dissenting.
I respectfully dissent. In my view, Kenneth Blankenship’s counsel was ineffective at sentencing. On direct review of Blankenship’s conviction, this court recited the facts leading to the victim’s death.
Blankenship’s proffered evidence would tend to show that an intoxicated Kellick, accompanied by his son and two women, came to Blankenship’s trailer home after midnight, seeking the return of some money and threatening harm to Blankenship and his family if he did not pay. Blankenship took the threats of harm seriously because he knew Kellick to have a reputation for violence when he was intoxicated and to have a reputation for carrying a knife or razor in his possession. Blankenship went out to talk to Kellick. When the confrontation escalated, Blankenship returned to his bedroom in the trailer, put on his pants, and exited through the back door when Kellick was not paying any attention. Blankenship walked to his father’s nearby trailer, retrieved a shotgun, and returned to the yard to protect his family. Neither Blankenship nor his father had a telephone. The two men became involved in a scuffle as Kellick refused to leave and grabbed for the shotgun. The shotgun inadvertently discharged in the scuffle and killed Kellick.
United States v. Blankenship, 67 F.3d 673, 678 (8th Cir.1995).
We determined that under these facts, Blankenship was not entitled to the defense of justification. We did, however, determine that Blankenship and Kellick, the victim, became involved in a scuffle when Kellick refused to leave. We further noted that at that point Kellick grabbed for the shotgun, which was held by Blankenship, and the shotgun inadvertently discharged in the scuffle and killed Kellick. Under these circumstances, it was clear error for the district court to impose a sentence based on voluntary rather than involuntary manslaughter. The relevant statute provides:
Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:
Voluntary — Upon a sudden quarrel or heat of passion.
Involuntary — In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.
18 U.S.C. § 1112(a) (1984).
Here, Kellick was not killed upon a sudden quarrel or heat of passion. He was, as our opinion notes, killed during a scuffle in which Kellick attempted to take the shotgun from Blankenship’s hands. While I accept our earlier decision that a defense of justification was not justified, certainly the district court on sentencing could and should have ruled that the manslaughter was involuntary. This would have reduced the base offense level from 25 to 10 or 14.2 Either level would have resulted in a significantly lower sentence for Blankenship than that imposed by the district court.
I assume, for the purpose of this opinion, that the conduct may have been reckless because Blankenship went in the house and returned with the shotgun, but his actions certainly did not rise to the level of voluntary manslaughter when it is clear from our prior opinion that Kellick attempted to take the shotgun from Blankenship and was killed during the scuffle. Not only was it clear error for the district court to have ruled that Blankenship’s conduct amounted to voluntary *341manslaughter, but counsel was clearly ineffective for failing to assert this claim at the sentencing hearing. Finally, even if it be argued that Blankenship’s conduct amounted to voluntary manslaughter, counsel was clearly ineffective in not requesting that the district court depart downward.
I agree with the majority that the district court should have held a hearing on this matter, but would not be as charitable. My basic disagreement is with the majority’s assertion that no prejudice arises from counsel’s failure to raise a claim that has little likelihood of success on the merits. I believe the likelihood of success is great.
While my preference would be to have the district court sentence Blankenship for involuntary manslaughter, at the very least this case should be remanded with directions to grant a substantial downward departure.
. The difference between the two levels of involuntary manslaughter are defined in the sentencing guidelines as follows:
Involuntary Manslaughter
(a) Base Offense Level: (1) 10, if the conduct was criminally negligent; or
(2) 14, if the conduct was reckless.
U.S.S.G. § 2A1.4.