           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
