Split Eighth Circuit En Banc Panel Upholds Indian Country Crime Sentence

Here is the opinion: Sun Bear v. United States CA8 Opinion

The court split 6-5, possibly inspiring Supreme Court review.

Here is an excerpt from the majority:

Marlon Dale Sun Bear pleaded guilty to the second-degree murder of his uncle in Indian country. At sentencing, the district court departed upward three levels based upon Sun Bear’s extensive and violent criminal history, resulting in a sentencing range of 292 to 365 months in prison under the then-mandatory Sentencing Guidelines. The court further ruled that Sun Bear’s prior felony convictions for attempted escape, attempted theft of a vehicle, and attempted burglary of a commercial building were “crimes of violence” under U.S.S.G. § 4B1.2(a), resulting in a career offender enhancement that increased the guidelines range to 360 months to life. The court sentenced Sun Bear as a career offender to 360 months in prison. Sun Bear appealed, arguing that he should not have been sentenced as a career offender because his three prior felonies were not crimes of violence. We affirmed, concluding that he was properly sentenced as a career offender because, although the attempted escape offense was not proved to be a felony, the felony convictions for attempted auto theft and attempted burglary constituted two crimes of violence
warranting the career offender enhancement. United States v. Sun Bear, 307 F.3d 747, 753 (8th Cir. 2002) (Sun Bear I), cert. denied, 539 U.S. 916 (2003).