CA1: Departures where causation isn't clear

US v. Pacheco, No. 06-1520 (5/31/07).  The defendant appeals his sentence, and argues that an upward departure under USSG §5K2.2 (physical injury) was unwarranted.  The facts are sort of interesting.  The defendant was a kind of drug dealer.  He claimed to sell sports drugs.  He basically dealt his good via the mails, and he sold someone ketamine “a horse tranquillizer that no one presently asserts is a body-building substance.”  But, he told agents he stopped when he found out that people were using it to get high.  However, a college student took (though he had other suppliers) some and ended up in the hospital.  He later left the hospital.  Read.

I am not quite sure why they kept the name of the victim – a drug user (but, apparently, a middle-class college student) redacted.  Doesn’t the government want to punish drug users, too?

The defendant argues that there wasn’t evidence to connect him to such physical injuries.  The First responds that there was enough circumstantial evidence to meet the preponderance standard. 
Secondly, as to “medical causation,” the First says that it wasn’t raised below, and it wasn’t plain error to look solely at the hospital records.  Looking at 5K2.1 (death), the First finds that the defendants “put into motion” a chain of events leading to the injury.

Finally, the first rejects an argument that the injuries need to be foreseeable. 

But, the First adds some dicta for future people facing 5K2.2 departures:

To the extent that a defendant's intent has a role to play in the section 5K2.2 departure calculus, that role relates to the extent of the departure imposed. See USSG §5K2.2 (providing that the length of the departure should be tied, in part, to "the extent to which the injury was intended or knowingly risked")....

The First tries to do some Booker housecleaning, so it here it is, with the citations omitted:

1. The court's task begins with calculating the applicable GSR.
2. It next must decide whether any departures are in order.
3. Then, the court must ponder the factors set forth in 18 U.S.C. § 3553(a), as well as any other relevant information.
4. Finally, the court must determine what sentence (whether within, above, or below the GSR) is appropriate in the particular case.