Appeal from the United States District Court for the District of Minnesota.
The opinion of the court was delivered by: Loken, Circuit Judge.
Before LOKEN, BEAM, and GRUENDER, Circuit Judges.
On Easter Sunday evening, fourteen-year-old Justin Timbear May (Timbear) was stabbed to death outside a home on the Red Lake Indian Reservation in northern Minnesota. A short time later, two other boys, FJW and CJH, were stabbed outside a nearby home. After a four-day trial, a jury convicted Patricia Brown of second-degree murder for the stabbing of Timbear, and of assault with a dangerous weapon for the stabbing of FJW, in Indian country. See 18 U.S.C. §§ 113(a)(3), 1111, 1153.
The jury acquitted Brown of assaulting CJH. The district court*fn1 imposed concurrent sentences of thirty years for the murder and ten years for the assault with a dangerous weapon. Brown appeals, arguing the court erred in imposing mandatory minimum sentences under 18 U.S.C. § 3559(f) because age is an element of the offense that must be found by the jury, and in denying her motions to suppress evidence and to sever counts of the indictment for trial. We affirm.
"Elements of a crime must be charged in an indictment and proved to a jury beyond a reasonable doubt. Sentencing factors, on the other hand, can be proved to a judge at sentencing by a preponderance of the evidence." United States v. O'Brien, 130 S. Ct. 2169, 2174 (2010) (citations omitted). The district court concluded that the victim age provisions of 18 U.S.C. § 3559(f) are sentencing factors, not elements of the various offenses to which they apply. The court found at sentencing that Timbear was fourteen and that FJW was seventeen on the night they were stabbed and imposed concurrent sentences of thirty and ten years in prison, the minimum sentences mandated by § 3559(f)(1) and (3) for a defendant "who is convicted of a Federal offense that is a crime of violence against the person of an individual who has not attained the age of 18 years."
On appeal, Brown argues that victim age is an element of the murder and assault offenses; therefore, the jury had to find the victims' ages beyond a reasonable doubt. She cites no authority directly supporting this contention or construing § 3559(f). The ages of the boys were alleged in the indictment and were confirmed by the uncontroverted testimony of many trial witnesses. Brown did not object to the lack of jury findings of the victims' ages. Therefore, our review of this issue "is limited to a search for plain error." United States v. Frazier, 280 F.3d 835, 853-54 (8th Cir.), cert. denied, 537 U.S. 911 (2002).
In one respect, the Constitution limits the power of Congress to enact sentencing factors that are not elements of a crime: "judge-found sentencing factors cannot increase the maximum sentence a defendant might otherwise receive based purely on the facts found by the jury." O'Brien, 130 S. Ct. at 2175, citing Apprendi v. New Jersey, 530 U.S. 466, 481 (2000). But Brown's mandatory thirty-year murder sentence did not violate this principle because the maximum sentence for second-degree murder is life in prison. See 18 U.S.C. § 1111(b); United States v. Waupoose, 627 F. Supp. 2d 930, 937 (E.D. Wis. 2008). The rule in Apprendi does not apply to statutes that increase a mandatory minimum sentence. Harris v. United States, 536 U.S. 545, 568 (2002). Relying on the separate opinions of Justices Stevens and Thomas in O'Brien, 130 S. Ct. at 2181-84, Brown argues that we should nonetheless apply the principles of Apprendi because "Harris and McMillan [v. Pennsylvania, 477 U.S. 79 (1986),] are not long for Sixth Amendment sentencing jurisprudence." We have repeatedly refused to act on this speculative contention; only the Supreme Court may overrule its controlling decisions. See, e.g., United States v. Turner, 603 F.3d 468, 471 (8th Cir.), cert. denied, 131 S. Ct. 820 (2010).
Outside Apprendi's constitutional constraint, whether a fact is an element of the offense or a sentencing factor is a question for Congress. When Congress does not explicitly resolve the issue, "courts look to the provisions and the framework of the statute to determine whether a fact is an element or a sentencing factor." O'Brien, 130 S. Ct. at 2175. Section 3559(f) is part of Chapter 227, the chapter of the federal Criminal Code titled "Sentences." Section 3559 is titled "Sentencing classification of offenses." Section 3559(f) establishes mandatory minimum sentences for defendants who have been "convicted" of committing a broad array of violent federal crimes against victims under the age of eighteen. Both structurally and literally, the statute makes the victim's age a sentencing factor, not an element of the crime.
"Federal laws usually list all offense elements in a single sentence and separate the sentencing factors into subsections." Harris, 536 U.S. at 552, quoting Castillo v. United States, 530 U.S. 120, 125 (2000). Section 3559(f) does not fall on either side of that dichotomy. Rather, it is in an entirely different chapter of the criminal code devoted to sentencing, and it only applies to a person who has been "convicted" of one of the many substantive offenses encompassed by its qualifying term, "crime of violence." As the district court reasoned, "There is no separate crime in the code books that provide[s] for murder of an individual who has not attained the age of 18. . . . [Section 3559(f)] must be referring to some crime that's in existence, and so that lends weight to the argument that this is intended to be a sentencing provision." We agree and therefore conclude that the district court did not commit plain error in imposing the minimum thirty-year sentence for second degree murder of a child under the age of eighteen mandated by 18 U.S.C. § 3559(f)(1).*fn2
II. The Suppression Issue
On the night in question, Sergeant Kendall Kingbird of the Red Lake Police Department was called to a home in the North Barton area for a reported stabbing. He found two young men, FJW and CJH, with knife wounds to their hands and arms. FJW, the more severely injured, told Officer Joshua Blackweasel that "Trish Brown" (a nickname for Patricia Brown) was the one who stabbed him and she was driving a blue Chevy Blazer. With the situation under control, Sgt. Kingbird resumed his prior assignment of responding to a possible suicide risk at the nearby home of Yvette Lussier. Arriving there, Kingbird saw a woman by the door holding an illegal bottle of liquor, who ran as his squad car pulled up. Kingbird caught the woman, who identified herself as Patricia Brown. Kingbird ran a warrant check and arrested Brown on an unrelated tribal warrant. Officer Blackweasel arrived and took Brown to the jail. Her Chevy Blazer remained in the Lussier driveway.
Sgt. Kingbird then responded to an unrelated call, returning shortly thereafter to the Lussier home to investigate the Blazer because it was reportedly involved in the earlier stabbings. Peering through the windows with his flashlight, Kingbird saw a knife in the driver-side armrest and a pair of brass knuckles on the passenger-side floor. He opened the doors and photographed these items without disturbing them. Police Chief Leonard Red Cloud then arrived at the Lussier residence, shortly after responding to the local hospital, where Timbear had died from a stab wound to the heart. At Red Cloud's ...