ST. LOUIS (CN) - An actor who fired live gunshot rounds into a crowd during a charity event, and then lied to the police about it, was properly convicted, the 8th Circuit ruled.
For a Western-themed charity event in Hill City, S.D., on June 17, 2011, Paul Doering portrayed an outlaw in a shootout.
Though the actors were supposed to shoot blanks, Doering instead fired several live rounds, wounding three spectators and damaging a vehicle.
After hiding the spent shell casings and the remaining ammunition, Doering lied to police that he shot blanks. A week later, Doering admitted that he lied and showed an investigator where he hid the spent casings and ammunition.
A grand jury indicted Doering on July 19, 2011, for unlawful possession of a firearm as a previously convicted felon.
Doering entered into a plea agreement that contained a provision saying Doering would not oppose an upward departure of the sentencing guidelines.
A federal judge sentenced Doering to 90 months in prison and ordered $45,382.88 in restitution.
Rejecting Doering's appeal Wednesday, a three-judge panel with 8th Circuit found that the prison sentence aligns with the defendant's waiver agreement.
"Doering contends that the waiver does not apply because the district court arguably imposed the 90-month sentence based upon considerations outside those included in paragraph G," Judge Steven Colloton wrote for the court. "We conclude, however, that the district court's sentencing decision was based upon the provisions enumerated in paragraph G of the plea agreement and therefore falls within the scope of Doering's waiver. The district court specifically discussed the four guidelines provisions in paragraph G, explained that an upward departure was warranted based on two of those provisions, and accordingly applied a final sentencing range of 87 to 108 months. The district court noted that it would 'reach the same sentence under the federal sentencing statute with an upward variance that [it] would reach using the federal sentencing guidelines with upward departures, because those thought processes take into account all of the factors . . . discussed so far.' The district court then concluded that 'a sentence in the mid range of that guidelines range at 90 months . . . is a fair and just sentence in this case.' Any ambiguity as to whether the district court relied upon an upward departure or an upward variance to reach the 90 month sentence is immaterial, because paragraph G encompasses both possibilities."
The appellate panel did, however, vacate the restitution award and remand the issue back for further consideration.
"Doering and the government agree, however, that restitution may be awarded under the VWPA [Victim and Witness Protection Act] only after the sentencing court considers the defendant's financial resources," Colloton wrote. "Because the District Court relied incorrectly on the MVRA [Mandatory Victims Restitution Act], it had no occasion to address Doering's ability to pay. We therefore vacate the restitution order and remand for further proceedings."
Judges Bobby Shepherd and Jane Kelly concurred.