United States of America v. Theo Summers Buffalo Bulltail

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THEO SUMMERS BUFFALO
BULLTAIL,
Defendant - Appellant.
No. 13-30367
D.C. No. 1:13-cr-00032-DWM
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted December 9, 2014**
Before: WALLACE, LEAVY, and BYBEE, Circuit Judges.
Theo Summers Buffalo Bulltail appeals from the 120-month sentence
imposed following his jury-trial conviction for assault on a federal officer, in
FILED
DEC 16 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 3 --

violation of 18 U.S.C. § 111(a)(1) and (b). We have jurisdiction under 28 U.S.C.
§ 1291, and we vacate and remand for resentencing.
Bulltail contends that the district court abused its discretion by imposing a
sentence 83 months above the high end of the advisory sentencing Guidelines
range and twice as long as the sentence recommended by the government. He
argues that the district court improperly focused on general deterrence aimed at the
Crow Nation rather than conducting an individualized sentencing, and that the
district court’s statements demonstrate that he was given a harsher sentence
because he is a Crow Indian.
Although sentencing judges are afforded broad discretion to consider any
information concerning the background, character, and conduct of a defendant in
imposing a sentence, see Pepper v. United States, 131 S. Ct. 1229, 1240 (2011), a
defendant’s race or ethnicity may not be considered. See U.S.S.G. § 5H1.10;
United States v. Borrero-Isaza, 887 F.2d 1349, 1352-56 (9th Cir. 1989) (per
curiam) (imposing a stricter sentence on the basis of national origin violated
defendant’s due process rights). Even the appearance of impropriety requires a
remand for resentencing. See Borrero-Isaza, 887 F.2d at 1355. Here, the district
court’s remarks at sentencing suggest that Bulltail may have received a
significantly higher sentence than he would have otherwise received because he is
13-30367 2

-- 2 of 3 --

a Crow Indian and the district court wished to use him as an example to the Crow
Nation. We do not review this sentence for reasonableness. Therefore, we vacate
Bulltail’s sentence and remand for resentencing.
VACATED and REMANDED.
13-30367 3

-- 3 of 3 --