United States v. Vernon Lee Bad Marriage, Jr.

439 F.3d 534 UNITED STATES of America, Plaintiff-Appellee, v. Vernon Lee BAD MARRIAGE, Jr., Defendant-Appellant. No. 05-30149. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 6, 2005. Filed February 22, 2006. COPYRIGHT MATERIAL OMITTED David F. Ness, Assistant Federal Defender, Federal Defenders of Montana, Great Falls, MT, for the defendant-appellant. Joseph E. Thaggard, Assistant U.S. Attorney, U.S. Attorney's Office, Great Falls, MT, for the plaintiff-appellee. Appeal from the United States District Court for the District of Montana; Sam E. Haddon, District Judge, Presiding. D.C. No. CR-03-00029-SEH. Before: GOULD and BERZON, Circuit Judges, and SCHWARZER, * Senior District Judge. SCHWARZER, Senior District Judge: Vernon Lee Bad Marriage, Jr., (Bad Marriage) appeals his sentence imposed following his guilty plea to a charge of assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 113 (a)(6) and 1153. Finding no error, we affirm. FACTUAL AND PROCEDURAL HISTORY Bad Marriage was indicted in March 2003 on a charge of aggravated sexual assault in violation of 18 U.S.C. §§ 2241 (a)(1) and 1153. Following a plea…

Vernon Lee Bad Marriage, Jr., (Bad Marriage) appeals his sentence imposed following his guilty plea to a charge of assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 113 (a)(6) and 1153. Finding no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Bad Marriage was indicted in March 2003 on a charge of aggravated sexual assault in violation of 18 U.S.C. §§ 2241 (a)(1) and 1153. Following a plea agreement, he was charged in a superseding information with assault resulting in serious bodily injury. He pled guilty to that charge.

The incident giving rise to the charge occurred on January 30, 2003. Bad Marriage was released from tribal jail to attend an Alcoholics Anonymous meeting. Instead, he went to the home of Leeta Old Chief, his girlfriend. After having consensual sex, they drove to visit friends. There an argument ensued between the couple and Bad Marriage began hitting Old Chief. The couple then drove to the rodeo grounds where Bad Marriage severely kicked and beat Old Chief. Bad Marriage and Old Chief then had anal sex. Old Chief initially told FBI agents that she had been raped but later retracted this claim. Once Old Chief told law enforcement officers…

dissenting.

In my view, the district court did not accord the prior panel’s opinion in United States v. Bad Marriage, 392 F.3d 1103 (9th Cir.2004) (Bad Marriage I), the respect it is due. Instead, the district court ignored Bad Marriage I’s legal rulings and analysis of the record, which it was not entitled to do. The majority approves of the district court’s maneuver, perhaps sharing the district court’s discomfort with the analysis and holding of Bad Marriage I. *540 Whether or not that discomfort is understandable, we cannot run an orderly justice system if such end-runs around appellate decisions in the same case are permitted. I therefore respectfully dissent.

In Bad Marriage I, we held that an upward departure pursuant to section 4A1.3 of the United States Sentencing Guidelines was not warranted by the facts’, and struck down Vernon Lee Bad Marriage’s forty-one month sentence. See id. at 1115 . We reasoned, in part, that Bad Marriage’s criminal history did not warrant such a long sentence and that a sentence of that length would not serve the goals of rehabilitating Bad Marriage and protecting the public. See id. at 1114-15 . On remand, the district court correctly…