                  United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-2115
                                  ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
    v.                                * District Court for the District
                                      * of South Dakota.
Naomi B. Hawkman,                     *
                                      *
           Defendant - Appellant.     *
                                 ___________

                             Submitted: January 11, 2005
                                Filed: February 23, 2006
                                 ___________

Before MURPHY, HANSEN, and SMITH, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       Naomi B. Hawkman pled guilty to assault with a firearm with intent to do
bodily harm and to use of a firearm to commit a crime of violence, and she was
sentenced by the district court1 to 228 months. Hawkman appeals, arguing that the
district court erred by departing upward and imposing an unreasonable sentence. We
affirm.




      1
        The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
        On August 8, 2004, Naomi Hawkman and her boyfriend Quentin Charging Elk
drove to the residence of his sister in law Diane after they had been drinking
throughout the day. Hawkman and the women in Charging Elk's family did not get
along, and Hawkman had been attacked by some of them the previous month resulting
in her being taken to the hospital by ambulance for treatment of cuts and a closed head
injury. After Hawkman got into a heated argument with Diane during the August 8
visit, she and Charging Elk left.

        Hawkman and Charging Elk returned to Diane's residence later that evening
with a .22 caliber rifle. Hawkman was sitting in the passenger seat of their car holding
the rifle. There were a number of people outside in Diane's yard. Hawkman yelled
for Diane's thirteen year old son to move, then fired between three and seven shots
toward the house. One of the bullets struck Diane's three year old daughter Felecia.
The bullet severed her spinal cord, paralyzing her from the chest down and confining
her to a wheelchair and body jacket.

       Hawkman and Charging Elk drove away after the shooting with Hawkman in
the driver seat. When they realized their car was being followed by police, they
attempted to flee and led the police on a thirty mile chase at high speeds. The chase
ended in Nebraska when the tires of their car were punctured by road spikes which
had been laid out by the authorities. Hawkman and Charging Elk were arrested, and
Hawkman readily admitted that she had fired the shot which injured Felecia and gave
a full confession. Hawkman claims that she attempted suicide when she found out
about the extent of Felecia's injuries.

       Hawkman and Charging Elk were indicted on four counts. They were charged
with assault with intent to commit murder, in violation of 18 U.S.C. §§ 1153,
113(a)(1), and 2 (Count I); assault with a dangerous weapon, in violation of 18 U.S.C.
§§ 1153, 113(a)(3), and 2 (Count II); assault resulting in serious bodily injury, in
violation of 18 U.S.C. §§ 1153, 113(a)(6), and 2 (Count III); and using a firearm to

                                           2
commit an assault, in violation of 18 U.S.C. §§ 924(c) and 2 (Count IV). Hawkman
pled guilty to Counts II and IV pursuant to a plea agreement under which the other
two counts were to be dismissed. The agreement also preserved Hawkman's right to
appeal if there were an upward departure.

       At the sentencing hearing in April 2005, the government called an FBI agent
who testified about her investigation of the shooting and about Felecia's condition and
injuries. She stated that Felecia was living at the Children's Care Hospital Center, that
she had undergone a tracheotomy, that she basically had no functionality below the
mid chest level and wore a body jacket to hold herself up in a wheelchair, and that she
had acted out in frustration over her physical limitations.2 She also testified that all
of Diane's children had been removed from her custody.

       Hawkman offered details about her family history through her great aunt. The
aunt told about the poverty of Hawkman's family when she was growing up, her early
responsibilities because her parents were alcoholics, her removal from the parental
home, her cohabitation with an adult male when she was fifteen, the prior assault on
her by women of the Charging Elk family, and her lack of prior convictions for violent
conduct. Hawkman testified that before the incident she had tried to obtain custody
of Felecia because she felt Diane was not an adequate parent.

       The district court substantially adopted the recommendations of the presentence
investigation report. On Count II it set a base offense level of 14, added 7 levels for
permanent or life threatening bodily injury to the victim and 2 levels for obstruction
of justice, then deducted 3 levels for acceptance of responsibility. This resulted in a
total offense level of 20. With a criminal history category of III, the guideline range

      2
       The agent described Felecia's behavior after being mainstreamed into a school
outside the hospital: "she has become more aware of what she does not have so she
has had tantrums or hits her legs and been upset about what she doesn't have or what
she now knows she doesn't have."

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for Count II was 41 to 51 months, and the court sentenced Hawkman to 51 months on
that count. The guideline sentence for Count IV was a statutorily required consecutive
10 years, the mandatory minimum under 18 U.S.C. § 924(c). See U.S.S.G. § 2K2.4.
The court found that a sentence within the advisory guideline range would not be
sufficient under the facts of the case, including the extent and permanence of Felecia's
injuries and Hawkman's "knowing risk" of shooting "out of the window of a moving
car multiple times into a yard full of people" while intoxicated. The court noted that
"[t]here could be no more significant physical injury other than the death of the child"
and that injuries like Felecia's result in a shortened life expectancy; it also
distinguished Felecia's injuries from typical injuries stemming from an assault with
a dangerous weapon. It discussed Hawkman's use of a firearm after drinking alcohol
and stated that "it would be hard to imagine a greater case of recklessness in the face
of all common sense." The court then departed upward on Count IV under § 5K2.2,
the guideline section dealing with departures for physical injury, and imposed a
sentence of 177 months. Since the sentence on Count IV was consecutive to that on
Count II, the total sentence was 228 months. The court also imposed supervised
release and restitution of $143,955.83.

      Hawkman appeals, asserting that the district court erred in departing upward on
Count IV for the same injury which was the basis for the 7 level enhancement on
Count II. She also contends that her sentence was unreasonable, that it was greater
than necessary, and that it contributes to sentencing disparity. The government
responds that the departure was permissible and appropriate and that the sentence is
reasonable.

      Hawkman was sentenced after United States v. Booker, 543 U.S. 220 (2005),
which requires district courts to calculate an advisory guideline sentence after
considering the applicable policy statements and then to account for the statutory
sentencing factors in 18 U.S.C. § 3553(a). See id. at 259-60; United States v. Haack,
403 F.3d 997, 1002-03 (8th Cir. 2005). We review sentences within or outside the

                                           4
guidelines range for reasonableness. See United States v. Mickelson, 433 F.3d 1050,
1055 (8th Cir. 2006).

        Hawkman asserts that the district court's upward departure on Count IV was
double counting in violation of the application note to U.S.S.G. § 5K2.0 (the general
policy statement discussing the grounds for upward departure) because it was based
on the same physical injury which had been the basis for the 7 level increase on Count
II for permanent or life threatening bodily injury under § 2A2.2(b)(3)(C) (the
aggravated assault guideline). She relies on United States v. Myers, 66 F.3d 1364 (4th
Cir. 1995), where the district court committed harmless error in departing upward for
physical injury when that factor was accounted for in the robbery guideline and the
district court made no finding that the guideline sentence would have been inadequate.
Id. at 1375.

       The government responds that neither the extent nor the permanence of
Felecia's injuries or her age were adequately accounted for in the guidelines and that
the court's departure was appropriate. The government relies on United States v.
Evans, 285 F.3d 664 (8th Cir. 2002), an abuse case upholding an upward departure
for significant physical injury even though one of the enhancements in the guideline
for criminal sexual abuse was based on serious bodily injury. It also cites two cases
approving upward departures for psychological injury where there had also been
enhancements for permanent or life threatening bodily injury. See United States v.
May, 413 F.3d 841, 846 (8th Cir. 2005) ("this form of 'double-counting' is permissible
under the Guidelines"); United States v. Thin Elk, 321 F.3d 704, 709-710 (8th Cir.
2003).

       In reply, Hawkman argues that the cases cited by the government are inapposite
since none had a § 5K2.2 departure for physical injury to a single victim and
departures for psychological injury come under § 5K2.3, which has different language
than the applicable guideline here. She urges instead that we follow cases decided by

                                          5
other circuits under § 5K2.1 (departures involving death) since § 5K2.2 states that the
same considerations should generally apply under both provisions. See, e.g., United
States v. Roston, 986 F.2d 1287(9th Cir. 1993), United States v. Whiteskunk, 162
F.3d 1244 (10th Cir. 1988). She argues that the underlying offense guideline
applicable in those cases was based upon the extent of injury, that that fact controlled
the departure issues there, and that the same fact should control in this case as well.

       We review the district court's decision to depart upward for abuse of discretion.
United States v. Fogg, 409 F.3d 1022, 1026 (8th Cir. 2005). Section 5K2.0(a)(3)
permits an upward departure in an exceptional case where there is a circumstance
"substantially in excess" of the ordinary offense. The application note to § 5K2.0
reinforces this concept where there is an aggravating circumstance not adequately
taken into account by the guidelines. See U.S.S.G. § 5K2.0, cmt. n. 3(B)(i). Section
3(B)(ii) of the note gives several examples of the types of circumstances that justify
a departure because they are not sufficiently reflected in the guidelines; such
circumstances may be exceptional either in type or degree. See U.S.S.G. § 5K2.0,
cmt. n. 3(B)(ii). The guideline for the mailing of injurious articles, for example, does
not address the disruption of a governmental function, but that factor might warrant
an upward departure if there were a significant disruption. See id. The injury
accounted for by the robbery guideline is simple physical injury, but there may in
some cases be unusually severe injuries or multiple injuries warranting a departure.
Hawkman relies on the robbery guideline example in the note and asserts that "no
further enhancement is permitted where a single individual is injured and the
underlying Guideline adds incremental increases based upon the extent of injury."
The example referring to multiple victims is illustrative of one circumstance where the
harm may be found to exceed that foreseen in the guideline, but that does not mean
that an upward departure would not be warranted if there were other aggravating
circumstances not accounted for in the guidelines.The district court explicitly found
the guideline range insufficient to account for the facts in this case. Felecia suffered
numerous and varied injuries: she will not be able to walk again, she cannot sit

                                           6
upright, she has lost virtually all lower body functions, and she has sustained
emotional injury, as evidenced by her tantrums. Felecia's injuries will cause her to
suffer for the remainder of her life, and it is likely that her life expectancy is affected.
The court found that the severity of Felecia's injuries was just below that of death and
noted the discrepancy between the injuries in this case and those in a typical case of
assault with a dangerous weapon. The court also noted the seriousness of combining
alcohol with use of a rifle and found that Hawkman was aware of the risk she was
taking. This case falls squarely within the general departure authority provided by §
5K2.0 and the specific authority to depart based on physical injury in § 5K2.2: Felecia
sustained exceptional physical and psychological injuries that are not accounted for
by the aggravated assault guideline.

        The record indicates that Felecia suffered psychological or emotional injury as
well as physical, and her physical injuries were compounded by sustaining them at the
young age of three, thus affecting the length and quality of her whole life span. This
case is unlike Myers, where the court failed to find that the enhancement for physical
injury under the robbery guideline was inadequate and committed harmless error.
Myers, 66 F.3d at 1375. Here, the district court explicitly stated that the guideline
sentence was insufficient, and its departure satisfied the guideline rules for upward
departure. We have found "double counting" permissible in the departure context if
the facts support it. See Thin Elk at 709. We conclude that the district court did not
err in its findings in this case nor abuse its discretion by deciding to depart.

       Hawkman also challenges the reasonableness of her sentence. She argues that
the sentence violates 18 U.S.C. § 3553 because it was greater than necessary, creates
an unwarranted sentencing disparity, and was imposed without sufficient detail in the
judgment as required by § 3553(c)(2). She also argues that the court erred in its
calculation of the number of assaults when it found that each shooting constituted an
assault rather than finding that the shootings were the result of one impulse and
consequently a single offense. See United States v. Chipps, 410 F.3d 438, 448 (8th

                                             7
Cir. 2005). Hawkman further asserts that the court failed to consider the nature and
circumstances of the case and her history and characteristics and that there is a
disparity between her sentence and those affirmed by this court in recent aggravated
assault cases involving intentional infliction of brutal harm. The government responds
that the sentence is reasonable.

       The district court discussed the reasoning behind its sentence and the upward
departure both during the sentencing hearing and in its statement of reasons and noted
in each instance that it had considered the factors in § 3553. The explanation in the
court's statement of reasons complied with § 3553(c)(2). See United States v.
Wheeler, 412 F.3d 979, 981 (8th Cir. 2005) (§ 3553(c) requires a statement "sufficient
to ensure adequate review of the departure"). In arguing that her sentence was greater
than necessary and that it creates an unwarranted sentencing disparity, Hawkman cites
no case in which the defendant shot a victim with a firearm or in which the victim was
a child paralyzed for life; we consequently are not persuaded by her allegation of a
sentencing disparity. Furthermore, any possible error in the court's conclusion that
each shot was an assault was harmless, given the court's explanation that multiple
reasons justified the sentence.

       The district court recognized during the sentencing hearing that Hawkman was
remorseful and had not intended to shoot Felecia, but it also found that her acts had
been reckless and that her warning to Diane's son showed an awareness that someone
could be injured by the gunshots. The court found that Felecia would suffer the
effects of Hawkman's action her entire life and that the advisory guideline range
would not be "a sufficient sentence under the facts here." The judge distinguished
more typical assaults, whose effects are temporary, from the assault in this case and
determined that the risk of great injury had been knowingly taken by Hawkman. After
examining the record and the district court's thorough consideration of all of the facts
and circumstances of the offense, including mitigating and aggravating factors, we
conclude that the sentence imposed was not unreasonable.

                                           8
Accordingly, we affirm the judgment of the district court.

                ______________________________




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