           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                     2    United States v. Koch                      No. 02-6278
        ELECTRONIC CITATION: 2004 FED App. 0201P (6th Cir.)
                    File Name: 04a0201p.06                             Voorhees, ASSISTANT UNITED STATES ATTORNEY,
                                                                       Covington, Kentucky, for Appellee. ON BRIEF: H. Louis
                                                                       Sirkin, Jennifer M. Kinsley, Jarrod M. Mohler, SIRKIN,
UNITED STATES COURT OF APPEALS                                         PINALES & SCHWARTZ, Cincinnati, Ohio, for Appellant.
                                                                       Laura K. Voorhees, ASSISTANT UNITED STATES
                  FOR THE SIXTH CIRCUIT                                ATTORNEY, Covington, Kentucky, Charles P. Wisdom, Jr.,
                    _________________                                  ASSISTANT UNITED STATES ATTORNEY, Lexington,
                                                                       Kentucky, for Appellee.
 UNITED STATES OF AMERICA , X
             Plaintiff-Appellee, -                                                        _________________
                                   -
                                   -   No. 02-6278                                            OPINION
            v.                     -                                                      _________________
                                    >
                                   ,                                      JUDITH M. BARZILAY, Judge. Defendant-Appellant
 ROBERT KOCH ,                     -
          Defendant-Appellant. -                                       Robert Koch appeals from his sentence entered on October 3,
                                                                       2002 in the Eastern District of Kentucky after his conviction
                                  N                                    by a jury on drug and firearm offenses. He argues that the
       Appeal from the United States District Court                    district court: (1) erred in calculating the amount of drugs
    for the Eastern District of Kentucky at Covington.                 involved in the conspiracy; (2) misapplied the sentencing
     No. 01-00083—Joseph M. Hood, District Judge.                      guidelines to make a two-level adjustment for possessing a
                                                                       firearm; and (3) improperly granted an upward departure on
                     Argued: April 28, 2004                            the minimum 10-year sentence under 18 U.S.C.
                                                                       § 924(c)(1)(A)(iii). Because the district court did not abuse
               Decided and Filed: June 29, 2004                        its discretion in sentencing Koch, we AFFIRM the district
                                                                       court’s decision on all three points.
Before: GUY and GILMAN, Circuit Judges; BARZILAY,
                    Judge.*                                                                   BACKGROUND

                      _________________                                   Koch, now twenty-six years old, made his living by buying
                                                                       illegal narcotics from Arizona and selling them in his home
                           COUNSEL                                     state of Kentucky. This case revolves around incidents that
                                                                       took place on two separate dates in 2001: April 27 and
ARGUED: H. Louis Sirkin, SIRKIN, PINALES &                             October 12.
SCHWARTZ, Cincinnati, Ohio, for Appellant. Laura K.
                                                                         Early on the morning of April 27, Koch went to Justin
                                                                       Davis’ trailer home to collect a $5,000 drug debt owed on five
                                                                       pounds of marijuana. Davis was Koch’s “frontman” selling
    *
     The Honorable Judith M. Barzilay, Judge, United States Court of   drugs. “Fronting” denotes supplying narcotics on credit.
International Trade, sitting by designation.

                                 1
No. 02-6278                       United States v. Koch      3    4    United States v. Koch                      No. 02-6278

Koch had been upset about the $5,000 and did not believe          and “his boys” had “loaded up for bear,” meaning they had
Davis’ claim that the five pounds of marijuana he gave to         loaded guns, and went to Davis’ residence. Koch told Ballard
Davis had actually been stolen.                                   that in addition to the Colt .45 found at the scene, he was
                                                                  carrying a 9 mm gun which he later stashed in the woods as
  Koch persuaded three other men, Patrick O’Brien, Robert         he was fleeing.
Gibson, and Joe Shukler, to accompany him to Davis’
residence. Because Koch was too intoxicated to drive,               Approximately six months after the shootout, on
Shukler drove Koch’s truck. When the men arrived at Davis’        October 12, 2001, the police searched Koch’s house pursuant
home, the truck engine noise and barking dogs woke Davis          to a warrant. During the October 12 search, officers
and his roommate Luke Hitchner. Koch walked up to the             discovered in Koch’s bedroom a loaded 9 mm Beretta
house with Gibson while O’Brien and Shukler remained in           handgun, night vision goggles, thirty-one rounds of 9 mm
the truck. Both Koch and Gibson were carrying firearms.           ammunition, over one thousand dollars in cash, and some
Koch banged on the door and demanded that Davis and               marijuana. Elsewhere in the house officers found marijuana
Hitchner come outside. Hitchner opened the door and,              drying in a closet, marijuana growing equipment, marijuana
suspicious of Koch’s intentions, reached for his handgun.         seeds, and marijuana roaches.
Hearing Hitchner and Koch argue at the door, Davis also
grabbed a gun.                                                      According to his girlfriend Courtney Byrnes, after the
                                                                  shootout Koch toned down his drug activities considerably.
  Moments later, mayhem ensued with guns blazing. It is           He was afraid of retaliation by Davis or an investigation by
unclear who fired the first shot; it is, however, clear that      the police. He stopped large scale dealing and stopped
Davis, Gibson, and Koch each fired multiple times. Koch’s         hanging out with the “old crowd.” He sold some of his assets
Colt .45 handgun and .45 shell casings were found near the        and was being partially supported by his parents and Byrnes.
scene. Koch himself apparently fled the scene on foot             He continued, however, growing marijuana for personal use
without being hit.                                                and for occasional sale to friends.
  Koch maintains that he went to see Davis that day merely          For the events occurring on April 27 and October 12, 2001,
to scare him and that he did not intend to harm anyone.           Koch was indicted on six counts relating to drug possession,
Regardless of Koch’s intentions, however, a serious injury        conspiracy, and firearm offenses. At trial, the jury found him
and a death resulted from the shootout. As O’Brien and            guilty on counts 1, 2, 3, 4, and 6 of the indictment, and
Shukler were fleeing the scene, speeding off in the truck,        acquitted him on count 5. At sentencing, the trial court
O’Brien was shot in the back of his head by Davis.                departed from the probation officer’s recommendation and the
Consequently, O’Brien has lost the use of his left eye and also   applicable sentencing guidelines, sentencing Koch to 248
suffers from a balance disorder and short-term memory loss.       months in prison.
Gibson, who was with Koch at the house, died from a bullet
also fired by Davis.                                                In particular, on counts 1, 3, 4, and 6, the district court
                                                                  enhanced the recommended sentence by increasing the base
   A few weeks after the shootout, Koch went to visit his         offense level to 30 (from the recommended 18) because it
friend Gary Ballard in prison. According to Ballard, a dealer     determined that 2,000 pounds (907 kilograms) of marijuana
serving time for drug-related crimes, Koch admitted that he       were involved in the conspiracy. Two additional levels were
No. 02-6278                       United States v. Koch      5    6    United States v. Koch                        No. 02-6278

added for the “specific offense characteristic” of possession     that the district court should have disregarded their testimony
of a dangerous weapon (not recommended), and 2 levels for         entirely instead of arriving at a compromise figure. See id. at
obstruction of justice (recommended). The district court thus     24. The government responds that when “no drugs are seized,
sentenced Koch to 60 months in prison on counts 1, 3, 4, and      the sentencing court must approximate the quantity,” and
6 to run concurrently.                                            such determination is reviewed for clear error. Pl.’s Br. at 23
                                                                  (citations omitted). The government argues that the district
   The district court also granted the government’s motion for    court’s determination does not constitute clear error.
a six-level upward departure on count 2. Pursuant to
18 U.S.C. § 924(c)(1)(A)(iii) (2000), count 2 already carried       In this circuit, “a district court's decision on the amount of
a ten-year mandatory minimum for using or carrying a              [drugs] a defendant is to be held accountable for is a finding
firearm (and discharging the firearm) during and in relation to   of fact which must be accepted by a court of appeals unless
a drug trafficking crime, to run consecutively to any other       clearly erroneous.” United States v. Walton, 908 F.2d 1289,
sentence. To effectuate the upward departure, the district        1300-1301 (6th Cir.), cert. denied, 498 U.S. 990 (1990).
court used U.S.S.G. §§ 5K2.1 and 5K2.2 (2001) because the         “[W]here a fact is crucial to the determination of a defendant's
death of one person and a permanent injury to another person      guidelines base offense level or criminal history score then it
had resulted during the incident in question. The district        must be proven” by a preponderance of evidence. Id. at 1302.
court’s decision increased Koch’s sentence on count 2 to 188      That is, “the guidelines do not permit the District Court to
months (from the statutory minimum of 120).                       hold a defendant responsible for a specific quantity of drugs
                                                                  unless the court can conclude the defendant is more likely
                         ANALYSIS                                 than not actually responsible for a quantity greater than or
                                                                  equal to the quantity for which the defendant is being held
  The district court had jurisdiction pursuant to 18 U.S.C.       responsible.” Id. “If the exact amount cannot be determined,
§ 3231. This court has jurisdiction pursuant to 18 U.S.C.         an estimate will suffice, but here also a preponderance of the
§ 3742 and 28 U.S.C. § 1291.                                      evidence must support the estimate.” Id.
(1) The base offense level increase.                                The district court did not err in finding that approximately
                                                                  2,000 pounds of marijuana was involved in the conspiracy.
  The base offense level for drug trafficking crimes is           Because the jury never determined the amount of drugs
determined pursuant to U.S.S.G. § 2D1.1(a) (2001). Koch’s         involved, the district court needed to make that factual
case falls under subsection (a)(3) and, therefore, his base       determination during sentencing. See U.S.S.G. § 2D1.1 cmt.
offense level is determined by consulting the provision’s         12. Relying mainly on new testimony given at sentencing,
Drug Quantity Table found in subsection (c).                      the district court arrived at a 2,000 pounds estimate. The
                                                                  2,000 pounds estimate is supported by a preponderance of
  Koch argues that the district court erred in finding that       evidence. A drug dealer who worked for Koch (Bybbe)
2,000 pounds of marijuana was involved in the conspiracy.         testified that he made over eight trips and delivered two to
See Def.’s Br. at 23. Koch contends that the witnesses who        three hundred pounds at a time for Koch. He also testified
testified at sentencing had an incentive to lie in order to       that he once saw a “ton” of marijuana in Koch’s house in the
minimize their role in the conspiracy and receive a reduced       upstairs bedroom. The district court discounted the latter
sentence from the prosecution. See id. Koch further argues        testimony and interpreted the “ton” figure to mean 1,000
No. 02-6278                       United States v. Koch      7    8     United States v. Koch                        No. 02-6278

pounds. The court multiplied three hundred by eight, and             The Sixth Circuit reviews “a district court’s factual findings
then added 1,000. The court then reduced the estimate to          under U.S.S.G. § 2D1.1(b)(1) for clear error.” United States
2,000. The drug quantity estimate was thus conservatively         v. Miggins, 302 F.3d 384, 390 (6th Cir. 2002).
made. Cf. Walton, 908 F.2d at 1302 (warning that the
sentencing court should “err on the side of caution”); United       Koch argues that the district court erred in enhancing his
States v. Meacham, 27 F.3d 214, 216 (6th Cir. 1994).              sentence on the possession of the Beretta on the basis that
                                                                  such increase is unwarranted when a defendant is convicted
   Moreover, testimony and other evidence revealed that Koch      for violation of 18 U.S.C. § 924(c), as he was on Count 2.
made his living primarily from drug dealing and supported         See Def.’s Br. at 24 (citation omitted). It is clear that the
two dependents (although he was not generating large              sentencing judge cannot apply a section 2D1.1(b)(1)
amounts of money before February 2001, according to               enhancement when a defendant is also convicted and
Byrnes). He was a central figure in the conspiracy. At least      sentenced for a 18 U.S.C. § 924(c) violation on the same
two people (Bybbe and Davis) sold drugs he provided. His          charge “because to do so would constitute impermissible
friend Ballard testified that the drug dealing went as far back   double-counting.” United States v. Saikaly, 207 F.3d 363,
as 1998. Multiple witnesses mentioned a large shipment from       367 (6th Cir. 2000) (citation omitted). Here, Koch was
Arizona. While he may not have had a “lavish” lifestyle as        convicted and sentenced for a section 924(c) violation in
characterized by the government, Pl.’s Br. at 10, Koch            Count 2 with respect to his possession of the Colt .45 during
nevertheless lived in a comfortable house and owned two           the April 27 shooting incident. The two-level enhancement,
vehicles and other assets. He often had large quantities of       on the other hand, was imposed for his possession of the
cash. That is, it is more likely than not that the amount of      Beretta found during the October 12 search, for which he was
drugs he was involved with was fairly large (and certainly        convicted on Count 6. If the drug offenses on the two dates
more than recommended by the probation officer, who by his        are the same, under Saikaly, the district court cannot order the
own admission was not able to review all the evidence             enhancement. However, if they are distinct and separate, no
implicated and did not have the advantage of testimony given      case cited prohibits the enhancement.
at sentencing).
                                                                    Koch contends that when the Beretta was found on
(2) The specific offense characteristic increase.                 October 12, 2001, the drug conspiracy was still ongoing. See
                                                                  Def.’s Br. at 25. In fact, Koch states, while the conspiracy
   The sentencing guidelines allow a two-level increase “[i]f     may have been “taper[ing] off, . . . [l]aw enforcement
a dangerous weapon (including a firearm) was possessed” in        [nevertheless] found the remnants of the conspiracy when
a drug related crime. U.S.S.G. § 2D1.1(b)(1). “The                they raided Mr.Koch’s home on October 12, 2001.” Def.’s
enhancement for weapon possession reflects the increased          Reply Br. at 8. Accordingly, the first question is whether the
danger of violence when drug traffickers possess weapons.”        drug conspiracy ended on April 27 such that drugs found on
U.S.S.G. § 2D1.1 cmt. 3. “The adjustment should be applied        October 12 gave rise to a separate drug offense.
if the weapon was present, unless it is clearly improbable that
the weapon was connected with the offense.” Id. The                 First, the jury found that the drug conspiracy ended on
comments give the example of an unloaded hunting rifle            April 27, 2001 after the shooting after Davis and Koch had a
found in a home, also containing drugs, as falling outside of     falling out and all individuals involved went their separate
the provision. See id.                                            ways. Further, the jury’s finding is supported by sufficient
No. 02-6278                               United States v. Koch             9    10    United States v. Koch                        No. 02-6278

evidence in the record. Koch’s lifestyle changed considerably                    Cir. 2001) (citation and quotation omitted). At that point,
after the April 27 shooting. He stopped associating with the                     “the burden shifts to the defendant to show that it was clearly
others in the conspiracy (except the prison visit to Ballard)                    improbable that the [firearm] was connected to the offense.”
and ceased dealing (except occasional small sales to friends                     Saikaly, 207 F.3d at 368.
for personal use). The others in the conspiracy were either
dead, injured, in prison, under investigation, or simply not                       Here, the Beretta was found in the same room (Koch’s
around. Even though the October 12 search recovered some                         bedroom) as some marijuana. In other parts of the house,
“remnants” of the conspiracy (possibly including the Beretta                     more marijuana and various indicia of a marijuana growing
9 mm), the district judge did not commit a clear judgment of                     operation were found. Thus, it is more likely than not that the
error in determining the end of the conspiracy as April 27.1                     Beretta was possessed in connection with drug activity.
                                                                                 Furthermore, as the government points out, Koch did not
  After determining that the conspiracy ended on April 27,                       present any evidence that the Beretta was not connected to
the question then becomes whether the parties met their                          drug activity. “In fact, he presented no evidence to the district
respective burdens of proof under U.S.S.G. § 2D1.1(b)(1). In                     court to show that it was clearly improbable that the firearm
order to “obtain an enhancement pursuant to § 2D1.1(b)(1),                       was associated with the drug crime.” Pl.’s Br. at 27.
the government must show by a preponderance of the                               Therefore, the sentencing judge did not err in enhancing the
evidence that the defendant possessed the firearm during the                     sentence because of the Beretta.
drug-trafficking offense.” Saikaly, 207 F.3d at 368 (citation
omitted). Once the government establishes that a firearm was                     (3) The six-level upward departure.
“possessed” and that the firearm was “present,” “a
presumption arises that such possession was connected to the                        With respect to count 2, the sentencing guidelines provide
offense.” United States v. Hardin, 248 F.3d 489, 497 (6th                        that “[i]f the defendant . . . was convicted of violating
                                                                                 [18 U.S.C. § 924(c),] the guideline sentence is the minimum
                                                                                 term of imprisonment required by statute.” U.S.S.G.
    1
       T he issue here is not whether the offenses occurred on the same          § 2K2.4(a)(2) (2001). This section contains no explicit
dates, but whether the two offenses are relevant conduc t. See United            authorization for an upward departure. Elsewhere, however,
States v. Peveler, 359 F.3d 369 , 378 n.3 (6th Cir. 2004). Here, the district    the sentencing guidelines authorize upward departures when
court mad e no explicit relevant conduct determination, and no ne is             death and “significant” physical injury are present, while not
challenged. The two-level enhancement for the Beretta when another               conditioning the authorization on the type of underlying
count of the conviction involved section 924(c) rests on the district co urt’s
finding that the conspiracy ended on the date of the shootout. In any            crime. See U.S.S.G. §§ 5K2.1 & 5K2.2.
event, the weapo n enhance ment did no t increase Ko ch’s sentence be cause
Koch was given a sixty-month mandatory ma ximum sentenc e on counts                If a death results, before enhancing the sentence, the
1, 3, 4, and 6. See 21 U.S.C. § 841(b)(1)(D). Regardless of whether or           sentencing court must examine accompanying factors, such
not the weapon enhancement was applied, the mandatory maximum was                as “the defendant’s state of mind, . . . the degree of planning
far less than the sentencing range of Koch’s base offense level of 30 plus       or preparation, . . . whether multiple deaths resulted, and the
the obstruction of justice enhancement. We observe that even if the
district court’s grouping of count 1 (which had the related 924(c)               means by which life was taken.” U.S.S.G. § 5K2.1.
conviction in count 2) and count 4 for the p urpose o f determining the base     Furthermore, the increase should be in proportion to “the
offense level was error, such error was harmless because it had no impact        dangerousness of the defendant’s conduct, the extent to which
on the actual sentence he received. Accordingly, no remand is necessary.         death or serious injury was intended or knowingly risked, and
See Williams v. United States, 503 U.S. 193 , 194 (1992).
No. 02-6278                              United States v. Koch           11     12   United States v. Koch                        No. 02-6278

the extent to which the offense level for the offense of                        heartland of cases in the Guideline.” Koon, 518 U.S. at 98.
conviction . . . already reflects the risk of personal injury.” Id.             “To resolve this question, the district court must make a
                                                                                refined assessment of the many facts bearing on the outcome,
   If a physical injury results, the court must examine similar                 informed by its vantage point and day-to-day experience in
factors as in U.S.S.G. § 5K2.1, such as the defendant’s state                   criminal sentencing.” Id. On the other hand, a case outside
of mind or the manner in which the injury was caused, before                    the “heartland” of cases “will be extremely rare.” U.S.S.G.
enhancing the sentence. See U.S.S.G. § 5K2.2. In addition,                      § 5K2.0 cmt.
the increase should be in proportion to “the extent of the
injury, the degree to which it may prove permanent, and the                       In challenging the six-level upward departure from the
extent to which the injury was intended or knowingly                            guidelines, Koch first underlines the sentencing judge’s
risked.”2 Id.                                                                   statement, “I think the jury . . . cut Mr. Koch a break” on
                                                                                count 5 where the jury acquitted him. See Def.’s Br. at 9.
  We employ a de novo standard for reviewing a “district                        Koch contends that by increasing the sentence, the judge
court’s legal conclusions regarding the application of the                      “effectively charged, convicted, and sentenced Mr. Koch for
sentencing guidelines.”       Miggins, 302 F.3d at 390.                         Mr. Gibson’s death and Mr. O’Brien’s injuries without a
Furthermore, the appellate court “review[s] a district court’s                  grand jury indictment or a trial.” Id. Koch further argues that
decision to depart from the Guidelines sentencing range for                     the ten-year mandatory minimum sentence under section
abuse of discretion.” United States v. Chance, 306 F.3d 356,                    924(c) adequately takes into account the risk of “violence that
393 (6th Cir. 2002) (citation omitted).3                                        could result from the commission of the underlying offense.”
                                                                                Id. at 13. Koch thus challenges the district court’s decision
 “Before a departure is permitted, certain aspects of the case                  that his case fell outside the heartland of cases covered by the
must be found unusual enough for it to fall outside the                         applicable guideline under Koon. See id. at 14.

    2
                                                                                   Koch references cases that explain the reason for the
      Koch argues that the district court did not take these factors            mandatory sentence under section 924(c) being the resultant
sufficiently into acco unt and erred beca use the d eath and the injury were    risk of violence when drugs and guns come together. For
neither intentional nor knowing. See Def.’s Br. at 19-21. The district
court, however, found that Koch “intended to create the dangerous,
                                                                                example, in United States v. Zamora, the Ninth Circuit
emo tionally charged standoff that ensued following his premeditated,           explained that “the mandatory sentencing provisions of
boisterous, armed incursion to the very threshold of Justin D avis’ home.”      section 924 exist because the possession of a gun during a
(App. 33) This indicates that the district court considered the factors         drug trafficking offense increases the risk of violence.” 37
outlined in section s 5K 2.1 and 5K2 .2, such as Koch’s state of mind, in       F.3d 531, 533 (9th Cir. 1994) (citation omitted). Another
making its finding. T his issue is also tied to the causation issue discussed
below.
                                                                                example is an armed robbery case where the Sixth Circuit
                                                                                found that the applicable sentencing guideline adequately
    3
       Here, Koch argues for a de novo review, while the government
                                                                                took into consideration that bank robbers frequently discharge
insists on the abuse of discretion standard. The federal courts, including      firearms, and thereby struck down the enhancement. See
the Sixth Circuit, employ both standards in departures from guidelines          Def.’s Br. at 17 (discussing United States v. Bond, 22 F.3d
depending on whether and to what extent the question is legal or factual.       662 (6th Cir. 1994)).
As the Supreme Court stated in Koon, not much turns on the label chosen
because a district court that made a mistake of law would have by
definition abused its discretion. See 518 U.S. at 100 .
No. 02-6278                        United States v. Koch      13    14       United States v. Koch                              No. 02-6278

  The government counters with three opinions where the             present to a degree that makes the case different from the
courts found that death or serious injury takes the offense         ordinary case where the factor is present.” Id.4
outside the heartland of cases covered by section 924(c) and
the applicable guideline. See Pl.’s Br. at 18-19. In United           Death and serious physical injury are “encouraged factors”
States v. Scheetz, the sentencing court authorized a departure      for enhancement under U.S.S.G. §§ 5K2.1 and 5K2.2. The
for the discharge of a firearm during a conspiracy to distribute    applicable sentencing guideline 2K2.4(a)(2) (2001), however,
marijuana (less than 50 kilograms) when a death and physical        points to section 924(c) without mentioning death or physical
injury resulted, even though the defendant’s culpability was        injury. Section 924(c) in turn provides a mandatory minimum
found to be “at the low end of the spectrum.” 293 F.3d 175,         for using, carrying, and discharging a firearm during a drug
191 (4th Cir. 2002). In United States v. Philiposian, 267 F.3d      offense, but does not indicate what the sentence should be if
214 (3d Cir. 2001), the court found that a two-level upward         a death or physical injury occurred.
departure for permanent injury was warranted when the nature
and extent of injuries (including psychological injuries) took         Here, the district court stated that “[s]ince Section 2K2.4
the case “outside the heartland” of “permanent or life              provides no sort of enhancement for the physical injuries and
threatening injuries” in an aggravated assault charge for           death that resulted from the defendant’s actions, the court
causing permanent injury. Additionally, in Philiposian, the         finds that this case is outside . . . the heartland of cases
defendant randomly picked a mail carrier as his victim in a         covered by this guideline.” (App. 258A.) In arguing that this
sniper attack with an AK-47, a high-capacity, semiautomatic         case is within the heartland, Koch indicates that Zamora (and
weapon. See 267 F.3d at 215. In United States v. Bazile, 30         other cases) explained that “the mandatory sentencing
Fed. Appx. 830, 2002 WL 203342 (10th Cir., Feb. 11, 2002),          provisions of section 924 exist because the possession of a
the court upheld an upward departure in a section 924(c)            gun during a drug offense increases the risk of violence.”
sentence when the defendant shot and physically injured two         37 F.3d at 533. The issue therefore is whether the section 924
victims.                                                            mandatory minimum adequately takes into account the
                                                                    possibility of violence.
   To allow a departure from the guidelines, the first question
is whether a particular case falls outside the heartland of cases      There is no case cited by either party directly on point. In
(brought under and implicating 18 U.S.C. § 924(c) and               the cases cited by Koch (Zamora and Bond) no death or
U.S.S.G. § 2K2.4(a)(2) (2001)), making it an “unusual” case.        physical injury resulted. Here, the violence was not merely
Chance, 306 F.3d at 393 (citing Koon). The district court           risked, but it actually occurred, causing a death and a serious
may not depart from the guidelines if the case is a “heartland”     injury. In the cases cited by the government (Scheetz,
case. The second question is whether the special factor (such       Philiposian, and Bazile) on the other hand, the defendant was
as the existence of death or physical injury) is an                 the person who fired the shots that caused a death or physical
“encouraged” factor to warrant an enhancement under the
guidelines. “If the special factor is an encouraged factor, the
sentencing court may depart if the applicable Guideline does
not already take the factor into consideration.” Id. If the
guideline already takes the special factor into consideration,
“the sentencing court should depart only if the factor is                4
                                                                          In this opinion, only those parts of the Chance test that are pertinent
                                                                    to this case are discussed.
No. 02-6278                             United States v. Koch          15     16   United States v. Koch                        No. 02-6278

injury.5 Koch, however, did not directly cause the death or                   them. They arrived at Davis’ residence at dawn, startling the
the injury here. Koch urges that there must be a “stronger                    inhabitants. Koch banged on the door, and demanded that
link [than found by the district court] between Koch’s conduct                Davis and his roommate come out. As a result of Koch’s
and the death and physical injuries.” Def.’s Br. at 19 (citation              actions, the inhabitants reached for their guns and armed
omitted). The district court explained its decision as follows:               themselves. Even though Koch did not kill or injure anybody
                                                                              directly, he is nevertheless responsible for the death and the
  Koch’s actions were the catalysts that set off the gun                      injury as the primary instigator of the violence that inevitably
  battle that resulted in Bob Gibson’s death and Pat                          ensued. The district court was correct that it should have
  O’Brien’s serious physical injuries. Although he may                        been reasonably foreseeable to him that his actions could lead
  not have fired the fatal shot, Robbie Koch no doubt                         to an injury or even death.
  intended to create the dangerous, emotionally charged
  standoff that ensued following his premeditated,                              Neither the applicable sentencing guideline nor section
  boisterous, armed incursion to the very threshold of                        924(c) adequately contemplates the events that took place at
  Justin Davis’ home. But for Mr. Koch’s aggressions, the                     Davis’ residence on April 27, 2001. Section 924(c) merely
  shootout would never have taken place.                                      prescribes a mandatory minimum for the risk of violence that
                                                                              may result from carrying a firearm during a drug offense. Cf.
(App. 33.)                                                                    Zamora, 37 F.3d at 533. The mandatory minimum does not
                                                                              preclude the imposition of a higher sentence when actual
  In other words, the district court authorized the upward                    violence occurs and individuals are killed or seriously hurt.
departure because it found that Koch’s actions were the
“catalysts” that led to the death and the injury.                               Because this case is outside the heartland of the cases
                                                                              envisioned by section 924(c) and because Koch’s conduct led
   We agree. The district court’s enhancement was justified                   to the death and physical injury, we sustain the upward
by the facts of this case. But for Koch’s actions, the tragedy                departure on Koch’s sentence. As in Scheetz, there is “no
at Davis’ house would never have taken place. Koch, who                       basis for foreclosing a departure under U.S.S.G. § 5K2.1 or
was at the center of the drug conspiracy, was upset about the                 U.S.S.G. § 5K2.2 when a defendant helps put into motion a
prospect that his frontman Davis was cheating him. To                         chain of events that risks serious injury or death, even when
collect the money or to intimidate Davis or both Koch                         an intent to harm is entirely absent and the defendant was not
apparently thought a show of force was necessary. To that                     directly responsible for the death.” 293 F.3d at 191.
end, Koch recruited three other men to come with him to
Davis’ residence. Koch and the men took weapons with                            With respect to the magnitude of the increase, the district
                                                                              court “elect[ed] to employ a six-level increase similar to the
                                                                              increases for permanent or life threatening bodily injury
    5                                                                         found at sentencing guideline Section 2A2.2, aggravated
      The government argues that Scheetz controls this case because the
defendant there did not fire the shot that led to the death of one victim.
                                                                              assault; Section 2B3.1, robbery; and Section 2B3.2, extortion
However, the defendant in Sch eetz admitted that he fired shots at another    by force.” (App. 259.) In U.S.S.G. § 2A2.2 (b)(3)(C), a six-
victim who w as injure d. Even though we find the Scheetz court’s             level increase is provided for a “permanent or life-threatening
pronouncement on causation helpful in o ur ultimate dec ision to uphold       bodily injury.” This is two levels higher than the increase
the departure, Scheetz cannot control this ca se because Ko ch did not fire   level provided for “serious bodily injury.” In sections
any of the shots that caused either the injury or the death.
No. 02-6278                       United States v. Koch     17

2B3.1(b)(3)(C) and 2B3.2(b)(4)(C), the same increase is
provided for the same injury. Here, the district court counted
only O’Brien’s injuries and not Gibson’s death in the six-
level departure by not increasing the level above six. Thus,
the magnitude of the increase for both the death and the injury
is reasonable.
                        CONCLUSION
  For all the foregoing reasons, we AFFIRM the judgment
of the district court.
