Case: 20-50203 Document: 00515853931 Page: 1 Date Filed: 05/07/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED May 7, 2021 No. 20-50203 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Justin Haggerty, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 3:10-CR-630-1 Before Haynes, Higginson, and Oldham, Circuit Judges. Stephen A. Higginson, Circuit Judge: After a stipulated-facts bench trial, Appellant Justin Haggerty was convicted of malicious injury of property located on “Indian country” in violation of 18 U.S.C. §§ 1152 and 1363. He was sentenced to 12 months and one day in prison, followed by three years of supervised release. He appeals his conviction and sentence. We AFFIRM. Case: 20-50203 Document: 00515853931 Page: 2 Date Filed: 05/07/2021 No. 20-50203 I. Background According to the stipulated facts, on Columbus Day in 2017, Haggerty poured red paint on a statue of Nestora Piarote, an Indigenous woman, and placed a wooden cross in front of it. The statue was located in El Paso County, Texas, on land reserved to the Yselta Del Sur Indian Tribe (also known as the Tigua Indian Tribe). The tribe erected the statue to honor the women of their tribe and had unveiled it just three months earlier. It cost $92,000. 1 Law enforcement arrested Haggerty after linking him to the purchase of the wood and paint used in the crime. In addition, in the months preceding the crime, Haggerty had reposted or liked social media posts: (1) expressing concern that a statue of Christopher Columbus would be removed from Columbus Circle in New York City; (2) urging Catholics to unite to defend Columbus Day from being replaced by a “pagan” Indigenous Peoples’ Day; and (3) stating that Catholic history was being erased. 2 Although the factual stipulation described Haggerty as physically appearing to be a “white male” based on surveillance footage, neither the stipulation nor the indictment described whether Haggerty was Indian or non-Indian. After being arrested and indicted under 18 U.S.C. §§ 1152 and 1363, Haggerty pleaded not guilty and moved to dismiss the indictment on the ground that § 1363 is unconstitutionally vague. The district court denied his motion and Haggerty waived a jury trial with the government’s consent and district court’s approval. At the commencement of the bench trial, the 1 According to the Presentence Investigation Report (“PSR”), it cost the tribe $1,800 to repair the statue after it was damaged by Haggerty. 2 As Haggerty acknowledged at sentencing, many in the Tigua Indian Tribe are practicing Catholics. 2 Case: 20-50203 Document: 00515853931 Page: 3 Date Filed: 05/07/2021 No. 20-50203 district court admitted the above-described and agreed-upon stipulation of facts, and both the Government and Haggerty closed their cases without presenting additional evidence or argument. Based on the factual stipulation, the district court convicted Haggerty. In calculating the Guidelines range for purposes of sentencing, the court applied an enhancement pursuant to U.S.S.G. § 2B1.5 because the offense …
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