                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                    PUBLISH
                                                                         DEC 16 1998
                   UNITED STATES COURT OF APPEALS
                                                                      PATRICK FISHER
                                                                             Clerk
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

 v.                                                     No. 97-1407

 WILLETTE WHITESKUNK,

       Defendant-Appellant.


                 Appeal from the United States District Court
                         for the District of Colorado
                           (D.C. No. 97-CR-193-S)


Andrew A. Vogt (Henry L. Solano, United States Attorney, with him on the
brief), Assistant United States Attorney, Denver, Colorado, for Plaintiff-Appellee.

Michael G. Katz, Federal Public Defender, Denver, Colorado, for Defendant-
Appellant.


Before TACHA, BRORBY and KELLY, Circuit Judges.


BRORBY, Circuit Judge.



      Defendant, Ms. Willette T. Whiteskunk, pleaded guilty to one count of

involuntary manslaughter in violation of 18 U.S.C. §§ 1153 and 1112(a) and was
sentenced to twenty-four months imprisonment. The district court departed

upward three levels from the standard Guideline range for involuntary

manslaughter to arrive at the final sentence. Ms. Whiteskunk now appeals the

trial court’s decision for upward departure. We exercise jurisdiction pursuant to

28 U.S.C. § 1291 and 18 U.S.C. § 3742. Finding the district court gave an

insufficient explanation for the degree of departure, we reverse and remand for

resentencing.



BACKGROUND

      Ms. Whiteskunk’s conviction stems from an alcohol-related accident on the

Southern Ute Indian Reservation in which Mrs. Mary V. (“Virginia”) Fleming

lost her life. The Presentence Investigation Report indicates that on April 30,

1997, Ms. Whiteskunk, an enrolled member of the Southern Ute Tribe, was

driving a pickup truck at a rate of seventy-eight miles per hour eastbound on

Highway 172 within the boundaries of the Southern Ute Indian Reservation near

Ignacio, Colorado. At the same time, the decedent, Mrs. Fleming, was riding a

motorcycle westbound on Highway 172 traveling about fifty-five miles per hour.

Ms. Whiteskunk veered across a double yellow line into the westbound lanes of

the highway and struck Mrs. Fleming head-on, killing her instantly. Tests taken

shortly after the accident showed Ms. Whiteskunk had a blood alcohol content of


                                        -2-
.212 percent, more than twice the legal limit. This was not the first time Ms.

Whiteskunk had been driving while intoxicated. She previously had been

arrested and convicted in tribal court of drunk driving, but the offense was not

included in her criminal history because it occurred more than ten years earlier.



      The district court found several other events on the day of the accident

made the case unusual, and indicated Ms. Whiteskunk acted with a higher than

normal degree of recklessness. Just after midnight on the day of the accident, as

Ms. Whiteskunk was sitting in her truck, she was approached by a Southern Ute

police officer who, upon seeing her state of intoxication, took her keys and told

her she was not going to drink and drive. Later that same morning, Ms.

Whiteskunk asked her sister to drive her to the police station to retrieve her keys.

Ms. Whiteskunk’s husband admitted after the accident that he and his wife had

been drinking since around 8:00 a.m. At about 12:00 p.m., only two hours before

the accident, Ms. Whiteskunk reportedly entered a bar, but was refused service

because she looked “like [she] had partied all night” and smelled of alcohol. She

left the bar and drove away, at which time a bar employee called the Colorado

State Patrol to report her license number. At 1:38 p.m., just minutes before the

fatal accident, an unknown caller reported Ms. Whiteskunk driving erratically

and nearly colliding with the caller’s vehicle. Only a few minutes later, the


                                         -3-
emergency dispatcher received a call about the accident in which Mrs. Fleming

was killed.



      In the Presentence Investigation Report, Ms. Whiteskunk’s base offense

level was set at 14, as prescribed for violations of 18 U.S.C. § 1112(a) in the

United States Sentencing Guidelines § 2A1.4(a)(2). A two-level downward

adjustment was made for acceptance of responsibility under U.S.S.G. §3E1.1(a),

to arrive at a total offense level of 12. With a Criminal History Category of I,

Ms. Whiteskunk’s Guideline range for imprisonment was calculated at 10-16

months.



      At the sentencing hearing, the district court decided to depart upward three

levels from the base offense level, finding certain aggravating factors in the

presentence report indicated “the defendant’s conduct ... exceeded reckless

behavior, and therefore, exceeded the guidelines.” The district court rested its

decision on a number of factors including: (1) Ms. Whiteskunk’s blood alcohol

content, which was more than twice the legal limit; (2) a prior conviction for

drunk driving, which put her on notice of the “illegality and the dangerousness of

drinking and driving”; and (3) multiple opportunities for Ms. Whiteskunk to

correct her behavior before the accident.


                                         -4-
      Ms. Whiteskunk asserts the district court erred because it: (1) abused its

discretion in departing upward on the bases that death resulted and that her

conduct exceeded the standard of recklessness, (2) failed to explain the upward

departure, and (3) failed to provide adequate notice of intent to depart upward

and the basis for the departure.



DISCUSSION

I. Upward Departure Analysis – An Overview

      United States v. Collins , 122 F.3d 1297 (10th Cir. 1997), sets forth our

general framework for reviewing Sentencing Guideline departures following the

Supreme Court’s landmark decision in    Koon v. United States , 518 U.S. 81

(1996). A sentencing court is permitted to depart from the Guidelines after

determining a defendant's offense level, criminal history category, and the

applicable Guideline range “if the court finds ‘that there exists an aggravating or

mitigating circumstance of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in formulating the guidelines.’”

U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)). The district court must

distinguish whether the case falls under the category of a “heartland case” or an

“unusual case.”   See Koon , 518 U.S. at 93. In Koon , the Court explained the

Sentencing Commission intended for “‘sentencing courts to treat each guideline


                                         -5-
as carving out a “heartland,” a set of typical cases embodying the conduct that

each guideline describes.’”      Id. (quoting U.S.S.G. ch. 1 pt. A, intro. comment.

4(b)). If the case falls outside the heartland (     i.e. , is not the usual type of case),

the court may decide to depart from the prescribed sentencing range.             Id.



       When deciding whether to depart from the Guidelines, the district court

may not consider certain “forbidden” factors.        1
                                                         Collins , 122 F.3d at 1302.

Otherwise, the Sentencing Guidelines do not limit or restrict the grounds

available for departure. The Guidelines also list factors that are encouraged

factors for departure. If the factor is an encouraged factor, “the court is

authorized to depart if the applicable Guideline does not already take it into

account.” Id. If the factor is a discouraged factor, or one already taken into

account under the Guidelines, “the court should depart only if the factor is

present to an exceptional degree or in some other way makes the case different

from the ordinary case where the factor is present.”          Id. It is up to the district

court to determine whether certain factors take the case out of the “heartland,”

and “make a refined assessment of the many facts bearing on the outcome,


       1
         The forbidden factors include characteristics like race, sex, national
origin, creed, religion, and socioeconomic status (U.S.S.G. § 5 H1.10); lack of
guidance as a youth (id. § 5 H1.12); drug or alcohol dependence (id. § 5H1.4);
and economic duress (id. § 5K2.12).


                                               -6-
informed by its vantage point and day-to-day experience in criminal sentencing.”

Koon 518 U.S. at 98.



       On appeal, the district court’s decision to depart is reviewed “under a

unitary abuse-of-discretion standard which ‘includes review to determine that the

discretion [of the district court] was not guided by erroneous legal conclusions.’"

Collins 122 F.3d at 1302 (quoting     Koon , 518 U.S. at 100). This standard limits

appellate courts’ scope of review, leaving district courts with “much of their

traditional sentencing discretion.”    Koon , 518 U.S. at 97. The essential nature of

the question presented, whether legal or factual, guides our standard of review.

Collins , 122 F.3d at 1303. In the usual case, where the court’s decision whether

to depart rests on factual findings, the district court’s decision is entitled to

substantial deference.   See Koon , 518 U.S. at 98 (“[D]istrict court's decision to

depart from the Guidelines ... will in most cases be due substantial deference, for

it embodies the traditional exercise of discretion by a sentencing court.”);   United

States v. Rivera , 994 F.2d at 942, 951 (1st Cir. 1993) (in many cases, “district

court's [departure decision] ... will not involve a ‘quintessentially legal’

interpretation of the words of a guideline, but rather will amount to a judgment

about whether the given circumstances, as seen from the district court's unique

vantage point, are usual or unusual, ordinary or not ordinary, and to what


                                             -7-
extent.”). If, however, the district court’s decision rests primarily on a legal

conclusion, for instance whether a factor is a permissible ground for departure,

the appellate court’s review is plenary.     Collins , 122 F.3d at 1303.



       Collins established a four-step inquiry to guide our analysis. We must

examine:

       (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.

122 F.3d at 1303. We need not give deference to the district court on the first

issue, which is essentially a legal conclusion, but we must give substantial

deference on the second question because it involves factual conclusions. All of

these steps are subject to a unitary abuse of discretion standard.    Id.



II. Departure Analysis – Present Case

       A. Permissibility of Departure Factors

       We first examine the district court’s decision to depart upward to

determine if the factors the court relied on were permissible. Again, because this

is a legal analysis, we do not defer to the district court’s decision on this matter.

Id. Ms. Whiteskunk argues the factors the district court cited for upward

                                             -8-
departure, (1) death resulting from the conduct, and (2) excessive recklessness,

were already taken into account under the involuntary manslaughter Guideline,

and were, therefore, improper bases for departing from the Guideline range. We

examine the permissibility of each factor individually.



              1. Departure for Death Resulting From the Conduct

       We agree with Ms. Whiteskunk that if the district court relied on the fact a

death resulted from the defendant’s conduct to justify upward departure, it was

improper. Because, the unlawful killing of a human being is, in fact, an element

of involuntary manslaughter,      see 18 U.S.C. § 1112(a), the Guideline provision

for that offense already contemplates a resulting death. Since death cannot exist

in varying degrees for the court to consider (    i.e. , the factor is either present or it

is not), it is generally an impermissible factor for departure. Multiple deaths

resulting from defendant’s conduct is an exception to this general rule, and

presents a permissible ground for departure from the standard involuntary

manslaughter Guideline range. However, multiple deaths did not occur in this

instance. Accordingly, if the district court based its decision to depart on the fact

a death resulted, it was error.



       However, we do not believe the district court rested its decision on this


                                            -9-
factor. The judge mentioned U.S.S.G. § 5K2.1 (“death resulting provision”) just

prior to enumerating his reasons for departing upward during the sentencing

hearing, but it does not appear from the record the court relied on the death

resulting provision to justify upward departure. No further reference is made to

§ 5K2.1, and it appears from the record the district court departed from the

Guideline solely on other factual bases indicating a degree of recklessness

beyond that contemplated under the Guidelines.



       Even assuming arguendo the district court did depart on the basis of an

invalid factor like the “death resulting provision,” we do not necessarily need to

vacate the district court’s opinion and remand for resentencing to rid the court’s

decision of any error the consideration of an impermissible factor may have

caused. If the sentencing decision rested on other permissible factors in addition

to the improper factor, and we determine the district would have imposed the

same sentence even in the absence of the improper factor, then we will not

disturb the decision.   See Koon , 518 U.S. at 113 (stating if the district court

based a departure on both valid and invalid factors, the court should remand the

case unless it determines the district court “would have imposed the same

sentence absent reliance on the invalid factors” (citing   Williams v. United States ,

503 U.S. 193, 203 (1992)). Due to the absence of any further reference to


                                            -10-
departure based on U.S.S.G. § 5K2.1 in the court’s factual findings at the

sentencing hearing, we believe the district court would have imposed the same

sentence even in the absence of the invalid factor.



             2. Excessive Recklessness

      Recklessness exceeding the Guideline standard is a permissible factor for

the district courts to consider for departure. Even though the involuntary

manslaughter Guideline already contemplates reckless conduct and the usual case

of drunk driving resulting in death, we nonetheless hold that a district court may

still examine the degree of recklessness in a given case to determine whether this

factor exists to such an exceptional level it takes the case outside the “heartland”

of usual involuntary manslaughter cases.     See 18 U.S.C. § 3553(b); U.S.S.G.

§ 5K2.0, p.s. (court may impose a sentence outside Guideline range if “there

exists an aggravating or mitigating circumstance of a kind, or to a degree, not

adequately taken into consideration by the Sentencing Commission”).



      Our decision is in accord with the Fourth Circuit’s opinion in   United States

v. Terry , 142 F.3d 702 (4th Cir. 1998). That case addressed whether the factor of

endangering public safety under U.S.S.G. § 5K2.14 was present to such an

exceptional degree as to remove the case from the heartland and permit an


                                           -11-
upward departure from the reckless involuntary manslaughter Guideline. In

Terry , the district court made a substantial upward departure from the Guideline

range relying on several different factors. 142 F.3d at 705. The first factor the

court considered, and the only factor of relevance to the case before us, was the

danger to the public created by the defendant’s reckless driving.      Id. The court

found U.S.S.G. § 2A1.4 “already took into account” the defendant’s reckless

driving as evidenced by the base offense level increase from ten to fourteen.

Terry , 142 F.3d at 706. Because the involuntary manslaughter Guideline already

considered the danger to the public created by the defendant’s recklessness,

departure on that basis generally would be inappropriate.       Id. However, the court

went on to rule that “an upward departure would be permitted if [defendant’s]

reckless driving was ‘present to an exceptional degree or in some other way

makes the case different from the ordinary case where the factor is present.’”     Id.

(quoting Koon , 518 U.S. at 96). The case was then remanded so the district court

could “determine in the first instance whether the danger created by [defendant’s]

reckless conduct was outside the ‘heartland’ of the typical involuntary

manslaughter case involving reckless driving.”     2
                                                       Id. at 707.


       2
          Several other circuits have addressed the same or similar issue, but have
yet to publish an opinion directly on point. See United States v. Two Crow, 124
F.3d 208, 1997 WL 572862 (8th Cir. 1997) (unpublished decision) (ruling the
district court did not abuse its discretion by ordering an upward departure from
involuntary manslaughter guideline because the district court found that two

                                           -12-
      Although the district court in the case before us did not cite a specific

provision like U.S.S.G. § 5K2.14 as grounds for departure, we apply the same

analysis as the Terry court. Even though recklessness, like endangering the

public, was already considered under the involuntary manslaughter Guideline,

U.S.S.G. § 2A1.4(a)(2), it is still permissible for the district court to consider the

degree of recklessness and, within it’s discretion, depart upward if the facts take

the case outside the “heartland” of typical cases within the Guideline range.




deaths occurred, and the defendant’s exceptionally high level of intoxication and
rate of speed exceeded merely reckless conduct and approached intentional
conduct); United States v. Rowbal, 105 F.3d 667, 1996 WL 747911 (9th Cir.
1996) (unpublished decision) (ruling upward departure from involuntary
manslaughter guideline was warranted where district court cited factors like
excessive speed and blood alcohol level, reckless conduct, and callous disregard
for the safety of others, which removed the case from the heartland of typical
cases. “Although drunkenness and recklessness were considered by the
Commission when it formulated § 2A1.4, in the instant case these factors were
present to an exceptional degree.” Id. at *2 (emphasis added)); United States v.
Chambers, 940 F.2d 653, 1991 WL 137232 (4th Cir. 1991) (unpublished decision)
(determining upward departure from Sentencing Guideline for involuntary
manslaughter was warranted where the defendant had prior convictions for drunk
driving, tried to avoid arrest and drove at a high rate of speed. This conduct went
“well beyond the degree of deviation from the standard of care contemplated by
the term ‘reckless.’” Id. at *2); United States v. Clampitt, 967 F.2d 592, 1992
WL 120463 (9th Cir. 1992) (unpublished decision) (case remanded because
district court failed to provide an explanation for its decision to depart, but court
ruled a legal basis for departure was warranted because defendant’s drunk driving
created a serious threat to the public welfare under U.S.S.G. § 5K2.14 that was
not subsumed as an element under the Sentencing Guideline for involuntary
manslaughter).


                                          -13-
      Appellant argues that recklessness under the involuntary manslaughter

guideline, U.S.S.G. § 2A1.4(a)(2), is an all-or-nothing proposition; either a

person is reckless or she is not, and a court cannot and should not distinguish a

case for sentencing purposes based on varying degrees of recklessness. We

disagree. Under the law, we designate a rather broad category of conduct as

“reckless.” Some of the conduct falling within the domain we call “reckless

behavior” is actually closer to mere negligence, while other behavior within the

range of recklessness definitely approaches intentional conduct. Yet, we place

all of these varying degrees of conduct under one label. Admittedly, it is often

necessary to draw artificial lines when classifying defendants’ conduct, but it

would be unfair not to recognize and accommodate this varying spectrum of

culpability whenever possible. The sentencing phase is one aspect of the process

where the artificial labels applied to classes of conduct need not necessarily

constrain the court. If, in the district court’s discretion, it finds the facts of the

particular involuntary manslaughter case indicate a degree of recklessness that

falls on the periphery of reckless conduct – either minimally reckless or

excessively reckless – then the court should be free to depart on that basis for

sentencing purposes.    See United States v. Smith , 133 F.3d 737, 751 (10th Cir.

1997) (“An extra measure of criminal depravity is precisely the type of factual

circumstance the departure mechanism is designed to address” (citing 18 U.S.C.


                                           -14-
§ 3553(b); U.S.S.G. § 5K2.0)),    cert. denied , 118 S. Ct. 2306 (1998). We

emphasize that our decision in this matter is not intended to establish a

theoretical new level of culpable conduct. Instead, our intent is to allow

sentencing courts the discretion to recognize the extreme cases that arise within

the category of conduct categorized as reckless.   In the usual case, the sentencing

court will exercise its discretion in this regard within the established guideline

range, but when the degree of recklessness is exceptional, either minimally or

extremely, then the circumstances may warrant departure. 3



      Appellant also argues that since other sections of the Guidelines expressly

provide for departure based on elements already considered in formulating the

standard Guideline range, see, e.g., U.S.S.G. § 3C1.2, comment. (n. 2), and the

involuntary manslaughter Guideline contains no such explicit allowance, any

departure based on excessive recklessness is improper. Appellant reasons that if

the Sentencing Commission specifically stated in certain Guidelines that departure

was permissible based on the presence of a factor already considered but present

to an exceptional or varying degree, then the omission of similar language in

other Guidelines must have been intentional. However, we note that only a few of


      3
        We note excessive recklessness as a departure factor may be a subject the
Sentencing Commission should address.


                                           -15-
the Guidelines contain express provisions for departure. If we accepted

Appellant’s proposition, our decision would limit the sentencing courts’ ability to

fairly respond to unusual cases, and seriously undermine the Sentencing

Commission’s own instructions. The Commission stated in the introductory

remarks to the Guidelines that, with the exception of certain forbidden factors, it

“does not intend to limit the kinds of factors, whether or not mentioned anywhere

else in the guidelines, that could constitute grounds for departure in an unusual

case.” U.S.S.G. ch. 1, pt. A, intro. comment. 4(b) (emphasis added). The

Guidelines are intended to provide courts with the flexibility necessary to address

the extreme and “unusual cases outside the range of the more typical offenses for

which the guidelines were designed.” Id. In light of this commentary and the

Supreme Court’s instruction in Koon, we will not interpret the absence of express

permission to depart on the basis of a factor already considered in the Guideline

but present to an exceptional degree to imply such a departure is forbidden.



      We do not believe our decision to allow departure on the basis of excessive

recklessness will destroy the intended uniformity of sentencing under the

Guidelines or cause unjustified disparities in sentencing. Instead, it will reinforce

the ideals of fairness and flexibility within the range of reasonableness the

Guidelines establish for sentencing courts, and continue “the federal judicial


                                         -16-
tradition ... to consider every convicted person as an individual and every case as

a unique study in the human failings that sometimes mitigate, sometimes magnify,

the crime and the punishment to ensue.” Koon 518 U.S. at 113.



      B. Justification for Upward Departure and Sufficiency of the Record

      Having decided recklessness exceeding the Guideline standard for

involuntary manslaughter is a permissible factor for upward departure, we must

now determine whether the factual bases the district court cites are sufficient to

remove the case from the “heartland” and warrant an upward departure. We

examine the court’s decision to depart upward under a unitary abuse of discretion

standard, giving deference to the district court on these matters. See Koon, 518

U.S. at 98-99. We look only to see if “the factual circumstances from the vantage

point of the district court make this the atypical case.” Collins 122 F.3d at 1303

(quoting Rivera, 994 F.2d at 951-52). If the case is a typical one, the “court must

impose a sentence within the applicable Sentencing Guidelines range.” United

States v. Jones, 158 F.3d 492, 496(10th Cir. 1998) (citing 18 U.S.C. §3553(a),

and Koon 518 U.S. at 85). Because of the factual nature of this inquiry, we

simultaneously consider the sufficiency of the record to support the bases for

departure.




                                         -17-
      The district court specifically cited several factual circumstances it

believed removed the case from the heartland and justified upward departure.

The court emphasized Ms. Whiteskunk’s reckless conduct, highlighting the

following facts: (1) her blood alcohol content was more than twice the legal

limit; (2) she sustained a prior conviction for driving while intoxicated – putting

her on notice of her own propensity to drink and drive and the dangerousness of

such conduct; and (3) she had at least three opportunities to correct her behavior,

first, when her keys were confiscated and she was told she was unfit to drive;

second, when she was refused service at a bar because of her state of intoxication;

and third, when she narrowly avoided an accident with another vehicle just

minutes before hitting Mrs. Fleming.



      Acknowledging the district court’s special ability to judge “‘the

“ordinariness” or “unusualness” of a particular case,’” Koon, 518 U.S. at 99

(quoting Rivera, 994 F.2d at 951), we find, under these particular facts and the

record before us, the district court did not abuse its discretion when it ruled Ms.

Whiteskunk’s conduct was excessively reckless and thereby removed the case

from the “heartland” of typical cases under the Guidelines. The district court

made no “clear error of judgment,” nor “exceeded the bounds of permissible

choice in the circumstances.” United States v. Ortiz, 804 F.2d 1161, 1164 (10th


                                         -18-
Cir. 1986). The record sufficiently supports the factual bases the district court

cites to remove the case from the usual Guideline range.



      C. Reasonableness of Departure

      Finally, we must determine whether the district court’s decision to depart

upward three levels was reasonable under the circumstances. See 18 U.S.C.

§ 3742(f)(2). Our review of the sentencing court’s degree of departure is

deferential. See Collins, 122 F.3d at 1303 (approving a unitary abuse of

discretion standard). In making this decision, we

      consider the district court’s reasons for imposing the particular
      sentence together with factors such as: “the seriousness of the
      offense, the need for just punishment, deterrence, protection of the
      public, correctional treatment, the sentencing pattern of the
      Guidelines, the policy statements contained in the Guidelines, and the
      need to avoid unwarranted sentencing disparities.”

Collins, 122 F.3d at 1308-09 (quoting United States v. White, 893 F.2d 276, 278

(10th Cir. 1990) (citing 18 U.S.C. § 3742 (e)(3) and 18 U.S.C. § 3553(a))).



      Even though the district court articulated a factual basis for departing from

the Guideline range, this does not automatically suffice to explain the degree of

departure. See United States v. Kalady, 941 F.2d 1090, 1100 (10th Cir. 1991)

(district court bears burden of ensuring the record contains enough information to

allow an appellate court to determine how the degree of departure was decided).

                                         -19-
Neither the record nor the presentence report, nor the sentencing court, included

any explanation or methodological basis for how the district court selected a

three-level degree of departure. Failure to clearly articulate the basis for the

court’s degree of departure makes our review of reasonableness difficult if not

impossible, and leaves us to “speculate as to reasoning that might have been

employed by the sentencing court to arrive at the particular sentence.” United

States v. Gardner, 905 F.2d 1432, 1436 (10th Cir.), cert. denied, 498 U.S. 875

(1990).



      In Collins, we rejected the notion that the Koon unitary abuse of discretion

standard changed our pre-Koon mechanistic approach requiring the district court

to state with particularity and with reference or analogy to the Guidelines the

basis for its degree of departure. Collins, 122 F.3d at 1309 (“district court ‘must

specifically articulate reasons for the degree of departure’” (quoting United States

v. Yates, 22 F.3d 981, 990 (10th Cir. 1994)); United States v. Jackson, 921 F.2d

985, 991 (10th Cir. 1990) (“may use any ‘reasonable methodology hitched to the

Sentencing Guidelines to justify the reasonableness of the departure,’” which

includes using extrapolation from or analogy to the Guidelines (quoting United

States v. Harris, 907 F.2d 121, 124 (10th Cir. 1990)); see also United States v.

Flinn, 987 F.2d 1497, 1502 (10th Cir. 1993) (court decided it would “not


                                         -20-
commence a reasonableness analysis unless the district court has referenced the

Guidelines in its rationale for selecting a degree of departure”). Since Collins,

our decisions have continued to maintain this standard. We have declined to

follow the Ninth Circuit’s less rigid analysis of the district court’s degree of

departure espoused in United States v. Sablan, 114 F.3d 913, 918-19 (9th Cir.

1997) (en banc), cert. denied, 118 S. Ct. 851 (1998), where that court abolished

the requirement that district courts justify their degree of departure by drawing

analogies to the Sentencing Guidelines. 4 See Collins, 122 F.3d at 1309.



      In the present case, the district court gave almost no rationale for its degree

of departure from the Guideline range, stating only the departure is warranted

because it “more appropriately reflects the dangerousness of the defendant’s

conduct, as well as the extent to which risked [sic] the potential death of

another.” This explanation does nothing more than restate the justification for


      4
          Appellees cite Smith, 133 F.3d 737, as somehow abrogating the
mechanistic approach set out in Collins. An examination of that case reveals no
conflict with prior precedent, but an affirmation of the requirement that the
district court specifically articulate “‘reasons for the imposition of the particular
sentence.’” Id. at 752 (quoting Williams, 503 U.S. at 203-04). In Smith, the
district court had “articulated multiple reasons for the degree of departure,” and
“expressly considered the factors outlined in 18 U.S.C. §3553(a)(2).” Id. We
reaffirm our requirement that the district court explain with particularity –
preferably with reference or analogy to the guidelines – the basis for the degree of
upward departure.


                                          -21-
upward departure and “does not fulfill the separate requirement of stating the

reasons for imposing the particular sentence.” Flinn, 987 F.2d at 1502. In

departing upward, the district court should have attempted “to predict what the

Sentencing Commission would have established as a guideline range had it

adequately considered the circumstances justifying the departure.” Kalady 941

F.2d at 1101. The district court’s findings leave us with no “reasonable indicia”

of whether “the sentence is proportional to the crime.” Id. We do not require the

district court to justify the degree of departure with mathematical exactitude, but

we do require the justification to include “some method of analogy, extrapolation

or reference to the sentencing guidelines.” United States v. O’Dell, 965 F.2d 937,

939 (10th Cir. 1992).



      Since the record lacks any basis upon which to determine whether the

departure was reasonable, we must remand for resentencing with instructions to

the district court to make sufficient findings to support the methodology used to

determine the degree of upward departure.



III. Notice Requirement

      Finally, we address Appellant’s claim that the district court failed to give

adequate notice of its intent and basis to depart upward from the Guidelines as


                                         -22-
required in Burns v. United States, 501 U.S. 129 (1991). Burns cites Federal Rule

of Criminal Procedure 32, which “requires that the district court give the parties

reasonable notice that it is contemplating [departure from the Guidelines] ...

specifically identify[ing] the ground on which the district court is contemplating

an upward departure.” Burns, 501 U.S. at 138-39. In the present case, the

presentence report submitted by the probation officer stated plainly there was “no

reason to depart from the Guideline range.” The district court did not disclose its

intent to upwardly depart until the actual sentencing hearing was held. Under

these facts, we are dealing with “the extraordinary case in which the district court,

on its own initiative and contrary to the expectations of both the defendant and

the Government, decides that the factual and legal predicates for a departure are

satisfied.” Burns, 501 U.S. at 135.



      However, since we have already determined a remand is necessary on other

grounds, it is unnecessary for us to decide whether the district court failed to give

adequate notice of its intent and basis to depart or whether any potential failure of

notice was reversible error. If the defendant suffered as a result of the district

court’s failure to give notice as required in Burns, then the resentencing hearing

following remand will cure the alleged harm. The defendant is now clearly on

notice the district court is considering an upward departure and the bases for that


                                         -23-
departure.



CONCLUSION

      Recklessness exceeding that contemplated in the guideline standard is a

permissible factor for upward departure, and the district court did not abuse its

discretion, based on the facts in the record, in finding the circumstances of this

case placed it outside the “heartland” of typical cases under the Guidelines.

However, we hold the district court did not sufficiently explain the bases for the

three-level degree of departure from the Sentencing Guidelines, an error which

warrants reversal and remand for resentencing. Because we reverse and remand

for resentencing, we need not decide whether notice of intent and bases for

upward departure were deficient. The resentencing hearing should cure any

defect in that regard. In addition, we emphasize for the purposes of resentencing

that although we have decided the district court did not abuse its discretion when

it determined this case fell outside the “heartland,” our decision on that matter

was based on the record before us on appeal. The district court should not

construe our ruling to preclude the defendant from producing any other evidence

at the resentencing hearing that may tend to refute or mitigate the original

sentence imposed, or show the case is not outside the heartland under the

Guidelines.


                                         -24-
      We REVERSE and REMAND to the district court with instructions to

vacate the sentence and resentence in a manner consistent with this opinion.




                                       -25-
No. 97-1407, United States v. Whiteskunk
Tacha, Circuit Judge, dissenting


      I respectfully dissent only from the portion of the majority opinion finding

that the district court failed to adequately explain the degree of upward departure

in sentencing the defendant. I recognize that our cases require an explanation by

the district judge of the degree of departure and that he or she “may use any

reasonable methodology hitched to the Sentencing Guidelines to justify the

reasonableness of the departure.” See United States v. Collins, 122 F.3d 1297,

1309 (10th Cir. 1997) (internal quotations omitted). Nonetheless, when the

reason for that departure is that the conduct exceeds the seriousness contemplated

by the Guidelines, I do not believe that the district court must go through the

tortured process of articulating precisely why the excessiveness, in its judgement,

justifies a particular degree of departure. The degree of departure determination

in a case involving a subjective judgement of the excessiveness of a defendant’s

conduct lies within the province of the sentencing court under the abuse of

discretion standard. See Collins, 122 F.3d at 1303 (holding that decision to

depart and reasonableness of departure are subject to unitary abuse of discretion

standard); cf. Koon v. United States, __ U.S. __, 116 S. Ct. 2035, 2046 (1996)

(“A district court’s decision to depart from the Guidelines . . . will in most cases

be due substantial deference.”)

      Here, the judge found the defendant’s conduct exceeded the recklessness
contemplated by the Guidelines. He cited as his reasons the defendant’s extreme

intoxication, prior drunk driving conviction, and numerous opportunities to

correct her conduct prior to the accident. I am perplexed why a three-level degree

of departure is so unrelated to the finding of excessive recklessness as to require

remand for further elaboration. A departure unrelated to the reasons given or of

extraordinary magnitude might require such an explanation. However, it seems to

me that a district judge adequately justifies a sentence increase from 16 to 24

months when he gives as his reasons the facts upon which he based his

determination of excessive recklessness in the initial upward departure decision.

In the instant case, requiring additional explanation of why this level of

recklessness merits this incremental upward departure is precisely the kind of

mechanistic appellate review that Koon instructs us we are not free to employ.

See Koon, __ U.S. at __, 116 S. Ct. at 2046-47. Collins and our other post-Koon

cases are not to the contrary, for those cases did not involve a departure tied to

greater recklessness than that contemplated by the Guidelines and explained by

facts recited by the sentencing judge. See Collins, 122 F.3d at 1308-09 (finding

district court properly justified level of downward departure by reducing criminal

history level where court found career offender enhancement overstated

defendant’s criminal past and likely criminal future); United States v. Smith, 133

F.3d 737, 751-52 (10th Cir. 1997) (finding degree of upward departure for


                                          -2-
fraudulent conduct was reasonable because it considered the seriousness of the

offense, the need for punishment and deterrence, and protection against future

offenses); United States v. Lowe, 106 F.3d 1498, 1503 (10th Cir. 1997)

(upholding upward departure where defendant’s underrepresentative criminal

history category was already at maximum, so sentencing judge increased base

offense level to compensate). In fact, this court in Smith recognized that the

district judge’s reasons for departure may be adequate to explain the level of

departure as well. See Smith, 133 F.3d at 752 (relying, at least in part, on

reasons, such as seriousness of the offense, articulated by the district court to

support its initial departure decision in affirming a four-level upward departure).

      The record in this case contains the 1997 United States Sentencing

Commission Manslaughter Working Group Report prepared by the Sentencing

Commission staff to aid the Commission in assessing the appropriateness of

current Guideline penalties for manslaughter relative to other violent offenses.

The testimony to the working group of Chief Judge Richard Battey of the District

of South Dakota highlights the difficulties the sentencing judge in this case

encountered. Chief Judge Battey urged the Sentencing Commission to review the

Manslaughter Guidelines. See Manslaughter Working Group Report at 7, 14. I

join those who urge this careful study.




                                          -3-
