                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  _____________

                                   No. 97-4006
                                  _____________

United States of America,              *
                                       *
            Plaintiff - Appellee       *
                                       * Appeal from the United States
     v.                                * District Court for the
                                       * District of South Dakota.
Dean Arthur Allard,                    *
                                       *
            Defendant - Appellant.     *
                                 _____________

                                 Submitted: May 12, 1998
                                     Filed: January 8, 1999
                                  _____________

Before RICHARD S. ARNOLD, JOHN R. GIBSON, and FAGG, Circuit Judges.
                          _____________

JOHN R. GIBSON, Circuit Judge.

      Dean Arthur Allard pled guilty to one count of vehicular battery in violation of
18 U.S.C. §§ 7, 13 and 1152 (1994). Those sections assimilate state criminal law for
offenses by non-Indians on Indian land, and thus include South Dakota's vehicular
battery statute. See 18 U.S.C. §§ 7, 13, and 1152; S.D. Codified Laws § 22-16-42
(Lexis 1998). Because the United States Sentencing Guidelines have no expressly
promulgated guideline for vehicular battery, the district court applied the most
analogous guideline, which the court held to be involuntary manslaughter. Allard now
appeals the thirty-three month sentence imposed upon him, arguing that the district
court erred in multiple respects. We affirm in part and reverse in part.

       Allard, a non-Indian, spent a part of April 9, 1996, drinking with friends in
Norris and Wanblee, South Dakota. He drove onto Highway 44, crossed the median
and had a head-on collision with the car driven by Stephanie Fire Thunder, an enrolled
member of the Oglala Sioux Tribe. She was trapped in the vehicle for approximately
two hours before rescue, and eventually medical personnel took her to Rapid City
Regional Hospital. She suffered multiple lacerations, a broken rib, and a dislocated left
hip. Her hip required surgery. She was hospitalized until April 17, 1996, and was then
transferred to the Rapid City Rehabilitation Hospital, where she received therapy for
a continuing loss of feeling in her leg.

       Officers found the highly intoxicated Allard in his pick-up truck and removed
a partially full whiskey bottle from the truck. Allard was taken to Bennett County
Hospital, where his blood alcohol content was determined to be 0.189.

       Allard pled guilty to a violation of 18 U.S.C. §§ 7, 13, and 1152, predicated upon
a violation of South Dakota Codified Laws § 22-16-42.1 When there is no expressly
promulgated guideline for an offense, the district court is to choose the most analogous
guideline. See United States Sentencing Commission, Guidelines Manual § 2X5.1
(Nov. 1997). Although the district judge thought the involuntary manslaughter
guideline and the aggravated assault guideline were both analogous, it chose the


      1
       South Dakota Codified Laws Section 22-16-42 states:

             Any person who, while under the influence of an alcoholic
      beverage, any controlled drug or substance, or a combination thereof,
      without design to effect serious bodily injury, operates or drives a motor
      vehicle of any kind in a negligent manner and thereby causes the serious
      bodily injury of another person . . . is guilty of vehicular battery.
                                           -2-
involuntary manslaughter guideline as the most analogous. That guideline calls for a
base offense level of fourteen when the defendant's conduct is reckless. See USSG §
2A1.4. After setting the offense level at fourteen, the court made two adjustments. It
increased the level by five based upon the aggravated assault guideline's specific
offense characteristics for the seriousness of the victim's injuries, and it reduced the
level by three because Allard had accepted responsibility for his actions. See USSG §§
2A2.2 and § 3E1.1. The adjustments left the total offense level at sixteen. Although
Allard had six previous driving-under-the-influence convictions, only two affected the
criminal history, resulting in a criminal history category of III. This resulted in a
presumptive sentence range of twenty-seven to thirty-three months. Allard's ultimate
sentence was thirty-three months.

        In making the adjustments referred to above, the court explicitly stated that the
specific offense characteristics of aggravated assault could be "added" to the
involuntary manslaughter guideline's base offense level. The district judge stated that
he felt entitled to make an upward departure, but the transcript does not reflect that he
did so. Throughout the hearing, the district judge stated the two reasons he was making
the addition. First, in the district judge's words, the aggravated assault guideline and
involuntary manslaughter guideline were similar and choosing between the two was
really an "academic" matter involving "semantics." Secondly, Allard had several
previous criminal convictions that were not accounted for in his criminal history.

       On appeal, Allard argues that the involuntary manslaughter guideline is not
sufficiently analogous to the assimilative crime of vehicular battery. Allard concedes
that involuntary manslaughter and vehicular battery are similar in that both offenses
lack the element of specific intent, but maintains the offenses are not analogous because
vehicular battery involves the infliction of a non-fatal injury, while involuntary
manslaughter involves the infliction of a fatal injury. Allard further argues that because
there is no applicable guideline, he should be sentenced pursuant to 18 U.S.C. §
3553(b). 18 U.S.C. § 3553(b) directs that when there is no applicable guideline, the

                                           -3-
court is to have due regard for general sentencing policies (such as promoting respect
for the law, providing adequate deterrence, and protecting the public from further
crime), guidelines applicable to similar offenses and offenders, and the applicable
policy statements of the Sentencing Commission. See 18 U.S.C. § 3553(b) (1994)
(incorporating § 3553(a)(2) by reference). Allard maintains that the court should have
considered the minor assault guideline and the involuntary manslaughter guideline and
sentenced him using an offense level between the offense levels provided by those
guidelines. See USSG §§ 2A1.4 and 2A2.3. Finally, Allard argues that even if the
involuntary manslaughter guideline is the applicable guideline in his case, the district
court erred by adding the specific offense characteristics of the aggravated assault
guideline to the involuntary manslaughter guideline. Allard claims that this amounted
to "double counting" because the involuntary manslaughter guideline assumes the
victim's death.

       We have decided today the companion case of United States v. Osborne, No. 97-
4268, in which the same district judge applied the aggravated assault guideline as the
most analogous guideline in imposing a sentence for vehicular battery. Despite the
factual similarity of the cases and the district court's choice of the involuntary
manslaughter guideline as the most analogous guideline in this case, we conclude the
district court's choice was not erroneous in either case.

       The United States invites this court to review Allard's sentence for plain
unreasonableness. 18 U.S.C. § 3742(e) states, "[T]he court of appeals shall determine
whether the sentence . . . was imposed for an offense for which there is no applicable
sentencing guideline and is plainly unreasonable." 18 U.S.C. § 3742(e) (1994). There
is no applicable sentencing guideline only when the district judge has properly
determined that there is no sufficiently analogous guideline and sentenced the defendant
pursuant to the general provisions of 18 U.S.C. § 3553(b). See United States v. Cefalu,
85 F.3d 964, 966-69 (2d Cir. 1996). See also USSG § 2X5.1. The district judge held
that the involuntary manslaughter guideline was most analogous to vehicular battery;


                                          -4-
thus, reviewing Allard's sentence for plain unreasonableness is not appropriate.
Instead, as Osborne indicates, we must review the district judge's determination that the
involuntary manslaughter guideline was sufficiently analogous to vehicular battery, a
review we perform de novo, and the district judge's determination that the involuntary
manslaughter guideline was most analogous to vehicular battery, a review we perform
with due deference.

       As we indicated in Osborne, determining whether there is a sufficiently
analogous guideline to a particular crime is generally a task of comparing the elements
of federal offenses to the elements of the crime of conviction. In this case, we agree
with the district court that involuntary manslaughter is sufficiently analogous to
vehicular battery. Like vehicular battery, involuntary manslaughter contemplates that
the defendant did not have the specific intent to cause harm. See 18 U.S.C. § 1112
(1994) (defining manslaughter as the unlawful killing of another human being without
malice); State v. Big Head, 363 N.W.2d 556, 561 (S.D. 1985) (interpreting South
Dakota's similar vehicular homicide statute as not requiring subjective desire to cause
harm). Like vehicular battery, involuntary manslaughter requires that the defendant's
conduct cause serious bodily harm, although involuntary manslaughter specifically
contemplates the death of the victim. See 18 U.S.C. § 1112; S.D. Codified Laws § 22-
16-42. Indeed, Allard’s only argument that involuntary manslaughter is not sufficiently
analogous to vehicular battery is that involuntary manslaughter requires the death of the
victim, whereas vehicular battery only requires serious bodily injury. What Allard
misses is that, by definition, analogous guidelines do not and need not perfectly match
the defendant’s crime. See United States v. Terry, 86 F.3d 353, 358 (4th Cir. 1996).
We cannot say as a matter of law that the difference between death and serious bodily
injury makes involuntary manslaughter insufficiently analogous to vehicular battery.
Instead, we think the line drawing that is necessary in determining when a victim’s
injury is serious enough to fall within the purview of the involuntary manslaughter
guideline is better left to the district court when it, after considering all the
circumstances of the case, chooses the most analogous guideline.


                                           -5-
       Allard does not specifically challenge the district court’s choice of the most
analogous guideline and offers no one guideline that should have been applied. Even
if he did, we give the district court due deference in choosing the most analogous
guideline. We cannot say the district court erred in choosing the involuntary
manslaughter guideline considering Allard's reckless conduct and the seriousness of the
victim's injury.

       Having disposed of Allard’s first argument, we are left with his claim that even
if the district court correctly chose the involuntary manslaughter guideline, it "double
counted" by adding the specific offense characteristics of aggravated assault to the base
offense level of involuntary manslaughter. While we do not believe this was "double
counting," Allard's objection raises the propriety of the procedures used in sentencing
him.

       The sentencing guidelines generally contemplate that the district court apply one
guideline when the defendant is convicted on one count.2 The guidelines' application
instructions specifically direct the court to determine the applicable offense guideline,
to apply the base offense level, and to "apply any appropriate specific offense
characteristics . . . contained in the particular guideline . . . ." USSG § 1B1.1(b)
(emphasis added). Likewise, USSG § 1B1.2 directs the court, "once it has determined
the applicable guideline . . . to determine any applicable specific offense characteristics
under that guideline" USSG § 1B1.2 comment. (n.2) (emphasis added and parentheses
omitted). The guidelines call for upward departures, not the combining of guidelines,
when the district court finds that the total offense level arrived at by applying the
appropriate guideline is not adequate. See USSG §§ 1B1.1(I) and 5K2.0. Finally,




      2
       Some guidelines cross reference other guidelines. See USSG § 1B1.5.
Furthermore, multiple guidelines are considered when grouping multiple counts. See
USSG § 3D1.1. However, this is not a case involving a guideline with a cross
reference or a conviction on multiple substantive counts. See USSG §§ 2A1.4 and
2A2.2.
                                            -6-
combining guidelines contradicts USSG § 2X5.1's instruction to apply the most
analogous guideline (assuming it is sufficiently analogous) in the case of an assimilated
crime.3 Thus, we conclude the district court erred in directly adding the specific offense
characteristics of aggravated assault to the base offense level for involuntary
manslaughter.

       The specific offense characteristics of aggravated assault cannot be directly
added to the base offense level for involuntary manslaughter. Instead, if the district
judge concluded an increase in Allard's sentence was necessary, he had available the
option of an appropriate upward departure. The basis for the departure must be fully
articulated and supported by particularized findings addressing circumstances the
Commission did not adequately consider in the guidelines. See United States v.
Cammisano, 917 F.2d 1057, 1063-64 (8th Cir. 1990). It is critical for guideline
procedures to be strictly followed if the guidelines are to succeed in achieving
"unwarranted sentence disparities" between similarly situated defendants. 28 U.S.C.



      3
        Some courts have reasoned that a USSG § 2X5.1 case is necessarily a case
where there is no applicable guideline. See, e.g., United States v. Cherry, 10 F.3d
1003, 1012-13 (3d Cir. 1993). They have held that multiple guidelines can be used in
sentencing the defendant because 18 U.S.C. § 3553(b) directs that when there is no
applicable guideline, the court is to have due regard for the relationship of the sentence
imposed to sentences prescribed by guidelines applicable to similar offenses. See id.
(quotations omitted). However, as we indicated above, if a sufficiently analogous
guideline is chosen as the most analogous guideline to the defendant's crime, it is the
applicable guideline. To hold otherwise is to hold that 18 U.S.C. § 3553(b) is
applicable both when there is not a sufficiently analogous guideline and when there is
a sufficiently analogous guideline. Such an approach cannot be squared with the
Commission's instruction in USSG § 2X5.1. We agree with most of the circuits'
approach to this issue. Cf. e.g., United States v. Couch, 65 F.3d 542, 544-45 (6th Cir.
1995); United States v. Mariano, 983 F.2d 1150, 1158-59 (1st Cir. 1993); United
States v. Smertneck, 954 F.2d 264, 265 (5th Cir.), cert. denied, 506 U.S. 833 (1992);
United States v. Norman, 951 F.2d 1182, 1184-85 (10th Cir. 1991) (all cases reviewing
the choice of the most analogous guideline pursuant to USSG § 2X5.1 without
invoking the provisions of 18 U.S.C. § 3553(b)).
                                           -7-
§ 991(b)(1)(B) (1994). The second goal of maintaining flexibility in sentencing, see
id., is achieved by exercise of the discretion provided in the guidelines.

       In Osborne, we commented that attempting to fashion a sentence pursuant to
USSG § 2X5.1 is frequently similar to attempting to determine which round hole best
accommodates a square peg. The district court undoubtedly encountered this problem
in sentencing Allard. However, the statutory structure of the guidelines and the
guidelines themselves reflect the substantial discretion placed in the district judge in
making such sentencing decisions. Thus, we affirm the district court’s decision to
apply the involuntary manslaughter guideline to Allard’s case, but we reverse the
district court's addition of the aggravated assault specific offense characteristics to
Allard’s offense level. We remand the case for resentencing in accordance with this
opinion.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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