United States v. Damon Amedeo

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
_____________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-11252 May 28, 2004
_____________________ THOMAS K. KAHN
CLERK

D.C. Docket No. 02-80050-CR-DTKH

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

DAMON AMEDEO,

Defendant-Appellant.

_____________________

Appeal from the United States District Court
for the Southern District of Florida
_____________________

(May 28, 2004)

Before BLACK, BARKETT and STAHL*, Circuit Judges.

STAHL, Circuit Judge:

*
Honorable Norman H. Stahl, United States Circuit Judge for the First Circuit, sitting by
designation.
 Defendant-appellant Damon Amedeo appeals from his sentence following a

guilty plea to one count of distribution of cocaine to a person under twenty-one

years of age, in violation of 21 U.S.C. § 859(a). We hold that the district court

erred in upwardly departing from the Sentencing Guidelines, and remand for

further sentencing proceedings.

I. BACKGROUND

A. Factual history

Evidence presented at the sentencing hearing established the following: In

May, 2001, Amedeo met Douglas Rozelle III. At that time, Amedeo was a 29-

year-old attorney and Rozelle was an eighteen-year-old student. Rozelle’s father,

an attorney, had hired Amedeo to work at his law firm beginning the previous

month. After Rozelle's arrest for possession of marijuana and Xanax, Rozelle's

father arranged for Amedeo to represent his son. These charges resulted in

Rozelle's enrollment in a pretrial intervention program. Amedeo accompanied

Rozelle to his first drug treatment appointment, where the therapist informed

Amedeo that Rozelle had a “serious problem.”

Subsequently, Amedeo and Rozelle began spending a great deal of time

together. Rozelle’s father, aware of only some of the meetings, was reassured by

Amedeo that he would not allow young Rozelle to use drugs. Over the next

2
several months, however, Amedeo and Rozelle together used cocaine, marijuana,

and various pills. According to witnesses at the sentencing hearing, Rozelle often

used and distributed drugs in his college dorm, some of which were supplied by

Amedeo. Rozelle had independent sources as well. Several of Rozelle's friends,

all between the ages of nineteen and twenty-one, used marijuana with Amedeo and

Rozelle at Amedeo's apartment.

During the fall of 2001, Rozelle's parents, who were divorced, expressed

concern that their son was using drugs again. In particular, Rozelle's mother

suspected that Rozelle was drug-impaired when he and Amedeo visited her on

Thanksgiving. She told her ex-husband of her concerns, who in turn spoke to

Amedeo. Amedeo assured Rozelle's father than Rozelle was not using drugs. In

November, 2001, Rozelle was diagnosed with depression and was prescribed

Celexa.

In early January, 2002, Rozelle informed his father that he wanted nothing

further to do with Amedeo. Accordingly, Rozelle’s father asked Amedeo to cease

contact with Rozelle. Nonetheless, on January 5, 2002, Rozelle appeared at

Amedeo’s apartment after telling his mother he was going there to "appease"

Amedeo before a pretrial intervention meeting scheduled for that week. Two

friends of Amedeo, Charles Wilson and Anthony Costanzo, briefly were at the

3
apartment and testified that Rozelle was behaving erratically and appeared “pretty

wasted.” As they left Amedeo's apartment around 7:50 p.m., Amedeo said to them

that he "wanted to fuck [Rozelle]."

Sometime between 1:00 a.m and 7:00 a.m. the following morning, Rozelle

died of a drug overdose in Amedeo's apartment.

At around 10:15 a.m. on January 6, Amedeo left his apartment to meet

Wilson and Costanzo. Amedeo was in an agitated condition; he told them that he

and Rozelle had "partied hard" the night before and that Rozelle might be dead.

Amedeo also stated that he and Rozelle had had unprotected sex twice the

previous night and that Rozelle may have been asleep the second time.

After spending time at a restaurant and Wilson's residence, Amedeo,

Wilson, and Costanzo returned to Amedeo’s apartment at around 12:35 p.m. that

day. Amedeo and Costanzo cleaned up the apartment, hid drug paraphernalia and

took out the trash. However, Wilson testified that he does not recall any cleaning

taking place. Around 12:46, after attempting to wake Rozelle, Amedeo called

911. Paramedics and law enforcement arrived, and a preliminary investigation

into Rozelle’s death began.

That day, Detective Amy Sinnott arrived at Amedeo's apartment to

investigate Rozelle's death. Amedeo told Sinnott that he and Rozelle had sex,

4
after which Rozelle fell asleep in Amedeo’s bedroom. Later, Amedeo had anal

intercourse with Rozelle, during which Rozelle was breathing and may have said

Amedeo's name, but was "kind of out of it." At some point after 12:30, Amedeo

awoke to a wet spot in the bed. Concluding that Rozelle had urinated in the bed,

Amedeo tried unsuccessfully to wake him. Amedeo stated that he then moved

Rozelle to the floor and went to sleep in the other bedroom.

Amedeo consented in writing to a search of his apartment. In the master

bedroom, Sinnott found a cut straw containing white powder and a jar containing

marijuana. Licensed firearms were found locked in a case. Amedeo told Sinnott

that only he and Wilson were in the apartment when the body was found; he did

not reveal Costanzo's presence. Amedeo also did not reveal that Costanzo and

Wilson had visited the previous night, stating only that a law school friend had

stopped by in the afternoon. When Sinnott noted that there was no trash in the

apartment, Amedeo denied removing it before calling 911.

At some point after the police investigation began, Amedeo called Costanzo

and told him to say that he (Costanzo) was not in the apartment when Rozelle's

body was found.1 He also told Costanzo it was important to exaggerate the extent

1
The district court found that this was because Amedeo did not trust Costanzo as much as he
did his long-time friend Wilson.

5
of Amedeo's romantic relationship with Rozelle, to make the relationship sound

"that it was a little more than it really was."

On January 11, 2002, a federal search warrant was executed at Amedeo’s

apartment. Agents of the Bureau of Alcohol, Tobacco and Firearms seized six

firearms from the case discovered in the earlier search, as well as drugs and drug

paraphernalia. The search also yielded a videotape containing three segments.

The first segment was taped by Rozelle on the weekend of October 28, 2001, and

depicted a sexual encounter between Rozelle and a woman named Megan

Stepanek.2 The second segment was taped by Amedeo and showed him

performing oral sex on Rozelle, who appeared to be unconscious. The third

segment, also taped by Amedeo, showed him and Rozelle using drugs together on

or about November 11, 2001. They smoked marijuana and cocaine residue from a

bong and snorted powdered cocaine hydrochloride. It was the cocaine use

depicted in this segment that became the basis for Amedeo's offense of conviction.

The district court found that the second and third videotaped segments occurred on

the same night.

2
Stepanek was Rozelle's girlfriend at the time. She testified that she did not recall engaging
in the sex acts depicted on the videotape, and that at the time the tape was made, Rozelle had given
her an Ativan pill that he said belonged to Amedeo.

6
 Detective Sinnott searched Rozelle's mother's home, where Rozelle had

been living. She found drug paraphernalia, three prescription bottles of Celexa,

Xanax, marijuana and Ativan.

The toxicology report stated that Rozelle's death was a result of drug

overdose, specifically, "polydrug toxicity" resulting from cocaine, methadone,

Citralopam (Celexa) and Alprazolam (Xanax). The medical examiner who

performed the autopsy testified that death resulted from the interaction of all four

drugs, which combined to suppress Rozelle's central nervous system to the extent

that his lungs filled with fluid and his heart and lungs stopped functioning.

A forensic toxicologist testified that there was no active cocaine in Rozelle's

system; rather, there was cocaine metabolite, which reflected cocaine use at least

twelve hours, and possibly up to several days, before his death. Neither the

cocaine nor the Xanax, standing alone, was sufficient to cause death. The

methadone and the Celexa individually were consumed at "toxic" levels.

Nonetheless, neither expert testified unequivocally that either drug was

independently fatal.3 The forensic toxicologist testified that a small quantity of

3
The medical examiner offered somewhat contradictory testimony as to whether the
methadone was present at a level that alone would have caused Rozelle's death.

7
Lorezepam (Ativan) was found in Rozelle's blood, which was "a little bit at the

low end of the therapeutic range" rather than in the "toxic" range.

Amedeo's semen was found in Rozelle's underwear. Additional semen was

found in Rozelle's anal canal, but its source could not be determined. There was

no tearing or scarring of Rozelle's anus or rectum. The testimony at the sentencing

hearing indicated that the lack of trauma could have resulted either from the

absence of sexual assault (i.e., the sex was consensual) or from the relaxing effects

of the drugs on Rozelle's body.

B. Procedural history

Amedeo was arrested on February 7, 2002. He was charged in a nine-count

superceding indictment alleging one count of unlawful drug use while in

possession of a firearm, 21 U.S.C. § 922(g)(3); one count of distribution of

cocaine to a minor, 21 U.S.C. § 859; one count of cocaine distribution, 21 U.S.C.

§ 841; five counts of distribution of marijuana to a minor, 21 U.S.C. § 859; and

one count of possession with intent to distribute marijuana, 21 U.S.C. § 841.

Amedeo and the government entered a plea agreement in which Amedeo agreed to

plead guilty to the count of distributing cocaine to a minor, 21 U.S.C. § 859(a),

and the government agreed to drop the remaining charges.

8
 The procedural maneuvering leading up to the sentencing was unusually

complex. A Presentence Investigation Report (PSI) was issued, then repeatedly

revised. The government recommended a reduction to Amedeo's sentence based

on acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a). It also requested

enhancements on two grounds: (1) that Amedeo had abused his position of trust as

Rozelle’s attorney, pursuant to § 3B1.3; and (2) that Rozelle was a “vulnerable

victim” because of his prior drug problems, pursuant to § 3A1.1. Lastly, the

government recommended an upward departure pursuant to § 5K2.0 on the ground

that Amedeo distributed drugs to multiple minors. Pursuant to Burns v. United

States, 501 U.S. 129 (1991), the district court twice issued notices of intent to

consider additional grounds for upward departure. The sentencing hearing took

place over four days and involved multiple witnesses.

On February 13, 2003, the district court sentenced Amedeo to 216 months

of imprisonment and eight years of supervised release. It based this sentence on

an offense level of 37 and a criminal history category of I. The court increased the

sentence based on the abuse of trust and vulnerable victim grounds raised by the

government, and imposed an additional enhancement on the ground that Amedeo

obstructed justice by influencing witnesses, concealing evidence, and making false

statements, pursuant to § 3C1.1.

9
 Furthermore, the court departed upward on several grounds: (1) that

Amedeo committed the offense to facilitate a sexual assault on Rozelle, pursuant

to U.S.S.G. § 5K2.9; (2) that Amedeo's offense resulted in death, pursuant to §

5K2.1; (3) that he engaged in extreme conduct by failing to seek medical help for

Rozelle and by having unprotected sex despite his illness with hepatitis C,

pursuant to § 5K2.8; and (4) that Amedeo distributed drugs to multiple minors,

pursuant to § 5K2.0.4 The district court denied Amedeo’s request for a reduction

based on acceptance of responsibility pursuant to § 3E1.1(a), citing Amedeo’s

continued assertions of a consensual sexual relationship.

II. DISCUSSION

A. Applicable law: standard of review and relevant conduct

This case involves challenges to the length of Amedeo's sentence imposed

by the district court, pursuant both to enhancements and upward departures from

the Sentencing Guidelines.5 When appeal is taken from an enhancement, we

review de novo the district court's interpretation and application of the sentencing

4
The court noted that, had there been any error in its calculation as to the enhancements or
in applying §§ 5K2.0 or 5K2.8, the same offense level could have been reached by altering the extent
of the departures under §§ 5K2.1 and 5K2.9.
5
Adjustments and departures are "distinctly different concepts under the Guidelines.
Adjustments are changes to an offense level within the Guidelines. Departures, on the other hand,
are sentences imposed outside the Guidelines." United States v. Joetzki, 952 F.2d 1090, 1097 (9th
Cir. 1991).

10
guidelines. United States v. Lewis, 115 F.3d 1531, 1536 (11th Cir. 1997).

Specifically, "[i]n the context of applying enhancements to specific offense

characteristics, this Court has held that our review is de novo." United States v.

Barakat, 130 F.3d 1448, 1452 (11th Cir. 1997). The district court's factual

findings related to the imposition of sentencing enhancements, however, are

reviewed only for clear error. Id.

Our review of the district court's departures from the Guidelines is subject

to a slightly different standard. In 2003, Congress enacted the Prosecutorial

Remedies and Other Tools to end the Exploitation of Children Today Act of 2003

(PROTECT Act). Pub. L. No. 108-21, § 1, 117 Stat. 650 (2003). The PROTECT

Act altered the standard of review applied to most challenges to sentencing

departures. 18 U.S.C. § 3742. Under the Act, we review de novo the district

court's application of the Guidelines to facts in deciding whether a departure was

based on a factor that: (1) advanced the objectives of federal sentencing policy; (2)

was authorized under 18 U.S.C. § 3553(b) (detailing factors to be considered at

sentencing); and (3) was justified by the facts of the case. 18 U.S.C.A. § 3742(e);

United States v. Pressley, 345 F.3d 1205, 1209 n.1 (11th Cir. 2003). Otherwise,

we give "due deference" to the district court's application of the guidelines to the

facts. 18 U.S.C.A. § 3742(e). We also give "due regard to the opportunity of the

11
district court to judge the credibility of the witnesses," and we accept the court's

findings of fact unless they are clearly erroneous. Id.

We next address the district court's upward departures from the Guidelines

range. Before departing from the Guidelines, a district court must determine that

an aggravating factor exists that places the case outside of the Guidelines'

heartland. United States v. Melvin, 187 F.3d 1316, 1320 (11th Cir. 1999) (citing

Koon v. United States, 518 U.S. 81, 98 (1996)). Whether a case is sufficiently

unusual to fall outside of the heartland is determined largely by comparison with

other Guidelines cases. Id. "Because the district courts see so many Guidelines

cases, district courts have an institutional advantage over appellate courts in

determining whether a case is outside the heartland, and thus their decisions are

entitled to substantial deference." Id.

A court may depart on the basis of a factor enumerated in the Guidelines

unless the Guidelines already take the factor into account. Koon, 518 U.S. at 96.

If a factor is already taken into account by the applicable guideline, the court may

depart only if the factor is "present to an exceptional degree or in some other way

makes the case distinguishable from an ordinary case where the factor is present."

Id.

12
 In this case, adjudicating the upward departures depends heavily on

determining which of Amedeo's conduct properly should be considered for

sentencing purposes. The district court was faced with the difficult task of

delineating the relevant conduct pursuant to U.S.S.G. § 1B1.3. That section

provides, in relevant part, that adjustments shall be determined on the basis of:

(1)(A) all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the defendant;
****
(2) solely with respect to offenses of a character for which § 3D1.2(d)
would require grouping of multiple counts, all acts and omissions
described in subdivisions (1)(A) and (1)(B) above that were part of
the same course of conduct or common scheme or plan as the offense
of conviction;6 (3) all harm that resulted from the acts and omissions
specified in subsections (a)(1) and (a)(2) above, and all harm that was
the object of such acts and omissions . . .

We review the district court's application of § 1B1.3(a) to the facts for clear error.

United States v. White, 335 F.3d 1314, 1319 (11th Cir. 2003).

Here, the district court found that the events depicted on the videotape in

early November, the events around Rozelle's death in January, and the acts that

took place "in between" all constituted a single "common scheme or plan," and

thus were relevant conduct within the meaning of § 1B1.3. These acts, it stated,

6
Amedeo's offense of conviction, 21 U.S.C. § 859, is an offense for which § 3D1.2(d)
requires grouping of multiple counts.

13
were linked by Amedeo's ongoing motive: to provide incapacitating drugs to

Rozelle for the purpose of taking sexual advantage of him.

In assessing whether conduct is relevant for purposes of § 1B1.3, we look to

the "similarity, regularity, and temporal proximity" between the offense of

conviction and the uncharged conduct. United States v. Maxwell, 34 F.3d 1006,

1011 (11th Cir. 1994). "[W]e must consider 'whether there are distinctive

similarities between the offense of conviction and the remote conduct that signal

that they are part of a single course of conduct rather than isolated, unrelated

events that happen only to be similar in kind.'" Id. (quoting United States v.

Sykes, 7 F.3d 1331, 1336 (7th Cir. 1993)). The commentary to § 1B1.3 of the

Guidelines provides: "[I]n a drug distribution case, quantities and types of drugs

not specified in the count of conviction are to be included in determining the

offense level if they were part of the same course of conduct or part of a common

scheme or plan as the count of conviction."

The Guidelines commentary makes clear, however, that § 1B1.3 is designed

to take account of "a pattern of misconduct that cannot readily be broken into

discrete, identifiable units that are meaningful for purposes of sentencing."

U.S.S.G. § 1B1.3, cmt., background. Thus, "when illegal conduct does exist in

'discrete, identifiable units' apart from the offense of conviction, the Guidelines

14
anticipate a separate charge for such conduct." Maxwell, 34 F.3d at 1011 n.32

(quoting United States v. Hahn, 960 F.2d 903, 909 (9th Cir. 1992)) (internal

quotation marks omitted). Other circuits have noted that a preference for separate

charges facilitates a more uniform application of the Guidelines and minimizes

constitutional concerns. See, e.g., Hahn, 960 F.2d at 909; United States v. Wood,

924 F.2d 399, 404 (1st Cir. 1991) ("The goal of the provision, we think, is for the

sentence to reflect accurately the seriousness of the crime charged, but not to

impose a penalty for the charged crime based on unrelated criminal activity.").

We begin with considering the occasions on which Amedeo provided illegal

drugs to Rozelle. See Maxwell, 34 F.3d at 1011 (in conviction for conspiracy to

distribute dilaudid, provision of different drugs to different individuals was not

relevant conduct); United States v. Lawrence, 915 F.2d 402, 408 (8th Cir. 1990)

(finding defendant's cocaine and marijuana sales were part of same course of

conduct where defendant had at least one common customer for both types of

drugs); United States v. Santiago, 906 F.2d 867, 872-73 (2d Cir. 1990) (same

course of conduct found where defendant sold drugs to same purchaser). First,

Costanzo testified that he observed Rozelle and Amedeo smoke marijuana

together on a half-dozen or fewer occasions. He stated that it appeared that

Amedeo had provided the marijuana on some occasions, and that Rozelle also had

15
brought marijuana "a couple of times." Costanzo further testified that he saw

Rozelle and Amedeo consume cocaine together once or twice, but that he did not

know who supplied it.

Costanzo's friend Wilson also observed Amedeo and Rozelle use marijuana

together; on both occasions, Rozelle provided the marijuana. Wilson did not

witness any cocaine use on Rozelle's part.

Several other witnesses, high school and college friends of Rozelle, said

they participated in or observed shared marijuana use that included Rozelle and

Amedeo. This drug use took place in the summer and fall of 2001. The testimony

collectively indicated that both Rozelle and Amedeo, at different times, provided

the marijuana. These friends did not have knowledge of Amedeo providing

Rozelle with cocaine. Their testimony also established that Rozelle extensively

used marijuana, cocaine, Xanax, and other pills in high school, before he met

Amedeo, and in the college dormitory outside of Amedeo's presence.

Rozelle's college roommate testified that Rozelle stayed at Amedeo's

apartment on weekends and often returned with marijuana and occasionally pills.

Another college friend testified that Rozelle had a couple of different sources for

pills, including Amedeo.

16
 Megan Stepanek, Rozelle's girlfriend, testified that in late October she

smoked marijuana at Amedeo's apartment with Amedeo and Rozelle, and that both

men had supplied some of the drug. She also stated that Rozelle had given her an

Ativan pill that he said was Amedeo's, and that it made her lose her memory and

feel tired. Stepanek testified that Rozelle told her that sometimes he and Amedeo

used cocaine and ecstasy together. Moreover, on one occasion she saw Amedeo

give Rozelle money to buy marijuana.

Rozelle's mother testified that she suspected that Rozelle was "high" when

he and Amedeo visited her on Thanksgiving, and that she told her ex-husband of

her concerns. No specific drugs were referenced. One friend testified that he had

heard that Rozelle used cocaine around Thanksgiving, but did not link this use to

Amedeo.

Taking into account the applicable case law and the district court's findings,

we conclude that here, the relevant conduct is limited to those occasions on which

Amedeo provided pills and cocaine to Rozelle for the purpose of taking sexual

advantage of him.7 The district court found that circumstantial evidence

supporting this scheme included the testimony by one friend of Rozelle that

7
Whether the evidence established that Amedeo indeed did so is a question we address in
sections II(F-H), infra.

17
Rozelle had said that at unspecified times, Amedeo had given him unspecified

pills that had "knocked him out." The court also relied on Stepanek's testimony

that Rozelle told her that the Ativan he gave her several days earlier, on the

weekend of October 26-28, belonged to Amedeo. Thus, the court found, "the

evidence establishes that Mr. Amedeo fully understood that the combination of

these pills, Ativan, cocaine, ultimately had the effect of simply knocking the

recipient out . . .".

This common plan or scheme excludes most of the shared drug use, which

involved marijuana. The marijuana use took place with numerous different

individuals, and was not uniformly supplied by Amedeo. Rozelle often provided

the drug that he, Amedeo, and/or their friends smoked. More to the point, the

marijuana was not linked to what the district court deemed the motive behind

Amedeo's scheme: to take sexual advantage of Rozelle. The district court did not

find, and the record does not indicate, that Amedeo used marijuana to attempt to

incapacitate Rozelle.

Moreover, the marijuana distribution originally was charged separately in

the indictment in the form of five counts of distribution of marijuana to a minor,

21 U.S.C. § 859; these counts were dismissed as a part of Amedeo's plea bargain.

While we do not hold categorically that such separately charged conduct cannot be

18
deemed "relevant conduct" for sentencing purposes under U.S.S.G. § 1B1.3, it

does suggest, in these circumstances, that Amedeo's marijuana consumption with

minors was sufficiently distinct from the offense of conviction that it warranted a

separate charge. See Maxwell, 34 F.3d at 1011 n.32.

We now turn to the specific adjustments and departures that Amedeo

challenges.

B. Abuse of trust

Amedeo contends that the district court erred in enhancing his sentence two

levels for abuse of trust pursuant to U.S.S.G. § 3B1.3. The court stated that in the

event that this enhancement did not hold up on appeal, there was an "alternative

backup ground" for increasing the sentence: that the "factual scenario is so

extraordinary and unusual that . . . it clearly ought to be a legitimate basis for

departure," presumably under U.S.S.G. § 5K2.0.8

Section 3B1.3 provides, in relevant part: "If the defendant abused a position

of public or private trust, or used a special skill, in a manner that significantly

8
Section 5K2.0 permits upward departures "in the exceptional case in which there is present
a circumstance that the Commission has not identified in the guidelines but that nevertheless is
relevant to determining the appropriate sentence." At sentencing, the district court did not
specifically cite this provision, but its emphasis on the extraordinary nature of Amedeo's relationship
with Rozelle makes clear that § 5K2.0 is the relevant provision. Moreover, neither party disputes
that the district court intended to invoke this Guideline as an alternative holding.

19
facilitated the commission or concealment of the offense, increase by 2 levels."

The application note to this provision states, "For this enhancement to apply, the

position of public or private trust must have contributed in some significant way to

facilitating the commission or concealment of the offense." We have interpreted

the Guideline's reference to "the offense" to mean the offense of conviction.

Barakat, 130 F.3d at 1455.

The district court determined that Amedeo used the "facade" of the attorney-

client relationship to conceal his drug use with Rozelle. It held that in light of

Rozelle's age and dependence, Rozelle's parents had a relationship of private trust

with Amedeo in addition to and apart from the attorney-client relationship

between Rozelle and Amedeo.

Amedeo argues that enhancement under this provision was not appropriate

because Amedeo's status as Rozelle's lawyer did not facilitate the drug crime

depicted on the video. Amedeo was merely one of several friends with whom

Rozelle shared drug use. Moreover, he argues, the trust at issue here was limited

to his attorney-client relationship with Rozelle. That relationship was not

breached, he contends, because he capably represented Rozelle in the proceedings

for which he had been retained.

20
 This case does not bear easy application of the examples provided in the

commentary to the Guidelines. See U.S.S.G. § 3B1.3 n.1. Amedeo's relationship

with Rozelle and his parents was qualitatively different, though certainly no less

troubling, than that of an attorney serving as guardian who embezzles his client's

funds. See id.

We need not decide this issue, however. Amedeo posed no timely challenge

to the district court's alternative finding, that Amedeo's conduct removed this

situation from the heartland of cases involving drug distribution to a minor. See

U.S.S.G. § 5K2.0. Accordingly, that argument is waived. Tallahassee Mem'l

Reg'l Med. Ctr. v. Bowen, 815 F.2d 1435, 1446 n. 16 (11th Cir. 1987).9 We agree

that the circumstances of Amedeo's relationship with Rozelle and his family are

far removed from the typical drug distributer-customer profile. Extraordinary

facts include Amedeo's participation in and concealment of the same type of

criminal conduct for which he was retained to defend Rozelle; his intertwined

professional and social relationships with Rozelle and Rozelle's parents; and, not

least, the repeated misrepresentations to Rozelle's parents concerning Rozelle's

9
Amedeo does contest this point in his reply brief, to no avail. See Tallahassee Mem'l Reg'l
Med. Ctr., 815 F.2d at 1446 n. 16 ("[A] party cannot argue an issue in its reply brief that was not
preserved in its initial brief.").

21
(and his own) substance abuse. We see no reason to disturb the district court's

alternative ruling, and we affirm the enhancement pursuant to § 5K2.0.

C. Vulnerable victim

The district court applied a two-level enhancement to Amedeo's sentence on

the ground that he knew or should have known that Rozelle was a vulnerable

victim, pursuant to U.S.S.G. § 3A1.1(b)(1). It found that Rozelle was predisposed

to accept incapacitating drugs, that Amedeo knew of this weakness, and that

Amedeo gave him such drugs to render him physically vulnerable to a

nonconsensual sexual encounter.

The district court's application of § 3A1.1 presents a mixed question of law

and fact, which we review de novo. United States v. Arguedas, 86 F.3d 1054,

1057 (11th Cir. 1996). "The district court's determination of a victim's

'vulnerability' is, however, essentially a factual finding to which we give due

deference." Id.

The commentary to § 3A1.1(b) provides that that subsection applies to

"offenses involving an unusually vulnerable victim in which the defendant knows

or should have known of the victim's unusual vulnerability." It cites the examples

of a fraud case in which the defendant marketed an ineffective cancer cure or a

22
robbery case in which the defendant selected a disabled victim. U.S.S.G. §

3A1.1(b) cmt. n.2.

Applying due deference to the court's initial finding of Rozelle's

vulnerability, we agree that there was sufficient evidence to support the conclusion

that Rozelle's drug addiction rendered him unusually vulnerable to Amedeo's

supplying him cocaine. Cf. United States v. Evans, 272 F.3d 1069, 1095 (8th Cir.

2001) (applying § 3A1.1 where defendant encouraged and contributed to drug

addiction in Mann Act case); United States v. Bragg, 207 F.3d 394, 399 (7th Cir.

2000) (applying § 3A1.1 where defendant employer fraudulently recruited victims

from homeless shelter, where possibly they were seeking help with their drug

problems).10 Amedeo, by virtue of his representation of Rozelle in the drug-

related legal matters and his conversation with Rozelle's therapist (who informed

Amedeo that Rozelle had a “serious problem”), certainly was aware of this

10
We do not suggest that every drug addict is a vulnerable victim within the meaning of §
3A1.1. See United States v. Pavao, 948 F.2d 74, 78 (1st Cir. 1991), and cases cited. Applying this
enhancement is highly fact-specific and must take into account the totality of the circumstances.
United States v. Frank, 247 F.3d 1257, 1260 (11th Cir. 2001). In this case, the unusual and
disturbing nature of Amedeo's relationship with Rozelle – encompassing both legal representation
on drug charges and illegal drug use – removes this case from the ordinary. Cf. Pavao, 948 F.2d at
78-79 ("individual facts about [the victim] . . . combined with those of the crime" supported
vulnerable victim finding).

23
predisposition.11 Accordingly, we affirm this sentence enhancement, albeit on

somewhat different grounds than the district court.

D. Obstruction of Justice

Next, Amedeo challenges the district court's imposition of a two-level

upward adjustment for obstruction of justice pursuant to U.S.S.G. § 3C1.1. We

recently explained the different levels of deference accorded a district court's

application of this enhancement. United States v. Banks, 347 F.3d 1266, 1268-69

(11th Cir. 2003) (citing United States v. Williams, 340 F.3d 1231, 1240-41 (11th

Cir. 2003)). Where the district court must make a particularized assessment of the

credibility or demeanor of the defendant, we accord special deference to the

district court's credibility determinations, and we review for clear error. Id. at

1269, and cases cited. "Conversely, where the defendant's credibility or demeanor

is not at issue, and the defendant's conduct can be clearly set forth in detailed,

non-conclusory findings, we review de novo the district court's application of the

enhancement." Id. The latter standard of review applies to this case.

11
For the reasons discussed in section II(F), infra, we do not base our holding on the district
court's determination that Amedeo deliberately rendered Rozelle vulnerable to sexual assault by
administering drugs. The sentencing enhancement pursuant to § 3A1.1 can be affirmed solely on
the basis of the district court's other findings.

24
 Section 3C1.1 provides, in relevant part, that an upward adjustment of two

levels is appropriate where the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice during the course of

the investigation, prosecution, or sentencing of the instant offense of conviction.

U.S.S.G. § 3C1.1. The obstructive conduct must relate to (i) the defendant's

offense of conviction and any relevant conduct or (ii) a closely related offense. Id.

Potentially relevant examples of obstructive conduct include:

(a) threatening, intimidating, or otherwise unlawfully influencing a . .
. witness . . . directly or indirectly, or attempting to do so;
****
(d) destroying or concealing or directing or procuring another person
to destroy or conceal evidence that is material to an official
investigation or judicial proceeding (e.g., shredding a document or
destroying ledgers upon learning that an official investigation has
commenced or is about to commence), or attempting to do so;
****
(g) providing a materially false statement to a law enforcement officer
that significantly obstructed or impeded the official investigation or
prosecution of the instant offense. . . .

Id. at cmt. 4.

The district court found that after Amedeo understood that Rozelle had died,

he "set into motion a well thought out plan to obstruct justice in this case." In its

findings, it pointed to the following pieces of evidence: First, Amedeo

misinformed the police that he was in a romantic relationship with Rozelle, and he

25
requested that Costanzo lie to support this claim if interviewed by the police.

Second, when Costanzo, Wilson, and Amedeo returned to Amedeo's apartment,

they "sanitized" it by washing cocaine from the counter, removing trash, and

hiding drug paraphernalia. Third, Amedeo lied, and asked Costanzo to lie, about

Costanzo's presence in the apartment. Fourth, Amedeo lied to the police about

whether the trash had been collected and thrown away. The district court also

found that the effort to obstruct justice continued through the sentencing hearing,

in that Amedeo stuck to his story about being in a consensual sexual relationship

with Rozelle in order to "cover up and negate" the seriousness of the crime.12

As an initial matter, we consider whether any of the incidents described

supra are of the nature of obstruction of justice as set forth in § 3C1.1. At a

minimum, it appears that Amedeo's urging Costanzo to lie about his presence in

the apartment and misrepresent his relationship with Rozelle to the police could be

12
Later in the sentencing hearing, the district court appeared to focus solely on Amedeo's
misrepresentations to Officer Sinnott. See U.S.S.G. § 3C1.1, cmt. 4(g). We are skeptical that these
statements suffice to ground the enhancement in light of the requirement that a district court must
explain how a misrepresentation significantly obstructed or impeded the investigation or prosecution
of the offense. United States v. Uscinski, --- F.3d ----, (NO. 03-11377), 2004 WL 1066605, at *2
(11th Cir. May 12, 2004). Although here the district court expressly found that Amedeo's
misrepresentations "did, in fact, obstruct the investigation," it did not explain how they did so. Nor
is the obstruction apparent from the record. See id. Accordingly, we decline to base Amedeo's
enhancement on his misrepresentations to Sinnott. We may affirm the enhancement on other
grounds revealed by the record, however. See Powers v. United States, 996 F.2d 1121, 1123-24
(11th Cir. 1993).

26
deemed an unlawful attempt to "unlawfully influenc[e]" a witness within the

meaning of § 3C1.1, cmt. 4(a).13 While the Guidelines commentary does not

define "unlawful influence," our cases have applied this provision under

reasonably comparable circumstances. See, e.g., United States v. Rudisill, 187

F.3d 1260, 1263-64 (11th Cir. 1999) (defendant encouraged co-defendant and

potential witness to flee from law enforcement authorities); United States v.

Garcia, 13 F.3d 1464, 1471 (11th Cir. 1994) (defendant asked witness not to

speak with FBI).

Amedeo contends that the conduct that the district court deemed obstructive

took place after Rozelle's death and before the videotape was discovered. He

contends that there is no evidence that he obstructed the investigation of the

instant offense of conviction, i.e. the distribution of the line of cocaine to Rozelle,

because that investigation did not begin until after the discovery of the videotape

several days later. In other words, he contends that the investigation into Rozelle's

death should be treated as distinct from the investigation of drug use that ensued

after the videotape was discovered and that led to his conviction.14

13
Accordingly, we need not reach the question of whether the other conduct referenced by
the district court constituted obstruction of justice.
14
The court explicitly declined to take a position on the question of whether application of
§ 3C1.1 is appropriate where the defendant's acts of obstruction take place at a time that precedes
an official investigation, but "[w]hen a defendant understands that a police investigation is about to

27
 The factual record does not pinpoint the timing of Amedeo's relevant

statements to Costanzo, other than that they occurred after January 6. Even if

these statements did precede the discovery of the videotape, we think that under

the factual circumstances presented here, the distinction between investigations is

artificial and inapt. Apposite cases from other circuits demonstrate that conduct

occurring before a formal investigation into the offense of conviction may support

a § 3C1.1 enhancement if it foreseeably relates to that offense. In United States v.

Norman, 129 F.3d 1393 (10th Cir. 1997), the defendant caused a car accident, and

while awaiting the police, attempted to conceal drugs. Id. at 1396. Eventually he

was convicted of drug and firearms offenses, and argued against the application of

§ 3C1.1 on the ground that "the only investigation he anticipated was an unrelated

investigation of the car accident." Id. at 1399. The court disagreed, holding that a

car accident investigation routinely involves inquiries into whether either driver

was "under the influence" and assessment of cars' locations and conditions, as well

as possible inventorying of cars' contents. Id. It concluded that the defendant's

actions were "sufficiently related to the offense for which he was ultimately

convicted." Id.

be implemented."

28
 The Eighth Circuit upheld a § 3C1.1 adjustment under similar

circumstances. United States v. Dortch, 923 F.2d 629 (8th Cir. 1991). In Dortch,

the defendant threw cocaine out of the passenger window after being stopped for a

traffic offense. Id. at 631. The court rejected his argument that the offense under

investigation at the time of his conduct was merely a traffic violation, not a drug

offense, noting that "[t]he offense of conviction may or may not be the offense

which initially attracted the attention of the police." Id. at 632, and cases cited.

See also United States v. Gacnik, 50 F.3d 848, 852 (10th Cir. 1995) (criticizing

Dortch holding as too broad, but acknowledging that § 3C1.1 enhancement is

appropriate where conduct relied upon to support enhancement relates to crime of

conviction).

Similarly, the initial matter investigated related directly and foreseeably to

the offense of conviction in this case. Detective Sinnott searched Amedeo's

apartment and interviewed him in the context of investigating the cause of

Rozelle's death. It was reasonably foreseeable that such an investigation would

encompass illegal drug use, especially because Sinnott almost immediately

discovered evidence of drugs and drug paraphernalia in the apartment. Moreover,

given that Rozelle died in Amedeo's apartment, it is logical that the investigation

into the death would encompass the relationship between the two men and the

29
presence of any other potential witnesses. Surely someone with Amedeo's

experience as a criminal defense attorney would foresee the scope of the

investigation into Rozelle's death. Indeed, Amedeo's instructions to Costanzo

indicate that Amedeo anticipated the very direction of the investigation.

Accordingly, we conclude that the enhancement pursuant to § 3C1.1 was proper.

E. Acceptance of Responsibility

Next, Amedeo contends that the district court erroneously deprived him of a

three-level downward adjustment for acceptance of responsibility. U.S.S.G. §

3E1.1(a) provides: "If the defendant clearly demonstrates acceptance of

responsibility for his offense, decrease the offense level by 2 levels." Moreover,

the offense level may be decreased by an additional level

if the defendant qualifies for a decrease under subsection (a), the
offense level determined prior to the operation of subsection (a) is
level 16 or greater, and upon motion of the government stating that
the defendant has assisted authorities in the investigation or
prosecution of his own misconduct by timely notifying authorities of
his intention to enter a plea of guilty, thereby permitting the
government to avoid preparing for trial and permitting the
government and the court to allocate their resources efficiently . . .

Id. at § 3B1.1(b).

We review the district court's determination of acceptance of responsibility

only for clear error. United States v. Dodd, 111 F.3d 867, 870 (11th Cir. 1997).

30
"A district court's determination that a defendant is not entitled to acceptance of

responsibility will not be set aside unless the facts in the record clearly establish

that a defendant has accepted personal responsibility." United States v. Sawyer,

180 F.3d 1319, 1323 (11th Cir. 1999).

The Guidelines provide, "Conduct resulting in an enhancement under §

3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates

that the defendant has not accepted responsibility for his criminal conduct."

U.S.S.G. § 3E1.1, cmt. n.4; see also Arguedas, 86 F.3d at 1059-60 (adjustment for

acceptance of responsibility not appropriate where defendant repeatedly made

materially false statements to authorities and district court, resulting in

enhancement for obstruction of justice). In light of our affirmance of the

enhancement for obstruction of justice, Amedeo would be entitled to an

acceptance of responsibility adjustment only if this were an extraordinary case. Id.

at § 3C1.1, cmt. n.4.

The district court explicitly found that this case was not exceptional as

compared to other cases involving obstruction of justice, and denied Amedeo's

motion for a downward adjustment. It noted that the misrepresentations

concerning Amedeo's relationship with Rozelle were "thoughtfully conceived and

31
. . . purposefully implemented, so much so that I find it has continued right up

until the time of sentencing."

In light of these findings and our standard of review, we find no basis for

upsetting the district court's decision on this point. We affirm the denial of a

downward adjustment pursuant to U.S.S.G. § 3E1.1(a).

F. Facilitating commission of another offense

The first basis on which the district court upwardly departed was the fact

that the offense of conviction was committed to facilitate a sexual assault on

Rozelle, pursuant to U.S.S.G § 5K2.9. That section provides, "If the defendant

committed the offense in order to facilitate or conceal the commission of another

offense, the court may increase the sentence above the guideline range to reflect

the actual seriousness of the defendant's conduct." Amedeo contests the court's

ten-level upward departure.

The district court found that Amedeo gave Rozelle Ativan in combination

with cocaine in order to "knock [him] out" so as to "achiev[e] the end goal of

having a nonconsensual sexual encounter," and that this happened at least twice:

on the date of the offense of conviction, and several weeks later at the time of

Rozelle's death.15 More specifically, the court found that the offense of

15
As discussed infra, the court based its departure solely on the November events.

32
conviction, on November 11, 2001, "was, in fact, committed for the purpose of

facilitating . . . a crime of sexual assault . . . I am prepared to make this finding

beyond a reasonable doubt, and I do so because this is reflected on the tape that is

in evidence, and there is no question as to what is shown on that tape."

We affirm the court's finding that the sexual encounter depicted on the

videotape was not consensual. Rozelle appears to be unconscious, and Amedeo's

conduct during that video segment indicates an intention to keep Rozelle unaware

of the sexual activity. Even if, as Amedeo insists, he and Rozelle had a romantic

relationship, this does not preclude an unlawful assault if one party was

unconscious and unable to consent. Accordingly, we affirm the finding that

Amedeo sexually assaulted Rozelle in the videotaped encounter.

The district court clearly erred, however, in concluding that the offense of

conviction was committed to facilitate the sexual assault. This conclusion rests

heavily on the district court's finding that the second and third segments of the

videotape – that is, the oral sex and the marijuana and cocaine use – occurred on

the same evening. This finding does not appear to be supported by the evidence.

First, in the segment depicting the sexual assault, Amedeo and Rozelle are wearing

different clothes than in the segment depicting the drug use, indicating that these

events took place at different times. In the sexual assault segment, Rozelle and

33
Amedeo are wearing jeans. In the drug-use segment, Rozelle is wearing shorts

and a T-shirt, and Amedeo is wearing shorts and a tank top. If, as the district court

found, Amedeo gave Rozelle drugs in order to "knock him out," it seems highly

implausible that Rozelle would have changed his clothes – or that Amedeo would

have put him, while unconscious, into different clothes – prior to the assault.

Second, nothing on the videotape itself, i.e. a counter or a time/date stamp,

establishes or even suggests the temporal proximity that the court found as fact.

The date of the offense of conviction, November 11, 2001, was established by

Amedeo's verbal remarks during the drug-use segment. There is no verbal or other

indication of the time or date of the preceding segment.

Indeed, the sequence of the videotape segments indicates that the sexual

encounter occurred before the cocaine use that underlies the conviction.

Moreover, there was no evidence that any Ativan, Xanax or other pills were used

at the time of the videotaped encounter, much less that Amedeo gave them to

Rozelle to facilitate the sexual assault.

In evaluating this evidence, as the government urges, we take into

consideration the events of January 5-6. The January evidence as to Amedeo's

sexual contact with an unconscious Rozelle, coupled with his statements to his

friends before and after Rozelle's death, supports the finding that Amedeo sexually

34
assaulted Rozelle in November. It does not, however, overcome the lack of

evidence tying the November sexual assault to the provision of pills and cocaine.

The district court held as a matter of law that a § 5K2.9 upward departure

can be premised only on the offense of conviction, not on relevant conduct. Thus,

its departure pursuant to this section was based solely on its findings that the

cocaine distribution depicted on the videotape occurring on or about November 11

was to facilitate the sexual assault also shown on the videotape. The government

contends that relevant conduct also may be the basis for application of § 5K2.9.

Accordingly, it argues, we alternatively could sustain the upward departure on the

district court's findings that Amedeo used cocaine and Ativan to render Rozelle

unconscious so as to sexually assault him on January 5-6.

Whether a departure under § 5K2.1 can be premised on relevant conduct is a

legal question for which we have little guidance. We need not resolve it, however,

because our conclusion that there was insufficient evidence to find that Amedeo

used cocaine and Ativan to sexually assault Rozelle in November precludes a

"common plan or scheme" that would encompass the January events. Without an

anchor to the offense of conviction, the government is left only with distinct,

unrelated conduct for which separate charges should have been brought.

Accordingly, we do not consider Amedeo's conduct on January 5-6 -- even if did

35
involve distributing cocaine and Ativan for the purpose of committing another

offense -- to be relevant within the meaning of U.S.S.G. § 1B1.3.

G. Resulting death

Amedeo also argues that the district court erred in applying a four-level

upward departure on the ground that the offense of conviction resulted in death

pursuant to U.S.S.G. § 5K2.1. That section provides, "If death resulted, the court

may increase the sentence above the authorized guideline range."16 It goes on to

explain, in relevant part:

Loss of life does not automatically suggest a sentence at or near the
statutory maximum. The sentencing judge must give consideration to
matters that would normally distinguish among levels of homicide,
such as the defendant's state of mind and the degree of planning or
preparation. Other appropriate factors are whether multiple deaths
resulted, and the means by which life was taken. The extent of the
increase should depend on the dangerousness of the defendant's
conduct, the extent to which death or serious injury was intended or
knowingly risked, and the extent to which the offense level for the
offense of conviction, as determined by the other Chapter Two
guidelines, already reflects the risk of personal injury.

U.S.S.G. § 5K2.1.

16
At oral argument, the government alternatively contended that even if section 5K2.1 does
not apply, Rozelle's death was "resulting harm" and hence should be taken into account for
sentencing purposes under the relevant conduct provisions. See § 1B1.3(a)(1)(3)(sentencing shall
include consideration of "all harm that resulted from" relevant conduct). This argument was not set
forth in the government's brief, and hence is not preserved. See Flanigan's Enterprises, Inc. of
Georgia v. Fulton County, 242 F.3d 976, 987 n.16 (11th Cir. 2001). In any event, our holding as to
the limitations on relevant conduct in this case precludes the government's position.

36
 Rozelle's death in January did not directly result, of course, from the

conduct involved in the offense of conviction, which took place two full months

earlier. The district court swept Rozelle's death into the ambit of Amedeo's

sentence by invoking the relevant conduct provisions at U.S.S.G. § 1B1.3(2). See

United States v. Purchess, 107 F.3d 1261, 1271 (7th Cir. 1997) ("an upward

departure under section 5K2.1 may be based on harm resulting from relevant

conduct as opposed to conduct comprising the offense of conviction"), and cases

cited. The court found that Amedeo supplied Ativan and cocaine to Rozelle that

"contributed substantially" to Rozelle's death on January 5-6. Hence, it concluded

that death resulted from Amedeo's relevant conduct, which was the common

scheme or plan to provide pills and cocaine to take sexual advantage of Rozelle.

For the reasons discussed supra, section II(F), we cannot affirm the

conclusion that Rozelle's conduct on January 5-6 involved a "same course of

conduct or common scheme or plan as the offense of conviction." Accordingly,

the relevant conduct doctrine does not permit Amedeo's sentence to encompass the

events of January 5-6. We do not suggest that Amedeo could not be criminally

liable had he faced separate charges in connection with Rozelle's death. We

simply hold that Amedeo's offense of conviction did not encompass Rozelle's

death for sentencing purposes.

37
H. Upward departure under § 5K2.0: multiple minors

Pursuant to U.S.S.G. § 5K2.0, a district court may upwardly depart if the

case is atypical. Such departures are "reserved for 'unusual' cases where there is

something atypical about the defendant or the circumstances surrounding the

commission of the crime which significantly differ from the normal or 'heartland'

conduct in the commission of the crime." United States v. Gonzalez-Lopez, 911

F.2d 542, 549 (11th Cir. 1990) (quoting United States v. Williams, 891 F.2d 962,

964 (1st Cir. 1989)).

The district court departed on the ground that Amedeo had engaged in drug

use with multiple minors. Specifically, it found: "In addition to making his home

available to Mr. Rozelle, Mr. Amedeo made his home available to other young

adults, that is people between the age of 18 and 21, to whom he distributed drugs,

illegal drugs." It then concluded that a two-level departure was justified based on

"the number of people involved, the age of the people, the timing, the ready

accessibility of the drugs and so on."

Here, we begin our analysis by examining § 2D1.2, the guideline applicable

to Amedeo's offense of conviction, 21 U.S.C. § 859. The base offense level is

determined by the quantity of drugs distributed; it is enhanced if the drug was

distributed to an underaged person. It does not, however, take into consideration

38
the number of underaged victims. Accordingly, the relevant guideline does not

take into account at least some of the circumstances upon which the district court

based its conclusion.17

For the reasons explained supra, we hold that the marijuana smoking with

minors other than Rozelle was not relevant conduct and thus should not be

incorporated into Amedeo's sentence. None of the minors at issue here consumed

cocaine, the drug that formed the offense of conviction. As discussed supra, the

characteristics of the marijuana use with Rozelle's friends differed materially from

the cocaine use that Rozelle and Amedeo engaged in, and it appears that it was the

basis for a separate count in the indictment.

I. Upward departure under § 5K2.8: extreme conduct

Amedeo also contests the district court's one-level upward departure for

"extreme conduct," in this case Amedeo's unprotected sexual contact with Rozelle

during his treatment for hepatitis C.18

17
Even if a factor, such as age, is already taken into account by the applicable guideline, the
court still may depart if the factor is "present to an exceptional degree or in some other way makes
the case distinguishable from an ordinary case where the factor is present." Koon, 518 U.S. at 96.
The district court did not make specific findings or otherwise indicate it was enhancing Amedeo's
sentence on this basis, however. It simply stated, "I find in this case that the distribution of drugs
to people under the age of 21 is not a factor considered by the guidelines."
18
At sentencing, the district court also applied § 5K2.8 based on Amedeo's failure to call
emergency services after Rozelle was unconscious. Amedeo does not appeal from this departure.

39
 Section 5K2.8 allows upward departure "[i]f the defendant's conduct was

unusually heinous, cruel, brutal, or degrading to the victim." We have affirmed

use of this enhancement where an HIV-infected adult defendant engaged in

numerous sex acts with a fifteen-year-old. United States v. Blas, 360 F.3d 1268,

1273-74 (11th Cir. 2004) (affirming departure on the basis of both §§ 5K2.8 and

5K2.0).

In this case, however, we have held that Amedeo's sexual encounters with

Rozelle on January 5-6 are beyond the relevant scope of conduct for sentencing

purposes. Hence, the enhancement cannot apply.

One final note: At sentencing, the district court stated that even if it erred in

its calculations as to any of the enhancements or the departures pursuant to §§

5K2.0 or 5K2.8, the same offense level could have been reached by applying

departures under §§ 5K2.1 and 5K2.9. Since we vacate the upward departures that

were applied pursuant to §§ 5K2.1 and 5K2.9, those provisions cannot provide an

alternative basis for the sentence. The district court therefore must recalculate the

sentence in accord with this opinion.

III. CONCLUSION

This is a difficult case, both in its legal complexity and its tragic factual

setting. It is clear the district court conducted the sentencing proceedings with the

40
utmost care and sensitivity to the parties, and grappled rigorously and

conscientiously with the challenging issues presented. Our opinion today vacates

the upward departures premised on the defendant's conduct that fell beyond the

appropriate scope of sentencing, but is not intended to condone or minimize that

conduct.

AFFIRMED in part, VACATED in part, and REMANDED for further

proceedings consistent with this opinion.

41