The Six Month Smile

There has to be a story behind a native American surname of White Twin, but there’s no denying that Boyd William White Twin was a happy person. Maybe a bit too happy.  Via Doug Berman, the 8th Circuit affirmed the sentence imposed in  United States v. White Twin of 84 months for assault with a dangerous weapon on an Indian reservation.

The sentence was already an upward departure, but that wasn’t the worst of it.  Apparently, while standing before the court for sentence, White Twin did the unthinkable.  He smiled.  And for this act of happiness, an offense that clearly upset and possibly enraged the judge, an additional six months were tacked on.

And the 8th Circuit saw no problem.



White Twin claims that the district court abused its discretion by considering an improper factor – his smile.  This court reviews the substantive reasonableness of a sentence for abuse of discretion.   United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).  A district court abuses its discretion when it “gives significant weight to an improper or irrelevant factor” in sentencing.  United States v. Williams, 624 F.3d 889, 896-97 (8th Cir. 2010).


The district court did not abuse its discretion by increasing White Twin’s sentence by six months after he smiled.  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’s smile.


The rationale in upholding the six month sentence for smiling was twofold, that a sentencing judge can take anything “concerning the background, character, and conduct of a person convicted” into consideration at the time of sentence, and that, the increase was not based “solely” on the smile.  Still, consideration of the smile was not an abuse of discretion.

Standing there, awaiting sentence, isn’t merely one of the most difficult things a person can go through, but one of the most awkward.  It’s hard to know how to react, how to present oneself, when years of his life are on the line.  Sometimes, the fear manifests itself in a smile, like a nervous laugh.  It may come off poorly, but it happens.  What it is not is a basis for an increase in a sentence.

While the opinion is shy of details about the defendant’s attitude, it seems likely that the judge took the defendant’s smile as defiance or arrogance, a small way for the defendant awaiting sentence to show his contempt for the judge.  While this may have been the case, so what? 

The law doesn’t demand that a defendant bow and scrape to the judge, genuflect to the majesty of the court,   Sure, it’s foolish to be less than respectful, though some judge see anything shy of obsequiousness as an affront, and respond poorly. While judges are human (sometimes too human), and behaving inappropriately while they’re about to decide what’s to become of the next few years of your life certainly isn’t going to make them feel more kindly toward you, it’s also not a crime worthy of punishment.

And a smile isn’t a crime. A smile, whether because a defendant’s reaction to the fear and nervousness of sentence or as a last-ditch affront to the judge’s dignity, isn’t a basis to put a person in prison for an extra six months.

While the circuit tries to spin around the details, it remains that the authority of the judge to sentence the defendant is based upon the crime for which he was convicted, not for the appearance of respect during the actual sentencing.  That the smile factored into the sentence at all is fundamentally wrong, yet the court upheld it.  Whether it was the “sole” basis for the six months, a contributing factor or the straw that broke the camel’s back, it should not be approved.

And to judges whose “dignity” is offended by a defendant who doesn’t stand there and react the way you think they should, put on your big boy robes and don’t get all hurt about it. At best, the defendant before you is scared, angry, frustrated and often striving to maintain a shred of his own dignity in a system that sees him as just another piece of dirt to shoveled into a hole. 

It’s not about you, Judge. You still get to go home after court is done, when he’s led off in shackles to ponder whether he’ll meet nice new friends in the penitentiary, and whether his kids will eat while he’s away.  Get over the offense of a smile. Be bigger than that.


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