                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-25-2001

USA v. Philiposian
Precedential or Non-Precedential:

Docket 00-3796




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Recommended Citation
"USA v. Philiposian" (2001). 2001 Decisions. Paper 219.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/219


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Filed September 25, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3796

UNITED STATES OF AMERICA

v.

DOMINIC E. PHILIPOSIAN,
       Appellant

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 99-cr-00040-1)
District Judge: Honorable Jay C. Waldman

Submitted Under Third Circuit LAR 34.1(a)
July 24, 2001

Before: ROTH, BARRY, and AMBRO, Circuit Judges

(Opinion filed: September 25, 2001)

       MAUREEEN KEARNEY ROWLEY,
        ESQUIRE
       Chief Federal Defender
       DAVID L. MCCOLGIN, ESQUIRE
       Assistant Federal Defender
       Defender Association of Philadelphia
       Federal Court Division
       The Curtis Center, Suite 540 West
       Independence Square West
       Philadelphia, Pennsylvania 19106

       Counsel for Appellant
       MICHAEL L. LEVY, ESQUIRE
       United States Attorney
       ROBERT A. ZAUZMER, ESQUIRE
       Assistant United States Attorney,
        Chief of Appeals
       FAITHE MOORE TAYLOR, ESQUIRE
       PETER F. SCHENCK, ESQUIRE
       Assistant United States Attorney
       United States Attorney's Office
       Eastern District of Pennsylvania
       615 Chestnut Street, Suite 1250
       Philadelphia, Pennsylvania 19106

       Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge:

This appeal raises two questions. First, we address
whether the District Court properly applied a two-level
sentence enhancement pursuant to United States
Sentencing Guidelines ("U.S.S.G." or the "Sentencing
Guidelines") S 5K2.17, for possession of a high-capacity,
semiautomatic firearm in connection with a crime of
violence. Second, we decide whether the District Court
properly applied another two-level sentence enhancement,
pursuant to U.S.S.G. S 5K2.2, which allows for an upward
departure in cases where significant physical injury was
inflicted by the defendant. We answer both of these
questions affirmatively and therefore affirm.

I.

On January 12, 1999, after contemplating suicide,
Dominic E. Philiposian picked up his rifle, an AK-47, and
loaded it with a double thirty round magazine containing
fifty-nine rounds of ammunition. The AK-47 is a high
velocity military-style weapon that increases the speed at
which a bullet travels, thereby increasing both the shooter's
accuracy and the resulting risk of death or serious bodily
injury. Philiposian's magazine contained two types of

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ammunition: full metal jacket ammunition designed for
warfare, and jacketed and hollow point bullets designed to
expand on contact and cause aggravated wounds.

At the same time, Theresa Ebinger, a letter carrier for the
United States Postal Service, was delivering mail to the 600
block of 11th Avenue in Prospect Park, Pennsylvania, where
Philiposian lived in a third floor apartment. Instead of
shooting himself, Philiposian noticed Ms. Ebinger walking
outside, pointed his AK-47 at her, and fired twice through
his closed apartment window. One bullet hit Ms. Ebinger in
the arm, ripping a four centimeter hole just above her left
elbow. The bullet then entered her abdomen and bullet
fragments were spread throughout, severing the left lobe of
her liver, perforating her duodenum, lacerating her
pancreas, and fracturing her ribs.

As a result of the injuries, Ms. Ebinger received
emergency surgery and remained in the hospital for one
month. She also underwent four additional surgeries for
her arm but has not regained full use of her hand and arm
due to the extensive nerve damage. Additionally, doctors
implanted a steel cylindrical sleeve within her arm to
contain the many unrepaired bone fragments. In a letter to
the Probation Department, Ms. Ebinger stated that she
suffers serious physical pain every day, including pain and
indigestion when she eats, serious pain in her arm, as well
as the inability to perform daily functions such as cutting
food or typing letters.

After being apprehended outside his building, Philiposian
was charged via a three count indictment with (I) assault
on a federal employee pursuant to 18 U.S.C. S 111, (II)
attempted murder of a federal employee pursuant to 18
U.S.C. S 1114, and (III) use of a weapon during a crime of
violence pursuant to 18 U.S.C. S 924(c). At the completion
of a non-jury trial, the District Court found Philiposian
guilty of counts I and III, the assault and weapon charges,
but found him not guilty of count II, the attempted murder
charge.

On November 2, 2000, Philiposian appeared before the
District Court for sentencing, and received fifty-four months
imprisonment for the assault charge and a consecutive one

                                3
hundred twenty month prison sentence for the weapon
charge. In addition, the District Judge imposed three years
supervised release, restitution in the amount of
$261,054.04, and a special assessment of $100. In arriving
at that sentence, the District Court started with a base
offense level of fifteen under U.S.S.G. S 2A2.2, added six
levels pursuant to U.S.S.G. S 2A2.2(b)(3)(C) because the
offense caused permanent or life-threatening injury, and
then subtracted two levels for acceptance of responsibility
pursuant to U.S.S.G. S 3E1.1(a). This resulted in a total
offense level of nineteen and a criminal history category of
I.

The Government then made two motions for upward
departures. First, pursuant to U.S.S.G. S 5K2.17, it
requested an upward departure for possession of a high-
capacity semiautomatic firearm in connection with a crime
of violence. The prosecutor argued that Philiposian's use of
the AK-47 semiautomatic rifle qualified for an upward
departure because "the significant injuries sustained are a
direct result of the nature of the weapon and the type of
ammunition," and that the nature of the weapon increased
the likelihood of death or serious bodily injury. Philiposian
argued that even though the weapon qualified as a high-
capacity weapon due to its ability to hold more than ten
cartridges, its high-capacity was negated by the fact that he
only fired twice. The District Court rejected that argument
and granted the Government's motion, stating:

        The gentleman did shoot at a moving figure with a
       particularly dangerous type of weapon and form of
       ammunition and . . . I find that the nature of the
       weapon did increase the likelihood of injury and indeed
       serious injury in the circumstances of this particular
       case particularly with regard to the shattering of the
       arm.

        So I am going to grant the Government's motion to
       depart upward under Section 5K2.17. And again we
       are supposed to depart upward based on the degree to
       which the nature of the weapon increased the
       likelihood of injury. . . . I think that a fair adjustment
       in this case would be an upward departure of two
       levels . . . .

                               4
The Government also requested an upward departure
pursuant to U.S.S.G. SS 5K2.0 and 5K2.3 for aggravating
circumstances and extreme psychological injury and the
extraordinary effect the crime had on the victim. It argued
that the upward departure was warranted because the
Sentencing Guidelines do not address adequately the
combination of physical, psychological, and emotional
injuries suffered by Ms. Ebinger. However, Philiposian
argued that the psychological injury was not extraordinary
and that the pain suffered by Ms. Ebinger was already
considered by the Sentencing Guidelines in
S 2A2.2(b)(3)(C)'s six level enhancement for permanent or
life-threatening bodily injury.

The District Court denied the departure based on
extreme psychological injury under S 5K2.3, stating that
anyone who is the victim of this kind of offense"would
likely suffer psychological injuries resembling or
approximating those suffered by this victim." Despite not
being mentioned by either party, the District Court did
depart upward two levels, pursuant to U.S.S.G. S 5K2.2,
based on the extreme physical pain suffered by the victim.
It found that the six level guideline enhancement for
permanent or life-threatening injury was inadequate. The
Court stated:

        . . . I am ruling that the six level adjustment applies
       in my opinion to every permanent injury including
       permanent injuries accompanied by no pain on its
       face, including permanent injuries that merely deprive
       someone of the use of a finger or permanent injury to
       the eardrum as a result of which a person has ringing
       in the ear or difficulty hearing in one of their ears.

        I am saying where you have horrific, extensive
       permanent injuries accompanied by serious and
       unremitting pain which also require extensive physical
       therapy, in and of itself extremely painful, that is a
       situation that I believe is above and beyond the typical
       case contemplated by the six level adjustment and
       warrants a further upward departure.

        . . .

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        . . . I am departing upward two levels which I think
       fairly is the lowest number of levels I could depart. . .
       upward to capture the situation as I find it to be.

In light of the sentence enhancements, Philiposian's
offense level totaled twenty-three. The resulting guideline
range for the assault count became forty-six to fifty-seven
months. The District Court then imposed the fifty-four
month sentence on the assault charge followed by the
consecutive ten year term for the firearm charge. This
resulted in a total sentence of one hundred seventy-four
months imprisonment.

Philiposian now appeals the District Court's grant of
these two upward departures. We exercise our jurisdiction
pursuant to 28 U.S.C. S 1291, and apply an abuse of
discretion review. See Koon v. United States, 518 U.S. 81,
100 (1996); United States v. Jacobs, 167 F.3d 792, 798 (3d
Cir. 1999).

II.

The first argument advanced on appeal by Philiposian is
that the two-level upward departure for use of a high-
capacity semiautomatic weapon under U.S.S.G. S 5K2.17
was unjustified because only two shots were fired, and thus
the high-capacity nature of the weapon did not in this
particular case increase the likelihood of death or injury. In
essence, Philiposian argues that "[b]y its own terms, this
policy statement does not create an automatic upward
departure for any defendant who possesses a high-capacity,
semiautomatic firearm during a crime of violence or
controlled substance offense. Rather, an upward departure
is only warranted if in the circumstances of the particular
case, the `nature' of the firearm created a greater risk of
death or injury." Appellant's Brief at 19.

However, Philiposian reads S 5K2.17 far too narrowly.
That provision states:

       If the defendant possessed a high-capacity,
       semiautomatic firearm in connection with a crime of
       violence or controlled substance offense, an upward
       departure may be warranted. A "high-capacity,

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       semiautomatic firearm" means a semiautomatic firearm
       that has a magazine capacity of more than ten
       cartridges. The extent of any increase should depend
       upon the degree to which the nature of the weapon
       increased the likelihood of death or injury in the
       circumstances of the particular case.

U.S.S.G. S 5K2.17.

As this Court has previously noted: "the plain and
unambiguous language of the Sentencing Guidelines
affords the best recourse for their proper interpretation."
United States v. Wong, 3 F.3d 667, 670 (3d Cir. 1993).
Thus, "an adjustment that clearly applies to the conduct of
an offense must be imposed unless the Guidelines exclude
its applicability." Id. at 671. Therefore, we find Philiposian's
argument that the high capacity nature of the weapon did
not increase the risk of injury to be flawed.

First, the District Court received testimony that the AK-
47, a high-capacity, semiautomatic weapon, significantly
increased the likelihood of death or injury. Among other
things, the increased velocity of the bullets fired from the
AK-47 would cause fragmenting and injuries to the bone
upon impact, as well as increase the bullets' accuracy and
the capacity for causing death or serious bodily injury. The
testimony also revealed that this type of rifle further
increased the accuracy of the shooter by increasing his view
of the target. This evidence alone belies Philiposian's claim
that the high-capacity, semiautomatic nature of the weapon
did not increase the likelihood of injury.

Moreover, Philiposian's argument that S 5K2.17 was
intended to apply solely to circumstances in which the
weapon was used to fire a significantly large number of
shots without reloading is contrary to the plain meaning of
that Guideline. Section 5K2.17 applies if the defendant
merely "possessed" a high-capacity, semiautomatic firearm.
Contrary to Philiposian's reading, there is no requirement
that the defendant "use" that firearm to its full capacity.
There is no requirement that the weapon even be fired.
Thus, we cannot accept the narrow reading of S 5K2.17
advanced by Philiposian because it restricts application to
those instances where multiple shots are fired or

                               7
threatened to be fired in rapid succession at multiple
victims. Such a reading is clearly disproved by the plain
meaning of the Guideline and its applicability to any
defendant who merely possesses a high-capacity,
semiautomatic weapon.

After finding that a defendant possessed a high-capacity,
semiautomatic weapon, a district court must exercise its
discretion in deciding the extent of the applicable upward
departure. The amount of the increase depends on the
degree to which the nature of the weapon increased the
likelihood of death or injury. Contrary to Philiposian's
argument, the District Court correctly exercised its
discretion in deciding the extent of the departure by
stating:

        And again we are supposed to depart upward based
       on the degree to which the nature of the weapon
       increased the likelihood of injury. I don't know how to
       measure it and I'm not going to pretend I do.

        I'm sure sound argument could be made [that] there
       should be a 15 level increase based on the facts that
       it's twice as likely to result in serious injury but I'm
       just not going to do that. I think that a fair adjustment
       in this case would be an upward departure of two
       levels and that is what I'm going to do.

Because it cannot be said that the District Court abused
its discretion in granting the Government's motion for an
upward departure pursuant to U.S.S.G. S 5K2.17, we affirm
its imposition of a two-level upward departure.

III.

Second, Philiposian argues that the two-level upward
departure under U.S.S.G. S 5K2.2, based on the nature of
the injuries and pain, was unjustified because these factors
were already taken into account by the upward adjustment
under U.S.S.G. S 2A2.2(b)(3)(C), which added six levels for
causing permanent or life-threatening bodily injury. He
contends that the District Court erred in concluding that
the injury and pain caused by the shooting fell outside the
"heartland" of "permanent or life-threatening" injury under

                                8
S 2A2.2(b)(3)(C). Thus, Philiposian urges that the upward
departure pursuant to U.S.S.G. S 5K2.2 for the extent of the
injuries and extreme physical pain constituted
impermissible double counting. We disagree and hold that
the District Court did not abuse its discretion in applying
this upward departure.

A district court has discretion to "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.' "
U.S.S.G. S 5K2.0 (quoting 18 U.S.C. S 3553(b)). "Similarly,
the [sentencing] court may depart from the guidelines even
though the reason for departure is taken into consideration
in determining the guideline range . . . if the court
determines that, in light of unusual circumstances, the
weight attached to that factor under the guidelines is
inadequate or excessive." Id.

Here, the District Court determined that although the
victim's injuries were somewhat accounted for in the six
level enhancement under U.S.S.G. S 2A2.2(b)(3)(C), her
"permanent injuries accompanied by serious and
unremitting pain" were "above and beyond the typical case
contemplated by the six-level adjustment and warrant[ed]
further upward departure." In fact, the District Court
ultimately rejected the same argument Philiposian advances
on appeal -- that the six-level enhancement for permanent
physical injury sufficiently addressed the victim's injuries:

        A relatively modest permanent injury gets you six
       levels, therefore, it might only be fair, logical and
       reasonable to depart upward so you get seven, eight or
       nine levels if it's extraordinary permanent injury. . . .

        . . .

        Any injury that is permanent would get you that six
       levels. . . . Now, this woman has suffered . . . far more
       significant and horrific physical injuries and we don't
       need to recount them. We all know what they are and
       it's uncontroverted what they are and in my opinion an

                               9
       upward departure is justified when the injuries[,]
       whether they're serious for purposes of a four level
       enhancement or permanent for purposes of a six level
       enhancement[,] are sufficiently above and beyond the
       norm of what would be encompassed by the
       adjustment and I think they are in this case. . . . I am
       looking at the . . . nature and extent and extreme pain
       associated with the physical injuries to conclude that
       the six level adjustment which would normally
       encompass the heartland of permanent injuries is
       inadequate.

After deciding that an upward departure was appropriate,
the District Court set the appropriate departure at two
levels. It reasoned:

       I am sure the victim could make a very convincing case
       that there should be a ten level upward departure by
       asking you to spend a day in her body but I am
       departing upward two levels[,] which I think fairly is
       the lowest number of levels I could depart . . . upward
       to capture the situation as I find it to be.

We are convinced that the reasoning employed by the
District Court in granting the upward departure does not
evidence an abuse of discretion, and affirm the District
Court's decision to depart upward two levels pursuant to
U.S.S.G. S 5K2.2.

IV.

Because the District Court did not abuse its discretion in
applying the two sentence enhancements, we affirm its
application of upward departures pursuant to U.S.S.G.
SS 5K2.17 and 5K2.2.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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