* Th e Honorabl e Judi th M. Barz il ay, Judge, Unit ed Sta tes Court of Internati onal Trade, sitti ng by designation.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0201P (6th C ir.) File Name: 04a02 01p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

R OBER T K OCH , Defenda nt-Appel

lant. X - - - -
> , - - N No. 02-6278

Appeal from the United States District Court for the Eastern District of Kentucky at Covington. No. 01-00083—Joseph M. Hood, District Judge.

Argued: April 28, 2004
Decided and Filed: June 29, 2004

Before: GUY and GI

LMAN, Circuit Judges; BARZI LAY, Judge. *

_________________ COUNSEL

ARGUED: H. Lo

uis Sirkin, SIRKI

N, PIN ALES & SCHW ARTZ, Cincinnat i, O hio, for Appellant. Laura K

. 2 United States v. Koch No. 02-6278

Vo o rhees, ASSISTANT UNI TED STATES ATTORNEY, Co vi ng to n, Ke nt uc ky, for Appellee. ON BRI EF: H. Lo uis Sirkin, Jennifer M. K in sley, Jarrod M. Mohler, SI RKIN, PINAL ES & SCHW ARTZ, Cincinnat i, Ohio, for Appella

nt. Laura K . V oorhees, ASSISTANT UNI TED STATES ATTORNEY, Co vi ng to n, Ke nt uc ky, Charles P. Wisdom, Jr., ASSISTANT UNI TED ST AT ES ATTORNEY, Lexington, Kentucky, for

Appellee.

_________________ OPINION

_________________ JUDITHM. BAR ZILAY, Jud ge . D efendant-Appellant Robert Koch appeals from his sentence entere d onOctober 3, 2002 in the Eastern District of Kentucky a

fter his conviction by a jur y on d rug and firearm offense s. He argues that the dist rict court : (1) e rred i n calcu lati ng the a moun t of dr ugs involved in the con sp ira cy; (2) misapplied the se ntencing guidelines to mak e a two -level adjus tment for po ssess ing a firear m; and (3) i

mproper ly g ranted a n upward departu re on the minimum 10-year sent ence under 18 U.S.C

. § 924(c)(1)(A)(iii). Beca use the district court di d not ab use its discreti o n in sentencing Koch, we AFFIRM the district court’s decision on all three points.

B ACKGROUND Koch, now twenty-six y

ears old, made his living by buying il legal narcoti cs from A

rizona an d selling them in his home stateof Kentu

cky . This cas e revolv es aro und incidents that took place on two separate dates in 2001: April 27 and October 12. Early on the morning of April 27, Koch went to Justin Davis’ trailer

home to co llect a

$5,000 drug debt owed on five pounds of marijuana. Davis was Koch’s “frontman” selling drugs. “Fronti

ng” de notes supp lyin

g narc otics on credit.No. 02-6278 United States v. Koch 3

Kochhad been upset about the $5,000 and did not believe Davis’ claim

that the f

ive pound s of marij uana he gave to Davis had actually

been stolen.

Koch persuaded t hree other men, Patrick O’Brien, Rober t Gibson, and Joe Shukler, to acc ompany him to Davi s’ residence. Because Koch was too intoxicated to drive, Shukler drove Koch’s truck. When the me n arrive d at Davis ’ home, the truck eng ine n oise and b arking dogs wok

e Davis and his r oom mate Luke Hitchner. Koc h walked up to the housewith Gibson while O’ Brien a nd Shukler

remaine d in the truck. Both Koch

an d Gibson we

re car ry ing fir earms. Kochbanged on the do or and demanded that Davis and Hitchner come outs ide. Hitchn er opened the door and,
s uspicious of Koch ’s int entio ns, re ached f or his handgu n

. Hearing Hitchner and Koch argu e at the d oor, Dav is also grabbed a gun.

Moments later, ma

yhem en sued

with g uns bl azi ng. It is unclear who fired the first shot; it is, however, clear that Davis, Gibson, and Koch each fired multiple times. Koch’s Colt .45 handgun and

.45 shell casings were found near the
scene. Koch him se lf apparently fled the scene on foot without be ing hit.

Koch maintains tha t he went t

o see Da vis that da

y me rely to scare him and

t hat he did not intend to harm anyone

. Regar dless of Koch’s intentio ns, however, a serious injury
an d a death resulted from the shootout. As O’Brien a n d Shukler were fl eeing t

he scene , speedin

g off in the tr u ck, O’Brien was sho t in the bac

k of his he ad by

Davis. Co ns eq ue nt ly, O’Brien has lost the use of his left e ye and also suffers froma balance disorder and short-term me

mory loss. Gibson, who was with Koch at the house, died from a bullet also fired by Da

vis.

A fewweeks a fter the

shootout, K

och went to visit his friend Gary B allard in prison. According to Ballard, a dealer
s ervingtime for d

rug-r elated c rimes, Ko ch admitte d that h e 4 United States v. Koch No. 02-6278

and “his boy s” had “loa ded up for bear,” meaning they had loaded guns, a nd went to

Davis’ residence. Koch

told Ballard tha tin addition to the Colt .45 found at the scene, he wa s ca rr yi ng a 9 m m gun which he later stashed in the woods as he was fleeing. Approximat

ely six months after the s hoot out, on October 12, 2001, the police searched Koch’s house pursuant to a warrant. During the October 12 search, of ficers discovered

in K och’ s bedroom

a loaded

9 mm Bere

tta handgun, night vis ion goggle s , thirty -one rou nds of 9 mm ammunition, o ver one t

housand d

ollars in c ash, and

some marijuana. Elsewhere in the house officers found marijuana drying in a close

t, mari juana growing equipment, marijuana seeds, and marijuana roaches. According to his girlfriend Courtney Byrne s, after the shootoutKo ch to ne d d ow n h is dr ug ac ti vi ti es co ns id er ab ly. He was afraid of retali ation by Davis or an inve stigation by the police. H e stopped large scale deal ing and stopped hanging out with the “old crowd.” He sold some of his a ssets and was beingpartiall

y supporte d by

his pare nts and B yr

nes. He continued, however, growing marijuana for

persona l use and for occasional sale to friends.

For the even ts occurring on April 27 and October 12, 2001, Koch was indicted on six counts relating to drug possession,
co ns pi ra cy, and firearm

offenses. At

trial, the jury found him guilty on counts 1, 2, 3, 4, and 6 of the indictment, and acqu it ted him on count 5. At sentencing, the trial court departed from t he probation officer’s r ecommendation and the
applicabl e sentencing guidelines, sentencing Koch to 248 months in prison.

In parti cular, on counts 1, 3, 4, and 6, the district court enhanced the rec ommended

sentenc e by

increa sing the

base offense level to 30 (from the recommended 18) b ec ause it dete r mined

that 2,000 pounds (907 kilograms) of marijuana
were involved

in the conspiracy . Two additional levels wereNo. 02-6278 United States v. Koch 5

added for the “ specific

offense charac teristic ” of posse ss io n of a dangerous weapon (not recommended), and

2 levels for obstructionof justice (recommended). The district court thus sentenced Koch to 60

months in pr

ison on cou

nts 1, 3, 4, and 6 to run concurrently

. The district court also granted the government’s motion for
a six -level upward d

epartur e on coun

t 2. Pursua

nt to 18 U.S.C. § 924 (c)(1) (A)(iii) (2000), c ount 2 already

carried
a ten-year m andat ory mini mum fo r usin g or carr ying a firearm (and disc hargin g the fi rearm)during a

nd in rela tion to
a drug trafficki ng cri me, to run consecutively to any other
se ntence. To effe ctuate the upwar d depart ure, the distric t court used U.S.S .G. §§ 5K2 .1 and 5K2 .2 (2001)because the death of one person and a permanent injury to another person had res u lted during the incident in question. The district court’s decision increased Koch’s sentence on

count 2 to 188 months (from the statutory minimum of 120).

A NAL YSIS
The district c ourt had j urisdicti on pursua nt to 18 U.S. C. § 3231. This court has jurisdiction pursua n t to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. (1) The base o

ffense l evel inc rease

. The base off

ense lev el for dr

ug traf ficking crimes is determined

pursuant to U.S.S.G. § 2D1.1(a) (2001). Koch’s
casefalls und

er subse ction ( a)(3) a

nd, there fore, hi s base offense level is determined by c o nsul ting the provision’s Drug Quantity

Table found in subsection (c).

Koch argues that the district court erred in finding that 2,000 pounds of marijuana wa s inv ol ve d i n t he co ns pi ra cy. See Def.’s Br. at 23. Koch cont ends that the witnesses who testified a t sentenc ing had

an incen tive to lie

in order to minimize their role in the conspiracy and receive a redu ced sentence fro m t he prosecution. See id. Koch further argues 6 United States v. Koch No. 02-6278

that the district court should have disregarded their testimony entirely instead of arriving at a compromise fig ure. See id. at 24. The government responds that when “no drugs areseized, the sente ncing court must approximate the quantity,” and suchdetermination is reviewed for clear er ror. Pl.’s Br. at 23 (citations omitted). The government argue s that the district court’s determination does not constitute clear error.

Inthis circuit, “a district

court 's decision on the amount of [drugs] a defenda nt is to be held

accountable for is a finding of fact whi ch must be

accept e d by a court of appeals unless clearly e rroneous.” United

States v. Walton , 908 F.2d 1289, 1300-1 301 (6th Cir.), cert. denied, 498 U.S. 990 (1990). “[W]here a fact i s cruci al to t he det ermin ation of a def endan t's guidelines base offense level or criminal history score thenit must be pr ov en ” b y a

preponderance of

evidence. Id. at 1302. Th at is, “the g

uideline s do not per

mit the Dist

rict Cour t to hold a defendant responsible for a speci fic qu antit y of drugs
un less th e court c an conc lude the d efenda nt is more l ikely than no t actually

responsible for a quantity greater than or equal to the quantity for which the defe ndant is be ing held responsible.” Id. “If

the exact amount

cannot be determined,
anestimate

will suffice, but here also a prepondera nce of the evidence must support the estimate.” Id.

The districtcourt

did not er

r in findin

g that a pproximate ly 2,0 00 pounds of marijuana was involved in the conspira cy

. Becau se the jur

y never d eterm ined t he amo unt o f drugs involved, the district court needed to make that fa ctual determination

during sentencing. See U.S.S.G. § 2 D1.1 cmt. 12

. Rel ying main ly on new t estim ony given a t sent encin g, the district court arrived at a 2,000 pounds estimate. The 2, 000 pounds estimate is supported by a pre ponderance of evidence. A drug dealer who wo rked for Koch (By bbe) testified t hat he ma

de over e ight trip s and deli vered two to three h undre d pounds at a time for Koch. He also testified that he once saw a “ton” of mar

ijuana in Koch’s house in the upstairs bedroom. The distr ict court d iscounted the latter testimony and interpreted the “ton” figure to me an 1,000No. 02-6278 United States v. Koch 7

pounds. The cour

t multiplie d three hundred by eight, and thenadded 1, 000. The c ourt then reduce d the estimate to 2,000. Th e d ru g q ua nt it y e stimat e was thu s conser vatively made. Cf. Walton , 908 F.2d at 1302 (war ning that the sentencingcourt

should “err on the side of caution”); United States v. Meacham , 27 F.3d 214, 216 (6th Cir. 1994).
Moreover, testimony and other evidence revea led that Koch made his living pri ma rily from drug dealing and supported two dependents (although he was not gene ratin g large amounts of money bef

ore Febr uary 2001, ac cording

to Byrne s). He was a

centra l figur e in the c onspirac

y. A t least two people (By

bbe and Da

vis ) sold dru

gs he pr ovided. H is friend Ballard testified that the drug dealing went as far back
as 1998. Multiple witnesses mentioned a large shipment from Arizona

. W hile he may not have had a “lavish” lifesty

le as characterized b y the g overnment, Pl.’s Br. at 10, Koch neverthe less l ived in a comfortable house and owned two vehicles and other asset s . He often had large quantities of cash. That is , it is more likely than not that the amount of drugs he was involved with was fairl y large (and ce rtainly
more than rec ommended

by t he proba tion offic er, who by hi s ownadmission was not able to review all th e evidence implicated

and did nothave the advantage of testimony given at sentencing). (2) The specific offense characteristic increase. The sentencing guidelinesallow a two- leve l incr

ease “[i]f
a dangerous weapon

(includin g a fir earm) w as posses sed” in
a dru g related crime. U.S.S.G. § 2D1.1(b)(1). “ The enha n cement for weapon possession reflects the increa sed danger of v iolence when drug trafficke rs possess weapons.” U.S.S.G. § 2D1.1 cmt. 3. “The ad justment should

be applied if the wea pon was pr

esent, un less it is clear ly im probable that the wea pon was connected with the offense.” Id. The comments

give t he exam ple of an

unloaded

hunting r

ifle found in a

home, also containing drugs, as falling outside of the provision. See id. 8 United States v. Koch No. 02-6278

The Sixth Circuit r

eviews “ a district court’s

factua l finding s under U.S.S.G. § 2D1.1(b)(1) for clear err or.” United States v. Miggins , 302 F.3d 384, 390 (6th Cir. 2002).

Kochargues that the district court er re d in enhan

cing his sentence on the poss ession of the Ber etta on th e basis tha t suchinc re ase is unwarranted when a defe ndant is convicted for violation of 18 U.S.C. § 924(c), as he was on C ount 2. See Def.’s Br. at 2 4 (c it ati on o mi tt ed) . It is clear that the sentencingjudge cannot apply a section 2D1.1(b)(1) enhancement

when a def endant is also convicted and sentenced for a 1 8 U. S.C. § 924(c ) violation on the sa me ch arge “becau se to do so would const itute impe

rmissib l e double-counting.” U

nited State

s v. Saika ly , 207 F.3d 363, 367 (6th Cir. 2 000) (ci

tation omit

t ed) . Here, Koch was convicted and sente

nced for a section 924(c) v

iolation in Count2 with respect to his possessionof the Colt .45 during the April 27 shooting incident. The two-level enhanc ement,
o nthe other hand, was imposed for his possession of th e Berett a found during the October 12 search, for which he was convicted on Count 6. If the drug off enses on th e two dates
are the same, under Saikaly , the district court cannot order

the enhanc ement. Howeve

r, if they are distinct and separate, no case cited prohibits the enhancement.

Kochcontends tha t when the Beretta was found on October 12, 2001, the drug conspiracy was still ongoing. See Def.’s Br. at 25. In fac t, Ko ch states, while the conspiracy may have been “taper[ing] off, . . . [l ]aw enforcement [neverth eless] found the

remnant s o f the conspiracy when they raided Mr.Koch’s home on October 12, 2001 .” De f.’s Reply Br. at 8. Accordingly , the first questionis whether the drugconspiracy

ended on Apr il 27 such t hat dr ugs found on October 12 gave rise to a sepa rate drug offense. First, the jury found that the drug conspirac y ended on April 27, 2001 after the shooting after Davis and Koc h had a fa lling out and al l individua ls involve d went the ir separ ate way s. Further, the jury ’s f inding is supported by suff icientNo. 02-6278 United States v. Koch 9

1 Th e issue here i s not whether t he offenses occurred on the sam e da t es, but wh ether the two o ffenses ar e relev ant co nduc t. See United States v. Pevele r , 359 F. 3d 369 , 378 n.3 (6th Ci r. 2004). Here, the dist rict

cou rt mad e no e xplicit re levant c ond uct de termin ation, a nd no ne is chal leng ed. The two-l evel enh ancement f or the Beret

ta when another count of th e convict ion in volved sec tion 924(c) rests on the district co urt’s finding tha t t

he con sp iracy ended on the date of the s hootout. In any

even t, the weapo n enhance ment did no t increase Ko ch’s sentence be cause Koch was given a sixt

y-month ma nda tory ma ximum sentenc e on c ounts 1, 3, 4, and 6. See 21 U.S.C. § 841(b)( 1)(D). Regardl ess of wh ethe r or not the weapon enhancement was applied, the mandatory maximum was farless t han the sentenci ng range of Koch’s base of

fense level of 30 plus the obstruction of jus tice enhanc eme nt. We observe that even if t he district court’ s groupi ng of count 1 (whichhad the r elat ed 924(c) convi cti on in c ount2) and count 4 for the p urpose o f determining the ba se offense level was error, sucherror was harml ess becaus e it had no impact

on the actual sent ence he received. Accordingly, no remand is neces sary. See Will iams v. United States , 503 U.S . 193 , 194 (19 92)

. evidence inthe record. Koch’s lifesty le changed

consider ably after the April 27 shooting. He stopped associating with the others in the co nspir acy (e xcept the prison visit to Ballard) and ceased deali ng ( e xcept occasional small sales to friends f orpers onal use). The others in the conspiracy were either dead, injured, in prison, under investigat ion, or simply not around. Even thou

gh the O ctober 1 2 search recove red some “remna nts” of the conspiracy

(possibly including

the Berett

a 9 mm), the district judge did not commit a clear judgment of error in determining the end of the conspira cy as Apr il 27. 1

After determining tha

t t he conspiracy

ended on April 27, the question t

hen bec omes whether the parties met their respective burdens of proof under U.S.S.G. § 2D1.1(b)(1). In order to “ obtain

an enhancement pursuant to § 2D1.1(b)(1), the government must show by a preponderance of the evidence that the defendant possessed the firearm during the drug-trafficking off

ense.” Saikaly
, 207 F.3d at 368 (citation omitted). Once the government establishes that a fire arm was “possessed” and that the firea rm was “present,” “a presumptionarises that

such possession was connected to the offense.” United Sta tes v. H ardin , 248 F.3d

489, 497 ( 6th 10 United States v. Koch No. 02-6278

Cir. 2001) (citat ion and quotation omitted). At that poi

nt, “the burden sh

ifts to the defenda nt to show that it

was clea rly improbab le that the [firearm] was connected to the offense.” Saikaly , 207 F.3d at 368.
Here, the Beretta w as foun d in the same room (Koch’s bedroom) as some marijuana. In other p a rts of the house,
more marijuana and various indi cia of a marijuana growing operation were fo und. Thus, it is more likely than not that the Berett a was possessed in co nn ec ti on wi th dr ug ac ti vi ty. Furthermore, as the go vernment points out, Koch did not present any evidenc e that the Beretta was not con necte d to drugactivity. “I

n fact, he presented no evidenc e to the district court to show tha

t it was cle arly

improbable that the firearm
was associa

ted with the drug

crime .” Pl.’s Br. at 27. Therefore, the senten cing judge did not err in enhancing the sentence because of the Be retta. (3) The six-le

vel upward

departure

. Withrespect

to count 2, the sentencing guidelines provide t hat “[i]f the de fendant

. . . was c onvicted

of vio latin g [18 U.S.C. § 924(c),] the guideline sentence is the minimum termof imprisonment re quired by statute.” U.S. S .G. § 2K2.4(a)(2) (2001). This section c ontains no explicit authorization for an upward departure. Elsewhe re, however, the sentencingguidelines authorize upward departures when death and “significant” physical injury are pre sent, whil e not conditioning the authorization onthe t ype of under lying crime. See U.S.S.G. §§ 5K2.1 & 5K2.2.

If a death r

esults, be fore en

hancing the sente

n ce, the sentencingcourt must examine accom pany ing factors, such as “the defendant’s state of mind, . . . the degree of planning
or preparation, . . . whether multiple deaths resulted, and the
means by w hich life was taken.” U.S.S.G. § 5K2.1. Furthermore, the incr ease should be in proportion to “the dange rousness of the defendant’s condu c t, the extent to which death or serious injury was intende d or knowingly riske d, andNo. 02-6278 United States v. Koch 11

2 Koch argues that t

he distri ct court did not take t hese factors sufficiently into acco unt and erred beca use the d eath and the injury were neit her intention al nor k now ing. See De f.’s Br. at 19-21. The distr ict

cou rt, however, found that Koch “i nten ded to create the dan gerous,
emo tio na lly char ged st andof f t hat ensu ed fol lowi ng hi s pre medit ated, boisterous, armed incursion to the very thr eshol d of

Justin D avis’ ho me.” (App. 33) Th is indic at es that t he distri ct court considered the f actors outl ined in section s 5K 2.1 a nd 5 K2 .2, such as K och ’s state of m ind, in making its finding. T his is sue i s al so t ied t o the caus ati on iss ue discu ssed belo w.

3 He re, Koch argues f

or a de novo rev iew , wh il e t he g over nme n t ins ist s on t

he abus e of

discretion st andard. The federal courts, incl uding the Sixth Circuit , employ both standards in departur es from gui deline s depending on whet

her and t o what

ext ent the quest ion is legal or factual. As the Supreme Court stated in Koon , not muc h tur ns on the l abel chosen because a dis tri ct c ourt tha t made a mis take of l aw wou ld have by definitio n abu sed its d iscretio n. See 518 U.S . at 100

. the extent to which the offense level for the off ense of conviction. . . already

reflects the risk of personal injury .” Id.

If a physical

injury results, the court

must examine similar factors as in U.S.S.G. § 5K2.1, suc h as the de fendant ’s state of mind or the manner

in whichthe injury was ca used, before enhancing the sentence. See U.S.S.G. § 5K2.2. In addition, the in crease

should be i

n proport ion to “the

extent of th e in ju ry, the deg ree to which it may pr ove permanent, and the extent to which th

e injury was intended or knowin gly risked.” 2 Id.

We employ a de novo standard for reviewing a “district court’s legal c onclus ions regarding the application of the sentencingguid elines.” Miggins , 302 F.3d at 390. Furthermore, the appella

te court “review[s] a district court’s decisionto depar

t from the Guideline s sente ncing range for abuseof discretion.” United States v. Chance , 306 F.3d 356, 393 (6th Cir. 2002) (citation omitted). 3

“Beforea departu re is per mitted, ce rtain asp ects of the ca se must be found unusual enough for it to fall outside the 12 United States v. Koch No. 02-6278

heartland of case s in the Guideline.” Koon , 518 U.S. at 98.

“ T o resolve this question, the district court must make a refined assessment

of the many facts bearing on the outcome, inform edby i ts vantag e point an d day -to-day experience in criminal sentencing.” Id. On the other hand, a case outside the “heartland” of cases “will be extremel y ra re.” U.S.S.G. § 5K2.0 cmt.

Inchallen

ging the six -level upward departure from the guideli nes, Koch first underlines the s e ntencing judge’s statemen t, “I t hi nk th e j ur y . . . c ut Mr. Koch a break” on count 5 wher e t he ju ry acquitted him. See Def.’s Br. at 9. Koch c onte nds t hat by inc reasi ng the s enten ce, th e judge “effe ctively

charged, convicted, and sentenced Mr. Koch for Mr. Gibson’s death and Mr. O’Brien’ s injuries w ithout a grand jury indictment or a trial.” Id. Kochfurther argues that the ten-yea

r mandatory minimum sentence under section 924(c) adequately

takes into account the risk of “violence that could result from the commission of the underly ing offense.” Id. at 13. Koch thus challenges the di st rict court’s decision that his case fell outside the heartland of cases cove red by the applicable guideline under Koon

. See id. at 14.

Kochreferences cases that e xplain the reason for the mandatory sente

nce under section 924(c) being the resultant risk of violence when

drug s and guns come together. For example, in United Sta tes v. Zam ora , the Ninth Circuit explained that “ the ma ndato ry senten cing pro visions of section924 exis t becaus e the p osses sion of a gun durin g a drugtrafficking offense incre ases the risk of viole nce.” 37 F.3d 531, 533 (9th Cir. 1994) (citation omitted). Another exampleis an armed r

obbery case where the

Sixth Circuit found that the applicable sentenc i ng gui deline a dequate ly took into conside ration th at ban k robb ers fre quent ly discha rge firear ms, and th ereby struc

k down the enhancement. See Def.’s Br. at 17 (di scuss ing United States v. Bond , 22 F.3d 662 (6th Cir. 1994)).No. 02-6278 United States v. Koch 13

T he government counters with three opinions where t h e courts found that de at h or seri ous injury takes the

offense outside the heartland of cases covered by section924(c) and the ap plicable guideline. See Pl.’s Br. at 18-19. In U nite d States v. Sche etz , the sentencing court authorized a departure for the di scharge of a fire arm durin g a con spiracy

to distribu

te marijuana (less than 50 kilograms) when a death and phy sical inju ry resulted, even though the defendant’s c ulpability was found to be “at the low end of the spectrum.” 293 F.3d 175, 191 (4th Cir. 2002). In United States v. Philiposian , 267 F.3d 214 (3d Cir. 2001), the court found that a t wo-lev el upward departure for permanent injury was warranted when the natur e and extent of injuries (including psycholog ical injuries) took the case “outside the heartland” of “pe rmanent or life threateni ng inj uries” in an aggrava ted assault charge for causingpermane

nt injury . Addit ion ally, in Philiposian , the d ef endant randomly picked a

mail carrier as his victim in a sniper attack with an AK-47 , a high -capac ity, semiautomatic weapon. See 267 F.3d

at 215. In United Sta tes v. Baz ile , 30 Fed. Appx. 830, 2002 WL 2033 42 (10th Cir., Feb. 11, 2002), the court upheld an upward departure in a sec tion 92 4(c) sentence when

the defendant shot and phy sically injured two victims.

To allow a departure from the g uideline s, the first

question is whether

a particular

case falls outside the heartland of cases (brought under a nd impl icating 18 U.S.C. § 924(c) and U.S.S.G. § 2K2.4(a)(2) (2001)), making it an “unusual” case. Chance
, 306 F. 3d at 3 93 (ci ting Koon ) . The district court may not depart from the guideli nes if the case is a “heartland”
case. The second question is whether the special factor (such
as the e xistence of death or physica l injury) is an “encouraged”

factor to warrant an enha nceme nt under the guideli nes. “If the special f

actor is an encouraged f

actor, the sentencingcourt may depa rt if the applicable Guideline does notalread

y ta ke the fa ctor into c onsidera

ti on.” Id. If the guidel in e already

takes the special factor into consideration, “the se nt en ci ng co ur t s ho ul d d ep ar t o nl y if the factor is 14 United States v. Koch No. 02-6278

4 In thi s opini on, only

those par

ts of the Chance test t

hat are pertinent to t his case are di scus sed. pre sent to a deg ree tha t makes the

case dif ferent f rom th e ordinary c ase where the factor is present.” Id. 4

Death and serious physica

l injury are “ encouraged

factor s” for enhancement

unde r U.S.S.G. §§ 5K2.1 and 5K2.2. The applica ble sentencing guideline 2K2.4(a)(2) (20 01), however, points to section 924(c) without mentioning death or physical in ju ry. Section924(c) in turn provides a mandatory minimum for usin g, carrying, and di schargi ng a fi rearm during a drug offense, but does not indicate what the sentence should be if a death or phy sical injury occur red.
Here, the district court stated that “[s]ince Section 2K2.4 provides no sort of enhancement for the physica

l injuries and death that resul ted from the defendant’s actions, the court finds that t his case is outside . . . the heartland of cases covered by t his guideline.” (App. 258A.) In a rguing that this
caseis within the heartla

nd, Koch i

ndicate s that Zamora (and other c a ses) explained that “the mandatory sentencing provisions of section 924 exist because the posse ssion of a gun during a drug of

fen se increases the risk of violence.” 37 F.3d at 533. The issue therefore is whether the section 924 mandatory

minimum ade quately

takes in

to a ccount the possibility of violence.

There is no case ci

ted by either p arty

directly on p oi nt . In the cases cit ed by Koch ( Zamora and Bond

) no death or physical inj ury re sulted. He

re, the v iolence was not me

rely risked, but it actu

ally occurr ed, cau sing a de ath

and a serious in ju ry. In the cases cited by the governmen

t ( Scheetz
, Philiposian
, and Bazile ) on the other hand, the defendant was the person who fired the shots that caused a death or physicalNo. 02-6278 United States v. Koch 15

5 The government arg ues t hat Sche etz controls thi s case because the defendan t there did not fi re the shot t hat led to the death of

one vi ctim

. However, the defendant in Sch eetz admitt ed that he fi red shots at anot

her victim who w as injure d. E ven th ough we fi nd the Sche etz cou rt’s pronouncemen t o n caus ation h elpful in o ur ultima te dec ision to u pho ld the depart

ure, Sche etz cann ot co ntrol this ca se be cause Ko ch did not fire any of the shot s that caused eit her the injury

or the death. in ju ry. 5 Koch, h o wever, did not directly cause the death or the injury here. K

och urges that there must be a “strong er link [than foun

d by the distri ct court

] between Koch’s co nduct and the deat h and physical injuries.” Def.’s Br. at 19 (citation omitted). The district c ourt expla ined its de cision as

follows:

Koch’s actions w ere the

cataly sts that set off the gun bat tle tha t resulted in Bob Gibson’s death and Pat O’Brien’s serious physical injuries. Altho ugh he may nothave fir

ed th e fatal shot, Robbie Koch no doubt intended to create the dangerous, emotionally charged standoff that ensued following his premeditated, boistero us, armed

incursion to the very thre shold of Justin Davis’ home. But

for Mr. K och’s ag gressi ons, the shootout would never have taken place. (App. 33.)

Inother words, the d

istrict c ourt aut horized the upward departure because it found that Koch’s actions were the “cataly sts” that led to the death and the injury

. We agree. The district court’s en hance ment was justified by the facts of this case. But for K och’s ac tions, the tragedy at Davis’ ho

use would

never have taken place. Koch, w ho
was at the center of

the drug conspiracy, was upset about the prospect that his fro ntman D avis was cheating him. To collect the money or to intimidat e Davis or both Koch appare ntly thought a show of force was nece ssary. To that end, Koch re cruited

three ot her me n to comewith him to Davis’ residence. Koch and the me n took wea

pons with 16 United States v. Koch No. 02-6278

them. They

arrived at Davis’ residence at dawn, startling the inhabita nts. Koch banged on the door, and demanded that Davis and his roommate come out. As a resul t of Koch’ s actions, the inhabitants reached for t heir guns and armed themselve s. Even

though Koch did not kill or injure any body d ir ec tl y, he is nevertheless responsible for the death and the injury as the primary

instiga tor of the violence that inevitably ensued. The distr

ict cour t was correc t that it should have been reasona bly forese eable to

him that his

actions could lead to an injury or eve

n death.

Neither t he applicable sentencing guide line nor section 924(c) adequa

tely contemplates the events that took place at Davis’ residence on

A pril 27, 20 01. Section 924(c)merely prescribes a mandatory minimum for the r isk of violence that may resul t from carrying a firearm during a drug of fense. Cf. Zamora , 37 F.3d

at 533. The mandatory

minimum does not preclude the imposition of a higher sentence when actua l vio lence occurs and individuals are killed or seriously hurt.

Becau se this case

is outsi de the heartland of the cases envisioned

by section 924(c) and because Koch’s conduct led to the d ea th and physical injury , we sustain the upward departure on Koch’s sentence. As in S cheetz , there is “no basis for for

eclo s ing a departure under U.S.S.G. § 5K2.1 or U.S.S.G. § 5K2.2 when a defendant helps put into motion a chain of events that risks serious injury or death, even when
anintent to harm is entirely absent a nd the defendant

was not directly re sponsible for the death.” 293 F.3d at 191.

Withrespect to the ma

gnitude of the increase, the district court “elect[ed] to employ a six-level increase similar to the increases for permanen

t or life threatening bodily injury found at se ntencing guideline Section 2A2.2, ag gravated assault; Section2B3.1, robbery; a nd Section 2B3.2, extortion by force.” (App. 259.) In U.S.S.G. § 2A2 .2 (b )(3) (C), a sixlevel increase is provided for a “permane nt or life-threatening bodily injury .” This is t

wo levels higher than the i

ncreas e level pr ov id ed fo r “ se ri ou s b od il y in ju ry. ” In sectionsNo. 02-6278 United States v. Koch 17

2B3.1(b )(3)( C) and 2B3. 2(b)(4) (C), the s ame incr ease is provided for the same injury . Here, the district court counted only O’Brien’s injuries and

no t Gibs on’sdeat

h in th e sixlevel departure by

not increasing the level above six. Thus
, the magnitu

de of the increa se for both the death and the injury is reasonable.

C ONCLUSI ON
For all the foregoing reasons, we AFFI RM t he judgment of the dis trict cou

rt.