United States of America v. Victor Shunta Baker (01-6260)

*The Honorab le George C. Steeh, United States District Judge for the
Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0271P (6th Cir.)
File Name: 03a0271p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VICTOR SHUNTA BAKER
(01-6260); HENRY LEE TATE,
JR. (01-6313); and JASON
BRIAN PATTERSON (01-6314),
Defendants-Appellants.
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Nos. 01-6260/
6313/6314
Appeal from the United States District Court
for the Western District of Tennessee at Jackson.
No. 01-10006—James D. Todd, Chief District Judge.
Argued: March 25, 2003
Decided and Filed: August 5, 2003
Before: BOGGS and SILER, Circuit Judges; and STEEH,
District Judge.*
2 United States v.
Baker, et al.
Nos. 01-6260/6313/6314
_________________
COUNSEL
ARGUED: Jeff Mueller, LAW OFFICE OF JEFF
MUELLER, Jackson, Tennessee, M. Dianne Smothers,
OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR
THE WESTERN DISTRICT OF TENNESSEE, Memphis,
Tennessee, Matthew M. Maddox, MADDOX, MADDOX &
MADDOX, Huntingdon, Tennessee, for Appellants. R. Leigh
Grinalds, ASSISTANT UNITED STATES ATTORNEY,
Jackson, Tennessee, for Appellee. ON BRIEF: Jeff Mueller,
LAW OFFICE OF JEFF MUELLER, Jackson, Tennessee, M.
Dianne Smothers, OFFICE OF THE FEDERAL PUBLIC
DEFENDER FOR THE WESTERN DISTRICT OF
TENNESSEE, Memphis, Tennessee, Matthew M. Maddox,
MADDOX, MADDOX & MADDOX, Huntingdon,
Tennessee, for Appellants. R. Leigh Grinalds, ASSISTANT
UNITED STATES ATTORNEY, Jackson, Tennessee, for
Appellee.
_________________
OPINION
_________________
BOGGS, Circuit Judge. Victor Shunta Baker, Henry Lee
Tate, Jr., and Jason Brian Patterson appeal their sentences of
over twenty years of imprisonment for interstate robbery and
attendant firearms offenses. The district court enhanced their
sentences under the guidelines for infliction of significant
injury on a security guard that they shot. In addition, the
district court departed upward from the guidelines because the
guard’s arm had to be amputated as a result of the injuries
they inflicted and because of the particularly heinous and
cruel nature of their conduct. Appellants contend that this
upward departure impermissibly double-counts the injuries
that they inflicted on the guard. Baker also argues that his

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1W hile his acco mplices testified that they either saw P atterson fire
the shots or heard him confess to firing the shots, Patterson denied this.
The trial court made no findings of fact on this issue and needed to make
none.
lesser participation in the offense was not sufficiently
reflected in his sentence. We affirm.
I
On December 14, 2000, Patterson, Tate, Baker, and a fourth
person, Vystoskia Tonve Pirtle, decided to commit an armed
robbery. In preparation, they stole a truck and Baker retrieved
a 12-gauge short-barreled shotgun to be used in the robbery.
After looking in vain for the originally intended victim, they
decided rob Brooksie’s Barn restaurant in Jackson,
Tennessee, instead. The gang had inside information on
Brooksie’s because Baker had worked at the establishment
previously and Baker’s mother had been a cook there for
seventeen years. As Baker waited in the truck, the other
members donned ski masks and broke into the restaurant.
Inside, they encountered Arthur Dale Parker, a 65-year-old,
uniformed, private security guard, who immediately raised his
arms. Nevertheless, Parker was shot with the shotgun and
kicked in the side and teeth.1 As he lost consciousness,
Parker heard an order to shoot him should he move. When he
stirred, he was shot at again, this time with his own .22-
caliber long-rifle revolver, but was not hit. The resulting
injuries were severe enough to threaten his life and to
necessitate the amputation of his dominant, right arm. The
gang members escaped with $5,803.72 in Brooksie’s cash,
checks, and credit card receipts, and Parker’s gun. Within
days the police tracked down, arrested, and obtained
confessions from each of the perpetrators.
On February 26, 2001, a five-count indictment was filed in
the district court. Each member of the gang was charged with
4 United States v.
Baker, et al.
Nos. 01-6260/6313/6314
2“Whoever in any way or degree obstructs, delays, o r affects
commerce or the movement of any article or commodity in commerce, by
robbery or extortion or attempts or conspires so to do, or commits or
threatens physical violence to any person or prope rty in furtherance o f a
plan or purpose to do anything in violation of this section shall be fined
under this title or imprisoned not more than twenty years, or both.” 18
U.S.C. § 195 1(a).
3“[A]ny person who, during and in relation to any crime of violence
. . . for which the person may be prosecuted in a court of the United
States, uses or carries a firearm, or who, in furtherance of any such crime,
possesses a firearm, shall, in addition to the punishment provided for such
crime of violence o r drug trafficking crime . . . if the firearm is
discharged, be sentenced to a term of imprisonment of not less than 10
years.” 18 U.S.C. § 924(c)(1)(A)(iii).
4“If the firearm possessed by a person convicted of a violation of this
subsection . . . is a short-barreled rifle, short-barreled shotgun, or
semiautomatic assault weapon, the person shall be sentenced to a term of
imprisonment of not less than 10 years.” 18 U.S.C. § 924(c)(1)(B )(i).
5“Whoever commits an offense against the United States or aids,
abets, counsels, commands, induces or procures its commission, is
punishable as a principal.” 18 U.S.C. § 2.
6“It shall be unlawful for any p erson to rece ive, po ssess, co nceal,
store, barter, sell, or dispose of any stolen firearm or stolen ammunition,
or pledge or accept as security for a loan any stolen firearm or stolen
(I) conspiracy to interfere with interstate commerce by
robbery, in violation of 18 U.S.C. § 1951,2 (II) the completed
interference, also in violation of 18 U.S.C. § 1951,
(III) brandishing and discharge of the shotgun in the
commission of the robbery, in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii)3 and (B)(i)4, or aiding and abetting the
same, in violation of 18 U.S.C. § 2,5 (IV) discharge of the
revolver, in violation of 18 U.S.C. § 924(c)(1)(A)(iii), or
aiding and abetting the same, in violation of 18 U.S.C. § 2,
and (V) possession of the revolver stolen from Parker, in
violation of 18 U.S.C. § 922(j),6 or aiding and abetting the

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ammunition, which is moving as, which is a part of, which constitutes, or
which has been shipped or transported in, interstate or foreign commerce,
either before or after it was stolen, knowing or having reasonable cause
to believe that the firearm or ammunition was stolen.” 18 U.S.C. § 922(j).
same, in violation of 18 U.S.C. § 2. Over the following
months, plea negotiations resulted in guilty pleas to counts II
and III by Patterson and Baker and counts II and IV by Tate
in return for the dismissal of the other charges against them.
The charges against Pirtle were otherwise disposed of and are
not part of this appeal.
The pre-sentencing report contained the same calculation
for each remaining defendant: The base offense level of
count II, robbery, was twenty. U.S.S.G. § 2B3.1(a). This
base level was enhanced by six for permanent or
life-threatening bodily injury, U.S.S.G. § 2B3.1(b)(3)(C), by
one for taking of a firearm, U.S.S.G. § 2B3.1(b)(6), and by
three for assault on a law enforcement officer, U.S.S.G.
§ 3A1.2(b). This offense level was decreased by three for
acceptance of responsibility, U.S.S.G. § 3E1.1, resulting in a
total adjusted offense level of twenty-seven. The pre-
sentence report also contemplated, but left to the discretion of
the court, upward departures for intentional infliction of
permanent or life-threatening injury, U.S.S.G. § 5K2.2, and
unusually heinous, cruel, or brutal conduct, U.S.S.G. § 5K2.8.
Each of the remaining defendants had a criminal history
category of IV. This resulted in a guideline range of 100 to
125 months imprisonment. Counts III and IV, the firearms
offenses, added consecutive 120-month sentences for each
remaining defendant. U.S.S.G. § 5G1.1(a).
At the September 28 sentencing hearing, the district court
disallowed the three-level enhancement under U.S.S.G.
§ 3A1.2(b), because Parker was not a law enforcement
officer. However, the court also ordered a five-level upward
departure to account for both the gravity of the injury inflicted
6 United States v.
Baker, et al.
Nos. 01-6260/6313/6314
upon Parker, under U.S.S.G. § 5K2.2, and the heinous nature
of the defendants’ conduct, under U.S.S.G. § 5K2.8. This
resulted in a total offense level of twenty-nine and a guideline
range of 121 to 151 months. On October 3, Patterson and
Tate were sentenced to 135 months and Baker to 121 months
on count II and each to an additional 120 months on counts III
or IV. Before this court now are the timely appeals of these
sentences.
II
We review the district court’s sentencing decisions under
a deferential standard. “A defendant may file a notice of
appeal in the district court for review of an otherwise final
sentence if the sentence . . . was imposed as a result of an
incorrect application of the sentencing guidelines.” 18 U.S.C.
§ 3742(a)(2). “Upon review of the record, the court of
appeals shall determine whether the sentence . . . was imposed
as a result of an incorrect application of the sentencing
guidelines.” 18 U.S.C. § 3742(e)(2). “The court of appeals
shall give due regard to the opportunity of the district court to
judge the credibility of the witnesses, and shall accept the
findings of fact of the district court unless they are clearly
erroneous and . . . shall give due deference to the district
court’s application of the guidelines to the facts.” 18 U.S.C.
§ 3742(e). “[T]he sentencing court may impose a sentence
outside the range established by the applicable guidelines, 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 that should result in a sentence
different from that described.’” U.S.S.G. § 5K2.0; see also
Koon v. United States, 518 U.S. 81, 95 (1996). “We review
decisions to depart from the sentencing guidelines for abuse
of discretion.” United States v. Valentine, 100 F.3d 1209,
1210 (6th Cir. 1996) (citing Koon, 518 U.S. at 98).

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All appellants contend that the five-level upward departure
under § 5K2.2 double-counts conduct already accounted for
by the six-level enhancement under § 2B3.1(b)(3)(C).
Section 2B3.1(b)(3) provides for an enhancement to a robbery
sentence when the victim suffers physical injury.
If any victim sustained bodily injury, increase the offense
level according to the seriousness of the injury[:] (A)
Bodily Injury [,] add 2 [;] (B) Serious Bodily Injury [,]
add 4 [;] (C) Permanent or Life-Threatening Bodily
Injury [,] add 6 [;] (D) If the degree of injury is between
that specified in subdivisions (A) and (B), add 3 levels;
or (E) If the degree of injury is between that specified in
subdivisions (B) and (C), add 5 levels.
U.S.S.G. § 2B3.1(b)(3). Section 5K2.2 permits upward
departure to sentences in general, based on a similar factual
predicate:
If significant physical injury resulted, the court may
increase the sentence above the authorized guideline
range. The extent of the increase ordinarily should
depend on the extent of the injury, the degree to which it
may prove permanent, and the extent to which the injury
was intended or knowingly risked. When the victim
suffers a major, permanent disability and when such
injury was intentionally inflicted, a substantial departure
may be appropriate.
U.S.S.G. § 5K2.2.
The appellants’ argument is bolstered by the language of
§ 5K2.0. “[P]hysical injury would not warrant departure from
the guidelines when the robbery offense guideline is
applicable because the robbery guideline includes a specific
adjustment based on the extent of any injury.” U.S.S.G.
§ 5K2.0. Rather, upward departures under § 5K2.0 should be
confined to circumstances not already explicitly accounted for
8 United States v.
Baker, et al.
Nos. 01-6260/6313/6314
by the guidelines. For example, “because the robbery
guideline does not deal with injury to more than one victim,
departure would be warranted if several persons were
injured.” U.S.S.G. §5K2.0. However, § 5K2.0 does not
entirely close the door to additional consideration of
circumstances already explicitly accounted for in the
guidelines:
[T]he court may depart from the guidelines, even though
the reason for departure is taken into consideration in
determining the guideline range (e.g., as a specific
offense characteristic or other adjustment), if the court
determines that, in light of unusual circumstances, the
weight attached to that factor under the guidelines is
inadequate or excessive.
U.S.S.G. § 5K2.0.
Contrary to the government’s contention, such extreme or
unusual circumstances do not exist here. See, e.g., United
States v. Myers, 66 F.3d 1364, 1373-75 (4th Cir. 1995)
(reversing enhancement under § 5K2.2 for physical injury
where physical injury was already accounted for by
§ 2B3.1(b)(3)(C) and district court made no finding that the
guideline enhancement was inadequate). Appalling as the
defendants’ conduct and its consequences were by the
standards of any civilized person, it is no extreme outlier
within the universe of robberies resulting in permanent or life-
threatening injuries, for surely every such robbery is
appalling. It was this universe of cases that the sentencing
commission contemplated and determined to merit a six-level
enhancement, not an eleven-level enhancement. If physical
injury no worse than Parker’s justified upward departure, it
would be justified not merely in the unusual, but in many or
even most robberies inflicting life-threatening or permanent
injury. We therefore conclude that the five-level upward
departure cannot be sustained under § 5K2.2.

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The district court alternatively supported the same five-
level upward departure under § 5K2.8:
If the defendant’s conduct was unusually heinous, cruel,
brutal, or degrading to the victim, the court may increase
the sentence above the guideline range to reflect the
nature of the conduct. Examples of extreme conduct
include torture of a victim, gratuitous infliction of injury,
or prolonging of pain or humiliation.
U.S.S.G. § 5K2.8.
The exact contours of conduct that is “unusually heinous,
cruel, brutal, or degrading” must be defined by the case law.
This court has upheld such upward departures on this basis in
almost every case where the district court gave a specific
justification. Compare United States v. Beal, 2003 WL
264733, at *1 (6th Cir. 2003) (table) (upholding one-level
upward departure under § 5K2.8 where assailant of federal
employees threw feces at victims), United States v. Sizemore,
238 F.3d 425, 2000 WL 1871723, at *1 (6th Cir. 2000) (table)
(upholding four-level upward departure under § 5K2.8 where
drug conspirators had tortured co-conspirator), United States
v. Davis, 170 F.3d 617, 624 (6th Cir. 1999) (upholding eight-
level upward departure under § 5K2.8 where wire-fraud
defendant intentionally inflicted psychic harm on elderly, sick
telemarketing victims by being “loud, rude, obnoxious, [and]
controlling”); United States v. Cross, 121 F.3d 234, 238 (6th
Cir. 1997) (upholding four-level upward departure under
§ 5K2.8 where drug conspirator “burn[ed] [victim] with . . .
hot scissors, pour[ed] rubbing alcohol on his wounds and
mouth, and forc[ed] him to eat dog feces.”), United States v.
Wright, 119 F.3d 390, 393 (6th Cir. 1997) (upholding four-
level upward departure under § 5K2.8 where drug conspirator
forced torture victim to ingest rubbing alcohol and dog feces),
United States v. Phillip, 948 F.2d 241, 252-54 (6th Cir. 1991)
(upholding three-level upward departure under § 5K2.8 where
defendant murdered his four-year old son by beating and
10 United States v.
Baker, et al.
Nos. 01-6260/6313/6314
burning him to death over a period of weeks), United States
v. Harris, 943 F.2d 53, 1990 WL 159149, at *3 (6th Cir.
1991) (table) (upholding ten- and twelve-level departures
under § 5K2.8 where witness-tamperers had abducted witness
and raped witness’s wife), United States v. Patrick, 935 F.2d
758, 761 (6th Cir. 1991) (upholding six-level upward
departure under § 5K2.0 where kidnapper had attempted to
“possess” three-year old victim indefinitely, citing § 5K2.8),
and United States v. Cofer, 916 F.2d 713, 1990 WL 159149,
at *5 (6th Cir. 1990) (table) (upholding two-level upward
departure under § 5K2.8 where defendant sexually abused
children not only by taking sexually explicit photographs of
them but also otherwise during the production of the
photographs), with Davis, 170 F.3d at 630 (reversing upward
departure under § 5K2.8 where wire-fraud co-defendant was
“nice” to telemarketing victims); United States v. Surratt, 87
F.3d 814, 820 (6th Cir. 1996) (upholding denial of upward
departure under § 5K2.8 where government offered no
evidence that child pornography recipient had harmed
depicted children), United States v. Cook, 36 F.3d 1098, 1994
WL 514528, at *6 (6th Cir. 1994) (table) (reversing upward
departure under § 5K2.8 where wire fraud defendant inflicted
no physical injury), United States v. Pelfrey, 996 F.2d 1218,
1993 WL 210716, at *2 (6th Cir. 1993) (table) (holding
excessive the equivalent of a thirteen-level upward departure
under § 5K2.8 where stalker of a celebrity had “relentlessly”
pursued victim), and United States v. Wilson, 958 F.2d 372,
1992 WL 39132 (6th Cir. 1992) (table) (reversing upward
departure under § 5K2.8 based only on the district court’s
unsupported statement that defendant’s conduct was
“extreme”).
Under these precedents, the district court did not abuse its
discretion in finding the defendants’ conduct to be sufficiently
heinous to depart upward. The defendants in the course of
their robbery did not merely shoot Parker after he had raised
his hands in surrender, inflicting permanent and life-
threatening injuries on him. After they had shot and disarmed

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7W e also no te that Patterson’s and T ate’s sentences would still have
been within the guideline range under a four-level upward departure and
Baker’s even under a three-level upward departure. So even a one- or
two-level reduction from the five-level upward departure actually
imposed would not necessarily have resulted in a different sentence.
him, when all reasonable possibility of resistance on Parker’s
part had vanished, they continued to brutalize him. They
kicked his wounded body until he passed out, in the process
moving his body a distance of about twenty to twenty-five
feet across the kitchen floor. When he came to, his stirring
was sufficient for the defendants to shoot at him again with
his own gun, apparently following up on their threat to kill
him if he moved. If the shooter’s aim had been better, this
could very easily have been a murder case. These subsequent,
gratuitous actions by the defendants were not accounted for
in the offense level calculations and are sufficiently heinous
to justify an upward departure. As to the degree of upward
departure, we have upheld a broad spectrum of enhancements
for an even more varied set of heinous conduct. The five
levels granted by the district court here are not outside of this
broad spectrum.7
A sentencing court’s upward departure based on both
applicable factors and factors incorrectly applied can be
upheld if the departure was reasonable for the applicable
factors alone.
If the party defending the sentence persuades the court of
appeals that the district court would have imposed the
same sentence absent the erroneous factor, then a remand
is not required under § 3742(f)(1), and the court of
appeals may affirm the sentence as long as it is also
satisfied that the departure is reasonable under
§ 3742(f)(2). The reasonableness determination looks to
the amount and extent of the departure in light of the
grounds for departing. In assessing reasonableness under
12 United States v.
Baker, et al.
Nos. 01-6260/6313/6314
§ 3742(f)(2), the Act directs a court of appeals to
examine the factors to be considered in imposing a
sentence under the Guidelines, as well as the district
court's stated reasons for the imposition of the particular
sentence. § 3742(e). A sentence thus can be ‘reasonable’
even if some of the reasons given by the district court to
justify the departure from the presumptive guideline
range are invalid, provided that the remaining reasons are
sufficient to justify the magnitude of the departure.
Williams v. United States, 503 U.S. 193, 203-04 (1992). See
also, e.g., United States v. Chance, 306 F.3d 356, 396-97 (6th
Cir. 2002); United States v. Hart, 70 F.3d 854, 862 (6th Cir.
1995); United States v. Lowenstein, 1 F.3d 452, 454 (6th Cir.
1993). In this case, we conclude that the sentence can be
upheld on this basis, even if the district court did incorrectly
consider the physical injury in departing. The departure
would have been justified on the basis of § 5K2.8 alone.
There is no indication in the record that the district court
required both reasons to justify the total amount of the
departure. Hence no remand is necessary.
III
In addition to the § 5K2.2 and § 5K2.8 issues raised by all
defendants, Baker also contends that his sentence must be
overturned on grounds specific to him. He argues that his
sentence was unjustified because his conduct was less
culpable than that of his co-defendants in that he, as the
driver, never entered Brooksie’s and did not physically
participate in the abuse of Parker. Therefore he should have
received a less severe sentence. This argument fails for at
least three reasons. Baker cites no binding precedent for
reversal of an otherwise valid sentence on the basis that more
culpable co-defendants were not punished more severely.
Such precedent as he does cite points in the opposite
direction. United States v. Parker, 912 F.2d 156, 158 (6th
Cir. 1990) (reversing downward departure ordered by the trial

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court on the basis that an equally culpable co-defendant had
received a lower sentence); United States v. Romano, 970
F.2d 164, 167 (6th Cir. 1992) (finding “no merit in
defendant’s claim that his sentence is excessive when
compared to the sentences received by his codefendants”); see
also Cross, 121 F.3d at 238 (holding that the “guidelines do
not require any distinction between principals and
accomplices”). Second, while Baker was less culpable in
some respects, in others, he was more so. It was Baker who
retrieved the gun used to perpetrate the crime and provided
what the gang expected would be the means of escape. It was
Baker who, the court below found, selected Brooksie’s as the
site based on his familiarity with the establishment. And it
was Baker whose conduct resulted in the crippling, not of a
random stranger, but of a long-time co-worker of his own and
his mother’s, a man with whom he presumably had a pre-
existing relationship. Finally, Baker, though sentenced within
the same range as his co-defendants, did receive a sentence at
the bottom of the range, rather than the middle as they did,
resulting in a reduction of incarceration by more than a year
and reflecting a slightly lower degree of culpability.
Baker also argues that his sentence should not have been
enhanced for the abuse of Parker, as he could not have
foreseen it. Baker bases his conclusion that he could not have
foreseen the abuse on the following statement of the district
court:
It was reasonably foreseeable that this victim would be
shot. Now, it’s not as foreseeable that he would be
kicked. You didn’t have any way of knowing, I suppose
that they would kick him, but things like that happen, and
when you are in a partnership with criminals, sometimes
your partners do bad things and you end up getting
punished for things that your cohorts did.
JA 274 (emphases added). To quote the court is to refute
Baker’s interpretation. The court merely stated that the
14 United States v.
Baker, et al.
Nos. 01-6260/6313/6314
kicking was not as foreseeable as the shooting and that Baker
did not know that it was going to occur. Nevertheless, the law
does not require absolute foreknowledge and a lesser degree
of foreseeability is still sufficient. The quote concludes with
the finding that such a sufficient degree of foreseeability still
existed.
IV
For the foregoing reasons, we AFFIRM all sentences.

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