## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-4006

_____________ United States of America, *
* Plaintiff - Appellee *
* Appeal from the United States
v. * District Court for the
* District of South Dakota. Dean Arthur Allard, *
* Defendant - Appellant. *

_____________ Submitted: May 12, 1998 Filed: January 8, 1999

_____________ Before RICHARD S. ARNOLD, JOHN R. GIBSON, and FAGG, Circuit Judges.

_____________ JOHN R. GIBSON, Circuit Judge.

Dean A rthur Allard pled guilty to one count of vehicular battery in violation of 18 U.S.C. §§ 7, 1 3 and 1152 (1994). Those sections assimilate state criminal law for offens es by non-Indians on Indian land, and thus include South Dakota's vehicular battery s tatute. See 18 U.S.C. §§ 7, 13, and 1152; S.D. Codified Laws § 22-16-4 2 (Lexis 1998). Because the United States Sentencing Guidelines have no expressl y pro mulgated

guideline for vehicular battery, the district court applied the mos t analogous guideline, which the court held to be involuntary manslaughter. Allard nowSouth Dakota Codified Laws Section 22-16-42 states: 1
Any person who, while under the influence of an alcoholi c bevera ge, any controlled drug or substance, or a combination thereof, without design

to effect serious bodily injury, operates or drives a motor vehicle of an y kind in a negligent manner and thereby causes the serious bodily injury of another person . . . is guilty of vehicular battery.

-2- appeal s the thirty-three month sentence imposed upon him, arguing that the distric t court erred in multiple respects. We affirm in part and reverse in part.

Allard, a non-Indian, spent a part of April 9, 1996, drinking with friends i n Norris and Wanblee, South Dakota. He drove onto Highway 44, crossed the median and had a head-on collision with the car driven by Stephanie Fire Thunder, an enrolled member of the Oglala Sioux Tribe. She was trapped in the vehicle for approximately two hours before rescue, and eventually medical personnel took her to Rapid Cit y Regional Hospital. She suffered multiple laceratio ns, a broken rib, and a dislocated left hip. Her hip required surgery. She was hospita lized until April 17, 1996, and was then transf erred to the Rapid City Rehabilitation Hospital, where she received therapy fo r a continuing loss of feeling in her leg.

Of ficers found the highly intoxicated Allard in his pick-up truck and remove d

a partia lly full whiskey bottle from the truck. Allard was taken to Bennett Count y Hospital, where his blood alcohol content was determined to be 0.189.
Allard pled guilty to a violation of 18 U.S.C. §§ 7, 13, and 11 52, predicated upon

a vi olation of South Dakota Codified Laws § 22-16-42. When there is no expressl y 1 promulgated guideline for an offens e, the district court is to choose the most analogous guideline. See United States Sentencing Commission, Guidelines Manual § 2X5. 1 (Nov

. 1997). Although the district judge thought the involuntary manslaughte r guideline and the aggravated assault guideline were both analogous, it chose the-3-

involunt ary manslaughter guideline as the most analogous. That guideline calls for a base offense level of fourteen when the defendant's conduct is reckless. See USSG § 2A1.4. After setting the offense level at fourteen, the court made two adjustments. It in creased the level by five based upon the aggravated assault guideline's specifi c offense characteristics for the seriousness of the victim's injuries, and it reduced th e level by three because Allard had accepted responsibi lity for his actions. See USSG §§ 2A2.2 and § 3E1.1. The adjustments left the total offense level at sixteen. Although Allard had

six previous driving-under-the-influence convictions, only two affected the

cr iminal history, resulting in a criminal history category of III. This resulted in a presumptive sentence range of twenty-seven to thirty-three months. Allard's ultimate sentence was thirty-three months.

In making the adjustments referred to above, the court explicitly stated that the specific offense characteristics of aggravated assault could be "added" to th e involuntary mansl aughter guideline's base offense level. The district judge stated that he felt entitle d to make an upward departure, but the transcript does not reflect that he did so. Throughout the hearing, the district judge stated t he two reasons he was making the ad dition. First, in the district judge's words, the aggravated assault guideline an d involuntary manslaughter guideline were similar and choosing between the two wa s
rea lly an "academic" matter involving "semantics." Secondly, Allard had severa l previous criminal convictions that were not accounted for in his criminal history.

On appeal, Allard argues that the involuntary manslaughter guideline is no t sufficiently analogous to the assimilative crime of vehicular battery. Allard concedes that involuntary manslaughter and vehicular battery are similar in that both offense s lack the element of specific intent, but maintains the offe nses are not analogous because vehi cular battery involves the infliction of a non-fatal injury, while involuntar y manslaughter involves the infliction of a fat al injury. Allard further argues that because there is no applicable guideline, he should be sentenced pursuant to 18 U.S.C. § 3553(b). 18 U.S.C. § 3553(b) directs that when there is no applicable guideline, the-4-

court is to have due regard for general sentencing policies (such as promoting respect for th e law, providing adequate deterrence, and protecting the public from furthe r crime), guidelines applicable to similar offenses and offenders, and the applicabl e po licy statements of the Sentencing Commission. See 18 U.S.C. § 3553(b) (1994 ) (incorporating § 3553 (a)(2) by reference). Allard maintains that the court should have considered the min or assault guideline and the involuntary manslaughter guideline and sentenced him using an offense level between the offense levels provided by thos e guidelin es. See USSG §§ 2A1.4 and 2A2.3. Finally, Allard argues that even if th e invol untary manslaughter guideline is the applicable guideline in his case, the distric t

co urt erred by adding the specific offense characteristics of the aggravated assaul t gu ideline to the involuntary manslaughter guideline. Allard claims that this amounted to "double counting" because the involuntary manslaughter guideline assumes th e victim's death.
We have decided today the companion case of United States v. Osborne , No. 97- 4268, in which the same district judge applied the aggravated assault guideline as the most an alogous guideline in imposing a sentence for vehicular battery. Despite th e factu al similarity of the cases and the district court's choice of the involuntar y manslaughter

guideline as the most analogous guideline in this case, we conclude the district court's choice was not erroneous in either case.

The U nited States invites this court to review Allard's sentence for plai n unreasonableness. 18 U.S.C. § 3742(e) st ates, "[T]he court of appeals shall determine whether the sentence . . . was imposed for an offense for which there is no applicable sentencing guideline and is pl ainly unreasonable." 18 U.S.C. § 3742(e) (1994). There is no appl icable sentencing guideline only when the district judge has properl y determined that there is no sufficiently analogous guideli ne and sentenced the defendant pursuant to the general provisions of 18 U.S.C. § 3553(b)

. See United States v. Cefalu , 85 F.3d 964, 966-69 (2d Cir. 1996). See also USSG § 2X5.1. The district judge held that th e involuntary manslaughter guideline was most analogous to vehicular battery ;-5-

thus, reviewin g Allard's sentence for plain unreasonableness is not appropriate. Instead, as Osborne indicates, we must review the distr ict judge's determination that the involuntary manslaughter guideline was sufficiently analogous to vehicular battery, a review we perform de novo, and the district judge's determination that the involuntary manslaughter g uideline was most analogous to vehicular battery, a review we perform with due deference.

As we indicated in Osborne , determining whether there is a sufficientl y analogous guideline to a particular crime is generally a task of comparing the elements of feder al offenses to the elements of the crime of conviction. In this case, we agre e with the district court that involuntary manslaughter is sufficiently analogous t o
v e hicular battery. Like vehicular battery, involuntary manslaughter contemplates that the defendant did not have the specific intent to cause harm. See 18 U.S.C. § 111 2 (1 994) (defining manslaughter as the unlawful killing of another human being without

ma lice); State v. Big Head , 363 N.W.2d 556, 561 (S.D. 1985) (interpreting Sout h Dak ota's similar vehicular homicide statute as not requiring subjective desire to cause harm). Like vehicular battery, involuntary manslaughter requires that the defendant' s condu ctcause serious bodily harm, although involuntary manslaughter specificall y contemplates the death of the victim. See 1 8 U.S.C. § 1112; S.D. Codified Laws § 22- 16-42. Indeed, Allard’s only argument that involuntary manslaughter is not sufficiently analogous to vehicular battery is that involuntarymanslaughter requires the death of the vic tim, whereas vehicular battery only requires serious bodily injury. What Allar d misses is that, by definition, analogous guidelines do not and need not perfectly match the defendant’s crime. See United States v. Terry , 86 F.3d 353, 358 (4th Cir. 1996). We cannot say as a

matter of law that the difference between death and serious bodily inju ry makes involuntary manslaughter insufficiently analogous to vehicular battery

. Instead, w e think the line drawing that is necessary in determining when a victim’ s injury i s serious enough to fall within the purview of the involuntary manslaughte r guideline is better left to the district court when it, after considering all th e circumstances of the case, chooses the most analogous guideline.So me guidelines cross reference other guidelines. See USSG § 1B1.5

. 2 Furt hermore, multiple guidelines are considered when grouping multiple counts. See USSG § 3D1. 1. However, this is not a case involving a guideline with a cros s refer ence or a conviction on multiple substantive counts. See USSG §§ 2A1.4 an d 2A2.2.

-6- Allard does not specifically challenge the district court’s choice of the mos t analogous guideline and offers no one guideline that should have been applied. Even if he did, we give the district court due deference in choosing the most analogou s guideline. We cannot say the district court erred in choosing the involuntar y manslaughter guideline considering Allard's re ckless conduct and the seriousness of the victim's injury.

Havi ng disposed of Allard’s first argument, we are left with his claim that even if the district court correctly chose the involuntary manslaughter guideline, it "doubl e counted" by adding the specific offense characteristi cs of aggravated assault to the base offense level of involuntary manslaughter. While we do not believe this was "double

cou nting," Allard's objection raises the propriety of the procedures used in sentencing him.
The sentencing guidelines generally contemplate that the district court apply one guideline when the defendant is convicted on one count. The guidelines' application 2 inst ructions specifically direct the court to determine the applicable offense guideline, to apply the base offense level, and to "apply any appropriate specific offens e charac teristics . . . contained in the particular guideline . . . ." USSG § 1B1.1(b ) (emphasis added). Likewise, US SG § 1B1.2 directs the court, "once it has determined the applicable guideline . . . to determine any applicable specific offense characteristics under that guideline " USSG § 1B1.2 comme nt. (n.2) (emphasis added and parentheses

o m itted). The guidelines call for upward departures, not the combining of guidelines, when the district court finds that the total offense level arrived at by applying th e appropriate guideline is not adequate. See USSG §§ 1B1.1(I) and 5K2.0. Finally,Some cou rts have reasoned that a USSG § 2X5.1 case is necessarily a cas e 3 where there is no applicable guideline. See , e.g. , United States v. Cherry , 10 F.3 d 1003, 1012-13 (3d Cir. 1993 ). They have held that multiple guidelines can be used in
sen tencing the defendant because 18 U.S.C. § 3553(b) directs that when there is n o applicable guideline, the court is to have due rega rd for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses. See id

. (quotations omitted). However, as we indicated above, if a sufficiently analogou s guideline is chosen as the most analogous guideline to the defendant's crime, it is the applicable guideline. To hold otherwise is to hold that 18 U.S.C. § 3553(b) i s applicable both w hen there is not a sufficiently analogous guideline and when there is
a suffic iently analogous guideline. Such an approach cannot be squared with th e Commission' s instruction in USSG § 2X5.1. We agree with most of the circuits ' approach to this issue. Cf. e.g. , United States v. Cou ch , 65 F.3d 542, 544-45 (6th Cir. 1995); United States v. Mariano , 983 F.2d 1150, 1158-59 (1st Cir. 1993); Unite d States v. Smer

tneck , 954 F.2d 264, 265 (5th Cir.), cert. denied , 506 U.S. 833 (1992); United States v. Norman , 951 F.2d 1182, 1184-85 (10th Cir. 1991) (all cases reviewing the choice of the most analogous guideline pursuant to USSG § 2X5.1 withou t invoking the provisions of 18 U.S.C. § 3553(b)).

-7- combining guidelines contradicts USSG § 2X5.1's instruction to apply the mos t analogous guideline (assuming it is su fficiently analogous) in the case of an assimilated crime. Thus, we conclude the district court erred in directly adding the specific offense

3 charac teristics of aggravated assault to the base offense level for involuntar y manslaughter.

The s pecific offense characteristics of aggravated assault cannot be directl y adde d to the base offense level for involuntary manslaughter. Instead, if the distric t judg e concluded an increase in Allard's sentence was necessary, he had available th e opti on of an appropriate upward departure. The basis for the departure must be fully articul ated and supported by particularized findings addressing circumstances th e Commi ssion did not adequately consider in the guidelines. See United States v

. Cammisano , 917 F.2d 1057, 1063-64 (8th Cir. 1990). It is critical for guidelin e pro cedures to be strictly followed if the guidelines are to succeed in achievin g "unwarranted sentence disparities" between similarly situated defendants. 28 U.S.C.-8-

§ 991( b)(1)(B) (1994). The second goal of maintaining flexibility in sentencing, se e id ., is achieved by exercise of the discretion provided in the guidelines.

In Osb orne , we commented that attempting to fashion a sentence pursuant t o USS G § 2X5.1 is frequently similar to attempting to determine which round hole best accommodates a squarepeg. The district court undoubtedly encountered this problem in se ntencing Allard. However, the statutory structure of the guidelines and th e guidelines themselves reflect the substantial discretion placed in the district judge i n maki ng such sentencing decisions. Thus, we affirm the district court’s decision t o apply the involuntary manslaughter guideline to Allard’s case, but we reverse th e di strict court's addition of the aggravated assault specific offense characteristics t o Allard’s of

fense level. We remand the case for resentencing in accordance with thi s opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.