                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 08-2450
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of South Dakota.
John C. Walking Eagle,                 *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: December 8, 2008
                                Filed: January 26, 2009

                                  ___________

Before WOLLMAN, BYE, and RILEY, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

      The district court1 sentenced John C. Walking Eagle (Walking Eagle) to 96
months imprisonment and 3 years supervised release after Walking Eagle pled guilty
to one count of assault with a dangerous weapon. Walking Eagle appeals his
sentence, arguing the district court (1) committed procedural error by departing
upward based on under-representation of Walking Eagle’s criminal history without



      1
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
giving an adequate explanation for the departure; and (2) imposed a substantively
unreasonable sentence. We affirm.

I.     BACKGROUND
       On the evening of April 26, 2007, Walking Eagle went to Rick’s Bar in
McLaughlin, South Dakota, and attempted to sell DVDs to the bar owner, Rick
Hettich (Hettich). Hettich declined, and Walking Eagle left the bar. Throughout the
evening, Walking Eagle repeatedly returned to the bar, attempting to sell DVDs to the
bar patrons to get money for alcohol. Walking Eagle did not purchase any alcohol but
attempted to drink beer from other patrons’ pitchers. At one point, Hettich asked
Walking Eagle to leave because Walking Eagle was becoming a nuisance.

       The last time Walking Eagle went into the bar that night, he got into a
confrontation with two men, and Hettich escorted him outside. Walking Eagle did not
leave, and, instead, began harassing the men from the doorway. The two men, along
with a bartender and other patrons, went outside to confront Walking Eagle, and
Walking Eagle responded by brandishing a four-inch buck knife. One of the patrons
went back inside the bar and said, “[H]e’s going to stab somebody!” Hettich
requested everyone, other than Walking Eagle, to come back inside. When Hettich
went outside to unhook a chain from the door to close the bar, Walking Eagle stabbed
Hettich in the back with the knife.

      Walking Eagle attempted to flee but was restrained by two of the bar patrons.
A McLaughlin police officer arrested Walking Eagle and transported him to a
detention facility in Fort Yates, North Dakota. Authorities noted Walking Eagle was
highly intoxicated at the time of the incident. An ambulance transported Hettich to
a hospital, where the knife was surgically removed from his back.

     On May 23, 2007, a grand jury returned a two-count indictment against
Walking Eagle, charging him with (1) assault with a deadly weapon in violation of 18

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U.S.C. §§ 113(a)(3) and 1153, and (2) assault resulting in serious bodily harm in
violation of 18 U.S.C. §§ 113(a)(6) and 1153. On March 20, 2008, Walking Eagle,
pursuant to a plea agreement, entered a plea of guilty to Count I of the indictment.2

      Walking Eagle’s sentencing hearing took place on June 23, 2008. The
presentence investigation report (PSR) calculated a total offense level of 20 and a
criminal history category of IV. Based upon Walking Eagle’s offense level and
criminal history category, the advisory United States Sentencing Guidelines
(Guidelines or U.S.S.G) range was 51 to 63 months imprisonment. See U.S.S.G. § 5
Sentencing Table.

       The district court determined Walking Eagle’s criminal history category IV
“substantially underrepresent[ed] . . . the seriousness of his criminal history” and
“substantially underrepresent[ed] the likelihood that he will commit other crimes and
other crimes of violence.” Pursuant to U.S.S.G. § 4A1.3, the district court found a
criminal history category of VI would be more appropriate based on Walking Eagle’s
history, and because the highest criminal history category is VI, the district court
“depart[ed] vertically” to an offense level of 21. Based on Walking Eagle’s adjusted
criminal history category of VI and his adjusted offense level of 21, the advisory
Guidelines range was 77 to 96 months imprisonment. The district court sentenced
Walking Eagle to 96 months imprisonment and 3 years supervised release. Walking
Eagle appeals his sentence, arguing the district court (1) committed procedural error
by failing to explain adequately a basis to support the upward departure, and
(2) imposed a substantively unreasonable sentence.




      2
      In exchange for Walking Eagle’s guilty plea, the government agreed to dismiss
Count II of the indictment.

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II.    DISCUSSION
       A.    Upward Departure
       Walking Eagle contends the district court “committed significant procedural
errors by failing to explain the upward departure adequately.” A district court
commits procedural error by “failing to adequately explain the chosen sentence—
including an explanation for any deviation from the Guidelines range.” Gall v. United
States, __ U.S. __, 128 S. Ct. 586, 597 (2007). “A district court’s departure from the
advisory guidelines is reviewed for abuse of discretion.” United States v. Miller, 484
F.3d 968, 970 (8th Cir. 2007) (citing United States v. Mashek, 406 F.3d 1012, 1017
(8th Cir. 2005)). The government, however, suggests we should review Walking
Eagle’s objection on appeal for plain error, because Walking Eagle did not object at
sentencing to the district court’s explanation for its sentence.

       Our court has previously held, when a defendant fails to “object at sentencing
to the adequacy of the district court’s explanation or consideration of [18 U.S.C.]
§ 3553(a),” we must review the objection on appeal for plain error. United States v.
Gray, 533 F.3d 942, 945 (8th Cir. 2008) (citing United States v. Perkins, 526 F.3d
1107, 1111 (8th Cir. 2008)); see also United States v. Vaughn, 519 F.3d 802, 804 (8th
Cir. 2008) (“If a defendant fails to object timely to a procedural sentencing error, the
error is forfeited and may only be reviewed for plain error.” (citations omitted)). The
rationale of reviewing for plain error under these circumstances is that without an
objection at sentencing, “the district court had no opportunity to clarify its comments
or to correct any potential error in the first instance.” United States v. M.R.M., 513
F.3d 866, 870 (8th Cir. 2008), cert. denied, 129 S. Ct. 171 (2008). This reasoning
applies to Walking Eagle’s objection to the adequacy of the district court’s
explanation for the upward departure, which the district court easily could have
addressed upon timely objection. We conclude the district court committed no
procedural error, plain or otherwise, in departing upward.
       “Upward departures under § 4A1.3(a) are applicable if ‘reliable information
indicates [that] the defendant’s criminal history category substantially

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under-represents the seriousness of the defendant’s criminal history or the likelihood
that the defendant will commit other crimes.’” United States v. Mosby, 543 F.3d 438,
441-42 (8th Cir. 2008) (quoting U.S.S.G. § 4A1.3(a)(1)). “When contemplating and
structuring such a departure, the district court should consider both the nature and
extent of a defendant’s criminal history.” United States v. Hacker, 450 F.3d 808, 812
(8th Cir. 2006) (citing United States v. Gonzales-Ortega, 346 F.3d 800, 802 (8th Cir.
2003)). “In deciding the likelihood that a defendant may commit other crimes, a court
may ‘take into account any “evidence of obvious incorrigibility”’ and ‘conclude that
. . . leniency has not been effective.’” United States v. Herr, 202 F.3d 1014, 1016 (8th
Cir. 2000) (quoting United States v. Goings, 200 F.3d 539, 542 (8th Cir. 2000)).

       “To impose an upward departure,” the district court “first must proceed along
the criminal history axis of the sentencing matrix, comparing the defendant’s criminal
history with the criminal histories of other offenders in each higher category.” United
States v. Day, 998 F.2d 622, 625 (8th Cir. 1993) (citations omitted). “This process
does not ‘require a ritualistic exercise in which the sentencing court mechanically
discusses each criminal history category it rejects en route to the category that it
selects.’” United States v. Azure, 536 F.3d 922, 931 (8th Cir. 2008) (quoting Day,
998 F.2d at 625). If the district court reaches Category VI, which is the highest
criminal history category, but determines “the Guidelines range is still inadequate, it
may impose a reasonable sentence above the Category VI range.” Day, 998 F.2d at
625. See U.S.S.G. § 4A1.3(a)(4)(B).

       At the sentencing hearing, the district court recited Walking Eagle’s lengthy
criminal history. The court noted six of Walking Eagle’s seven criminal history points
resulted from assault convictions. The court discussed Walking Eagle’s various tribal
court convictions, for which no criminal history points were assessed. These
convictions included simple assault, multiple assault and batteries, communicating
threats, and assaulting an officer. Next, the court addressed Walking Eagle’s 1991
federal court conviction in North Carolina for assault by striking, and his 1997 federal

                                          -5-
court conviction in North Carolina for assault with a dangerous weapon and assault
resulting in serious bodily injury. In both instances, Walking Eagle violated the terms
of his probation or supervised release. The court outlined Walking Eagle’s 2003-2004
convictions in Sioux Falls, South Dakota, for disorderly conduct, consumption of
alcohol in a public place, domestic violence, and simple assault. The court also noted
Walking Eagle has several children he has never supported, and he has a criminal
record in Montana. At one point, Walking Eagle was ordered to leave the State of
Montana after he assaulted a police officer in Billings.

       The district court related how Walking Eagle had been disciplined while in
prison for “possession of drug paraphernalia, use of drugs, possessing intoxicants,
refusing a Breathalyzer, and assault resulting in serious injury.” The court concluded,
“It would appear . . . the defendant has learned almost nothing from the previous time
that he has spent in custody. I believe that he is very dangerous to the public,
especially when he is drinking alcohol or using drugs, and he does have a history of
illegal substances as well.”

      The district court then explained its rationale for departing upward, stating,

             Now, under the Federal Sentencing Guidelines with a criminal
      history category of [IV] and a total offense level of 20, his range of
      custody is 51 to 63 months. If he had had convictions for various types
      of fraud, he . . . would have wound up with the same criminal history
      category, to say nothing of these assaults, but these assaults tell the Court
      that he is a very dangerous person and has been at this for quite
      sometime.

             And I find that his criminal history of [IV] significantly
      underrepresents—substantially underrepresents, rather, the seriousness
      of his criminal history, and it also substantially underrepresents the
      likelihood that he will commit other crimes and other crimes of violence.




                                          -6-
            I find that his criminal history category would more appropriately
      be a [VI] . . . .

             ....

             . . . The Court is required then, since there is no higher criminal
      history category [than VI], to then depart vertically, and I do that to an
      offense level of 21, which has a range of 77 to 96 months. And I’m
      going to sentence him to 96 months of custody and place him on
      supervised release for 3 years . . . .

        After reviewing the record, we are satisfied the district court considered the
appropriate factors and persuasively gave an adequate explanation for its decision to
impose an upward departure. “Although the district court did not specifically mention
that it had considered each intermediate criminal history category, its findings were
adequate to explain and support the departure in this particular case.” United States
v. Collins, 104 F.3d 143, 145 (8th Cir. 1997). We agree with the district court that
Walking Eagle’s criminal history record indicates Walking Eagle is dangerous to
others with a strong likelihood he will commit future crimes. The district court
committed no procedural error, much less plain error, in increasing Walking Eagle’s
criminal history category from IV to VI and increasing his offense level from 20 to
21.

       B.      18 U.S.C. § 3553(a) Factors
       Walking Eagle next contends the district court committed procedural error in
failing to give adequate consideration to the 18 U.S.C. § 3553(a) sentencing factors.3


      3
        Although Walking Eagle discusses the district court’s alleged failure to
consider adequately the § 3553(a) factors under the substantive reasonableness portion
of his brief, we construe this discussion to be an allegation of procedural error. See
Gall, 128 S. Ct. at 597 (stating procedural error occurs when a district court fails “to
consider the § 3553(a) factors”).

                                          -7-
Walking Eagle claims the district court “erred in not giving adequate consideration to
the history and characteristics of” Walking Eagle, including the sexual and physical
abuse he suffered and witnessed as a child, his alcohol dependence, and his mental
health disorders. For the reasons stated previously, we review Walking Eagle’s
objection for plain error because Walking Eagle did not “object at sentencing to the
adequacy of the district court’s explanation or consideration of [18 U.S.C.]
§ 3553(a).” Gray, 533 F.3d at 945 (citing Perkins, 526 F.3d at 1111).

      We do not require a district court “to provide a mechanical recitation of the
§ 3553(a) factors when determining a sentence. Rather, it simply must be clear from
the record that the district court actually considered the § 3553(a) factors in
determining the sentence.” United States v. Little Hawk, 449 F.3d 837, 840 (8th Cir.
2006) (internal citations omitted).

       At sentencing, Walking Eagle’s counsel discussed Walking Eagle’s diagnoses
of alcohol dependence, antisocial personality disorder, posttraumatic stress disorder,
panic disorder, and major depression, and Walking Eagle’s physical and sexual abuse
as a child. The district court noted, Walking Eagle “has been diagnosed with an
antisocial personality disorder. At three years of age, his maternal grandfather was
giving him moonshine, which shows the type of environment that he grew up in.”
The district court also told Walking Eagle, “Your history of substance abuse indicates
that you would be an excellent candidate for the Bureau of Prisons substance abuse
treatment program.”

      We conclude the district court committed no plain error and was aware of and
gave adequate consideration to Walking Eagle’s history and characteristics pursuant
to 18 U.S.C. § 3553(a). The district court did not procedurally err in sentencing
Walking Eagle.




                                         -8-
      C.      Substantive Reasonableness
      Because we have determined the district court committed no procedural error,
our “sole remaining role is to consider the substantive reasonableness of the sentence
under an abuse-of-discretion standard, one that eliminates from the process of
appellate review the appellate court’s own view of what sentence would have been
appropriate.” United States v. Bueno, 549 F.3d 1176, 1181 (8th Cir. 2008) (citing
Gall, 128 S. Ct. at 597). Walking Eagle claims the district court’s sentence was
greater than necessary to accomplish the goals of sentencing. Our review of the
record satisfies us the district court did not abuse its discretion, and the sentence is not
substantively unreasonable.

III. CONCLUSION
     We affirm Walking Eagle’s sentence and the district court’s judgment.
                   ______________________________




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