§725 Departures: Property Damage, Weapons, Disruption of Gov’t., Extreme Conduct, Facilitating Other Offense
(U.S.S.G. §§5K2.5 -.9)
8th Circuit upholds extreme conduct departure for leaving dying victim at bottom of stairs. (725)(741) Defendant was involved in a drunken altercation with her friends, and ultimately pushed one of them backwards down a flight of stairs. The group left the victim without calling for medical help, and the victim was later found dead by police. Defendant pled guilty to voluntary manslaughter and assault with a dangerous weapon. The Eighth Circuit affirmed an upward departure under §5K2.9 for extreme conduct. Defendant intentionally pushed the victim down the basement stairs and after checking, left her there without help. The district court, stated that “any person” would know by looking at the photos of the victim that she “was not fine and that she was dying.” It concluded that “[w]hen you leave somebody that you know or should have known is dying and has been very severely injured, that is conduct that is heinous, cruel, and brutal beyond the normal assault case.” U.S. v. Brave Bull, __ F.3d __ (8th Cir. July 11, 2016) No. 15-2143.
5th Circuit approves upward variance for manager who threatened and sexually harassed subordinates. (725)(741) Defendant, who was employed by a passport agency, was convicted of two counts of aiding and abetting the making of a false statement in a passport application. His guideline range was 12-18 months, but the district court sentenced him to concurrent sentences of 42 months. The Fifth Circuit held that upward variance was procedurally and substantively reasonable. The court noted that defendant’s conduct went beyond merely approving the deficient passport applications: it included ignoring and threatening subordinate employees who identified potential fraud and sexually harassing passport couriers. The court also concluded that defendant, in his managerial position at the agency, created a substantial risk of harm to governmental functions and to the integrity of the passport system by ignoring the proper procedures for issuing passports. The district court deemed the sentence appropriate in light of defendant’s overt and egregious misconduct and abuse of trust in his administrative position at the passport agency. Defendant did not show that the district court gave weight to improper factors, or that there was a clear error in judgment in balancing the sentencing factors. U.S. v. Churchwell, __ F.3d __ (5th Cir. Nov. 18, 2015) No. 14-20351.
1st Circuit rejects departure based on speculation that stolen guns would be used for another offense. (725) Defendant and his brother robbed a gun dealership at gunpoint. Section 5K2.9 authorizes an upward departure if the defendant committed the offense in order to facilitate or conceal the commission of another offense. The First Circuit held that this was an improper ground for departure. The district court erred by relying on speculation that this crime was designed to facilitate some other crimes. A “passing reference” at trial to the fact that one of the stolen guns was found in the apartment of another brother did not establish that some other type of criminal activity was being facilitated or concealed by the robbery. The panel refused to conclude that the theft of multiple weapons is always designed to facilitate some other crime. The district court needed to make a specific factual finding of the criminal conduct being facilitated, and it did not do so. U.S. v. Wallace, 461 F.3d 15 (1st Cir. 2006).
1st Circuit affirms “significant disruption of government function” departure for defendant who evaded arrest for four years. (725) Defendant and his brother robbed a gun dealership at gunpoint. In October 2000, they were indicted, and a jury convicted the brother on all counts. Defendant, however, evaded arrest until July 2004. A grand jury issued a superseding indictment, and defendant was convicted on all counts in October 2004. The district court departed upward in part under § 5K2.7, which applies if the defendant’s conduct resulted in a significant disruption of a government function. The court noted (1) defendant’s flight from justice caused the marshal service to engage in substantial investigative and law enforcement activity in a four-year search for him; (2) defendant’s actions caused two trials for this robbery rather than one; and (3) defendant’s actions forced the victims to testify a second time and relive the terror they were subjected to a second time. The First Circuit found that the district court cited sufficient reasons for the § 5K2.7 departure. Defendant evaded arrest for four years, leading to a trial that took place years after the trial of his co-conspirator. U.S. v. Wallace, 461 F.3d 15 (1st Cir. 2006).
1st Circuit holds that departure based on use of weapon did not constitute improper double counting. (725) Defendant and his brother robbed a gun dealership at gunpoint. Section 5K2.6 authorizes an upward departure if a weapon or dangerous instrumentality was used or possession in the commission of the offense. The district court departed in part under § 5K2.6, noting that the case involved a “high-powered weapon,” and “a pre-banned semi-automatic or machine gun-like weapon [was] pointed directly into the face of the victims.” Defendant argued that this amounted to double counting, because the dangerous nature of the TEC-9 firearm he used in the robbery was already taken into account in the calculation of his offense level under § 2K2.1(a)(4)(B). The First Circuit found no double counting problem, and found this was a valid ground for departure. Defendant pointed a semi-automatic weapon directly into the face of one employee at a close range while his brother pointed his weapon at the other employee. This action presented a danger not accounted for by defendant’s possession of the TEC-9 alone. Thus, the harm underlying the calculation of the base offense level under 2K2.1 and the harm underlying the application of the upward departure under § 5K2.6 were different. U.S. v. Wallace, 461 F.3d 15 (1st Cir. 2006).
1st Circuit permits consecutive sentences in multi-count case by departing upward. (725) Defendant was convicted of two counts of carjacking, each carrying a maximum sentence of 15 years’ imprisonment. He had a guideline range of 168-210 months. The district court departed upward and imposed the equivalent of consecutive 168-month terms for each count. The 1st Circuit held that a sentencing court has the power to impose consecutive sentences in a multiple-count case; but it may not deviate from § 5G1.2’s requirement of concurrent sentences unless a departure is warranted. Here, defendant’s extreme conduct justified a departure under § 5K2.8. In the first carjacking, defendant exposed the victim to a series of “brutalities” for over three hours. In the second carjacking, defendant robbed, beat and shot the victims. However, the court failed to justify the extent of the departure. The appellate court remanded to the district court with directions to revisit the extent of the departure and either (a) vacate the sentence and conduct a new sentencing hearing, or (b) reaffirm the sentence previously imposed, filing a written statement of reasons for the degree of the departure. U.S. v. Quinones, 26 F.3d 213 (1st Cir. 1994).
1st Circuit affirms upward departure for disrupting government functions by extorting money from contractors. (725) Defendant, the mayor of Pawtucket, pled guilty to a RICO violation. The predicate acts consisted of 15 acts of extortion in connection with the award of municipal contracts. The district court departed upward under section 5K2.7 for significant disruption of a governmental function. Defendant argued that the departure was not justified because interference with a government function was inherent in the offense. The 1st Circuit rejected the argument, holding that in determining whether interference is inherent in the offense, the district court properly looked to the RICO offense of conviction, not the substantive crime of extortion. Defendant’s conduct significantly disrupted a city function: he caused the “wholesale derangement” of the city’s bid process. The nine month departure, amounting to a 15 percent increase in sentence, was reasonable. U.S. v. Sarault, 975 F.2d 17 (1st Cir. 1992).
1st Circuit affirms upward departure for terrorists exporting weapons to Northern Ireland. (725) Defendants were involved in a conspiracy to manufacture and export explosives to Northern Ireland. The district court departed upward because of the “cool deliberative, calculated” quality of defendants’ discussions regarding the development of weapons which had the potential to kill numerous innocent people, the extreme amount of planning involved in the offense, the multiple occurrences of illegal conduct, and the threat to national security. The 1st Circuit affirmed, ruling that all of these factors were appropriate grounds for the departure. Section 5K2.8 specifically authorizes a departure for unusually cruel or extreme conduct. Although the court did not expressly mention section 5K2.8, it did rely upon section 5K2.14, which authorizes departures for endangering public welfare and national security, and comment 2 to section 2M5.2, which permits departures where an extreme amount of planning or sophistication, or multiple occurrences is found. U.S. v. Johnson, 952 F.2d 565 (1st Cir. 1991).
1st Circuit affirms upward departure based on extreme psychological harm suffered by child sexual abuse victim. (725) Defendant repeatedly molested his live-in girlfriend’s young daughter over a period of three years. The district court departed upward 65 months from the 235 months maximum guideline sentence and imposed three successive 100-month sentences. The departure was based on guideline § 5K2.3, extreme psychological injury to the victim, and guideline § 5K2.8, extreme conduct of the defendant. The 1st Circuit affirmed, finding that the factors mentioned by the district court warranted departure as a matter of law. The court rejected defendant’s contention that the four-level increase he received for abusing a victim under the age of 12 took into account the inherent psychological injury resulting to a young victim of sexual abuse. The departure was not based simply on age, but on the extreme harm inflicted on the victim. Not only did defendant continuously assault the girl, his abuse took particularly degrading and insulting forms. The victim suffered extreme stress, fear of physical harm to herself and her family, and guilt over these traumatic experiences. U.S. v. Ellis, 935 F.2d 385 (1st Cir. 1991).
1st Circuit affirms upward departure based on large amount of money embezzled. (725) The district court departed upward because the amount of money defendant embezzled was far in excess of the highest dollar amount mentioned in the 1987 version of guideline § 2B1.1(b)(1). Losses over $5 million require a 13 level upward adjustment in offense level, and defendant had embezzled $11 million. The 1st Circuit agreed that the magnitude of the amount embezzled “was sufficiently unique and meaningful to warrant a departure,” and the two level increase in offense level was reasonable. It was proper for the district court to compare defendant’s sentence to the sentence he would have received under the amended guidelines. U.S. v. Harotunian, 920 F.2d 1040 (1st Cir. 1990).
1st Circuit affirms upward departure for defendant who fraudulently obtained identification to escape prosecution. (725) While on parole for sexual battery, defendant fled his hometown to escape prosecution for sexually molesting two young girls. Defendant unlawfully adopted a dead man’s identity and fraudulently obtained the dead man’s social security card, driver’s license and birth certificate. Defendant lied on his passport application and continued to lie after being arrested and identified by the FBI. The applicable guideline range was 15 to 21 months. The district court properly departed upward and sentenced defendant to 36 months, based on the deception used and the fact that the monetary loss caused by defendant’s fraud did not capture the harmfulness of defendant’s conduct. The 1st Circuit upheld the departure, finding both the grounds and the extent of the departure reasonable. U.S. v. Scott, 915 F.2d 774 (1st Cir. 1990).
2nd Circuit approves upward departure where where child porn defendant sexually abused other children. (725) Defendant pled guilty to one count of producing child pornography, in violation of 18 U.S.C. § 2251(A). The government provided evidence that defendant raped the 10-year-old victim and abused numerous other young girls. The advisory guideline range was 135-168 months, with a mandatory minimum sentence of 180 months. The court departed upward under § 5K2.8 to a term of 300 months, citing the great harm defendant had done to the victims, the importance of deterring others, and the need to protect other potential victims. Finally, the court cited defendant’s complete lack of remorse, as evidenced by his denial at the sentencing proceedings of the very conduct he had admitted in his plea agreement. The Second Circuit upheld the sentence as reasonable, finding no error in the court’s consideration of the depositions of defendant’s other victims. There was no reason to doubt the reliability of the deponents, and defendant did not ask to be allowed to cross-examine them. U.S. v. Martinucci, 561 F.3d 533 (2d Cir. 2009).
2nd Circuit makes limited remand to allow court to amend written judgment to include oral reasons for upward departure. (725) The district court departed upward under § 5K2.6 because it concluded that the two-level increase imposed under § 2D1.1(b)(1) did not adequately account for defendant’s use of a firearm. However, while the district court provided a thorough, on-the-record enumeration of the reasons for its upward departure, see 18 U.S.C. § 3553(c)(2), it did not reduce that statement of reasons to writing in the judgment. The parties contended that remand was required under 18 U.S.C. § 3742(F) (1) because defendant’s sentence was imposed “in violation of law.” The Second Circuit did not resolve this issue, and instead, exercised its discretion to remand the case for the very limited purpose of amending the written judgment and conviction order to set forth in writing its reasons for granting the § 5K2.6 upward departure. The court remanded without vacatur in order to allow the amendment of the written judgment. The remand did not constitute a ruling that the appellate court lacked the authority to affirm the district court in the absence of a written statement of reasons. The panel issued the limited remand to avoid deciding that question of law. U.S. v. Santiago, 384 F.3d 31 (2d Cir. 2004).
2nd Circuit affirms departure where machine gun had recently been fired in criminal activity. (725) Police responded to a report that shots had been fired near a particular intersection. Defendant was arrested carrying a magazine containing 22 live rounds of .45 caliber ammunition, and four loose rounds. Police recovered from a co-defendant a fully automatic, .45 caliber submachine gun loaded with eight rounds of ammunition. The gun showed evidence of recent discharge. Defendant and his co-defendant were convicted of firearms charges. The Second Circuit affirmed three-level upward departure under § 5K2.6 based on the machine gun having been discharged recently in connection with jointly undertaken criminal activity. The police were investigating a report of gunshots, the bystanders pointed to defendants, and the discarded machine gun had ammunition jammed in its firing mechanism. Section 5K2.5 says that a substantial departure may be justified by the discharge of a firearm. U.S. v. Franklyn, 157 F.3d 90 (2d Cir. 1998).
2nd Circuit approves extreme conduct and psychological injury departure for repeated threats. (725) For several years, defendant repeatedly harassed and threatened former girlfriends, their family, and their employers. The Second Circuit affirmed a 14-level upward departure for extreme conduct and extreme psychological injury. The departure was based on the court’s observation of the extreme pain, anxiety, and terror of the victims who testified at trial. Defendant’s threats to one former girlfriend were part of a plan to destroy her, forcing her to isolate herself from family and friends and jeopardizing her career, requiring her to change homes and jobs, causing her to consider leaving the country, and significantly changing her personality. The harassment included threatening one victim’s minor son, telling one victim’s employer that the victim was a child molester, telling one victim’s mother that she would not recognize her daughter after he beat her face, making a bomb threat that caused the cancellation of a national exam, affecting thousands of doctors, threatening to blow up the police department, and threatening to destroy another victim’s employer by contacting media and all of the nation’s black mayors. The district court did not err in assessing the nature and duration of defendant’s threats, as well as the demeanor of the testifying victims. The court also properly considered effects on secondary victims, since this was part of defendant’s threats to the primary victims. U.S. v. Morrison, 153 F.3d 34 (2d Cir. 1998).
2nd Circuit approves upward departure in Medicaid fraud case. (725) Defendant led a racketeering enterprise that defrauded the New York State Medicaid system of 8 million dollars. The enterprise operated through four clinics and two corporations controlled by defendant. The Second Circuit approved an upward departure based on the health risk posed by the scheme, the undermining of public confidence in Medicaid, and defendant’s role in inducing doctors to abuse their positions of trust. Note 10(a) to § 2F1.1 authorizes a departure where the fraud caused or risked foreseeable, substantial non-monetary harm. The scheme here created a substantial health risk to patients, most of whom were alcoholics or drug addicts, because the clinics administered medical exams and dispensed prescription drugs without regard to the patients’ needs. The effect on Medicaid was also a proper basis for departure. Section 5K2.7 identifies “disruption of a government function” as a basis for departure. The scheme here disrupted the government’s function of efficiently administering Medicaid and undermined public confidence in government. Finally, defendant’s § 3B1.1(a) leadership enhancement did not adequately account for his role in inducing others to abuse positions of trust. U.S. v. Khan, 53 F.3d 507 (2d Cir. 1995).
2nd Circuit rejects departure based on unrelated foreign conduct and insufficient triple hearsay. (725) Defendant pled guilty to possessing fraudulent alien registration cards. The district court made a 16-level upward departure under §§ 5K2.0 and 5K2.9 based on evidence that defendant, while a Colombian police officer, had worked for a cocaine cartel, and had come to the United States either to flee prosecution or to assist the cartel’s leader in collecting money. The Second Circuit rejected the departure. First, an offense level departure cannot be based on unrelated foreign crimes. Defendant’s illegal activities in Colombia were not crimes against the U.S. and therefore should not be included in the guideline calculations. Second, the government’s theory that defendant came here to collect money for the cartel was supported only by the triple hearsay statement of an unidentified witness. The government admitted that it did not have proof that defendant came to the U.S. to avoid prosecution in Colombia. U.S. v. Chunza-Plazas, 45 F.3d 51 (2d Cir. 1995).
2nd Circuit says use of a weapon is not considered in stolen property guideline. (725) Defendant was convicted of possessing stolen mail after a co-defendant used a gun to rob a mailman. The 2nd Circuit held that the use of a gun justified an upward departure. There was sufficient evidence that defendant knew a gun was involved in the offense. The stolen property guidelines do not account for the use of a weapon. Section 2B1.2(b)(2)’s enhancement applies when the stolen property includes a firearm, which was not relevant here. Moreover, section 5K2.6 provides that weapons used in the commission of a crime may warrant a departure. The five level departure was not unreasonable. An analogous guideline, § 2B3.1(b)(2)(C), provides for a five level enhancement if a firearm is brandished, displayed or possessed in the course of a robbery. However, remand was required because the district court did not state on the record its reasons for the extent of the departure. U.S. v. Stephens, 7 F.3d 285 (2nd Cir. 1993).
2nd Circuit affirms upward departure based upon severe psychological harm to victim. (725) Defendant shot and killed his former wife. While on parole, he became involved with a new girlfriend and began to threaten her. Consequently, defendant’s probation was revoked. Despite a prohibition from prison authorities, while in prison defendant sent his girlfriend over 60 threatening letters. The district court departed upward from 21 months and sentenced defendant to two concurrent terms of 60 months. The departure was based upon the severe psychological harm to the victim, under guideline § 5K2.3. The court “did not discount” the extreme character of defendant’s conduct as an additional ground for departure under guideline § 5K2.8. The 2nd Circuit affirmed. It rejected defendant’s contention that since the departure was based upon harm to the victim, evidence of defendant’s conduct was not relevant to support the district court’s conclusions. U.S. v. Pergola, 930 F.2d 216 (2nd Cir. 1991).
2nd Circuit finds upward departure for illegal alien’s possession of firearm supported by evidence. (725) The district court departed upward based upon possession by an illegal alien of a firearm transported in interstate commerce. The 2nd Circuit rejected defendant’s argument that the departure was not supported by sufficient evidence. Although there was no evidence indicating the place of manufacture of the loaded handgun found in defendant’s home, the district court properly took judicial notice of the fact that New York has no firearms manufacturers and could therefore conclude that the handgun came from interstate commerce. Since defendant admitted possessing the gun, and it was found with the drug proceeds, there was sufficient evidence that defendant used the gun in connection with the drug offense. U.S. v. Ramirez, 910 F.2d 1069 (2nd Cir. 1990).
2nd Circuit holds defendant’s perjury at trial should have been considered as “obstruction” rather than basis for departure. (725) The district court stated that it was departing from the guidelines because the defendant “committed perjury” at trial. The Second Circuit noted that the departure would have been unnecessary if the court had found that the perjury constituted “obstruction of justice,” because it could have increased the sentence by two levels under § 3C1.1 which would have put the defendant’s 96-month sentence within the guideline range. Accordingly the court remanded the case to permit the district court to determine whether to impose the “obstruction” adjustment. U.S. v. Sanchez Solis, 882 F.2d 693 (2nd Cir. 1989).
3rd Circuit affirms extreme conduct departure where defendant ordered victims to have sex with each other. (725) Defendant and an accomplice accosted a man and a woman, robbed them, separated them, and then took turns repeatedly raping the woman. The district court departed upward under § 5K2.8 (Extreme Conduct) because, in addition to the multiple rapes and death threats, defendant ordered the two victims to have sex with each other. Defendant argued that the record did not support the finding of extreme conduct because both victims stated that they only pretended to have sex with each other. The Third Circuit found this beside the point, because being put in a position where the victims had to pretend to have sex was degrading. Section 5K2.8 defines “extreme” conduct to encompass degrading conduct. Given the repetitive number of instances of intrusive physical contact, the order that the two victims have sex, and the repeated death threats, the record amply supported a departure based on extreme conduct. The court rejected defendant’s claim that his conduct was already taken into account by the guidelines. The criminal sexual abuse guideline clearly contemplates upward departures based on extreme conduct because Note 5 to § 2A3.1 states that an upward departure may be warranted under § 5K2.8 if the victim was sexually abused by more than one participant. U.S. v. Queensborough, 227 F.3d 149 (3d Cir. 2000).
3rd Circuit finds clear and convincing evidence of extreme conduct. (725) Defendant pled guilty to second-degree murder for stabbing his wife to death as she emerged from the shower. The district court made a nine-level upward departure under § 5K2.8 for extreme conduct. Defendant argued that the district court erred by not articulating and applying a clear and convincing standard of proof to support such a large departure, as required by U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990). The Third Circuit held that incantation of the term “clear and convincing” by the district court was not necessary on this record — the unchallenged evidence provided clear and convincing proof of extreme conduct. Defendant admitted that he killed his wife. He did not dispute the extensive and gory evidence concerning the killing, including the expert pathologist’s extensive and uncontradicted testimony about the 16 stab wounds, the eight to nine penetrations of the heart area, and the 11 incisive wounds that defendant inflicted on his wife. U.S. v. Paster, 173 F.3d 206 (3d Cir. 1999).
3rd Circuit says stabbing of wife involved extreme conduct but nine-level departure was unreasonable. (725) Defendant pled guilty to second-degree murder for stabbing his wife to death as she emerged from the shower. The district court made a nine-level upward departure under § 5K2.8 for extreme conduct. The Third Circuit agreed that the stabbing involved extreme conduct but found that the extent of the departure was unreasonable. Although second-degree murder, by its very nature, involves heinous conduct, defendant’s conduct was sufficiently more heinous than conduct within the “heartland” of second-degree murder. Defendant stabbed his wife 16 times with a butcher knife, eight or nine of the wounds penetrated the heart area, and ten of the wounds were immediately life threatening. Although the judge did not compare defendant’s case with other second-degree murder cases, the gripping detailed testimony effectively demonstrated that defendant’s crime was unusually violent and brutal. However, the extent of the departure was unreasonable, since defendant’s sentence for second-degree murder was equal to what would be a heavy first-degree murder sentence. “The lack of disparity between Paster’s actual sentence and one he could have received had he pled guilty to, or been convicted of, a more serious crime, distorts proportionality, a critical objective of the Sentencing Guidelines.” U.S. v. Paster, 173 F.3d 206 (3d Cir. 1999).
3rd Circuit approves government disruption departure for corrupt police officer. (725) Defendant was one of a squad of corrupt police officers who caused false prosecutions and stole money and property. The government sought a downward departure for cooperation under § 5K1.1, but the district court departed upward from 108 months to 156 months under § 5K2.7 based on disruption of government services. The court said it would have imposed an even greater sentence but for defendant’s cooperation. The Third Circuit affirmed, finding the disruption of government activities sufficiently exceptional to justify an upward departure. Victims of the corruption lodged numerous civil suits against the police department and the city, and settlements cost the city large sums of money. The district attorney’s office was forced to review prosecutions arising from the squad activities, resulting in the release from prison of a number of innocent parties, and setting aside more than 150 convictions. Defendant claimed the disruption occurred as a result of his truthful cooperation, but it was his illegal conduct that caused it. U.S. v. Baird, 109 F.3d 856 (3d Cir. 1997).
3rd Circuit holds that defendant’s flight did not facilitate or conceal murder of police officer. (725) After being identified as a prime suspect in the murder of a police officer, defendant fled to Cuba. When he returned to the U.S. 20 years later, he pled guilty to unlawful flight to avoid prosecution. The district court departed upward by two levels pursuant to section 5K2.9 on the grounds that defendant’s unlawful flight was committed for the purposes of facilitating or concealing the underlying crime of murder. The 3rd Circuit concluded that this was error, since the undisputed facts revealed that defendant’s unlawful flight did not facilitate or conceal the murder. He admittedly fled to avoid being charged, prosecuted or punished for the murder, but his conduct was not similar to the type of conduct under which other courts have departed upward under section 5K2.9. U.S. v. Cherry, 10 F.3d 1003 (3rd Cir. 1993).
3rd Circuit holds that defendant’s flight did not facilitate or conceal murder of police officer. (725) After being identified as a prime suspect in the murder of a police officer, defendant fled to Cuba. When he returned to the U.S. 20 years later, he pled guilty to unlawful flight to avoid prosecution. The district court departed upward by two levels pursuant to section 5K2.9 on the grounds that defendant’s unlawful flight was committed for the purposes of facilitating or concealing the underlying crime of murder. The 3rd Circuit concluded that this was error, since the undisputed facts revealed that defendant’s unlawful flight did not facilitate or conceal the murder. He admittedly fled to avoid being charged, prosecuted or punished for the murder, but his conduct was not similar to the type of conduct under which other courts have departed upward under section 5K2.9. U.S. v. Cherry, 10 F.3d 1003 (3rd Cir. 1993).
3rd Circuit reverses upward departure made on the basis of disruption of government function. (725) Defendant assaulted five federal marshals transporting him to the airport for a commercial flight to Puerto Rico. As a result, the commercial airline refused to accept defendant as a passenger, and the marshals were forced to charter a private flight to transport defendant. Defendant pled guilty to assaulting one of the marshals. The district court departed upward based on defendant’s disruption of a government function. The 3rd Circuit reversed, finding that defendant’s conduct did not cause a significant disruption which would rise to the level of a circumstance not considered by the sentencing commission. Assault of a federal marshal inherently disrupts a government function because it interferes with the marshal’s performance of his or her duties. Rescheduling defendant’s transportation was a one-time effort by the marshal’s office in which they were performing their usual functions. That the marshals had to repeat their task was neither unusual nor significant because assault on a marshal during transportation is likely to require that other arrangements be made. U.S. v. Riviere, 924 F.2d 1289 (3rd Cir. 1991).
3rd Circuit upholds upward departure since “risk of harm” is not factored into stolen property guideline. (725) Defendant was convicted of possession of stolen property and conspiracy to receive stolen property. At sentencing, the district court departed upward based on defendant’s attempt to escape in a van at high speed. Defendant appealed, arguing that the guideline covering stolen property, U.S.S.G. § 2B1.2, adequately accounts for the danger to the public arising from escape. The 3rd Circuit disagreed, ruling that 2B1.2 “takes no account of any risk of harm that might arise from receiving stolen property.” Since risk of harm is not included in the guideline, it was a valid basis for an upward departure. U.S. v. Chiarelli, 898 F.2d 373 (3rd Cir. 1990).
3rd Circuit rules no upward departure for firearms offenses because guidelines adequately consider factors. (725) Two defendants pled guilty to a conspiracy to purchase fifty-six untraceable handguns for shipment overseas. The Third Circuit held that the trial courts upward departure was impermissible and remanded for resentencing. The panel held that the guidelines adequately consider 1) the number of guns involved, 2) the traceability of the weapons 3) the ultimate (unlawful) purpose for which the guns were to be used and 4) the threat to public welfare posed by handguns. U.S. v. Uca, 867 F.2d 783 (3rd Cir. 1988).
4th Circuit agrees that possession of firearm in probation office resulted in significant disruption. (725) Defendant brought a loaded firearm to the office of his probation officer. Immigration officers discovered the firearm during a search incident to defendant’s arrest on immigration violations. Defendant pleaded guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). At sentencing, the district court increased defendant’s sentence by two levels under § 5K2.7 because his conduct resulted in the disruption of a government function. The Fourth Circuit held that the district court correctly found that defendant’s conduct significantly disrupted the probation office by requiring the transfer of the probation officer and the posting of signs barring the possession of firearms. U.S. v. Alvarado-Perez, 609 F.3d 609 (4th Cir. 2010).
4th Circuit approves § 5K2.9 departure where § 2X3.1 did not account for firearm charge. (725) Defendant was convicted of suborning perjury and related charges based on his attempts to persuade his ex-girlfriend to testify falsely in his favor at his earlier drug and firearm trial. Based on her false testimony, defendant was acquitted on all counts except for a simple possession of marijuana conviction. Defendant’s guideline range for the perjury offenses was 30-37 months. If he had been convicted at his first trial his sentence would have been 60-66 months, given that a § 924(c) charge carried a mandatory minimum sentence of 60 months. Guideline § 2X3.1, which would normally produce a heightened sentence for an offender in similar circumstances, could not be applied to defendant’s § 924(c) offense, since it did not carry a specific offense level. The Fourth Circuit held that the court did not err in departing upward under § 5K2.9, for committing the offense in order to facilitate or conceal the commission of another offense, the unaccounted-for underlying gun possession offense. Although § 2X3.1 generally accounts for the encouraged factor in § 5K2.9, it did not in this case, where one of defendant’s underlying offenses did not carry an offense level. The departure, to a 62-month sentence, was reasonable. U.S. v. Davis, 380 F.3d 183 (4th Cir. 2004).
4th Circuit affirms upward departure for extreme conduct in harboring alien. (725) Defendant and his wife moved to the U.S. from Brazil in 1979, and brought with them Dos Santos, their domestic servant. For almost 19 years, Dos Santos worked for defendants in slavery-like conditions, performing arduous tasks for many hours a day, never receiving payment for her work, living in deplorable conditions, and being physically abused by the wife on numerous occasions. Defendant pled guilty to conspiracy and harboring an illegal alien. The district court departed upward because it found that the duration of the harboring offense was significantly longer than typical (for 15 of the 19 years Dos Santos was in the country illegally), and that this constituted “extreme conduct” under § 5K2.8. The Fourth Circuit, following the five-step analysis in U.S. v. Rybicki, 96 F.3d 754 (4th Cir. 1996), affirmed. Defendant did not challenge the court’s determination that he harbored Dos Santos illegally for almost 15 years. The district court’s classification of the duration of defendant’s offense as extreme conduct was not erroneous. Prolonging a victim’s pain or humiliation constitutes extreme conduct. The guideline for harboring an illegal alien, § 2L1.1, did not take into account the duration of the offense. U.S. v. Bonetti, 277 F.3d 441 (4th Cir. 2002).
4th Circuit, en banc, rejects departure from murder guideline for use of gun. (725) Defendant pled guilty to second-degree murder after shooting a drug dealer. The district court departed upward under § 5K2.6 based in part on the use of a dangerous weapon–a firearm. The Fourth Circuit, en banc, held that the use of a gun to commit a second-degree murder is not grounds for departure absent extraordinary circumstances. Using a weapon or dangerous instrumentality to commit second-degree murder is within the heartland of conduct encompassed by § 2A1.2. The overwhelming majority of murders are committed with a weapon. Departure based on an encouraged factor that is taken into account is permitted if the factor is present to an extraordinary degree. There was nothing in the record to suggest that the use of the gun here was extraordinary. U.S. v. Barber, 119 F.3d 276 (4th Cir. 1997), replacing on rehearing en banc U.S. v. Barber, 93 F.3d 1200 (4th Cir. 1996).
4th Circuit approves departure for assaulting wife and putting her in trunk for several days. (725) Defendant was convicted of kidnapping and interstate domestic violence after he assaulted his wife, placed her in the trunk of his car, and drove around with her for five or six days before taking her to a hospital. The district court departed upward as follows: (1) under § 5K2.2 because the victim suffered a massive, permanent and life threatening injury, (2) under § 5K2.8 and § 5K2.2 because of defendant’s extreme conduct, including depriving her of medical attention for a period of days and confining her in an automobile trunk, (3) under § 5K2.5 for massive economic losses to the victim, and (4) under § 5K2.4 for restraining the victim by binding her ankles after inflicting her massive injuries, and (5) for defendant’s use of an automobile when he was under a lifelong suspension of his driving privileges. The Fourth Circuit affirmed. The extent of the departure, to a life imprisonment sentence, was not an abuse of discretion. Absent torture, more serious injuries than those suffered by defendant’s wife were hard to imagine. Although defendant received a § 2A4.1(b)(2) enhancement for a permanent bodily injury, § 5K2.2 provides that a substantial departure may be appropriate when a major permanent disability is intentionally inflicted. U.S. v. Bailey, 112 F.3d 758 (4th Cir. 1997).
4th Circuit says victim’s physical injuries were considered in § 2B3.1(b)(3)(C) adjustment. (725) Defendants kidnapped a woman, stole her car, and raped and assaulted her. The district court departed upward for physical injury under § 5K2.2, extreme psychological injury under § 5K2.3, and extreme conduct under § 5K2.8. Defendants did not challenge the extreme psychological injury basis of the departure. The Fourth Circuit upheld the extreme conduct departure, but found that consideration of the victim’s physical injury constituted double counting. The finding of extreme conduct was not based on the sexual aspects of the crime, but on defendants’ gratuitous infliction of injury—they “pistol whipped,” choked, and tried to kill the victim. However, the victim’s physical injury was already taken into account under § 2B3.1(b)(3)(C), which mandates an increase for permanent or life-threatening injury sustained by a victim. Nonetheless, the court’s erroneous consideration of the victim’s physical injuries was harmless. It was clear from the record that even absent this factor, the court would have made the same departure. U.S. v. Myers, 66 F.3d 1364 (4th Cir. 1995).
4th Circuit uses analogy to firearm guideline to determine extent of § 5K2.6 dangerous weapons departure. (725) Defendant brandished a sawed-off shotgun during a bank robbery. The district court imposed an enhancement for brandishing the weapon, and departed under § 5K2.6 by six levels because of the dangerousness of the weapon used. The Fourth Circuit affirmed the extent of the departure, which was based on the distinction drawn in § 2K2.1(a) (felon in possession of a firearm) between a pistol and a sawed-off shotgun. The use by analogy of a guideline reflecting similar conduct—possession of a shotgun—supported the reasonableness of the departure. U.S. v. Murray, 65 F.3d 1161 (4th Cir. 1995).
4th Circuit holds that guidelines considered fact that gun would be used to commit additional felony. (725) Defendant sold numerous firearms without a license and was sentenced under § 2K2.1 and 2K2.2. The district court departed under § 5K2.6 because defendant knew that the weapons he transferred would be used by people in drug trafficking, and because the transactions involved automatic weapons and hand grenades. The 4th Circuit reversed, holding that § 2K2.3 (Receiving, Transporting, Shipping or Transferring a Firearm or Ammunition With Intent to Commit Another Offense, or With Knowledge That It Will Be Used in Committing Another Offense) showed that the Sentencing Commission adequately considered the fact that a defendant may transfer a weapon with knowledge that it will be used to commit a drug trafficking offense. Accordingly, defendant’s belief that the firearms he transferred would be used by individuals to commit drug trafficking crimes did not support the upward departure. U.S. v. Harrison, 37 F.3d 133 (4th Cir. 1994).
4th Circuit says threatening letters caused extreme psychological injury and were extreme conduct. (725) Defendant was convicted of mailing threatening communications to his old girlfriend. The district court departed upward 12 levels for extreme psychological injury, § 5K2.3, and extreme conduct, § 5K2.8. The 4th Circuit upheld the departure, but remanded for the court to give a principled basis for the extent of the departure. The victim was so fearful she bought a gun, was afraid to leave her house, searched every room and closet when she returned home, slept with a loaded gun beside her bed, checked under the hood and body of her car because she was afraid defendant rigged it with dynamite, and was worried for her parents and any man she might be seen with. Defendant’s letters, which were often written in his own blood and described the specific tortures he planned to inflict, were sufficient to support the court’s finding of extreme conduct. However, the court did not provide an adequate basis for the extent of the departure. U.S. v. Gary, 18 F.3d 1123 (4th Cir. 1994).
4th Circuit holds that use of gun replica is permissible grounds for upward departure from robbery guidelines. (725) The district court departed upward from the guidelines for bank robbery because the defendant used a gun replica during the robbery. The 4th Circuit affirmed, stating that it agreed with the district court that the commission failed to consider the possibility that a replica of a gun may be used when it drafted § 2B3.1(b)(2) (brandishing a firearm during a robbery) and the commentary to § 1B1.1 (defining a firearm and dangerous weapon). This lack of consideration means that the use of the replica was a permissible grounds for departure. Relying upon the 9th Circuit’s opinion in U.S. v. Martinez-Jiminez, 864 F.2d 664 (9th Cir. 1989), the 1st Circuit held that the district court was justified in treating the replica as an empty gun, thus enhancing the offense level by three levels under § 2B3.1(b)(2)(B) (an unloaded gun is a dangerous weapon). The sentence was plainly reasonable and was therefore affirmed. U.S. v. Mahler, 891 F.2d 75 (4th Cir. 1989).
5th Circuit reverses for failure to consider extent of disruption of government function. (725) In the wake of Hurricane Katrina, defendant sought disaster relief benefits for a Mississippi home that had been rendered inhabitable by fire a year before Katrina. The district court applied a two-level upward departure under § 5K2.7 for significant disruption of a governmental function. The district court relied on U.S. v. Bankston, 182 F.3d 296 (5th Cir. 1999), rev’d on other grounds, Cleveland v. U.S., 531 U.S. 12 (2000), which held that § 5K2.7 applies to any disruption of an important government function. The Fifth Circuit reversed, ruling that the district court incorrectly interpreted Bankston to require it only to examine the importance of the government function. The court must apply a two-step approach in considering an upward departure under § 5K2.7. First, the court must determine if there was a “significant disruption of a government function.” If the first inquiry is answered in the affirmative, the court must then consider both “the nature and extent of the disruption and the importance of the government function affected” to determine the size of the upward departure. U.S. v. Conroy, 567 F.3d 174 (5th Cir. 2009).
5th Circuit approves upward departure for pornographer who distributed pictures of daughter. (725) Defendant was a member of an online group that traded child pornography. Agents searching his house and computer found thousands of images of child pornography. One of the tapes seized depicted defendant having actual or simulated sexual relations with his 12-year old daughter. The Fifth Circuit affirmed an upward departure under § 5K2.0 and § 5K2.8 based on the number of images transmitted and the distribution of images of defendant’s own 12-year old daughter. These factors placed this case outside the heartland of general child pornography cases. The degrading effect on defendant’s daughter from the mass distribution of these images was not contemplated as § 2G2.1. U.S. v. Froman, 355 F.3d 882 (5th Cir. 2004).
5th Circuit affirms departure for extreme cruelty based on coroner’s report. (725) Defendant pled guilty to second-degree murder in the killing of his girlfriend’s three-year old son. The district court departed upward under § 5K2.8 to a life sentence based upon the extreme cruelty of defendant’s acts. Citing his youth (20 when the crime was committed), defendant noted that the life sentence more than doubled the maximum guideline sentence he was eligible for without departure. However, the mere multiplication of defendant’s sentence did not suggest any error in the departure. The coroner’s report detailed a recurring and brutal form of abuse that ultimately resulted in the boy’s death. The district court could plausibly conclude from this information that this second-degree homicide was especially heinous and cruel when compared to other second-degree murders. The Fifth Circuit therefore found no plain error. U.S. v. Gore, 298 F.3d 322 (5th Cir. 2002).
5th Circuit says departure depends on importance of government function affected. (725) Defendant and others obtained a Louisiana gaming license for their corporation by fraudulently concealing the identity of the true owners of the company. She challenged a six-level departure under § 5K2.7 for a “significant disruption of governmental function,” claiming that the submission to a state agency of one false application only disrupts the agency’s function in an “ordinary” sense, and was not “significant.” The Fifth Circuit affirmed the departure, since the appropriateness of a § 5K2.7 departure turns on the importance of the government function impacted, not the degree of the impact. Here, when defendant submitted the corporation’s false 1995 renewal application, failing to disclose any ownership interest held by three co-conspirators, she effectively shielded those men from suitability analysis. In doing so, defendant thwarted Louisiana’s video poker regulatory and licensing scheme designed to investigate the honesty and integrity of the prospective license holders. Based on the importance of that regulatory scheme, the § 5K2.7 departure was not an abuse of discretion. U.S. v. Bankston, 182 F.3d 296 (5th Cir. 1999), reversed in part on other grounds by Cleveland v. U.S., 531 U.S. 12 (2000), and Goodson v. U.S., 531 U.S. 987 (2000).
5th Circuit says there was no departure based on weapon. (725) Defendant was part of an extensive drug-trafficking conspiracy. She argued that the weapon found at her home at the time of her arrest did not provide a basis for departure under § 5K2.6. The Fifth Circuit termed this argument frivolous because the probation officer did not recommend an upward departure or any adjustment to defendant’s guideline range based on the weapon, and there was no mention of it at the sentencing hearing. The district court sentenced defendant to the lowest sentence possible under the guidelines. U.S. v. Posada-Rios, 158 F.3d 832 (5th Cir. 1998).
5th Circuit approves upward departure for parole officer who facilitated parolee’s drug distribution. (725) Defendant, a parole officer, accepted bribes from one of her parolees in return for not reporting his numerous parole violations. She developed a romantic relationship with the parolee that enabled him to routinely violate the conditions of his parole. Most significantly, he distributed 1.5 kilograms of crack cocaine and 150 kilograms of powder cocaine to over a thousand customers across several states. Defendant knew of these parole violations, but she failed to report them. She was convicted of extortion and mail fraud, although the mail fraud charges were reversed on appeal. The Fifth Circuit held that an upward departure for the extortion convictions was warranted because defendant’s conduct facilitated the parolee’s massive drug dealing operation. Although violations of law and public hazard are foreseeable results of any extortion involving a public official, defendant’s case was truly extraordinary. The sheer scale of the violations and the extremely serious threat posed to public safety removed defendant’s case from the heartland. U.S. v. Evans, 148 F.3d 477 (5th Cir. 1998).
5th Circuit approves upward departure for extreme conduct and multiple victims and guns. (725) Defendant and some associates robbed and assaulted two men in a parking lot. The group ordered the victims to move to a van located 40 to 50 feet away. One of the victims was dragged by the hair with a gun to his stomach to the van, but refused to get in and was shot at pointblank range. Luckily, the gun misfired. The other victim was pushed in the direction of the van with a gun held to his head. This victim ran away when his companion was shot, and was shot multiple times in the back while escaping. The Fifth Circuit approved an upward departure under § 5K2.8 for extreme conduct and under § 5K2.0 for multiple victims and firearms. The victims were kicked and beaten even after surrendering their money and keys. Other circuits have found § 5K2.8’s extreme conduct applicable to similar carjackings. Section 5K2.0 states that departure may be warranted if several persons were injured. Although one victim miraculously escaped being shot, he had a justified fear for his life. Moreover, the use of three firearms by ten robbers, against only two victims, placed the carjacking outside the heartland of robberies. U.S. v. Hawkins, 87 F.3d 722 (5th Cir. 1996).
5th Circuit approves upward departure for cruel and degrading circumstances of death of carjacking victim. (725) Defendant and three others hijacked a car and its driver at gunpoint. They forced the driver to withdraw money from an ATM while one conspirator urinated on the driver. The conspirators then drove the car to a remote area and forced the victim from the car. One conspirator urinated on the victim again and shot him three times in the back of the head. While the victim prayed, this conspirator took another gun and shot the victim until the victim lost consciousness. The victim was later found dead. The Fifth Circuit approved an upward departure based on the murder of the victim and the especially heinous circumstances of the crime. Defendant’s offense level under the carjacking guideline, which included adjustments for discharging a firearm and abducting a victim, did not contemplate an intentional killing. Although defendant did not urinate on the victim, the district court could consider the fact that the circumstances of the crime were especially cruel and degrading. The extent of the departure was reasonable. Defendant’s life sentence was within the guideline range for murder. U.S. v. Singleton, 49 F.3d 129 (5th Cir. 1995) (on denial of rehearing).
5th Circuit affirms departure based on rapes, psychological injury and heinous conduct. (725) Defendants kidnapped a woman, and over a two-day period, raped her and threatened to kill her. The 5th Circuit upheld a four level departure under §§ 5K2.0 and 5K2.3 (extreme psychological injury) and 5K2.8 (unusually heinous conduct). The guidelines did not adequately take into consideration either the number (at least seven) or the nature (including forced anal and oral sex) of the sexual abuse, which supported the initial decision to depart under section 5K2.0. Although there was no testimony by a counselor or other expert, there was adequate evidence of the victim’s psychological injury. The court had a detailed letter from the victim describing the events in question and their effects on her life. The letter demonstrated substantial changes in the victim’s psychological and behavioral functioning. This ground was supported by the last ground for departure, the heinousness of the defendants’ conduct, which provided strong grounds for departure. U.S. v. Anderson, 5 F.3d 795 (5th Cir. 1993).
5th Circuit upholds departure for defendant who shot at civilian cars while fleeing police. (725) While fleeing from police after a bank robbery, defendant fired gunshots at police and civilian vehicles. The 5th Circuit affirmed an upward departure based on defendant’s reckless shooting at civilian vehicles while attempting to escape. The court’s reason for departure was not already taken into account by the increases defendant received under section 3A1.2(b) (assaulting a police officer while fleeing from an offense) or under section 3C1.2 (recklessly creating a substantial risk of bodily harm to others while fleeing). Section 5K2.6 permits courts to depart for weapons use. Moreover, defendant attempted to cause auto accidents to block pursuit by shooting out tires and by trying to ignite the gas tank of a truck. These aggravating circumstances went beyond the factors in sections 3A1.2(b) and 3C1.2. The 65-month departure was reasonable. U.S. v. Lee, 989 F.2d 180 (5th Cir. 1993).
5th Circuit, en banc, affirms upward criminal history departure for use of weapons in prior crimes and consolidation of prior offenses. (725) The 5th Circuit affirmed an upward criminal history departure based in part upon defendant’s use of weapons in two of his past offenses and in part upon the consolidation of two of defendant’s prior offenses. The court found that the district court’s reasons for departing upward were “unimpeachable” and clearly demonstrated that an additional three months if incarceration would have been inadequate. U.S. v. Lambert, 984 F.2d 658 (5th Cir. 1993) (en banc).
5th Circuit rejects departure for firearms offenses based on use of a weapon. (725) Defendant pled guilty to making false statements in connection with gun purchases. The 5th Circuit held that it was improper to base an upward departure in such a firearms case upon 5K2.6, which permits an upward departures if a weapon was used or possessed during the crime. Section 5K2.6 refers to crimes that may be committed with or without the use of a weapon, otherwise every firearms sentence would require an upward departure. However, it was proper to base the departure upon the repeated nature of defendant’s conduct. A criminal defendant who repeatedly engages in an illegal activity evidences a dangerousness not apparent in a defendant who has acted illegally only once. It was also proper under application note 2 of section 2K2.2 to base a departure upon the fact that the 20 semi-automatic weapons purchases were military-type weapons. U.S. v. Medina-Gutierrez, 980 F.2d 980 (5th Cir. 1992).
5th Circuit upholds upward departure where public official’s fraudulent conduct disrupted a government function. (725) Defendant was a local sheriff who fraudulently authorized payments to a co-defendant for services never rendered, in return for a kickback. These payments represented a significant portion of the sheriff’s operating budget, and the loss caused a serious disruption of a government function. Accordingly, the court departed upward from 14 to 24 months. The 5th Circuit upheld the departure, rejecting defendant’s contention that he had already been penalized by the increase in offense level for abuse of a public trust under § 3B1.3. U.S. v. Hatch, 926 F.2d 387 (5th Cir. 1991).
5th Circuit affirms upward departure on telephone count for facilitating commission of another offense. (725) Defendant pled guilty to using a telephone to facilitate a drug felony. The district court departed upward from 16 months to 36 months based on guideline § 5K2.9, which permits an upward departure if the offense was committed to facilitate another offense. The 5th Circuit noted that the offense of using a telephone to facilitate a crime necessarily includes facilitation of another offense, and therefore this factor was already considered by the guidelines. However, guideline § 5K2.0 also permits a court to depart from the guideline range if the aggravating factor was present to a degree substantially in excess of that which is ordinarily involved in the offense of conviction. In this case, defendant facilitated a conspiracy to manufacture 100 pounds of methamphetamine. The district court’s determination that the amount of drugs involved was substantially in excess of that ordinarily involved in the offense was not clearly erroneous. The extent of the departure was also reasonable, since the 36-month sentence was well below the statutory maximum of 48 months. U.S. v. Perez, 915 F.2d 947 (5th Cir. 1990).
5th Circuit upholds upward departure for “disruption of a governmental function.” (725) The policy statement to § 5K2.7 entitled “disruption of government function” states that “if the defendant’s conduct resulted in a significant disruption of a governmental function the court may increase the sentence above the authorized guideline range to reflect the nature and the extent of the disruption.” In this case, the postal inspector assigned to the case, testified that defendant’s thefts constituted the “largest volume of mail he had ever seen stolen by a postal employee in his twenty years of service.” The 5th Circuit ruled that these circumstances were sufficiently “unusual” to justify an upward departure, even though theft of mail inherently involves some disruption of government functions. U.S. v. Garcia, 900 F.2d 45 (5th Cir. 1990).
5th Circuit upholds upward departure in mail theft case where loss was not capable of determination. (725) Defendant was convicted of theft of mail. The commentary to guideline § 2B1.1 states that “the value of property taken plays an important role in determining sentences for theft offenses.” Section 5K2.5, entitled “property damage or loss,” states that “if the offense caused property damage or loss not taken into account within the guidelines, the court may increase the sentence above the guideline range.” Here the district court departed upward after finding that the loss involved was “not capable of determination.” The 5th Circuit affirmed, ruling that the guidelines did not adequately take into account the “undeterminable and incalculable losses or the extremely large volume of mail involved in this case.” U.S. v. Garcia, 900 F.2d 45 (5th Cir. 1990).
5th Circuit rules judge’s personal disagreement with guidelines for weapons possession is improper grounds for departure, but type and quantity of weapons is not. (725) Defendant pled guilty to knowing possession of an unregistered firearm. The applicable guideline range under § 2K2.2 was 27-33 months, but the sentencing court departed and imposed an 8 year term. The 5th Circuit vacated, stating that the trial court’s personal disagreement with the low punishment meted out by the guidelines for this offense was not proper grounds for a departure. However, the court held that the fact that the defendant was in possession of several unregistered machine guns in the trunk of his car might constitute aggravating circumstances which would warrant a departure. Furthermore, the fact that the defendant possessed a loaded handgun hidden in the front seat of his car might also be a proper grounds for departure under § 5K2.6. U.S. v. Lopez, 875 F.2d 1124 (5th Cir. 1989).
5th Circuit rules departure for “extreme conduct” was warranted. (725) Section 5K2.8 provides that the court may depart from the guidelines if the defendant’s conduct was unusually heinous, cruel, brutal or degrading to the victim. Here the defendant was convicted of credit card fraud. He had taken the credit cards from an acquaintance who had died. Defendant failed to report the death, burned the body, and used the deceased’s car and credit cards. The Fifth Circuit upheld an upward departure to the statutory maximum of 120 months. U.S. v. Roberson, 872 F.2d 597 (5th Cir. 1989).
6th Circuit rejects §5K2.7 departure based on defendant’s lies to doctors to obtain continuance. (725) Defendant was convicted of failure to appear for sentencing. In connection with his failure to appear, defendant misled two doctors to obtain recommendations for the postponement of his sentencing hearing. The district court imposed a two-level upward departure under §5K2.7 (disruption of a government function). The Sixth Circuit held that the district court committed a procedural error in imposing this two-level upward departure. Defendant’s lies to the first doctor delayed his sentence by one additional month beyond the delay that would have ensued had he simply failed to appear for his original sentencing date. No additional delay was caused by the report of the second doctor. Section 5K2.7 states that the departure not apply except in unusual circumstances. Section 2J1.6 accounted for the harm caused by defendant’s failure to appeal, and the use of §5K2.7 to add additional punishment was a procedural error. U.S. v. O’Georgia, 569 F.3d 281 (6th Cir. 2009).
6th Circuit approves two-level departure where defendant used false identity to conceal crime. (725) Defendant came into the United States from Nigeria in 1977 and never left. He obtained a Social Security number, claiming to be a U.S. citizen named O’Georgia, and used this alias for more than 20 years. He was later convicted of tax fraud, and during the proceedings, represented that he was a citizen of the U.S. He was convicted of charges relating to this and other misrepresentations during the tax fraud proceedings. The district court applied a two-level departure under §5K2.9 because defendant falsely claimed that he had been born in the U.S. to conceal the commission of another offense, i.e. his prior false claim to U.S. citizenship during the guilty plea before the federal judge. The Sixth Circuit affirmed. Defendant had been subject to removal from the U.S. since the expiration of his visitor’s visa in the late 1970s. He called himself O’Georgia for two decades to avoid deportation. U.S. v. O’Georgia, 569 F.3d 281 (6th Cir. 2009).
6th Circuit says abduction and repeated sexual assault by multiple participants justified extreme conduct departure. (725) Defendant and an accomplice kidnapped a postal worker, held her captive for four hours, and took turns sexually assaulting her. The Sixth Circuit affirmed an upward departure under § 2K2.8 for Extreme Conduct. Repeated sexual assaults by multiple participants over a four-hour period at gun point are heinous, brutal, cruel and degrading to the victim. See, e.g. U.S. v. Sizemore, 238 F.3d 425 (6th Cir. 2000) (torturing drug co-conspirator); U.S. v. Davis, 170 F.3d 617 (6th Cir. 1999) (loud, rude, obnoxious behavior to sick elderly victims); U.S. v. Harris, 943 F.2d 53 (6th Cir. 1991) (abducting witness and raping witness’s wife). Further, such assaults could be said to have included “prolonging of pain or humiliation” under § 5K2.8. U.S. v. Cole, 359 F.3d 420 (6th Cir. 2004).
6th Circuit says beating and shooting of security guard warranted heinous conduct departure. (725) During an armed robbery of a restaurant, defendants encountered a 65-year old private security guard, who immediately raised his arms. Nevertheless, the guard was shot with a shotgun and kicked in the side and teeth. As he lost consciousness, the guard heard an order to shoot him should he move. When he stirred, he was shot at again with his own revolver, but was not hit. The resulting injuries were severe enough to threaten the guard’s life and to necessitate the amputation of his dominant right arm. The district court departed upward in part under § 5K2.8 for conduct that is unusually heinous, cruel or brutal, and the Sixth Circuit affirmed. Defendants did not merely shoot the guard after he had surrendered, but they continued to brutalize him when all possibility of resistance had vanished. They kicked his wounded body until he passed out, in the process moving his body 25 feet across the kitchen floor. When he stirred, they tried to shoot him again, which very easily could have killed him. These subsequent, gratuitous actions by the defendants were not accounted for in the offense level calculations and were sufficiently heinous to justify the departure. U.S. v. Baker, 339 F.3d 400 (6th Cir. 2003).
6th Circuit holds that increases for physical injury and extreme conduct were not double counting. (725) Defendant’s cousin threw sulfuric acid at a woman who had previously testified against defendant. Defendant was involved in planning the attack. As a result of the attack, the woman lost her right eye and suffered severe acid burns to her face, chest, arms and legs. He received an eight-level enhancement under § 2J1.2 (b)(1) for causing physical injury. The district court also departed upward under § 5K2.2 (significant physical injury) and § 5K2.8 (extreme conduct). The Sixth Circuit found no double counting. The § 5K2.2 departure did not result from “precisely the same aspect of a defendant’s conduct” that was considered under § 2J1.2(b)(1). Section 2J1.2(b)(1) was applied because the offense caused physical injury, but § 5K2.2 directed the court to consider the extent of the injury. The § 5K2.8 departure was based on yet another aspect of defendant’s conduct. Section 5K2.8 focuses on the depravity of defendant’s conduct, and both the physical and mental effect that the conduct had on the victim. A victim can have extensive physical injuries as a result of negligent conduct that does not fall within § 5K2.8, and extreme conduct can lead to prolonged humiliation but not extensive physical injuries. U.S. v. Levy, 250 F.3d 1015 (6th Cir. 2001).
6th Circuit upholds extreme conduct departure for abusive telemarketer and rejects it for nice one. (725) Defendant worked as a telemarketer for a company that defrauded numerous victims out of large sums of money. The Sixth Circuit affirmed an upward departure under § 5K2.8 (Extreme Conduct) based on defendant’s extremely cruel and degrading treatment of his victims. A co-worker described how defendant was rude and obnoxious to the victims, telling them they were senile and stupid. Although there was no serious physical injury, there was intentional infliction of psychic injury. However, the Sixth Circuit reversed another extreme conduct departure for a defendant who was “on the surface nice” to his victims. The district court stated that being nice was in “some ways even more insidious than what [the other defendants] did. He really wasn’t being nice, just deceptive. The result is the same — fraud.” The district court’s conclusion that the second defendant had engaged in extreme conduct because fraud resulted was not valid. If defendant had not engaged in fraud, he would not have been prosecuted. The second defendant’s friendly behavior towards his victims did not fall within the guideline definition of extreme conduct, i.e. behavior that is “unusually heinous, cruel, brutal or degrading to the victim.” U.S. v. Davis, 170 F.3d 617 (6th Cir. 1999).
6th Circuit rejects departure where circumstances of arson were well within heartland. (725) Defendant drove a vehicle up against a church and set the vehicle on fire. He spread motor oil throughout the interior of the vehicle to enhance the fire and spread the fire to the church. The district court departed under § 5K2.6 (Weapons and Dangerous Instrumentalities) because defendant placed the automobile at the entry most likely for the fire fighters to use to gain access to the church. The fire fighters were forced to use an entry that had the heating and cooling unit above it, which put the fire fighters at additional risk. The Sixth Circuit found that the court’s reasons did not justify the departure. The church had a number of entrances. While one had an air conditioner above it, others did not. The church was constructed of brick. The accelerant was used minimally and ineffectively. The circumstances of the fire were well within the heartland of cases. Although defendant’s racial motive for the fire was undeniably reprehensible, it was accounted for by the increase he received under § 3A1.1(a). U.S. v. Johnson, 152 F.3d 533 (6th Cir. 1998).
6th Circuit permits departure from career criminal guideline for other violent crimes. (725) While riding in a car on a congested portion of an interstate highway, defendant pointed a loaded handgun at motorists, and then jerked his arm upward as if he had just fired the gun. He also fired the weapon at a police officer following defendant in an unmarked car. He pled guilty to being a felon in possession of firearm. The district court departed upward under § 5K2.14 (endangering public safety) for “dry-firing” the gun at motorists and under § 5K2.6 (use of a weapon) for firing the gun at a police officer. The district court had previously increased defendant’s offense level from 33 to 34 for this same conduct under § 4B1.4(b)(3)(A) (using or possessing gun in connection with crime of violence). The Sixth Circuit held that the court’s consideration of defendant’s conduct on the highway was a permissible basis for an upward departure. Section 4B1.4(b)(3)(A) requires the commission of a single crime of violence. Since the court needed only one of these crimes of violence to enhance defendant’s offense level to 34, it could depart upward for the other crime(s) of violence defendant committed that night. Section 5K2.0 says that a departure may be warranted where the applicable guideline does not consider the possibility of multiple victims. U.S. v. Pluta, 144 F.3d 968 (6th Cir. 1998).
6th Circuit holds defendant accountable for cohort’s physical restraint of torture victim. (725) Suspecting that an associate stole drugs from them, one co-defendant tortured the victim while the other co-defendant held the victim down. Defendant guarded the door and threatened to “sic” the co-defendant’s dogs on the victim. Defendant pled guilty to a drug conspiracy. The Sixth Circuit affirmed a § 3A1.3 enhancement for physically restraining the victim in the course of the offense. A defendant who assists or encourages another to commit a substantive crime is liable for aiding and abetting. Defendant actively assisted and participated in the torture by guarding the door and threatening the victim. The four level departure under § 5K2.2 (physical injury) and § 5K2.8 (extreme conduct) based on defendant’s participation in the torture was also proper. The court found that the multiple burns inflicted on the victim constituted a serious permanent injury and that defendants had deliberately humiliated the victim. U.S. v. Cross, 121 F.3d 234 (6th Cir. 1997).
6th Circuit approves upward departure for torturing victim. (725) Defendant and two co-defendants operated a crack cocaine operation out of defendant’s apartment. After suspecting that an associate stole drugs from her, defendant spent several hours burning the associate with hot scissors, pouring rubbing alcohol on his wounds and mouth, and forcing him to eat dog feces. Defendant pled guilty to federal drug charges. The Sixth Circuit approved a four-level upward departure under § 5K2.8 (extreme conduct) and § 5K2.2 (physical injury) based on the torture of the victim. The district court properly relied on § 2A2.2(b)(3)(B), by analogy, to help determine how many levels to depart. Although defendant argued that she did not make the victim eat alcohol or feces, the district court found the victim to be credible. The fact that the victim did not mention this disgusting aspect of the torture session at the hospital or at the state preliminary hearing did not undermine his credibility. Given the victim’s embarrassment, it was not surprising that he was reluctant to mention the most degrading parts of the experience. U.S. v. Wright, 119 F.3d 390 (6th Cir. 1997).
6th Circuit approves § 5K2.9 departure for false statements designed to conceal another crime. (725) Defendant was convicted of making false statements to the FBI in violation of 18 U.S.C. § 1001. The district court departed upward under § 5K2.9 because defendant lied to conceal another offense, his attempted extortion. Defendant argued that § 5K2.9 was inapplicable because the guidelines for § 1001 violations include circumstances in which false statements are made for the purpose of concealing other crimes. The Sixth Circuit disagreed, finding that § 1001 violations are commonly motivated by purposes other than the concealment of other crimes. Thus, the district court’s finding that defendant made false statements to conceal his attempted extortion justified a departure. U.S. v. LeMaster, 54 F.3d 1224 (6th Cir. 1995).
6th Circuit approves upward departure based on harassment of victims and disruption to IRS. (725) Defendant filed 79 false forms with the IRS, reporting that he had paid various individuals and businesses miscellaneous income, and also claiming a refund of $3,000,000. The district court departed upward under § 5K2.0, finding the applicable guideline (§ 2T1.3) did not consider defendant’s malice toward, and systematic harassment of, his victims. The court also relied on § 5K2.7, based on the disruption to the IRS caused by the 79 false forms. The 6th Circuit affirmed. Defendant’s activity went far beyond that contemplated by § 2T1.3. He not only attempted to evade paying his own taxes and impeded the collection of others’ taxes, but he used his scheme to harass people who had the misfortune to come in contact with him. Defendant caused substantial disruption to the government. IRS employees expended enormous effort to identify and correct the false information resulting from defendant’s filings. U.S. v. Heckman, 30 F.3d 738 (6th Cir. 1994).
6th Circuit says discharge of weapon during bank robbery was considered by guideline. (725) While robbing a bank, defendants fired two shotgun blasts, one at the beginning and one at the end of the robbery. One of the shots narrowly missed the bank manager. The district court departed upward under §5K2.6 for discharging a weapon during the offense. The 6th Circuit reversed, finding the weapon discharge was adequately considered by a five level enhancement under §2B3.1(b)(2)(A). “The unfortunate reality is that robbers discharge firearms during robberies specifically to frighten the victims, to ensure cooperation with their demands, and to facilitate escape. The factors articulated by the district court [did] not deviate substantially from that norm.” U.S. v. Bond, 22 F.3d 662 (6th Cir. 1994).
6th Circuit affirms three level upward departure for defendant who seriously abused son prior to his death. (725) Defendant was convicted of second-degree murder of his four-year old son and for committing and permitting first-degree criminal child abuse. The 6th Circuit affirmed an upward departure from 262 months to 30 years under guideline section 5K2.8 based upon the extreme nature of the child abuse. The defendant’s own expert witness testified that it was the worst case of child abuse he had ever seen. The district judge concluded that for a period of six or seven weeks, the child was subjected to “the most savage and brutal abuse I think that anyone within the sound of my voice has ever encountered.” The prolonged and brutal nature of the abuse was documented by defendant’s wife’s testimony and the coroner’s report. Although only “highly unusual circumstances” can justify an upward departure equivalent to three offense levels, here the extent of the departure was reasonable. Chief Judge Merritt dissented, believing that the departure was improperly based upon the facts which formed the basis for the child abuse offense. U.S. v. Phillip, 948 F.2d 241 (6th Cir. 1991).
6th Circuit affirms upward departure based upon extent of harm and number of victims. (725) Defendant established a fraudulent investment company through which he solicited more than 3.8 million dollars from over 600 investors in 22 states. Although the guideline range for the counts governed by the guidelines was 27 to 33 months, the district court departed upward to 60 months. The 6th Circuit upheld the departure, based on the extremely large scope of the fraud, the number of victims, and the extent of the harm. The guidelines acknowledge that the dollar loss caused by a defendant’s fraud often does not fully capture the harmfulness and seriousness of a defendant’s conduct. Defendant’s criminal activities continued for nearly five years, resulting in the loss of over 3 million dollars from more than 600 investors, many of whom were disabled or elderly. U.S. v. Benskin, 926 F.2d 562 (6th Cir. 1991).
6th Circuit affirms upward departure for defendant who persuaded others to perjure themselves. (725) The district court granted the government’s request for an upward departure pursuant to guideline § 5K2.7, based upon defendant’s disruption of a government function. Defendant colluded with a co-defendant to prevent the use of the co-defendant’s confession in which defendant was implicated. Defendant also induced others to perjure themselves concerning defendant’s role in the offense. The 6th Circuit found that this justified the upward departure. Even though the district court already increased defendant’s offense level for obstruction of justice based upon defendant’s false testimony, this did not prevent the upward departure. The departure was not based on defendant’s perjury, but on his actions to induce others to perjure themselves. U.S. v. Pulley, 922 F.2d 1283 (6th Cir. 1991).
6th Circuit upholds upward departure based on defendant’s possession of a machine gun. (725) Defendant’s offense level was increased by two levels based upon his possession of a machine gun. The 6th Circuit upheld the upward departure. Guideline § 5K2.6 authorizes an upward departure when a weapon or dangerous instrumentality is used or possessed in the commission of an offense. The 6th Circuit concluded that the district court considered departure appropriate and found that increasing the offense level by two points was reasonable. Judge Nelson concurred in the result, arguing that the majority applied the wrong analysis. Defendant did not receive an upward departure, but rather his base offense level had been increased by two under guideline § 2D1.1(b). Defendant argued that he was entitled to a downward departure. Rather than reviewing defendant’s sentence as an upward departure, the majority should have dismissed defendant’s claim on the ground that a refusal to depart downward is not reviewable. U.S. v. Smith, 918 F.2d 664 (6th Cir. 1990).
6th Circuit reverses upward departure based on defendant’s “propensity for violence.” (725) The district court considered the defendant’s propensity for violence and offenses using guns, in departing upward. The 6th Circuit held there may be cases in which this is a legitimate reason for an upward departure under § 5K2.6 of the guidelines which state that “the extent of the increase [departure] ordinarily should depend on the dangerousness of the weapon, the manner in which it was used, and the extent to which it endangered others.” But here the defendant did not fire the gun, and would be serving a five year consecutive sentence for the firearm count. Accordingly, the 6th Circuit held that the guidelines already took into account the firearms aspect of the crime. As such it was an improper basis for departure. U.S. v. Robison, 904 F.2d 365 (6th Cir. 1990).
7th Circuit departs upward for numerous threatening letters, psychological injury, and humiliation of victims. (725) Defendant wrote between 100 and 300 threatening letters to a couple, their neighbors, and the husband’s employer. The letters were “extremely vile,” and described in graphic detail the horrible things that defendant planned to do to the couple and their niece. The Seventh Circuit approved an upward departure based on three factors. First, there were at least 100 (and possibly as many as 300) letters sent. An application note to § 2A6.1 suggests an upward departure where “substantially more than two threatening communications to the same victim” are sent. Section 5K2.3 permits a departure if the victim suffered psychological injury “much more serious” than normal from the commission of the offense. The victims testified as to their fear, humiliation and embarrassment. They changed their behavior, becoming much more cautious than they had been. An inference that they suffered psychological injury was clear from the record. Finally, § 5K2.8 authorizes an upward departure if the defendant’s conduct was “unusually … degrading to the victim.” The judge found that the letters were “terrible.” The humiliation to the victims increased because of the messages on the outside of the envelopes and the letters sent to the neighbors. U.S. v. Bohanon, 290 F.3d 869 (7th Cir. 2002).
7th Circuit approves departure where defendant also convicted of separate firearm charge. (725) Defendant and two accomplices were convicted of conspiracy, carjacking and using a firearm during the commission of a crime of violence. During the carjacking, the three men repeatedly raped one of the carjacking victims. The district court ordered one upward departure for using a firearm during the crime and another under §5K2.8 for extreme conduct. The Seventh Circuit upheld both departures. The first departure was consistent with the second paragraph of note 2 to § 2K2.4, because this was an instance where not departing would have given defendant a shorter sentence because he was also convicted of a separate § 924(c) violation. The extreme conduct departure was “perfectly appropriate in this case, considering the cruel conduct” of defendant and the degradation suffered by the rape victim. U.S. v. Seawood, 172 F.3d 986 (7th Cir. 1999).
7th Circuit approves use of § 2B3.1 to determine degree of departure for use of gun. (725) Defendant and a friend stole a car at gunpoint from an elderly man, and then defendant and a different friend drove the car to another state to visit defendant’s girlfriend. When police arrested defendant, they found a gun and ammunition under the seat of the squad car where he was sitting. Defendant was convicted of interstate transportation of a stolen vehicle. The district court departed upward under § 5K2.6 based on defendant’s transportation of the weapon across state lines. The judge based the degree of departure on § 2B3.1, which provides for a five-level enhancement for brandishing or possessing a firearm during the offense. The Seventh Circuit affirmed. The sentencing judge found, based on defendant’s use of the gun in stealing the car, the robbery guideline provided the closest link in the guidelines to defendant’s offense. The judge was not required to ignore the fact that defendant had previously used the gun to take the car which he then transported across state lines. U.S. v. Billingsley, 115 F.3d 458 (7th Cir. 1997).
7th Circuit approves upward departure for cache of weapons in murder solicitation. (725) Defendant hijacked an armored car containing $260,000, and used the proceeds to raise a private army to wage war on abortion clinics. He attempted to hire an FBI informant to serve in the campaign, which was to include a raid on a National Guard Armory to obtain military weapons, to be used to slaughter workers and patients at the clinics. By the time he was arrested, defendant had amassed an arsenal. Defendant was convicted of bank larceny, money laundering and solicitation to commit murder. The Seventh Circuit approved a two level departure that accounted for defendant’s weapons cache. Other provisions of the guidelines provide for a two level increase for weapons possessed in connection with the crime. The fact that the solicitation to commit murder guideline (§ 2A1.5) does not contain such a provision does not mean that this is not a proper ground for departure. Section 5K2.6 provides that a departure based on weapons is permissible. A two level departure is a modest adjustment given the number and type of weapons defendant possessed. U.S. v. Cook, 102 F.3d 249 (7th Cir. 1996).
7th Circuit says 8-level departure for bomb threat made one day after Oklahoma City bombing was unreasonable. (725) One day after the federal building in Oklahoma City was bombed, defendant made a bomb threat to the federal building in Springfield, Illinois. No bomb was ever found. The district court departed upward by 8 levels under § 5K2.7 because the threat severely disrupted the work of 14 federal agencies. The Seventh Circuit held that the 8-level departure was unreasonable. Defendant’s conduct did not create any risk that the occupants of the federal building would be injured by an explosive, and there was no suggestion that he intended any injuries. Because the threat was entirely empty, the judge’s analogy to § 2A6.1(b)(1) (6-level increase for conduct indicating intent to carry out threat) was inappropriate. Upward departures of more than two levels should be explained “with a care commensurate with their exceptional quality.” The court’s general explanation that the threat was acutely disruptive because of its timing did not provide a sufficient explanation for the extent of the departure. U.S. v. Horton, 98 F.3d 313 (7th Cir. 1996).
7th Circuit rejects departure for use of dangerous weapon during other conduct. (725) Defendant sold drugs to an informant in the presence of an undercover officer. He later assaulted the officer with a meat cleaver in an attempt to steal his money. Defendant pled guilty to a drug distribution count; an assault count was dismissed. On defendant’s first appeal, the 7th Circuit rejected an enhancement for use of a dangerous weapon, under § 2D1.1(b)(1), holding that “during the commission of the offense” language in that guideline refers to the offense of conviction and not other conduct. On remand, the district court imposed the same sentence, departing upward by two levels under section 5K2.6 for use of a weapon. The 7th Circuit rejected the departure, holding that section 5K2.6 only authorizes a departure based on the use of a weapon during the offense of conviction. The language in section 5K2.6 (“used or possessed in the commission of the offense”) is nearly identical to section 2D1.1(b). If the Commission intended to authorize departures when a weapon was possessed during other conduct, it would have used different language. However, an upward departure could have been justified on the ground that an assault took place. U.S. v. Baldwin, 5 F.3d 241 (7th Cir. 1993).
7th Circuit rejects sentencing drug-house guard who facilitated management of drug house as severely as one who maintained drug house. (725) Defendant was convicted of being a felon in possession of a firearm and possessing six grams of a controlled substance. The district court departed upward from a guideline range of 18 to 24 months and sentenced defendant to 48 months. The departure was based upon guideline section 5K2.9, which authorizes a departure where the offense of conviction was committed in order to facilitate another offense. The district judge found that defendant had carried the firearm in order to facilitate the maintenance of a drug house. The 7th Circuit ruled that although a departure might be warranted under section 5K2.9, in this case the departure was too extreme because it punished defendant as severely as a manager convicted of maintaining a drug house. The drug house statute is aimed at persons who occupy a supervisory, managerial or entrepreneurial role in a drug enterprise. Defendant only served as a guard, which would not justify sentencing him as if he had been convicted of the more serious offense. U.S. v. Thomas, 956 F.2d 165 (7th Cir. 1992).
7th Circuit rejects co-defendant’s possession of weapon as grounds for upward departure. (725) After the government discovered defendant was involved in a plot to escape from jail, the government made it appear as if the plot had been successful in order to apprehend defendant’s accomplices. An informant, posing as a prisoner who had escaped with defendant, called one of defendant’s outside accomplices and requested transportation. The accomplice recruited defendant’s girlfriend to meet the informant. The girlfriend was arrested by an agent posing as an escaped prisoner, and was found to have brought a gun to the meeting. The 7th Circuit rejected the girlfriend’s possession of the gun as grounds for an upward departure in defendant’s case under guideline section 5K2.6. Defendant’s attempted escape was frustrated by the government before the gun became involved. Judge Kane dissented. U.S. v. Connor, 950 F.2d 1267 (7th Cir. 1991).
7th Circuit vacates 10-level upward departure based upon large number of fraud victims. (725) Defendants were convicted of conducting a massive mail fraud, resulting in an offense level of 21 under the guidelines. The 7th Circuit departed upward to level 31 on the ground that (a) the offense involved both more than minimal planning and more than one victim, (b) there were a large number of victims, and (c) the $7 million loss exceeded the $5 million floor in the highest loss category for fraud offenses. The 7th Circuit upheld the first ground for departure under application note 2F1.1, which specifies that departure may be warranted if two or more of the § 2F1.1(b)(2) provisions are satisfied. However, it rejected the latter two grounds. The number of victims is accounted for in the fraud guideline provisions for total dollar loss, rather than the number of victims. Moreover, although departure may be appropriate if the actual loss “substantially exceeds” the $5 million floor, the $7 million loss did not qualify, given the $3 million difference between the last two loss levels in the table. Therefore, although one of the grounds for departure was warranted, the 10-level upward departure was an inappropriate degree of departure. U.S. v. Boula, 932 F.2d 651 (7th Cir. 1991).
7th Circuit upholds upward departure based on defendant’s possession of a gun. (725) Defendant argued that although he possessed a gun at the time of his arrest, the government did not produce evidence that he had the gun at the time he transported the fraudulently obtained coins. The 7th Circuit disagreed, noting that from the time defendant acquired the coins in one state until the time he was arrested in another state, he had little opportunity to obtain a gun. While the court agreed that this did not prove beyond a reasonable doubt that he had the gun when he crossed the border, it constituted enough reliable evidence for the district court to make the upward departure. The court also found that possession of a weapon by a criminal who is wanted in several states and who has evinced an intention to avoid prosecution for past crimes creates a danger that may warrant departure. U.S. v. Gaddy, 909 F.2d 196 (7th Cir. 1990).
8th Circuit upholds extreme conduct departure for defendant who assaulted his companion and their two minor children. (725) Defendant pled guilty to assault with a dangerous weapon, and received departures under four separate guidelines, including § 5K2.8, for unusually heinous or extreme conduct to the victim. Defendant argued that his acts were no more extreme than those contemplated by the guidelines. He already received an “aggravated assault” base-offense level, a four-level enhancement for the use of a weapon, a three-level increase for bodily injury, and a two-level increase because defendant’s 8-year-old and 7-year-olds were vulnerable victims. The Eighth Circuit ruled that the district court did not abuse its discretion in finding that defendant’s conduct was sufficiently extreme to warrant a § 5K2.8 departure. Defendant assaulted the mother of his children at home in front of their children, and caused the children to try to intervene on behalf of their mother. He then physically grabbed one child by the throat and threw him on the couch. He also pulled out a knife and told the mother to choose which child he should kill first. U.S. v. White Twin, 682 F.3d 773 (8th Cir. 2012).
8th Circuit approves upward departure for lies to FBI that concealed defendant’s murder. (725) Defendant was convicted of making false statements to an FBI agent in connection with the disappearance of her 14-year-old niece. Section 5K2.9 authorizes an upward departure if the defendant committed the offense in order to facilitate or conceal the commission of another offense. The district court found that an upward departure under § 5K2.9 was appropriate because defendant lied to cover up the fact that she murdered her niece. The Eighth Circuit agreed, rejecting defendant’s claim that her conduct did not fall outside the heartland of false statement offenses. This was not simply a case about lying to a federal agent about whether defendant paid a tax or wrote a check. Defendant lied to federal agents in order to cover up a particularly brutal crime, and as a result, successfully avoid detection of that crime for many years. Moreover, the court also justified its sentence above the advisory guideline range by referencing both § 5K2.9 and 18 U.S.C. § 3553(a). The court explicitly found that the sentence imposed was appropriate based “on all the conditions in Section 3553(a),” and thoroughly documented its justifications for the variance. U.S. v. Richart, 662 F.3d 1037 (8th Cir. 2011).
8th Circuit holds that stabbing unarmed victim at least five times and kicking him warranted § 5K2.8 departure. (725) Defendant was convicted of voluntary manslaughter for stabbing a man to death. Section 5K2.8 authorizes an upward departure if defendant’s conduct “was unusually heinous, cruel, brutal, or degrading to the victim.” The Eighth Circuit agreed that defendant’s conduct was relatively egregious, supporting the § 5K2.8 departure. Defendant stabbed his unarmed victim at least five times, puncturing the victim’s organs. Defendant the kicked his prostrate, immobilizing victim, a gratuitous infliction of injury. Defendant then fled the scene, leaving the victim to bleed from the wounds that resulted in his death. Finally, defendant admitted that he had a history of violence with the rival group. U.S. v. Chase, 451 F.3d 474 (8th Cir. 2006).
8th Circuit holds that dangerous weapon departure was proper for voluntary manslaughter defendant. (725) Defendant was convicted of voluntary manslaughter after he stabbed another man to death. He argued that an upward departure under § 5K2.6 for the use of a weapon or dangerous instrumentality was improper because the manslaughter guideline already took this factor into account. The Eight Circuit held that a § 5K2.6 departure may be appropriate when the underlying offense is voluntary manslaughter. The voluntary manslaughter guideline, § 2A3.1, has not already accounted for the use of a weapon or dangerous instrumentality, and weapons are not inherent in the offense of voluntary manslaughter. Therefore, given’s defendant’s use of a knife in killing the victim, the district court did not err in granting an upward departure under § 5K2.6. U.S. v. Chase, 451 F.3d 474 (8th Cir. 2006).
8th Circuit holds that upward departure for multiple victims and “another felony” increase were not double counting. (725) Defendant was convicted of being a felon in possession of a firearm. Because he had fired the weapon at a group of individuals, the district court departed upward under § 5K2.6 because the offense involved a reasonably foreseeable and substantial risk of death or bodily injury to multiple victims. Defendant argued that this constituted improper double counting because he had already received a four-level enhancement under § 2K2.1(b)(5) for use of a firearm in connection with another felony offense. The Eighth Circuit found no double counting because the harm on which the enhancement was based was distinct from the harm the court relied on in departing upwards. Section 2K2.1(b)(5) enhancement was directed at the use of a firearm in connection with another felony offense – intimidation with a dangerous weapon. The harm underlying the upward departure was the substantial risk to multiple victims of death or bodily injury. These kinds of harm are not identical, and neither fully accounted for the harm addressed by the other. U.S. v. Donelson, 450 F.3d 768 (8th Cir. 2006).
8th Circuit upholds sentence above guideline range for defendant who severely scalded toddler in bathtub. (725) Defendant pled guilty to assault resulting in serious injury following the bathwater burning of his two-year old daughter. The district court imposed a sentence of 60 months, which was three months above the top of his advisory guideline range. The Eighth Circuit upheld the sentence as reasonable, rejecting defendant’s argument that the sentence was the product of the court’s emotion rather than the result of proper judicial reasoning. Although the court characterized the crime as “torture,” this can be a ground for an upward departure from the guideline range. See U.S.S.G. § 5K2.8. The court’s use of the word torture was not emotional hyperbole, but a deliberate finding of fact in support of the sentence. The court also properly considered the § 3553(a) factors. Given the brutality of the crime, the defenseless and prolonged suffering of the victim, the severity of the injuries, the resulting permanent disfigurement and the complete abdication of defendant’s most basic responsibility as a parent, the 60-month sentence was reasonable. U.S. v. Little Hawk, 449 F.3d 837 (8th Cir. 2006).
8th Circuit approves above guideline range sentence for felon in possession who fired gun at girlfriend’s car. (725) Defendant was convicted of being a felon in possession of ammunition. Although defendant had a guideline range of 70-87 months, the district court imposed a 96-month sentence. Defendant argued that the court could not sentence him above the guideline range because it failed to make additional fact findings beyond those made by the jury. The Eighth Circuit held that the district court properly sentenced defendant above the guideline range based on the § 3553(a) sentencing factors, and the sentence was reasonable. One factor in § 3553(a) (5) is “any pertinent policy statement.” Guideline § 5K2.6 states that the “discharge of a firearm might warrant a substantial sentence increase.” Although not directly stating so, the district court did consider defendant’s act of shooting at the car containing his girlfriend and her children when it sentenced him. It is not error to rely on factors in § 3553(a) and to vary from the guideline range. U.S. v. Kelly, 436 F.3d 992 (8th Cir. 2006).
8th Circuit approves upward departures for severe psychological injury and extreme conduct. (725) Defendant pled guilty to assault with intent to commit murder. The district court departed upward five levels based on the victim’s severe psychological injury and on defendant’s extreme conduct. Reviewing for reasonableness under Booker, the Eighth Circuit affirmed the 97-month sentence. Guideline § 5K2.3 authorizes a departure if the victim “suffered psychological injury much more serious than that normally resulting from commission of the offense.” The district court found this was the case, noting that the effects of her injury were likely to be permanent and could “easily be exacerbated in the future.” The victim and her mother testified that the victim had experienced headaches, lack of concentration, both short-term and long-term memory loss, depression, a changed personality, and was not able to continue her career as a registered nurse. Guideline § 5K2.8 authorizes an upward departure if the defendant’s conduct was “unusually heinous, cruel, brutal or degrading to the victim.” Here, defendant dragged his victim out of bed by her hair, and dragged her from room to room, punching her in the face, kicking her in the back, biting her, burning her with a cigarette, and choking her, over a period of three to four hours. He also had ripped off her underwear, leaving her completely naked during the prolonged attack. The prolonged duration of the assault and multiple bite marks showed extreme conduct. U.S. v. May, 413 F.3d 841 (8th Cir. 2005).
8th Circuit upholds departure based on vulnerability of victim, uncharged conduct and extreme conduct in father’s abuse of four-year old son. (725) Defendant pled guilty to assault resulting in serious bodily injury in connection with a broken leg and other injuries suffered by his four-year old son. The Eighth Circuit held that the district court properly departed under § 5K2.0 based on the vulnerability of the victim. The young child was in defendant’s care and custody, and was much more vulnerable to him due to defendant’s access to him, the ease in hiding the conduct, and the difficulty the victim would have in reporting the defendant’s conduct. Punishment in excess of the two-level adjustment under § 3A1.1 may be proper in certain cases involving vulnerable victims who have multiple vulnerabilities. The vulnerability of defendant’s young son was a circumstances existing “to a degree” not considered by the Sentencing Commission when it promulgated § 3A1.1(a)(1). The district court also properly found that defendant caused numerous burns on the boy, which supported a departure under § 5K2.21 (uncharged conduct). The district court did not abuse its discretion in considering defendant’s history of relatively minor offenses that were not counted in his criminal history score. Between 1996 and 2002, defendant had one violation of law after another, including three convictions for exhibition driving, four convictions for driving with a suspended license, four convictions for speeding, one conviction for disorderly conduct, and four convictions for passing checks with insufficient funds. Finally, the court properly departed under § 5K2.7 for extreme conduct. The district court found defendant’s conduct was “heinous, cruel, and brutal beyond the characteristics associated with the crime of assault resulting in serious bodily injury,” and involved ‘the gratuitous inflictions of injury.” U.S. v. Schwalk, 412 F.3d 929 (8th Cir. 2005).
8th Circuit rejects upward departure in false anthrax case for disruption of government function and threat to public safety. (725) Defendant called a 911 operator and stated that anthrax was in one of the local schools. At sentencing, the district court departed upward based on (1) the disruption of governmental functions; (2) the significant danger to the public heath and safety; (3) defendant’s recidivist tendencies; and (4) the timing of the offense. The Eighth Circuit reversed. Section 2K2.7 permits a departure based on a “significant disruption of a government function.” While there was evidence of a disruption (law enforcement were dispatched to the local post office and school to intercept mail), evidence concerning the significance of the disruption was not in the record. Moreover, § 2A6.1(b)(4)(A) already provided for an increase if government functions are disrupted, and the court chose not to apply that enhancement. Thus, the court implicitly found the governmental functions of the school and mail delivery system were not disrupted to a substantial degree. The facts in the record did not support a departure under § 5K2.14 for threatening national security or public health. Defendant’s threat was empty. While the response to an empty threat might endanger the public, that was not the case here. Finally, it was unclear how the timing of the offense affected the court’s reasoning. U.S. v. Cole, 357 F.3d 780 (8th Cir. 2004).
8th Circuit approves departure based on understated criminal history and disruption of government function. (725) Defendant burned two vans belonging to the Rock Creek District Community Center. Defendant’s criminal history category was I, and his guideline range was four to ten months. The district court departed upward to a sentence of 23 months based on two factors: (1) defendant’s criminal history category significantly understated his past criminal conduct, § 4A1.3; and (2) defendant’s crimes significantly disrupted a governmental function, § 5K2.7. The Eighth Circuit affirmed. Defendant’s criminal history category underrepresented the seriousness of his past criminal conduct because during a presentence interview, defendant admitted to selling marijuana, abusing inhalants, alcohol, amphetamines and marijuana, and stealing about $1000 per week. Defendant’s arson significantly interrupted a governmental function. The Rock Creek District used the vans that defendant destroyed to deliver meals on wheels, to transport youths to special events, and take other district members to community events. The District Chairman testified the loss caused many of the members of the community to lose their source of transportation for three months. The Rock Creek District is a “very impoverished area where the vast majority of people are people of low income, without their own source of transportation.” The Rock Creek District, a Native American Tribal District, qualified as a “governmental entity” for purposes of § 5K2.7. U.S. v. Archambault, 344 F.3d 732 (8th Cir. 2003).
8th Circuit approves departure for defendant who assaulted babysitter after giving her date rape drug. (725) Defendant gave a date rape drug to his children’s babysitter, and then touched her in an inappropriate sexual manner. He was convicted of distributing a controlled substance to a person under the age of 21. The Eighth Circuit affirmed an upward departure under § 5K2.3 for extreme psychological injury to the victim. The girl now suffered from “extreme paranoia, trust issues, reoccurring nightmares, and panic attacks” so severe that her breathing became troublesome. She stated that she would have sought counseling if she had been able to afford it. Her mother testified to severe changes in her daughter’s behavior and attitude since the attack, stating that she was no longer happy, but “moody” and “depressed.” These unrebutted statements established that the victim suffered extraordinary injury within the meaning of § 5K2.3. The departure was also supported by § 5K2.9, which applies where the defendant committed the offense in order to facilitate the commission of another offense. The guideline applicable to his offense did not account for the fact that he gave the girl the drug in order to facilitate a sexual assault, since the guideline also applies to the distribution of any controlled substance to an individual under the age of 21. Finally, a departure was proper under § 5K2.0, because the nature of the abuse here was different from the typical drug distribution case. U.S. v. Orchard, 332 F.3d 1133 (8th Cir. 2003).
8th Circuit rejects upward departure simply because lies were intended to cover criminal conduct. (725) After being ordered to leave a party, defendant retrieved a handgun from his vehicle, fired several shots outside the home, reentered the home, and pointed the gun at the host’s face. He left before police arrived and gave the gun to a friend for safekeeping. When police interviewed him, defendant admitted pointing the gun but claimed it was a BB gun, that the host had grabbed it from him, broke it, and then threw it into the garbage. He was convicted of lying to a federal officer, in violation of 18 U.S.C. § 1001. The district court departed upward under § 5K2.9 because (1) the underlying conduct involved a gun; (2) the gun was fired outside the host’s home; (3) the victim of the underlying assault was confined to a wheelchair; (4) defendant tried to hide his involvement by giving the gun to his friend; and (5) the false statement was meant to conceal or mitigate his underlying criminal conduct. The Eighth Circuit held that these factors did not remove the offense of conviction from the heartland of § 1001 offenses. They either were unrelated to the offense or were taken into account by the guideline range established for a violation of § 1001. The case in which the defendant knowingly lies to a federal agent regarding a fact material to the agent’s investigation does not fall outside the heartland of such offenses merely because the defendant told the lie to conceal aspects of the offense for which he was arrested. U.S. v. Robertson, 324 F.3d 1028 (8th Cir. 2003).
8th Circuit affirms departure for threatening woman who had previously been victim of similar crimes. (725) Defendant sent threatening and vulgar email and telephone messages to a woman he met over the Internet. The messages included threats to murder the woman’s two children, to put pictures of her children on pornographic web sites, and to send letters to the woman’s neighbors. Defendant did in fact post pictures of the woman’s children along with their full names, address, and telephone number, on web sites soliciting sexual activity. Defendant also sent letters to defendant’s neighbors, warning that a “path of terror” was coming soon to their neighborhood. The district court departed upward based on § 5K2.0 (general departure provision), § 5K2.3, (extreme psychological injury to the victim), and § 5K2.8 (extreme conduct). The Eighth Circuit affirmed. From prior communications with the woman, defendant knew that she had already suffered through acts similar to those which defendant threatened (i.e. she was raped as a young woman and her brother was murdered). This similarity caused the victim more psychological harm than a victim without such experiences. Additionally, posting picture of the victim’s children on pornographic web sites and publishing their names, addresses, and phone number constituted extreme conduct. U.S. v. Rose, 315 F.3d 956 (8th Cir. 2003).
8th Circuit upholds departure for extreme conduct for forced prostitution and threatened abortion. (725) There was evidence that defendant forced one victim to work as a prostitute up to the time of birth of her children, threatened her with murder, threatened her with abortion of her children by the use of a vacuum hose and subjected her to body cavity searches in the presence of her children. Defendant also beat another victim until she passed out and then forced her to perform oral sex on him. The Eighth Circuit found no abuse of discretion in departing upward based on these facts. U.S. v. Evans, 272 F.3d 1069 (8th Cir. 2001).
8th Circuit finds no double counting in considering extreme conduct both in the crime and in a departure. (725) The district court departed upward under § 5K2.8 for extreme conduct based on defendant Roberts’ forcing one minor prostitute to participate in the making of a pornographic videotape with two other prostitutes. Defendant argued that this was impermissible double counting because the guideline for sexual exploitation of a minor, § 2G2.1, already accounted for that conduct. The Eighth Circuit disagreed, noting that under Koon v. U.S., 518 U.S. 81 (1996), conduct can be considered both in the crime and in the upward departure. The key question is whether “the factor is present to an exceptional degree,” or something else “makes the case different from the ordinary case where the factor is present.” Here there was no abuse of discretion because of the severity of the defendant’s beatings of the victims and because of the coercion involved in the making of the child pornographic videotape. U.S. v. Evans, 272 F.3d 1069 (8th Cir. 2001).
8th Circuit finds psychological injury and extreme conduct in sexual abuse of four-year old. (725) Defendant was convicted of producing and possessing child pornography. All of the pornographic material found at his house, including ten separate tapes, documented his sexual abuse of a four-year old girl who spent one night a week with defendant. The evidence at sentencing established that the child continued to experience psychological and behavioral problems, including public masturbation, confusion of affection and sexual behavior, and a refusal to change soiled underwear, to wipe herself after going to the bathroom, or to urinate. The Eighth Circuit affirmed a six-level upward departure under § 5K2.3 for extreme psychological injury and § 5K2.8 for extreme conduct. The tapes and the testimony of the victim’s therapist together constituted ample evidence of both the victim’s ongoing psychological problems and the extreme nature of defendant’s conduct. There was no double counting, because the two bases for departure encompassed different factors and the court made clear that it believed that the entire departure was warranted under either section alone. The court could properly discount the testimony of defendant’s expert, who had neither met the victim nor viewed any of the ten tapes, that a four-year old child was unlikely to suffer permanent injuries from repeated and recorded sexual abuse by her “surrogate father.” U.S. v. Hampton, 260 F.3d 832 (8th Cir. 2001).
8th Circuit affirms upward departure based on unusually heinous murders. (725) When defendant’s mother refused to give him permission to use a car, defendant shot her in the back as she assisted her six-year old grandson. He then rolled her over and fired an additional shot in her heart. He then put the six-year old into a nearby bedroom, turned out the lights, and waited for his father to return home. When his father arrived, defendant shot him several times at close range. The boy apparently left the bedroom and witnessed this killing as well. Defendant dragged his parents bodies into the backyard and lit them on fire. Defendant pled guilty to two counts of second-degree murder in Indian country and a single firearm charge. Guideline § 5K2.8 authorizes an upward departure if “the defendant’s conduct was unusually heinous, cruel, brutal, or degrading to the victim.” “[G]iven the brutal and inhumane method in which [defendant] stalked and killed his parents, burned their bodies, and exposed a six-year old child to the murders,” the Eighth Circuit affirmed the district court’s ten-level upward departure under § 5K2.8. Although “a ten-level upward departure under § 5K2.8 approaches the outer bound of a sentencing court’s discretion, the barbaric circumstances of this case warrant significant punishment.” U.S. v. Loud Hawk, 245 F.3d 667 (8th Cir. 2001).
8th Circuit relies on circumstantial evidence that defendant intended to use gun in another felony. (725) In 1991, defendant discharged a firearm while sitting in a car in front of a home of a woman he had harassed and stalked. Police found rope and duct tape in the car. Defendant admitted that he broke into the woman’s home with a handgun intending to kidnap, rape, and kill her. He was released from prison under supervised release in October 1997. Two months later, he illegally purchased a shotgun. In January 1998, police found in defendant’s car the shotgun, a roll of duct tape, handcuffs, a box of ammunition, an extensive list of names and addresses including judges and prison officials, and stolen court records relating to a female correctional officer. The Eighth Circuit affirmed a § 5K2.9 departure for possessing the firearm to facilitate the commission of another crime. There was no evidence that defendant purchased the shotgun for a lawful purpose. The circumstances in which the gun was found showed defendant’s intent to use the weapon to commit a potentially violent felony against one or more persons. The only uncertainty was the identity of defendant’s next victim and the precise nature of the offense he intended to commit. U.S. v. Martin, 195 F.3d 1018 (8th Cir. 1999).
8th Circuit rejects downward departure where some of the grounds were improper. (725) Defendant was convicted of abusive sexual contact after he forced himself on his victim while she was asleep. When she awoke she pushed defendant away and freed herself. The district court departed downward because the facts did not fall within the heartland of offenses proscribed by 18 U.S.C. § 2244(a)(1). The court also considered the fact that defendant had no criminal history, he refrained from criminal behavior after his trial, and his actions represented aberrant behavior. The Eighth Circuit remanded because some of the factors considered by the court were improper. The case did fall outside the heartland of sexual abuse cases. Although the amount of force used to commit the crime was sufficient to sustain a conviction under § 2241, it was virtually the least amount of force that could do so. However, the fact that defendant had no prior criminal history did not support a departure. Although post-offense rehabilitation may, if sufficiently unusual, support a downward departure, the record showed only that defendant had not broken the law since he was convicted. Defendant’s conduct was not a single act of “aberrant” behavior. Defendant’s acts were not “spontaneous and seemingly thoughtless”; they must of necessity have involved an amount of planning inconsistent with spontaneity. U.S. v. Allery, 175 F.3d 610 (8th Cir. 1999).
8th Circuit approves departure for raping employee during restaurant robbery. (725) Defendant robbed a restaurant at gunpoint. During the robbery, he raped a female restaurant employee, repeatedly forced her to perform oral sex, and threatened to return and kill her if she called the police. The Eighth Circuit approved an upward departure under § 5K2.8 for unusually cruel and degrading conduct and under § 5K2.3 for the victim’s severe psychological injury. At sentencing, the victim testified that since the attack she had required ongoing psychological counseling and treatment with anti-depressant drugs, and that her sexual relations with her husband were damaged. She also testified that she now carried a gun, moved to an area more frequently patrolled by police, installed a security system, and stayed inside at night except for an emergency. U.S. v. Johnson, 144 F.3d 1149 (8th Cir. 1998).
8th Circuit upholds § 5K2.8 departure for dismembering murder victim. (725) Defendant pled guilty to second degree murder. The district court departed from the guideline range of 188‑235 under § 4A1.3 (adequacy of criminal history) and § 5K2.8 (extreme conduct) and sentenced defendant to life imprisonment. It found that defendant’s criminal history category did not adequately reflect his criminal history because he had a prior murder conviction, and that the instant murder was particularly heinous because defendant dismembered his victim’s body. On appeal, counsel filed a brief to withdraw. The Eighth Circuit granted the motion, agreeing that no nonfrivolous issues existed. The district court did not err in finding that it had the authority to depart from the sentencing range and that the facts of this case warranted a departure. The extent of the departure was reasonable. U.S. v. Grey Cloud, 90 F.3d 322 (8th Cir. 1996).
8th Circuit agrees that abuse of former wife was unusually heinous under § 5K2.8. (725) Defendant pled guilty to the voluntary manslaughter of his former wife. The Eighth Circuit approved an upward departure under § 5K2.8 based on defendant’s unusually heinous conduct. The victim suffered a severe beating consisting of a series of blows which caused internal bleeding, swelling of the brain, coma, and eventual death. The victim was bruised, swollen and scratched, with reeds in her hair and dirt covering her fingernails. She was denied immediate medical attention, dragged from vehicle to vehicle, and deposited at the hospital without identification, unconscious, and so swollen as to render identification and notice to her family impossible. U.S. v. Keester, 70 F.3d 1026 (8th Cir. 1995).
8th Circuit upholds departure for extreme conduct that inflicted extreme psychological injury. (725) Defendant stalked and harassed his former girlfriend by shooting into her unoccupied vehicle, sending her threatening letters, and sending her a bra with a red target sticker affixed. The Eighth Circuit affirmed a six-level upward departure finding that defendant’s harassment was extreme conduct under § 5K2.8 that inflicted extreme psychological injury under § 5K2.3. The guideline for possessing an unregistered firearm did not take into account the nature of defendant’s conduct and the trauma it inflicted on his former girlfriend and her children. As a result of defendant’s harassment, the woman lived in constant fear for herself and her children and was always on the lookout for defendant. She could not eat or sleep, lost weight, required counseling, and already feared defendant’s ultimate release. The psychological injury was obvious based on the victim’s testimony and on common sense and experience. U.S. v. Otto, 64 F.3d 367 (8th Cir. 1995).
8th Circuit holds that carjacking victim’s ordeal justified § 5K2.8 departure. (725) Defendant was convicted of four carjacking counts and four firearms counts as a result of a carjacking spree he committed one day. He abducted his last victim, bound her hands and feet, and for 1 1/2 hours repeatedly raped, sodomized, and beat her. The Eighth Circuit held that the carjacking victim’s ordeal justified a § 5K2.8 departure for unusually heinous and cruel conduct. Defendant subjected the victim to a course of extremely cruel and degrading physical, sexual, and verbal abuse, including acts and words by which he deliberately put her in constant fear for her life. The extent of the departure was reasonable, even though defendant’s 1,253 month sentence surpassed what effectively would be a life sentence. The court arrived at the departure by requiring that the 293-month term of imprisonment on the carjacking count related to the last victim be served consecutively to the 180-month terms for the other carjacking counts. The departure thus effectively added 180 months to defendant’s sentence. U.S. v. Johnson, 56 F.3d 947 (8th Cir. 1995).
8th Circuit approves upward departure for extreme conduct during carjacking. (725) Defendant and an accomplice committed an armed carjacking. After entering the car, they demanded money from the owner. When the owner produced a small amount of money, defendant urged his accomplice to “pop him.” After driving a few blocks, defendant turned around, held a gun to the owner’s head, and said “You’re a dead man. You’re going to die here.” He repeated the threat, and held the gun to the owner’s head for a few more moments before finally releasing him. The Eighth Circuit approved an upward departure under § 5K2.8 based on defendant’s extreme conduct. It was true that § 2B3.1(4) took into account abduction of the victim, and 18 U.S.C. § 924(c) provided a penalty for use of a firearm during the carjacking. However, the upward departure was still appropriate because both factors were involved to a degree substantially in excess of what is ordinarily involved in a carjacking offense. Defendant’s gratuitous inhumane conduct psychologically harmed the owner, a young preacher who just moved from rural Iowa to Minnesota. U.S. v. Clark, 45 F.3d 1247 (8th Cir. 1995).
8th Circuit approves upward departure based on seriousness of firearm defendant possessed near school. (725) Defendant pled guilty to possessing a firearm in a school zone. The district court departed upward under § 5K2.6 based on the seriousness of the firearm, a loaded Tech-9 semi-automatic weapon. Defendant argued that § 5K2.6, which penalizes use of a weapon in the commission of an offense, may only be used to enhance a non-weapons charge. The 8th Circuit approved the departure, finding defendant’s reading of § 5K2.6 to be too narrow. A court may consider under § 5K2.6 the especially dangerous nature of a weapon. Section 2K2.5, the guideline for defendant’s offense, penalizes only the possession of a firearm within a school zone. It does not take into account whether the gun was loaded, semi-automatic, easily accessible, or had an obliterated serial number. All of these factors were present here. U.S. v. Joshua, 40 F.3d 948 (8th Cir. 1994).
8th Circuit affirms upward departure where stolen plane was to be used to transport drugs. (725) Defendant was convicted of conspiracy to transport a stolen aircraft. The district court departed upward after finding that the crime was committed to facilitate the transportation of drugs. The 8th Circuit upheld the departure, noting that guideline § 5K2.9 authorizes an upward departure if the offense was committed to facilitate the commission of another offense. The court rejected defendant’s claim that the district court gave inadequate reasons for imposing the increased sentence, even though the court did not specifically state the evidence upon which it was relying. The court also found there was sufficient evidence to support the district court’s finding that defendant committed the crime to facilitate drug trafficking. There were statements made by the co-conspirators that part of the cost of the airplane would be paid in the form of cocaine. Drugs were referred to in the conversations between the agents and conspirators. There was also strong circumstantial evidence that the aircraft would be used to transport illegal goods to and from Columbia. U.S. v. Culver, 929 F.2d 389 (8th Cir. 1991).
9th Circuit upholds “heinous” conduct departure for defendants’ use of their children to produce child porn. (725) Defendants, husband and wife, were convicted of the production of material involving the sexual exploitation of children, in violation of 18 U.S.C. § 2251, based on their creation of child pornography using their own children. The husband engaged in sexual acts with their 11-month-old son and three-year-old daughter, and the wife filmed them. At sentencing, the district court departed upward under § 5K2.8, which authorizes a departure when the offense involves “unusually heinous, cruel, brutal, or degrading” conduct. The Ninth Circuit upheld the departure, rejecting defendants’ argument that all conduct that violates § 2251 is degrading and thus that their conduct was not outside the heartland. U.S. v. Wright, 373 F.3d 935 (9th Cir. 2004).
9th Circuit upholds extreme conduct departure for drug defendant’s abduction and repeated sexual assault of woman. (725) Under § 5K2.8, a district court may depart upward if the defendant’s conduct was “unusually heinous, cruel, brutal, or degrading to the victim.” Defendant was convicted of conspiracy to distribute drugs, in violation of 21 U.S.C. § 846. During the course of the conspiracy, defendant abducted a woman, held her in a motel room for five days, and repeatedly sexually assaulted her. On the basis of this conduct, the district court departed upward under § 5K2.8. The Ninth Circuit held that defendant’s sexual abuse of the woman “is precisely the sort of ‘extreme conduct’ contemplated by § 5K2.8.” U.S. v. Barragan-Espinoza, 350 F.3d 978 (9th Cir. 2003).
9th Circuit upholds upward departure for manslaughter by drunk big rig driver. (725) While driving an 80,000-pound tractor trailer and with a blood-alcohol content twice the legal limit, defendant ignored multiple attempts to pull him over and ran 20 cars off the road before finally crushing a passenger car and killing its driver. Defendant pleaded guilty to involuntary manslaughter. The guideline for that offense, § 2A1.4(a), sets the offense level at 10 for criminally negligent conduct and 14 for reckless conduct; it also provides that driving under the influence should be treated as reckless. The district court set defendant’s offense level at 14, then departed upward four levels because defendant’s conduct showed an extremely reckless disregard for life. The Ninth Circuit upheld the departure, finding that although the guideline accounted for reckless driving while intoxicated, it did not take into account defendant’s driving a loaded truck while drunk. U.S. v. Semsak, 336 F.3d 1123 (9th Cir. 2003).
9th Circuit upholds departure in obstruction case for facilitating another offense. (725) Defendant was convicted of obstruction of justice after it was discovered that he had bribed a juror in his first trial on drug charges and in the meantime had committed bank fraud. In his first appeal, the Ninth Circuit reversed the sentence. On remand, the district court departed upward under § 5K2.9 because defendant committed the obstruction of justice in order to facilitate or conceal the commission of other offenses. These offenses were a counterfeit check scheme and a fraudulent wire transfer scheme. The extent of the departure – thirteen levels – was “necessary to account for the seriousness of the crime the defendant avoided punishment for by his obstruction of justice, that is, the narcotics offense.” The district court added that the extent of the departure was “necessary to account for the extensive fraud schemes that defendant was able to complete because he tampered with the jury in the narcotics case.” On appeal, the Ninth Circuit affirmed, finding that the district court’s explanation for the extent of the departures “cannot be said to be unreasonable.” Judge Betty Fletcher dissented on other grounds. U.S. v. Washington, 172 F.3d 1116 (9th Cir. 1999).
9th Circuit says basing sentence on conduct already punished in Serbia did not violate extradition treaty. (725) Dutch officials granted extradition on charges that defendant had made false statements on the passport applications of his two children. However, they refused extradition on charges of child abduction on the ground that defendant had already been tried and convicted on similar charges in Serbia. Nevertheless, in sentencing defendant for the passport conviction the district judge departed upward pursuant to § 5K2.9 after finding that the offense was committed to facilitate another offense: the abduction of defendant’s children. Also, the court increased defendant’s criminal history category based upon the conviction in Serbia. On appeal, the Ninth Circuit rejected defendant’s argument that the sentence violated the extradition treaty. The fact that this case involved extradition did not remove it from the reach of the Supreme Court’s holdings in Witte v. U.S., 515 U.S. 389, 399 (1995) and U.S. v. Watts, 519 U.S. 148, (1997) which held that using evidence of related conduct to enhance a defendant’s sentence for a separate crime does not violate the double jeopardy clause even if the defendant has been acquitted of the related charges. U.S. v. Lazarevich, 147 F.3d 1061 (9th Cir. 1998).
9th Circuit rejects upward departure for consequential losses from property damage. (725) Defendant stole three cars and wrecked two of them. The district court departed upward by four levels by analogy to §2B1.3 because the guidelines would have given defendant the same guideline range if he had simply stolen the cars, without wrecking them. The Ninth Circuit reversed, ruling that under U.S. v. Dayea, 32 F.3d 1377, 1382 (9th Cir. 1994) “property damage or loss” means only loss of property, and not consequential financial losses. But see U.S. v. Newman, 6 F.3d 623, 630 (9th Cir. 1993) (consequential losses may be grounds for upward departure under § 2B1.3). The court observed that under § 2B1.1, it is “irrelevant” whether the stolen items are recovered. U.S. v. G.L., 143 F.3d 1249 (9th Cir. 1998).
9th Circuit, en banc, upholds departures for injuries and property damage in grenade explosion. (725) Defendant threw a grenade into a police parking lot. Five people were injured in the blast, three of them severely. In addition, several cars and the exterior wall of a post office were damaged by flying shrapnel. The district court relied on approved grounds for departure, including “significant physical injury” (§ 5K2.2) and “property damage” (§ 5K2.5). The en banc Ninth Circuit held that the district court did not abuse its discretion by deciding to depart from the guidelines based on these approved factors. U.S. v. Sablan (David), 114 F.3d 913 (9th Cir. 1997) (en banc).
9th Circuit departs for disrupting government function in filing false immigration documents. (725) The district court departed upward by one level under § 5K2.7 because defendant disrupted a government function by causing thousands of false immigration documents to be filed with the Immigration and Naturalization Service. The court found that disruption of a government function was not inherent in defendant’s offenses, and that therefore disruption “was an aggravating circumstance of a kind or to a degree not contemplated in the express exception within § 2K2.7.” U.S. v. Velez, 113 F.3d 1035 (9th Cir. 1997).
9th Circuit bars departure for stipulated deportation unless government requests it. (725) Defendant asked the district court to issue a judicial order of deportation pursuant to 8 U.S.C. § 1252a(d)(1), and to depart downward from the guidelines on that basis, under § 5K2.0. The Ninth Circuit held it had no authority to order deportation because § 1252a (d)(1) is triggered only on a request by the U.S. Attorney with the concurrence of the INS Commissioner. On appeal, the Ninth Circuit agreed, noting that by its terms § 1252a(d)(1) permits a judicial order of deportation at the time of sentencing only “if such an order has been requested by the United States Attorney with the concurrence of the Commissioner and if the court chooses to exercise such jurisdiction.” Defendant’s “Stipulation to Deport” had no practical or legal effect since the district court lacked jurisdiction to enter a deportation order, and therefore had no basis for a § 5K2.0 departure. U.S. v. Flores-Uribe, 106 F.3d 1485 (9th Cir. 1997).
9th Circuit reverses upward departure for extreme conduct in extortion case. (725) Defendants were convicted of extorting $1.45 million from a Las Vegas casino after they kidnapped the daughter of the casino’s CEO. The defendants forced the daughter to disrobe, took photographs of her and then forced her to make a call for the purpose of terrifying her father. The majority held that the daughter was a “victim” of the crime and therefore the district court could depart upward for “extreme conduct” within the meaning of § 5K2.8. However the district court erred to the extent that it relied by analogy on the vulnerable victim section of the guidelines, § 3A1.1, because the fact that the father and daughter were “unusually close” was insufficient to make them “vulnerable victims.” Moreover, it was unclear what “threats” the district court based its departure on. Under Williams v. U.S., 112 S.Ct. 1112, 1120 (1992), the court was unable to conclude that the district court would have departed upward based on valid factors, so reversal was required. Judge Kozinski dissented from the majority’s conclusion that the daughter was a “victim” under § 5K2.8. U.S. v. Sherwood, 98 F.3d 402 (9th Cir. 1996).
9th Circuit says basing departure on “deterrence” was abuse of discretion. (725) The district court was concerned that other contraband hand grenades were at large, and indicated it wished to deter their use when it sentenced defendant for tossing a hand grenade into a parking lot. The Ninth Circuit concluded that, to the extent that the court may have increased the magnitude of the departure “for reasons of deterrence,” it abused its discretion. Deterring the use of explosives lies within the “heartland” of 18 U.S.C. § 844, and its guideline, 2K1.4. There was nothing in the record to indicate that any other stolen grenades at large in the community created a need for deterrence “substantially in excess” of that ordinarily involved in 2K1.4 offenses. U.S. v. Sablan, 90 F.3d 362 (9th Cir. 1996).
9th Circuit upholds four level upward departure for $20 million fraud loss. (725) If the district court had been required to extrapolate from the applicable 1987 version of the fraud loss table in § 2F1.1, a departure of only two levels would have been appropriate for a loss of $20 million. Nevertheless, the Ninth Circuit upheld a four level increase, stating that the district court is not required in every case to extrapolate mechanically from the relevant provision. “In light of the Commission’s decision to give the district court discretion to depart upward when the amount of loss substantially exceeds $5 million rather than to continue with the pattern contained in the loss table, we will not reverse the district court for following a reasonable path.” Judge Reinhardt vigorously dissented. U.S. v. Vargas, 67 F.3d 823 (9th Cir. 1995).
9th Circuit permits departure in sexual abuse case for extreme repetitive conduct and psychological injury. (725) Defendant pled guilty to one count of sexual abuse of a 13-year-old girl, and the court found by a preponderance that he had also repeatedly sexually abused his 11-year-old stepdaughter. The Ninth Circuit held that the guidelines permitted departures in this case based on “extreme conduct” under § 5K2.8, “extreme psychological injury” under § 5K2.3, and “repetitive conduct,” which has been recognized as a basis for departure under § 5K2.0. The defendant’s conduct and its effect on the victims was more extreme than is “normal” is sexual abuse cases. However, the extent of the departure was based in part on an analogy to aggravated sexual abuse. This deprived the defendant of the benefit of his plea bargain, and required resentencing. U.S. v. Chatlin, 51 F.3d 869 (9th Cir. 1995).
9th Circuit permits departure where 3 levels inadequate to account for government’s loss. (725) The FBI wasted approximately $89,000 unraveling defendant’s “twisted tale.” The district court imposed a three-level adjustment under 2J1.2(b)(2) for substantial interference with the administration of justice, based on the financial loss to the government. It also departed upward by one level under 5K2.5 for the same loss. On appeal, the 9th Circuit affirmed, finding that “double counting” the financial loss was appropriate because the three-level increase was inadequate to account for the total loss in this case. Quoting U.S. v. Reese, 2 F.3d 870, 895 (9th Cir. 1993), cert. denied 114 S.Ct. 928 (1994), the court said “there is nothing wrong with ‘double counting’ when it is necessary to make the defendant’s sentence reflect the full extent of the wrongfulness of his conduct.” U.S. v. Haggard, 41 F.3d 1320 (9th Cir. 1994).
9th Circuit upholds departure for unusually cruel conduct under § 5K2.8 (725) Defendant “deliberately” misled an unsuspecting family whose daughter had been kidnapped, into believing that their daughter was dead and buried in a plastic tarp.” The 9th Circuit held that the district court did not clearly err in finding that this constituted “unusual cruelty and degradation” within the meaning of § 5K2.8. It was proper for the court to depart upward, and two levels was not unreasonable. U.S. v. Haggard, 41 F.3d 1320 (9th Cir. 1994).
9th Circuit holds “consequential damages” cannot be used for departure. (725) The district court departed upward by two levels in a drunk driving case, citing as one basis, property damage in the amount of $165,000. However, only $13,595.43 was actually due to damage to the other vehicle. The remainder comprised consequential financial losses to the victim’s widow, such as increased insurance premiums, and a reduction in the victim’s retirement benefits. The government argued that §5K2.5 permitted other losses and harms to be included. The 9th Circuit found no authority for this, holding that only property damage and loss could be considered under §5K2.5. U.S. v. Dayea, 32 F.3d 1377 (9th Cir. 1994).
9th Circuit says death of peace officer in drunk driving case did not disrupt government function or public safety. (725) Defendant drove drunk, and collided with a vehicle driven by an Arizona Department of Public Safety officer, killing him. The district court departed upward based on disruption of governmental function under § 5K2.7 and endangerment of the public welfare under § 5K2.14. The 9th Circuit reversed, noting that the only evidence to support the departure was that other officers were stressed, and “not concentrating on their job.” The court found this testimony insufficient to support a finding that the department’s functioning was impaired in any way or that the public welfare was endangered. U.S. v. Dayea, 32 F.3d 1377 (9th Cir. 1994).
9th Circuit upholds departure for extreme conduct on dead victim but remands as to extent of departure. (725) Defendant was convicted of voluntary manslaughter in the death of his 2 year old daughter. The district court departed upward from a range of 70-87 months to a sentence of 108 months based on defendant’s post homicide conduct of burning the child’s body and cutting off her head to hinder identification. The Ninth Circuit upheld the departure under either § 5K2.8 (extreme conduct) or § 5K2.0 finding no evidence the Sentencing Commission considered the extreme acts committed by defendant. Nothing indicates § 5K2.8 is limited to conduct involving a live victim and even if it were, the general departure language of § 5K2.0 would permit departure. However, remand was required for the district court to adequately explain the extent of the departure. U.S. v. Quintero, 21 F.3d 885 (9th Cir. 1994).
9th Circuit reverses departure for high speed chase in alien smuggling case. (725) Defendant was transporting a load of illegal aliens. He led border patrol agents on a five-mile high speed chase on freeways near the border. The district court imposed an upward adjustment of two levels for “reckless endangerment during flight” under § 3C1.2. In addition, the court departed upward six levels for using the vehicle as a “dangerous instrumentality” under § 5K2.6, and because defendant abandoned the moving car and ran across the freeway. The 9th Circuit reversed, holding that defendant’s conduct in this case came within the “heartland” of dangerous flight from authorities that is covered by § 3C1.2. The high speed chase was relatively short, the aliens were not injured, and defendant’s flight after the automobile chase ended did not threaten the aliens. Moreover “a car is not a dangerous instrumentality under section 5K2.6 unless it is used with the intent to cause harm.” U.S. v. Torres-Lopez, 13 F.3d 1308 (9th Cir. 1994).
9th Circuit rejects actual damage as measure of departure in courthouse bombing. (725) A bomb blew the doors off the federal courthouse in San Diego. Defendant was convicted of manufacturing the bomb but was acquitted of the actual bombing. The district court departed upward based on the actual damage to the courthouse — by analogy to the loss table in §2B1.1. In a 2-1 decision, the 9th Circuit held it was proper to depart from §2K2.2, but it was “unreasonable” to measure the destructive capability of the bombs by the actual damage to the courthouse. The court acknowledged that actual damage may be important circumstantial evidence of destructive power. But it ruled that instead the court should have relied on the “weight table” in §2K1.3(b)(1) which was added to a later version of the Guidelines Manual. Judge Rymer dissented, arguing that under 18 U.S.C. §3742 the sentence was not unreasonable, and it should not have been reversed simply because the majority preferred a different analogy from a different version of the Guidelines. U.S. v. Cox, 7 F.3d 1458 (9th Cir. 1993).
9th Circuit upholds departure for terrorism and destruction potential but remands as to extent. (725) Defendant pled guilty to damaging or attempting to damage a building by means of an explosive device, endeavoring to intimidate and impede employees of the IRS, and arson based on launching of mortar attacks and planting car bombs in several government buildings. The district court departed upward from a guideline range of 63-78 months to a sentence of 10 years. The departure was apparently based on the terroristic nature of the defendant’s behavior and the potential for destructiveness. The Ninth Circuit upheld both grounds for departure. Nothing in guideline §2K1.4 indicated that the Commission already considered terrorist activity in setting the offense level and §5K2.12 specifically identifies terrorism as a departure factor. Although §2K1.4 contemplates the risk of bodily harm or death, there is nothing to indicate that the Commission took into account the degree of risk here. However, because the district court provided no explanation for the extent of the departure, the case was remanded for resentencing. U.S. v. Hicks, 997 F.2d 594 (9th Cir. 1993).
9th Circuit permits departure for “unusually heinous” murder but remands as to extent. (725) Guideline section 5K2.8 authorizes a court to depart where the defendant’s conduct is “unusually heinous, cruel, brutal, or degrading to the victim.” Here, the defendant murdered his wife on their honeymoon cruise, by strangling her and throwing her overboard. The 9th Circuit held that these facts permitted a departure under section 5K2.8. However, the district court failed to explain the extent of its 10-level upward departure to life imprisonment for this second-degree murder case. Accordingly, the case was remanded for resentencing. U.S. v. Roston, 986 F.2d 1287 (9th Cir. 1993).
9th Circuit reverses departure for psychological injury, extreme conduct, and property damage. (725) Defendant stabbed his elderly aunt to death and then tried to break into his cousin’s bedroom by repeatedly thrusting a sharpening steel through the bedroom door. The cousin, her children and her boyfriend, escaped through a window. The 9th Circuit reversed an upward departure, noting that the only testimony regarding the extent of the victim’s trauma came from the defendant’s expert who testified that the victims were experiencing a normal psychological reaction to the event. This did not support the conclusion that defendant caused his victims “unusually grave psychological injury,” under section 5K2.3. Moreover, defendant’s conduct was not “extreme” under section 5K2.8 and the property damage under section 5K2.5 “pales in comparison with harm that [defendant] threatened to inflict on his assault victims.” U.S. v. Luscier, 983 F.2d 1507 (9th Cir. 1993).
9th Circuit reverses upward departure for failure to state reasons for extent of departure. (725) In departing upward by 85 months, the district court explained simply that “discretion lies in the district court.” Relying on it recent en banc decision in U.S. v. Lira-Barraza, 941 F.2d 745 (9th Cir. 1991) (en banc), the 9th Circuit stated that 18 U.S.C. § 3553(a)(6) “requires at a minimal that departure sentences be consistent with other sentences fixed by the guidelines or suggested by commission standards and policies.” In order to “facilitate appellate review, the district court’s statements should include a reasoned explanation of the extent of the departure founded on the structure, standards, and policies of the act and guidelines.” The sentence was vacated. U.S. v. Durham (Richard), 941 F.2d 858 (9th Cir. 1991).
9th Circuit permits departure for possession of weapons during drug offense even though that factor was already considered. (725) Defendant argued that his possessing a weapon during commission of the drug offense contributed to his sentence on the 18 U.S.C. § 924(c) weapons charge, and therefore was not a permissible ground for departure. The 9th Circuit rejected the argument, noting that the policy statement to § 5K2.6 permits such departures even if the guidelines take weapon possession into consideration, as long as that factor “is present to a degree substantially in excess of that which is ordinarily involved in the offense of conviction.” The court agreed with the district court’s assessment that defendant’s arsenal of 18 firearms, some fully automatic, elevated the factor of weapon possession to an extraordinary level and rendered it a suitable ground on which to depart. The court also rejected defendant’s argument that this violated double jeopardy. U.S. v. Nakagawa, 924 F.2d 800 (9th Cir. 1991).
9th Circuit rejects upward departure for disruption of government function under § 5K2.7. (725) Defendant escaped from prison. Several months later the police set up a road block to capture him but he jumped out of the truck and fled on foot. A month later, a state trooper recognized defendant and attempted to keep him in his truck but the defendant forced his way out of the truck, hit the trooper around the head and kicked him, before running into a nearby field where he was apprehended. The district judge departed upward from the guidelines on the ground that the defendant had significantly disrupted a government function under § 5K2.7. Judges Fernandez, Goodwin and Fletcher reversed, holding that defendant’s flight did not disrupt government functions, because “one of the primary functions of a police department is to apprehend criminals.” A defendant “cannot be charged with significantly obstructing a government function when, in fact, the government was performing exactly as it was supposed to.” U.S. v. Singleton, 917 F.2d 411 (9th Cir. 1990).
10th Circuit says departure for extreme conduct does not require finding of “typical” conduct. (725) Defendant pled guilty to sexually abusing his 11-year old daughter. The district court calculated an advisory guideline range of 210-262 months, but the district court departed upward to 300 months based in part on defendant’s extreme conduct. See § 5K2.8. The Tenth Circuit affirmed, rejecting defendant’s claim that the government was required to first establish the “typical” perpetrator conduct in an aggravated sexual assault case before the district court could depart under § 5K2.8. Defendant engaged in an extended campaign of abuse in which he sexually assaulted his daughter on a regular basis for a number of years. The victimization was both prolonged and unrelenting, and clearly fell beyond the bounds of “usual” criminal behavior. U.S. v. Begaye, 635 F.3d 456 (10th Cir. 2011).
10th Circuit holds that degree of diminished capacity departure was abuse of discretion. (725) At sentencing, the district court departed downward 15 levels from an offense level of 23, and sentenced defendant to time served (four days) and five years of supervised release. The departure was based on defendant’s reduced mental capacity and on her physical and mental condition. The degree of departure was “to punish [defendant] for the conduct in which she has engaged in, but punish her in a way that is not irreversibly detrimental to her health.” The court also noted that defendant’s reduced mental capacity “significantly contributed to the commission of this crime.” The Tenth Circuit held that the degree of departure was an abuse of discretion. The primary reason for the extent of the departure was so defendant could avoid incarceration and continue to benefit from support from her family and therapist. However, this sort of justification is forbidden by U.S. v. Goldberg, 295 F.3d 1133 (10th Cir. 2002) (court may not first decide that defendant should not serve any jail time and then choose a degree of departure to achieve this result). The panel suggested that on remand, the departure should be no greater than two to four levels. U.S. v. Cordova, 337 F.3d 1246 (10th Cir. 2003).
10th Circuit bars departure from second-degree murder guideline on grounds of premeditation and robbery. (725) After defendant pled guilty to second-degree murder, the government moved for an upward departure on the grounds that (1) the murder was premeditated; (2) the murder was committed in order to facilitate a robbery, and (3) defendant’s conduct was unusually heinous, cruel and brutal. The district court ruled that it could not depart on these grounds. The Tenth Circuit agreed that an upward departure from the second-degree murder guideline on the grounds that the murder was premeditated would be improper. In U.S. v. Kelly, 1 F.3d 1137 (10th Cir. 1993), the court rejected a similar departure, reasoning that the question of premeditation had already been considered by the guidelines in setting the different offense levels for first-degree and second-degree murder. Moreover, although Kelly does not specifically address robbery as a departure factor, its holding also applies to robbery. However, the district court erred in ruling that it could not depart under § 5K2.8 because the victim was no longer alive at the time defendant committed the extreme conduct. In order to be heinous, cruel or brutal, the defendant’s conduct need not be consciously experienced by the murder victim. U.S. v. Hanson, 264 F.3d 988 (10th Cir. 2001).
10th Circuit says beating victim, slitting his throat, and placing 360 pound stove on him was extreme conduct. (725) A fight erupted between the four defendants and a drinking companion. Defendants beat the victim until he was motionless, although still alive. Defendants then dragged the victim to an abandoned house, cut his throat, and placed a 360-pound stove on his body. The Tenth Circuit agreed that all four defendants deserved upward departures under § 5K2.8 for extreme conduct. The first defendant was involved in all three phases of the beating, he dragged the body of the victim to the abandoned house, slit the victim’s throat, and placed the stove on him. The victim suffered a form of torture or prolonging of pain at the hands of the first defendant. The second defendant’s conduct was also unusually heinous. He hit and kicked the victim about the head and body, helped drag the victim to the abandoned house, supplied the first defendant with the steak knife, and helped place the stove on the victim’s body. The departure was a much closer question for the other two defendants. Although they initially attempted to defuse the situation, they eventually participated in the most brutal part of the beating and helped place the stove on the victim’s body. However, because the district court did not provide any explanation for the extent of its six-level departure, remand was necessary. U.S. v. Checora, 175 F.3d 782 (10th Cir. 1999).
10th Circuit holds that skeletal remains cannot be vulnerable victim. (725) Defendant made several unauthorized excavations from archaeological sites on government land. In one instance, he excavated the human remains of an infant wrapped in a burial blanket. When the damage to the site was later assessed, the only portion of the infant’s skeleton remaining was the skull on top of a dirt pile. The Tenth Circuit reversed a § 3A1.1(b) enhancement, holding that vulnerable victims do not include skeletal remains. Although some courts have found dead bodies to be the “victims” of extreme conduct under § 5K2.8, the extreme conduct provision focuses on the nature of the offender’s conduct, while the vulnerable victim enhancement focuses on the victim. Thus, the state of the victim, living or dead, is of far less consequence under § 5K2.8 than under § 3A1.1. U.S. v. Shumway, 112 F.3d 1413 (10th Cir. 1997).
10th Circuit finds no double counting in multiple departures. (725) Defendant falsely reported that a gunman was present in a hotel. The 10th Circuit rejected defendant’s claim that it was improper double counting to depart one level for financial loss to the hotel and an additional level for making false statements in a telephone call to the restaurant across the street from the hotel. The hotel and restaurant were separate entities. Nor was it double counting to depart for disruption of a government function under § 5K2.7 and for financial loss to the SWAT team under § 5K2.5. The departure under § 5K2.14 for endangerment of public welfare was also justified. The increases both for disruption of government function and endangerment of public welfare also did not result in double counting because the two provisions do not necessarily overlap and serve different purposes. U.S. v. Flinn, 18 F.3d 826 (10th Cir. 1994).
10th Circuit rejects departure for premeditation, restraint of victim, and dangerous instrumentality; approves extreme conduct. (725) Despite evidence of premeditation, the jury acquitted defendant of first degree murder and convicted him of second degree murder. The district court departed upward based on (a) premeditation, (b) restraint of the victim, (c) the use of a dangerous instrumentality, and (d) extreme conduct. The 10th Circuit remanded. Premeditation was already considered in the guidelines for first and second degree murder. The brief grabbing of the victim’s throat during the murder was not the kind of restraint the Commission envisioned in adopting §5K2.4, and use of a dangerous instrumentality is usually inherent in the crime of murder. However, section 5K2.8 authorized a departure based on defendant’s extreme conduct. Section 5K2.8 is not unconstitutionally vague. However, remand was necessary since the court did not explain why an eight-level departure was appropriate and three of the four reasons were improper. U.S. v. Kelly, 1 F.3d 1137 (10th Cir. 1993).
10th Circuit affirms departure for consequential damage and disruption of government function. (725) Defendant, using an unauthorized Sprint long distance access code, falsely reported a hostage situation at a local hotel. The SWAT team was dispatched to the scene only the discover the report was a hoax. Defendant was convicted of the fraudulent use of an unauthorized access device. The 10th Circuit affirmed that section 2K2.5 (Property Damage or Loss) and section 2K2.7 (Disruption of a Government Function) provided a proper ground for departure. Defendant caused $2,500 damage to the hotel, yet his offense level was calculated using the $411 of which Sprint was defrauded. The dispatch of the SWAT unit disrupted a government function. However, the case was remanded because the district court did not adequately explain its rationale for departing upward to offense level 14. U.S. v. Flinn, 987 F.2d 1497 (10th Cir. 1993).
10th Circuit holds that addiction does not justify departure based upon facilitation of another offense. (725) In an effort to mitigate his conduct in committing the bank robbery, defendant admitted at the sentencing hearing that he committed the robbery because of his cocaine dependency. The district court departed upward, citing guideline § 5K2.9, and reasoning that the robbery facilitated defendant’s commission of another crime: the acquisition of cocaine. The 10th Circuit vacated the sentence, noting that the court made no finding that the defendant committed the bank robbery to provide the means for accomplishing another crime. “The fact that the defendant has an addiction, without more, does not suggest a connection between the charged offense and additional criminal conduct to which § 5K2.9 applies.” U.S. v. Hawkins, 901 F.2d 863 (10th Cir. 1990).
10th Circuit vacates upward departure based on bank robber’s claim that he possessed a gun. (725) The district court departed upward because the defendant claimed to be armed during the bank robbery. The 10th Circuit vacated the sentence, concluding that the commission “elected not to authorize increased punishment for claiming to be armed.” The court held that the district court misapplied guideline § 5K2.6 which provides for an upward departure when a “weapon or dangerous instrumentality was used or possessed in the commission of the offense.” The court held that “the use of a weapon does not include claimed possession of a nonexistent weapon.” U.S. v. Hawkins, 901 F.2d 863 (10th Cir. 1990).
11th Circuit approves departures for drugging and filming victims having sex, and distributing videos. (725) Defendants fraudulently lured women to South Florida, drugged them, filmed them engaging in sexual acts, and distributed the pornographic footage on the Internet. The court sentenced them to multiple consecutive life sentences, granting the government’s motion for a § 5K2.8 upward departure for conduct that was unusually “heinous, cruel, or brutal.” The Eleventh Circuit held that the district court did not abuse its discretion in granting the § 5K2.8 departures. One defendant videotaped the second defendant having sex with women who were under the influence of drugs that the first defendant had given to them without their knowledge. Victims woke up covered in bodily fluids and uncertain of what had happened to them. Defendants then distributed those videos over the Internet, where the videos would be available indefinitely, thus “prolonging [the victims’] pain or humiliation.” Defendants’ conduct was “unusually heinous, cruel, brutal, or degrading to the victim[s].” Neither defendant met his burden of demonstrating that his total life sentences was substantively unreasonable. U.S. v. Flanders, 752 F.3d 1317 (11th Cir. 2014).
11th Circuit approves above-guideline sentence based on acquitted conduct of using stun gun on child. (725) Defendant was convicted of five counts of production of child pornography. His guideline range was 151-188 month, but the statutory minimum on each count was 180 months. The district court sentenced him to the statutory maximum of 360 months on each count, with two sets of the sentences running consecutively, for a total sentence of 720 months. He argued that the sentence violated the spirit of U.S. v. Booker, 543 U.S. 220 (2005), because the district court considered allegations that defendant drugged and shocked his stepdaughter. This conduct was not charged in the indictment, and he was acquitted by a state jury of the conduct. The Eleventh Circuit found no error. A sentencing court may consider acquitted conduct if the government proves the conduct in question by a preponderance of the evidence. Booker merely requires that consideration of acquitted conduct does not result “in a sentence that exceeds what is authorized by the jury verdict.” The district court properly considered evidence that defendant drugged and shocked his stepdaughter, and the sentence imposed did not exceed the sentence authorized by the jury verdict. U.S. v. Culver, 598 F.3d 740 (11th Cir. 2010).
11th Circuit says false statement did not disrupt government function. (725) Defendant, a former district attorney, was indicted for sexually abusing a defendant in a then-pending criminal case. A count was later added alleging that, when asked by an FBI agent whether he had ever had sex with a woman with past or pending criminal charges in his judicial circuit, defendant falsely answered no. He eventually pled guilty to making a false statement to the FBI in violation of 18 U.S.C. § 1001. The district court imposed a nine-level enhancement under § 5K2.7 for “a significant disruption of a governmental function.” The Eleventh Circuit reversed, since defendant’s false statement did not actually disrupt any governmental function. A § 5K2.7 departure is not “ordinarily … justified” when, as here, the offense of conviction is an offense such as bribery or obstruction of justice because interference with a governmental function is inherent in the offense. Any delay in the disposition of criminal cases in defendant’s circuit and any disgrace defendant brought to his office or the criminal justice system was the result of defendant’s conduct toward the victim and his subsequent indictment, not his false statement. U.S. v. Ellis, 419 F.3d 1189 (11th Cir. 2005).
11th Circuit agrees that Medicare fraud significantly disrupted government function. (725) Defendant was convicted of money laundering charges stemming from her scheme to defraud Medicare through the submission of false claims for home health care services. The district court departed upward under § 5K2.7 because defendant’s conduct had significantly disrupted the government’s ability to efficiently administer the Medicare program. The Eleventh Circuit affirmed the departure. Every time one of the more than 100 nursing groups defendant established fraudulently billed Medicare, the government lost funds that it otherwise could have used to provide medical care to eligible Medicare patients. The money laundering guideline does not encompass an interference with the administration of a government program. U.S. v. Regueiro, 240 F.3d 1321 (11th Cir. 2001).
11th Circuit affirms departure for number and nature of sexual assaults on kidnap victim. (725) Defendant kidnapped a woman from a gas station, drove her across state lines, and raped her. The Eleventh Circuit affirmed an upward departure based on the number and nature of the assaults (forcible oral, anal, and vaginal sex). These are encouraged factors for departure under § 2A3.1 and § 5K2.8. Other circuits have established that forced oral and anal sex may be especially degrading under § 5K2.8 and that those factors are not taken into account under § 2A3.1. The court’s 3 level departure was reasonable given the number and viciousness of the defendant’s assaults, the defendant’s criminal history, which included an attempted murder conviction where defendant choked and raped another woman, and the fact that the sentence imposed was within the statutory maximum. U.S. v. Lewis, 115 F.3d 1531 (11th Cir. 1997).
11th Circuit holds that judge’s fraud scheme disrupted government function. (725) Defendant, a local magistrate judge, originally worked under a system in which the judges were entitled to keep any surplus fees after expenses for themselves. When the state legislature changed this system to a fixed salary for the judges, defendant continued to charge fees in excess of expenses, pocketed the difference, and failed to report the illicit income on his tax returns. The Eleventh Circuit approved a § 5K2.7 departure for disruption of a government function. Neither the fraud guideline, § 2F1.1, nor the abuse of trust guideline, § 3B1.3, accounted for the disruption of a governmental function. Defendant disrupted a governmental function by causing people to lose faith in the local courts. The district court reasonably concluded that revelations of embezzlement and tax evasion by the chief magistrate of the county shook the residents’ confidence in the integrity of the court system. U.S. v. Gunby, 112 F.3d 1493 (11th Cir. 1997).
11th Circuit affirms upward departure for 20 year harassment of victims. (725) Defendant stalked his former high school girlfriend and her family for over 20 years. He was eventually convicted of sending threatening communications through the mail. The district court departed upward because the harassment lasted 20 years, degraded and embarrassed the victims, and persisted despite state and federal court orders to desist. The Eleventh Circuit affirmed. The length of the harassment and its degrading nature arguably qualified for departure under § 5K2.8 (unusually heinous or degrading conduct to victim). Defendant admitted to writing 1000 cards and letters to the victim’s family over a span of 20 years. He repeatedly engaged in behavior designed to embarrass the family—he wrote letters to the woman’s employer, sent a stripper to the school where the husband worked, and offered the neighbors money for pictures of the family, with a bonus for nude photos. Defendant’s flagrant and continuous violation of numerous court orders was also a valid ground for departure. U.S. v. Taylor, 88 F.3d 938 (11th Cir. 1996).
11th Circuit holds that fraud guideline adequately considers consequential damages. (725) Defendants operated a loan brokerage firm that fraudulently received “advance” fees for loans that were never obtained. The district court correctly limited the loss to the amount paid in advance fees. The court then made a two-level departure under § 5K2.5 based upon consequential financial damages to the victims. The Eleventh Circuit reversed, holding that fraud guideline adequately considered consequential damages. The Sentencing Commission expressly considered and rejected consequential damages as a factor in determining offense levels, except for cases involving government procurement and product substitution frauds. However, departure may be appropriate if the consequential damages are “substantially in excess” of what ordinarily is involved in an advance fee scheme case. The consequential damages considered here included travel fees, accounting fees, phone bills, attorneys fees and appraisals. These type of expenses are typical of a crime of fraud and cannot be the basis for a departure. Even the $7,333 loan defendants obtained using one victim’s power of attorney was not so “outside the heartland” of the crime of fraud as to warrant a departure. U.S. v. Thomas, 62 F.3d 1332 (11th Cir. 1995).
11th Circuit rejects upward departure based upon victimization of accomplices. (725) Defendant defrauded hundreds of people by selling them franchises in a nonexistent legal expense insurance company. The court departed upward four levels based upon (1) defendant’s use of a baseball bat and a pistol to threaten others, and (2) his “victimization” of his accomplices. The 11th Circuit found that defendant’s use of a dangerous weapon in a fraud case was proper grounds for departure under section 5K2.6, but found insufficient evidence of defendant’s “victimization” of his accomplices. The district court found that some of the accomplices would not have become felons had defendant not recruited them. However, section 3B1.1(a) provides for an enhancement for a leader or organizer. The recruitment of accomplices is one factor tending to show a leadership role. In addition, the exploitation of vulnerable victims is taken into account in guideline section 3A1.1. Because it was unclear to what extent the four level departure was based on the improper ground, the case was remanded. U.S. v. Paslay, 971 F.2d 667 (11th Cir. 1992).
11th Circuit affirms upward departure for damage to government property, disruption of governmental function and endangerment of public. (725) Defendants were convicted of attempting to help a prisoner escape from prison by landing a helicopter in the prison exercise yard. The attempt failed when, after picking up the prisoner, the helicopter crashed. The 11th Circuit affirmed a 10-level upward departure based on the damage to government property, more than minimal planning, disruption of governmental function and endangerment of the public welfare. The one-level increase for damage to government property was justified by the damage to the prison fence. There was a significant disruption of the prison’s function as a result of the attempted escape. In addition to a lockdown of the facility and an extra count of prisoners, local, state and federal law enforcement personnel, paramedics, a Medivac helicopter and firefighting equipment were called to the crash scene. The four-level departure for endangerment to public welfare was justified by the risk involved in flying a helicopter into a small, fenced, occupied prison exercise yard. U.S. v. Kramer, 943 F.2d 1543 (11th Cir. 1991).
11th Circuit affirms upward departure based upon defendant’s membership in violent gang. (725) The 11th Circuit rejected defendant’s argument that the district court departed upward without giving an adequate basis for the departure. Defendant had been convicted of possession of a firearm by a felon. At sentencing, the government offered evidence that defendant was a member of a violent street gang responsible for “drive-by” shootings connected to their business of trafficking in illegal narcotics. The aggravateing circumstances found by the district court included (a) the purpose for possessing the firearms was to carry on the activities of the narcotics trafficking gang, and (b) the dangerousness of the firearms possessed. The district court stated that the offense was part of a criminal livelihood which survived through terrorizing and intimidating witnesses so that the full extent of the criminal behavior never translated into prosecution. The guidelines do not contemplate a scenario such as this. U.S. v. Sweeting, 933 F.2d 962 (11th Cir. 1991).
11th Circuit affirms upward departure based upon defendant’s refusal to return stolen $1.7 million. (725) Defendants stole $1.7 million from an armored car company. Only $50,000 of the stolen proceeds were ever recovered, and defendants refused to reveal the location of the remaining funds. The 11th Circuit upheld an upward departure from 46 months to the statutory maximum of 15 years, based on defendants’ refusal to return the remaining money. The departure was not, as contended by defendants, improperly based upon the amount of money stolen, but upon defendants’ “blatant flouting of the law.” The evidence was sufficient to prove that defendants knew the present location of the money. One of the defendants was burning bank records at the time he was arrested. The extent of the departure was “appropriate and even necessary to insure respect for the law and, more specifically, to see that our system of punishment retains its deterrent effect.” U.S. v. Valle, 929 F.2d 629 (11th Cir. 1991).
11th Circuit affirms upward departure based upon physical injuries and property damage caused by drunk driver. (725) Defendant was convicted of DUI manslaughter in connection with an accident in which one person was killed, several others were injured, and property damage occurred. The 11th Circuit affirmed an upward departure from a guideline range of 24 to 30 months and sentenced defendant to 60 months. Defendant conceded that the guideline for involuntary manslaughter does not take into account physical injury sustained by persons other than the decedent, or property damage, and that physical injury and property damage are grounds for departure under guideline sections 5K2.2 and 5K2.5. Given the type of personal injuries and property damage sustained as a result of defendant’s conduct, the extent of the departure was not unreasonable. U.S. v. Sasnett, 925 F.2d 392 (11th Cir. 1991).
D.C. Circuit says Air Force contractor who embezzled funds significantly disrupted government function. (725) Defendant was a contract specialist for the U.S. Air Force in Kuwait. During an investigation into corruption in the contracting offices, the government learned that defendant had wired $3.6 million to bank accounts around the world, at least $2.6 million of which went to non-U.S. accounts defendant owned or controlled. From 2003 through 2006, defendant spent $2.4 million more than he received from known sources of income, which prompted a review of every contract defendant administered, and caused some of them to be reissued. Defendant pled guilty to five counts of filing a false tax return. The D.C. Circuit held that the district court did not err by departing upward by four levels under § 5K2.7 for significantly disrupting a governmental function. Defendant’s failure to report his income caused the government to investigate contracts involving “millions and millions” of dollars. The task was so complex that the investigative team required the assistance of two senior officials at the Kuwaiti contracting office, who had to be diverted from their ordinary duties. U.S. v. Saani, 650 F.3d 761 (D.C. Cir. 2011).
D.C. Circuit finds dismissal of radio license applications disrupted governmental function. (725) Defendant, an attorney who practiced before the FCC, forged the signatures of his clients and administrative law judges, dismissed his clients’ license applications without their consent, lied to his clients, and drafted phony FAA documents purporting to establish that a radio tower could be built at a proposed site without endangering air traffic. The D.C. Circuit upheld a two level departure under section 5K2.7 for disruption of a government function. The court declined to decide whether disruption was inherent in defendant’s conviction for forging public records, since the conduct underlying the wire fraud counts caused sufficient disruption to justify the departure. Defendant’s actions caused the FCC to dismiss the applications of two possibly qualified applicants for radio licenses. U.S. v. Root, 12 F.3d 1116 (D.C. Cir. 1994).
D.C. Circuit holds that “more than minimal planning” enhancement did not foreclose upward departure for concealment, duration of crime and disruption of government activities. (725) Defendant was convicted of theft of government funds, making a false claim against the government, and tax evasion. The D.C. Circuit upheld the trial court’s upward departure for concealment under § 5K2.9 and for “more than minimal planning” under sections 2B1.1 and 1F1.1 because the defendant’s “evasion of taxes to conceal his embezzlement scheme constituted a separate basis for an upward departure, distinct from the fact that his activities were well planned.” Likewise it was reasonable to depart based on the duration because defendant’s 53 separate acts of theft over a six year period were beyond that taken into account by the “more than minimal planning” section. Finally, defendants activities disrupted government functions under § 5K2.7, because it caused federal resources to be diverted from legitimate to illegitimate recipients. U.S. v. Burns, 893 F.2d 1343 (D.C. Cir. 1990), reversed on other grounds, Burns v. U.S., 501 U.S. 129, 111 S.Ct. 2182 (1991).
D.C. Circuit remands case where district court failed to adequately explain reasons for upward departure. (725) Defendant pled guilty to possession of 15 unauthorized credit cards with intent to defraud. His unauthorized use of the cards had resulted in a total loss of approximately $5,165. The district court departed upward on the grounds that the dollar value of the loss did not fully capture the harmfulness and seriousness of defendant’s conduct, and that defendant possessed the credit cards in order to facilitate the commission of another offense. The district court failed to specify why the amount of loss did not fully represent the harmfulness of defendant’s conduct, and therefore the case was remanded for the district court to further explain why this ground of departure was applicable. The D.C. Circuit also found that although committing an offense in order to facilitate the commission of another offense is a proper ground for departure under guideline § 5K2.9, the district court had failed to state what other offense defendant intended to commit. The D.C. Circuit speculated that the district court was referring to defendant’s intended use of the credit cards for fraudulent purposes. Since defendant was charged with possession of the credit cards with intent to defraud, this would be an improper ground for departure, since the contemplated conduct was already an element of the offense charged. U.S. v. Ogbeide, 911 F.2d 793 (D.C. Cir. 1990).
Florida District Court holds upward departure from bank guidelines warranted when defendants stashed loot and refused to disclose location. (725) The Southern District Court of Florida held that it was appropriate to depart from the guideline ranges of 37-46 months and 30-37 months and imposed 15 year terms on each of two defendants, who robbed an armored car. After the robbery, the defendants had stashed the loot. To date, only $50,000 of 1.6 million dollars had been recovered. The defendants had thus far refused to disclose the location of the proceeds, calculating that if they were going to spend time in prison, they were going to “make it worth their while,” by becoming millionaires upon their release. The court found departure was warranted because they would have no incentive to turn over the money unless their failure to do so would be regarded as an aggravating circumstance. To refuse to depart would “disprove the old adage that crime does not pay’” and encourage future defendants to commit similar crimes. and hide the money in the hope that once released, they would be free to profit from their crimes at the expense of society. U.S. v. Valle, 716 F.Supp. 1452 (S.D.Fla. 1989).
Commission authorizes departure for high-capacity semi-automatic weapons. (725) In Amendment 531, the Commission added a new guideline §2K2.17 authorizing a departure if the defendant possessed a semi-automatic firearm with a magazine capacity of more than ten cartridges, in connection with a crime of violence or controlled substance offense.
Commission authorizes departure where defendant uses firearm to facilitate another firearms offense. (725) Effective November 1, 1992, the Sentencing Commission added application note 11 to section 2K1.3, and note 18 to section 2K2.1 to state that as used in various subsections, “another felony offense” refers to offenses other than explosives or firearms possession or trafficking offenses. “However, where the defendant used or possessed a firearm or explosive to facilitate another firearms or explosive offense (e.g. the defendant used or possessed a firearm to protect the delivery of an unlawful shipment of explosives) an upward departure under section 5K2.6 (weapons or dangerous instrumentalities) may be warranted.”