                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 18a0470n.06

                                       Case No. 17-6004

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                  FILED
                                                                            Sep 13, 2018
UNITED STATES OF AMERICA,                            )                  DEBORAH S. HUNT, Clerk
                                                     )
       Plaintiff-Appellee,                           )
                                                     )     ON APPEAL FROM THE UNITED
v.                                                   )     STATES DISTRICT COURT FOR
                                                     )     THE EASTERN DISTRICT OF
TIFFANY A. PRINCE,                                   )     KENTUCKY
                                                     )
       Defendant-Appellant.                          )



BEFORE: WHITE, DONALD, and LARSEN, Circuit Judges.

       BERNICE BOUIE DONALD, Circuit Judge. Defendant-Appellant Tiffany A. Prince

facilitated the purchase of heroin for “B.R.” from her dealer. B.R. ingested the drugs immediately

after purchase and soon experienced an overdose. Paramedics revived him, and he refused further

medical assistance. Prince pleaded guilty to aiding and abetting the distribution of heroin and

fentanyl. At sentencing, the district court found that B.R.’s overdose was a “significant physical

injury” under the Guidelines and departed upwards. Prince now appeals, arguing that B.R.

suffered no significant injury. For the reasons that follow, we AFFIRM.

                                                I.

       On September 6, 2016, the victim in this case, B.R., asked Prince to assist him in obtaining

heroin. Prince drove B.R. to a co-defendant’s home, a location where she had obtained narcotics

for personal use in the past. Once there, B.R. gave Prince $40 and she returned with two bindles
Case No. 17-6004, United States v. Prince


of heroin. Prince warned that the drugs were “powerful.” At the time, neither knew how prescient

Prince’s warning was—the heroin was laced with fentanyl. B.R. snorted the drugs. Prince then

drove B.R. to a local grocery store.

       Once inside the store, B.R. suffered a drug overdose. After falling unconscious, store

employees contacted emergency medical services. Seeing emergency responders, Prince left the

scene. Upon arrival, medical personnel identified suppressed respiration and diagnosed B.R.

accordingly. They provided two doses of Narcan—a medication used to block the effects of

opioids in case of overdose. B.R. regained consciousness and his breathing returned to normal.

Id. B.R. refused further medical attention and left the scene without medical assistance.

       Prince and the suppliers were indicted for distributing heroin laced with fentanyl. Prince

pleaded guilty to aiding and abetting the distribution of heroin and fentanyl, in violation of

21 U.S.C. § 841(a)(1). Prince’s Presentence Investigation Report (“PSR”) indicated a criminal

history category of V and a total offense level of 10. Her Guideline’s range was 21 to 27 months.

The PSR also indicated that Prince’s conduct caused a “significant physical injury,” thus

warranting an upward departure under U.S.S.G. § 5K2.2—which Prince timely objected to.

       At sentencing, the district court heard testimony from DEA Agent Anderson Muse

regarding B.R.’s overdose. Agent Muse confirmed that Prince warned B.R. that the drugs were

“pretty powerful” and, based on his review of B.R.’s medical records and interviews with

responding paramedics, confirmed that B.R.’s respiration rate was six, and that a respiration rate

under eight requires intubation. Agent Muse further stated that the first responders believed that,

absent their intervention and administering Narcan, B.R. would have died. The district court found

“that a heroin overdose is a significant physical injury for purposes of the guideline” and that

“without the administration of Narcan, B.R. would have run the risk of permanent oxygen



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deprivation and likely would have died.” The court also rejected Prince’s argument that § 5K2.2

required a permanent injury and noted that B.R.’s recovery “goes to the extent of the departure,

versus the fact that this guideline applies to begin with.” Further, it explained that B.R.’s injury

was a knowing risk because, “[a]s an addict herself, the defendant knew the potential risk of the

heroin” and “she knew the heroin was powerful, and she had warned [B.R.] to be careful.”

       The court overruled Prince’s objection and departed upwardly by three offense levels,

which resulted in an effective Guideline range of 30 to 37 months. The court acknowledged that

Prince did not act intentionally, but negligently, warranting a less substantial departure and

sentenced Prince to 36 months’ imprisonment. This timely appeal followed.

       Prince now appeals the district court’s upward departure under § 5K2.2, arguing that B.R.’s

suppressed breathing after overdosing does not constitute “significant physical injury.” Instead,

Prince argues, B.R.’s overdose—and the effects therefrom—are neither an injury, nor significant,

alternatively likening the symptoms to that of a common cold.

                                                 II.

       We review sentencing determinations “under a deferential abuse-of-discretion standard.”

Gall v. United States, 552 U.S. 38, 41 (2007). Our review of a district court’s decision to depart

upward from the Guidelines is also for abuse of discretion. See United States v. O’Georgia,

569 F.3d 281, 287 (6th Cir. 2009). “In reviewing a district court’s application of the Sentencing

Guidelines, this court must ‘accept the findings of fact of the district court unless they are clearly

erroneous and . . . give due deference to the district court’s application of the guidelines to the

facts.’” United States v. Simmerman, 850 F.3d 829, 832 (6th Cir. 2017) (quoting 18 U.S.C.

§ 3742(e)).




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       Prince argues, however, that determination of the non-defined term “significant physical

injury” under § 5K2.2 is a legal interpretation that must be reviewed de novo. But the “abuse-of-

discretion standard includes review to determine that the discretion was not guided by erroneous

legal conclusions.” Koon v. United States, 518 U.S. 81, 100 (1996). Thus, we review for an abuse

of discretion.

                                                 III.

       The sole issue for us to determine is whether the district court abused its discretion in

finding that B.R.’s heroin and fentanyl overdose constituted a “significant physical injury” under

§ 5K2.2. As the parties briefed, there is surprisingly little instructive precedent to guide our

inquiry. There are no opinions—published or otherwise—that directly address this issue from our

Circuit. As for our sister circuits, there is a similar dearth of interpretation. Even were we to adopt

the reasoning of one of the few cases that have addressed this subject, that reasoning would not be

wholly dispositive of the issue before us.

       Still, several factors compel us to find that—under the specific facts of Prince’s case—the

district court did not abuse its discretion in departing upward due to a significant physical injury.

We begin with the language of § 5K2.2. As stated, “significant physical injury” is not defined.

However, recently, we have determined that “[t]he term ‘physical injury’ typically means ‘bodily

injury,’ which in turn is defined as ‘[p]hysical damage to a person’s body.’” United States v.

Camp, No. 17-1879, slip op. at 13 (6th Cir. Sept. 5, 2018) (emphasis added) (citing Black’s Law

Dictionary (10th ed. 2014)); see United States v. Edling, 895 F.3d 1153, 1158 (9th Cir. 2018)

(stating that Guidelines “[p]rovisions that refer to ‘physical injury’ standing alone use the term, as

does Black's Law Dictionary, as synonymous with bodily injury to a person”). In this instance,

the language of § 5K2.2 suggests that the drafters were only concerned about injury to a person,



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and not some other type of physical injury, such as damage to property. See § 5K2.2 (requiring

the court to consider “the degree to which [the injury] may prove permanent” and whether “the

victim suffer[ed] a major, permanent disability”) (stating that “the same considerations apply as in

§ 5K2.1,” which authorizes an upward departure if death resulted). Therefore, “physical injury”

is synonymous with “bodily injury” in this context.

        The Guideline’s commentary elsewhere defines “bodily injury” as “any significant injury;

e.g., an injury that is painful and obvious, or is of a type for which medical attention ordinarily

would be sought.” See U.S.S.G. § 1B1.1, cmt. 1(B). The Guideline’s commentary also defines

elsewhere “serious bodily injury” as “injury involving extreme physical pain or the protracted

impairment of a function of a bodily member, organ, or mental faculty; or requiring medical

intervention such as surgery, hospitalization, or physical rehabilitation.”                    Id. at cmt. 1(L).

“Significant physical injury,” therefore, seems to fall somewhere in between the two.1 But to

answer the question presented in this case, we need not further define the term. Both “significant

injury” and “serious bodily injury” include pain or any injury for which medical attention would

be sought or is required. Here, we have testimony that supports the necessity of medical attention.

While not as intensive or protracted as surgery or hospitalization, the district court heard testimony

that, absent emergency intervention and the administration of an opioid suppressant, B.R.’s

respiratory rate would have continued to decline, resulting in his death. This testimony was



1
  Merriam Webster’s online dictionary defines “serious” as “having important or dangerous possible consequences.”
Merriam-Webster Online, https://www.merriam-webster.com/dictionary/serious (last visited July 2, 2018). Its
synonyms include “dangerous, grave, grievous, hazardous, jeopardizing, menacing, parlous, perilous, risky,
threatening, unhealthy, unsafe, and venturesome. Id. On the other hand, “significant” is defined as “having meaning,”
with listed synonyms of “big, consequential, earth-shattering, eventful, historic, important, major, material,
meaningful, momentous, monumental, much, substantial, tectonic, and weighty.” Merriam-Webster Online,
https://www.merriam-webster.com/dictionary/significant (last visited July 2, 2018). These definitions intimate that
“serious” is more severe than “significant.” See also United States v. Ramirez, 557 F.3d 200, 207 (5th Cir. 2009)
(noting that New Jersey’s laws delineate crimes with intent to cause “serious bodily injury” and “significant bodily
injury,” with the former classified as the greater offense).

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Case No. 17-6004, United States v. Prince


sufficient to establish that B.R. suffered a “significant physical injury” and, thus, we will not find

an abuse of discretion in its application.

       The language in § 5K2.2 evidences an intent to allow for a flexible, factual inquiry into the

extent of the increase. Indeed, as briefly mentioned above, § 5K2.2 states that “[t]he extent of the

increase ordinarily should depend on the extent of the injury, the degree to which it may prove

permanent, and the extent to which the injury was intended or knowingly risked.” U.S.S.G.

§ 5K2.2. Moreover, § 5K2.2 states that when “the victim suffers a major, permanent disability

and when such injury was intentionally inflicted, a substantial departure may be appropriate. If

the injury is less serious or if the defendant (though criminally negligent) did not knowingly create

the risk of harm, a less substantial departure would be indicated.” Id. Such language strongly

implies that, contrary to Prince’s argument here, the section is intended to apply where there is an

injury that is temporary or unintentional but that such a case warrants a lesser departure. Common

sense as to the plain language of the statute demands the same conclusion. In common parlance,

a drug overdose would not be an insignificant injury.

       Next, we look to any available guiding precedent. Though this is a matter of first

impression, all cases provided suggest that the district court did not abuse its discretion in applying

the sentence. See United States v. Roberts, 670 F. App’x 901 (8th Cir. 2016) (affirming sentence

that included upward departure under § 5K2.2 due to two heroin overdoses that required the use

of Narcan, albeit where the defendant only argued improper sentencing disparity); United States

v. Pacheco, 489 F.3d 40, 47 (1st Cir. 2007) (finding that district court did not commit clear error

“in finding that significant physical injury resulted from ketamine supplied by the defendant” when

victim overdosed, albeit where causation was the only issue and the defendant did not dispute that

the victim’s injuries were significant).



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        Finally, as the Government points out, the district court maintained the authority—under

18 U.S.C. § 3553(a)—to give additional weight to the overdose, even if § 5K2.2 did not apply.

See United States v. Hubbard, 589 F. App’x 809, 811 (8th Cir. 2015). In Hubbard, the defendant

sold heroin to multiple victims who later overdosed and were revived by paramedics using Narcan.

Id. at 810. At sentencing, the defendant objected to a departure under § 5K2.2. Id. The district

court overruled the objection and departed upward three offense levels because both victims were

“significantly physically injured as a result of defendant’s distribution of heroin.” Id. (internal

citation omitted). However, the district court also stated that “[i]f the Eighth Circuit Court of

Appeals does not agree with my interpretation of 5K2.2, then I would vary upward to the same

level to reflect that defendant’s heroin distribution resulted in an injury involving a substantial risk

of death that did require medical intervention.” Id. On appeal, the Eighth Circuit found it

unnecessary to determine whether the overdoses constituted “significant physical injury,” because

“any potential error . . . was harmless” as the district court “was authorized under § 3553(a) to give

weight to the fact that [the defendant’s] distribution of heroin was a but-for cause of episodes in

which two persons required emergency medical attention to avoid death or permanent injury.” Id.

at 810-11. So too here.

        In Prince’s case, the district court stated that, even if it “completely agreed” with Prince’s

objection to the application of § 5K2.2, the overdose was “an independent reason for the Court to

vary” and that Prince’s sentence was “in essence [] going to be a three-level departure/variance.”

Thus, just as our sister circuit found in Hubbard, the district court provided a clear statement on

the record that it would have imposed the same sentence, regardless of whether B.R.’s overdose

technically fell under § 5K2.2. Indeed, it described the sentence as a “departure/variance.” Id.

Though the district court was not as explicit regarding a potential appeal, it is equally as clear that



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Prince’s sentence would be the same with or without § 5K2.2. Hubbard is not binding but is

persuasive precedent providing an alternative reason to affirm. See also United States v. Schock,

862 F.3d 563, 569 (6th Cir. 2017) (noting that there are times when reliance on an incorrect range

is harmless “because the record reflects that the district court ‘thought the sentence it chose was

appropriate irrespective of the Guidelines range.’”) (quoting Molina-Martinez v. United States,

136 S. Ct. 1338, 1346-47 (2016)).

       Prince’s only arguments contrary to a finding of significant injury are unavailing. In short,

Prince cannot separate and compartmentalize the symptoms of the overdose to reduce the severity

of the injury. True, the paramedics diagnosed B.R.’s overdose via, at least, reduced respiratory

rate and unconsciousness. But those symptoms do not define his condition. Take, for example, a

heart attack. While the outward manifestations of a heart attack may include similarly mundane

symptoms such as chest discomfort, shortness of breath, and nausea, and though medical

intervention may prevent death and further injury, this does not alter the severity of the underlying

condition. Lastly, as made clear in the policy statement, a lack of permanent injury does not negate

an upward departure under § 5K2.2. See, e.g., United States v. Evans, 285 F.3d 664, 676 (8th Cir.

2002) (finding district court did not abuse its discretion in granting motion for upward departure

under § 5K2.2 where victims had significant physical injures but were not admitted to the hospital

or disabled permanently).

                                                IV.

       We need not and do not find that a drug overdose is per se a significant physical injury

under § 5K2.2. Nor do we attempt to further define that term. Instead, we hold that the district

court’s conclusion that B.R. suffered a significant physical injury was soundly based on testimony

from Agent Muse’s description of the overdose, which included the impressions and findings of



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Case No. 17-6004, United States v. Prince


the responding paramedics. Though we cannot know what would have occurred had B.R. not been

found unconscious inside the grocery store, there is no doubt that “something serious [was] afoot.”

Singleton, 917 F.2d at 413-14 (noting that significant injury “fairly exudes the impression that

something serious is afoot” and that it should be “something more than the ordinary scratches,

scrapes and bruises”). Regardless, the district court had ample discretion to depart on other

grounds and provided explicit statement that it would. Thus, the district court did not abuse its

discretion. We AFFIRM.




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