                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         MAY 8 1998
                         FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                             Clerk

    UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

    v.                                                 No. 97-4033
                                                   (D.C. No. 95-CR-249)
    KELLY ROYJA ANKERPONT,                               (D. Utah)

             Defendant-Appellant.



    UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

    v.                                                  No. 97-4035

    CHARLES KENNETH HEADDRESS,

             Defendant-Appellant.


                          ORDER AND JUDGMENT *


Before PORFILIO, BARRETT, and HENRY, Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. These cases are

therefore ordered submitted without oral argument.

      Defendants-appellants Kelly Royka Ankerpont and Charles Kenneth

Headdress pled guilty to second-degree murder in Indian Country, in violation of

18 U.S.C. §§ 1111, 1153(a), and aiding and abetting the murder, in violation of 18

U.S.C. § 2. They appeal the district court’s determination to make a six-level

upward adjustment of their sentences, based on U.S.S.G. § 5K2.8, which permits

upward departure in offense level for extreme conduct. Ankerpont also appeals

the imposition of an $8,000 fine. We exercise jurisdiction pursuant to 18 U.S.C.

§ 3742(a) and 28 U.S.C. § 1291, and affirm.


                                 BACKGROUND

      On the night of the murder, Ankerpont, Headdress, Thomas James

Sowsonicut (a juvenile), and the victim were drinking beer and driving around in

a car owned by Ankerpont’s mother. After 3:30 a.m., a disagreement arose

between Sowsonicut and the victim. Sowsonicut attempted to strangle the victim

while both were seated in the car. Ankerpont then stopped the car on a dirt road.

The victim was dragged out of the car and knocked to the ground, where he was

kicked, beaten, stabbed with a screwdriver, and choked with jumper cables.

                                         -2-
Ankerpont then used the cables to drag the victim behind the moving car for

approximately 744 yards. When these actions did not result in the death of the

victim, he was placed in the trunk of the car and driven to another location.

Throughout these events, the victim was screaming, moaning, and asking for help.

Ankerpont, Headdress, and Sowsonicut took the victim out of the trunk, pushed or

kicked him into a creek bed, and then threw rocks at him until he died. They

moved the body into a culvert and left it lying face down in the water.

      The next day, Ankerpont led authorities to the body. An autopsy showed

that the immediate cause of the victim’s death was blunt-force injury to the head

and that strangulation was a significant factor in the death. The victim, who was

intoxicated when he died, also had multiple abrasions, lacerations, and puncture

wounds.

      Ankerpont, Headdress, and Sowsonicut were arrested and questioned. All

made statements giving the same general account of the murder, but furnishing

different versions of their own participation in it. Ankerpont and Headdress

entered guilty pleas to second-degree murder. Prior to sentencing, the district

court held an evidentiary hearing, at which Headdress, Sowsonicut, law

enforcement officials, and the deputy medical examiner testified about the crime,

and autopsy photographs were entered into evidence.




                                         -3-
      The calculation under the United States Sentencing Guidelines was the

same for both defendants. The base offense level was 33, see U.S.S.G. § 2Al.2,

with a three-level downward adjustment for acceptance of responsibility, pursuant

to U.S.S.G. § 3E1.1, and a two-level upward adjustment for restraint of the

victim, pursuant to U.S.S.G. § 3A1.3. The result was an offense level of 32 and,

for their criminal history category, a sentencing range of 121 to 151 months.

      Based on the nature of the offense, however, the court determined that an

upward departure for extreme conduct, under U.S.S.G. § 5K2.8, was warranted. 1

It made express findings that the conduct of both Ankerpont and Headdress “was

unusually heinous, cruel, brutal and degrading,” in that they each engaged in

torturing the victim and prolonging his pain. Ankerpont R., Vol. IV. at 23-24;

Headdress R., Vol. V. at 49. In deciding the extent of the departure, the court

used by analogy the guideline for aggravated assault, U.S.S.G. § 2A2.2, which

provides for a six-level increase in cases of permanent or life-threatening bodily

injury. With the upward departure, the total offense level was 38, with a




1
      U.S.S.G. § 5K2.8 provides:

      If the defendant’s conduct was unusually heinous, cruel, brutal, or
      degrading to the victim, the court may increase the sentence above
      the guideline range to reflect the nature of the conduct. Examples of
      extreme conduct include torture of a victim, gratuitous infliction of
      injury, or prolonging of pain or humiliation.

                                        -4-
sentencing range of 235 to 293 months. The district court sentenced Ankerpont

and Headdress to 240 months’ imprisonment.


                                  DISCUSSION

                    United States v. Ankerpont, No. 97-4033

      On appeal, Ankerpont argues that his crime was within the guideline

heartland for second-degree murder and that the departure was unreasonable in

degree. He also appeals the imposition of the fine.

      A district court’s decision to depart from the sentencing guidelines is

reviewed for abuse of discretion. See Koon v. United States, 518 U.S. 81, 116

S. Ct. 2035, 2043 (1996). On appeal, we consider the following issues:

      (1) whether the factual circumstances supporting a departure are
      permissible departure factors[,] (2) whether the departure factors
      relied upon by the district court remove the defendant from the
      applicable Guideline heartland thus warranting a departure, (3)
      whether the record sufficiently supports the factual basis underlying
      the departure, and (4) whether the degree of departure is reasonable.

United States v. Collins, 122 F.3d 1297, 1303 (10th Cir. 1997). Departure under

U.S.S.G. § 5K2.8 is appropriate “when the defendant’s actions are heinous, cruel,

or brutal beyond the characteristics inherently associated with the crime being

sentenced.” United States v. Kelly, 1 F.3d 1137, 1143 (10th Cir. 1993).

      We have reviewed the entire record and agree with the district court that

Ankerpont’s crime was unusually brutal within the universe of second degree


                                        -5-
murders. The district court did not abuse its discretion in determining that an

upward departure was warranted.

      Next we evaluate the reasonableness of the court’s departure. “When

departing from the Guidelines, the court should look to the Guidelines for

guidance in characterizing the seriousness of the aggravating circumstances to

determine the proper degree of departure.” United States v. Jackson, 921 F.2d

985, 990 (10th Cir. 1990). The court may use “an analogy to other closely related

conduct or circumstances that are addressed by the guidelines.” Id. at 990-91

(quotation omitted). That is precisely what the district court did in this case. It

was entirely reasonable to determine the proper degree of departure by

analogizing the conduct at issue to aggravated assault.

      The last issue we must address concerns the court’s imposition of an $8,000

fine, based on the determination that Ankerpont could pay a fine through the

Bureau of Prison’s Inmate Financial Responsibility Program, during his lengthy

term in custody. See Ankerpont R., Vol. IV at 26. We review this decision for

plain error because Ankerpont failed to object to the fine during the district court

proceedings. See United States v. Ballard, 16 F.3d 1110, 1114 (10th Cir.1994).

      Under the sentencing guidelines, a fine is to be imposed in all cases unless

the defendant establishes that he is unable to pay or is not likely to ever become

able to pay a fine. See U.S.S.G. § 5E1.2(a). In United States v. Williams, 996


                                          -6-
F.2d 231, 231-32 (10th Cir. 1993), we upheld a $13,000 restitution order where

the defendant had no current financial resources, but had been sentenced to

twenty years in prison. The district court reasoned that the defendant would be

able to use money earned in prison to pay the restitution. Id. at 232. We held that

the district court did not abuse its discretion. Id. at 235. The facts of this case

fall within the Williams holding. Therefore, we cannot say the district court

committed plain error in assessing the $8,000 fine. 2

                     United States v. Headdress, No. 97-4035

      Headdress appeals his sentence, asserting that the district court abused its

discretion in applying the six-level upward adjustment for extreme conduct. He

claims that (1) the crime was not unusually heinous; (2) he was too intoxicated to

intend the crime to be unusually heinous; (3) he cannot be held responsible for

acts of codefendants; and (4) the upward departure, coupled with the enhancement

for restraint of the victim, constituted impermissible double counting. None of

these contentions has merit.

      As we have stated above, the facts of this case warrant upward departure, in

that the treatment of the victim was “unusually heinous, cruel, [and] brutal,”

U.S.S.G. § 5K2.8, even when compared with other second-degree murders. There



2
      The normal range for a fine under offense level 38 is $25,000 to $250,000.
See U.S.S.G. § 5E1.2(c)(3).

                                          -7-
is no requirement of specific intent in the plain language of section 5K2.8 and

Headdress provides us with no reason to superimpose one. In any event, we note

the district court’s finding that, although Headdress was intoxicated, he “certainly

knew what he was doing.” Headdress R., Vol. V. at 48.

      Similarly, there is no support in the record for the contention that the

district court based the upward departure on the conduct of codefendants, rather

than Headdress himself. At the sentencing hearing, the district court made it clear

that it was considering Headdress’s own conduct. The court found that Headdress

was involved in the attempted strangling, id. at 47; the kicking of the victim while

he was lying down, id. at 48; “the prolonging of the pain and humiliation that was

suffered” by the victim, id. at 49, and the final events at the creek bed, id. at 47.

      Finally, Headdress argues that since he received a two-level enhancement

for restraint of the victim under U.S.S.G. § 3A1.3, he may not receive a six-level

upward departure for extreme conduct under U.S.S.G. § 5K2.8. This argument is

misplaced. “Impermissible double counting or cumulative sentencing ‘occurs

when the same conduct on the part of the defendant is used to support separate

increases under separate enhancement provisions which necessarily overlap, are

indistinct, and serve identical purposes.’” United States v. Fisher, 132 F.3d 1327,

1329 (10th Cir. 1997) (quoting United States v. Blake, 59 F.3d 138, 140 (10th

Cir. 1995)).


                                           -8-
      Here, the sentence was increased under U.S.S.G. § 3A1.3 because the

victim was physically restrained in the trunk of a car while being taken from the

roadside, where he was kicked and tortured, to the creek bed, where he was

stoned. See Headdress R., Vol. V at 48. The events at the two separate crime

scenes are more than sufficient to justify the upward departure for extreme

conduct, without consideration of restraint during transportation. The district

court properly applied both increases.


                                 CONCLUSION

      The judgments of the United States District Court for the District of Utah

are AFFIRMED.



                                                    Entered for the Court



                                                    James E. Barrett
                                                    Senior Circuit Judge




                                         -9-
