                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0531n.06

                                           No. 12-5566

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                      FILED
UNITED STATES OF AMERICA,                                 )                       May 29, 2013
                                                          )                 DEBORAH S. HUNT, Clerk
       Plaintiff/Appellee,                                )
                                                          )
v.                                                        )   ON APPEAL FROM THE UNITED
                                                          )   STATES DISTRICT COURT FOR
CHRISTOPHER OSTEEN,                                       )   THE WESTERN DISTRICT OF
                                                          )   TENNESSEE
       Defendant/Appellant.                               )
                                                          )


       Before: BATCHELDER, Chief Judge, MERRITT and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. Christopher Osteen robbed the Old Country Store in Jackson,

Tennessee, setting off the store’s intrusion alarm in the process. Police officers responded and saw

Osteen flee the store on foot. Osteen was carrying a 9mm pistol, but none of the officers knew that.

Three officers gave chase and threw a flashlight at Osteen’s feet, causing him to lose his balance.

The officers tackled Osteen and tried to handcuff him, but he resisted, keeping his hands pinned

beneath his torso. During the struggle, Osteen’s pistol fired. The bullet struck Officer Mark Headen

in the left forearm—shattering his radius bone and causing nerve and arterial damage in his

arm—and then lodged in Headen’s backup pistol, which was holstered on his chest. Eventually the

other officers wrestled the gun from Osteen and handcuffed him. Headen later underwent multiple

surgeries, including a bone graph and insertion of a steel plate with six screws to reconstruct his

radius bone. Headen also required a tendon transfer to recover partial use of his left thumb.
No. 12-5566
United States v. Osteen
         Osteen was already a convicted felon at the time of this incident, so federal prosecutors

charged him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Osteen

pled guilty to the charge. At his sentencing hearing, the district court enhanced Osteen’s offense

level under U.S.S.G. § 3A1.2(c)(1)—known as the official-victim enhancement—for assaulting a

police officer in a manner that created a substantial risk of serious bodily injury. That enhancement

produced a guidelines range of 84 to 105 months. The government also requested that the court

depart upward under U.S.S.G. § 5K2.2, given the severity of Headen’s injuries. The district court

did so and sentenced Osteen to 115 months’ imprisonment.

         We review Osteen’s sentence for an abuse of discretion. United States v. Castilla-Lugo, 699

F.3d 454, 459 (6th Cir. 2012). Osteen’s principal argument is that, in determining his sentence, the

district court “double counted” the Headen shooting when the court enhanced Osteen’s offense level

under § 3A1.2(c)(1) and also departed upward under § 5K2.2. “Impermissible double counting”

occurs when not merely the same conduct, but the same aspect of the same conduct factors into a

defendant’s sentence in two separate ways. See United States v. Levy, 250 F.3d 1015, 1017 (6th Cir.

2001).

         We look to the text of the relevant guidelines to determine whether the district court double

counted. Section 3A1.2(c)(1) provides for a six-level enhancement “[i]f, in a manner creating a

substantial risk for bodily injury, the defendant . . . knowing or having reasonable cause to know that

a person was a law enforcement officer, assaulted such officer during the course of the offense or

immediate flight therefrom.” (Emphasis added.) Section 5K2.2, in turn, provides that “[i]f

significant physical injury resulted, the court may increase the sentence above the authorized

                                                  -2-
No. 12-5566
United States v. Osteen
guideline range. The extent of the increase ordinarily should depend on the extent of the injury.”

Thus, by their terms, these sections consider different aspects of the defendant’s conduct:

§ 3A1.2(c)(1) looks to the risk created by the conduct, while § 5K2.2 looks to the result.

        But Osteen points out that comment 4(B) to § 3A1.2(c)(1) defines “substantial risk of bodily

injury” to “include[,]” among other things, “actual serious bodily injury[.]” Thus, when read in light

of the definition, “substantial risk” under § 3A1.2(c)(1) can mean “actual serious bodily

injury”—which means that a district court potentially could apply § 3A1.2(c)(1) based upon the

result of the defendant’s conduct, rather than on the risk it causes.

        It is clear from the record here, however, that the district court based its application of

§ 3A1.2 on the risk of Osteen’s conduct. Osteen never cited comment 4(B) to the district court, and

indeed his counsel stated during the sentencing hearing that § 3A1.2 “doesn’t speak to actual injury,

it speaks to, apparently, risk[.]” Tr. 40. Meanwhile, the court spoke only in terms of “substantial

risk” in explaining its decision to apply § 3A1.2, see Tr. 45, 48; whereas in applying § 5K2.2 the

court cited “the degree of injury that the officer sustained[,]” Tr. at 54; see also Tr. at 51. Based

upon the record in this case, therefore, we conclude that the district court meant “risk” (rather than

injury) when it cited the “risk” created by Osteen’s conduct as the basis for the enhancement under

§ 3A1.2. Thus there was no double counting when the court applied § 5K2.2 based upon Headen’s

injuries.

        Osteen otherwise argues that his sentence is substantively unreasonable. Suffice it to say

that, given the extremely serious injuries suffered by Officer Headen, we disagree.

        The district court’s judgment is affirmed.

                                                 -3-
