052319P.pdf   06/15/2006  United States  v.  Ursula Red Bird
   U.S. Court of Appeals Case No:  05-2319
   District of South Dakota   
   [PUBLISHED] [Colloton, Author, with Melloy and Benton, Circuit Judges]
   Criminal case - criminal law and sentencing. Evidence was sufficient
   to support conviction for assault resulting in serious bodily injury as the
   medical evidence provided ample grounds for believing defendant was
   responsible for shaking her baby until it suffered a fatal brain injury; any
   error in admitting evidence that defendant had violated the conditions of
   her pre-trial release was harmless in light of the modest amount of
   testimony concerning the violations and the fact that the government did
   not argue that her failure to report was evidence of consciousness of guilt;
   even if it was error to consider defendant's pre-trial conduct as akin to an
   escape for purposes of Guidelines Sec. 3C1.1, resentencing was not
   required as the court indicated it would impose the same sentence without
   or without the two-level adjustment for the conduct; however, the court
   could consider the pre-trial conduct as a factor under 18 U.S.C. Sec.
   3553(a) because it was relevant to defendant's history and characteristics;
   imposing a ten-month upward variance was not unreasonable as a
   sanction to promote respect for the law.