                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          APR 27 2000
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                   No. 99-4105
                                                (D.C. No. 98-CR-610-001-C)
 SHAWN MILLET,                                           (D. Utah)

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges. **


       Mr. Shawn Millet appeals from the sentencing court’s imposition of an

upward departure of seven offense levels for extreme psychological injury under

U.S.S.G. § 5K2.3. Mr. Millet was charged with witness tampering, 18 U.S.C. §

1512, but pled guilty to the lesser crime of misprision of felony, 18 U.S.C. § 4.

At sentencing, the court determined that Mr. Millet’s offense level was 12 with a


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
criminal history category of I, leading to a possible sentencing range of 10 to 16

months. Sent. Tr. at 12-13. In deciding to depart upward, the court then

determined that the underlying criminal conduct was analogous to assault with

intent to commit murder and applied the base offense level of 28 from U.S.S.G. §

2A2.1. § 2X4.1 required that the offense level for misprision be 9 levels lower

than the base level for the underlying crime, and the court arrived at a final

offense level of 19. Sent. Tr. at 20. This resulted in a guideline range of 30-37

months, and the court sentenced Mr. Millet to the statutory maximum of 36

months imprisonment, as well as 12 months supervised release and $89,106 in

restitution. On appeal, Mr. Millet argues that the district court erred in applying

the Sentencing Guidelines. Our jurisdiction 1 arises under 18 U.S.C. § 3742(a) and

we affirm.



                                     Background

      Jason Millet, defendant’s brother, was hired by a third party to convince a

confidential informant, Linda Gren Hadden, not to cooperate with an ongoing



      1
       Mr. Millet’s notice of appeal bears the district court docket number of a
dismissed case (98 CR 396 C) rather than the number from the case in which the
judgment was entered (98 CR 610 C). However, the docketing statement included
a copy of the judgment from the correct case and we therefore have jurisdiction.
See United States v. Escareno, No. 94-6232, 1995 WL 634171, * 1 n.2 (10th Cir.
Oct. 30, 1995) (unpublished).

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drug investigation. On July 12, 1998, Jason and Shawn, wearing overalls and

masks, rode bicycles to Ms. Hadden’s apartment. Shawn was aware that Jason

was carrying a loaded gun in order to scare Ms. Hadden. After arriving at the

apartment, Jason saw Ms. Hadden through a window and fired between five and

seven shots into the apartment. The two brothers then left the scene, and later

wiped the gun clean of fingerprints and took it apart. They were apprehended

soon after.

      Ms. Hadden was hit five times: in the face, neck, shoulder, hip, and left

arm. She required extensive surgery and was hospitalized for six weeks following

the surgery. The following paragraphs from the presentence report describe the

resulting impact:

              15. As a result of damage to her face, the victim lost
              most of her tongue and now speaks with an impediment.
              Her mandible is completely destroyed, and she has very
              little chin. . . . Because of scarring around her lips, she
              has difficulty eating and drinking without drooling. All
              of her lower teeth were blown out, and all but three were
              replaced during surgery. In summary, the victim was
              severely damaged by these injuries and reported that she
              does not want to be seen in public. . . .

              16. Ms. Hadden is living with acquaintances who are
              helping her. She reported taking five types of
              medication in order to sleep and help control the
              constant pain. She indicated having severe nightmares
              since the attack occurred.

              17. Emotionally, this experience has been devastating.
              Ms. Hadden indicated that some children screamed when

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             they saw her in the hospital following surgery. She
             suffered severe psychological distress, including deep
             depression, and has contemplated suicide.

PSR (II R.) at 5.



                                     Discussion

      We review the district court's decision to upwardly depart from the

Sentencing Guidelines under a unitary abuse of discretion standard. See Koon v.

United States, 518 U.S. 81, 99 (1996); see also United States v. Collins, 122 F.3d

1297, 1302 (10th Cir. 1997). In doing so, we evaluate four components: (1)

whether the departure is based upon a permissible departure factor; (2) whether

the departure factors relied on by the district court remove the defendant from the

heartland of the Guidelines; (3) whether the departure is sufficiently supported by

the facts in the record; and (4) whether the degree of departure is reasonable.

See United States v. Bartsma, 198 F.3d 1191, 1195 (10th Cir. 1999)

      Here, the first factor is clearly met by the inclusion of § 5K2.3 in the

Guidelines as a permissible grounds for departure. Id. In regards to the second

factor, Mr. Millet argues that his conduct did not cause the psychological trauma,

so he should not be responsible for it. Yet the court noted that Shawn knew his

brother intended to use a gun to scare Ms. Hadden. Therefore, it was not

unforeseeable that psychological damage would occur. “This is the unusual kind


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of case where misprision of a felony does not consider [the psychological damage

to the victim]. It takes it out of the heartland, and I am going to depart.” Sent.

Tr. at 19. We give substantial deference to this finding, see Collins, 122 F.3d at

1303, and hold that the district court was correct in finding that the conduct

removed the crime from the heartland.

      Moving on to the third part of this analysis, the record is replete with

evidence of the extreme nature of Ms. Hadden’s psychological injuries. § 5K2.3

lays out the appropriate standard in this regard.

             [P]sychological injury would be sufficiently severe to
             warrant application of this adjustment only when there is
             a substantial impairment of the intellectual,
             psychological, emotional, or behavioral functioning of a
             victim, when the impairment is likely to be of an
             extended or continuous duration, and when the
             impairment manifests itself by physical or psychological
             symptoms or by changes in behavior patterns.

In addition to the evidence related in the presentence report, the court also noted

the extreme psychological impact on Ms. Hadden from losing her job, losing her

home because of inability to make payments on it, inability to appear or eat in

public because of her appearance, and other impacts of the serious wounds she

received. See Sent. Tr. of Jason Millett (No. 99-4115, V R.) at 18-22

(incorporated by reference into Shawn Millet’s sentencing – judge noting that “I

would rely basically on the same evidence that I stated earlier in the sentencing of

Mr. Jason Millett.” Sent. Tr. at 13). This evidence was clearly sufficient to

                                         -5-
support the departure.

      Mr. Millett also challenges whether the degree of the departure – seven

offense levels – was reasonable. In particular, he argues that “[s]uch a drastic

departure is unreasonable in light of the facts that the psychological trauma

caused to the victim was caused by [Jason Millett] . . . .” Aplt. Reply Br. at 5.

He also contends that he attempted to withdraw from the conduct; yet his

participation is well documented in the district court’s findings. Review of the

district court’s degree of departure is deferential. See United States v.

Whiteskunk, 162 F.3d 1244, 1253 (10th Cir. 1998). A district court must

“specifically articulate reasons for the degree of departure using any reasonable

methodology hitched to the Sentencing Guidelines, including extrapolation from

or analogy to the Guidelines.” Bartsma, 198 F.3d at 1196 (citation and internal

quotations omitted). In the present case, the sentencing court specifically

analogized to the guidelines, based upon the underlying crime. We cannot say

that such an analogy was unreasonable.

      Finally, Mr. Millett argues that we must remand for resentencing because

the district court failed to make factual findings as to the nature of “the

psychological injury ‘normally resulting from the commission of the offense.’”

United States v. Okane, 52 F.3d 828, 835 (10th Cir. 1995) (citation omitted).

While this is the usual procedure for finding a violation of § 5K2.3, we note that


                                         -6-
the failure to make such factual findings does not always mandate resentencing.

See United States v. Mitchell, No. 96-6292, 1997 WL 325920, at *3-4 (10th Cir.

June 16, 1997) (unpublished); United States v. Atkinson, No. 94-4229, 1995 WL

620142 (10th Cir. Oct. 16, 1995) (unpublished). “‘[W]e should not remand if we

are satisfied ... that the district court would impose the same, reasonable sentence

if we required it to articulate [its reasons] with the detail specified in Jackson and

its progeny.’” United States v. Tsosie, 14 F.3d 1438, 1444 (10th Cir. 1994)

(citation omitted). There is no question in our minds that the psychological

damage to Ms. Hadden was far beyond the normal trauma present in a conviction

for misprision of felony, and the district court would merely impose the same

sentence again. Therefore, remand is unnecessary.

      AFFIRMED.



                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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