                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-1131
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota.
LaVonne Jean Leaf,                      *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: August 21, 2002

                                  Filed: October 1, 2002
                                   ___________

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

RILEY, Circuit Judge.

      LaVonne Jean Leaf (Leaf) pled guilty to one count of voluntary manslaughter,
a violation of 18 U.S.C. §§ 1112 & 1153. In sentencing Leaf, the district court1
departed upward the equivalent of four criminal history categories based on
uncharged criminal conduct. On appeal, Leaf challenges the facts relied upon to
support the departure, the extent of the departure, and the constitutionality of using
uncharged criminal conduct to enhance her sentence. We affirm.

      1
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
I.    BACKGROUND
      On December 27, 2000, Leaf had an argument with her boyfriend, Thomas
Wells (Wells). Later that day, while Wells was walking alongside a road, Leaf ran
over him with her van and killed him. Leaf was charged with second degree murder,
and she entered a plea of guilty to manslaughter. The presentence investigation report
(PSR) assessed two criminal history points, one point for a 1993 drug conviction in
North Dakota and one point for a 2000 DUI conviction in South Dakota. These two
criminal history points placed Leaf in criminal history category II.

       The PSR did not assess points for certain criminal conduct Leaf had committed
in the past. According to the PSR, Leaf had also run over and fatally injured a
previous boyfriend, Brian Zephier, in 1991, but had not been charged. Between 1990
and the day she killed Wells in late 2000, Leaf was arrested eighteen times on the
Standing Rock Sioux Reservation. Six of those arrests resulted in convictions for
crimes such as disorderly conduct, resisting arrest, and drug possession. While she
was detained awaiting sentencing in this case, Leaf also received three reprimands for
aggressive or threatening behavior toward other inmates. The PSR did not suggest
this conduct or any other factor might warrant a departure from the guidelines.

       After disclosure of the PSR, the government filed a sentencing memorandum
notifying Leaf of its intent to seek an upward departure. In its memorandum, the
government alleged that Leaf has a history of using automobiles violently. The
government alleged that: (1) Leaf ran over and killed Zephier in 1991; (2) Leaf
attempted to run over Zephier on a previous occasion before he was fatally struck in
1991; (3) Leaf unsuccessfully attempted to run over Wells a month before his death;
and (4) Leaf attempted to run over and stab a woman named Jacqueline Little Dog
(Little Dog) in 2000. Responding to these allegations, the district court issued a
memorandum stating it would consider departing upward, based on “prior similar
adult criminal conduct in using a motor vehicle as a weapon.”



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        The district court conducted a sentencing hearing that began on October 1,
2001, and continued on parts of three more days in October and December 2001. On
the first day of the hearing, Wells's sister, Beatrice Howard, described a conversation
she had with Wells the week before he died, in which Wells told her that Leaf had
tried to run him over with a van. Steve Makes Him First (Makes Him First) testified
that, in 1991, Leaf told him she killed Zephier by running over him on the road and
then backing over him. When the prosecutor asked Makes Him First if he had ever
been assaulted by Leaf, Makes Him First said he had and explained that Leaf had
used a knife in the assault, and that he suffered cuts on his hand while he tried to take
the knife away from her. Little Dog testified that about two weeks before Zephier's
death, Zephier ran out of an alley, dove over the hood of her car, and jumped inside.
According to Little Dog, Zephier was running away from Leaf, who was driving a
van down the alley and trying to run over him.

       The first day of testimony was not limited to Leaf’s history of violence toward
Wells, Zephier, and Makes Him First. Little Dog testified that Leaf once threatened
her with a four-inch switchblade. When Little Dog took the knife away, Leaf pursued
Little Dog to her house and tried to run over her with a van. Leaf only succeeded in
striking Little Dog’s car. Patricia Eagle Shield (Eagle Shield) testified she once saw
Leaf stab Curtis Red Fox (Red Fox), who was Leaf's husband at the time. Eagle
Shield and her sister watched the assault from behind a parked car. When Leaf
discovered she was being watched, she stabbed Eagle Shield and her sister, too. Both
sisters went to a hospital, where their wounds were treated with stitches.

      On October 29, December 11, and December 21, the district court heard more
testimony about Leaf’s involvement in the death of Zephier. One witness testified
she saw Leaf strike Zephier with a car two weeks before he died. Several other
witnesses testified that both Leaf and Zephier attended a party on the night Zephier
died. None of these witnesses saw Leaf and Zephier fighting. The party's hostess
said Zephier left at about 8:00 p.m., and Leaf did not leave the house at any time

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during the night. Zephier’s body was found approximately one mile from the house
where the party took place.

       The district court relied on this evidence of uncharged conduct in fashioning
Leaf's sentence. Although the court did not find that Leaf killed Zephier, it did find
that Leaf: (1) struck Zephier with a vehicle prior to his death, (2) stabbed Red Fox
with a knife, (3) stabbed Makes Him First "a number of times," and (4) attempted to
strike Little Dog with a vehicle. The district court found that each of the first three
incidents – Leaf's conduct toward Zephier, Red Fox, and Makes Him First – was
serious enough to warrant the imposition of three criminal history points. To these
nine points, the district court added two criminal history points for Leaf's conduct
toward Little Dog. The district court stated it was being "very lenient" in considering
only these four instances, and that Leaf would be "off the chart" if points were
assigned for all of her uncharged criminal conduct.

       Based on these four instances of conduct, the district court departed upward the
equivalent of eleven criminal history points. Adding eleven points to the two points
already listed in the PSR, the district court arrived at criminal history category VI.
The court then used the guidelines sentencing table to determine that Leaf's criminal
history and her offense level of 22 warranted a range of imprisonment from 84-105
months. The district court sentenced Leaf to 94 months imprisonment. The court
noted that a sentence of 94 months imprisonment would also be appropriate if it had
departed upward to criminal history category V.

        On appeal, Leaf challenges the upward departure on three grounds. First, she
argues the district court erred in the factual findings used to support the departure.
Second, she argues the district court assigned too many criminal history points in
determining the extent of its upward departure. Third, she argues the sentence
deprived her of her constitutional rights to due process and trial by jury. We reject
all of these arguments.

                                         -4-
II.    DISCUSSION
       A district court may depart upward from a defendant's guideline range when
"reliable information indicates that the criminal history category does not adequately
reflect the seriousness of the defendant's past criminal conduct or the likelihood that
the defendant will commit other crimes." U.S.S.G. § 4A1.3, p.s. Such "reliable
information" may include "prior similar adult criminal conduct not resulting in a
criminal conviction." U.S.S.G. § 4A1.3(e), p.s.

      A.      Factual Findings
      Leaf claims the district court erred in its findings of fact. During an evidentiary
hearing, which spanned parts of four days and included testimony from fourteen
witnesses, the district court heard evidence of numerous instances of uncharged
criminal conduct from Leaf's past. The district court based its departure on four of
those instances: (1) the vehicular assault on Zephier (before his death); (2) the
vehicular assault on Little Dog; (3) the stabbing of Red Fox; and (4) the stabbing of
Makes Him First. Leaf contests the district court's findings as to these instances,
arguing the evidence could have been construed differently. For example, she
contends the evidence did not rule out the possibility that she accidentally ran into
Zephier, that she intended only to strike Little Dog's vehicle, and that she stabbed Red
Fox and Makes Him First in self defense.

       We review the factual findings used to support an upward departure for clear
error. United States v. Whatley, 133 F.3d 601, 606 (8th Cir. 1998). On the basis of
the sentencing record, it was reasonable for the district court to reject Leaf's
interpretations of the evidence. Our review of the record does not leave us with the
definite and firm conviction that a mistake has been committed. See id. We therefore
accept the court's findings of fact for purposes of evaluating its upward departure.




                                          -5-
       B.    Extent of the Departure
       Leaf also claims the district court erred in its use of criminal history points to
determine the extent of the upward departure. In Leaf's case, the district court
determined that three instances of uncharged conduct each merited three criminal
history points. Under the guidelines, three criminal history points (the maximum
provided for any crime) are assessed when the defendant was previously convicted
and sentenced to prison for more than one year and one month. See U.S.S.G.
§ 4A1.1(a). Leaf claims the district court erred by assessing three criminal history
points for each of the three separate instances of uncharged conduct, thereby
evaluating each instance as if it had resulted in a conviction and sentence of
imprisonment.

       We review a district court's decision to depart upward for abuse of discretion.
United States v. Goings, 200 F.3d 539, 542 (8th Cir. 2000) (citing Koon v. United
States, 518 U.S. 81, 96-100 (1996)). In the past, we have rejected the notion that
district courts must take a mechanistic approach to departures based on criminal
history. See United States v. Levi, 229 F.3d 677, 679 (8th Cir. 2000). We similarly
reject Leaf's suggestion that the district court was limited to assigning two or fewer
points to her instances of uncharged conduct. The four instances the district court
relied on were serious and the tip of an iceberg of violence. In considering the
gravity of these incidents, the district court placed them in their proper context –
Leaf's habitual and alarming use of violence toward others. We respect the district
court's superior feel for the case, and find it did not abuse its discretion in weighing
the seriousness of Leaf's uncharged criminal history or in determining the extent of
its upward departure. See United States v. Lewis, 235 F.3d 394, 396-97 (8th Cir.
2000).

      C.    Constitutional Claims
      Finally, Leaf claims the use of uncharged criminal conduct to enhance her
sentence violated her constitutional rights to due process and a fair trial. We have

                                          -6-
rejected these same arguments in the past, and we also reject them now. United States
v. Galloway, 976 F.2d 414, 422-27 (8th Cir. 1992) (en banc). We note that the
unusually drawn out sentencing proceedings gave Leaf an opportunity to call rebuttal
witnesses and address factual and legal issues which arose for the first time during
the sentencing hearing. We also note that Leaf has not argued in her briefs that the
sentencing procedures violated Rule 32 of the Federal Rules of Criminal Procedure.
See Burns v. United States, 501 U.S. 129, 138-39 (1991).

III.  CONCLUSION
      The district court did not clearly err in its findings of fact about Leaf's
uncharged criminal conduct and did not abuse its discretion in determining the extent
of the upward departure. Nor did the district court's use of uncharged criminal
conduct to support the upward departure violate Leaf's constitutional rights.
Accordingly, we affirm the judgment of the district court.

       A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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