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May 19, 2005.


The opinion of the court was delivered by: MALCOLM MUIR, Senior District Judge



On December 11, 2003, a Grand Jury sitting in Williamsport returned a four-count Indictment charging Jesse L. Sparks and Ishmael Ford-Bey with several offenses relating to the assault on another inmate. On April 8, 2004, a Superseding Indictment was filed. On August 20, 2004, Sparks entered a plea of guilty to Count 3 of the Superseding Indictment which charged him with assault resulting in serious bodily injury. The victim of the assault was another inmate, Rico Woodland. A presentence report and addendum thereto were prepared and submitted to the court on December 30, 2004.

  The presentence report revealed the following about the assault victim's condition:
5. "Woodland appeared to have been beaten and kicked about the head and upper body resulting in massive swelling of his face and head. . . .
6. "When discovered Woodland was not breathing properly. As a consequence, to keep Woodland's airway open, medical personnel at FCI-Allenwood began intubation procedures. Woodland was life-flighted by helicopter to Geisinger Medical Center Trauma Unit, and placed in intensive care. Woodland was eventually stabilized and regained the ability to breath unassisted. Woodland was ultimately transferred to a Bureau of Prisons medical facility in Fort Worth, Texas, where he is currently housed for full-time care and medical treatment.
7. "Although Woodland has recovered from the initial vegetative state he was in, he only understands simple words, can only say a few words, and cannot engage in intelligent conversation. While Woodland has limited use of his right arm, he remains bed-ridden and is tube fed. His prognosis is that he will never be able to function without assistance. . . . ."
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Victim Impact Statement
11. As noted, the victims injuries were so severe that he is not able to engage in intelligent conversation. Expenses related to his medical care are ongoing and paid by the Bureau of Prisons. The Bureau of Prisons advised that the victim was hospitalized at Geisinger Medical Center from October 15, 2002, to December 13, 2002. Expenses incurred during that time totaled $539,261.01. . . .
The presentence report further reveals that the statutory maximum is 10 years imprisonment, the total offense level is 21, the criminal history category is III and the advisory guideline imprisonment range is 46 to 57 months. Because the offense occurred on October 15, 2002, the Probation Officer utilized the Guidelines Manual that became effective on November 1, 2001. Application of the Guidelines Manual that became effective November 1, 2004, would result in an advisory guideline range of 51 to 63 months.

  In arriving at the total offense level the Probation Officer in paragraph 16 of the presentence report adjusted upward the base offense level of 15 by 4 levels pursuant to U.S.S.G. § 2A2.2(b)(2)(B) because "the evidence indicates that the defendant used his shod feet as dangerous weapons." There was also a 5-level upward adjustment pursuant to U.S.S.G. § 2A2.2(b)(3)(C) set forth in paragraph 17 of the presentence report because the victim sustained permanent or life threatening bodily injury.*fn1

  On January 14, 2005, we issued an order which (1) advised Sparks that in light of United States v. Booker, 125 S.Ct. 738 (Jan. 12, 2005) we were considering imposing a sentence substantially above the advisory guideline range and (2) provided Sparks an opportunity to file a motion to withdraw his guilty plea by February 16, 2005. Sparks did not file such a motion.

  A presentence conference was held on February 22, 2005, attended by assistant United States attorney Samuelson, defense counsel Morris and Probation Officer Eric Noll at which time defense counsel reported that there was an objection to paragraph 16 of the presentence report.

  It was agreed and the court so ordered that Sparks would file a brief in support of his objection within two weeks, that the Government would obtain a current medical appraisal of the victim and provide a copy to defense counsel within one month, defense counsel would have 2 weeks to consider the appraisal and an additional 2 weeks to object thereto, and that the Government would file a motion for upward departure from the advisory guidelines after receiving the appraisal of the victim.

  On March 8, 2005, we received a letter from counsel for Sparks which states in relevant part as follows:
After a thorough review of the relevant case law and the appropriate Guideline sections, undersigned counsel is withdrawing the objection to paragraph 16 in the Pre-Sentence Report.
Also, on March 8, 2005, we received from the Government a current medical appraisal of the victim. That appraisal reveals in pertinent part that Woodland
has regained consciousness and is able to sustain basic conversation. He continues to suffer from intermittent episodes of disorientation and inappropriate screaming. The psychiatrist re-evaluated him and feels he may have temporal lobe epilepsy. He is undergoing re-evaluation by a neurologist, who has ordered and (sic) electroencephalogram.
Inmate's functional capacity is still limited to that of a quadraparetic individual, meaning that he does not have full range of motion of any of his extremities. He has also suffered a traumatic arthrodesis of both hips, meaning that his hips are frozen in a splayed position. Orthopedic surgery to correct this problem would be complicated and dangerous due to the possibility of profuse bleeding, as bone has to be broken, and due to the fact that inmate would have to be able to comprehend and participate in a very strenuous rehabilitative process. His mental condition may preclude his being able to participate effectively in such an effort.
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Poor for further improvement. Inmate will remain bed-ridden. He will never be able to ambulate due to his frozen hips, unless he is able to undergo extensive corrective surgery. In order for this to be feasible, he would have to be mentally competent to understand the nature of the surgery and be physically and mentally capable of undergoing intensive physical therapy.
Sparks did not file any objections to the medical appraisal provided to the court by the Government.

  On April 11, 2005, the Government filed a motion for upward departure from the advisory sentencing guideline imprisonment range and a brief in support thereof. Sparks filed a brief in opposition on May 4, 2005. The motion became ripe for disposition with the filing of the Government's reply brief on May 13, 2005.

  We will initially address the arguments of Sparks. Sparks appears to contend that under Booker we cannot deviate from the advisory guideline range. We are unable to discern any language in Booker which requires such a result. The majority in Booker, after making the guidelines "effectively advisory" stated:
The district courts, while not bound to apply the Guidelines, must consult those guidelines and take them into account when sentencing.
125 S.Ct. at 767. Under Booker, we are obliged to consider and take into account the advisory guideline range but we are also obliged to consider all of the other factors set forth in 18 U.S.C. § 3553(a), including the need for just punishment and the need to deter the defendant and other persons similarly situated. It is clear that Booker did not invalidate the guideline scheme but only invalidated its mandatory nature. Consequently, the provisions relating to the calculation of the base offense level, the total offense level, the criminal history category and the provisions of the guidelines relating to departures are to be utilized by the court in arriving at the advisory guideline range.

  The base offense level for aggravated assault is 15 pursuant to U.S.S.G. § 2A2.2(a). In this case the total offense level of 21 was arrived at by (1) adjusting the base offense level upwards four levels pursuant to U.S.S.G. § 2A2.2(b)(2)(B) because Sparks used his shod feet as dangerous weapons and five levels pursuant to U.S.S.G. § 2A2.2(b)(3)(C) because the victim sustained permanent or life-threatening bodily injury and (2) then adjusting the offense level downwards three levels for acceptance of responsibility. Chapter 5, Part K of the 2001 Guidelines Manual sets forth provisions relating to departures from the guidelines. Of particular importance to the present case are §§ 5K2.0, 5K2.2, 5K2.3 and 5K2.8. Booker did not invalidate the mechanism set forth in the Guidelines Manual for arriving at the advisory guideline range. That mechanism includes the provisions relating to departures found in Chapter 5, Part K.*fn2

  Sparks also argues that an upward departure is barred by due process and ex post facto principles. Our research has uncovered two reported decisions which squarely address this argument. In both cases the courts held that no unfair change in the law occurred as a result of the remedial opinion issued in Booker. See United States v. Duncan, 400 F.3d 1297, 1306-08 (11th Cir. 2005); United States v. Gray, 362 F.Supp.2d 714, 725-26 (S.D.W.Va. 2005). Each court held that the existence of the ...

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