United States of America v. Robert Koch

*The Honorable Judith M. Barzilay, Judge, United States Court of
International Trade, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0201P (6th Cir.)
File Name: 04a0201p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT KOCH,
Defendant-Appellant.
X
-
-
-
->
,
-
-
N
No. 02-6278
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 01-00083—Joseph M. Hood, District Judge.
Argued: April 28, 2004
Decided and Filed: June 29, 2004
Before: GUY and GILMAN, Circuit Judges; BARZILAY,
Judge.*
_________________
COUNSEL
ARGUED: H. Louis Sirkin, SIRKIN, PINALES &
SCHWARTZ, Cincinnati, Ohio, for Appellant. Laura K.
2 United States v. Koch No. 02-6278
Voorhees, ASSISTANT UNITED STATES ATTORNEY,
Covington, Kentucky, for Appellee. ON BRIEF: H. Louis
Sirkin, Jennifer M. Kinsley, Jarrod M. Mohler, SIRKIN,
PINALES & SCHWARTZ, Cincinnati, Ohio, for Appellant.
Laura K. Voorhees, ASSISTANT UNITED STATES
ATTORNEY, Covington, Kentucky, Charles P. Wisdom, Jr.,
ASSISTANT UNITED STATES ATTORNEY, Lexington,
Kentucky, for Appellee.
_________________
OPINION
_________________
JUDITH M. BARZILAY, Judge. Defendant-Appellant
Robert Koch appeals from his sentence entered on October 3,
2002 in the Eastern District of Kentucky after his conviction
by a jury on drug and firearm offenses. He argues that the
district court: (1) erred in calculating the amount of drugs
involved in the conspiracy; (2) misapplied the sentencing
guidelines to make a two-level adjustment for possessing a
firearm; and (3) improperly granted an upward departure on
the minimum 10-year sentence under 18 U.S.C.
§ 924(c)(1)(A)(iii). Because the district court did not abuse
its discretion in sentencing Koch, we AFFIRM the district
court’s decision on all three points.
BACKGROUND
Koch, now twenty-six years old, made his living by buying
illegal narcotics from Arizona and selling them in his home
state of Kentucky. This case revolves around incidents that
took place on two separate dates in 2001: April 27 and
October 12.
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
drugs. “Fronting” denotes supplying narcotics on credit.

-- 1 of 9 --

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

-- 2 of 9 --

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

-- 3 of 9 --

No. 02-6278 United States v. Koch 7
pounds. The court multiplied three hundred by eight, and
then added 1,000. The court then reduced the estimate to
2,000. The drug quantity estimate was thus conservatively
made. Cf. Walton, 908 F.2d at 1302 (warning that the
sentencing court should “err on the side of caution”); United
States v. Meacham, 27 F.3d 214, 216 (6th Cir. 1994).
Moreover, testimony and other evidence revealed that Koch
made his living primarily from drug dealing and supported
two dependents (although he was not generating large
amounts of money before February 2001, according to
Byrnes). He was a central figure in the conspiracy. At least
two people (Bybbe and Davis) sold drugs he provided. His
friend Ballard testified that the drug dealing went as far back
as 1998. Multiple witnesses mentioned a large shipment from
Arizona. While he may not have had a “lavish” lifestyle as
characterized by the government, Pl.’s Br. at 10, Koch
nevertheless lived in a comfortable house and owned two
vehicles and other assets. He often had large quantities of
cash. That is, it is more likely than not that the amount of
drugs he was involved with was fairly large (and certainly
more than recommended by the probation officer, who by his
own admission was not able to review all the evidence
implicated and did not have the advantage of testimony given
at sentencing).
(2) The specific offense characteristic increase.
The sentencing guidelines allow a two-level increase “[i]f
a dangerous weapon (including a firearm) was possessed” in
a drug related crime. U.S.S.G. § 2D1.1(b)(1). “The
enhancement for weapon possession reflects the increased
danger of violence when drug traffickers possess weapons.”
U.S.S.G. § 2D1.1 cmt. 3. “The adjustment should be applied
if the weapon was present, unless it is clearly improbable that
the weapon was connected with the offense.” Id. The
comments give the example of an unloaded hunting rifle
found in a home, also containing drugs, as falling outside of
the provision. See id.
8 United States v. Koch No. 02-6278
The Sixth Circuit reviews “a district court’s factual findings
under U.S.S.G. § 2D1.1(b)(1) for clear error.” United States
v. Miggins, 302 F.3d 384, 390 (6th Cir. 2002).
Koch argues that the district court erred in enhancing his
sentence on the possession of the Beretta on the basis that
such increase is unwarranted when a defendant is convicted
for violation of 18 U.S.C. § 924(c), as he was on Count 2.
See Def.’s Br. at 24 (citation omitted). It is clear that the
sentencing judge cannot apply a section 2D1.1(b)(1)
enhancement when a defendant is also convicted and
sentenced for a 18 U.S.C. § 924(c) violation on the same
charge “because to do so would constitute impermissible
double-counting.” United States v. Saikaly, 207 F.3d 363,
367 (6th Cir. 2000) (citation omitted). Here, Koch was
convicted and sentenced for a section 924(c) violation in
Count 2 with respect to his possession of the Colt .45 during
the April 27 shooting incident. The two-level enhancement,
on the other hand, was imposed for his possession of the
Beretta found during the October 12 search, for which he was
convicted on Count 6. If the drug offenses on the two dates
are the same, under Saikaly, the district court cannot order the
enhancement. However, if they are distinct and separate, no
case cited prohibits the enhancement.
Koch contends that when the Beretta was found on
October 12, 2001, the drug conspiracy was still ongoing. See
Def.’s Br. at 25. In fact, Koch states, while the conspiracy
may have been “taper[ing] off, . . . [l]aw enforcement
[nevertheless] found the remnants of the conspiracy when
they raided Mr.Koch’s home on October 12, 2001.” Def.’s
Reply Br. at 8. Accordingly, the first question is whether the
drug conspiracy ended on April 27 such that drugs found on
October 12 gave rise to a separate drug offense.
First, the jury found that the drug conspiracy ended on
April 27, 2001 after the shooting after Davis and Koch had a
falling out and all individuals involved went their separate
ways. Further, the jury’s finding is supported by sufficient

-- 4 of 9 --

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

-- 5 of 9 --

No. 02-6278 United States v. Koch 11
2Koch argues that the district court did not take these factors
sufficiently into acco unt and erred beca use the d eath and the injury were
neither intentional nor knowing. See Def.’s Br. at 19-21. The district
court, however, found that Koch “intended to create the dangerous,
emo tionally charged standoff that ensued following his premeditated,
boisterous, armed incursion to the very threshold of Justin D avis’ home.”
(App. 33) This indicates that the district court considered the factors
outlined in sections 5K 2.1 and 5K2 .2, such as Koch’s state of mind, in
making its finding. T his issue is also tied to the causation issue discussed
below.
3Here, Koch argues for a de novo review, while the government
insists on the abuse of discretion standard. The federal courts, including
the Sixth Circuit, employ both standards in departures from guidelines
depending on whether and to what extent the question is legal or factual.
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 .
the extent to which the offense level for the offense of
conviction . . . already reflects the risk of personal injury.” Id.
If a physical injury results, the court must examine similar
factors as in U.S.S.G. § 5K2.1, such as the defendant’s state
of mind or the manner in which the injury was caused, before
enhancing the sentence. See U.S.S.G. § 5K2.2. In addition,
the increase should be in proportion to “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.”2 Id.
We employ a de novo standard for reviewing a “district
court’s legal conclusions regarding the application of the
sentencing guidelines.” Miggins, 302 F.3d at 390.
Furthermore, the appellate court “review[s] a district court’s
decision to depart from the Guidelines sentencing range for
abuse of discretion.” United States v. Chance, 306 F.3d 356,
393 (6th Cir. 2002) (citation omitted).3
“Before a departure is permitted, certain aspects of the case
must be found unusual enough for it to fall outside the
12 United States v. Koch No. 02-6278
heartland of cases in the Guideline.” Koon, 518 U.S. at 98.
“To resolve this question, the district court must make a
refined assessment of the many facts bearing on the outcome,
informed by its vantage point and day-to-day experience in
criminal sentencing.” Id. On the other hand, a case outside
the “heartland” of cases “will be extremely rare.” U.S.S.G.
§ 5K2.0 cmt.
In challenging the six-level upward departure from the
guidelines, Koch first underlines the sentencing judge’s
statement, “I think the jury . . . cut Mr. Koch a break” on
count 5 where the jury acquitted him. See Def.’s Br. at 9.
Koch contends that by increasing the sentence, the judge
“effectively charged, convicted, and sentenced Mr. Koch for
Mr. Gibson’s death and Mr. O’Brien’s injuries without a
grand jury indictment or a trial.” Id. Koch further argues that
the ten-year mandatory minimum sentence under section
924(c) adequately takes into account the risk of “violence that
could result from the commission of the underlying offense.”
Id. at 13. Koch thus challenges the district court’s decision
that his case fell outside the heartland of cases covered by the
applicable guideline under Koon. See id. at 14.
Koch references cases that explain the reason for the
mandatory sentence under section 924(c) being the resultant
risk of violence when drugs and guns come together. For
example, in United States v. Zamora, the Ninth Circuit
explained that “the mandatory sentencing provisions of
section 924 exist because the possession of a gun during a
drug trafficking offense increases the risk of violence.” 37
F.3d 531, 533 (9th Cir. 1994) (citation omitted). Another
example is an armed robbery case where the Sixth Circuit
found that the applicable sentencing guideline adequately
took into consideration that bank robbers frequently discharge
firearms, and thereby struck down the enhancement. See
Def.’s Br. at 17 (discussing United States v. Bond, 22 F.3d
662 (6th Cir. 1994)).

-- 6 of 9 --

No. 02-6278 United States v. Koch 13
The government counters with three opinions where the
courts found that death or serious injury takes the offense
outside the heartland of cases covered by section 924(c) and
the applicable guideline. See Pl.’s Br. at 18-19. In United
States v. Scheetz, the sentencing court authorized a departure
for the discharge of a firearm during a conspiracy to distribute
marijuana (less than 50 kilograms) when a death and physical
injury resulted, even though the defendant’s culpability was
found to be “at the low end of the spectrum.” 293 F.3d 175,
191 (4th Cir. 2002). In United States v. Philiposian, 267 F.3d
214 (3d Cir. 2001), the court found that a two-level upward
departure for permanent injury was warranted when the nature
and extent of injuries (including psychological injuries) took
the case “outside the heartland” of “permanent or life
threatening injuries” in an aggravated assault charge for
causing permanent injury. Additionally, in Philiposian, the
defendant randomly picked a mail carrier as his victim in a
sniper attack with an AK-47, a high-capacity, semiautomatic
weapon. See 267 F.3d at 215. In United States v. Bazile, 30
Fed. Appx. 830, 2002 WL 203342 (10th Cir., Feb. 11, 2002),
the court upheld an upward departure in a section 924(c)
sentence when the defendant shot and physically injured two
victims.
To allow a departure from the guidelines, the first question
is whether a particular case falls outside the heartland of cases
(brought under and implicating 18 U.S.C. § 924(c) and
U.S.S.G. § 2K2.4(a)(2) (2001)), making it an “unusual” case.
Chance, 306 F.3d at 393 (citing Koon). The district court
may not depart from the guidelines if the case is a “heartland”
case. The second question is whether the special factor (such
as the existence of death or physical injury) is an
“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
14 United States v. Koch No. 02-6278
4In this opinion, only those parts of the Chance test that are pertinent
to this case are discussed.
present to a degree that makes the case different from the
ordinary case where the factor is present.” Id.4
Death and serious physical injury are “encouraged factors”
for enhancement under U.S.S.G. §§ 5K2.1 and 5K2.2. The
applicable sentencing guideline 2K2.4(a)(2) (2001), however,
points to section 924(c) without mentioning death or physical
injury. Section 924(c) in turn provides a mandatory minimum
for using, carrying, and discharging a firearm during a drug
offense, but does not indicate what the sentence should be if
a death or physical injury occurred.
Here, the district court stated that “[s]ince Section 2K2.4
provides no sort of enhancement for the physical injuries and
death that resulted from the defendant’s actions, the court
finds that this case is outside . . . the heartland of cases
covered by this guideline.” (App. 258A.) In arguing that this
case is within the heartland, Koch indicates that Zamora (and
other cases) explained that “the mandatory sentencing
provisions of section 924 exist because the possession of a
gun during a drug offense increases the risk of violence.”
37 F.3d at 533. The issue therefore is whether the section 924
mandatory minimum adequately takes into account the
possibility of violence.
There is no case cited by either party directly on point. In
the cases cited by Koch (Zamora and Bond) no death or
physical injury resulted. Here, the violence was not merely
risked, but it actually occurred, causing a death and a serious
injury. In the cases cited by the government (Scheetz,
Philiposian, and Bazile) on the other hand, the defendant was
the person who fired the shots that caused a death or physical

-- 7 of 9 --

No. 02-6278 United States v. Koch 15
5The government argues that Scheetz controls this case because the
defendant there did not fire the shot that led to the death of one victim.
However, the defendant in Sch eetz admitted that he fired shots at another
victim who w as injure d. Even though we find the Scheetz court’s
pronouncement on causation helpful in o ur ultimate decision to uphold
the departure, Scheetz cannot control this ca se because Koch did not fire
any of the shots that caused either the injury or the death.
injury.5 Koch, however, did not directly cause the death or
the injury here. Koch urges that there must be a “stronger
link [than found by the district court] between Koch’s conduct
and the death and physical injuries.” Def.’s Br. at 19 (citation
omitted). The district court explained its decision as follows:
Koch’s actions were the catalysts that set off the gun
battle that resulted in Bob Gibson’s death and Pat
O’Brien’s serious physical injuries. Although he may
not have fired the fatal shot, Robbie Koch no doubt
intended to create the dangerous, emotionally charged
standoff that ensued following his premeditated,
boisterous, armed incursion to the very threshold of
Justin Davis’ home. But for Mr. Koch’s aggressions, the
shootout would never have taken place.
(App. 33.)
In other words, the district court authorized the upward
departure because it found that Koch’s actions were the
“catalysts” that led to the death and the injury.
We agree. The district court’s enhancement was justified
by the facts of this case. But for Koch’s actions, the tragedy
at Davis’ house would never have taken place. Koch, who
was at the center of the drug conspiracy, was upset about the
prospect that his frontman Davis was cheating him. To
collect the money or to intimidate Davis or both Koch
apparently thought a show of force was necessary. To that
end, Koch recruited three other men to come with him to
Davis’ residence. Koch and the men took weapons with
16 United States v. Koch No. 02-6278
them. They arrived at Davis’ residence at dawn, startling the
inhabitants. Koch banged on the door, and demanded that
Davis and his roommate come out. As a result of Koch’s
actions, the inhabitants reached for their guns and armed
themselves. Even though Koch did not kill or injure anybody
directly, he is nevertheless responsible for the death and the
injury as the primary instigator of the violence that inevitably
ensued. The district court was correct that it should have
been reasonably foreseeable to him that his actions could lead
to an injury or even death.
Neither the applicable sentencing guideline nor section
924(c) adequately contemplates the events that took place at
Davis’ residence on April 27, 2001. Section 924(c) merely
prescribes a mandatory minimum for the risk of violence that
may result from carrying a firearm during a drug offense. Cf.
Zamora, 37 F.3d at 533. The mandatory minimum does not
preclude the imposition of a higher sentence when actual
violence occurs and individuals are killed or seriously hurt.
Because this case is outside the heartland of the cases
envisioned by section 924(c) and because Koch’s conduct led
to the death and physical injury, we sustain the upward
departure on Koch’s sentence. As in Scheetz, there is “no
basis for foreclosing a departure under U.S.S.G. § 5K2.1 or
U.S.S.G. § 5K2.2 when a defendant helps put into motion a
chain of events that risks serious injury or death, even when
an intent to harm is entirely absent and the defendant was not
directly responsible for the death.” 293 F.3d at 191.
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
found at sentencing guideline Section 2A2.2, aggravated
assault; Section 2B3.1, robbery; and Section 2B3.2, extortion
by force.” (App. 259.) In U.S.S.G. § 2A2.2 (b)(3)(C), a six-
level increase is provided for a “permanent or life-threatening
bodily injury.” This is two levels higher than the increase
level provided for “serious bodily injury.” In sections

-- 8 of 9 --

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.

-- 9 of 9 --