                                    ___________

                                    No. 96-2644
                                    ___________

United States of America,                 *
                                          *
              Appellee,                   *
                                          * Appeal from the United States
       v.                                 * District Court for the
                                          * District of North Dakota.
Lyman Redroad,                            *      [UNPUBLISHED]
                                          *
              Appellant.                  *
                                    ___________

                     Submitted:     October 3, 1996

                           Filed:   October 9, 1996
                                    ___________

Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.
                               ___________

PER CURIAM.

       Lyman Redroad appeals the sentence the district court1 imposed after
he pleaded guilty to assaulting, resisting, and impeding a federal officer
by means of a dangerous weapon, in violation of 18 U.S.C. § 111(a)(1) and
(b).   We affirm.


       A Bureau of Indian Affairs (BIA) police officer arrested Redroad, who
was intoxicated, and placed him in a police car.        When the officer briefly
stepped away, Redroad drove off in the car.             Officers soon found the
abandoned car stuck in the snow; a loaded police shotgun was no longer in
the car.    The officers, including BIA Criminal Investigator Roy Trottier,
pursued Redroad into the nearby woods, but hesitated to close in on him
because he periodically fired the shotgun.        When Redroad eventually emerged
from the woods, pointing the barrel of the gun towards his head,




       1
      The Honorable Rodney S. Webb, Chief Judge, United States
District Court for the District of North Dakota.
Trottier tried to distract Redroad.           As Redroad momentarily looked away and
attempted to move the pump shotgun's slide back into place, the officers
rushed him.       As Trottier ran towards Redroad with his gun drawn, Redroad
pointed the shotgun barrel at Trottier's chest, with his finger on the
trigger.        Trottier tackled Redroad and was struck in the eye with the
shotgun as the officers struggled to subdue Redroad.


        At Redroad's sentencing, the district court calculated a Guidelines
range of 0 to 6 months.          Citing U.S.S.G. §§ 3A1.2(b), 5K2.3, and 5K2.6, the
court departed upward to impose a 14-month sentence.               Redroad does not take
issue with the court's reliance on section 5K2.3.              He first maintains that
application       of   section    3A1.2(b),    which    provides    for    a    three-level
enhancement if the defendant assaulted "a law enforcement or corrections
officer . . . in a manner creating a substantial risk of serious bodily
injury," constituted impermissible double counting, as the Guideline used
to calculate Redroad's base offense level, U.S.S.G. § 2A2.4(a), already
took into account Trottier's official-victim status.                   We review such a
challenge de novo.         See United States v. Sloley, 19 F.3d 149, 154 (4th
Cir.), cert. denied, 114 S. Ct. 2757 (1994).


        While    section   3A1.2(b)    should    not    be   applied   "if      the   offense
guideline specifically incorporates this factor," as is the case in section
2A2.4, see U.S.S.G. § 3A1.2, comment. (n.3), we disagree with Redroad's
assumption that the district court applied section 3A1.2(b) here.                     Rather,
our review of the sentencing transcript convinces us the court found that
section's "creating a substantial risk of serious bodily injury" language
aptly    described      Redroad's     conduct,    and   so   the   court       deemed   it   a
circumstance warranting departure.               See 18 U.S.C. § 3553(b); U.S.S.G.
§ 5K2.0, p.s. (court may depart if it finds aggravating circumstance of
kind or to degree not adequately considered by Sentencing Commission in
formulating Guidelines).         Therefore, we must determine whether the district
court abused its discretion in departing based on a factor




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set forth in a Guidelines provision that the court was otherwise prohibited
from applying in calculating Redroad's Guidelines range.     See United States
v. Poe, No. 96-1826, slip op. at 3 (8th Cir. Sept. 19, 1996)         (standard of
review; citing Koon v. United States, 116 S. Ct. 2035, 2047-48 (1996)).
The court abuses its discretion if, inter alia, it considers and gives
significant weight to an irrelevant or improper factor.       United States v.
McNeil, 90 F.3d 298, 300 (8th Cir. 1996).


        "[W]hether a factor is a permissible basis for departure under any
circumstances is a question of law," and the number of potential factors
that may warrant departure is virtually unlimited.        Koon, 116 S. Ct. at
2047,     2050.   Unless   the   Commission    has   categorically     proscribed
consideration of a factor--which it has not done here--the sentencing court
may depart if it determines that the factor, as occurring in the particular
circumstances, removes the case from the "heartland" of the applicable
Guideline, i.e., "a set of typical cases embodying the conduct that each
guideline describes."      See U.S.S.G. Ch.1, Pt.A, intro. comment. 4(b)
(defining "heartland"); Koon, 116 S. Ct. at 2051.


        The Guideline applicable to a violation of section 111 provides for
a three-level increase if the defendant's "conduct involved physical
contact, or if a dangerous weapon (including a firearm) was possessed and
its use was threatened."         U.S.S.G. § 2A2.4(b)(1).      Redroad did not
challenge the district court's assessment of this increase, and he does not
dispute that his conduct presented a substantial risk of serious bodily
injury.    We conclude that Redroad's actions exceeded simply possessing the
shotgun and threatening its use, moving his case outside the heartland of
cases contemplated in section 2A2.4.        Thus, the court did not abuse its
discretion in departing based on the factor described in section 3A1.2(b).




                                      -3-
       Redroad   makes     another   "double    counting"    argument   regarding     the
district court's reliance on section 5K2.6, which permits the court to
depart if a weapon "was used or possessed in the commission of the
offense."    We reject this argument because the section 2A2.4(b)(1) increase
punished Redroad's conduct in possessing the shotgun and threatening
Trottier with it, while the section 5K2.6 departure punished Redroad's
conduct in using the shotgun, i.e., in firing it.              See U.S.S.G. § 5K2.6;
cf. United States v. Reetz, 18 F.3d 595, 600 (8th Cir. 1994) (application
of   two   sentencing    enhancements    which    consider    different    aspects    of
defendant's conduct and represent different concerns does not amount to
double counting).        We further conclude that the court did not abuse its
discretion in departing under section 5K2.6 based on Redroad's actual, as
opposed to threatened, use of a firearm in the commission of the crime.
See U.S.S.G. § 5K2.6 (explaining that discharge of firearm might warrant
substantial sentence increase).         Contrary to Redroad's argument, a weapon
need not be "especially dangerous" to merit a departure; rather, the
dangerousness of the weapon goes to the extent of the departure.                 See id.


       Finally, we conclude that the sentence imposed by the district court
was not unreasonable.        See Williams v. United States, 503 U.S. 193, 202
(1992) (once reviewing court determines departure was not imposed in
violation of law or as result of incorrect application of Guidelines, it
must   assess    whether    resulting   sentence    is   unreasonably     high   or   low
departure from relevant Guidelines range).          Redroad's Guidelines range was
0 to 6 months, based on a total offense level of 7.                     Given that the
departure took into account factors described in three different Guidelines
provisions, sections 3A1.2(b), 5K2.3, and 5K2.6, we do not believe that
Redroad's 14-month sentence represents an unreasonably high departure.


       Accordingly, the judgment is affirmed.




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A true copy.


     Attest:


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




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