17-3689 

United States v. Hicks-Bailey 

 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED 

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY 

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE 

NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY 

OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated Term of the United States Court of Appeals for the Second Circuit, held at the 

2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 

29th 3 day of October, two thousand eighteen. 

4

5 Present: ROSEMARY S. POOLER, 

6 RAYMOND J. LOHIER, JR., 

7 SUSAN L. CARNEY, 

8 Circuit Judges. 

9 

10 _____________________________________________________ 

11

12 UNITED STATES OF AMERICA, 

13

14 Appellee, 

15

16 v. 17-3689 

17

18 DAMIEN C. HICKS-BAILEY, 

19

20 Defendant-Appellant.

21 _____________________________________________________ 

22 

23 Appearing for Appellant: E. Carey Cantwell, Buffalo, N.Y. 

24

25 Appearing for Appellee: Mary Baumgarten, Assistant United States Attorney, for James P. 

26 Kennedy, United States Attorney for the Western District of New 

27 York, Buffalo, N.Y. 

28

29 Appeal from the United States District Court for the Western District of New York (Arcara, J.). 

30
2 

1 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, 

2 AND DECREED that the order of said District Court be and it hereby is AFFIRMED.

3

4 Defendant-Appellant Damien C. Hicks-Bailey appeals from a November 6, 2017 

5 judgment entered by the District Court for the Western District of New York (Arcara, J.), 

6 sentencing him principally to a term of 96 months’ imprisonment for possession with intent to 

7 distribute and distribution of heroin. The judgment was imposed after Hicks-Bailey pled guilty. 

8 The district court determined, after a Fatico hearing, that an upward departure was warranted 

9 because Hicks-Bailey’s distribution of heroin resulted in the overdose death of its recipient. This 

10 appeal was timely filed on November 8, 2017. We assume the parties’ familiarity with the 

11 underlying facts, procedural history, and specification of issues for review. 

12

13 We review a district court’s sentencing decision for both substantive and procedural 

14 reasonableness. United States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir. 2006), abrogated in 

15 part on other grounds by Kimbrough v. United States, 552 U.S. 85 (2007). We review the district 

16 court’s interpretation of the Guidelines de novo and its findings of fact for clear error. Id. at 132. 

17 We review the extent of a departure under the Guidelines for abuse of discretion. United States v. 

18 Fuller, 426 F.3d 556, 562 (2d Cir. 2005). 

19

20 I. Application of U.S.S.G. § 5K2.1 

21 Hicks-Bailey first asserts that the district court erred in concluding that his offense 

22 conduct resulted in the death of Eric Harkins such that Section 5K2.1 applies. Section 5K2.1 

23 affords a court discretion to “increase the sentence above the authorized guideline range” if it 

24 finds that death resulted from the criminal conduct. To assess the applicability of Section 5K2.1, 

25 “the court should use the preponderance of the evidence standard to determine whether death 

26 resulted.” United States v. Cordoba-Murgas, 233 F.3d 704, 710 (2d Cir. 2000). The district court 

27 did not err in finding, by a preponderance of the evidence, that Hicks-Bailey’s distribution of 

28 heroin to Harkins resulted in Harkins’s death. 

29

30 In reaching its conclusion, the district court correctly noted and applied the 

31 preponderance of the evidence standard. The credible evidence to this effect included the 

32 proximity in time between Hicks-Bailey’s delivery of heroin to Harkins, Harkins’s text messages 

33 regarding the superior potency of the heroin, and Harkins’s estimated time of death. 

34 Additionally, Hicks-Bailey’s DNA was present on an empty corner portion of a plastic bag near 

35 the body. The medical examiner testified that, although Harkins had ingested drugs other than 

36 heroin, the heroin alone was sufficient to cause death. Accordingly, we affirm the district court’s 

37 finding, by a preponderance of the evidence, that Hicks-Bailey’s distribution of heroin resulted 

38 in Harkins’s death, such that Section 5K2.1 applies. 

39

40 II. Consideration of U.S.S.G. § 2D1.1(a)(2) 

41 Hicks-Bailey next argues that the district court misapplied U.S.S.G. § 2D1.1(a)(2) in 

42 determining the extent of its departure under Section 5K2.1. In particular, he asserts that district 

43 court “overreached” by applying U.S.S.G. § 2D1.1(a)(2) and that “because there is no evidence 

44 he engaged in premeditated murder,” the district court should have used a base offense level of 

45 18, which is associated with involuntary manslaughter involving reckless conduct under 

46 U.S.S.G. § 2A1.4(a)(2)(A). This argument fails. 
3 

1 In departing upward pursuant to Section 5K2.1, “[t]he extent of the increase should 

2 depend on the dangerousness of the defendant’s conduct, the extent to which death or serious 

3 injury was intended or knowingly risked, and the extent to which the offense level for the offense 

4 of conviction, as determined by the other Chapter Two guidelines, already reflects the risk of 

5 personal injury.” U.S.S.G. § 5K2.1 (emphasis added). At sentencing, the district court noted that 

6 “Congress’ assessment of the appropriate punishment when a person has been convicted [under 

7 Section 841(b)(1)(C)] of the offense of distributing a controlled substance that caused death is 

8 certainly entitled to substantial weight,” but it declined to accept the government’s proposed 

9 method of using an offense level of 38 pursuant to Section 2D1.1(a)(2) as a starting point. 

10

11 Instead, the court used the original offense level of 10 as a starting point, and then it 

12 considered “the extent necessary to depart upwardly from that starting point to reach an 

13 appropriate offense level and a range of imprisonment.” In so doing, it considered “the 2D1.1 

14 guidelines, the harm that resulted from the defendant’s offense, the degree of recklessness of the 

15 defendant’s conduct when he consciously disregarded the risk of death or serious injury[,] . . . 

16 and the strength of the showing made by the United States” in order to conclude that offense 

17 level 31 was an appropriate base offense level on the facts. (App. 337.) Having determined a 

18 substantial increase was appropriate because Hicks-Bailey “knowingly risked” death or serious 

19 injury by distributing an unknown controlled substance, see Section 5K2.1 (“The extent of the 

20 increase should depend on . . . the extent to which death or serious injury was . . . knowingly 

21 risked”), the court acted within its discretion in increasing Hicks-Bailey’s offense level to level 

22 31 before applying a six-level reduction for acceptance of responsibility and minimal 

23 participation in the criminal activity. 

24

25 We have considered the remainder of Hicks-Bailey’s arguments and find them to be 

26 without merit. Accordingly, the order of the district court hereby is AFFIRMED. 

27

28 FOR THE COURT: 

29 Catherine O’Hagan Wolfe, Clerk 

30 

31