                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
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                                  No. 05-1143
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United States of America,                *
                                         *
            Appellee,                    *
                                         *
      v.                                 *      Appeal from the United States
                                         *      District Court for the District of
Jonathan Wayne Larrabee,                 *      South Dakota.
                                         *
             Appellant.                  *



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                          Submitted: November 14, 2005
                              Filed: February 3, 2006
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Before MURPHY, McMILLIAN1 and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.


      John Wayne Larrabee pled guilty to second degree murder of Sylvan George
Beautiful Bald Eagle (“Bald Eagle”) within Indian country in violation of 18 U.S.C.




      1
       The Honorable Theodore McMillian died on January 18, 2006. This opinion
is being filed by the remaining judges of the panel pursuant to 8th Cir. Rule 47E.
§§ 1111 and 1153. The district court2 sentenced Larrabee to 363 months’
imprisonment followed by five years’ supervised release and ordered Larrabee to pay
restitution in the amount of $5,119.14. Larrabee argues on appeal that his sentence
is unreasonable. For the reasons discussed below, we affirm.


I. BACKGROUND


      Larrabee and his half-brother and co-defendant, Revis Allen Hill, were two of
the four members of a group known as the “Hill Boys.” The Hill Boys had a
reputation for assaulting citizens of Wakpala, South Dakota, on the Standing Rock
Sioux Indian Reservation. Bald Eagle was among those in Wakpala who signed a
community petition to banish the Hill Boys from the Reservation. Larrabee was upset
that Bald Eagle signed the petition.


        Larrabee and Hill began drinking on the evening of February 16, 2004, and
continued into the early morning hours. Sometime during the early morning of
February 17, they went to the home of Donovan Guy Sam in Wakpala. Bald Eagle,
age 52, was seated inside the house. Larrabee confronted Bald Eagle about the
petition and pushed Bald Eagle’s head. Bald Eagle told Larrabee, “I don’t want to
fight; I’m too old to fight.” Then, while Bald Eagle still was seated, Larrabee hit him
in the head with a wood log. Sam heard a “loud pop” and observed Bald Eagle go
into what he believed was a seizure. Hill restrained Larrabee from striking Bald
Eagle again. Hill and Sam attempted to stop Bald Eagle’s bleeding, and Hill moved
Bald Eagle to the bedroom. Larrabee, Hill and Sam then continued to drink in the
living area. Sam feared that the other two would turn on him. Without provocation,
Hill hit Sam in the face, and Larrabee kicked Sam in the ribs and kneed him in the

      2
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.

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nose. Then Sam indicated that he was going to find help, but Larrabee and Hill
prevented him from leaving the house. Finally, Larrabee cut Sam on the neck with
a knife, causing Sam to black out.


       Sometime after Larrabee and Hill had departed from Sam’s house on the
morning of February 17, Pat Yellow stopped at the house and knocked on the door.
After receiving no reply, Yellow entered the house and found Bald Eagle and Sam
surrounded by blood and blood-soaked towels and Bald Eagle unconscious. Yellow
called the police and an ambulance, which took Bald Eagle and Sam to the hospital.
Sam was discharged from the hospital after receiving stitches. Bald Eagle never
regained consciousness and died on February 19 from the head injury.


       Meanwhile, after Larrabee and Hill left Sam’s house on the morning of
February 17, they obtained a ride from their aunt, Valerie Hill, to a casino. On the
way, Larrabee and Hill described what they had done at Sam’s house and laughed
about it. At the casino, Larrabee and Hill saw their mother, Rose Jordan, who
informed them that Bald Eagle and Sam had been taken to the hospital and that
Larrabee and Hill were wanted for questioning. When Valerie Hill indicated that the
men should surrender themselves, Larrabee and Hill laughed at her and convinced her
to drive them approximately 300 miles to Fort Totten, North Dakota. Larrabee and
Hill were arrested in Fort Totten on February 20.


       Using the version of the sentencing guidelines in effect at the time Larrabee
committed the offense, see U.S.S.G. § 1B1.11(b)(1), the United States Probation
Office calculated a total offense level of 30, taking into account a base offense level
of 33 for violation of 18 U.S.C. § 1111, see U.S.S.G. § 2A1.2 (2003), and a
three-level downward adjustment for acceptance of responsibility, see U.S.S.G. §
3E1.1 (2003). Larrabee’s criminal history placed him in criminal history category V.


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The corresponding guidelines range was 151 to 188 months’ imprisonment. During
Larrabee’s post-Blakely, pre-Booker sentencing, the district court found that Larrabee
obstructed justice and stated that, if the sentencing guidelines were applicable, the
total offense level would be 32 with a corresponding range of 188 to 235 months.
The district court then noted that the guidelines were unconstitutional and, after
consideration of the relevant factors, sentenced Larrabee to 363 months’
imprisonment.


II. DISCUSSION


       We review the reasonableness of the sentence imposed for abuse of discretion.
United States v. Haack, 403 F.3d 997, 1003 (8th Cir.), cert. denied, 126 S. Ct. 276
(2005). A sentence may be unreasonable if the district court failed to consider a
relevant factor that should have received significant weight, gave significant weight
to an improper or irrelevant factor, or considered only appropriate factors but
committed a clear error of judgment by imposing a sentence that lies outside the
limited range of choice dictated by the facts. Id. at 1004. The relevant factors are
those identified by Congress in 18 U.S.C. § 3553(a). See United States v. Booker,
125 S. Ct. 738, 764-66 (2005). Just as “[a]n extraordinary reduction must be
supported by extraordinary circumstances,” United States v. Dalton, 404 F.3d 1029,
1033 (8th Cir. 2005) (analyzing a downward departure of 75 percent), so must an
extraordinary upward variance be supported by extraordinary circumstances. See
United States v. Johnson, 427 F.3d 423, 426-27 (7th Cir. 2005) (“Sentences varying
from the guidelines range . . . are reasonable so long as the judge offers appropriate
justification under the factors specified in 18 U.S.C. § 3553(a). How compelling that
justification must be is proportional to the extent of the difference between the
advisory range and the sentence imposed.”) (citing United States v. Dean, 414 F.3d
725, 729 (7th Cir. 2005)).



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       We consider the upward variance in this case of 54 percent from the top of the
advisory guidelines range to be significant. However, the district court’s stated
justification for the sentence convinces us that the district court did not exceed the
permissible bounds of its discretion and, therefore, the sentence is reasonable.
Although the district court did not explicitly list the § 3553(a) factors, the record
reflects that the district court took into account the relevant § 3553(a) factors and
adequately explained why it chose the sentence of 363 months. See United States v.
Dieken, 432 F.3d 906, 909 (8th Cir. 2006) (“[W]e do not require a district court to
categorically rehearse each of the section 3553(a) factors on the record when it
imposes a sentence as long as it is clear that they were considered.”).


       First, the district court considered the sentencing guidelines range, see §
3553(a)(4), when it calculated the sentencing guidelines offense level and criminal
history category and determined the corresponding sentencing guidelines range.
Next, the district court considered “the nature and circumstances of the offense and
the history and characteristics of the defendant.” § 3553(a)(1). The court commented
that Bald Eagle was not looking for a fight and had no opportunity to defend himself.
The court also noted that Larrabee intended to hit Bald Eagle very hard and knew the
injury was serious. Moreover, Larrabee failed to assist Bald Eagle in any way,
choosing instead to continue drinking, to assault Sam and to prevent him from getting
help, and eventually to go to a casino and to flee to North Dakota to avoid authorities.


        The district court continued to discuss Larrabee’s history and characteristics
as it recounted in detail Larrabee’s extensive criminal history commencing in 1990.
In calculating a criminal history category of V, the district court included convictions
for assault with a dangerous weapon, domestic violence-simple assault, petty theft,
theft and two convictions for simple assault. The court also added two points because
the murder of Bald Eagle was committed less than two years after Larrabee’s release
from custody for another sentence. In arriving at the ultimate sentence, the district

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court considered additional criminal conduct described in the Presentence
Investigation Report that did not contribute to Larrabee’s criminal history category
for purposes of calculating the guidelines range. This conduct included convictions
in the Standing Rock Sioux Tribal Court for aggravated assault, kidnapping and
simple assault; convictions for indecent exposure, petty theft, reckless driving,
disorderly conduct, false impersonation to a law enforcement officer, driving under
the influence, simple assault and reckless driving; and guilty pleas to possession of
alcohol by a minor. The district court noted that based on his numerous past acts of
violence, the murder of Bald Eagle was not out of character for Larrabee.


       The record also reflects that the district court took into account the need for the
sentence imposed “to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense.” § 3553(a)(2)(A). The court
expressed concern about the level of violence and of alcohol and drug abuse on
Native American reservations. The court stated that Larrabee had not benefitted from
his previous federal sentence of 63 months’ custody followed by supervised release
for assault with a dangerous weapon or his attendance at the state training school, the
Flandreau Indian School, or a treatment center for chemical dependency.
Immediately before imposing sentence, the court stated, “I do think that the defendant
has a long record of violence and that he needs to be confined for a long period of
time to protect the public. It may not be sufficient sentence in the eyes of the victim’s
family, probably isn’t.” Thus, it is clear that the court also considered the need for
the sentence imposed “to protect the public from further crimes of the defendant.”
§ 3553(a)(2)(C). Finally, the district court considered the need “to provide restitution
to any victims of the offense,” § 3553(a)(7), and accordingly ordered Larrabee to pay
restitution of $5,119.14.


       We find that the district court properly “considered and weighed the § 3553(a)
factors in addition to the recommended guidelines range and stated its reasons for

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choosing the particular sentence.” United States v. Hadash, 408 F.3d 1080, 1084 (8th
Cir. 2005). The reasons were appropriate and sufficient to justify the significant
upward variance in this case. Therefore, the district court did not abuse its discretion
in sentencing Larrabee to 363 months’ imprisonment.


       In assessing the reasonableness of Larrabee’s sentence, we also find persuasive
the amendments to the sentencing guidelines which became effective on November
1, 2004, subsequent to the date of Larrabee’s offense. These amendments to the
applicable guideline, § 2A1.2, demonstrate that the sentence of 363 months does not
lie outside the “limited range of choice dictated by the facts of the case.” United
States v. Hawk Wing, No. 05-2263, slip op. at 14 (8th Cir. Jan. 6, 2006) (quoting
Haack, 403 F.3d at 1004). We recognize that “retrospective application of the
Guidelines implicates the ex post facto clause.” United States v. Bell, 991 F.2d 1445,
1447 (8th Cir. 1993); see also U.S.S.G. § 1B1.11(b)(1). Here we do not apply the
amended guidelines, but reference them because they are instructive as to the range
of reasonableness. See Johnson, 427 F.3d at 427 (“Viewing the current version of
[the guidelines] as one benchmark to gauge the reasonableness of [the defendant’s]
sentence, the sentence [the defendant] received would fall within the advisory
guidelines range instead of substantially above it.”) (citations omitted).


       In order to address both new and longstanding proportionality concerns, §
2A1.2 was amended to increase the base offense level for second degree murder from
33 to 38. See U.S.S.G. app. C, amend. 663 (effective Nov. 1, 2004). A base offense
level of 38 with criminal history category V corresponds to a range of 360 months to
life imprisonment. Even taking into account the adjustments for acceptance of
responsibility and obstruction of justice, a total offense level of 37 and criminal
history category V results in a sentencing range of 324 to 405 months. Had Larrabee
committed the crime in November of 2004, a sentence of 363 months would have
been well within the applicable guidelines range and, therefore, presumptively

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reasonable. See United States v. Tobacco, 428 F.3d 1148, 1151 (8th Cir. 2005)
(“When a defendant’s sentence is within the guidelines range it is presumptively
reasonable.”).


       In addition, the 2004 amendments added application note 1 to § 2A1.2, which
states that an upward departure for extreme conduct may be warranted “[i]f the
defendant’s conduct was exceptionally heinous, cruel, brutal, or degrading to the
victim.” U.S.S.G. § 2A1.2, cmt. n.1 (2004). “Examples of extreme conduct include
torture of a victim, gratuitous infliction of injury, or prolonging of pain or
humiliation.” U.S.S.G. § 5K2.8 (2004). Had the 2004 amendments applied to this
case, an upward departure from level 37 may have been warranted based on
Larrabee’s gratuitous infliction of injury by brutally striking Bald Eagle on the head
with a log without provocation and after Bald Eagle told Larrabee that he was too old
to fight. An upward departure also may have been justified by Larrabee’s heinous
conduct of not only failing to get help for Bald Eagle but also of actively preventing
Sam from doing so, and then assaulting Sam and cutting his neck with a knife. As the
district court noted, this case shows Larrabee to be “a very cold-blooded individual.”


III. CONCLUSION


       We conclude that Larrabee’s sentence is reasonable and affirm the judgment
of the district court.


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