                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-3702
                         ___________________________

                              United States of America,

                        lllllllllllllllllllll Plaintiff - Appellee,

                                            v.

                     Virgil L. Hubbard, Sr., also known as OG,

                       lllllllllllllllllllll Defendant - Appellant.
                                        ____________

                     Appeal from United States District Court
                    for the Northern District of Iowa - Dubuque
                                  ____________

                           Submitted: September 12, 2014
                              Filed: January 12, 2015
                                  [Unpublished]
                                  ____________

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.
                           ____________

PER CURIAM.

       Virgil L. Hubbard, Sr. pleaded guilty to distributing heroin near a playground,
in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 860. The district court1

      1
      The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
sentenced Hubbard to 150 months’ imprisonment. Hubbard appeals his sentence,
arguing that the district court erred by departing upward under § 5K2.2 of the
advisory sentencing guidelines on the ground that Hubbard’s offense resulted in
“significant physical injury.” We affirm.

       Hubbard admitted that he distributed heroin between 2011 and 2013 in the area
of Dubuque, Iowa. Two incidents arising from that distribution gave rise to the
district court’s consideration of an upward departure under § 5K2.2.

      On December 24, 2012, Logan Ball purchased a quantity of heroin from
Hubbard, at least a portion of which he then provided to Andrew Leliefeld. Later that
evening, Leliefeld took the heroin to the residence of a friend, J.W. J.W. injected the
heroin and immediately lost consciousness. Paramedics revived J.W. by injecting
him with Naloxone, an opiate antidote. J.W. experienced stroke-like symptoms two
days later, and returned to the hospital for further examination.

       On June 5, 2013, Hubbard distributed 0.8 grams of heroin to another customer,
M.V. Unbeknownst to Hubbard, M.V. intended to commit suicide by injecting a
lethal dose of the heroin. After injecting the heroin, M.V. immediately lost
consciousness. Paramedics revived M.V. by injecting him with Naloxone.

      Dr. Joshua Pruitt, a Deputy Medical Examiner in Linn County, Iowa, testified
at Hubbard’s sentencing hearing that both J.W. and M.V. had suffered heroin
overdoses. Dr. Pruitt further testified that the condition in which J.W. and M.V. were
found required immediate medical intervention to prevent death or long-term injury.

      The government recommended an upward departure based on USSG § 5K2.2.
Section 5K2.2 provides that “[i]f significant physical injury resulted, the court may
increase the sentence above the authorized guideline range.” The district court, over
Hubbard’s objection, departed upward by three offense levels based on § 5K2.2. The

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court found that J.W. and M.V. were “significantly physically injured as a result of
defendant’s distribution of heroin.” The court then stated: “If the Eighth Circuit
Court of Appeals does not agree with my interpretation of 5K2.2, then I would vary
upward to the same level to reflect that defendant’s heroin distribution resulted in an
injury involving a substantial risk of death that did require medical intervention and
that this would be a factor not covered by the guidelines that should come into play
in the analysis of the 3553(a) factors under Title 18.”

       With the upward departure, the district court calculated Hubbard’s total offense
level at 27. Based on a criminal history category of VI, Hubbard’s advisory guideline
range was 130-162 months. The district court then sentenced Hubbard to 150
months’ imprisonment.

       On appeal, Hubbard argues that the district court committed procedural error
by departing upward under § 5K2.2. He argues that an upward departure was not
warranted, because although Dr. Pruitt testified that heroin usage was a but-for cause
of injuries to J.W. and M.V., these injuries were not foreseeable to Hubbard. He also
contends that J.W. and M.V. did not suffer “significant physical injury” within the
meaning of § 5K2.2.

       It is unnecessary to decide the issues raised by Hubbard, because any potential
error by the district court in departing upward pursuant to § 5K2.2 was harmless. The
district court stated clearly that whether or not a departure was authorized under the
advisory guidelines, the court would have imposed the same sentence based on its
statutory authority under 18 U.S.C. § 3553(a). “In general, we have found harmless
sentencing error when a court specifically identifies the contested issue and
potentially erroneous ruling, sets forth an alternative holding supported by the law
and the record in the case, and adequately explains its alternative holding.” United
States v. Sayles, 674 F.3d 1069, 1072 (8th Cir. 2012). Here, the district court clearly
identified the contested issue, discussed facts as necessary to support its alternative

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sentencing decision under § 3553(a), and adequately explained the sentence.
Whether or not the injuries to J.W. and M.V. were “foreseeable” to Hubbard or
qualified as “significant,” the district court was authorized under § 3553(a) to give
weight to the fact that Hubbard’s distribution of heroin was a but-for cause of
episodes in which two persons required emergency medical attention to avoid death
or permanent injury. Under the circumstances here, any potential error in applying
§ 5K2.2 was harmless. See United States v. Henson, 550 F.3d 739, 741 (8th Cir.
2008).

      The judgment of the district court is affirmed.
                     ______________________________




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