from the United States District Court for the Eastern
District of Kentucky at Lexington. No. 5:17-cr-00126-1-Joseph
M. Hood, District Judge.
H. Thompson, THOMPSON LAW OFFICE, Lexington, Kentucky, for
Charles P. Wisdom, Jr., John Patrick Grant, UNITED STATES
ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.
Before: ROGERS, GRIFFIN, and NALBANDIAN, Circuit Judges.
GRIFFIN, Circuit Judge.
Courtney Gillispie, appeals the district court's decision
to depart upward at sentencing because his crime resulted in
significant physical injury to his victim. Finding no abuse
of discretion in the court's sentencing decision, we
was indicted on one count of distributing fentanyl in
violation of 21 U.S.C. § 841(a)(1). This charge arises
out of one sale of fentanyl to Jerry Brice, who had been
purchasing heroin from defendant "[o]ff and on, for
maybe a year and a half." Admittedly, Brice was not a
healthy man. He suffered from hypertension and a mild
arrhythmia, tested positive for hepatitis C, and had been an
opioid addict for years. In the drug sale in question, Brice
purchased from defendant half a gram of what he believed to
be heroin, but what turned out to be fentanyl. Brice then
took approximately a quarter of that half gram and injected
it intravenously. Brice had a stroke and entered a coma; he
was discovered unresponsive on his parents' front porch
and doses of Narcan were unsuccessful at resuscitating him.
He was taken to the hospital and kept in a medically induced
coma for over two weeks, but luckily he survived. It was
later determined that Brice suffered a subarachnoid
hemorrhage and anoxic brain injury causing his brain to lose
oxygen. He also suffered liver failure, kidney failure, and
heart failure, and only recovered his day-to-day functioning
after six months of intensive physical, speech, and
Brice awoke from his coma, he spoke with police and
identified "Corey" as his drug dealer. Police
determined that "Corey" was defendant, and upon
questioning he admitted selling Brice the fentanyl. Defendant
was charged with distribution of fentanyl as a result. He
pleaded guilty to the charge, admitting that he knowingly and
intentionally sold fentanyl to Brice.
presentence report acknowledged the possibility that the
district court could increase his sentence above the
authorized range based upon USSG § 5K2.2, which
authorizes departures when "significant physical injury
result[s]" from the crime. He objected to this portion
of the report because the victim had an "extensive and
serious history of pre-existing medical conditions"
making it likely that the fentanyl he injected was not the
sole cause of his overdose and injuries. The parties appeared
for sentencing, at which Brice testified about his overdose
and resulting ailments. Defendant called Dr. Dave Feola, a
doctor of pharmacy, to testify at the hearing. Dr. Feola
testified that it was possible Brice's pre-existing
health status affected his likelihood of experiencing a drug
overdose, and that it was possible that his condition could
have increased the likelihood of overdose symptoms.
Ultimately, the district court concluded that defendant's
fentanyl caused Brice's overdose and increased
defendant's offense level by six points, from 17 to 23.
This increased defendant's Guidelines range to 51 to 63
months, and the district court sentenced him to the bottom of
that range, for a sentence of 51 months.
now appeals his sentence.
review sentencing determinations for abuse of discretion.
Gall v. United States, 552 U.S. 38, 41 (2007). We
similarly review a district court's decision to depart
upward from the Guidelines for an abuse of discretion.
United States v. Robinson, 892 F.3d 209, 212 (6th
Cir. 2018). And this abuse-of-discretion standard even
applies to whether "the [court's] discretion was ...