RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Nos. 01-6260/6313/6314 ELECTRONIC CITATION: 2003 FED App. 0271P (6th Cir.) Baker, et al. File Name: 03a0271p.06 _________________ UNITED STATES COURT OF APPEALS COUNSEL FOR THE SIXTH CIRCUIT ARGUED: Jeff Mueller, LAW OFFICE OF JEFF _________________ MUELLER, Jackson, Tennessee, M. Dianne Smothers, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR UNITED STATES OF AMERICA , X THE WESTERN DISTRICT OF TENNESSEE, Memphis, Plaintiff-Appellee, - Tennessee, Matthew M. Maddox, MADDOX, MADDOX & - MADDOX, Huntingdon, Tennessee, for Appellants. R. Leigh - Nos. 01-6260/ Grinalds, ASSISTANT UNITED STATES ATTORNEY, v. - 6313/6314 Jackson, Tennessee, for Appellee. ON BRIEF: Jeff Mueller, > LAW OFFICE OF JEFF MUELLER, Jackson, Tennessee, M. , VICTOR SHUNTA BAKER - Dianne Smothers, OFFICE OF THE FEDERAL PUBLIC (01-6260); HENRY LEE TATE, - DEFENDER FOR THE WESTERN DISTRICT OF JR. (01-6313); and JASON - TENNESSEE, Memphis, Tennessee, Matthew M. Maddox, MADDOX, MADDOX & MADDOX, Huntingdon, BRIAN PATTERSON (01-6314), - Tennessee, for Appellants. R. Leigh Grinalds, ASSISTANT Defendants-Appellants. - UNITED STATES ATTORNEY, Jackson, Tennessee, for - N Appellee. Appeal from the United States District Court _________________ for the Western District of Tennessee at Jackson. No. 01-10006—James D. Todd, Chief District Judge. OPINION _________________ Argued: March 25, 2003 BOGGS, Circuit Judge. Victor Shunta Baker, Henry Lee Decided and Filed: August 5, 2003 Tate, Jr., and Jason Brian Patterson appeal their sentences of over twenty years of imprisonment for interstate robbery and Before: BOGGS and SILER, Circuit Judges; and STEEH, attendant firearms offenses. The district court enhanced their District Judge.* sentences under the guidelines for infliction of significant injury on a security guard that they shot. In addition, the district court departed upward from the guidelines because the guard’s arm had to be amputated as a result of the injuries they inflicted and because of the particularly heinous and cruel nature of their conduct. Appellants contend that this * upward departure impermissibly double-counts the injuries The Honorab le George C. Steeh, United States District Judge for the that they inflicted on the guard. Baker also argues that his Eastern District of Michigan, sitting by designation.

1 Nos. 01-6260/6313/6314 United States v. 3 4 United States v. Nos. 01-6260/6313/6314 Baker, et al. Baker, et al.

lesser participation in the offense was not sufficiently (I) conspiracy to interfere with interstate commerce by reflected in his sentence. We affirm. robbery, in violation of 18 U.S.C. § 1951,2 (II) the completed interference, also in violation of 18 U.S.C. § 1951, I (III) brandishing and discharge of the shotgun in the commission of the robbery, in violation of 18 U.S.C. On December 14, 2000, Patterson, Tate, Baker, and a fourth § 924(c)(1)(A)(iii)3 and (B)(i)4, or aiding and abetting the person, Vystoskia Tonve Pirtle, decided to commit an armed same, in violation of 18 U.S.C. § 2,5 (IV) discharge of the robbery. In preparation, they stole a truck and Baker retrieved revolver, in violation of 18 U.S.C. § 924(c)(1)(A)(iii), or a 12-gauge short-barreled shotgun to be used in the robbery. aiding and abetting the same, in violation of 18 U.S.C. § 2, After looking in vain for the originally intended victim, they and (V) possession of the revolver stolen from Parker, in decided rob Brooksie’s Barn restaurant in Jackson, violation of 18 U.S.C. § 922(j),6 or aiding and abetting the Tennessee, instead. The gang had inside information on Brooksie’s because Baker had worked at the establishment previously and Baker’s mother had been a cook there for 2 “Whoever in any way or degree obstructs, delays, o r affects seventeen years. As Baker waited in the truck, the other commerce or the movement of any article or commodity in commerce, by members donned ski masks and broke into the restaurant. robbery or extortion or attempts or conspires so to do, or commits or Inside, they encountered Arthur Dale Parker, a 65-year-old, threatens physical violence to any p erson or prope rty in furtherance o f a uniformed, private security guard, who immediately raised his plan or purpose to do anything in violation of this section shall be fined arms. Nevertheless, Parker was shot with the shotgun and under this title or imprisoned not more than twenty years, or both.” 18 U.S.C. § 195 1(a). kicked in the side and teeth.1 As he lost consciousness, Parker heard an order to shoot him should he move. When he 3 “[A]ny person who, during and in relation to any crime of violence stirred, he was shot at again, this time with his own .22- . . . for which the person may be prosecuted in a court of the United caliber long-rifle revolver, but was not hit. The resulting States, uses or carries a firearm, or who, in furtherance of any such crime, injuries were severe enough to threaten his life and to possesses a firearm, shall, in addition to the punishment provided for such necessitate the amputation of his dominant, right arm. The crime of violence o r drug trafficking crime . . . if the firearm is gang members escaped with $5,803.72 in Brooksie’s cash, discharged, be sentenced to a term of imprisonment of not less than 10 years.” 18 U.S.C. § 924(c)(1)(A)(iii). checks, and credit card receipts, and Parker’s gun. Within days the police tracked down, arrested, and obtained 4 “If the firearm possessed by a person convicted of a violation of this confessions from each of the perpetrators. subsection . . . is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of On February 26, 2001, a five-count indictment was filed in imprisonment of not less than 10 years.” 18 U.S.C. § 924(c)(1)(B )(i). the district court. Each member of the gang was charged with 5 “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” 18 U.S.C. § 2. 1 W hile his acco mplices testified that they either saw P atterson fire 6 the shots or heard him confess to firing the shots, Patterson denied this. “It shall be unlawful for any p erson to rece ive, po ssess, co nceal, The trial court made no findings of fact on this issue and needed to make store, barter, sell, or dispose of any stolen firearm or stolen ammunition, none. or pledge or accept as security for a loan any stolen firearm or stolen Nos. 01-6260/6313/6314 United States v. 5 6 United States v. Nos. 01-6260/6313/6314 Baker, et al. Baker, et al.

same, in violation of 18 U.S.C. § 2. Over the following upon Parker, under U.S.S.G. § 5K2.2, and the heinous nature months, plea negotiations resulted in guilty pleas to counts II of the defendants’ conduct, under U.S.S.G. § 5K2.8. This and III by Patterson and Baker and counts II and IV by Tate resulted in a total offense level of twenty-nine and a guideline in return for the dismissal of the other charges against them. range of 121 to 151 months. On October 3, Patterson and The charges against Pirtle were otherwise disposed of and are Tate were sentenced to 135 months and Baker to 121 months not part of this appeal. on count II and each to an additional 120 months on counts III or IV. Before this court now are the timely appeals of these The pre-sentencing report contained the same calculation sentences. for each remaining defendant: The base offense level of count II, robbery, was twenty. U.S.S.G. § 2B3.1(a). This II base level was enhanced by six for permanent or life-threatening bodily injury, U.S.S.G. § 2B3.1(b)(3)(C), by We review the district court’s sentencing decisions under one for taking of a firearm, U.S.S.G. § 2B3.1(b)(6), and by a deferential standard. “A defendant may file a notice of three for assault on a law enforcement officer, U.S.S.G. appeal in the district court for review of an otherwise final § 3A1.2(b). This offense level was decreased by three for sentence if the sentence . . . was imposed as a result of an acceptance of responsibility, U.S.S.G. § 3E1.1, resulting in a incorrect application of the sentencing guidelines.” 18 U.S.C. total adjusted offense level of twenty-seven. The pre- § 3742(a)(2). “Upon review of the record, the court of sentence report also contemplated, but left to the discretion of appeals shall determine whether the sentence . . . was imposed the court, upward departures for intentional infliction of as a result of an incorrect application of the sentencing permanent or life-threatening injury, U.S.S.G. § 5K2.2, and guidelines.” 18 U.S.C. § 3742(e)(2). “The court of appeals unusually heinous, cruel, or brutal conduct, U.S.S.G. § 5K2.8. shall give due regard to the opportunity of the district court to Each of the remaining defendants had a criminal history judge the credibility of the witnesses, and shall accept the category of IV. This resulted in a guideline range of 100 to findings of fact of the district court unless they are clearly 125 months imprisonment. Counts III and IV, the firearms erroneous and . . . shall give due deference to the district offenses, added consecutive 120-month sentences for each court’s application of the guidelines to the facts.” 18 U.S.C. remaining defendant. U.S.S.G. § 5G1.1(a). § 3742(e). “[T]he sentencing court may impose a sentence outside the range established by the applicable guidelines, if At the September 28 sentencing hearing, the district court the court finds ‘that there exists an aggravating or mitigating disallowed the three-level enhancement under U.S.S.G. circumstance of a kind, or to a degree, not adequately taken § 3A1.2(b), because Parker was not a law enforcement into consideration by the Sentencing Commission in officer. However, the court also ordered a five-level upward formulating the guidelines that should result in a sentence departure to account for both the gravity of the injury inflicted different from that described.’” U.S.S.G. § 5K2.0; see also Koon v. United States, 518 U.S. 81, 95 (1996). “We review decisions to depart from the sentencing guidelines for abuse of discretion.” United States v. Valentine, 100 F.3d 1209, ammunition, which is moving as, which is a part of, which constitutes, or 1210 (6th Cir. 1996) (citing Koon, 518 U.S. at 98). which has been shipped or transported in, interstate or foreign commerce, either before or after it was stolen, knowing or having reason able cause to believe that the firearm or ammunition was stolen.” 18 U.S.C. § 922(j). Nos. 01-6260/6313/6314 United States v. 7 8 United States v. Nos. 01-6260/6313/6314 Baker, et al. Baker, et al.

All appellants contend that the five-level upward departure by the guidelines. For example, “because the robbery under § 5K2.2 double-counts conduct already accounted for guideline does not deal with injury to more than one victim, by the six-level enhancement under § 2B3.1(b)(3)(C). departure would be warranted if several persons were Section 2B3.1(b)(3) provides for an enhancement to a robbery injured.” U.S.S.G. §5K2.0. However, § 5K2.0 does not sentence when the victim suffers physical injury. entirely close the door to additional consideration of circumstances already explicitly accounted for in the If any victim sustained bodily injury, increase the offense guidelines: level according to the seriousness of the injury[:] (A) Bodily Injury [,] add 2 [;] (B) Serious Bodily Injury [,] [T]he court may depart from the guidelines, even though add 4 [;] (C) Permanent or Life-Threatening Bodily the reason for departure is taken into consideration in Injury [,] add 6 [;] (D) If the degree of injury is between determining the guideline range (e.g., as a specific that specified in subdivisions (A) and (B), add 3 levels; offense characteristic or other adjustment), if the court or (E) If the degree of injury is between that specified in determines that, in light of unusual circumstances, the subdivisions (B) and (C), add 5 levels. weight attached to that factor under the guidelines is inadequate or excessive. U.S.S.G. § 2B3.1(b)(3). Section 5K2.2 permits upward departure to sentences in general, based on a similar factual U.S.S.G. § 5K2.0. predicate: Contrary to the government’s contention, such extreme or If significant physical injury resulted, the court may unusual circumstances do not exist here. See, e.g., United increase the sentence above the authorized guideline States v. Myers, 66 F.3d 1364, 1373-75 (4th Cir. 1995) range. The extent of the increase ordinarily should (reversing enhancement under § 5K2.2 for physical injury depend on the extent of the injury, the degree to which it where physical injury was already accounted for by may prove permanent, and the extent to which the injury § 2B3.1(b)(3)(C) and district court made no finding that the was intended or knowingly risked. When the victim guideline enhancement was inadequate). Appalling as the suffers a major, permanent disability and when such defendants’ conduct and its consequences were by the injury was intentionally inflicted, a substantial departure standards of any civilized person, it is no extreme outlier may be appropriate. within the universe of robberies resulting in permanent or life- threatening injuries, for surely every such robbery is U.S.S.G. § 5K2.2. appalling. It was this universe of cases that the sentencing commission contemplated and determined to merit a six-level The appellants’ argument is bolstered by the language of enhancement, not an eleven-level enhancement. If physical § 5K2.0. “[P]hysical injury would not warrant departure from injury no worse than Parker’s justified upward departure, it the guidelines when the robbery offense guideline is would be justified not merely in the unusual, but in many or applicable because the robbery guideline includes a specific even most robberies inflicting life-threatening or permanent adjustment based on the extent of any injury.” U.S.S.G. injury. We therefore conclude that the five-level upward § 5K2.0. Rather, upward departures under § 5K2.0 should be departure cannot be sustained under § 5K2.2. confined to circumstances not already explicitly accounted for Nos. 01-6260/6313/6314 United States v. 9 10 United States v. Nos. 01-6260/6313/6314 Baker, et al. Baker, et al.

The district court alternatively supported the same five- burning him to death over a period of weeks), United States level upward departure under § 5K2.8: v. Harris, 943 F.2d 53, 1990 WL 159149, at *3 (6th Cir. 1991) (table) (upholding ten- and twelve-level departures If the defendant’s conduct was unusually heinous, cruel, under § 5K2.8 where witness-tamperers had abducted witness brutal, or degrading to the victim, the court may increase and raped witness’s wife), United States v. Patrick, 935 F.2d the sentence above the guideline range to reflect the 758, 761 (6th Cir. 1991) (upholding six-level upward nature of the conduct. Examples of extreme conduct departure under § 5K2.0 where kidnapper had attempted to include torture of a victim, gratuitous infliction of injury, “possess” three-year old victim indefinitely, citing § 5K2.8), or prolonging of pain or humiliation. and United States v. Cofer, 916 F.2d 713, 1990 WL 159149, at *5 (6th Cir. 1990) (table) (upholding two-level upward U.S.S.G. § 5K2.8. departure under § 5K2.8 where defendant sexually abused children not only by taking sexually explicit photographs of The exact contours of conduct that is “unusually heinous, them but also otherwise during the production of the cruel, brutal, or degrading” must be defined by the case law. photographs), with Davis, 170 F.3d at 630 (reversing upward This court has upheld such upward departures on this basis in departure under § 5K2.8 where wire-fraud co-defendant was almost every case where the district court gave a specific “nice” to telemarketing victims); United States v. Surratt, 87 justification. Compare United States v. Beal, 2003 WL F.3d 814, 820 (6th Cir. 1996) (upholding denial of upward 264733, at *1 (6th Cir. 2003) (table) (upholding one-level departure under § 5K2.8 where government offered no upward departure under § 5K2.8 where assailant of federal evidence that child pornography recipient had harmed employees threw feces at victims), United States v. Sizemore, depicted children), United States v. Cook, 36 F.3d 1098, 1994 238 F.3d 425, 2000 WL 1871723, at *1 (6th Cir. 2000) (table) WL 514528, at *6 (6th Cir. 1994) (table) (reversing upward (upholding four-level upward departure under § 5K2.8 where departure under § 5K2.8 where wire fraud defendant inflicted drug conspirators had tortured co-conspirator), United States no physical injury), United States v. Pelfrey, 996 F.2d 1218, v. Davis, 170 F.3d 617, 624 (6th Cir. 1999) (upholding eight- 1993 WL 210716, at *2 (6th Cir. 1993) (table) (holding level upward departure under § 5K2.8 where wire-fraud excessive the equivalent of a thirteen-level upward departure defendant intentionally inflicted psychic harm on elderly, sick under § 5K2.8 where stalker of a celebrity had “relentlessly” telemarketing victims by being “loud, rude, obnoxious, [and] pursued victim), and United States v. Wilson, 958 F.2d 372, controlling”); United States v. Cross, 121 F.3d 234, 238 (6th 1992 WL 39132 (6th Cir. 1992) (table) (reversing upward Cir. 1997) (upholding four-level upward departure under departure under § 5K2.8 based only on the district court’s § 5K2.8 where drug conspirator “burn[ed] [victim] with . . . unsupported statement that defendant’s conduct was hot scissors, pour[ed] rubbing alcohol on his wounds and “extreme”). mouth, and forc[ed] him to eat dog feces.”), United States v. Wright, 119 F.3d 390, 393 (6th Cir. 1997) (upholding four- Under these precedents, the district court did not abuse its level upward departure under § 5K2.8 where drug conspirator discretion in finding the defendants’ conduct to be sufficiently forced torture victim to ingest rubbing alcohol and dog feces), heinous to depart upward. The defendants in the course of United States v. Phillip, 948 F.2d 241, 252-54 (6th Cir. 1991) their robbery did not merely shoot Parker after he had raised (upholding three-level upward departure under § 5K2.8 where his hands in surrender, inflicting permanent and life- defendant murdered his four-year old son by beating and threatening injuries on him. After they had shot and disarmed Nos. 01-6260/6313/6314 United States v. 11 12 United States v. Nos. 01-6260/6313/6314 Baker, et al. Baker, et al.

him, when all reasonable possibility of resistance on Parker’s § 3742(f)(2), the Act directs a court of appeals to part had vanished, they continued to brutalize him. They examine the factors to be considered in imposing a kicked his wounded body until he passed out, in the process sentence under the Guidelines, as well as the district moving his body a distance of about twenty to twenty-five court's stated reasons for the imposition of the particular feet across the kitchen floor. When he came to, his stirring sentence. § 3742(e). A sentence thus can be ‘reasonable’ was sufficient for the defendants to shoot at him again with even if some of the reasons given by the district court to his own gun, apparently following up on their threat to kill justify the departure from the presumptive guideline him if he moved. If the shooter’s aim had been better, this range are invalid, provided that the remaining reasons are could very easily have been a murder case. These subsequent, sufficient to justify the magnitude of the departure. gratuitous actions by the defendants were not accounted for in the offense level calculations and are sufficiently heinous Williams v. United States, 503 U.S. 193, 203-04 (1992). See to justify an upward departure. As to the degree of upward also, e.g., United States v. Chance, 306 F.3d 356, 396-97 (6th departure, we have upheld a broad spectrum of enhancements Cir. 2002); United States v. Hart, 70 F.3d 854, 862 (6th Cir. for an even more varied set of heinous conduct. The five 1995); United States v. Lowenstein, 1 F.3d 452, 454 (6th Cir. levels granted by the district court here are not outside of this 1993). In this case, we conclude that the sentence can be broad spectrum.7 upheld on this basis, even if the district court did incorrectly consider the physical injury in departing. The departure A sentencing court’s upward departure based on both would have been justified on the basis of § 5K2.8 alone. applicable factors and factors incorrectly applied can be There is no indication in the record that the district court upheld if the departure was reasonable for the applicable required both reasons to justify the total amount of the factors alone. departure. Hence no remand is necessary. If the party defending the sentence persuades the court of III appeals that the district court would have imposed the same sentence absent the erroneous factor, then a remand In addition to the § 5K2.2 and § 5K2.8 issues raised by all is not required under § 3742(f)(1), and the court of defendants, Baker also contends that his sentence must be appeals may affirm the sentence as long as it is also overturned on grounds specific to him. He argues that his satisfied that the departure is reasonable under sentence was unjustified because his conduct was less § 3742(f)(2). The reasonableness determination looks to culpable than that of his co-defendants in that he, as the the amount and extent of the departure in light of the driver, never entered Brooksie’s and did not physically grounds for departing. In assessing reasonableness under participate in the abuse of Parker. Therefore he should have received a less severe sentence. This argument fails for at least three reasons. Baker cites no binding precedent for reversal of an otherwise valid sentence on the basis that more 7 W e also no te that Pa tterson’s and T ate’s sentences would still have culpable co-defendants were not punished more severely. been within the guideline range under a four-level upward departure and Such precedent as he does cite points in the opposite Baker’s even under a three-level upward departure. So even a one- or direction. United States v. Parker, 912 F.2d 156, 158 (6th two-level reduction from the five-level upward departure actually imposed would not necessarily have resulted in a different sentence. Cir. 1990) (reversing downward departure ordered by the trial Nos. 01-6260/6313/6314 United States v. 13 14 United States v. Nos. 01-6260/6313/6314 Baker, et al. Baker, et al.

court on the basis that an equally culpable co-defendant had kicking was not as foreseeable as the shooting and that Baker received a lower sentence); United States v. Romano, 970 did not know that it was going to occur. Nevertheless, the law F.2d 164, 167 (6th Cir. 1992) (finding “no merit in does not require absolute foreknowledge and a lesser degree defendant’s claim that his sentence is excessive when of foreseeability is still sufficient. The quote concludes with compared to the sentences received by his codefendants”); see the finding that such a sufficient degree of foreseeability still also Cross, 121 F.3d at 238 (holding that the “guidelines do existed. not require any distinction between principals and accomplices”). Second, while Baker was less culpable in IV some respects, in others, he was more so. It was Baker who retrieved the gun used to perpetrate the crime and provided For the foregoing reasons, we AFFIRM all sentences. what the gang expected would be the means of escape. It was Baker who, the court below found, selected Brooksie’s as the site based on his familiarity with the establishment. And it was Baker whose conduct resulted in the crippling, not of a random stranger, but of a long-time co-worker of his own and his mother’s, a man with whom he presumably had a pre- existing relationship. Finally, Baker, though sentenced within the same range as his co-defendants, did receive a sentence at the bottom of the range, rather than the middle as they did, resulting in a reduction of incarceration by more than a year and reflecting a slightly lower degree of culpability. Baker also argues that his sentence should not have been enhanced for the abuse of Parker, as he could not have foreseen it. Baker bases his conclusion that he could not have foreseen the abuse on the following statement of the district court: It was reasonably foreseeable that this victim would be shot. Now, it’s not as foreseeable that he would be kicked. You didn’t have any way of knowing, I suppose that they would kick him, but things like that happen, and when you are in a partnership with criminals, sometimes your partners do bad things and you end up getting punished for things that your cohorts did. JA 274 (emphases added). To quote the court is to refute Baker’s interpretation. The court merely stated that the