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United States v. Chin

United States Court of Appeals, Eighth Circuit

March 6, 2017

United States of America Plaintiff- Appellee
v.
Velnita Jolette Hairy Chin Defendant-Appellant

          Submitted: October 17, 2016

         Appeal from United States District Court for the District of South Dakota - Aberdeen

          Before LOKEN, SMITH, and COLLOTON, Circuit Judges.

          PER CURIAM.

         Velnita Hairy Chin, a member of the Standing Rock Sioux Tribe and resident of the Tribe's reservation, pleaded guilty to one count of child abuse, in violation of 18 U.S.C. § 1153(a) and S.D. Codified Laws § 26-10-1. The United States Probation Office recommended in Hairy Chin's presentence investigation report (PSR) that she receive a total offense level of six and a criminal history category II, providing her with a sentencing range of one to seven months' imprisonment. Hairy Chin thereafter objected to the PSR's recommended two-level increase for the victim's bodily injury pursuant to U.S.S.G. § 2A2.3(b)(1)(A).

         At the sentencing hearing, the government requested an upward departure from the suggested sentencing range recommended in the PSR in light of (1) the extreme conduct precipitating the charge, (2) the dismissed and uncharged conduct, and (3) Hairy Chin's understated criminal history. The district court, [1] after reviewing the circumstances of Hairy Chin's case, granted the government's request. The court assigned Hairy Chin a total offense level of 12 and a category VI criminal history, resulting in a Guidelines range of 30 to 37 months' imprisonment. Notably, the district court sentenced her to 37 months' imprisonment, which was the high end of the applicable Guidelines range. In doing so, the court did not explicitly rule on Hairy Chin's objection to the PSR's recommended two-level increase for the victim's bodily injury. Hairy Chin appeals her sentence, asserting that the district court erred by failing to rule on her objection. She also argues that the district court abused its discretion by imposing an unreasonable sentence. We disagree and affirm the judgment of the district court.

         I. Background

         On the evening of June 23, 2015, the Bureau of Indian Affairs (BIA) received a complaint about unsupervised children playing outside Hairy Chin's home. When the BIA officer arrived at the residence, he discovered seven unattended children under the age of 12, including a crying infant strapped into a car seat. In the basement, the officer found Hairy Chin unconscious and apparently inebriated. After identifying Hairy Chin as the responsible adult, the officer arrested her for child neglect. Emergency medical technicians arrived and transported the infant to the hospital because of his inconsolable crying. When asked about the child, Hairy Chin admitted to dropping the baby the previous day but asserted that the child was fine. At the hospital, the infant was diagnosed with abrasions on his legs from the extensive time in the car seat, bruising on his right leg and right buttock, diaper rash, air in his lungs from continual crying, and an ear infection. Child Protection Services (CPS) removed all seven children from the residence and placed them in alternative homes.

         Hairy Chin has a lengthy criminal history. Her state and federal convictions include theft, damage to property, and child endangerment. In addition, Hairy Chin has accumulated more than 40 convictions in the Standing Rock Tribal Court. These convictions, although not counted in her PSR criminal history, include multiple counts of disorderly conduct, eight counts of child neglect, driving while under the influence, possession of drugs, criminal contempt, and aggravated assault. In 2012, Hairy Chin pleaded guilty to federal child-abuse charges. The facts of the 2012 incident mirror the current case remarkably. Hairy Chin brought her four-month-old daughter to the hospital because of a seizure. Medical professionals determined that the infant suffered from several head injuries and a severe infection. The multiple head injuries were at different stages of healing, indicating a pattern of being dropped or mishandled. Hairy Chin served one year of imprisonment as a result. The present offense occurred just six months after she completed supervised release. Despite her criminal record, CPS placed four of Hairy Chin's grandchildren in her care-all under the age of five. She was also the primary caregiver for three of her own minor children.

         At sentencing, the government introduced testimony from the BIA officer sent to Hairy Chin's home and photographic evidence of the injuries sustained by the infant confined in the car seat. The CPS worker in charge of the four grandchildren also took the stand. The CPS worker admitted that she failed to perform a background check on Hairy Chin and failed to perform a home inspection before placing the four grandchildren in her care. In response to this testimony, the district court interjected, "If this is the way that the child protection agency is being run, children are at great risk [at the Standing Rock Sioux Reservation]." After hearing arguments from defense counsel, the district court discussed Hairy Chin's criminal history at length:

And so this is an outrageous history of one crime after another and, more importantly, one crime after another of abusing children, including a conviction in this Court.
***
Clearly, an upward departure is ...

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