## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 16 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. WILLETTE WHITESKUNK, Defendant-Appellant. No. 97-1407

Appeal from the United States District Court

for the District of Colorado (D.C. No. 97-CR-193-S)
Andrew A. Vogt (Henry L. Solano, United States Atto rney, with him on the brief), Assistant United States Attorney, Denver, C olorado, for Plaintiff-Appellee. Michael G. Katz, Federal Public Defender, Denver, C olorado, for DefendantAppellant.

Before TACHA, BRORBY and KELLY , Circuit Judges.

BRORBY , Circuit Judge.

Defendant, Ms. Willette T. Whiteskunk, pleaded guil ty to one count of involuntary manslaughter in violation of 18 U.S.C. §§ 1153 and 1112(a) and was-2-

sentenced to twenty-four months imprisonment. The district court departed upward three levels from the standard Guideline ran ge for involuntary manslaughter to arrive at the final sentence. Ms. Whiteskunk now appeals the trial court’s decision for upward departure. We ex ercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Finding the district court gave an insufficient explanation for the degree of departur e, we reverse and remand for resentencing.

BACKGROUND Ms. Whiteskunk’s conviction stems from an alcohol-r elated accident on the Southern Ute Indian Reservation in which Mrs. Mary V. (“Virginia”) Fleming lost her life. The Presentence Investigation Report indicates that on April 30, 1997, Ms. Whiteskunk, an enrolled member of the Sou thern Ute Tribe, was driving a pickup truck at a rate of seventy-eight m iles per hour eastbound on Highway 172 within the boundaries of the Southern U te Indian Reservation near Ignacio, Colorado. At the same time, the decedent, Mrs. Fleming, was riding a motorcycle westbound on Highway 172 traveling aboutfifty-five miles per hour. Ms. Whiteskunk veered across a double yellow line i nto the westbound lanes of the highway and struck Mrs. Fleming head-on, killin g her instantly. Tests taken shortly after the accident showed Ms. Whiteskunk ha d a blood alcohol content of-3-

.212 percent, more than twice the legal limit. Thi s was not the first time Ms. Whiteskunk had been driving while intoxicated. She previously had been arrested and convicted in tribal court of drunk dri ving, but the offense was not included in her criminal history because it occurre d more than ten years earlier.

The district court found several other events on th e day of the accident made the case unusual, and indicated Ms. Whiteskunkacted with a higher than normal degree of recklessness. Just after midnighton the day of the accident, as Ms. Whiteskunk was sitting in her truck, she was ap proached by a Southern Ute police officer who, upon seeing her state of intoxi cation, took her keys and told her she was not going to drink and drive. Later th at same morning, Ms. Whiteskunk asked her sister to drive her to the pol ice station to retrieve her keys. Ms. Whiteskunk’s husband admitted after the acciden t that he and his wife had been drinking since around 8:00 a.m. At about 12:0 0 p.m., only two hours before the accident, Ms. Whiteskunk reportedly entered a b ar, but was refused service because she looked “like [she] had partied all nigh t” and smelled of alcohol. She left the bar and drove away, at which time a bar employee called the Colorado State Patrol to report her license number. At 1:38 p.m., just minutes before the fatal accident, an unknown caller reported Ms. Whit eskunk driving erratically and nearly colliding with the caller’s vehicle. On ly a few minutes later, the-4-

emergency dispatcher received a call about the acci dent in which Mrs. Fleming was killed.

In the Presentence Investigation Report, Ms. Whites kunk’s base offense level was set at 14, as prescribed for violations o f 18 U.S.C. § 1112(a) in the United States Sentencing Guidelines § 2A1.4(a)(2). A two-level downward adjustment was made for acceptance of responsibility under U.S.S.G. §3E1.1(a), to arrive at a total offense level of 12. With a C riminal History Category of I, Ms. Whiteskunk’s Guideline range for imprisonment w as calculated at 10-16 months.

At the sentencing hearing, the district court decid ed to depart upward three levels from the base offense level, finding certain aggravating factors in the presentence report indicated “the defendant’s condu ct ... exceeded reckless behavior, and therefore, exceeded the guidelines.” The district court rested its decision on a number of factors including: (1) Ms. Whiteskunk’s blood alcohol content, which was more than twice the legal limit; (2) a prior conviction for drunk driving, which put her on notice of the “ille gality and the dangerousness of drinking and driving”; and (3) multiple opportuniti es for Ms. Whiteskunk to correct her behavior before the accident.-5-

Ms. Whiteskunk asserts the district court erred bec ause it: (1) abused its discretion in departing upward on the bases that de ath resulted and that her conduct exceeded the standard of recklessness, (2) failed to explain the upward departure, and (3) failed to provide adequate notic e of intent to depart upward and the basis for the departure.

DISCUSSION I. Upward Departure Analysis – An Overview United States v. Collins , 122 F.3d 1297 (10th Cir. 1997), sets forth our general framework for reviewing Sentencing Guidelin e departures following the Supreme Court’s landmark decision in Koon v. United States , 518 U.S. 81 (1996). A sentencing court is permitted to depart from the Guidelines after determining a defendant's offense level, criminal h istory category, and the applicable Guideline range “if the court finds ‘that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formu lating the guidelines.’” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). Th e district court must distinguish whether the case falls under the catego ry of a “heartland case” or an “unusual case.” See Koon , 518 U.S. at 93. In Koon , the Court explained the Sentencing Commission intended for “‘sentencing cou rts to treat each guideline1 The forbidden factors include characteristics lik e race, sex, national

origin, creed, religion, and socioeconomic status ( U.S.S.G. § 5 H1.10); lack of guidance as a youth ( id . § 5 H1.12); drug or alcohol dependence ( id . § 5H1.4); and economic duress ( id . § 5K2.12).

-6- as carving out a “heartland,” a set of typical case s embodying the conduct that each guideline describes.’” Id. (quoting U.S.S.G. ch. 1 pt. A, intro. comment. 4(b)). If the case falls outside the heartland ( i.e. , is not the usual type of case), the court may decide to depart from the prescribed sentencing range. Id

.

When deciding whether to depart from the Guidelines , the district court may not consider certain “forbidden” factors. 1 Collins , 122 F.3d at 1302. Otherwise, the Sentencing Guidelines do not limit o r restrict the grounds available for departure. The Guidelines also list factors that are encouraged factors for departure. If the factor is an encoura ged factor, “the court is authorized to depart if the applicable Guideline do es not already take it into
account.” Id. If the factor is a discouraged factor, or one alr eady taken into account under the Guidelines, “the court should dep art only if the factor is present to an exceptional degree or in some other w ay makes the case different from the ordinary case where the factor is present.” Id . It is up to the district court to determine whether certain factors take the case out of the “heartland,” and “make a refined assessment of the many facts be aring on the outcome,-7-

informed by its vantage point and day-to-day experi ence in criminal sentencing.”
Koon 518 U.S. at 98.

On appeal, the district court’s decision to depart is reviewed “under a unitary abuse-of-discretion standard which ‘include s review to determine that the discretion [of the district court] was not guided b y erroneous legal conclusions.’" Collins 122 F.3d at 1302 (quoting Koon , 518 U.S. at 100). This standard limits appellate courts’ scope of review, leaving districtcourts with “much of their traditional sentencing discretion.” Koon , 518 U.S. at 97. The essential nature of the question presented, whether legal or factual, g uides our standard of review. Collins , 122 F.3d at 1303. In the usual case, where the c ourt’s decision whether to depart rests on factual findings, the district c ourt’s decision is entitled to substantial deference. See Koon , 518 U.S. at 98 (“[D]istrict court's decision to depart from the Guidelines ... will in most cases b e due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.”); United
States v. Rivera , 994 F.2d at 942, 951 (1st Cir. 1993) (in many cas es, “district court's [departure decision] ... will not involve a‘quintessentially legal’ interpretation of the words of a guideline, but rat her will amount to a judgment about whether the given circumstances, as seen from the district court's unique vantage point, are usual or unusual, ordinary or no t ordinary, and to what-8-

extent.”). If, however, the district court’s decis ion rests primarily on a legal conclusion, for instance whether a factor is a perm issible ground for departure, the appellate court’s review is plenary. Collins , 122 F.3d at 1303.

Collins established a four-step inquiry to guide our analy sis. We must examine: (1) whether the factual circumstances supporting a departure are permissible departure factors; (2) whether the departure factors relied upon by the district court remove the defend ant from the applicable Guideline heartland thus warranting a de parture; (3) whether the record sufficiently supports the factua l basis underlying the departure; and (4) whether the degree of depart ure is reasonable. 122 F.3d at 1303. We need not give deference to th e district court on the first issue, which is essentially a legal conclusion, butwe must give substantial deference on the second question because it involve s factual conclusions. All of these steps are subject to a unitary abuse of discretion standard. Id

.

II. Departure Analysis – Present Case A. Permissibility of Departure Factors We first examine the district court’s decision to d epart upward to determine if the factors the court relied on were p ermissible. Again, because this is a legal analysis, we do not defer to the distric t court’s decision on this matter. Id . Ms. Whiteskunk argues the factors the district c ourt cited for upward-9-

departure, (1) death resulting from the conduct, an d (2) excessive recklessness, were already taken into account under the involuntary manslaughter Guideline, and were, therefore, improper bases for departing f rom the Guideline range. We examine the permissibility of each factor individua lly.

1. Departure for Death Resulting From the Conduct We agree with Ms. Whiteskunk that if the district c ourt relied on the fact a death resulted from the defendant’s conduct to just ify upward departure, it was improper. Because, the unlawful killing of a human being is, in fact, an element of involuntary manslaughter, see 18 U.S.C. § 1112(a), the Guideline provision for that offense already contemplates a resulting d eath. Since death cannot exist in varying degrees for the court to consider ( i.e. , the factor is either present or it is not), it is generally an impermissible factor fo r departure. Multiple deaths resulting from defendant’s conduct is an exception to this general rule, and presents a permissible ground for departure from th e standard involuntary manslaughter Guideline range. However, multiple de aths did not occur in this instance. Accordingly, if the district court basedits decision to depart on the fact a death resulted, it was error.

However, we do not believe the district court reste d its decision on this-10-

factor. The judge mentioned U.S.S.G. § 5K2.1 (“death resulting provision”) just prior to enumerating his reasons for departing upward during the sentencing hearing, but it does not appear from the record the court relied on the death resulting provision to justify upward departure. N o further reference is made to § 5K2.1, and it appears from the record the distric t court departed from the Guideline solely on other factual bases indicating a degree of recklessness beyond that contemplated under the Guidelines.

Even assuming arguendo the district court did depart on the basis of an invalid factor like the “death resulting provision, ” we do not necessarily need to vacate the district court’s opinion and remand for resentencing to rid the court’s decision of any error the consideration of an imper missible factor may have caused. If the sentencing decision rested on otherpermissible factors in addition to the improper factor, and we determine the distri ct would have imposed the same sentence even in the absence of the improper f actor, then we will not disturb the decision. See Koon , 518 U.S. at 113 (stating if the district court based a departure on both valid and invalid factors , the court should remand the case unless it determines the district court “wouldhave imposed the same sentence absent reliance on the invalid factors” (citing Williams v. United States , 503 U.S. 193, 203 (1992)). Due to the absence of any further reference to-11-

departure based on U.S.S.G. § 5K2.1 in the court’s factual findings at the sentencing hearing, we believe the district court w ould have imposed the same sentence even in the absence of the invalid factor.

2. Excessive Recklessness Recklessness exceeding the Guideline standard is a permissible factor for the district courts to consider for departure. Eve n though the involuntary manslaughter Guideline already contemplates reckles s conduct and the usual case of drunk driving resulting in death, we nonetheless hold that a district court may still examine the degree of recklessness in a given case to determine whether this factor exists to such an exceptional level it takes the case outside the “heartland” of usual involuntary manslaughter cases. See 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0, p.s. (court may impose a sentence outside Guideline range if “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentenci ng Commission”).

Our decision is in accord with the Fourth Circuit’s opinion in United States v. Terry , 142 F.3d 702 (4th Cir. 1998). That case addresse d whether the factor of endangering public safety under U.S.S.G. § 5K2.14 w as present to such an exceptional degree as to remove the case from the h eartland and permit an2Several other circuits have addressed the same orsimilar issue, but have

yet to publish an opinion directly on point. See United States v. Two Crow , 124 F.3d 208, 1997 WL 572862 (8th Cir. 1997) (unpublish ed decision) (ruling the district court did not abuse its discretion by orde ring an upward departure from involuntary manslaughter guideline because the district court found that two -12- upward departure from the reckless involuntary mans laughter Guideline. In Terry , the district court made a substantial upward departure from the Guideline range relying on several different factors. 142 F. 3d at 705. The first factor the court considered, and the only factor of relevance to the case before us, was the danger to the public created by the defendant’s reckless driving. Id . The court found U.S.S.G. § 2A1.4 “already took into account” the defendant’s reckless driving as evidenced by the base offense level incr ease from ten to fourteen. Terry , 142 F.3d at 706. Because the involuntary manslau ghter Guideline already considered the danger to the public created by the defendant’s recklessness, departure on that basis generally would be inappropriate. Id . However, the court went on to rule that “an upward departure would be permitted if [defendant’s] reckless driving was ‘present to an exceptional deg ree or in some other way makes the case different from the ordinary case where the factor is present.’” Id

. (quoting Koon , 518 U.S. at 96). The case was then remanded so t he district court could “determine in the first instance whether the danger created by [defendant’s] reckless conduct was outside the ‘heartland’ of the typical involuntary manslaughter case involving reckless driving.” 2 Id . at 707.deaths occurred, and the defendant’s exceptionally high level of intoxication and

rate of speed exceeded merely reckless conduct and approached intentional conduct); United States v. Rowbal , 105 F.3d 667, 1996 WL 747911 (9th Cir. 1996) (unpublished decision) (ruling upward departu re from involuntary manslaughter guideline was warranted where districtcourt cited factors like excessive speed and blood alcohol level, reckless c onduct, and callous disregard for the safety of others, which removed the case fr om the heartland of typical cases. “Although drunkenness and recklessness were considered by the Commission when it formulated § 2A1.4, in the instant case these factors were present to an exceptional degree .” Id . at *2 (emphasis added)); United States v. Chambers, 940 F.2d 653, 1991 WL 137232 (4th Cir. 1991) (unpu blished decision) (determining upward departure from Sentencing Guide line for involuntary manslaughter was warranted where the defendant had prior convictions for drunk driving, tried to avoid arrest and drove at a high rate of speed. This conduct went “well beyond the degree of deviation from the stand ard of care contemplated by the term ‘reckless.’” Id . at *2); United States v. Clampitt , 967 F.2d 592, 1992 WL 120463 (9th Cir. 1992) (unpublished decision) (c ase remanded because district court failed to provide an explanation forits decision to depart, but court ruled a legal basis for departure was warranted bec ause defendant’s drunk driving created a serious threat to the public welfare unde r U.S.S.G. § 5K2.14 that was not subsumed as an element under the Sentencing Gui deline for involuntary manslaughter).

-13- Although the district court in the case before us d id not cite a specific provision like U.S.S.G. § 5K2.14 as grounds for dep arture, we apply the same analysis as the Terry court. Even though recklessness, like endangering the public, was already considered under the involuntary manslaughter Guideline, U.S.S.G. § 2A1.4(a)(2), it is still permissible forthe district court to consider the degree of recklessness and, within it’s discretion, depart upward if the facts take the case outside the “heartland” of typical cases w ithin the Guideline range.-14-

Appellant argues that recklessness under the involu ntary manslaughter guideline, U.S.S.G. § 2A1.4(a)(2), is an all-or-nothing proposition; either a person is reckless or she is not, and a court canno t and should not distinguish a case for sentencing purposes based on varying degre es of recklessness. We disagree. Under the law, we designate a rather bro ad category of conduct as “reckless.” Some of the conduct falling within the domain we call “reckless behavior” is actually closer to mere negligence, wh ile other behavior within the range of recklessness definitely approaches intenti onal conduct. Yet, we place all of these varying degrees of conduct under one l abel. Admittedly, it is often necessary to draw artificial lines when classifying defendants’ conduct, but it would be unfair not to recognize and accommodate th is varying spectrum of culpability whenever possible. The sentencing phas e is one aspect of the process where the artificial labels applied to classes of c onduct need not necessarily constrain the court. If, in the district court’s d iscretion, it finds the facts of the particular involuntary manslaughter case indicate adegree of recklessness that falls on the periphery of reckless conduct – eitherminimally reckless or excessively reckless – then the court should be fre e to depart on that basis for sentencing purposes. See United States v. Smith , 133 F.3d 737, 751 (10th Cir. 1997) (“An extra measure of criminal depravity is p recisely the type of factual circumstance the departure mechanism is designed to address” (citing 18 U.S.C.3 We note excessive recklessness as a departure fac tor may be a subject the

Sentencing Commission should address.

-15- § 3553(b); U.S.S.G. § 5K2.0)), cert. denied , 118 S. Ct. 2306 (1998). We emphasize that our decision in this matter is not i ntended to establish a theoretical new level of culpable conduct. Instead , our intent is to allow sentencing courts the discretion to recognize the e xtreme cases that arise within the category of conduct categorized as reckless. In the usual case, the sentencing court will exercise its discretion in this regard w ithin the established guideline range, but when the degree of recklessness is excep tional, either minimally or extremely, then the circumstances may warrant departure. 3

Appellant also argues that since other sections of the Guidelines expressly provide for departure based on elements already con sidered in formulating the standard Guideline range, see, e.g. , U.S.S.G. § 3C1.2, comment. (n. 2), and the involuntary manslaughter Guideline contains no suchexplicit allowance, any departure based on excessive recklessness is improp er. Appellant reasons that if the Sentencing Commission specifically stated in ce rtain Guidelines that departure was permissible based on the presence of a factor a lready considered but present to an exceptional or varying degree, then the omiss ion of similar language in other Guidelines must have been intentional. Howev er, we note that only a few of-16-

the Guidelines contain express provisions for departure. If we accepted Appellant’s proposition, our decision would limit the sentencing courts’ ability to fairly respond to unusual cases, and seriously unde rmine the Sentencing Commission’s own instructions. The Commission stat ed in the introductory remarks to the Guidelines that, with the exception of certain forbidden factors, it “does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines , that could constitute grounds for departure in an unusual case.” U.S.S.G. ch. 1, pt. A, intro. comment. 4(b) (emphasis added). The Guidelines are intended to provide courts with the flexibility necessary to address the extreme and “unusual cases outside the range of the more typical offenses for which the guidelines were designed.” Id . In light of this commentary and the Supreme Court’s instruction in Koon , we will not interpret the absence of express permission to depart on the basis of a factor alrea dy considered in the Guideline but present to an exceptional degree to imply such a departure is forbidden.

We do not believe our decision to allow departure o n the basis of excessive recklessness will destroy the intended uniformity o f sentencing under the Guidelines or cause unjustified disparities in sent encing. Instead, it will reinforce the ideals of fairness and flexibility within the r ange of reasonableness the Guidelines establish for sentencing courts, and continue “the federal judicial-17-

tradition ... to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Koon 518 U.S. at 113.

B. Justification for Upward Departure and Sufficie ncy of the Record Having decided recklessness exceeding the Guideline standard for involuntary manslaughter is a permissible factor fo r upward departure, we must now determine whether the factual bases the distric t court cites are sufficient to remove the case from the “heartland” and warrant an upward departure. We examine the court’s decision to depart upward undera unitary abuse of discretion standard, giving deference to the district court on these matters. See Koon , 518 U.S. at 98-99. We look only to see if “the factual circumstances from the vantage point of the district court make this the atypical case.” Collins 122 F.3d at 1303 (quoting Rivera , 994 F.2d at 951-52). If the case is a typical on e, the “court must impose a sentence within the applicable Sentencing Guidelines range.” United
States v. Jones , 158 F.3d 492, 496(10th Cir. 1998) (citing 18 U.S. C. §3553(a), and Koon 518 U.S. at 85). Because of the factual nature of this inquiry, we simultaneously consider the sufficiency of the reco rd to support the bases for departure.-18-

The district court specifically cited several factu al circumstances it believed removed the case from the heartland and ju stified upward departure. The court emphasized Ms. Whiteskunk’s reckless cond uct, highlighting the following facts: (1) her blood alcohol content was more than twice the legal limit; (2) she sustained a prior conviction for dri ving while intoxicated – putting her on notice of her own propensity to drink and dr ive and the dangerousness of such conduct; and (3) she had at least three opport unities to correct her behavior, first, when her keys were confiscated and she was t old she was unfit to drive; second, when she was refused service at a bar becau se of her state of intoxication; and third, when she narrowly avoided an accident wi th another vehicle just minutes before hitting Mrs. Fleming.

Acknowledging the district court’s special ability to judge “‘the “ordinariness” or “unusualness” of a particular cas e,’” Koon , 518 U.S. at 99 (quoting Rivera , 994 F.2d at 951), we find, under these particularfacts and the record before us, the district court did not abuse its discretion when it ruled Ms. Whiteskunk’s conduct was excessively reckless and thereby removed the case from the “heartland” of typical cases under the Gui delines. The district court made no “clear error of judgment,” nor “exceeded th e bounds of permissible choice in the circumstances.” United States v. Ortiz , 804 F.2d 1161, 1164 (10th-19-

Cir. 1986). The record sufficiently supports the f actual bases the district court cites to remove the case from the usual Guideline r ange.

C. Reasonableness of Departure Finally, we must determine whether the district cou rt’s decision to depart upward three levels was reasonable under the circum stances. See 18 U.S.C. § 3742(f)(2). Our review of the sentencing court’s degree of departure is deferential. See Collins , 122 F.3d at 1303 (approving a unitary abuse of discretion standard). In making this decision, we consider the district court’s reasons for imposing the particular sentence together with factors such as: “the serio usness of the offense, the need for just punishment, deterrence, protection of the public, correctional treatment, the sentencing patt ern of the Guidelines, the policy statements contained in the Guidelines, and the need to avoid unwarranted sentencing disparities.” Collins , 122 F.3d at 1308-09 (quoting United States v. White , 893 F.2d 276, 278 (10th Cir. 1990) (citing 18 U.S.C. § 3742 (e)(3) an d 18 U.S.C. § 3553(a))).

Even though the district court articulated a factua l basis for departing from the Guideline range, this does not automatically su ffice to explain the degree of departure. See United States v. Kalady , 941 F.2d 1090, 1100 (10th Cir. 1991) (district court bears burden of ensuring the recordcontains enough information to allow an appellate court to determine how the degre e of departure was decided).-20-

Neither the record nor the presentence report, nor the sentencing court, included any explanation or methodological basis for how the district court selected a three-level degree of departure. Failure to clearl y articulate the basis for the court’s degree of departure makes our review of rea sonableness difficult if not impossible, and leaves us to “speculate as to reaso ning that might have been employed by the sentencing court to arrive at the p articular sentence.” United States v. Gardner , 905 F.2d 1432, 1436 (10th Cir.), cert. denied, 498 U.S. 875 (1990).

In Collins , we rejected the notion that the Koon unitary abuse of discretion standard changed our pre- Koon mechanistic approach requiring the district court to state with particularity and with reference or a nalogy to the Guidelines the basis for its degree of departure. Collins , 122 F.3d at 1309 (“district court ‘must specifically articulate reasons for the degree of d eparture’” (quoting United States
v. Yates , 22 F.3d 981, 990 (10th Cir. 1994)); United States v. Jackson , 921 F.2d 985, 991 (10th Cir. 1990) (“may use any ‘reasonable methodology hitched to the Sentencing Guidelines to justify the reasonableness of the departure,’” which includes using extrapolation from or analogy to the Guidelines (quoting United
States v. Harris , 907 F.2d 121, 124 (10th Cir. 1990)); see also United States v. Flinn , 987 F.2d 1497, 1502 (10th Cir. 1993) (court decid ed it would “not4Appellees cite Smith , 133 F.3d 737, as somehow abrogating the

mechanistic approach set out in Collins . An examination of that case reveals no conflict with prior precedent, but an affirmation o f the requirement that the district court specifically articulate “‘reasons fo r the imposition of the particular sentence.’” Id. at 752 (quoting Williams , 503 U.S. at 203-04). In Smith , the district court had “articulated multiple reasons fo r the degree of departure,” and “expressly considered the factors outlined in 18 U. S.C. §3553(a)(2).” Id . We reaffirm our requirement that the district court explain with particularity – preferably with reference or analogy to the guideli nes – the basis for the degree of upward departure.

-21- commence a reasonableness analysis unless the distr ict court has referenced the Guidelines in its rationale for selecting a degree of departure”). Since Collins , our decisions have continued to maintain this stand ard. We have declined to follow the Ninth Circuit’s less rigid analysis of the district court’s degree of departure espoused in United States v. Sablan , 114 F.3d 913, 918-19 (9th Cir. 1997) (en banc), cert. denied, 118 S. Ct. 851 (1998), where that court abolished the requirement that district courts justify their degree of departure by drawing analogies to the Sentencing Guidelines. 4 See Collins , 122 F.3d at 1309.

In the present case, the district court gave almostno rationale for its degree of departure from the Guideline range, stating onlythe departure is warranted because it “more appropriately reflects the dangero usness of the defendant’s conduct, as well as the extent to which risked [sic ] the potential death of another.” This explanation does nothing more than restate the justification for-22-

upward departure and “does not fulfill the separate requirement of stating the reasons for imposing the particular sentence.” Flinn , 987 F.2d at 1502. In departing upward, the district court should have attempted “to predict what the Sentencing Commission would have established as a g uideline range had it adequately considered the circumstances justifying the departure.” Kalady941 F.2d at 1101. The district court’s findings leave us with no “reasonable indicia” of whether “the sentence is proportional to the cri me.” Id . We do not require the district court to justify the degree of departure w ith mathematical exactitude, but we do require the justification to include “some me thod of analogy, extrapolation or reference to the sentencing guidelines.” United States v. O’Dell , 965 F.2d 937, 939 (10th Cir. 1992).

Since the record lacks any basis upon which to dete rmine whether the departure was reasonable, we must remand for resent encing with instructions to the district court to make sufficient findings to s upport the methodology used to determine the degree of upward departure.

III. Notice Requirement Finally, we address Appellant’s claim that the dist rict court failed to give adequate notice of its intent and basis to depart upward from the Guidelines as-23-

required in Burns v. United States , 501 U.S. 129 (1991). Burns cites Federal Rule of Criminal Procedure 32, which “requires that the district court give the parties reasonable notice that it is contemplating [departu re from the Guidelines] ... specifically identify[ing] the ground on which the district court is contemplating an upward departure.” Burns , 501 U.S. at 138-39. In the present case, the presentence report submitted by the probation offic er stated plainly there was “no reason to depart from the Guideline range.” The di strict court did not disclose its intent to upwardly depart until the actual sentenci ng hearing was held. Under these facts, we are dealing with “the extraordinary case in which the district court, on its own initiative and contrary to the expectati ons of both the defendant and the Government, decides that the factual and legal predicates for a departure are satisfied.” Burns , 501 U.S. at 135.

However, since we have already determined a remand is necessary on other grounds, it is unnecessary for us to decide whetherthe district court failed to give adequate notice of its intent and basis to depart o r whether any potential failure of notice was reversible error. If the defendant suff ered as a result of the district court’s failure to give notice as required in Burns , then the resentencing hearing following remand will cure the alleged harm. The d efendant is now clearly on notice the district court is considering an upward departure and the bases for that-24-

departure.

CONCLUSION Recklessness exceeding that contemplated in the gui deline standard is a permissible factor for upward departure, and the di strict court did not abuse its discretion, based on the facts in the record, in fi nding the circumstances of this case placed it outside the “heartland” of typical c ases under the Guidelines. However, we hold the district court did not suffici ently explain the bases for the three-level degree of departure from the Sentencing Guidelines, an error which warrants reversal and remand for resentencing. Bec ause we reverse and remand for resentencing, we need not decide whether notice of intent and bases for upward departure were deficient. The resentencing hearing should cure any defect in that regard. In addition, we emphasize f or the purposes of resentencing that although we have decided the district court di d not abuse its discretion when it determined this case fell outside the “heartland ,” our decision on that matter was based on the record before us on appeal. The d istrict court should not construe our ruling to preclude the defendant from producing any otherevidence at the resentencing hearing that may tend to refute or mitigate the original sentence imposed, or show the case is not outside the heartland under the Guidelines.-25-

We REVERSE and REMAND to the district court with instructions to vacate the sentence and resentence in a manner cons istent with this opinion.No. 97-1407, United States v. Whiteskunk

Tacha, Circuit Judge, dissenting
I respectfully dissent only from the portion of the majority opinion finding that the district court failed to adequately explai n the degree of upward departure in sentencing the defendant. I recognize that our cases require an explanation by the district judge of the degree of departure and t hat he or she “may use any reasonable methodology hitched to the Sentencing Gu idelines to justify the reasonableness of the departure.” See United States v. Collins , 122 F.3d 1297, 1309 (10th Cir. 1997) (internal quotations omitted) . Nonetheless, when the reason for that departure is that the conduct excee ds the seriousness contemplated by the Guidelines, I do not believe that the distri ct court must go through the tortured process of articulating precisely why the excessiveness, in its judgement, justifies a particular degree of departure. The de gree of departure determination in a case involving a subjective judgement of the e xcessiveness of a defendant’s conduct lies within the province of the sentencing court under the abuse of discretion standard. See Collins , 122 F.3d at 1303 (holding that decision to depart and reasonableness of departure are subject to unitary abuse of discretion standard); cf. Koon v. United States , __ U.S. __, 116 S. Ct. 2035, 2046 (1996) (“A district court’s decision to depart from the Gu idelines . . . will in most cases be due substantial deference.”) Here, the judge found the defendant’s conduct excee ded the recklessness-2-

contemplated by the Guidelines. He cited as his re asons the defendant’s extreme intoxication, prior drunk driving conviction, and n umerous opportunities to correct her conduct prior to the accident. I am pe rplexed why a three-level degree of departure is so unrelated to the finding of exce ssive recklessness as to require remand for further elaboration. A departure unrelated to the reasons given or of extraordinary magnitude might require such an expla nation. However, it seems to me that a district judge adequately justifies a sen tence increase from 16 to 24 months when he gives as his reasons the facts upon which he based his determination of excessive recklessness in the init ial upward departure decision. In the instant case, requiring additional explanati on of why this level of recklessness merits this incremental upward departu re is precisely the kind of mechanistic appellate review that Kooninstructs us we are not free to employ.
See Koon , __ U.S. at __, 116 S. Ct. at 2046-47. Collins and our other post-Koon cases are not to the contrary, for those cases did not involve a departure tied to greater recklessness than that contemplated by the Guidelines and explained by facts recited by the sentencing judge. See Collins , 122 F.3d at 1308-09 (finding district court properly justified level of downwarddeparture by reducing criminal history level where court found career offender enh ancement overstated defendant’s criminal past and likely criminal futur e); United States v. Smith , 133 F.3d 737, 751-52 (10th Cir. 1997) (finding degree o f upward departure for-3-

fraudulent conduct was reasonable because it consid ered the seriousness of the offense, the need for punishment and deterrence, an d protection against future offenses); United States v. Lowe , 106 F.3d 1498, 1503 (10th Cir. 1997) (upholding upward departure where defendant’s underrepresentative criminal history category was already at maximum, so sentenc ing judge increased base offense level to compensate). In fact, this court in Smithrecognized that the district judge’s reasons for departure may be adequ ate to explain the level of departure as well. See Smith , 133 F.3d at 752 (relying, at least in part, on reasons, such as seriousness of the offense, articu lated by the district court to support its initial departure decision in affirming a four-level upward departure). The record in this case contains the 1997 United St ates Sentencing Commission Manslaughter Working Group Report prepar ed by the Sentencing Commission staff to aid the Commission in assessing the appropriateness of current Guideline penalties for manslaughter relati ve to other violent offenses. The testimony to the working group of Chief Judge R ichard Battey of the District of South Dakota highlights the difficulties the sen tencing judge in this case encountered. Chief Judge Battey urged the Sentenci ng Commission to review the Manslaughter Guidelines. See Manslaughter Working Group Report at 7, 14. I join those who urge this careful study.