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United States v. Gillispie

United States Court of Appeals, Sixth Circuit

July 10, 2019

United States of America, Plaintiff-Appellee,
v.
Courtney Shea Gillispie, Defendant-Appellant.

          Appeal 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.

          Dori H. Thompson, THOMPSON LAW OFFICE, Lexington, Kentucky, for Appellant.

          Charles P. Wisdom, Jr., John Patrick Grant, UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.

          Before: ROGERS, GRIFFIN, and NALBANDIAN, Circuit Judges.

          OPINION

          GRIFFIN, Circuit Judge.

         Defendant, 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 affirm.

         I.

         Defendant 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 occupational therapies.

         After 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.

         Defendant's 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.

         Defendant now appeals his sentence.

         II.

         We 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 ...


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