United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1411

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of South Dakota. Cicero Harley Two Crow, * * [UNPUBLISHED] Appellant. *

___________ Submitted: September 5, 1997 Filed: September 17, 1997

___________ Before McMILLIAN, BEAM, and MORRIS SHEPPA RD ARNOLD, Circuit Judges.

___________ PER CURIAM.
Cicero Harley Two Crow, a Native American, killed two persons and seriously injured another when he drove his truck over the center line of a highway and collided head-on with another vehicle. Two Crow, who sustained onl y a minor concussion, had been driving about 77 miles per hour a t the time of the collision, and his blood-alcohol level registered .318 several hours later, when he submitted to testin g. He later pleaded guilty to one count of involuntary ma nslaughter, in violation of 18 U.S.C. §§ 1153 and 1112. After calculating a Guidelines sentencing range of 10 to 16 months based on theThe Honorable Richard H. Battey, Chief Judge, United States District Court for 1 the District of South Dakota. -2- involuntary-manslaughter Guideline, U.S. Sentencing Guidelines Manual § 2A1. 4 (1995 ), the district court departed upward, sentencing Two Crow to 60 month s 1 imprisonment and 3 years supervised release; the court also ordered him to pay $8,164 in restitution. Two Crow appeals, challenging the upward departure. We affirm. A sentencing court has discretion to depart from t he applicable Guidelines range when a case involves an “aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission i n formula ting the guidelines that should result in a sentence different from that describe d.” 18 U.S.C. § 3553(b). We review “departure decisions under a # unitary abuse-of-discretionstandard. & ” United States v. Washington , 109 F.3d 459, 462 (8th Cir. 1997) (quoting Koon v. United States , 116 S. Ct. 2035 (1996)). In support of the departure, the district court noted that Two Crow & s conduct had caused not only death, bu t serious physical injury to another. The Guidelines indicate sign ificant

physical injury is a ground for departure, and section 2A1.4 “does no t appe ar to take into account physical injuries sustained by persons other than th e dece dent.” See United States v. Sasnett , 925 F.2d 392, 398 (11th Cir. 1991) (citin g U.S. Sentencing Guidelines Manual § 5K2.2, p.s. (1995)); Koon , 116 S. Ct. at 204 5 (distri ctcourt has authority to depart based on “encouraged” factor if applicabl e Guideline does not already take factor into account). The district court also believed the case was atypical in that two death s occurred, and TwoCrow & s conduct in entering a vehicle and speeding down the highway when his blood-alcohol level was so high exceede d merely reckless conduct and approached in tentional conduct. The Guidelines authorize departure in the case of death , instructing a sentencing judge to consider such factors as whether multiple deaths-3-

occurred, the dangerousnes s of the defendant & s conduct, “the extent to which death or serious injury was intended or knowingly risked, and the extent to which the offense level for the offense of conviction . . . already reflects the ris k of personal injury.” U.S. Sentenci ng Guidelines Manual § 5K2.1, p.s. (1995). Although section 2A1. 4 necessarily takes death into account, it makes no adjustment for the number of deaths that resul ted from a defendant & s conduct, or the degree of recklessness involved i n causin g those deaths, other than to distinguish between criminally negligent an d rec kless conduct. See Koon , 116 S. Ct. at 2045 (court may depart even whe n

“ e ncouraged factor” is taken into account by applicable Guideline if factor is present to exce ptional degree or in some other way makes case different from ordinary cas e where factor is present). In these circumstances, we conclude the district court did not abu se its discretion in departing upward to a sentenc e of 60 months. Cf. Sasnett , 925 F.2d at 394-95, 398 (approving upward departure to 60 months imprisonment where defendant with bloodalc ohol level of .24 drove vehicle that collided with another vehicle, resulting in on e death and serious injuries to another). Accordingly, we affirm Two Crow & s sentence. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.