Appeal from the United States District Court for the District of Montana Richard F. Cebull, Chief District Judge, Presiding D.C. No. 1:10-cr-00034- RFC-1
The opinion of the court was delivered by: Tallman, Circuit Judge:
Argued and Submitted December 7, 2011-Seattle, Washington
Before: M. Margaret McKeown and Richard C. Tallman, Circuit Judges, and Barry T. Moskowitz, District Judge.*fn1
We examine the reasonable foreseeability of criminal conduct arising from the tragic death of a young girl in Indian country in fashioning an appropriate sentence for misprision of felony. Defendant-Appellant Marcia Ann Goodbear ("Goodbear") appeals her sentence of 37 months in custody, three years of supervised release, and $12,763.66 in restitution, imposed following her guilty plea to assault resulting in substantial bodily injury, 18 U.S.C. §§ 1153(a) and 113(a)(7), and misprision of felony, 18 U.S.C. § 4.*fn2 We consider: (1) whether the four-level increase for use of a dangerous weapon under USSG § 2A2.2(b)(2)(B)*fn3 was reasonable; (2) as an issue of first impression, whether use of a minor can be attributed to another for the purposes of applying an enhancement pursuant to USSG § 3B1.4 for a misprision of felony offense and, if so, whether a two-level adjustment under § 3B1.4 for using a minor to assist in avoiding detection of, or apprehension for, the offense was reasonable in this case; and (3) whether Goodbear's 37-month sentence was reasonable. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, vacate the sentence, and remand for resentencing.
On August 28, 2008, Lyrik Goodbear ("Lyrik"), Adrian Goodbear's six- year-old daughter and Goodbear's stepdaughter, was brought to the Indian Health Service Clinic ("IHS") in Lame Deer, on the Northern Cheyenne Indian Reservation in southeastern Montana. Lyrik was unconscious, not breathing, appeared to be brain dead, and had bruises all over her body. Upon examining Lyrik, IHS determined that her injuries were the result of physical abuse. IHS notified the Bureau of Indian Affairs Law Enforcement ("BIA Tribal Police"). Lyrik was flown to Billings, Montana, for further treatment at St. Vincent Medical Center ("St. Vincent's"). Goodbear accompanied Lyrik on the flight.
A doctor at IHS informed the BIA Tribal Police that Lyrik was brought to the reservation emergency room by her father, Adrian Goodbear, and that he had informed the emergency room staff that Lyrik had fallen from a tree. While undergoing medical treatment at St. Vincent's, the medical staff there also determined that Lyrik's injuries did not appear to be the result of accidental trauma.
Lyrik had suffered extensive injuries to her head, back, abdomen, and legs and the staff at St. Vincent's determined that Lyrik did not have brain activity. She was flown to Denver Children's Hospital in Denver, Colorado ("Children's Hospital") for further care. There, medical personnel confirmed that Lyrik suffered from multiple injuries, including a lacerated liver, lacerated spleen, and subdural hematoma. The staff at Children's Hospital also agreed that Lyrik's injuries were caused by non-accidental trauma. On August 30, 2008, Lyrik was pronounced dead after tests confirmed that she still did not have brain activity.
An autopsy was conducted on September 2, 2008. The coroner determined that Lyrik died from blunt force trauma to the head and abdomen consistent with having been violently beaten and kicked. The autopsy further revealed multiple contusions and abrasions on her body's surface, along with a "right acute subdural hematoma."
S.G.*fn4 , Adrian Goodbear's two-year-old daughter and Good-bear's step-daughter, was also injured on August 28, 2008. Goodbear later admitted to authorities that she hit S.G. on the back of the head with an open hand after Adrian Goodbear assaulted Lyrik, but before they had taken Lyrik to the hospital. As a result of Goodbear striking S.G., the child flew forward, hit a wall, fell to the floor, and suffered a swollen bruise above her left eye. A doctor told investigators that after reviewing photographs of S.G.'s injuries, he would have likely testified that the injury to her left eye was "substantial" because of the temporary disfigurement and swelling.
Agents of the Federal Bureau of Investigation ("FBI") and the BIA Tribal Police interviewed Adrian Goodbear, Good-bear, and K.H.*fn5 , Goodbear's teenage son from a previous ...