
3353(a)(6). Winters explains that because he received the maximum statutory
sentence, his sentence will be quite different from other persons with no criminal
history who commit voluntary manslaughter. However, each case must be judged on
its own facts and few cases will present facts like this one. Applying Winters's
argument, that the range of reasonableness is essentially co-extensive with the
Guidelines range, would effectively render the Guidelines mandatory. We have been
directed to review a sentence for reasonableness based on all the factors listed in §
3353(a)(6). The Guidelines range is merely one factor. We cannot isolate possible
sentencing disparity to the exclusion of the all the other § 3553(a) factors.

      For the foregoing reasons, we conclude that Winters's sentence is reasonable
and affirm.

HEANEY, Circuit Judge, dissenting.

       I respectfully dissent. While I agree with the majority’s holding that the district
court did not commit a Booker error, I disagree strongly with the majority’s
affirmance of Winters’s sentence. My reasons are twofold: First, the district court
clearly erred in denying Winters a reduction in his offense level for acceptance of
responsibility. Second, in imposing the maximum sentence for voluntary
manslaughter, the district court failed to fashion a sentence reflective of the § 3553(a)
factors. Instead, at sentencing, the court substituted its own subjective assessment of
what sentence should be imposed for the statutory factors. For these two reasons, I
would remand for resentencing.



                                           -9-
I. The Guidelines Issue

      In my view, the district court clearly erred in failing to apply United States
Sentencing Guidelines section 3E1.1(a), which states that a defendant is entitled to
a reduction in his offense level if he “clearly demonstrates acceptance of
responsibility for his offense.”6 Our court has held that a defendant’s eligibility for
this adjustment can be exhibited by outward manifestations of acceptance of
responsibility. United States v. Wivell, 893 F.2d 156, 158 (8th Cir. 1990).

       Here, Winters met the relevant criteria to establish his acceptance of
responsibility. This fact was recognized by both the government and the pretrial
services officer, who recommended that Winters receive a three-level reduction for
acceptance of responsibility and outlined their reasoning for this recommendation to
the court. The district court ignored these recommendations and the fact that Winters
had given a full account of his actions. Instead, it simply stated, “[t]he Court in
examining this file concludes that in the Court’s discretion, the defendant would not
be entitled to acceptance of responsibility. A plea of guilty is not sufficient to trigger
the acceptance of responsibility under the guidelines.” Sent. Tr. at 3. As a result,
Winters’s guidelines range increased from 41 to 51 months to 57 to 71 months.


      6
       In determining whether a defendant qualifies for this provision, appropriate
considerations include, but are not limited to, the following:

      voluntary withdrawal from criminal conduct, or association with those
      involved in such conduct; voluntary restitution payment made prior to
      a guilty plea; admissions to authorities regarding the offense and related
      conduct; prompt surrender to authorities after committing the offense;
      assisting authorities in the recovery of relevant fruits and
      instrumentalities; and the timeliness of the defendant's conduct in
      manifesting the acceptance of responsibility.

USSG. § 3E1.1, comment. (n.1).

                                          -10-
       I certainly agree with the district court that a simple plea of guilty does not
entitle a defendant to a three-level reduction for acceptance of responsibility, but as
this record makes clear, Winters did much more than that. He cooperated fully with
the government’s investigation. He assisted in the prosecution of another offense.
He notified the government of his intent to plead guilty in a timely fashion. Most
importantly, Winters’s statement at sentencing demonstrates his sincere
acknowledgment of and contrition for his criminal conduct:

      I wanted to make this part of the record of the total regret and remorse
      I have for what has brought me to this courtroom today. If I could turn
      back the hands of time, I would take the knowledge and feelings and
      understanding I have today and believe I would have made better
      choices concerning this matter. Key words here are “would have, should
      have, and could have.” And this causes me to lie awake at night
      constantly contemplating on my actions; has caused me many sleepless
      nights. I am sorry for my past criminal history; I should say the lack of
      criminal history, that I did not react and respond like I did on a normal
      basis. And what has happened, believe it or not, is punishment in itself.
      I am here today to let the Court know I am accepting full responsibility
      for my actions. I would like to take this time to pray that the Court take
      mercy on me and show forgiveness that God has shown me. I hope the
      Court recognizes what happened is a horrible, horrible, horrible mistake
      and unfortunately leave these loved ones as well as for mine. My
      mistake is irreversible. I have no restitution or punishment can make up
      for life here. It is life, although there are people who can give me
      mercy, I want to let them know that I am very sincere about the
      remorsefulness and in fact, my remorsefulness made me a spiritual
      person that will insure I will never commit a crime like this ever again.
      Showing forgiveness will give me a chance to prosper again, therefore
      give me a chance to make up all I can to the victim’s loved ones as well
      as be a productive citizen of the United States.

            Sorry for what I did. . . . Hope you find it in your hearts to
      forgive me, man. I know you guys hate me, man, but . . . I not only hurt



                                         -11-
      you and your family, I hurt my family, too. Forgive me for what I have
      done.

Sent. Tr. 18-19.

       Given Winters’s total cooperation and his “outward manifestations of
acceptance of responsibility,” Wivell, 893 F.2d at 158, he was entitled to a reduction
for acceptance of responsibility. The district court’s failure to adjust his guidelines
range accordingly was clear error.

II. Review of the Sentence in Light of 18 U.S.C. § 3553(a)

       I would also remand for a second reason: the district court imposed an
unreasonable sentence in light of the § 3553(a) factors.7 United States v. Booker, S.
Ct. 738, 767 (2005), mandated that a district court in sentencing must consider not
only the guidelines, but the other § 3553(a) factors. Id. Our task is to review the
district court’s sentence for reasonableness.

     The sentencing transcript reveals that the district court did not mention the §
3553(a) factors during the sentencing hearing.8 The court rather gave the following


      7
        The factors include: the nature and circumstances of the offense and the
history and characteristics of the defendant; the need for the sentence imposed; the
kinds of sentences available; the kinds of sentence and the sentencing range
established for the offense; any pertinent policy statement relevant to the offense. 18
U.S.C. § 3553(a) (citations omitted); see also United States v. Killgo, 397 F.3d 628,
630 (8th Cir. 2005) (noting that following Booker, we review the imposition of
sentences for unreasonableness, “judging it with regard to the factors in 18 U.S.C. §
3553(a)”); United States v. Yahnke, 395 F.3d 823, 824 (8th Cir. 2005) (same).
      8
        In the district court’s written Statement of Reasons, it stated that it “also
considered the factors set forth in 18 U.S.C. § 3553(a) in imposing the sentence in
this case,” but provided no further elucidation of those factors.

                                         -12-
two reasons for imposing the ten-year sentence for the manslaughter conviction, in
addition to the mandatory consecutive ten years for using a gun in committing the
offense: First, the court hypothesized that the defendant would be faced with the
possibility of a lifetime sentence under South Dakota law, and in this case the
defendant should not receive a lesser sentence simply because he was being
prosecuted in federal court rather than state court. This is not a valid § 3553(a)
concern; a state sentence is not available for this federal crime. Federal sentencing
judges may not attempt to equalize federal sentences to their state criminal analogs.
This approach would result in significant national disparity in sentences. Moreover,
there is no evidence in this record, nor are there any publicly available studies or
statistics, indicating that a first offender convicted of manslaughter with a firearm in
South Dakota would serve more than the thirteen to fifteen-year sentence the
defendant would have faced with a guidelines sentence.9 Second, as is clear from the
sentencing transcript, the district judge was upset that the prosecutor accepted a plea
for manslaughter, rather than trying Winters for first- or second-degree murder. At
sentencing, the prosecutor strongly disagreed with the district court’s assessment of
its charging decision:

             Though I have not practiced as long as Your Honor, we fully
      investigated this matter. We conducted dozens of interviews. As far as
      we are concerned, no one knows this case as well as we do. We are
      second guessed, as you often know, following charging decisions
      sometimes for years.

The prosecutor repeatedly reiterated the conviction was for the charge that the
evidence supported. Sent. Tr. 12-14.




      9
       Winters faced a ten-year consecutive sentence for this firearms conviction in
addition to his voluntary manslaughter sentence.

                                         -13-
       In short, there is nothing about Winters or the circumstances of this case to
justify the district court’s dramatic variance from the guidelines. Until this offense,
Winters persevered in spite of the obstacles Pine Ridge presents to its residents.10 He
found himself at the age of twenty-two with no criminal record, a high school
diploma, and a member of his tribe’s spiritual community. His crime was
inexcusable, and resulted in the needless death of a fellow community member. But
Winters himself recognized the gravity of his actions as his allocution ably
demonstrated. It is not the duty nor the province of our sentencing courts to attempt
an ad hoc equalization between perceived state and federal sentencing disparities,
leaving an individual like Winters to suffer the burden of such an exercise. With an
affirmance of his sentence, Winters will serve a sentence double that of fellow
inmates who have committed similar crimes. This sentence is unjustified and
unreasonable.




      10
         Though the deplorable conditions of Pine Ridge Indian Reservation cannot
serve as an excuse for Winters’s actions, it is important to note that the Pine Ridge
Indian Reservation is often considered one of the poorest places in America. Infants
are twice as likely to die from sickness or injury than other infants living across the
United States. The life expectancy for men at Pine Ridge is only 56.5 years, a figure
that rivals that of Central African nations, and is the lowest in the northern
hemisphere, with the exception of Haiti. More than one-third of the homes on Pine
Ridge have no indoor plumbing or electricity, and they often hold several families
living among two to three rooms. Edward B. Gehres III, Note, Visions of the Ghost
Dance: Native American Empowerment and the Neo-Colonial Impulse, 17 J.L. &
POL. 135, 140-41(2001); Pine Ridge Indian Reservation, South Dakota: Community
Mini-Plan, South Dakota State University, Rural Community Planning, Sociology
6 4 0      ( D e c e m b e r        1 6 ,     2 0 0 3 ,      a v a i l a b l e      a t
http://sdrurallife.sdstate.edu/Rural%20Planning%20&%20Development/
Pine%20Ridge.pdf.

                                         -14-
                                   CONCLUSION

       If Winters were to be sentenced pursuant to this dissent, he would serve more
than thirteen years in federal prison. That sentence is adequate to fulfill the §3553(a)
sentencing goals. This district court ignored Winters’s sincere acceptance of
responsibility, and went on to impose a sentence far beyond what the guidelines
called for, providing our court with no justification for its decision. In my view, this
was an error. Accordingly, I would reverse and remand to the district court for
resentencing consistent with this dissent.
                         ______________________________




                                         -15-
