*

The Honorable Judith M. Barzilay, Judge, United States Court of

International Trade, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0201P (6th Cir.)

File Name: 04a0201p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT KOCH,

Defendant-Appellant.

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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 GILMAN, Circuit Judges; BARZILAY,

Judge.*

_________________

COUNSEL

ARGUED: H. Louis Sirkin, SIRKIN, PINALES &

SCHWARTZ, Cincinnati, Ohio, for Appellant. Laura K.

2 United States v. Koch No. 02-6278

Voorhees, ASSISTANT UNITED STATES ATTORNEY,

Covington, Kentucky, for Appellee. ON BRIEF: H. Louis

Sirkin, Jennifer M. Kinsley, Jarrod M. Mohler, SIRKIN,

PINALES & SCHWARTZ, Cincinnati, Ohio, for Appellant.

Laura K. Voorhees, ASSISTANT UNITED STATES

ATTORNEY, Covington, Kentucky, Charles P. Wisdom, Jr.,

ASSISTANT UNITED STATES ATTORNEY, Lexington,

Kentucky, for Appellee.

_________________

OPINION

_________________

JUDITH M. BARZILAY, Judge. Defendant-Appellant

Robert Koch appeals from his sentence entered on October 3,

2002 in the Eastern District of Kentucky after his conviction

by a jury on drug and firearm offenses. He argues that the

district court: (1) erred in calculating the amount of drugs

involved in the conspiracy; (2) misapplied the sentencing

guidelines to make a two-level adjustment for possessing a

firearm; and (3) improperly granted an upward departure on

the minimum 10-year sentence under 18 U.S.C.

§ 924(c)(1)(A)(iii). Because the district court did not abuse

its discretion in sentencing Koch, we AFFIRM the district

court’s decision on all three points. 

BACKGROUND

Koch, now twenty-six years old, made his living by buying

illegal narcotics from Arizona and selling them in his home

state of Kentucky. This case revolves around 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 collect a $5,000 drug debt owed on five

pounds of marijuana. Davis was Koch’s “frontman” selling

drugs. “Fronting” denotes supplying narcotics on credit.
No. 02-6278 United States v. Koch 3

Koch had been upset about the $5,000 and did not believe

Davis’ claim that the five pounds of marijuana he gave to

Davis had actually been stolen. 

Koch persuaded three other men, Patrick O’Brien, Robert

Gibson, and Joe Shukler, to accompany him to Davis’

residence. Because Koch was too intoxicated to drive,

Shukler drove Koch’s truck. When the men arrived at Davis’

home, the truck engine noise and barking dogs woke Davis

and his roommate Luke Hitchner. Koch walked up to the

house with Gibson while O’Brien and Shukler remained in

the truck. Both Koch and Gibson were carrying firearms.

Koch banged on the door and demanded that Davis and

Hitchner come outside. Hitchner opened the door and,

suspicious of Koch’s intentions, reached for his handgun.

Hearing Hitchner and Koch argue at the door, Davis also

grabbed a gun. 

Moments later, mayhem ensued with guns blazing. 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 himself apparently fled the scene on foot

without being hit.

Koch maintains that he went to see Davis that day merely

to scare him and that he did not intend to harm anyone.

Regardless of Koch’s intentions, however, a serious injury

and a death resulted from the shootout. As O’Brien and

Shukler were fleeing the scene, speeding off in the truck,

O’Brien was shot in the back of his head by Davis.

Consequently, O’Brien has lost the use of his left eye and also

suffers from a balance disorder and short-term memory loss.

Gibson, who was with Koch at the house, died from a bullet

also fired by Davis. 

A few weeks after the shootout, Koch went to visit his

friend Gary Ballard in prison. According to Ballard, a dealer

serving time for drug-related crimes, Koch admitted that he

4 United States v. Koch No. 02-6278

and “his boys” had “loaded up for bear,” meaning they had

loaded guns, and went to Davis’ residence. Koch told Ballard

that in addition to the Colt .45 found at the scene, he was

carrying a 9 mm gun which he later stashed in the woods as

he was fleeing. 

Approximately six months after the shootout, on

October 12, 2001, the police searched Koch’s house pursuant

to a warrant. During the October 12 search, officers

discovered in Koch’s bedroom a loaded 9 mm Beretta

handgun, night vision goggles, thirty-one rounds of 9 mm

ammunition, over one thousand dollars in cash, and some

marijuana. Elsewhere in the house officers found marijuana

drying in a closet, marijuana growing equipment, marijuana

seeds, and marijuana roaches. 

According to his girlfriend Courtney Byrnes, after the

shootout Koch toned down his drug activities considerably.

He was afraid of retaliation by Davis or an investigation by

the police. He stopped large scale dealing and stopped

hanging out with the “old crowd.” He sold some of his assets

and was being partially supported by his parents and Byrnes.

He continued, however, growing marijuana for personal use

and for occasional sale to friends. 

For the events occurring on April 27 and October 12, 2001,

Koch was indicted on six counts relating to drug possession,

conspiracy, and firearm offenses. At trial, the jury found him

guilty on counts 1, 2, 3, 4, and 6 of the indictment, and

acquitted him on count 5. At sentencing, the trial court

departed from the probation officer’srecommendation and the

applicable sentencing guidelines, sentencing Koch to 248

months in prison. 

In particular, on counts 1, 3, 4, and 6, the district court

enhanced the recommended sentence by increasing the base

offense level to 30 (from the recommended 18) because it

determined that 2,000 pounds (907 kilograms) of marijuana

were involved in the conspiracy. Two additional levels were
No. 02-6278 United States v. Koch 5

added for the “specific offense characteristic” of possession

of a dangerous weapon (not recommended), and 2 levels for

obstruction of justice (recommended). The district court thus

sentenced Koch to 60 months in prison on counts 1, 3, 4, and

6 to run concurrently. 

The district court also granted the government’s motion for

a six-level upward departure on count 2. Pursuant to

18 U.S.C. § 924(c)(1)(A)(iii) (2000), count 2 already carried

a ten-year mandatory minimum for using or carrying a

firearm (and discharging the firearm) during and in relation to

a drug trafficking crime, to run consecutively to any other

sentence. To effectuate the upward departure, the district

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 resulted 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). 

ANALYSIS

The district court had jurisdiction pursuant to 18 U.S.C.

§ 3231. This court has jurisdiction pursuant to 18 U.S.C.

§ 3742 and 28 U.S.C. § 1291.

(1) The base offense level increase.

The base offense level for drug trafficking crimes is

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

case falls under subsection (a)(3) and, therefore, his base

offense level is determined by consulting 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 was involved in the conspiracy.

See Def.’s Br. at 23. Koch contends that the witnesses who

testified at sentencing had an incentive to lie in order to

minimize their role in the conspiracy and receive a reduced

sentence from the 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 figure. See id. at

24. The government responds that when “no drugs are seized,

the sentencing court must approximate the quantity,” and

such determination is reviewed for clear error. Pl.’s Br. at 23

(citations omitted). The government argues that the district

court’s determination does not constitute clear error. 

In this circuit, “a district court's decision on the amount of

[drugs] a defendant is to be held accountable for is a finding

of fact which must be accepted by a court of appeals unless

clearly erroneous.” United States v. Walton, 908 F.2d 1289,

1300-1301 (6th Cir.), cert. denied, 498 U.S. 990 (1990).

“[W]here a fact is crucial to the determination of a defendant's

guidelines base offense level or criminal history score then it

must be proven” by a preponderance of evidence. Id. at 1302.

That is, “the guidelines do not permit the District Court to

hold a defendant responsible for a specific quantity of drugs

unless the court can conclude the defendant is more likely

than not actually responsible for a quantity greater than or

equal to the quantity for which the defendant is being held

responsible.” Id. “If the exact amount cannot be determined,

an estimate will suffice, but here also a preponderance of the

evidence must support the estimate.” Id. 

The district court did not err in finding that approximately

2,000 pounds of marijuana was involved in the conspiracy.

Because the jury never determined the amount of drugs

involved, the district court needed to make that factual

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

12. Relying mainly on new testimony given at sentencing,

the district court arrived at a 2,000 pounds estimate. The

2,000 pounds estimate is supported by a preponderance of

evidence. A drug dealer who worked for Koch (Bybbe)

testified that he made over eight trips and delivered two to

three hundred pounds at a time for Koch. He also testified

that he once saw a “ton” of marijuana in Koch’s house in the

upstairs bedroom. The district court discounted the latter

testimony and interpreted the “ton” figure to mean 1,000
No. 02-6278 United States v. Koch 7

pounds. The court multiplied three hundred by eight, and

then added 1,000. The court then reduced the estimate to

2,000. The drug quantity estimate was thus conservatively

made. Cf. Walton, 908 F.2d at 1302 (warning that the

sentencing court should “err on the side of caution”); United

States v. Meacham, 27 F.3d 214, 216 (6th Cir. 1994). 

Moreover, testimony and other evidence revealed that Koch

made his living primarily from drug dealing and supported

two dependents (although he was not generating large

amounts of money before February 2001, according to

Byrnes). He was a central figure in the conspiracy. At least

two people (Bybbe and Davis) sold drugs he provided. His

friend Ballard testified that the drug dealing went as far back

as 1998. Multiple witnesses mentioned a large shipment from

Arizona. While he may not have had a “lavish” lifestyle as

characterized by the government, Pl.’s Br. at 10, Koch

nevertheless lived in a comfortable house and owned two

vehicles and other assets. 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 fairly large (and certainly

more than recommended by the probation officer, who by his

own admission was not able to review all the evidence

implicated and did not have the advantage of testimony given

at sentencing). 

(2) The specific offense characteristic increase. 

The sentencing guidelines allow a two-level increase “[i]f

a dangerous weapon (including a firearm) was possessed” in

a drug related crime. U.S.S.G. § 2D1.1(b)(1). “The

enhancement for weapon possession reflects the increased

danger of violence when drug traffickers possess weapons.”

U.S.S.G. § 2D1.1 cmt. 3. “The adjustment should be applied

if the weapon was present, unless it is clearly improbable that

the weapon was connected with the offense.” Id. The

comments give the example of an unloaded hunting rifle

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 reviews “a district court’s factual findings

under U.S.S.G. § 2D1.1(b)(1) for clear error.” United States

v. Miggins, 302 F.3d 384, 390 (6th Cir. 2002).

Koch argues that the district court erred in enhancing his

sentence on the possession of the Beretta on the basis that

such increase is unwarranted when a defendant is convicted

for violation of 18 U.S.C. § 924(c), as he was on Count 2.

See Def.’s Br. at 24 (citation omitted). It is clear that the

sentencing judge cannot apply a section 2D1.1(b)(1)

enhancement when a defendant is also convicted and

sentenced for a 18 U.S.C. § 924(c) violation on the same

charge “because to do so would constitute impermissible

double-counting.” United States v. Saikaly, 207 F.3d 363,

367 (6th Cir. 2000) (citation omitted). Here, Koch was

convicted and sentenced for a section 924(c) violation in

Count 2 with respect to his possession of the Colt .45 during

the April 27 shooting incident. The two-level enhancement,

on the other hand, was imposed for his possession of the

Beretta found during the October 12 search, for which he was

convicted on Count 6. If the drug offenses on the two dates

are the same, under Saikaly, the district court cannot order the

enhancement. However, if they are distinct and separate, no

case cited prohibits the enhancement. 

Koch contends that when the Beretta was found on

October 12, 2001, the drug conspiracy was still ongoing. See

Def.’s Br. at 25. In fact, Koch states, while the conspiracy

may have been “taper[ing] off, . . . [l]aw enforcement

[nevertheless] found the remnants of the conspiracy when

they raided Mr.Koch’s home on October 12, 2001.” Def.’s

Reply Br. at 8. Accordingly, the first question is whether the

drug conspiracy ended on April 27 such that drugs found on

October 12 gave rise to a separate drug offense. 

First, the jury found that the drug conspiracy ended on

April 27, 2001 after the shooting after Davis and Koch had a

falling out and all individuals involved went their separate

ways. Further, the jury’s finding is supported by sufficient
No. 02-6278 United States v. Koch 9

1

The issue here is not whether the offenses occurred on the same

dates, but whether the two offenses are relevant conduct. See United

States v. Peveler, 359 F.3d 369, 378 n.3 (6th Cir. 2004). Here, the district

court made no explicit relevant conduct determination, and none is

challenged. The two-level enhancement for the Beretta when another

count of the conviction involved section 924(c) rests on the district court’s

finding that the conspiracy ended on the date of the shootout. In any

event, the weapon enhancement did not increase Koch’s sentence because

Koch was given a sixty-month mandatory maximum sentence on counts

1, 3, 4, and 6. See 21 U.S.C. § 841(b)(1)(D). Regardless of whether or

not the weapon enhancement was applied, the mandatory maximum was

far less than the sentencing range of Koch’s base offense level of 30 plus

the obstruction of justice enhancement. We observe that even if the

district court’s grouping of count 1 (which had the related 924(c)

conviction in count 2) and count 4 for the purpose of determining the base

offense level was error, such error was harmless because it had no impact

on the actual sentence he received. Accordingly, no remand is necessary.

See Williams v. United States, 503 U.S. 193, 194 (1992). 

evidence in the record. Koch’s lifestyle changed considerably

after the April 27 shooting. He stopped associating with the

others in the conspiracy (except the prison visit to Ballard)

and ceased dealing (except occasional small sales to friends

for personal use). The others in the conspiracy were either

dead, injured, in prison, under investigation, or simply not

around. Even though the October 12 search recovered some

“remnants” of the conspiracy (possibly including the Beretta

9 mm), the district judge did not commit a clear judgment of

error in determining the end of the conspiracy as April 27.1

After determining that the conspiracy ended on April 27,

the question then becomes 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 offense.” Saikaly, 207 F.3d at 368 (citation

omitted). Once the government establishes that a firearm was

“possessed” and that the firearm was “present,” “a

presumption arises that such possession was connected to the

offense.” United States v. Hardin, 248 F.3d 489, 497 (6th

10 United States v. Koch No. 02-6278

Cir. 2001) (citation and quotation omitted). At that point,

“the burden shifts to the defendant to show that it was clearly

improbable that the [firearm] was connected to the offense.”

Saikaly, 207 F.3d at 368. 

Here, the Beretta was found in the same room (Koch’s

bedroom) as some marijuana. In other parts of the house,

more marijuana and various indicia of a marijuana growing

operation were found. Thus, it is more likely than not that the

Beretta was possessed in connection with drug activity.

Furthermore, as the government points out, Koch did not

present any evidence that the Beretta was not connected to

drug activity. “In fact, he presented no evidence to the district

court to show that it was clearly improbable that the firearm

was associated with the drug crime.” Pl.’s Br. at 27.

Therefore, the sentencing judge did not err in enhancing the

sentence because of the Beretta.

(3) The six-level upward departure.

With respect to count 2, the sentencing guidelines provide

that “[i]f the defendant . . . was convicted of violating

[18 U.S.C. § 924(c),] the guideline sentence is the minimum

term of imprisonment required by statute.” U.S.S.G.

§ 2K2.4(a)(2) (2001). This section contains no explicit

authorization for an upward departure. Elsewhere, however,

the sentencing guidelines authorize upward departures when

death and “significant” physical injury are present, while not

conditioning the authorization on the type of underlying

crime. See U.S.S.G. §§ 5K2.1 & 5K2.2. 

If a death results, before enhancing the sentence, the

sentencing court must examine accompanying factors, such

as “the defendant’s state of mind, . . . the degree of planning

or preparation, . . . whether multiple deaths resulted, and the

means by which life was taken.” U.S.S.G. § 5K2.1.

Furthermore, the increase should be in proportion to “the

dangerousness of the defendant’s conduct, the extent to which

death or serious injury was intended or knowingly risked, and
No. 02-6278 United States v. Koch 11

2

Koch argues that the district court did not take these factors

sufficiently into account and erred because the death and the injury were

neither intentional nor knowing. See Def.’s Br. at 19-21. The district

court, however, found that Koch “intended to create the dangerous,

emotionally charged standoff that ensued following his premeditated,

boisterous, armed incursion to the very threshold of Justin Davis’ home.”

(App. 33) This indicates that the district court considered the factors

outlined in sections 5K2.1 and 5K2.2, such as Koch’s state of mind, in

making its finding. This issue is also tied to the causation issue discussed

below. 

3

Here, Koch argues for a de novo review, while the government

insists on the abuse of discretion standard. The federal courts, including

the Sixth Circuit, employ both standards in departures from guidelines

depending on whether and to what extent the question is legal or factual.

As the Supreme Court stated in Koon, not much turns on the label chosen

because a district court that made a mistake of law would have by

definition abused its discretion. See 518 U.S. at 100. 

the extent to which the offense level for the offense 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, such as the defendant’s state

of mind or the manner in which the injury was caused, before

enhancing the sentence. See U.S.S.G. § 5K2.2. In addition,

the increase should be in proportion to “the extent of the

injury, the degree to which it may prove permanent, and the

extent to which the injury was intended or knowingly

risked.”2 Id.

We employ a de novo standard for reviewing a “district

court’s legal conclusions regarding the application of the

sentencing guidelines.” Miggins, 302 F.3d at 390.

Furthermore, the appellate court “review[s] a district court’s

decision to depart from the Guidelines sentencing range for

abuse of discretion.” United States v. Chance, 306 F.3d 356,

393 (6th Cir. 2002) (citation omitted).3 

“Before a departure is permitted, certain aspects of the case

must be found unusual enough for it to fall outside the

12 United States v. Koch No. 02-6278

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

“To resolve this question, the district court must make a

refined assessment of the many facts bearing on the outcome,

informed by its vantage point and day-to-day experience in

criminal sentencing.” Id. On the other hand, a case outside

the “heartland” of cases “will be extremely rare.” U.S.S.G.

§ 5K2.0 cmt. 

In challenging the six-level upward departure from the

guidelines, Koch first underlines the sentencing judge’s

statement, “I think the jury . . . cut Mr. Koch a break” on

count 5 where the jury acquitted him. See Def.’s Br. at 9.

Koch contends that by increasing the sentence, the judge

“effectively charged, convicted, and sentenced Mr. Koch for

Mr. Gibson’s death and Mr. O’Brien’s injuries without a

grand jury indictment or a trial.” Id. Koch further argues that

the ten-year mandatory minimum sentence under section

924(c) adequately takes into account the risk of “violence that

could result from the commission of the underlying offense.”

Id. at 13. Koch thus challenges the district court’s decision

that his case fell outside the heartland of cases covered by the

applicable guideline under Koon. See id. at 14. 

Koch references cases that explain the reason for the

mandatory sentence under section 924(c) being the resultant

risk of violence when drugs and guns come together. For

example, in United States v. Zamora, the Ninth Circuit

explained that “the mandatory sentencing provisions of

section 924 exist because the possession of a gun during a

drug trafficking offense increases the risk of violence.” 37

F.3d 531, 533 (9th Cir. 1994) (citation omitted). Another

example is an armed robbery case where the Sixth Circuit

found that the applicable sentencing guideline adequately

took into consideration that bank robbers frequently discharge

firearms, and thereby struck down the enhancement. See

Def.’s Br. at 17 (discussing United States v. Bond, 22 F.3d

662 (6th Cir. 1994)). 
No. 02-6278 United States v. Koch 13

The government counters with three opinions where the

courts found that death or serious injury takes the offense

outside the heartland of cases covered by section 924(c) and

the applicable guideline. See Pl.’s Br. at 18-19. In United

States v. Scheetz, the sentencing court authorized a departure

for the discharge of a firearm during a conspiracy to distribute

marijuana (less than 50 kilograms) when a death and physical

injury resulted, even though the defendant’s culpability 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 two-level upward

departure for permanent injury was warranted when the nature

and extent of injuries (including psychological injuries) took

the case “outside the heartland” of “permanent or life

threatening injuries” in an aggravated assault charge for

causing permanent injury. Additionally, in Philiposian, the

defendant randomly picked a mail carrier as his victim in a

sniper attack with an AK-47, a high-capacity, semiautomatic

weapon. See 267 F.3d at 215. In United States v. Bazile, 30

Fed. Appx. 830, 2002 WL 203342 (10th Cir., Feb. 11, 2002),

the court upheld an upward departure in a section 924(c)

sentence when the defendant shot and physically injured two

victims.

To allow a departure from the guidelines, the first question

is whether a particular case falls outside the heartland of cases

(brought under and implicating 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 393 (citing Koon). The district court

may not depart from the guidelines if the case is a “heartland”

case. The second question is whether the special factor (such

as the existence of death or physical injury) is an

“encouraged” factor to warrant an enhancement under the

guidelines. “If the special factor is an encouraged factor, the

sentencing court may depart if the applicable Guideline does

not already take the factor into consideration.” Id. If the

guideline already takes the special factor into consideration,

“the sentencing court should depart only if the factor is

14 United States v. Koch No. 02-6278

4

In this opinion, only those parts of the Chance test that are pertinent

to this case are discussed.

present to a degree that makes the case different from the

ordinary case where the factor is present.” Id.4

Death and serious physical injury are “encouraged factors”

for enhancement under U.S.S.G. §§ 5K2.1 and 5K2.2. The

applicable sentencing guideline 2K2.4(a)(2)(2001), however,

points to section 924(c) without mentioning death or physical

injury. Section 924(c) in turn provides a mandatory minimum

for using, carrying, and discharging a firearm during a drug

offense, but does not indicate what the sentence should be if

a death or physical injury occurred. 

Here, the district court stated that “[s]ince Section 2K2.4

provides no sort of enhancement for the physical injuries and

death that resulted from the defendant’s actions, the court

finds that this case is outside . . . the heartland of cases

covered by this guideline.” (App. 258A.) In arguing that this

case is within the heartland, Koch indicates that Zamora (and

other cases) explained that “the mandatory sentencing

provisions of section 924 exist because the possession of a

gun during a drug offense increases the risk of violence.”

37 F.3d at 533. The issue therefore is whether the section 924

mandatory minimum adequately takes into account the

possibility of violence. 

There is no case cited by either party directly on point. In

the cases cited by Koch (Zamora and Bond) no death or

physical injury resulted. Here, the violence was not merely

risked, but it actually occurred, causing a death and a serious

injury. In the cases cited by the government (Scheetz,

Philiposian, and Bazile) on the other hand, the defendant was

the person who fired the shots that caused a death or physical
No. 02-6278 United States v. Koch 15

5

The government argues that Scheetz controls this case because the

defendant there did not fire the shot that led to the death of one victim.

However, the defendant in Scheetz admitted that he fired shots at another

victim who was injured. Even though we find the Scheetz court’s

pronouncement on causation helpful in our ultimate decision to uphold

the departure, Scheetz cannot control this case because Koch did not fire

any of the shots that caused either the injury or the death.

injury.

5

 Koch, however, did not directly cause the death or

the injury here. Koch urges that there must be a “stronger

link [than found by the district court] between Koch’s conduct

and the death and physical injuries.” Def.’s Br. at 19 (citation

omitted). The district court explained its decision as follows:

Koch’s actions were the catalysts that set off the gun

battle that resulted in Bob Gibson’s death and Pat

O’Brien’s serious physical injuries. Although he may

not have fired the fatal shot, Robbie Koch no doubt

intended to create the dangerous, emotionally charged

standoff that ensued following his premeditated,

boisterous, armed incursion to the very threshold of

Justin Davis’ home. But for Mr. Koch’s aggressions, the

shootout would never have taken place.

(App. 33.)

In other words, the district court authorized the upward

departure because it found that Koch’s actions were the

“catalysts” that led to the death and the injury. 

We agree. The district court’s enhancement was justified

by the facts of this case. But for Koch’s actions, the tragedy

at Davis’ house would never have taken place. Koch, who

was at the center of the drug conspiracy, was upset about the

prospect that his frontman Davis was cheating him. To

collect the money or to intimidate Davis or both Koch

apparently thought a show of force was necessary. To that

end, Koch recruited three other men to come with him to

Davis’ residence. Koch and the men took weapons with

16 United States v. Koch No. 02-6278

them. They arrived at Davis’ residence at dawn, startling the

inhabitants. Koch banged on the door, and demanded that

Davis and his roommate come out. As a result of Koch’s

actions, the inhabitants reached for their guns and armed

themselves. Even though Koch did not kill or injure anybody

directly, he is nevertheless responsible for the death and the

injury as the primary instigator of the violence that inevitably

ensued. The district court was correct that it should have

been reasonably foreseeable to him that his actions could lead

to an injury or even death. 

Neither the applicable sentencing guideline nor section

924(c) adequately contemplates the events that took place at

Davis’ residence on April 27, 2001. Section 924(c) merely

prescribes a mandatory minimum for the risk of violence that

may result from carrying a firearm during a drug offense. Cf.

Zamora, 37 F.3d at 533. The mandatory minimum does not

preclude the imposition of a higher sentence when actual

violence occurs and individuals are killed or seriously hurt. 

Because this case is outside the heartland of the cases

envisioned by section 924(c) and because Koch’s conduct led

to the death and physical injury, we sustain the upward

departure on Koch’s sentence. As in Scheetz, there is “no

basis for foreclosing 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

an intent to harm is entirely absent and the defendant was not

directly responsible for the death.” 293 F.3d at 191. 

With respect to the magnitude of the increase, the district

court “elect[ed] to employ a six-level increase similar to the

increases for permanent or life threatening bodily injury

found at sentencing guideline Section 2A2.2, aggravated

assault; Section 2B3.1, robbery; and 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 “permanent or life-threatening

bodily injury.” This is two levels higher than the increase

level provided for “serious bodily injury.” In sections
No. 02-6278 United States v. Koch 17

2B3.1(b)(3)(C) and 2B3.2(b)(4)(C), the same increase is

provided for the same injury. Here, the district court counted

only O’Brien’s injuries and not Gibson’s death in the sixlevel departure by not increasing the level above six. Thus,

the magnitude of the increase for both the death and the injury

is reasonable. 

CONCLUSION

For all the foregoing reasons, we AFFIRM the judgment

of the district court.