                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS                  April 16, 2004
                         FOR THE FIFTH CIRCUIT
                                                               Charles R. Fulbruge III
                        _______________________                        Clerk

                              NO. 03-30417
                        _______________________

                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                   versus

                           ISREAL C. EDWARDS,

                                                     Defendant-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
               for the Western District of Louisiana
                            02-50069-01
________________________________________________________________

Before JOLLY, JONES and PRADO, Circuit Judges.

PER CURIAM:*

                              I.   BACKGROUND

           On September 1, 2002, Isreal Edwards was attending a rap

concert in Shreveport, Louisiana, along with fellow gang members.

During the course of the concert, members of Edwards’s gang and a

rival gang exchanged words. The dispute escalated and weapons were

drawn.    In the ensuing gunfight, several bystanders and gang

members were injured, some seriously.           Tragically, a 16-year-old

female bystander, Tatum Strogen, was shot and killed. Testimony at

     *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
trial indicated that Edwards was carrying a 9-mm pistol he had

obtained before the concert.        On appeal, it is undisputed that

while Edwards was involved in the gun battle, the bullet that

killed Strogen did not come from his gun.

          Following Edwards’s conviction for being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1), the

government   filed   a   motion   for   an   upward   departure   based    on

Strogen’s death.     The district court granted the government’s

motion and sentenced Edwards to 120 months imprisonment, the

maximum allowable statutory sentence, well above the original

guidelines range of 70 to 87 months.         Edwards now appeals, arguing

that the district court’s findings were inadequate and that the

government did not show a sufficient nexus between his actions and

Strogen’s death to support an upward departure.

          After carefully reviewing the record, we affirm the

district court’s upward departure.

                            II.   DISCUSSION

A.   Standard of Review

          The Prosecutorial Remedies and Other Tools to end the

Exploitation of Children Today Act of 2003 (“PROTECT Act”) was

signed into law and became effective on April 30, 2003.                   The

PROTECT Act made a variety of changes to existing law.             Some of

these changes relate to the responsibilities of a district court at

the initial sentencing hearing, the standard of review to be


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applied by the courts of appeal, and the scope of the district

court’s discretion on remand.        See 18 U.S.C. § 3553 (responsi-

bilities of a district court at sentencing); 18 U.S.C. § 3742(e)

(standard of review to be applied by the court of appeals);

18 U.S.C. § 3742(g) (scope of a district court’s discretion on

remand).

           In this circuit, the PROTECT Act’s standard of review

provisions, which effected procedural changes in the law, may be

applied retroactively.      See United States v. Bell, 351 F.3d 672,

674-75 (5th Cir. 2003).        Thus, while Edwards was sentenced on

April 23, 2003, his appeal was pending on the effective date of the

PROTECT Act, and we must analyze any challenge to his sentence

under the Act.     See, e.g., Lindh v. Murphy, 521 U.S. 320, 327

(1997) (noting that procedural changes typically apply to pending

cases).

           Before the enactment of the PROTECT Act, we reviewed all

departures under a unitary abuse of discretion standard.               See

United States v. Harris, 293 F.3d 863, 871 (5th Cir. 2002); United

States v. Koon, 518 U.S. 81, 96-100 (1996).        The PROTECT Act alters

this standard of review.1      A number of the courts of appeals have


     1
           The relevant portion of the PROTECT Act provides that:

     (e)   Consideration - Upon review of the record, the court of
           appeals shall determine whether the sentence
           (1)   was imposed in violation of law;
           (2)   was imposed as a result of an incorrect application of the
                 sentencing guidelines;
           (3)   is outside the applicable guideline range, and
                 (A)   the district court failed to provide the written

                                     3
held   that    the    PROTECT     Act   authorizes    de   novo   review   of   all

departures.         See, e.g., United States v. Stockton, 349 F.3d 755,

764 (4th Cir. 2003); United States v. Mallon, 345 F.3d 943, 948

(7th Cir. 2003); United States v. Frazier, 340 F.3d 5, 14 (1st Cir.

2003); United States v. Hutman, 339 F.3d 773, 775 (8th Cir. 2003);

United States v. Jones, 332 F.3d 1294, 1299-1300 (10th Cir. 2003).

This court appears to have reached a different result.                 Bell, 351

F.3d at 676 (applying the abuse of discretion standard where the

district court         departed    based   on   a   factor   that   advanced    the

objectives of § 3553(a)(2)).            However, under either standard, the

departure applied in this case was proper.

B.   Provision of a Written Statement


                           statement of reasons required by section 3553(c);
                     (B)   the sentence departs from the applicable guideline
                           range, and
                           (i)   does not advance the objectives set forth in
                                 section 3553(a)(2); or
                           (ii) is not authorized under section 3553(b); or
                           (iii) is not justified by the facts of the case; or
                     (C)   the sentence departs to an unreasonable degree from the
                           applicable guidelines range, having regard for the
                           factors to be considered in imposing a sentence, as set
                           forth in section 3553(a) of this title and the reasons
                           for the imposition of the particular sentence, as stated
                           by the district court pursuant to the provisions of
                           section 3553(c); or
              (4)    was imposed for an offense for which there is no applicable
                     sentencing guideline and is plainly unreasonable.

             The court of appeals shall give due regard to the opportunity
       of the district court to judge the credibility of the witnesses, and
       shall accept the findings of fact of the district court unless they
       are clearly erroneous and, except with respect to determinations
       under subsection (3)(A) or (3)(B), shall give due deference to the
       district court’s application of the guidelines to the facts. With
       respect to determinations under subsection (3)(A) or (3)(B), the
       court of appeals shall review de novo the district court’s
       application of the guidelines to the facts.

18 U.S.C. § 3742(e).

                                           4
            In sentencing Edwards, the district court stated in

writing   that   it    adopted    the     factual     findings    and    guideline

application contained in the presentence report.                 The statement of

reasons specifically indicated that the court concurred with the

government’s motion requesting a departure from the applicable

guideline    range    because    the    defendant’s      participation        in   the

offense resulted in the death of an individual.                  The court based

its upward departure on the policy statement contained in U.S.S.G.

§ 5K2.1. The reasons provided by the district court are sufficient

to satisfy its obligation under § 3553(c) and § 3742(e)(3)(A).

C.    District Court’s Upward Departure Under §§ 5K2.0 and 5K2.1

            In applying the sentencing guidelines, the courts must

follow both the guidelines and the accompanying policy statements.

See United States v. Urias-Escobar, 281 F.3d 165, 167 (5th Cir.

2002).    Under the PROTECT Act, where the decision to depart is

proper and the extent of the departure is neither too high nor too

low, the court of appeals “shall affirm the sentence” imposed by

the district court.      See 18 U.S.C. § 3742(f)(3).

            In this case, the district court departed upward from the

sentencing guideline range based on the death of Tatum Strogen.

The   policy   statements       accompanying      the   sentencing      guidelines

explicitly     provide   that     “[i]f       death   resulted   [from    a    crime

punishable under the guidelines], the court may increase the

sentence above the authorized guideline range.”                   See U.S.S.G. §



                                          5
5K2.1 (2003).            Edwards admits that this provision permits the

district court to depart upward, but he argues that the district

court did not adequately consider “matters that would normally

distinguish among levels of homicide, such as the defendant’s state

of mind and the degree of planning or preparation” as required by

the guidelines.           See id.        In addition, Edwards argues that the

prosecution did not demonstrate a sufficient nexus between the

defendant’s actions and Strogen’s death to warrant the departure.

We disagree with both these contentions.

              The       sentencing       transcript        makes    it   clear   that   the

district court considered a variety of factors including the

defendant’s efforts to obtain a firearm before the concert, as well

as his contention that he was simply firing his weapon in self-

defense.      The district court also considered the “dangerousness of

the defendant’s conduct, [and] the extent to which death or serious

bodily injury was intended or knowingly risked,” as required by the

guidelines, in determining the appropriate extent of the departure.

See id.

              Our review of the record confirms that Edwards’s actions

in   taking    a    pistol     to    the    concert,        brandishing     it   during   a

firefight,     and       firing     it    into       a   crowded    area,   significantly

contributed        to    the   course      of    events      that    resulted    in   Tatum

Strogen’s death.          This case falls outside the heartland of typical

felon-in-possession convictions.                     Because the guidelines calcula-

tion for such a conviction does not adequately account for the risk

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of   injury    that   this   defendant’s   actions    created,   an   upward

departure was warranted. In addition, the extent of the departure,

from a guideline range of 70-87 months to a sentence of 120 months,

was appropriate given the defendant’s actions.           In sum, under any

PROTECT Act standard of review, the record leads us to reach the

same conclusion as the district court:            the defendant’s partici-

pation in a gun battle that led to Tatum Strogen’s death justified

this upward departure.

                              III.   CONCLUSION

              For the reasons discussed above, the sentence imposed by

the district court is AFFIRMED.




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