Petition for Writ of Certiorari — Jeriah Scott Budder, Petitioner v. United States

Supreme Court briefDec 5, 2023

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United States v. Budder, 76 F.4th 1007 (2023)

76 F.4th 1007

United States Court of Appeals, Tenth Circuit.

UNITED STATES of America, Plaintiff - Appellee,

Jeriah Scott BUDDER, Defendant - Appellant.

West Headnotes (18)

[1]

[2]

[3]

[3] 96-month sentence was substantively reasonable; and

[4]

Constitutional Law

Penal laws in general

Constitutional Law

definiteness in general

Certainty and

Constitutional Law

Retroactive laws and

decisions; change in law

Retroactive laws and

Constitutional Law

decisions; change in law

Due process bars courts from applying a novel

construction of a criminal statute to conduct that

neither the statute nor any prior judicial decision

has fairly disclosed to be within its scope. U.S.

Const. Amends. 5, 14.

Affirmed.

McHugh, Circuit Judge, filed concurring opinion.

Procedural Posture(s): Appellate Review; Pre-Trial Hearing

Motion; Post-Trial Hearing Motion; Sentencing or Penalty

Phase Motion or Objection.

Judicial branch

Prohibition of the ex post facto application of

judicial decisions under the due process clause

is less extensive than the prohibition of ex post

facto statutes under the ex post facto clause. U.S.

Const. art. 1, § 9, cl. 3; U.S. Const. Amends. 5,

14.

[2] dismissal of state manslaughter charges after McGirt did

not warrant sentence reduction;

[4] district court acted within its discretion in adding nine

months to upper limit of advisory guidelines range.

Constitutional Law

Principle on which the ex post facto clause is

based, the notion that persons have right to fair

warning of that conduct which will give rise

to criminal penalties, is fundamental to concept

of constitutional liberty under the due process

clause. U.S. Const. art. 1, § 9, cl. 3; U.S. Const.

Amends. 5, 14.

Holdings: The Court of Appeals, Hartz, Circuit Judge, held

that:

[1] retroactive application of

McGirt v. Oklahoma, 140

S.Ct. 2452, concerning Indian country for federal criminal

jurisdiction did not violate due process;

Legislative branch

Ex post facto clause is a limitation upon the

powers of the legislature and does not of its own

force apply to the judicial branch of government.

U.S. Const. art. 1, § 9, cl. 3.

No. 22-7027

FILED August 7, 2023

Synopsis

Background: Defendant, an enrolled member of the

Cherokee Nation, was convicted in the United States District

Court for the Eastern District of Oklahoma, David C. Joseph,

J., of voluntary manslaughter for a shooting on the Cherokee

reservation, and was sentenced to 96 months' imprisonment,

after which the District Court, 601 F.Supp.3d 1105, denied his

renewed motion to dismiss indictment. Defendant appealed.

Constitutional Law

[5]

Constitutional Law

Retroactive laws and

decisions; change in law

Touchstone for whether retroactive judicial

interpretation of a criminal statute violates due

APPENDIX A

United States v. Budder, 76 F.4th 1007 (2023)

process is whether the statute, either standing

alone or as construed, made it reasonably clear

at the relevant time that the defendant's conduct

was criminal. U.S. Const. Amends. 5, 14.

[6]

Constitutional Law

Retroactive laws and

decisions; change in law

Under the due process clause, if a judicial

construction of a criminal statute is unexpected

and indefensible by reference to the law which

had been expressed prior to the conduct in issue,

the construction must not be given retroactive

effect. U.S. Const. Amends. 5, 14.

[7]

Criminal Law

[10]

Constitutional Law

Defenses in general

Courts

In general; retroactive or

prospective operation

Retroactive application of Supreme Court

decision in

McGirt v. Oklahoma, 140 S.Ct.

2452, concerning whether land reserved for the

Creek nation was Indian country under the Major

Crimes Act (MCA), did not violate due process

rights of defendant, an enrolled member of the

Cherokee Nation, who shot man on Cherokee

reservation a few months before McGirt, even

though only federal self-defense law and not

allegedly broader Oklahoma self-defense law

Criminal Law

Sentencing

As a general matter, it is not the role of an

appellate court to substitute its judgment for that

of the sentencing court as to the appropriateness

of a particular sentence.

1 Case that cites this headnote

[11]

Criminal Law

Sentencing

In reviewing the substantive reasonableness of a

sentence, the Court of Appeals gives substantial

deference to the district court and will only

overturn a sentence that is arbitrary, capricious,

whimsical, or manifestly unreasonable.

1 Case that cites this headnote

Review De Novo

A due-process challenge to retroactive

application of a judicial interpretation of a

criminal statute presents a question of law, which

the Court of Appeals reviews de novo. U.S.

Const. Amends. 5, 14.

[9]

1 Case that cites this headnote

Constitutional Law

Retroactive laws and

decisions; change in law

Proper concern for whether retroactive judicial

interpretation of a criminal statute violates due

process is with unpredictable shifts in the law,

not the resolution of uncertainty that marks any

evolving legal system. U.S. Const. Amends. 5,

14.

[8]

was available to defendant under McGirt, where

Court of Appeals, relying on Supreme Court

precedent, had come to same conclusion before

McGirt, Supreme Court itself declared in McGirt

that its conclusion was compelled by precedent,

and the Creek nation shared its relevant history in

Oklahoma with the Cherokee nation. U.S. Const.

Amends. 5, 14; 18 U.S.C.A. §§ 1151(a), 1153.

[12]

Indians

Sentencing and punishment

Sentencing and Punishment

Arrests,

charges, or unadjudicated misconduct

Sentencing and Punishment

deprivations

Other

Dismissal of state manslaughter charges arising

from shooting on Indian reservation, following

Supreme Court's decision of

McGirt v.

Oklahoma, 140 S.Ct. 2452, concerning whether

an area of land is Indian country under the

Major Crimes Act (MCA), did not warrant

a reduction in 96-month prison sentence of

defendant, an Indian, for federal conviction for

voluntary manslaughter in Indian country arising

from the same shooting incident. 18 U.S.C.A. §§

1112(a), 1153,

3553(a).

United States v. Budder, 76 F.4th 1007 (2023)

[13]

Homicide

Indians

Sentencing and punishment

A 96-month prison sentence for voluntary

manslaughter in Indian country was

substantively reasonable, despite defendant's

argument that the “facts elicited at trial”

warranted a lesser sentence, where defendant

never told the Court of Appeals which specific

facts elicited at trial warranted a lesser sentence,

and the Court would not conjure up such facts

on his behalf. 18 U.S.C.A. §§ 1112(a), 1153,

3553(a).

[14]

1112(a), 1153,

[17]

3553(a).

Criminal Law

Sentencing

A re-weighing of statutory sentencing factors is

something that the Court of Appeals cannot and

Homicide

Indians

A 96-month prison sentence for voluntary

manslaughter in Indian country was

substantively reasonable, despite argument that

defendant's age of 18 at time of shooting, his

criminal history, his need for education, and

victim's conduct warranted a lesser sentence,

absent any reason to conclude that district court

failed to consider those factors. 18 U.S.C.A. §§

Manslaughter

will not do.

18 U.S.C.A. § 3553(a).

Homicide

Manslaughter

Sentencing and punishment

Sentencing and Punishment

offense-related considerations

Other

A 96-month prison sentence was substantively

reasonable for conviction for voluntary

manslaughter in Indian country, even though

jury stated in answer to a special interrogatory

that it would not have found defendant guilty

had Oklahoma state law of self-defense applied;

jury's response to the interrogatory was irrelevant

since federal law, and not state law, was the

law of the land when the incident occurred. 18

U.S.C.A. §§ 1112(a), 1153,

3553(a).

[18]

Indians

Sentencing and punishment

Sentencing and Punishment

Brutality or

cruelty in commission of offense

District court acted within its discretion in

adding nine months to upper limit of advisory

Sentencing Guidelines range for defendant

who was convicted of voluntary manslaughter

conviction in Indian country, where defendant

fired 12 shots into victim's body including

multiple shots while victim was already lying

on the ground. 18 U.S.C.A. §§ 1112(a), 1153,

3553(a).

[15]

Criminal Law

punishment

Judgment, sentence, and

Court of Appeals presumes, absent any contrary

indication in the record, that a district court

properly considered the pertinent statutory

factors in imposing a sentence.

3553(a).

[16]

Homicide

Indians

18 U.S.C.A. §

Manslaughter

Sentencing and punishment

Sentencing and

Punishment

Determinations based on

multiple factors

*1009 Appeal from the United States District Court

for the Eastern District of Oklahoma (D.C. No. 6:21CR-00099-DCJ-1)

Attorneys and Law Firms

James Castle, Castle & Castle, P.C., Denver, Colorado (André

Bélanger, Manasseh, Gill, Knipe & Belanger, P.L.C., Baton

Rouge, Louisiana, with him on the briefs), for Defendant Appellant.

Linda A. Epperley, Assistant United States Attorney

(Christopher J. Wilson, United States Attorney, with her on

United States v. Budder, 76 F.4th 1007 (2023)

the brief), Office of the United States Attorney, Muskogee,

Oklahoma, for Plaintiff - Appellee.

Before HARTZ, McHUGH, and CARSON, Circuit Judges.

Opinion

HARTZ, Circuit Judge.

Just months after Defendant Jeriah Budder, an enrolled

member of the Cherokee Nation, killed David Jumper, the

Supreme Court made clear in

McGirt v. Oklahoma, –––

U.S. ––––, 140 S. Ct. 2452, 207 L.Ed.2d 985 (2020), that

the land where the shooting occurred was on an Indian

reservation. Under the Major Crimes Act, 18 U.S.C. § 1153,

murder or manslaughter allegedly committed by an Indian in

Indian country (which includes Indian reservations, see 18

U.S.C. § 1151(a)) in Oklahoma must be tried in federal court

rather than state or tribal court. After

McGirt, Defendant

successfully *1010 moved to dismiss state charges that

had been filed against him, and he was instead charged

in the United States District Court for the Eastern District

of Oklahoma, where a jury convicted him of voluntary

manslaughter. Defendant now claims that he was denied

the due process of law guaranteed by the United States

Constitution because the retroactive application of McGirt

to his case stripped him of Oklahoma's law of self-defense,

which he says is broader than the analogous defense permitted

by federal law. Exercising jurisdiction under

28 U.S.C.

§ 1291, we affirm Defendant's conviction and sentence. We

hold that applying

McGirt to Defendant in this case does

not constitute an impermissible retroactive application of a

judicial decision. And we also reject Defendant's argument

that his sentence is substantively unreasonable.

car, Mr. Hanson once again sat in the passenger seat, while

Defendant sat behind Mr. Jumper. Because the trunk was full,

Defendant had his possessions with him in the backseat.

Almost immediately, Mr. Jumper realized to his dismay that

Defendant was loading a magazine in a Glock semiautomatic

pistol. Mr. Jumper stopped the car within 20 yards of

Defendant's father's house and asked Defendant to get out, but

Defendant refused. Mr. Jumper drove about 55 yards farther

along the road before stopping again and repeating his request

that Defendant exit the vehicle. Defendant again refused.

Mr. Jumper then exited the vehicle and opened Defendant's

door. A fight ensued, with Mr. Jumper punching Defendant

six or seven times and trying to wrestle the gun away from

Defendant. Defendant shot Mr. Jumper 12 times, including at

least two shots while Mr. Jumper was lying on the ground.

Mr. Jumper died at the scene.

Defendant departed before the authorities arrived but later that

night voluntarily surrendered outside of his father's house.

He was charged by the State of Oklahoma with first-degree

manslaughter. The charges were dismissed, however, for

lack of subject-matter jurisdiction in the wake of

McGirt

because Defendant is a registered citizen of the Cherokee

Nation and the shooting occurred within the boundaries of

the Cherokee Reservation. A federal grand jury then indicted

Defendant on three charges: (1) first-degree murder in Indian

country, see

18 U.S.C. §§ 1111(a), 1151, and 1153; (2) the

use, carrying, brandishing, and discharge of a firearm during

and in relation to a crime of violence, see

18 U.S.C. §

924(c)(1)(A)(i)–(iii); and (3) causing the death of a person in

the course of a violation of

924(j).

§ 924(c), see

18 U.S.C. §

Defendant moved for dismissal of his federal charges,

I. BACKGROUND

In the evening of April 24, 2020, Dyson Hanson was with

David Jumper and Lewis Thompson in Kenwood, Oklahoma,

when Mr. Hanson received a call from Defendant. Defendant

asked Mr. Hanson to pick him up in Tahlequah, Oklahoma,

where he was living with his father, and drive him to

Kenwood, where he wished to relocate. The three men drove

to Tahlequah; Mr. Jumper was behind the wheel, Mr. Hanson

sat in the passenger seat, and Mr. Thompson sat behind Mr.

Hanson. When they arrived, Mr. Hanson went in to help

Defendant pack his belongings, which included a black trash

bag of clothes, a safe, and a gun case. Upon returning to the

claiming that to apply

McGirt retroactively would violate

his rights under the Due Process Clause of the Fifth

Amendment. The court denied that motion as not yet

ripe but informed the parties that the court would instruct

the jury that if it found Defendant guilty *1011 of

murder or a lesser-included offense, it must also answer

a special interrogatory asking whether it would have

convicted Defendant had Oklahoma's law of self-defense

(as explained in the interrogatory) been available to him.

The jury convicted Defendant of the lesser-included offense

of voluntary manslaughter in Indian country, 18 U.S.C. §§

1112(a) and 1153. But its answer to the special interrogatory

United States v. Budder, 76 F.4th 1007 (2023)

was that it would not have found Defendant guilty had the

state self-defense law (as explained in the interrogatory)

applied.

The district court calculated the United States Sentencing

Guidelines range for Defendant's crime as 70 to 87

months. The government requested an upward variance, and

Defendant requested a downward variance. After stating

that it had reviewed the parties’ sentencing memoranda, the

district court imposed a sentence of 96 months. It explained:

Among other things, in varying

upwards from the advisory guideline

range, the Court considered the nature

and circumstances of the offense,

namely, the number of shots fired into

the body of the victim, Mr. Jumper; the

prior opportunity that the defendant

had to withdraw from the conflict, and

his immediate flight from the scene of

the shooting, as well, of course, as the

need for just punishment, deterrence,

and protection of the public.

R., Vol. III at 608–09.

After sentencing, the court considered Defendant's now

ripe argument that retroactively applying

McGirt violated

Defendant's right to due process. It concluded that McGirt

“brought about an ‘unforeseeable judicial enlargement’ of the

geographical scope of federal Indian Country jurisdiction in

Oklahoma. ... In doing so, the

McGirt decision ‘operated

precisely like an ex post facto law’ with respect to” Defendant.

United States v. Budder, 601 F. Supp. 3d 1105, 1116 (E.D.

Okla. 2022) (brackets omitted) (quoting

Bouie v. City of

Columbia, 378 U.S. 347, 353, 84 S.Ct. 1697, 12 L.Ed.2d

894 (1964)). Despite this statement, the district court (with

evident reluctance) denied Defendant's motion to dismiss the

indictment because “no analogous Tenth Circuit or Supreme

Court precedent” had so held. Id. at 1116–17.

II. DISCUSSION

A. Retroactive Application of McGirt

Defendant argues that applying

McGirt to him in this

case is a “judicial ex post facto” decision that violates his

right to due process. Aplt. Br. at 22 (internal quotation marks

omitted). He contends that at the time he shot Mr. Jumper,

less than three months before

McGirt was decided, he

would have believed that he would be tried for his crime in

state court, where Oklahoma's self-defense law would have

been available to him. Under

McGirt, however, the land

on which he shot Mr. Jumper was Indian country—so, by

virtue of the Major Crimes Act, only federal self-defense

law applied. See

United States v. Toledo, 739 F.3d 562,

564-69 (10th Cir. 2014) (applying federal law of murder,

manslaughter, and self-defense for prosecution under Major

Crimes Act in New Mexico federal court). Defendant says he

had no fair warning that he was committing a crime properly

tried in federal court.

Importantly, Defendant claims prejudice from being tried

in federal court, arguing that he was disadvantaged by the

retroactive application of

McGirt to his case because

Oklahoma's self-defense law is broader than its federal

analogue. On Defendant's (and the district court's) account

of Oklahoma law, “a person is justified in using deadly

force in self-defense if that person reasonably believed that

use of deadly force was necessary to: a) prevent death or

great bodily harm to himself; or *1012 b) to terminate or

prevent the commission of a forcible felony against himself.”

Aplt. Br. at 9 (internal quotation marks omitted; emphasis

added); accord R., Vol. I at 172 (district court's special

interrogatory). 1 In contrast, under federal law, “[a] person

may use force which is intended or likely to cause death or

great bodily harm only if he reasonably believes that force

is necessary to prevent death or great bodily harm to himself

[or] another.” 10th Cir. Criminal Pattern Jury Instruction

1.28 (2021 ed.) (original brackets omitted; emphasis added);

accord R., Vol. I at 160 (Jury Instruction 16). Indeed,

Defendant notes, the jury that convicted him of voluntary

manslaughter at his federal trial answered in the negative a

special interrogatory asking whether it would have convicted

him had Oklahoma's self-defense law, as it was explained

to the jury, governed. Defendant contends that applying

McGirt to his case denied him due process because, in

the words of the district court's postverdict opinion, it “

United States v. Budder, 76 F.4th 1007 (2023)

‘brought about an “unforeseeable judicial enlargement” of the

geographical scope of federal Indian Country jurisdiction in

Oklahoma.’ ” Aplt. Br. at 8 (quoting Budder, 601 F. Supp. 3d

there lurk uncertainties. Even trained lawyers may find it

necessary to consult legal dictionaries, treatises, and judicial

opinions before they may say with any certainty what some

at 1116 (quoting

statutes may compel or forbid.”

Id. (citation and internal

quotation marks omitted). Due process therefore leaves room

for evolution of the law.

Bouie, 378 U.S. at 353, 84 S.Ct. 1697)).

Defendant and the district court begin from the valid premise

that due process requires fair notice that an act is criminal.

But we disagree with Defendant's ultimate conclusion.

[4]

[5] Nevertheless, “due process bars courts from

applying a novel construction of a criminal statute to conduct

that neither the statute nor any prior judicial decision has

fairly disclosed to be within its scope.”

United States v.

Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 137 L.Ed.2d

[1] [2] The Constitution explicitly prohibits the retroactive 432 (1997). “[T]he touchstone is whether the statute, either

application of laws criminalizing conduct that was legal

standing alone or as construed, made it reasonably clear at

when it occurred. See U.S. Const. art. I, § 9, cl. 3 (“No ...

the relevant time that the defendant's conduct was criminal.”

ex post facto Law shall be passed.”). Although “[t]he Ex

Id. at 267, 117 S.Ct. 1219; see

Johnson v. Kindt, 158

Post Facto Clause is a limitation upon the powers of the

F.3d 1060, 1063 (10th Cir. 1998) (“The test for determining

Legislature and does not of its own force apply to the Judicial

whether the retroactive application of a judicial decision

Branch of government,” “the principle on which the Clause

violates due process is essentially one of foreseeability.”).

is based—the notion that persons have a right to fair warning

This court has said that “[u]nforeseeable judicial decisions

of that conduct which will give rise to criminal penalties

include expansion of a statute narrow and precise on its face

—is fundamental to our concept of constitutional liberty.”

beyond those terms; the overruling of precedent; or when

Marks v. United States, 430 U.S. 188, 191, 97 S.Ct.

an in-depth inquiry by a dedicated and educated student of

990, 51 L.Ed.2d 260 (1977) (citation omitted). Thus, the

the relevant law would have revealed nothing to foreshadow

Supreme Court has held that in certain limited circumstances

the controlling court opinion.”

Johnson, 158 F.3d at 1063

the retroactive application of a judicial decision interpreting

(original

brackets,

citations,

and

internal quotation marks

criminal law can violate the Due Process Clause of the Fifth

omitted).

Amendment. See

id. at 192, 97 S.Ct. 990;

United

States v. Muskett, 970 F.3d 1233, 1242 (10th Cir. 2020) (for

[6]

[7] The most recent, and controlling, formulation of

federal courts, “[i]t is the Due Process Clause of the Fifth

the due-process retroactivity test appears in

Rogers v.

Amendment that imposes limitations on ex post facto judicial

Tennessee, 532 U.S. 451, 457, 121 S.Ct. 1693, 149 L.Ed.2d

decisionmaking” (internal quotation marks omitted)). 2

697 (2001): “[I]f a judicial construction of a criminal statute

is unexpected and indefensible by reference to the law

[3] “[T]he prohibition of the ex post facto application of

which had been expressed prior to the conduct in issue, the

judicial decisions” under the Due Process Clause “is less

construction must not be given retroactive effect” (original

extensive than the prohibition of ex post facto statutes”

brackets and internal quotation marks omitted). This approach

provides the necessary breathing room for traditional judicial

under Article I.

Evans v. Ray, 390 F.3d 1247, 1251 (10th

Cir. 2004). Early in the development of the law regarding

decisionmaking. See

id. at 460, 121 S.Ct. 1693 (declining

retroactive judicial interpretations of criminal statutes, the

to “extend[ ] the strictures of the Ex Post Facto Clause to

Supreme Court said merely, “All the Due Process Clause

the context of common law judging”). The proper concern

requires is that the law give sufficient warning *1013

is with “unpredictable shifts in the law,” not “the resolution

that [people] may conduct themselves so as to avoid that

of uncertainty that marks any evolving legal system.” United

States v. Burnom, 27 F.3d 283, 284–85 (7th Cir. 1994).

which is forbidden.”

Rose v. Locke, 423 U.S. 48, 50,

96 S.Ct. 243, 46 L.Ed.2d 185 (1975) (per curiam). This

It is instructive to review the results in some leading cases

standard recognizes that there is necessarily a role for judges

from the Supreme Court and this court. We begin with cases

in defining the precise contours of criminal statutes. As

overturning the retroactive application of a new interpretation

the Court explained, “[I]n most English words and phrases

1. The Governing Law

United States v. Budder, 76 F.4th 1007 (2023)

of a statute. In

Bouie the South Carolina Supreme Court

construed a state statute criminalizing entering premises

where a notice prohibited entry to mean that defendants

could be convicted for remaining on the premises after being

privilege,” in violation of the Due Process Clause.

278.

ordered to leave. See

378 U.S. at 349–50, 84 S.Ct. 1697.

The Supreme Court said that “[t]he interpretation given the

statute by the South Carolina Supreme Court” was “clearly

at variance with the statutory language” and had “not the

process challenges. In

Rose a man was convicted “of

having committed a ‘crime against nature’ ” after violently

slightest support in prior South Carolina decisions.”

Id.

at 356, 84 S.Ct. 1697. Accordingly, it reversed the state

convictions. See

id. at 363, 84 S.Ct. 1697.

This court has overturned a conviction for violation of due

process in a similar context. In

Lopez v. McCotter, 875

F.2d 273, 273–74 (10th Cir. 1989), a bail bondsman *1014

was convicted of several assault-related charges following

his attempt to apprehend in New Mexico a man with an

outstanding arrest warrant from Texas. “From the outset,

[the bondsman] relied on the common-law bail bondsman's

privilege as his principal defense.”

Id. at 274; see also

id. at 276 (“No one disputes that at common law bail

bondsmen had very broad arrest powers.”). But the New

Mexico Court of Appeals “construed the Uniform Criminal

Extradition Act (UCEA), enacted in 1937, to apply to the

acts of [the bondsman],” thereby effectively eliminating “the

common-law authority of bondsmen” and instead requiring

extradition.

Id. at 274–75 (citation omitted). We stated

that “[t]he language of the UCEA could not have conveyed

to [the bondsman] a fair warning that his conduct would

be regarded as criminal.”

Id. at 277. Moreover, the New

Mexico Court of Appeals decision was “the only case we

ha[d] encountered holding that the long-standing UCEA, by

itself, modifies the established rule that a bail bondsman need

not resort to process—particularly extradition—in rearresting

his principal in another state.”

Id. Accordingly, “[n]either

the UCEA itself nor the decisional precedents of other states

could have afforded [the bondsman] a fair warning that his

attempt to recapture [the arrestee] in New Mexico would be

governed by the UCEA, and thus not be privileged conduct

under the common law.”

Id. at 277–78. We therefore held

that “the decision of the New Mexico Court of Appeals was

unforeseeable and retroactively rendered [the bondsman's]

conduct criminal by depriving him of the bail bondsman's

Id. at

On the other hand, courts have often rejected such due-

forcing his female neighbor to engage in cunnilingus.

423

U.S. at 48, 96 S.Ct. 243. The Supreme Court rejected the

man's argument that he lacked fair warning that cunnilingus

was a crime against nature, noting that prior Tennessee

decisions “had expressly rejected a claim that ‘crime against

nature’ did not cover fellatio” and had “repudiat[ed] those

jurisdictions which had taken a narrow restrictive definition

of the offense” of a crime against nature.

Id. at 52,

96 S.Ct. 243 (internal quotation marks omitted). One such

Tennessee decision had also quoted approvingly a Maine

case interpreting a crime-against-nature statute “which the

Tennessee court had ... twice equated with its own” statute.

Id. Notably, the Maine statute “had been applied to

cunnilingus before either Tennessee decision.”

Id. Hence,

“the Tennessee Supreme Court had given sufficiently clear

notice that [the Tennessee statute] would receive the broader

of two plausible interpretations, and would be applied to

[cunnilingus] when such a case arose.”

Id. The Court

could readily distinguish

Bouie because it involved a case

where the defendants had “no reason even to suspect that

conduct clearly outside the scope of the statute as written

[would] be retroactively brought within it by an act of judicial

construction.”

Id. at 53, 96 S.Ct. 243 (internal quotation

marks omitted).

Rogers (also arising in Tennessee) involved the yearand-a-day rule, which “provided that no defendant could

be convicted of murder unless his victim had died by the

defendant's act within a year and a day of the act.”

532

U.S. at 453, 121 S.Ct. 1693. In the defendant's case, the

Tennessee Supreme Court “abolished the rule as it had existed

at common law in Tennessee and applied its decision to [the

defendant] to uphold his conviction.” Id. The United States

Supreme Court rejected the defendant's argument that this

ruling violated *1015 his due-process rights. See

id. at

466–67, 121 S.Ct. 1693. Not only had the year-and-a-day

rule “been legislatively or judicially abolished in the vast

majority of jurisdictions recently to have addressed the issue,”

United States v. Budder, 76 F.4th 1007 (2023)

id. at 463, 121 S.Ct. 1693, but also it “had only the most

tenuous foothold as part of the criminal law of the State

of Tennessee” at the time of the offense,

id. at 464, 121

S.Ct. 1693 (“The rule did not exist as part of Tennessee's

statutory criminal code. And while the Supreme Court of

Tennessee concluded that the rule persisted at common law,

it also pointedly observed that the rule had never once served

as a ground of decision in any prosecution for murder in

the State. Indeed, in all the reported Tennessee cases, the

rule has been mentioned only three times, and each time in

dicta.”). Thus, the decision abolishing the rule “was a routine

exercise of common law decisionmaking,” rather than “a

marked and unpredictable departure from prior precedent.”

Id. at 467, 121 S.Ct. 1693; see also

Muskett, 970

F.3d at 1236, 1243 (defendant “had fair notice that [ 18

U.S.C.] § 924(c)’s elements clause could ultimately be

construed to encompass his commission of assault with a

dangerous weapon”; among other reasons, a Supreme Court

decision handed down “nearly three years before the conduct”

underlying defendant's conviction “provided notice that the

logic of [a previous Tenth Circuit case holding that Colorado

third-degree assault was not categorically a crime of violence]

rested on shaky foundations”); Lustgarden v. Gunter, 966

F.2d 552, 554 (10th Cir. 1992) (Colorado Supreme Court's

interpretation of parole statute was “dictated by the plain

language of [the statute] and was, therefore, foreseeable”).

2. Application to This Case

121 S.Ct. 1693 (internal quotation marks omitted). Not only

had this court, relying on Supreme Court precedents, come

to the same conclusion before

see

McGirt was handed down,

Murphy v. Royal, 875 F.3d 896, 966 (10th Cir. 2017),

aff'd sub nom.

Sharp v. Murphy, ––– U.S. ––––, 140

S. Ct. 2412, 207 L.Ed.2d 1043 (2020) (per curiam);

id.

(Tymkovich, C.J., concurring in denial of rehearing en banc)

(“En banc review is not appropriate when, as here, a panel

opinion faithfully applies Supreme Court precedent. An en

banc court would necessarily reach the same result, since

Supreme Court precedent precludes any other outcome.”),

but also the Supreme Court itself declared in

McGirt that

its conclusion was compelled by precedent, see

McGirt,

140 S. Ct. at 2462, 2464, 2470 (applying

Solem v.

Bartlett, 465 U.S. 463, 470, 104 S.Ct. 1161, 79 L.Ed.2d 443

(1984), and various precedents holding that allotment did

not automatically disestablish reservations; concluding that

“Oklahoma and the dissent have cited no case in which this

Court has found a reservation disestablished without first

concluding that a statute required that *1016 result. Perhaps

they wish this case to be the first.”). To be sure,

McGirt

changed long-standing practice of the criminal-justice system

in Oklahoma. But such practice does not define the law. And

in light of our decision in

Murphy, nearly three years

before Defendant killed Mr. Jumper, we think there was more

notice that Oklahoma practice violated federal law than that

Tennessee would abandon its year-and-a-day rule. 3

[8] A due-process challenge to retroactive application of a

judicial interpretation of a criminal statute presents a question

We therefore affirm Defendant's conviction. The court

of law, which we review de novo. See Sallahdin v. Gibson,

275 F.3d 1211, 1228 (10th Cir. 2002). Unlike the above-cited

cases, the issue in this case is not the elements of the offense

but the jurisdiction of the court. We can assume, however,

that, as Defendant urges, the same principles apply, because

Oklahoma law on voluntary manslaughter are irrelevant. 5

under the

argument.

Defendant also argues that his 96-month sentence was

substantively unreasonable. We again disagree.

Rogers standard we can easily reject Defendant's

[9] Although not everyone would agree with the Supreme

Court's decision in

McGirt (after all, four Justices

dissented), we must reject any suggestion that the Court's

interpretation of the applicable law was “unexpected and

indefensible by reference to the law which had been expressed

prior to the conduct in issue.”

Rogers, 532 U.S. at 457,

appropriately applied federal law. 4

The contours of

B. Substantively Unreasonable Sentence

[10]

[11] “As a general matter, it is not the role of an

appellate court to substitute its judgment for that of the

sentencing court as to the appropriateness of a particular

sentence.”

Concepcion v. United States, ––– U.S. ––––,

142 S. Ct. 2389, 2404, 213 L.Ed.2d 731 (2022) (internal

quotation marks omitted). The Supreme Court has therefore

United States v. Budder, 76 F.4th 1007 (2023)

instructed that “courts of appeals must review all sentences

—whether inside, just outside, or significantly outside the

Guidelines range—under a deferential abuse-of-discretion

standard.”

Gall v. United States, 552 U.S. 38, 41, 128

S.Ct. 586, 169 L.Ed.2d 445 (2007). When reviewing the

substantive reasonableness of a sentence, we “give substantial

deference to the district court and will only overturn a

sentence that is arbitrary, capricious, whimsical, or manifestly

unreasonable.” United States v. Lawless, 979 F.3d 849, 855

(10th Cir. 2020) (internal quotation marks omitted).

Defendant's argument on appeal is brief. He points to “the

unique procedural posture of the case, the facts elicited at trial,

*1017 the jury's unanimous conclusion that his conduct was

justifiable self-defense under Oklahoma state law (which was

the law of the land when the incident occurred), his youth

(then only eighteen years old), and [Mr.] Jumper's wrongful

conduct.” Aplt. Br. at 27. He faults the district court for

“fail[ing] to address these contentions.” Id. He also argues that

“the district court failed to appropriately consider other [ 18

U.S.C.] § 3553(a) factors, including [Defendant's] history and

characteristics under

§ 3553(a)(1) and

to every argument for leniency that it rejects in arriving at

a reasonable sentence” (internal quotation marks omitted)).

Defendant gives us no record-based reason to conclude that

the district court failed to consider these factors. And in

arguing that the district court did not “appropriately weigh”

these considerations, Aplt. Br. at 29, Defendant simply

asks us to re-weigh factors already presented to the district

court—something we cannot and will not do, see Lawless,

979 F.3d at 856 (“[R]eweighing the [sentencing] factors is

beyond the ambit of our review.”). Although the district

court's explanation was not lengthy, we perceive no abuse of

discretion in its justification for its sentencing decision. Given

the 12 shots fired into the body of Mr. Jumper (including

multiple shots while Mr. Jumper was already lying on the

ground), it was not an abuse of discretion to add nine months

to the upper limit of the Guidelines range for Defendant's

sentence.

III. CONCLUSION

We AFFIRM Defendant's conviction and sentence.

USSG § 5H1.1,

McHUGH, Circuit Judge, concurring:

I concur in the majority opinion. I write separately only to

his need for educational and vocational [t]raining under

address an issue not reached in the decision. Specifically,

3553(a)(2)(d), and [Mr.] Jumper's wrongful conduct under

I take issue with Mr. Budder's assertion that his right of

USSG § 5k2.10.” Id. at 28.

self-defense in Oklahoma is meaningfully different than the

federal version of that defense. Mr. Budder contends he would

[12] [13] [14] [15] [16] [17] [18] Defendant does

have been acquitted under Oklahoma law and argues the

not persuade us that the district court abused its discretion. We

special interrogatory proves it. But the special interrogatory

are not sure what Defendant means by “the unique procedural

did not adequately instruct on Oklahoma self-defense law and

posture of the case,” id. at 27, but if he is referring to the fact

is thus a poor predictor of the result under Oklahoma law.

Thus, I would conclude that, even if the application of federal

that his state charges were dismissed post- McGirt, we do

law was in error, it did not prejudice Mr. Budder.

not see how this series of events warrants a reduced sentence.

Defendant also never tells us which specific “facts elicited at

Oklahoma's self-defense statute reads:

trial” warrant a lesser sentence, id., and we will not conjure

up such facts on his behalf. Meanwhile, the jury's response to

*1018 Justifiable homicide by any person

the interrogatory is irrelevant in light of our discussion above

rejecting the notion that “Oklahoma state law ... was the law of

A. Homicide is also justifiable when committed by any

the land when the incident occurred.” Id. As for Defendant's

person in any of the following cases:

age, criminal history, and need for education, as well as

Mr. Jumper's conduct, we presume, “[a]bsent any contrary

1. When resisting any attempt to murder such person,

indication in the record,” that “a district court properly

or to commit any felony upon him, or upon or in any

considered the pertinent statutory factors” in imposing a

dwelling house in which such person is;

sentence. United States v. Alvarez-Bernabe, 626 F.3d 1161,

2. When committed in the lawful defense of such person

1167 (10th Cir. 2010) (internal quotation marks omitted); see

or of another, when the person using force reasonably

also

United States v. Martinez-Barragan, 545 F.3d 894,

believes such force is necessary to prevent death or

903 (10th Cir. 2008) (a district court “need not ... respond

great bodily harm to himself or herself or another or

United States v. Budder, 76 F.4th 1007 (2023)

to terminate or prevent the commission of a forcible

felony[.]

[...]

B. As used in this section, “forcible felony” means any

felony which involves the use or threat of physical force or

violence against any person.

Okla. Stat. tit. 21, § 733 (2014).

According to Mr. Budder's interpretation, Oklahoma law

allows essentially unlimited force to prevent a forcible felony.

But review of the Oklahoma Uniform Jury Instructions

associated with this statute dispels that assertion.

A person is justified in using deadly

force in self-defense if that person

reasonably believed that use of deadly

force was necessary to prevent death

or great bodily harm to himself/

herself or to terminate or prevent

the commission of a forcible felony

against himself/herself. Self-defense is

a defense although the danger to life

or personal security may not have

been real, if a reasonable person,

in the circumstances and from the

viewpoint of the defendant, would

reasonably have believed that he/she

was in imminent danger of death or

great bodily harm.

Oklahoma Uniform Jury Instructions (“OUJI”), OUJI-CR

8-46. As relevant here, the comments to this instruction

provide:

[A] homicide is justifiable when a reasonable person would

have used deadly force. A homicide is also justifiable when

the use of deadly force is reasonably necessary because

the danger appears imminent. Finally, the jury should view

the circumstances from the viewpoint of the defendant.

[The statute] provides that homicide is justifiable “[w]hen

resisting any attempt ... to commit any felony upon him.”

Nevertheless, the Court of Criminal Appeals has held

that the use of deadly force is not justifiable to prevent

commission of any felony. ... Only those felonies which

involve danger of imminent death or great bodily harm may

be defended against by the use of deadly force.

Id. cmts. (emphasis added) (citing Mammano v. State, 333

P.2d 602 (Okla. Crim. App. 1958)) (other citations omitted).

These instructions and comments leave little doubt that the

right to use force against one who threatens a forcible felony is

not unlimited. Deadly force is justified only when reasonably

necessary. Cf. Mammano, 333 P.2d at 605 (“The defendant's

life was not in danger and he was not about to suffer great

bodily injury, at least, not under the conditions presented by

this record, at the time and place of the alleged assault. The

elements of self defense are lacking herein to justify the taking

of the decedent's life.”); Neill v. State, 89 Okla.Crim. 272,

207 P.2d 344, 348 (1949) (approving of a jury instruction

that a person may use “such force as is reasonably necessary”

but “when the necessity for the use of force ceased, the right

to use force ceased”). This court recently elaborated on the

reasonableness requirement of Oklahoma self-defense law in

United States v. Craine, as follows:

*1019 Under Oklahoma law, a “[h]omicide is ...

justifiable”—that is, it is not unlawful—when it is

committed in perfect self-defense, defined as “the lawful

defense of such person or of another, when the person using

force reasonably believes such force is necessary to prevent

death or great bodily harm to himself or herself or another

or to terminate or prevent the commission of a forcible

felony.” Okla. Stat. Ann. tit. 21, § 733(A)(2). To invoke

self-defense, the danger of death or serious bodily injury

must be imminent. See Mammano[, 333 P.2d at 605].

A defendant acts in “imperfect self-defense” if the

factfinder concludes the defendant was “criminally

negligent” in his “belief that deadly force was necessary

to prevent death or great bodily harm.”

United States v.

Toledo, 739 F.3d 562, 569 (10th Cir. 2014). If a defendant

acts in imperfect self-defense, he is guilty of involuntary

manslaughter, rather than murder.

Id. ...

The critical difference “between perfect and imperfect selfdefense [is] the reasonableness of the defendant's belief

that deadly force was necessary to prevent death or great

bodily harm—if reasonable, then he is entitled to a selfdefense acquittal; if criminally negligent, then he is guilty

of involuntary manslaughter.”

Toledo, 739 F.3d at 569

(footnote omitted). Thus, in both the perfect and imperfect

United States v. Budder, 76 F.4th 1007 (2023)

to [himself] [another]]. To find the

defendant guilty of the crime charged

in the indictment, you must be

convinced that the government has

proved beyond a reasonable doubt:

Either, the defendant did not act in

[self-defense] [defense of another],

Or, it was not reasonable for the

defendant to think that the force he

used was necessary to defend *1020

[himself] [another person] against an

immediate threat.

self-defense contexts, the defendant must possess the

subjective belief that deadly force was necessary to prevent

death or great bodily harm, but only in the perfect selfdefense context must the defendant's subjective belief also

be objectively reasonable.

995 F.3d 1139, 1155–56 (10th Cir. 2021), cert. denied, –––

U.S. ––––, 142 S. Ct. 502, 211 L.Ed.2d 304 (2021) (footnotes

omitted); cf. Hommer v. State, 657 P.2d 172, 174 (Okla.

Crim. App. 1983) (explaining that “[t]he amount of force

used may not exceed the amount of force a reasonable

person, in the circumstances and from the viewpoint of the

defendant, would have used” and “[t]he measurement of

force sufficient to repel an attack must be made by the

defendant on the scene; he will be judged subsequently by

the jury on the reasonableness of his reaction under the

circumstances” (internal quotation marks omitted)).

Oklahoma has therefore cabined self-defense similarly to the

federal application of that defense. Under federal self-defense

law, “[a] person may resort to self-defense if he reasonably

believes that he is in imminent danger of death or great bodily

harm, thus necessitating an in-kind response.” Toledo, 739

F.3d at 567. The Tenth Circuit's pattern jury instruction on

self-defense reads:

The defendant [name the defendant]

has offered evidence that he was acting

in [self-defense] [defense of another].

A person is entitled to defend [himself]

[another person] against the immediate

use of unlawful force. But the right

to use force in such a defense is

limited to using only as much force

as reasonably appears to be necessary

under the circumstances. [A person

may use force which is intended

or likely to cause death or great

bodily harm only if he reasonably

believes that force is necessary to

prevent death or great bodily harm

10th Cir. Crim. Pattern Jury Instruction No. 1.28 (first

emphasis added).

In this case, evidence at trial showed that Mr. Budder shot

Mr. Jumper at least twice after Mr. Jumper had fallen to the

ground from the initial shots, at which point Mr. Jumper likely

could not have posed any further threat to Mr. Budder that

would justify deadly force. The special interrogatory did not

instruct the jury that the force used to repel an attack may not

be excessive; once the threat ceases, the right to self-defense

ceases. Mammano, 333 P.2d at 605; Neill, 207 P.2d at 348. It

also did not instruct the jury on imperfect self-defense, i.e., the

possibility that a defendant might believe force is reasonable

but that such a belief might be unreasonable, reducing the

crime from voluntary to involuntary manslaughter. Craine,

995 F.3d at 1155–56. As a result, the jury's response to

the incomplete special interrogatory is not predictive of the

outcome under Oklahoma law.

In sum, I concur in the majority's reasoning for affirming Mr.

Budder's conviction. And I also would affirm because Mr.

Budder cannot show he was prejudiced by the application of

federal self-defense law.

All Citations

76 F.4th 1007

Footnotes

United States v. Budder, 76 F.4th 1007 (2023)

We express no view on whether this is a correct statement of Oklahoma law.

For state courts, the same principles apply by virtue of the Due Process Clause of the Fourteenth Amendment,

see, e.g.,

Bouie, 378 U.S. at 363, 84 S.Ct. 1697, whose reach here is coextensive with that of the Due

Process Clause of the Fifth Amendment, see, e.g.,

Marks, 430 U.S. at 191–97, 97 S.Ct. 990 (applying

Bouie in a case involving a federal-court interpretation). For simplicity, this opinion refers to a singular

Due Process Clause.

The application of

Murphy’s (and

McGirt’s) reasoning to reservations other than the Creek Reservation

was also foreseeable because “the Creek Nation shares its relevant history in Oklahoma with the other Indian

nations that composed the ‘Five Civilized Tribes’—the Cherokees, Chickasaws, Choctaws, and Seminoles.”

Pacheco v. El Habti, 62 F.4th 1233, 1238 (10th Cir. 2023) (further internal quotation marks omitted). Hence,

it was foreseeable that after

McGirt, courts would “recognize[ ] that what held true for the Creek also held

true for the Cherokee: Congress had never disestablished its reservation and, accordingly, the State lacked

authority to try offenses by or against tribal members within the Cherokee Reservation.”

Oklahoma v.

Castro-Huerta, ––– U.S. ––––, 142 S. Ct. 2486, 2510, 213 L.Ed.2d 847 (2022) (Gorsuch, J., dissenting); see

Spears v. State, 485 P.3d 873, 875 (Okla. Crim. App. 2021) (“Although the case now before us involves the

lands of the Cherokee Nation, we find McGirt’s reasoning controlling.”).

McGirt also rejected Oklahoma's argument in the alternative that the Major Crimes Act never applied to

eastern Oklahoma. See

140 S. Ct. at 2476–78. This holding was eminently foreseeable. As the Court

noted, “arguments along these and similar lines have been ‘frequently raised’ but rarely ‘accepted.’ ”

Id. at

2476 (quoting

United States v. Sands, 968 F.2d 1058, 1061 (10th Cir. 1992) (“The government urges us

to adopt its frequently raised, but never accepted, argument that the State of Oklahoma retained jurisdiction

over criminal offenses in Indian country. We ... find the government's position wanting.”)).

Relying on his due-process arguments, Defendant further contends that his sentence is unconstitutional

because “a prison sentence of any length for [his] conduct—which was not criminal at the time of its

commission[ ]—must be considered a cruel and unusual punishment under the Eighth Amendment.” Aplt. Br.

at 27. But because we reject Defendant's argument that application of

McGirt to his offense violated due

process, we must also reject his argument that any punishment resulting from his conviction for that crime

is for that reason cruel and unusual.

End of Document

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