Submitted: October 15, 2018
from United States District Court for the District of South
Dakota - Aberdeen
SHEPHERD, KELLY, and STRAS, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
St. Pierre pled guilty to aiding and abetting second-degree
murder in violation of 18 U.S.C. §§ 2, 1111, and
1153. Pursuant to a plea agreement, the government
recommended a United States Sentencing Guidelines range of
292-365 months imprisonment. The district court rejected the plea
agreement's recommended sentencing range, adopted a
higher range, and sentenced St. Pierre to 480 months
imprisonment. St. Pierre appeals, contending the government
breached the plea agreement and the district court committed
procedural and substantive error in calculating his sentence.
Having jurisdiction pursuant to 18 U.S.C. § 3742 and 28
U.S.C. § 1291, we conclude the government did not breach
the plea agreement. Therefore, the appeal waiver is
enforceable with respect to the other claims raised here, and
we dismiss the appeal.
a five-year-old girl, lived with her mother, Desarae Makes
Him First, and St. Pierre, her mother's domestic partner,
on the Standing Rock Sioux Indian Reservation. On Wednesday,
October 5, 2016, staff at G.K.I.W.'s elementary school
noticed the child had bruising on her face, including her
cheek and forehead. When asked what happened, G.K.I.W. said
St. Pierre hit her while he was drunk. She began crying when
staff asked if she had been hurt anywhere else. A school
nurse found additional bruises on G.K.I.W.'s collarbone,
and staff alerted the South Dakota Department of Social
Services Child Protection Services (DSS) and the Standing
Rock Sioux Tribe Child Protection Services (SRST-CPS). A DSS
social worker examined G.K.I.W. and found even more bruising
on the child's stomach. Though SRST-CPS said they would
respond to the claim, they did not do so before G.K.I.W.
next day, school officials tried to contact SRST-CPS multiple
times, but SRST-CPS did not return their calls. Eventually,
G.K.I.W.'s school called the Fort Yates Police
Department, but once again, no one responded to the call. The
school officials were particularly concerned because there
would be no school the following day (Friday) or the
following Monday, and they feared for G.K.I.W.'s safety
at home that long without an investigation. Despite these
concerns, G.K.I.W. was allowed to return home.
school resumed the following Tuesday, October 11, G.K.I.W.
was absent. Her sister said she was sick. School officials
again called SRST-CPS and again heard nothing, with the call
going directly to voicemail. They also left a message for
DSS. Finally, G.K.I.W.'s school sent its own school
resource officer (SRO) to conduct a welfare check at
G.K.I.W.'s home. The SRO went to Makes Him First's
address, but Makes Him First refused to let the SRO see
G.K.I.W. She said the child became bruised by fighting with
her sister and that G.K.I.W. was asleep but would be in
school the next day.
around 1:30 the following morning, Makes Him First brought
G.K.I.W. to the hospital. The child was not breathing and was
cold to the touch; bruises covered most of her body,
including large bruises on her chest and thigh. Despite
attempts to resuscitate G.K.I.W., she died shortly
thereafter. Investigators later determined the cause of death
to be a tear in the child's abdomen caused by abuse to
Him First eventually admitted to investigators that she had
abused G.K.I.W. by hitting her with a shoe and punching her.
She initially did not implicate St. Pierre, and St. Pierre
denied abusing the child. However, after being indicted for
the child's death, Makes Him First described how St.
Pierre abused G.K.I.W. in the days leading up to her death.
Makes Him First said that for three nights in a row-Sunday,
Monday, and Tuesday-St. Pierre entered G.K.I.W.'s room
late at night and abused the child. He accused G.K.I.W. of
not sleeping before shining a light in her face and then
physically assaulting her by pulling her hair, pushing her
chest, striking her thigh, and grabbing her neck. G.K.I.W.
found the injuries to her chest particularly painful, as St.
Pierre had already left bruises there by abusing her
throughout the week. Makes Him First admitted that on
Tuesday, she and St. Pierre kept G.K.I.W. home from school
because they feared getting into trouble if school staff
noticed that G.K.I.W. was covered in bruises. She stated the
abuse escalated throughout the week; by Tuesday night, St.
Pierre was picking G.K.I.W. up by the neck and choking her
repeatedly until she blacked out. Makes Him First said she
began crying and begging St. Pierre to stop hurting the
child, but he ignored her. At one point, St. Pierre held
G.K.I.W. by the neck and shook her so severely that when he
put her back down, she could not stand. G.K.I.W.'s speech
then became unintelligible, and she began to behave
strangely. Makes Him First asked to give the child a bath.
St. Pierre poured water onto the child's face, and Makes
Him First demanded they go to the hospital. G.K.I.W. turned
pale, and her breathing shallowed. She began to foam at the
mouth. Makes Him First attempted to assist the child's
breathing while St. Pierre started the car. On the way to the
hospital, St. Pierre told Makes Him First that he would not
go to prison for her child, and she needed to come up with a
lie to explain the child's injuries. Makes Him First
explained she initially lied to investigators out of her fear
of St. Pierre.
investigators interviewed other household members, they heard
repeatedly that St. Pierre had a violent anger problem. In
the days before the murder, one person asked St. Pierre and
Makes Him First about G.K.I.W.'s frequent crying, and the
couple said the child simply woke up that way. Another person
had been told that St. Pierre had once pushed G.K.I.W. into a
wall. On the day G.K.I.W. died, a witness stated St. Pierre
and Makes Him First acted strangely, appearing more nervous
than sad and whispering to one another. In November 2016, the
government indicted St. Pierre as Makes Him First's
Pierre eventually pled guilty to aiding and abetting
second-degree murder. The plea agreement recommended a
sentencing range of 292-365 months imprisonment. The parties
agreed the base offense level was 38 but agreed to a
two-point enhancement for a vulnerable victim pursuant to
United States Sentencing Commission, Guidelines
Manual, § 3A1.1(b) and a three-point reduction for
timely acceptance of responsibility pursuant to USSG §
3E1.1, resulting in a total offense level of 37. They also
agreed that St. Pierre's criminal history category was
IV. St. Pierre waived his right to appeal on most grounds.
The plea agreement expressly stated that its recommendations
were not binding on the district court, and if the district
court rejected its proposals, St. Pierre could not withdraw
his plea. At his change-of-plea hearing, St. Pierre stated he
understood that the court would determine his actual advisory
Guidelines range and that it was not bound by the plea
agreement's recommendation. He further said that he
understood his appellate waiver would cover the majority of
grounds on which he could raise an appeal.
presentence investigation report (PSR) prepared for St.
Pierre's sentencing hearing recommended a sentencing
range of 360 months to life imprisonment. In arriving at a
total offense level of 41, the PSR included an enhancement
for obstruction of justice pursuant to USSG § 3C1.1, to
which St. Pierre objected. The probation officer who wrote
the report filed an amended PSR and addendum in response to
St. Pierre's objections. The addendum defended the
obstruction of justice enhancement by noting Makes Him First
testified that St. Pierre told her to lie about what happened
to G.K.I.W. At the sentencing hearing, the government stated
that it "adopt[ed]" the amended report and addendum
but that it was "not asking the Court to go above"
the stipulated sentencing range. As outlined in the plea
agreement, the government asked the district court to grant
St. Pierre a three-point reduction for timely acceptance of
responsibility and joined in St. Pierre's motion for a
downward departure or variance to reach the plea
agreement's sentencing range.
district court declined to follow the plea agreement's
recommendations. It found that St. Pierre's acceptance of
responsibility was not timely and agreed with the PSR
addendum that an obstruction of justice enhancement was
appropriate. The district court stated that the prolonged and
severe nature of the abuse against G.K.I.W. made this case
unlike any it had seen. It adopted the PSR's recommended
sentencing range and sentenced St. Pierre to 480 months
imprisonment. St. Pierre appeals, contending the government