                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-3606
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                               Lori Ann Wisecarver

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

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

                           Submitted: October 15, 2018
                            Filed: December 20, 2018
                                  ____________

Before SHEPHERD, KELLY, and STRAS, Circuit Judges.
                           ____________

SHEPHERD, Circuit Judge.

      Lori Ann Wisecarver pled guilty to second-degree murder in violation of 18
U.S.C. §§ 1111(a) and 1153. The district court1 granted the government’s request for
an upward departure or an upward variance, sentencing Wisecarver to 480 months


      1
       The Honorable Jeffrey L. Viken, Chief Judge, United States District Court for
the District of South Dakota.
imprisonment. She appeals, alleging her sentence is substantively unreasonable.
Having jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we affirm.

        In 2014, Wisecarver and her husband received custody of J.L., then about two
years old, based on a distant family relationship. J.L. and his siblings had been
removed from their mother’s custody due to her drug abuse. In the months that
followed, Wisecarver physically abused J.L., motivated largely by frustration over
toilet-training issues. Wisecarver’s physical abuse of J.L. culminated on February 24,
2015 when an ambulance brought the boy to the Pine Ridge Indian Health Services
Hospital. J.L. was pronounced dead shortly after arrival. The boy’s autopsy revealed
that he had been abused for some time; he was covered in old and new injuries,
including bruises, burn-like injuries to his face, and injuries to his genitals. He died
from multiple blunt trauma injury, including catastrophic injuries to the head and
abdomen. When interviewed about J.L.’s death, Wisecarver initially denied killing
the child, claiming he had fallen due to a seizure. The subsequent investigation
contradicted this claim. Several individuals, including J.L.’s pediatrician, denied that
the child had seizures, and witnesses familiar with the family reported seeing
Wisecarver hit J.L.’s head against a concrete floor, duct tape the child to a toilet, rub
the child’s face in urine, and put the child in a washing machine. In September 2015,
the government charged Wisecarver and her husband with first-degree murder and
several counts of child abuse. To avoid a mandatory life sentence, Wisecarver pled
guilty to second-degree murder and signed a statement admitting to repeated physical
abuse of J.L. that resulted in his death.

      Wisecarver’s presentence investigation report (PSR) generated a United States
Sentencing Guidelines range of 210-262 months imprisonment due, in part, to
Wisecarver’s lack of criminal history. At sentencing, the government sought an
upward departure or upward variance to 480 months, contending that the PSR’s
calculation of the appropriate Guidelines range failed to consider the “exceptionally
heinous, cruel, brutal, or degrading” nature of the crime and the original dismissed

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charges. United States Sentencing Commission, Guidelines Manual, §§ 2A1.2,
comment. (n.1) (stating “an upward departure may be warranted” in second degree
murder cases involving heinous conduct), 5K2.8 (noting a court may depart upward
to reflect the “unusually heinous” nature of the offense conduct), 5K2.21 (stating a
“court may depart upward to reflect the actual seriousness of the offense based on
conduct . . . dismissed as part of a plea agreement . . . .”). The district court granted
both the upward departure and the upward variance. It cited U.S.S.G. § 5K2.0—the
Guidelines’ policy statement for grounds for departure, including aggravating or
mitigating circumstances—as additional support for its decision. The district court
found that both the Guidelines’ departure provisions and the 18 U.S.C. § 3553(a)
variance factors led the court to impose the same above-guidelines sentence of 40
years imprisonment. Wisecarver now challenges the district court’s upward variance
and upward departure. She contends that her sentence is substantively unreasonable,
arguing it is disparately long compared to the sentences imposed on similar
defendants.

       We review the substantive reasonableness of a sentence using “a deferential
abuse of discretion standard,” considering “the totality of the circumstances,
including the extent of any variance from the Guidelines range.” Gall v. United
States, 552 U.S. 38, 41, 51 (2007). A district court abuses its discretion when it fails
to give significant weight to a relevant factor; “gives significant weight to an
improper or irrelevant factor;” or considers the proper factors but “commits a clear
error of judgment” in weighing them. United States v. Feemster, 572 F.3d 455, 461
(8th Cir. 2009) (en banc) (internal quotation marks omitted). It is “the unusual case
when we reverse a district court sentence—whether within, above, or below the
applicable Guidelines range—as substantively unreasonable.” Id. at 464 (quoting
United States v. Gardellini, 545 F.3d 1089, 1090 (D.C. Cir. 2008)).

       One of the seven § 3553(a) factors requires that the court consider “the need
to avoid unwarranted sentence disparities among defendants with similar records who

                                          -3-
have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). However, it is
not necessarily an abuse of discretion to impose an above-range sentence, including
the statutory maximum, in “extraordinary” cases in which there are “aggravating
circumstances . . . not adequately taken into account by a shorter term of
imprisonment.” United States v. Lovato, 868 F.3d 681, 684 (8th Cir. 2017)
(affirming a sentence that was virtually quadruple the recommended Guidelines range
when the defendant regularly sexually abused a minor over the course of eight and
a half years). When a disparity arises between a defendant’s sentence and the
sentences given in other similar cases, this difference must be weighed against the
other six factors. United States v. Soliz, 857 F.3d 781, 783 (8th Cir. 2017), cert.
denied, 138 S. Ct. 567 (2017). Furthermore, a “district court has wide latitude to
weigh the § 3553(a) factors in each case and assign some factors greater weight than
others in determining an appropriate sentence.” United States v. Bridges, 569 F.3d
374, 379 (8th Cir. 2009).

       Wisecarver argues that her sentence is disproportionately severe compared to
the sentences given in other cases involving the deaths of children. She therefore
contends that outrage, rather than proper balancing of the § 3553(a) factors, primarily
drove the district court’s analysis. However, the district court was explicit in its
reasoning. It emphasized that it “thought about [the sentence] long and hard,” Sent.
Tr. 30, Dist. Ct. Dkt. 157, and stressed that Wisecarver’s case was unusual compared
to other child death cases because J.L.’s autopsy demonstrated that he “sustained
repeated and over a period of time really brutal and heinous and cruel injuries which
finally resulted in the child’s death.” Sent. Tr. 31. The court described its struggle
to find comparable cases involving such severe and sustained child abuse; it stated
it had seen only one other case that “would even come close to being more horrific
than this homicide of an infant.” Sent. Tr. 33. All of the cases cited by Wisecarver
are distinguishable from her own, involving neglect rather than violent abuse, single




                                         -4-
incidents rather than prolonged mistreatment, or multiple abusers rather than one.2
In addition to clearly considering potential sentence disparity, the district court
expressly weighed other statutory considerations justifying the sentence imposed
including the seriousness of the offense, Wisecarver’s need for treatment, the interest
in deterring similar criminal conduct, and the need to protect the public from further
crimes. See 18 U.S.C. § 3553(a)(2). While the district court clearly “assign[ed] . .
. greater weight” to the seriousness of the offense than it did to other factors, under
§ 3553(a), it had “wide latitude” to do so. See United States v. Maxwell, 664 F.3d
240, 247 (8th Cir. 2011) (quoting Bridges, 569 F.3d at 379). Therefore, the court did
not abuse its discretion in granting an upward variance.

       Finally, Wisecarver fails to allege any specific error in the district court’s
application of the Guidelines’ departure provisions. Instead, she broadly contends
that its use of the departure provisions resulted in a substantively unreasonable
sentence. Rather than identifying a sole source for its enhanced sentence, the district
court framed a Guidelines departure based on “heinous” conduct and a variance based
on the § 3553(a) factors as alternative bases for arriving at the same 40-year sentence.
In such instances, if “the district court did not abuse its substantial discretion in
varying upward . . . , any error in alternatively imposing an upward departure [is]
harmless because ‘the district court would have imposed the same sentence absent the
error.’” United States v. Grandon, 714 F.3d 1093, 1098 (8th Cir. 2013) (quoting
United States v. Idriss, 436 F.3d 946, 951 (8th Cir. 2006)). Therefore, because the
district court did not abuse its discretion in varying upward, we necessarily find no
reversible error in the district court’s reference to the departure provisions, and we
need not discuss the district court’s departure analysis.




      2
        Though the government also charged Wisecarver’s husband with J.L.’s death,
it is undisputed that he was away from the home at the time Wisecarver fatally
harmed J.L. and that Wisecarver was the primary abuser of the child.

                                          -5-
      Because the district court did not abuse its discretion in imposing Wisecarver’s
sentence, we affirm.
                       ______________________________




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