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United States v. Azure

March 4, 2010

UNITED STATES OF AMERICA, APPELLEE,
v.
TAMARA AZURE, ALSO KNOWN AS TAMARA WIND, APPELLANT.



Appeal from the United States District Court for the District of South Dakota.

The opinion of the court was delivered by: Melloy, Circuit Judge.

Submitted: October 21, 2009

Before MELLOY, SMITH, and SHEPHERD, Circuit Judges.

On remand from a prior appeal,*fn1 the district court sentenced Tamara Azure ("Wind") to 180 months of imprisonment on two counts of assault with a dangerous weapon in violation of 18 U.S.C. §§ 1153 and 113(a)(3). In doing so, the district court departed upwardly based on an under-representative criminal history. The court also made an express factual finding that Wind committed an execution-style murder on a different occasion, as alleged in a dismissed count. The court reached its overall sentence by imposing consecutive sentences on the two counts.

Wind appeals, challenging the district court's methodology for determining a criminal-history departure. In addition, she challenges the factual finding regarding murder. Finally, she argues that the district court failed to properly apply the United States Sentencing Guidelines in imposing consecutive sentences and that her overall sentence is unreasonable. We affirm.

I. Background

We set forth the facts of Wind's case in detail in our prior opinion. See Azure, 536 F.3d at 925--29. Neither party presented new evidence during the post-remand sentencing hearing. Additional facts material to the present appeal include the district court's analysis and actions on remand as well as testimony and evidence regarding the murder as presented at the initial sentencing hearing.

The parties developed evidence during more than fifteen hours of testimony at the initial sentencing hearing. The evidence showed that Wind entered her home with Rick Pickner when Pickner was heavily intoxicated. Wind had been seen arguing with Pickner the night before. A friend of Pickner's who had arrived at the home with Pickner and Wind stated that Wind was agitated when she and Pickner entered her home and that she slammed the door to the home, excluding the friend.

Approximately thirty minutes later, Wind's children discovered Pickner dead on a bed with two knife cuts on his head and a deep, fatal stab wound to his heart. Wind was on the floor with several knife wounds on her left arm and on the left side of her back. Several of Wind's wounds appeared serious, and one punctured her lung. A knife with a broken blade was present. Subsequent tests showed only Wind's blood on the knife. Tests also showed that Pickner had a blood-alcohol level of 0.296.

Wind asserts that Pickner attacked her and she acted out of self-defense. The government attempted to disprove this assertion by showing that Wind had stabbed herself in order to fabricate a self-defense scenario. For example, the government noted an absence of defensive wounds and an absence of evidence showing a struggle. The government argued that if Pickner had stabbed Wind first, he would have been the last person stabbed, and therefore, his blood rather than Wind's would have been on the knife.

The government also attempted to show that crime-scene evidence proved, regardless of any possible earlier aggression, Pickner had been defenseless when Wind stabbed him. In this regard, a crime-scene expert explained several inferences based upon blood patterns on and around Pickner's body. Primarily, the expert explained that blood patterns showed Pickner received his fatal stab wounds at a time when he was lying down or when standing defenseless at the foot of the bed, immediately before being forced down onto the bed by the stabbing. The expert noted that Pickner did not have blood traveling downward from his wounds, as would be expected if he was standing or attacking Wind when he was stabbed. Also, although Pickner had a fatal stab wound to the heart, and although Wind had several serious stab wounds, the soles of Pickner's feet had no blood on them. Further, the expert explained in detail how the blood patterns on the bedcover where authorities discovered Pickner's body were consistent with Wind stabbing Pickner while straddling his prone body. Specifically, the expert explained how the two bodies positioned on the bed would have caused depressions on the mattress and bedcovers causing blood to pool in certain places and not in others.

An expert for Wind largely conceded that these interpretations of the crime scene were correct, noting that the blood patterns were consistent with Wind having stabbed Pickner while he was lying on the bed or standing motionless at the foot of the bed. Based on this evidence, the district court found that, even if Pickner had attacked Wind and caused her stab wounds, Wind subsequently executed Pickner when he was unable to defend himself. Given this finding, the district court held the government carried its burden of disproving the asserted justification of self-defense.

The district court also reviewed Wind's criminal history based on undisputed statements in the presentence investigation report ("PSR") and testimony from the initial sentencing hearing. The court assigned hypothetical criminal-history points for the dismissed murder count and for other conduct not counted in the formal criminal-history computation due to age or the absence of criminal convictions. Through this exercise, the court assigned hypothetical criminal-history points sufficient to place Wind in the highest criminal-history category, Category VI. In our discussion below, we detail the evidence and admissions the court relied upon in assigning hypothetical criminal-history points.

As an alternative means of explaining its criminal-history departure, the court produced a private log describing its own experience in sentencing. The court referenced several defendants it previously had sentenced and explained why the court viewed Wind as meriting a Category VI criminal history. Wind objected to the court's use of the private log because ...


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