of whether a guideline takes a certain encouraged departure factor into account requires a legal analysis of the guidelines, policy statements, and commentary, our review essentially is de novo). However, if the district court had recognized that § 2J1.2(b) accounted for physical injury, but had concluded that a departure was warranted because the type of physical injury inflicted by the defendant was so extraordinary that it was outside the heartland of situations encompassed by the applicable guideline, our review would be limited to determining whether the district court abused its discretion in finding that the physical injuries inflicted were outside the heartland of physical injuries encompassed within the guideline. See United States v. Bailey, 112 F.3d 758, 772 (4th Cir.1997) (<HOLDING>); United States v. Hairston, 96 F.3d 102,
recognizing that as long as ground has not been prohibited by guidelines departure is permissible if case is outside heartland of cases governed by particular guideline holding that departure from kidnapping guideline based on physical injury see ussg  5k22 ps and unlawful restraint see ussg  5k24 ps was not an abuse of discretion because although the heartland of the applicable guideline took these matters into account they were present to an extraordinary degree holding that where the commentary to a guideline is at odds with another provision of the guidelines the guideline prevails holding that murder guideline is appropriate when death results from arson but not reaching issue of whether first or second degree murder guideline is appropriate because the district court although initially applying the guidelines for first degree murder had departed downward pursuant to application note 1 to ussg  2a11 on the ground that the death was not caused intentionally or knowingly holding that a defendant whose original sentence was based upon the careeroffender guideline and not  2d11 could not receive a sentence reduction based on amendment 706 because it did not have the effect of lowering the applicable guideline range