                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 19a0150p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                                 ┐
                                     Plaintiff-Appellee,   │
                                                           │
                                                           >         No. 18-5894
        v.                                                 │
                                                           │
                                                           │
 COURTNEY SHEA GILLISPIE,                                  │
                                 Defendant-Appellant.      │
                                                           ┘

                          Appeal from the United States District Court
                       for the Eastern District of Kentucky at Lexington.
                     No. 5:17-cr-00126-1—Joseph M. Hood, District Judge.

                                Decided and Filed: July 10, 2019

               Before: ROGERS, GRIFFIN, and NALBANDIAN, Circuit Judges.
                                 _________________

                                           COUNSEL

ON BRIEF: Dori H. Thompson, THOMPSON LAW OFFICE, Lexington, Kentucky, for
Appellant. Charles P. Wisdom, Jr., John Patrick Grant, UNITED STATES ATTORNEY’S
OFFICE, Lexington, Kentucky, for Appellee.

                                      _________________

                                            OPINION
                                      _________________

       GRIFFIN, Circuit Judge.

       Defendant, Courtney Gillispie, appeals the district court’s decision to depart upward at
sentencing because his crime resulted in significant physical injury to his victim. Finding no
abuse of discretion in the court’s sentencing decision, we affirm.
 No. 18-5894                       United States v. Gillispie                              Page 2


                                                 I.

         Defendant was indicted on one count of distributing fentanyl in violation of 21 U.S.C.
§ 841(a)(1). This charge arises out of one sale of fentanyl to Jerry Brice, who had been
purchasing heroin from defendant “[o]ff and on, for maybe a year and a half.” Admittedly, Brice
was not a healthy man. He suffered from hypertension and a mild arrhythmia, tested positive for
hepatitis C, and had been an opioid addict for years.           In the drug sale in question, Brice
purchased from defendant half a gram of what he believed to be heroin, but what turned out to be
fentanyl. Brice then took approximately a quarter of that half gram and injected it intravenously.
Brice had a stroke and entered a coma; he was discovered unresponsive on his parents’ front
porch and doses of Narcan were unsuccessful at resuscitating him. He was taken to the hospital
and kept in a medically induced coma for over two weeks, but luckily he survived. It was later
determined that Brice suffered a subarachnoid hemorrhage and anoxic brain injury causing his
brain to lose oxygen. He also suffered liver failure, kidney failure, and heart failure, and only
recovered his day-to-day functioning after six months of intensive physical, speech, and
occupational therapies.

         After Brice awoke from his coma, he spoke with police and identified “Corey” as his
drug dealer. Police determined that “Corey” was defendant, and upon questioning he admitted
selling Brice the fentanyl. Defendant was charged with distribution of fentanyl as a result. He
pleaded guilty to the charge, admitting that he knowingly and intentionally sold fentanyl to
Brice.

         Defendant’s presentence report acknowledged the possibility that the district court could
increase his sentence above the authorized range based upon USSG § 5K2.2, which authorizes
departures when “significant physical injury result[s]” from the crime. He objected to this
portion of the report because the victim had an “extensive and serious history of pre-existing
medical conditions” making it likely that the fentanyl he injected was not the sole cause of his
overdose and injuries. The parties appeared for sentencing, at which Brice testified about his
overdose and resulting ailments. Defendant called Dr. Dave Feola, a doctor of pharmacy, to
testify at the hearing. Dr. Feola testified that it was possible Brice’s pre-existing health status
affected his likelihood of experiencing a drug overdose, and that it was possible that his
 No. 18-5894                      United States v. Gillispie                               Page 3


condition could have increased the likelihood of overdose symptoms. Ultimately, the district
court concluded that defendant’s fentanyl caused Brice’s overdose and increased defendant’s
offense level by six points, from 17 to 23. This increased defendant’s Guidelines range to 51 to
63 months, and the district court sentenced him to the bottom of that range, for a sentence of 51
months.

       Defendant now appeals his sentence.

                                                II.

       We review sentencing determinations for abuse of discretion. Gall v. United States, 552
U.S. 38, 41 (2007). We similarly review a district court’s decision to depart upward from the
Guidelines for an abuse of discretion. United States v. Robinson, 892 F.3d 209, 212 (6th Cir.
2018). And this abuse-of-discretion standard even applies to whether “the [court’s] discretion
was . . . guided by erroneous legal conclusions.” Koon v. United States, 518 U.S. 81, 100 (1996).

                                               III.

       This appeal centers entirely on the interpretation of § 5K2.2 of the United States
Sentencing Guidelines. That section provides, in pertinent part:

       If significant physical injury resulted, the court may increase the sentence above
       the authorized guideline range. The extent of the increase ordinarily should
       depend on . . . the extent to which the injury was intended or knowingly risked.
       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.

USSG § 5K2.2 (emphasis added). Defendant does not contest that Brice suffered significant
physical injury. In this regard, the unrebutted testimony at sentencing showed that as a result of
injecting the fentanyl he purchased from defendant, Brice: (1) had a stroke; (2) went into a coma
for over two weeks; (3) suffered a brain hemorrhage, kidney failure, heart failure, liver failure,
and rhabdomyolysis; and (4) had to relearn how to walk and write. All in all, it took Brice over
six months of various therapy treatments to recover most of his functioning.
 No. 18-5894                       United States v. Gillispie                               Page 4


       On appeal, defendant contends that the district court erred by failing to consider Brice’s
“own choice to engage in the intravenous ingestion of street drugs and the knowing risk that he
engaged in.” Because § 5K2.2 notes that any departure under this section should take into
account “the extent to which the injury was . . . knowingly risked,” he argues that it “is not clear
as to whether the [Sentencing Commission] is discussing the ‘knowing risk’ entered into by the
victim or the Defendant.” Defendant does not cite any support for this argument and, in fact,
admits that there is no precedent interpreting this language. But even more problematic for his
contention is that it runs headlong into the plain language of the sentencing provision when read
as a whole.

       It is a fundamental canon of construction that the words of a text must be read in their
context and with a view to their place in the overall scheme. Davis v. Mich. Dep’t of Treasury,
489 U.S. 803, 809 (1989); see also Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 167 (2012) (“[T]he whole-text canon . . . calls on the judicial
interpreter to consider the entire text, in view of its structure and of the physical and logical
relation of its many parts.”). While the language defendant quotes is in the passive voice and
specifies no actor, § 5K2.2 clarifies that language’s subject only two sentences later: “If . . . the
defendant . . . did not knowingly create the risk of harm, a less substantial departure would be
indicated.”    USSG § 5K2.2 (emphasis added).          In other words, when reading the entire
Guidelines provision, it is the defendant’s intent or knowing risk—not the victim’s—that is
relevant.

       Furthermore, defendant not only has to overcome this textual barrier but also our
deferential standard of review. As noted above, the evidence presented at sentencing clearly
established that Brice suffered significant physical injury causing hospitalization, and which
could likely have led to death if not for the medical intervention. Given that defendant sold
Brice fentanyl that defendant told him was heroin, the district court did not abuse its discretion in
determining that defendant knowingly risked this significant physical injury to Brice. Robinson,
892 F.3d at 212. His 51-month sentence—falling at the very bottom of the properly scored
range—was reasonable and not an abuse of discretion.
No. 18-5894                     United States v. Gillispie              Page 5


                                             IV.

     For these reasons, we affirm the judgment of the district court.
