United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-1411

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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* [UNPUBLISHED]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. *

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 Submitted: September 5, 1997

 Filed: September 17, 1997 

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Before McMILLIAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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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 only a minor concussion, had

been driving about 77 miles per hour at the time of the collision, and his blood-alcohol

level registered .318 several hours later, when he submitted to testing. He later pleaded

guilty to one count of involuntary manslaughter, in violation of 18 U.S.C. §§ 1153 and

1112. After calculating a Guidelines sentencing range of 10 to 16 months based on the
The Honorable Richard H. Battey, Chief Judge, United States District Court for 1

the District of South Dakota.

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involuntary-manslaughter Guideline, U.S. Sentencing Guidelines Manual § 2A1.4

(1995), the district court departed upward, sentencing Two Crow to 60 months

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 the 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 in

formulating the guidelines that should result in a sentence different from that

described.” 18 U.S.C. § 3553(b). We review “departure decisions under a #unitary

abuse-of-discretion standard.&” 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, but serious physical injury to another. The Guidelines indicate

significant physical injury is a ground for departure, and section 2A1.4 “does not

appear to take into account physical injuries sustained by persons other than the

decedent.” See United States v. Sasnett, 925 F.2d 392, 398 (11th Cir. 1991) (citing

U.S. Sentencing Guidelines Manual § 5K2.2, p.s. (1995)); Koon, 116 S. Ct. at 2045

(district court has authority to depart based on “encouraged” factor if applicable

Guideline does not already take factor into account). 

The district court also believed the case was atypical in that two deaths occurred,

and Two Crow&s conduct in entering a vehicle and speeding down the highway when

his blood-alcohol level was so high exceeded merely reckless conduct and approached

intentional conduct. The Guidelines authorize departure in the case of death,

instructing a sentencing judge to consider such factors as whether multiple deaths
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occurred, the dangerousness 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 risk of personal injury.” U.S.

Sentencing 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 resulted from a defendant&s conduct, or the degree of recklessness involved in

causing those deaths, other than to distinguish between criminally negligent and

reckless conduct. See Koon, 116 S. Ct. at 2045 (court may depart even when

“encouraged factor” is taken into account by applicable Guideline if factor is present

to exceptional degree or in some other way makes case different from ordinary case

where factor is present). 

In these circumstances, we conclude the district court did not abuse its discretion

in departing upward to a sentence of 60 months. Cf. Sasnett, 925 F.2d at 394-95, 398

(approving upward departure to 60 months imprisonment where defendant with bloodalcohol level of .24 drove vehicle that collided with another vehicle, resulting in one

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.