                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-2405
                                    ___________

United States of America,                 *
                                          *
             Plaintiff-Appellee,          * Appeal from the United States
                                          * District Court for the District of
      v.                                  * South Dakota.
                                          *
Tyrell Vincent Thin Elk,                  *
                                          *
             Defendant-Appellant.         *

                                    ___________

                             Submitted: Dec. 10, 2002
                                 Filed: March 3, 2003
                                 ___________

Before WOLLMAN, GIBSON, and MELLOY, Circuit Judges.
                          ___________

MELLOY, Circuit Judge.

       Tyrell Vincent Thin Elk ("Thin Elk") drove while intoxicated and caused a
head-on collision with another vehicle seriously injuring seventy-six year old Russell
Koehler and his seventy-four year old wife, Doris Koehler. Mrs. Koehler eventually
died from her injuries. Thin Elk pled guilty to assault resulting in serious bodily
injury regarding the injuries to Mr. Koehler and involuntary manslaughter regarding
the death of Mrs. Koehler. The district court1 assessed the severity of injury to Mr.
Koehler as a "permanent or life threatening bodily injury" that called for a six level
increase under U.S.S.G. § 2A2.2(b)(3)(C). To reach this six level increase, the
district court relied on psychological injury to Mr. Koehler in combination with his
physical injuries. In addition, the district court departed upwardly pursuant to
U.S.S.G. § 5K2.3, relying on Mr. Koehler's extreme psychological injury. Thin Elk
appeals his sentence claiming that the district court impermissibly double-counted
Mr. Koehler's psychological injuries by considering them under both U.S.S.G. §
5K2.3 and 2A2.2(b)(3)(C). We affirm.

                                            I.

       Thin Elk is an enrolled member of the Rosebud Sioux Tribe. He has an
extensive criminal history. On July 8, 2001, Rosebud Sioux Tribal law enforcement
officers arrested him on a variety of warrants and charges. On August 21, 2001, the
day prior to his release from jail, he told a detention officer that the first thing he was
going to do upon release was get "wasted." He was released on August 22, 2001.

        On August 23, 2001, with a blood alcohol level of .257, traveling at a speed of
approximately 95 miles per hour, and over the objections and pleading of a female
passenger, Thin Elk pulled out to pass another vehicle. He proceeded to drive down
the center of the road, not returning to his own lane. In doing so, he crashed his
vehicle head-on into the vehicle of Mr. and Mrs. Koehler. The Koehlers were
initially treated at the Indian Health Service Hospital in Rosebud, South Dakota, and
were later taken via air ambulance to the Sioux Valley Hospital in Sioux Falls, South
Dakota.




      1
       The Honorable Charles B. Kornman, United States District Judge for the
District of South Dakota
                                            2
       Mr. Koehler was treated for a mild pulmonary contusion, a fractured left
humerus, and a fractured left femur. Mrs. Koehler was treated for bilateral pulmonary
contusions, a right ankle fracture, a puncture wound to her left knee, questionable
myocardial infarction, and closed head injury. The Koehlers remained hospitalized
for about two weeks in Sioux Falls before being transported to an assisted living
facility near their home in Las Vegas, Nevada. Mrs. Koehler developed acute
gastrointestinal bleeding and a diaphragmatic rupture with herniation of the stomach
into the chest. She was admitted to intensive care at the Desert Springs Hospital in
Las Vegas where she remained weak and continued to decline. She died on
November 2, 2001, as a result of the injuries and complications she suffered from the
accident. The Koehlers had been married fifty-three years.

       Mr. Koehler was in good health and was active prior to the accident. He
walked five to seven miles per day. He was on medication for the beginning stages
of dementia. As a result of the accident, he requires ongoing home health care at a
cost of about $3,000 per month, his mobility is limited, his dementia has progressed
dramatically, and he is on medication for depression. Medical testimony described
Mr. Koehler's dementia as having advanced by ten years and as being caused fifty
percent by age and fifty percent by the accident. Mr. Koehler continues to suffer
severe pancreatitis and memory loss which are related to the accident. He has stated
that he no longer wants to live. The Koehler family has been billed approximately
$2.5 million for medical expenses as a result of the accident.

       Following Thin Elk's plea of guilty, the court ordered a presentence
investigation report ("PSR"). Paragraph 25 of the PSR called for a four level increase
under U.S.S.G. § 2A2.2(b)(3)(B), characterizing the injuries to Mr. Koehler as
"Serious Bodily Injuries." The government objected, urging instead that the court
characterize Mr. Koehler's injuries as "Permanent or Life Threatening Bodily
Injuries" and impose a six level increase under U.S.S.G. § 2A2.2(b)(3)(C). The
government also moved for an upward departure under U.S.S.G. § 5K2.3 for extreme

                                          3
psychological injury.

       At the sentencing hearing, the district court sustained the government's
objection and imposed the six level increase stating, "the psychological injury in
combination with the physical injury here to the victim should be considered and
taken into account in determining what is the appropriate enhancement, and I find that
the victim here, Mr. Koehler, did sustain permanent and life threatening bodily injury,
and that he continues to suffer from that." Sentencing Transcript at 33-34. In
addition, the district court granted the government's motion for an upward departure
under U.S.S.G. § 5K2.3 based on the severity of Mr. Koehler's psychological injuries
and based on the fact that Thin Elk knowingly risked the harm that, in fact, occurred
to his victims. The district court stated:

      It's also clear to me that the injury was knowingly risked by this
      defendant. Driving 95 miles an hour while incredibly intoxicated, on the
      wrong side of the road, passing where he shouldn't have been, and
      ignoring the pleas of his passenger to slow down or to let her drive in
      which he said, "Shut the f[___] up," clearly indicates that he knowingly
      risked what happened here. He does not now – is not now able to recall
      that, but that doesn't make any difference.

      And, so, Mr. Koehler's psychological injury here is much more serious
      than that otherwise suffered by a similar victim, even those in which the
      six-level enhancement has already been applied.

Sentencing Transcript at 35. The district court cited numerous factors that influenced
its decision to depart upward:

      He and his wife were married for 53 years. He was age 76. A person
      who is already starting down the road of dementia or Alzheimer's
      disease is, of course, severely impacted by injuries of this type. Even
      people of advanced age who are not approaching problems with
      Alzheimer's are severely impacted by injuries and by the process of

                                          4
      going through treatment as to all those matters. The confusion of being
      in the hospital and being in some other type facility [sic]. And, of
      course, the anesthesia that is required in dealing with these things is a
      well-known factor, as well, in impacting people who are involved in
      these type[s] of very serious accidents. It's also clear based on the
      testimony that I heard today from the son of the victims that the victim,
      Mr. Koehler, is suffering from severe depression, [and that he] no longer
      wants to live.

Sentencing Transcript at 35-36.

       It is undisputed that the district court considered the psychological injury to
Mr. Koehler for both the increase and the upward departure. The district court even
noted, "Now, I totally realize that this, to some extent, appears to be double counting,
the Court having already ordered the six-level increase. But I find that this case is
sufficient to justify both the six-level increase an[d] upward departure." Sentencing
Transcript at 36.

       As a means to quantify an appropriate value for the upward departure, the
district court moved horizontally across the guideline table rather than vertically
down the table. It imposed the sentence as though Thin Elk had a criminal history
category of IV rather than his actual criminal history category of II. In response to
questions from Thin Elk's counsel, the court clarified that the upward departure was,
in fact, based on extreme psychological injury under U.S.S.G § 5K2.3 and that the
reference to Thin Elk's criminal history level was merely a guide or tool for
calculating an appropriate departure value. See Sentencing Transcript at 38-39. With
the increase and upward departure, the district court sentenced Thin Elk to 69 months
on the assault count and 69 months on the involuntary manslaughter count, to be
served concurrently, followed by three years of supervised release. Thin Elk appeals
the upward departure alleging that it comprised impermissible double counting of Mr.
Koehler's psychological injury. He does not appeal the manner in which the district
court calculated the departure.

                                           5
                                          II.

       We review the district court's construction of the sentencing guidelines de novo
and its factual findings for clear error. United States v. Rohwedder, 243 F.3d 423,
425 (8th Cir. 2001). The de novo standard extends to our review of the permissibility
of double counting. Id. at 426-27; United States v. Kenney, 283 F.3d 934, 936 (8th
Cir. 2002). We review the district court's election to depart from the guidelines for
abuse of discretion "because the decision to depart embodies the traditional exercise
of discretion by the sentencing court." Commentary to U.S.S.G. § 5K2.0 (citing
Koon v. United States, 518 U.S. 81 (1996)). The abuse of discretion standard extends
to our review of the district court's determination as to "whether a given factor is
present to a degree not adequately considered by the Sentencing Commission."
United States v. Lewis, 235 F.3d 394, 396 (8th Cir. 2000).

       18 U.S.C. § 3553(b) permits a sentencing court to impose a sentence outside
the applicable Guideline range if the court finds "that there exists an aggravating or
mitigating circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the guidelines that
should result in a sentence different from that described." Id. The Sentencing
Commission enumerated some of the factors that it believed were not adequately
accounted for in the formulation of the Guidelines and might merit consideration as
aggravating or mitigating circumstances. U.S.S.G. § 5K2.0 (explaining the rationale
behind the factors listed in U.S.S.G. § 5K2.1-21). Extreme psychological injury is one
of these specifically enumerated factors. U.S.S.G. § 5K2.3.2


      2
          U.S.S.G. § 5K2.3 provides:

      If a victim or victims suffered psychological injury much more serious
      than that normally resulting from commission of the offense, the court
      may increase the sentence above the authorized guideline range. The
      extent of the increase ordinarily should depend on the severity of the
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        U.S.S.G. § 5K2.03 is a "Grounds for Departure" policy statement that
introduces the specifically enumerated factors and explains their application. This
general policy statement endorses the double counting of a factor for an upward
departure where that factor is taken into account elsewhere in the Guidelines, ". . .
e.g., as a specific offense characteristic or other adjustment[,]" but where, "in light of
unusual circumstances, the weight attached to that factor under the guidelines is
inadequate or excessive." Id. This court has previously relied on the general policy
statement of § 5K2.0 to find double counting permissible in the context of departures.
United States v. Hipenbecker, 115 F.3d 581, 584 (8th Cir. 1997) ("because § 5K2.0


      psychological injury and the extent to which the injury was intended or
      knowingly risked.

      Normally, psychological injury would be sufficiently severe to warrant
      application of this adjustment only when there is a substantial
      impairment of the intellectual, psychological, emotional, or behavioral
      functioning of a victim, when the impairment is likely to be of an
      extended or continuous duration, and when the impairment manifests
      itself by physical or psychological symptoms or changes in behavior
      patterns. The court should consider the extent to which such harm was
      likely, given the nature of the defendant's conduct.
      3
          U.S.S.G. § 5K2.0 provides:

      Under 18 U.S.C. § 3553(b), the sentencing court may impose a sentence
      outside the range established by the applicable guidelines, if the court
      finds "that there exists an aggravating or mitigating circumstance of a
      kind or to a degree not adequately taken into consideration by the
      Sentencing Commission in formulating the guidelines that should result
      in a sentence different from that described." . . . Similarly the court may
      depart from the guidelines, even though the reason for departure is taken
      into consideration in determining the guideline range (e.g., as a specific
      offence characteristic or other adjustment) if the court determines that,
      in light of unusual circumstances, the weight attached to that factor
      under the guidelines is inadequate or excessive. Id.
                                            7
contemplates the simultaneous consideration of factors that may be considered
elsewhere in the computation of a defendant's sentencing guideline range, the
Commission must have contemplated double counting when it created § 5K2.0.").

       This court's conclusion in Hipenbecker is consistent with the Supreme Court's
thorough discussion of departures in Koon v. United States, 518 U.S. 81, 95-96
(1996). In Koon, the Court noted that the consideration of some factors, such as race,
sex, national origin, religion, etc., is forbidden, while the use of other factors is
encouraged or discouraged (e.g., those factors set forth as bases for departure in §
5K2.1-21). Ultimately, the Court set forth instructions for dealing with various
factors that might arise:

      If the special factor is a forbidden factor, the sentencing court cannot use
      it as a basis for departure. If the special factor is an encouraged factor,
      the court is authorized to depart if the applicable Guideline does not
      already take it into account. If the special factor is a discouraged factor,
      or an encouraged factor already taken into account by the applicable
      Guidelines, the court should depart only if the factor is present to an
      exceptional degree or in some other way makes the case different from
      the ordinary case where the factor is present.

Id. See also, United States v. Evans, 272 U.S. 1069, 1089 (8th Cir. 2001) ("under
Koon [], conduct can be considered both in the crime and in the upward departure.
The key question is whether the factor is present to an exceptional degree or
something else make the case different from the ordinary case where the factor is
present.") (internal citations omitted).

      The case at hand presents the third scenario described in Koon. The relevant
special factor, namely, extreme psychological injury under U.S.S.G. § 5K2.3, is an
"encouraged factor." This encouraged factor is taken into account elsewhere within
the Guidelines, specifically in the definition of "Permanent or Life Threatening
Bodily Injury." Under U.S.S.G. § 2A2.2(b)(3)(C), a "Permanent or Life Threatening

                                           8
Bodily Injury" is an "injury involving a substantial risk of death; loss or substantial
impairment of the function of a bodily member, organ, or mental faculty that is likely
to be permanent. . . ." U.S.S.G. § 1B1.1 n.1(g) (adopted by reference in U.S.S.G. §
2A2.2(b)(3)(C) n.1) (emphasis added). Because the relevant special factor in the
present case is an encouraged factor already taken into consideration elsewhere in the
Guidelines, an upward departure is permissible only if "the factor is present to an
exceptional degree or in some other way makes the case different from the ordinary
case where the factor is present." Koon, 518 U.S. at 96.

       Our review of the record leads us to conclude that the district court did not
commit clear error in its factual determinations concerning Mr. Koehler's mental
condition or abuse its discretion when it determined that Mr. Koehler's psychological
injury was present to an exceptional degree. The district court recognized the issue
of double counting and properly set forth detailed findings concerning the causes and
severity of Mr. Koehler's depression (which caused him to state that he no longer
wished to live): the loss of a spouse of fifty-three years, the extensive treatment
required by the physical injuries to a seventy-six year old victim, confusion regarding
hospitalization and moves between hospitals and assisted living facilities, and the
impact of the anesthesia attendant to the treatment for physical injuries. The district
court also explained the substantial impairment of Mr. Koehler's mental function due
to the aggravation of his dementia and set forth specific findings concerning "the
extent to which the injury was knowingly intended or risked." U.S.S.G. § 5K2.3.

       Finally, we find no abuse of discretion in the district court's holding that the six
level enhancement for the specific offence characteristic of "Permanent or Life
Threatening Bodily Injury" under § 2A2.2(b)(3)(C) failed to adequately account for
Mr. Koehler's psychological injury. The district court expressly noted that the six
level enhancement was based in part on physical injuries and only in part on his
psychological injuries. Accordingly, we find no abuse of discretion in the district
court's determination that psychologic injury was present to an exceptional degree

                                            9
and that § 2A2.2(b)(3)(C) alone failed to adequately take into consideration Mr.
Koehler's injuries.

      Finding no error in the district court's interpretation of the guidelines, and no
abuse of discretion in the district court's election to depart upwardly, we affirm.

      A true copy.

             Attest.

                     U.S. COURT OF APPEALS FOR THE EIGHTH CIRCUIT




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