                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2123
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                      Daniel Hess

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

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

                              Submitted: April 13, 2018
                                Filed: July 19, 2018
                                   [Unpublished]
                                   ____________

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

PER CURIAM.

       Daniel Hess pleaded guilty to assault with intent to commit murder, a violation
of 18 U.S.C. §§ 113(a)(1), 1152, and 2, and assault resulting in serious bodily injury,
a violation of 18 U.S.C. §§ 113(a)(6), 1152, and 2. His advisory sentencing range
under the U.S. Sentencing Guidelines Manual (Guidelines) was 151 to 188 months’
imprisonment. The district court1 varied upward and sentenced Hess to 360 months’
imprisonment. Hess argues that his sentence is substantively unreasonable.

       We review the substantive reasonableness of a sentence under an abuse of
discretion standard, “tak[ing] into account the totality of the circumstances, including
the extent of any variance from the Guidelines range.” Gall v. United States, 552
U.S. 38, 51 (2007). If the district court “decides that an outside-Guidelines sentence
is warranted, [it] must consider the extent of the deviation and ensure that the
justification is sufficiently compelling to support the degree of the variance.” Id. at
50. We may not apply a presumption of unreasonableness to a sentence outside the
Guidelines range, but we may consider the extent of any deviation. Id. at 51. Our
review of the substantive reasonableness of a variance is narrow and deferential, for
we must give “due deference to the district court’s decision that the § 3553(a) factors,
on a whole, justify the extent of the variance.” Id.

      We conclude that the district court’s justification for imposing a 360-month
sentence was sufficiently compelling to support the upward variance. The court’s
decision to vary upward was based largely on the brutality and depravity of Hess’s
relevant conduct, as set forth in the factual basis of his plea agreement.

       According to the plea agreement, Pauline Little lived with her adult son,
Donald Little, Jr., near Porcupine, South Dakota. In early October 2015, Pauline
received more than $100,000 in proceeds from a life insurance policy. Hess and his
wife, Phyllis Lucero, were acquainted with the Littles and knew about the insurance
proceeds. Believing that $5,000 to $10,000 in cash was kept in the Pauline’s home,
Hess, Lucero, and accomplice Seth Hernandez decided to rob them.



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

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       On October 17, 2015, the three donned masks and broke into Pauline’s home.
Hess and Hernandez went to Donald’s downstairs bedroom, where they assaulted
him. Hess strangled Donald until he was unconscious. When Pauline heard Donald
fighting “for dear life,” she left her bedroom and encountered a masked Lucero. The
two women fought, with Lucero eventually overcoming Pauline and dragging her into
a bedroom. Hess, Lucero, and Hernandez went into and out of Pauline’s home, as
they searched for money and things of value. Pauline felt a powerful kick to her right
ribs and heard Hess say, “She’s dead let’s go. Grab that shit, let’s get out of here.”
The three then left in Pauline’s new pickup truck.

      Hess returned to Pauline’s home later that evening. He tied up Pauline and
Donald and poured carpet cleaner on them, believing it would remove any
fingerprints he may have left. Upon regaining consciousness, Donald freed himself
from the duct tape and electrical cord that restrained him and went upstairs, where he
discovered his mother on the couch, badly beaten and bound in duct tape.

       Upon being apprehended, Hess admitted that he intended to break into the
Pauline’s home, assault Pauline and Donald, and steal Pauline’s cash. He also
admitted that he stole and discarded a television and that he had burned his shoes in
an attempt to destroy evidence.

      Pauline and Donald suffered significant head injuries, including brain bleeds,
bruises, and lacerations. Pauline suffered broken ribs and bruising all over her body.
The lacerations on her head required seventeen staples. Donald’s ears, abdomen, and
arms were bruised. He suffered acute subdural hematoma, and his right orbital bone
and right nasal bone were fractured. The district court described photographs of
Pauline and Donald as horrific, with the victims “look[ing] like they should be in a
funeral home.”




                                         -3-
      Donald was diagnosed with anxiety, depression, and post-traumatic stress
disorder after the assault. He drank heavily and eventually sought inpatient alcohol
treatment. Pauline succumbed to cancer approximately a year after the assault.

       Donald testified at sentencing that the beating destroyed his family. He
explained that when he awoke “in the basement tied up, blood all over the place,” his
only concern was for his mother, whom he found “laying there on the couch, face all
cut up, just moaning.” Donald lives with that image of his mother, “bleeding from
her forehead, her shirt ripped. You can see where they kicked her . . . and she
managed to crawl by herself into the living room and on the couch.” Donald testified
that Pauline gave up her will to live after the assault, despite his efforts to take care
of her. The Littles no longer felt safe in their home and eventually moved in with
Pauline’s sister. Donald testified that he regularly sees a psychiatrist to help him deal
with the trauma. He explained that he suffered neck injuries during the assault that
cause his arms and hands to go numb and that he had decided to forego the multiple
surgeries that would be required to address the injuries.

      The nature and the circumstances of the offense weighed heavily in the district
court’s decision to sentence Hess to 360 months’ imprisonment. The court found that
Hess’s conduct was “highly intentional, planned behavior,” not the drug-induced
behavior Hess claimed it to be. The district court described the circumstances of
Hess’s “unmitigated and vicious attack on Mr. Little and his mother” as
“extraordinarily severe” and “tantamount to torture.” The court found Hess’s actions
upon his return to Pauline’s home especially troubling, noting that despite Pauline
and Donald’s “terrible physical condition” and “life threatening injuries[,] . . . they
were bound and [Hess] poured carpet cleaner on them.”

      Hess argues that the district court failed to consider mitigating aspects of his
personal history and characteristics under 18 U.S.C. § 3553(a)(1). Specifically, Hess
claims that the district court failed to consider that he had had a troubled childhood

                                          -4-
that resulted in drug addiction, anger-management issues, and health problems,
including three or four serious head injuries. Hess also argues that the court should
have given weight to the fact that he has raised four biological children and four step-
children, all of whom are living “positive, pro-social lives.” He argues that since his
incarceration and his becoming sober, he has demonstrated good character and that
his convictions were a violent aberration of an otherwise nonviolent history.

       The district court considered those mitigating factors, which were set forth in
Hess’s presentence report, in his letter to the court, in letters written by those who
support him, and in defense counsel’s argument at sentencing. The district court did
not abuse its discretion in deciding that a significant upward variance was required
to address the brutal nature and circumstances of the offense, as well as the need for
the sentence imposed to reflect the seriousness of the offense, to promote respect for
the law, to provide just punishment, and to afford adequate deterrence to criminal
conduct. See United States v. Wisecarver, 644 F.3d 764, 774 (8th Cir. 2011) (“The
district court’s choice to assign relatively greater weight to the nature and
circumstances of the offense than to the mitigating personal characteristics of the
defendant is well within the ‘wide latitude [given] to individual district court judges
in weighing relevant factors.’” (alteration in original) (quoting United States v. Foy,
617 F.3d 1029, 1037 (8th Cir. 2010))).

      The sentence is affirmed.
                      ______________________________




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