NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 13a0531n.06 No. 12-5566 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff/Appellee,

v. CHRI STOPHER OSTEEN, Def endant/Appe llant. ) ) ) ) ) ) ) ) ) ) ON APP EAL FROM THE UNI TED ST ATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TENNESSEE

Be fore : BATCHEL DER, Chief J udg e, MERRI TT and KE THL EDGE, Circuit Judges. KETHL EDGE, Circuit J udg e. Christopher Osteen robbed the Old Country Store in J ackson, Tenne ssee, setting off the store’s intrusion alar m in the proce ss. Police office rs responde d and saw Osteen flee the store on foot. Osteen was car rying a 9mm pistol, but none of the office rs knew that. Three office rs g ave c hase a nd threw a

flashlig ht at Osteen’s f

eet, c ausing him to los e his balanc e. The office rs tackled Osteen and tried to handcuf f him, bu t h e re s i s t ed, keeping his hands pinned beneath his torso. During the strug g le, Osteen’ s pistol fired. The bullet struck Offic er Mark Hea den in the left fore arm—shatter ing his radius bone and causin g nerve and arte rial damag e in his

arm—a nd then lodge d in Hea den’s backup pistol, which was holstered on his chest. Eventually the other office rs wre stled the g un from Osteen and handcuf fed him. Hea den later underw ent multipl e

s u rger ies, including a bone g raph and insertion of a steel plate with six scre ws to rec onstruct h i s radius bone. H eade n also requir ed a te ndon transfe r to rec over pa rtial use of his lef

t thumb.No. 12-5566

United States v. Ostee n Osteen was alre ady a convicted felon at the time of this incident , so fede ral prosec utors char g ed him with being a felon in possession of a firea rm, in violation of 18 U.S.C. § 922(g ). Osteen pled g uilty to the char g e. At his sentenc ing hear ing, the district court enhanc ed Osteen’ s offe nse level under U.S.S .G. § 3A1.2(c )(1) —known as the official-victim enhanc ement—for assaulting a police office r in a manner that cre ated a substantial risk of serious bodily injury

. That enhanc ement produce d a g uidelines rang e of 84 to 105 months. T h e go v ernme nt also reque sted that the court depar t upw ard unde r U.S.S.G. § 5K2.2, g iven the seve rity of He aden’ s injuries. The district c ourt did so and sentenc ed Ostee n to 115 months’ imprisonm ent. We revie w Osteen’ s sentenc e for an abuse of discretion. United States v. Castil la-Lugo , 699 F.3d 454, 459 (6th Cir. 2012). Osteen’ s principal argument is that, in deter mining his sentenc e, the district court “double counted” the Hea den shooting when the court enhanc ed Osteen’ s offe nse level under § 3A1.2(c )(1) and also depar ted upwar d under § 5 K2

. 2

. “Impermissible double counting ”

occur s when not mere ly the s ame conduct, but the s ame asp ec t of t he same conduct factors into a defe ndant’s sentenc e in two separ ate way s. See United States v. Levy , 250 F.3d 1015, 1017 (6th Cir. 2001). We look to the text of the rele vant g uidelines to deter mine whether the district court double

co u nted. Section 3A1.2(c )(1) provides for a six -leve l enhanc ement “[i] f, in a manner cre ati n g a substantial risk for bodily injury , the defe ndant

. . . knowing or having rea sonable cause to know that a person was a law enforce ment office r, assaulted such officer du ri ng the course of the offense or immedia t e fl i g ht there from.” (Emphasis added.) Section 5K2.2, in turn, provides that “[i] f signific ant phy si ca l i n

j u ry resulted, the court may incre ase the sentenc e above the authorized

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United States v. Ostee n g uideline rang e. The extent of the increa se ordinar ily should depend on the e x tent of t he inj ury .” Thus, by their terms, these sections consider differ ent aspec ts of the defe ndant’s conduct: § 3A1.2(c )(1) looks to the risk crea ted by the conduc t, while § 5K2.2 looks to the result. But Osteen points out that comment 4(B ) to § 3A1.2(c )(1) define s “substantial risk of bodily injury ” to “include[,]” among other things, “ac tual serious bodily injury [.] ” Thus, when rea d in light of the definitio n , “s u b s tantial risk” under § 3A1.2(c )(1) can mean “ac tual serious bodily inj u ry ”—which means that a district court potentially could apply § 3A1.2(c )(1) based upon the result of the de fenda

nt’s conduct, r ather

than on the risk it cause s. I t is clea r from the rec o rd here , howeve r, that the district court based its application of § 3A1.2 on the risk of Osteen’ s conduct. Osteen never cited comment 4(B ) to the district court, and indeed his counsel stated during the sentenc ing hear ing that § 3A1.2 “doesn’ t speak to actua l injury , it speaks to, appar ently , risk[.] ” Tr. 40. Meanwhile, the court spoke only in terms of “substantial risk” in explaini n g i ts decision to apply § 3A1.2, see Tr. 45, 48; wher eas in applying § 5K2.2 the
court cited “the deg ree of injury that the office r sustained[,] ” Tr. at 5 4 ; see also Tr. at 51. Ba sed upon the rec ord in this case , there fore , we conclude that the district court meant “risk” (rather than injury) when it cited the “risk” cre ated by Osteen’ s conduct as the basis for the enhanc ement under § 3A1.2. Thus there was no double counting when the court applied § 5K2.2 based upon Hea den’s injuries. Osteen otherwise argu es t hat his sentenc e is substantively unrea sonable. Suffice it to say that, g iven the extremely

serious injuries suffe red by Offic er H eade n, we disagree . The district cour

t’s judgme nt is affirmed.

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