                            United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                      __________

                                      No. 98-3114
                                      __________

United States of America,                *
                                         *
      Plaintiff-Appellee,                *
                                         *      Appeal from the United
                                         *      States District Court for the
            v.                           *      District of South Dakota.
                                         *
Dustin Merrival,                         *
                                         *
      Defendant-Appellant                *

                                      __________

                              Submitted: March 9, 1999

                             Filed:   May 10, 1999
                                      __________

Before BEAM and HEANEY, Circuit Judges, and GOLDBERG,1 Judge.

                                      __________

GOLDBERG, Judge.

      In sentencing defendant-appellant Dustin Merrival (“defendant”), the district


      1
         The Honorable Richard W. Goldberg, Judge for the United States Court of
International Trade, sitting by designation.
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court departed upward from the United States Sentencing Commission Guidelines
(“Guidelines”). Defendant appeals, claiming the departure was improper. We
affirm.

I. BACKGROUND

       Defendant began drinking at a party at 6:00 a.m. August 2, 1997. He
continued drinking until he left the party at approximately 2:00 a.m. August 3. After
leaving the party, defendant, accompanied by his girlfriend and her child, drove west
on BIA Road 32. Two vehicles were parked off the road on an approach to BIA 32.
As defendant neared the vehicles, he lost control of his car. As a result, defendant’s
vehicle left the road and struck both parked cars. The occupants of one car, Kate
Janis, 21, and her son Devon Janis, 5 months, died from massive head and
abdominal injuries. Two other occupants in the same car, Lisa Standing Soldier and
Joe Garcia, suffered injuries to the face and facial bones which required surgery.
The last occupant, Jerrod Whistler, was hospitalized and remained in critical
condition for several days as a result of multiple blunt trauma injuries.

      A post-accident investigation revealed that defendant had been traveling at 66
miles-per-hour, in excess of the posted speed limit, when his car left the road.
Witnesses to the accident observed that the car did not appear to slow as it
approached the parked vehicles, and the investigation found little or no braking
before defendant struck the two cars. A blood alcohol level test administered to
defendant after the accident indicated a blood alcohol content of .234.

       Defendant was charged with one count of involuntary manslaughter in
violation of 18 U.S.C. §§ 1153 and 1112, and pled guilty to the indictment on April
27, 1998. Prior to defendant’s sentencing hearing, the district court gave defendant
notice that it intended to depart upward from the Guidelines. The sentencing
hearing was held July 7, 1998 before the Honorable Richard H. Battey, Chief U.S.

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District Judge, Rapid City, South Dakota. The district court in fact departed
upward and sentenced defendant to 70 months. Defendant appeals, claiming the
factors on which the district court relied were invalid or do not support the upward
departure.

II. DISCUSSION

       We review a district court’s departure from the Guidelines for abuse of
discretion. See United States v. McNeil, 90 F.3d 298, 300 & n.1 (8th Cir. 1996)
(adopting the “unitary abuse of discretion standard” articulated in Koon v. United
States, 518 U.S. 81, 100 (1996)); see also United States v. Washington, 109 F.3d
459, 462 (8th Cir. 1997) (applying the “unitary abuse of discretion standard”). “The
abuse of discretion standard includes review to determine that the discretion was not
guided by erroneous legal conclusions.” Koon, 518 U.S. at 100.

       Under the Guidelines, a violation of 18 U.S.C. § 1112 carries a base offense
level of 14. See U.S.S.G. §2A1.4(a)(2) (1997). For an offense level of 14 and a
criminal history category of I, the Guidelines prescribe that a defendant’s sentence
should be between 15 and 21 months. See U.S.S.G. Ch. 5, Pt. A, Sentencing Table.
Defendant argues that in departing from this prescribed range, the court relied on
factors which should not have been considered. Defendant also argues that the
court’s imposition of a 70-month sentence amounts to a 12-level increase in
defendant’s offense level, and that a departure of this magnitude is not justified by
the factors considered.

       At defendant’s sentencing hearing, the court articulated “some of the grounds
which motivate the Court for a departure upward.” Tr. of Sentencing Hr’g of
7/27/98, at 19. These grounds included (1) the “extensive involvement of alcohol in
this case,” (2) the “two deaths,” (3) the “three people seriously injured, all of whom
were hospitalized and surgery was required,” and (4) the “defendant’s prior criminal

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record consist[ing] solely of tribal arrests.” Id. at 19-20. When the court actually
delivered its sentence, however, it cited only two factors: death and injury. Id. at
23.

       A district court should endeavor to be extremely clear in articulating the
factors upon which it bases a departure from the Guidelines. See United States v.
Lang, 898 F.2d 1378, 1380 (8th Cir. 1990) (“The district court must provide ‘the
specific reason for the imposition of a sentence different from that described.’”)
(quoting 18 U.S.C. § 3553(c)); see also United States v. Cox, 921 F.2d 772, 774
(8th Cir. 1990) (same). When we conclude that a district court based its departure
on both valid and invalid factors, we must normally remand for resentencing. See,
e.g., United States v. Fawbush, 946 F.2d 584, 587 (8th Cir. 1991). If we
“determine[] the district court would have imposed the same sentence absent
reliance on the invalid factors,” however, we are not required to remand. Koon, 518
U.S. at 113; see also Williams v. United States, 503 U.S. 193, 203-04 (1992).

       We will not struggle with the record below to determine whether the district
court relied on defendant’s use of alcohol or tribal record in departing upward. Nor
will we decide whether any such reliance was valid. The district court clearly relied
on death and injury as factors in sentencing defendant. Under the Guidelines, death
and injury are both valid factors for upward departures, and both are supported by
evidence on the record in this case.

       For example, a district “court may increase the sentence above the authorized
guideline range” if death resulted from defendant’s conduct. U.S.S.G. § 5K2.1.
This is especially true when defendant was responsible, as here, for multiple deaths.
See id. When using death as a factor to depart upwards, a court should base the
amount of its departure on, among other things, “the dangerousness of the
defendant’s conduct.” Id. Defendant’s conduct in this case was extremely
dangerous. Defendant consumed alcohol for 20 hours prior to operating the

                                          -4-
vehicle. And once behind the wheel, defendant drove in excess of the speed limit.
By both driving drunk and speeding, defendant increased the dangerousness of his
conduct exponentially.

       With respect to the second factor, injury, the Guidelines provide that a district
court may increase the sentence above the authorized guideline range “[i]f
significant physical injury resulted” from defendant’s conduct. U.S.S.G. § 5K2.2.
When a court uses physical injury as a factor to depart upwards, it should base the
amount of its departure, among other considerations, “on the extent of the injury.”
Id. Here, it is undisputed that defendant caused “serious bodily injury” to the three
surviving victims. PSR, at 4.2 Jerrod Whistler suffered “a sheared brainstem and it
is a miracle that he is alive.” Tr. of Sentencing Hr’g of 7/27/98, at 16. Both Lisa
Standing Soldier and Joe Garcia required surgery for their injuries. And all three
victims “continue to deal with the traumatic effects of the offense.” PSR, at 4.

       Because there is sufficient evidence on the record of death and physical
injury, these factors were valid bases for the court’s departure. We conclude that,
under the circumstances here, these two factors alone justify the 70-month sentence
imposed by the district court. See United States v. Griess, 971 F.2d 1368, 1371
(8th Cir. 1992) (“A sentence thus can be ‘reasonable’ . . . provided that the
remaining reasons are sufficient to justify the magnitude of the departure.”). We
make special note, however, that in imposing a departure of this magnitude, the
district court acted at the outermost limits of its discretionary authority. With that
said, we affirm.




      2
             Defendant did not contest this portion of the PSR, and thus the court
may rely on the PSR’s characterization of the victims’ injuries. See United States v.
Joshua, 40 F.3d 948, 952 (8th Cir. 1994); United States v. Flores, 9 F.3d 54, 55-56
(8th Cir. 1993).
                                          -5-
III. CONCLUSION
       For the reasons stated above, the judgment of the district court is affirmed.

      A true copy.

             Attest:
                    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




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