United States v. Butler

MEMORANDUM **

Duke Gary Butler appeals his conviction and sentence following a jury trial for assault with a dangerous weapon and use of a firearm during a crime of violence. See 18 U.S.C. §§ 113 (a)(3), 1153 & 924(c). He claims that the district court erred by finding that the victim’s injuries were permanent or life-threatening and by departing upward on the ground that Butler’s criminal history had been under-represented. We vacate his sentence and remand for resentencing to allow the district court to provide a more detailed explanation of its reasons for departing upward based on criminal history.

I. Permanent or Life-Threatening Injury

Butler claims that the district court erred in finding that the victim had suffered permanent or life-threatening injury. This finding resulted in an increase of six levels, whereas a finding of serious bodily injury would have elevated the sentence only four levels. U.S.S.G. § 2A2.2(b)(3)(C). The guidelines define “permanent or life-threatening bodily injury” as “injury involving a substantial risk of death; loss or substantial impairment of the function of a bodily member, organ, or mental faculty that is likely to be permanent; or an…