United States v. Wisecarver, No. 10-2849 (8th Cir. 2011)
Annotate this CaseDefendant fired a rifle shot through the front grill of a government owned pickup truck in the custody of the Bureau of Indian Affairs (BIA) land assessor. After the court vacated his initial conviction of depredation of government property, a second jury found him guilty of the same charge, and the district court sentenced him to 36 months imprisonment, applying a two-level enhancement for obstruction of justice because he perjured himself during his trial testimony. Defendant raised several issues on appeal. The court held that a retrial was entirely consistent with its mandate of its opinion vacating his first conviction; the district court did not abuse its discretion in denying the motion for recusal; defendant suffered no prejudice from the challenged jury instruction and any error in the instruction was harmless; the district court's application of the enhancement was affirmed; and the term of imprisonment was affirmed. The court held, however, that special conditions 1, 2, and 5 were vacated where, because there was a complete lack of explanation for imposition of the condition, the error also substantially affected the fairness, integrity, or public reputation of judicial proceedings. Accordingly, the court affirmed in part and reversed in part.
Court Description: Criminal case - Criminal law and sentencing. For the court's prior opinion in the case See. No. 09-1954 United States v. Wisecarver (8th Cir., March 22, 2010). Retrial did not violate this court's mandate as nothing in the court's prior opinion limited the district court's function with respect to a retrial; district court's comments at defendant's original sentencing did not require recusal; jury instruction on trespass was not erroneous and, even if it was, it did not prejudice defendant in light of the evidence and the other instructions in the case; district court did not err in imposing an enhancement under Guidelines Sec. 3C1.1 for obstruction of justice based on its finding that defendant perjured himself at trial in order to establish a basis for a self-defense instruction; sentence, an upward variance, was not unreasonable, and the court did not err in giving greater weight to the nature and circumstances of the offense than it did to defendant's personal characteristics; three special conditions of supervised release are vacated and remanded to the district court for further individualized assessment and particularized findings.
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