--- F.3d ----, 2012 WL 2401307
*1 Boyd William White Twin
pled guilty to assault with a
dangerous weapon, in violation of
18 U.S.C. § 113(a)(3).
See also 18 U.S.C. § 1153 (establishing jurisdiction over offenses committed by Indians within
Indian country). The
district court FN1 sentenced him to 84 months' imprisonment, followed by three years'
supervised release. On appeal, White Twin challenges his sentence arguing that the district court improperly granted departures that were already adequately taken into consideration by the Guidelines and were not supported by the record. White Twin also objects to the
six months added to his sentence for smiling at
sentencing. Having jurisdiction under
28 U.S.C. § 1291, this court affirms.
********
The district court did not abuse its discretion by increasing White Twin's sentence by six months after he smiled.FN2 The court was uniquely situated to observe his demeanor, and personally charged with reviewing the § 3553(a) factors. District courts have wide discretion in determining a fair and just sentence.See United States v. Gant, 663 F.3d 1023, 1029–30 (8th Cir.2011). A district court may consider a defendant's attitude and demeanor when exercising its sentencing discretion. See United States v. Robinson, 662 F.3d 1028, 1033 (8th Cir.2011). Congress has provided that “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661. The district court based its increase in the sentence not solely on the smile, but a combination of it and other factors. The district court did not abuse its discretion in considering White Twin'ssmile.
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