§721 Departures: Physical or Psychological Injury, Abduction, Restraint
(§5K2.1-.4)
1st Circuit finds “but-for” causation is not required for increase based on fentanyl death. (240)(721) Defendant pleaded guilty to knowingly supplying fentanyl to a man who died as a result of shooting it up. At sentencing, the district court found that the government had not proved that the fentanyl independently caused the man’s death, but found that it was a meaningful cause of death. Accordingly, it departed upward under § 5K2.1 from the guidelines range of 8 to 14 months to a sentence of 60 months. Treating the sentence as an upward variance, not a departure, the First Circuit held that but-for causation was not required, and upheld the sentence. U.S. v. Heindenstrom, __ F.3d __ (1st Cir. Dec. 30, 2019) No. 18-2187.
8th Circuit upholds below-guidelines meth sentence as not too high. (240)(741) Defendant pleaded guilty to methamphetamine trafficking. His guidelines range was 262 to 327 months, but the district court varied downward to 200 months, to avoid disparity with similarly situated defendants. Defendant argued that the sentence should have been even lower because of his criminal history, his good employment history, and his supportive family. The Eighth Circuit found no error, noting that the court considered these mitigating factors, but put more weight on defendant’s weapons, the amount of methamphetamine involved, the fact that drug transactions had frequently put the public at risk, and that one drug transaction had occurred when defendant’s child was present. U.S. v. Escalante, __ F.3d __ (8th Cir. Dec. 26, 2019) No. 18-3033.
8th Circuit upholds below-guidelines child porn sentence despite claim that guidelines are too harsh. (310)(741) Defendant was convicted after trial of receiving and distributing child pornography. His guidelines range was 168 to 210 months, but the district court varied downward to 108 months because of defendant’s lack of criminal history, diagnosis of obsessive-compulsive disorder, and the fact that child pornography formed a small part of defendant’s pornography collection. Defendant argued that the court should have varied down further based on his lack of criminal history and the harshness of the child pornography guidelines. The Eighth Circuit rejected these arguments, finding that the court adequately considered these factors. U.S. v. Fletcher, __ F.3d __ (8th Cir. Dec, 23, 2019) No. 18-3342.
6th Circuit upholds departure for selling fentanyl to opioid addict. (240)(721) Defendant sold an opioid addict what the addict thought was heroin but turned out to be fentanyl. The addict had a stroke and went into a coma. He suffered liver, kidney, and heart failure, and it was six months before he regained day-to-day functioning. Defendant pleaded guilty to distributing fentanyl. At sentencing, the district court enhanced defendant’s sentence under § 5K2.2 because defendant had caused the opioid addict to suffer significant physical injury. On appeal, defendant argued that the opioid addict had made his own choice to engage in street drugs and defendant should not be liable for this choice. The Sixth Circuit found that read as a whole § 5K2.2 rebutted his contention by making defendant’s intent dispositive, not the victim’s intent. U.S. v. Gillespie, __ F.3d __ (6th Cir. July 10, 2019) No. 18-5894.
8th Circuit upholds 75-month upward departure for drug offense that resulted in death. (240)(721) Defendant distributed heroin to a 19-year-old woman who died as a result of ingesting the heroin. Defendant pleaded guilty to distribution of heroin to a person under the age of 21. Defendant’s guidelines range was 15 to 21 months, but the district court sentenced him to 96 months, because defendant “basically had a pharmacy” and the guidelines range did not take into account the victim’s death. The court said it was sentencing defendant to the maximum allowed by the federal involuntary manslaughter statute. The Eighth Circuit held that the district court supplied adequate reasons for departing upward from the guidelines range. U.S. v. Reif, __ F.3d __ (8th Cir. Apr. 11, 2019) No. 17-3729.
8th Circuit approves large upward variance where defendant’s heroin distribution resulted in death. (721)(738)(741) Defendant distributed heroin to his friend Stenger, who died from acute heroin intoxication. Stenger had been taking Vivitrol, a drug to assist with heroin addiction that blocks opiate absorption. Vivitrol makes heroin users susceptible to overdose because they have an incentive to consume more heroin than usual to overcome the Vivitrol blockade. Defendant’s guideline range was 6-12 months, but the district court departed upward to 130 months under § 5K2.1 (authorizing departure where defendant’s conduct resulted in death). The Eighth Circuit upheld the sentence. The district court explained that defendant and Stenger were not strangers, that defendant knew Stenger was taking Vivitrol. Thus, defendant knew Stenger “was physically vulnerable to the possibility of an overdose because of the Vivitrol and possibly because of his asthmatic condition.” The panel rejected defendant’s claims that the court gave too much weight to various factors, finding that 130 months was within the range of reasonableness for a drug offense resulting in death. If defendant had pleaded guilty to an offense that had as an element that his distribution of heroin resulted in death, then he would have faced a 20-year mandatory minimum sentence. See 21 U.S.C. § 841(b)(1)(C). U.S. v. Bollinger, 893 F.3d 1123 (8th Cir. 2018).
1st Circuit affirms psychological injury departure based on victim testimony at resentencing. (721) Defendant was convicted of various crimes related to an armed robbery of a firearms store. The district court departed upward on a number of grounds, including extreme psychological injury under § 5K2.3. In defendant’s first appeal, the First Circuit found insufficient evidence to support this departure. On remand, the victim testified in detail. In defendant’s second appeal, the First Circuit found ample evidence to support the departure without medical records. The district court noted that, aside from the terrorizing nature of the crime, the fact that the victims could identify defendant, led to four years of “non-stop worry and fear” while defendant was on the run. One victim’s functioning had been impaired, leading to separation from his wife and estrangement from his children. The other victim was “a basket case” who quit her job and had to move for fear she would be found by defendant. U.S. v. Wallace, 573 F.3d 82 (1st Cir. 2009).
1st Circuit affirms departure based on significant physical injury that resulted from ketamine supplied by defendant. (721) Defendant pled guilty to charges related to his distribution of ketamine. The district court departed upward under § 5K2.2, which authorizes an upward departure if “significant physical injury resulted” from the offense. The district court relied on the fact that one of his defendant’s regular customers was taken to the hospital for a drug overdose. The victim informed hospital staff that he had taken heroin about one hour before he ingested 200 milligrams of ketamine (twice his usual self-administered dose). The First Circuit affirmed the departure. The district court did not clearly err in finding that the victim’s injuries were attributable to an overdose of ketamine supplied by defendant. Although the victim may have had other sources of the substance, the record contained no proof of that conjecture. The victim was found with two bottles of ketamine, and a priority mail envelope traceable to defendant by his side. Although defendant also ingested heroin, the government was not required to show that ketamine was either the sole source or the direct cause of the injuries. It only had to show that there was a but-for causal connection between ketamine and those injuries. The evidence here met that standard. The hospital records were replete with references to defendant’s “ketamine overdose.” Although other notations mentioned defendant’s ingestion of heroin, the records as a whole supported an inference that ketamine was at least a concurrent cause of the injuries. U.S. v. Pacheco, 489 F.3d 40 (1st Cir. 2007).
1st Circuit finds insufficient evidence of psychological injury suffered by victims of armed robbery. (721) Defendant and his brother robbed a gun dealership at gunpoint. The district court departed in part under § 5K2.3 based on the psychological injury suffered by the store employees. Defendants argued that while the victims were no doubt terrified at the time of the robbery, there was no evidence that they suffered the kind of “substantial impairment” that ordinarily justified the application of this departure provision. The First Circuit agreed that the court’s finding was clearly erroneous. The court did not point to any evidence of the victims’ physical or psychological symptoms or changes in behavior patterns or the extended or continuous duration of any such psychological injuries. There was some testimony at trial regarding the understandable trauma experienced by the victims, but the vast majority of that testimony related to how the victims felt at the time of the robbery. To support the departure ground invoked by the court, there must be evidence of longstanding psychological consequences in the record. While there was evidence that this armed robbery was more terrifying and more personal than typical armed robberies, there was insufficient evidence of sustained psychological injuries suffered by the victims. U.S. v. Wallace, 461 F.3d 15 (1st Cir. 2006).
1st Circuit says court may depart based on death of plainclothes officer shot by arresting officers. (721) While trying to break up an altercation outside a restaurant, defendant waved a gun, and then attempted to flee before being stopped by police. Around the same time, an off-duty police officer in plain clothes emerged from the restaurant with his gun drawn. The uniformed officers, not recognizing their fellow officer, ordered him to drop his weapon. The officer was fatally shot when he failed to comply. The district court departed upward in part under § 5K2.1 because death resulted from defendant’s criminal activity, noting that defendant set in motion a whole series of events that ultimately led to the death of the off-duty officer. Although defendant’s “culpability was at the low end of the spectrum” covered by the policy statement, the First Circuit concluded that defendant’s conduct fell within the scope of § 5K2.1. By using a weapon, defendant invited weapon use by others. “Unintended consequences are often the result of reckless behavior, and … appellant should have foreseen the possibility of serious harm as a result of his waiving a cocked and loaded gun at a crowed of people.” However, the other grounds for departure were improper. Given that defendant had no intent to use the gun other than as a show of force to aid his escape from an escalating confrontation, and was complying with police instruction at the time of the fatal shooting, it was unlikely that the court would have made the same four-level departure based solely on § 5K2.1. U.S. v. Diaz, 285 F.3d 92 (1st Cir. 2002).
1st Circuit holds that pimp’s abduction and beating of prostitutes facilitated conspiracy. (721) Defendant, a pimp, was convicted of various charges relating to a conspiracy to transport women, including three minors, across state lines for the purpose of prostitution. The district court departed upward under § 5K2.4 for the abductions and beatings of two prostitutes who attempted to leave him (one rape and beating in November 1996 and another beating in February 1997). The First Circuit agreed that that the abductions clearly facilitated the offense of conviction. Defendant was charged and convicted of conspiracy to transport women across state lines for prostitution purposes from about June 1996 until about April 1997. The abductions occurred during this period and clearly “facilitated” the commission of the conspiracy. Further, defendant was convicted of a substantive transportation offense that occurred in March 1997. Because the abductions occurred prior to the commencement of that offense, the trial judge could reasonably conclude that they facilitated that offense. Finally, defendant did not commit either of the acts in private. He carried out these attacks in front of other prostitutes in order to send a message. U.S. v. Footman, 215 F.3d 145 (1st Cir. 2000).
1st Circuit affirms large departure for significant physical injury. (721) Defendant shot his girlfriend in the back of the head at point-blank range, leaving her permanently disabled. He pled guilty to being a felon in possession of a firearm, and using a firearm during a drug trafficking crime. The court sentenced defendant to 360 months. The district court later vacated the § 924(c) conviction. At resentencing on the felon in possession charge, the district court departed upward by 144 months under § 5K2.2 for significant physical injury, and imposed a 324-month sentence. The First Circuit affirmed both the reason and extent of the departure. The girlfriend clearly suffered a “significant physical injury” under § 5K2.2. At the time of the first sentencing, she was in a vegetative state and was not expected to survive. By the second sentencing, her condition had improved but she remained “profoundly disabled.” The extent of the departure, although large, was reasonable. The total 27-year sentence was a few years less than the 30-year maximum that defendant might have been given under state law for attempted murder, and a few years more than the 22 ½ years defense counsel alleged defendant would have actually received under state law. U.S. v. Sanders, 197 F.3d 568 (1st Cir. 1999).
1st Circuit approves § 5K2.1 departure for carjacker who killed four people. (721) Defendant pled guilty to carjacking. The district court departed upward in part because defendant murdered four individuals, two of whom were good Samaritans who had stopped to offer assistance. The First Circuit agreed that this factor transported defendant’s activities well outside the mine-run of carjacking cases. Section 5K2.1 encourages courts to consider an upward departure if the relevant offense conduct results in multiple deaths. The extent of the departure (from level 40 to 43) was reasonable, given the “sordid facts of the case.” U.S. v. Carrion-Cruz, 92 F.3d 5 (1st Cir. 1996).
1st Circuit approves upward departure based on abuse victims’ severe psychological injury. (721) Defendant sexually abused two of his great nieces, ages 8 and 11, when they visited his house. Police found at his house sexually explicit photos of the girls, a video tape showing defendant in a sexual encounter with the 8-year-old, and photos indicating that he had abused other young girls. The First Circuit affirmed an upward departure under § 5K2.3 based on the victims’ severe “psychological injury.” An expert witness testified that the 8-year-old had suffered damage more severely than most children who had experienced the nature and duration of what she experienced. Even if the disputed references to degrading conduct and betrayal were struck, there was no doubt that the district court would still impose the same two level departure. U.S. v. Dolloph, 75 F.3d 35 (1st Cir. 1996).
1st Circuit rejects departure for loss of life savings and psychological injury. (721) Defendant defrauded a number of her friends, business associates and former customers out of more than $500,000. The district court departed upward, finding the loss table in § 2F1.1 did not fully capture the harmfulness of defendant’s conduct because (a) some of the victims lost their entire life savings, and (b) some of the victims suffered “extreme psychological injury.” The 1st Circuit reversed. The failure to have a secure financial future doss contemplated by application note 10 to § 2F1.1. The bases listed in note 10 all suggest unusual repercussions beyond the loss of financial capacity and the general sense of betrayal normally associated with fraud by false pretenses. There was insufficient evidence of extreme psychological injury under § 5K2.3. The lack of trust, frustration, shock, and depression suffered by defendant’s victims were not so outside the heartland of fraud offenses as to constitute extreme psychological injury. U.S. v. Pelkey, 29 F.3d 11 (1st Cir. 1994).
1st Circuit upholds large departure in alien smuggling case for dangerous conditions, use of a gun, and passengers’ deaths. 721) Defendant pled guilty to charges stemming from two separate boat trips to smuggle aliens into the United States. On one trip, defendant forced his passengers at gunpoint into the water 100 yards from shore, and two women drowned. The district court, citing the dangerous conditions, defendant’s use of a gun and the deaths, departed upward and imposed a five year sentence for one count, and a consecutive four year sentence for the other. The 1st Circuit affirmed. The district court was entitled to depart under § 2L1.1, application note 8, based solely on the dangerous conditions created by an inadequately equipped vessel. It was also clearly permissible to treat as an aggravating factor the fact that defendant had forced passengers into the water resulting in two deaths. The judge’s findings were supported by the evidence. There was no inconsistency between the probation officer’s finding that defendant did not anticipate the death of any of his passengers and the judge’s use of the word “murder” to describe the incident. U.S. v. Hernandez-Coplin, 24 F.3d 312 (1st Cir. 1994).
1st Circuit affirms upward departure where gun used to shoot victim was “relevant conduct.” (721) Defendant’s girlfriend was shot in the head. A search of defendant’s apartment uncovered three firearms. He was convicted of being a felon in possession of a firearm. There was no evidence that any of those firearms were used in the shooting. Nonetheless, there was significant evidence that defendant committed the shooting and the district court departed upward under section 5K2.2 based upon the significant physical injury to the victim. The 1st Circuit affirmed the upward departure based on the uncharged relevant conduct. Even if the weapon which wounded defendant’s girlfriend was not one of those listed in the indictment, defendant’s possession of it was relevant conduct. The illegal possession of four separate firearms could easily be viewed as part of the same course of conduct under section 1B1.3. The 38-month departure, in view of the victim’s permanent vegetative state, was not unreasonable. U.S. v. Sanders, 982 F.2d 4 (1st Cir. 1992).
1st Circuit affirms upward departure based on extreme psychological harm suffered by child sexual abuse victim. (721) 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 in alien smuggling case based upon endangerment of human lives. (721) Defendant attempted to smuggle 70 illegal aliens from the Dominican Republic to Puerto Rico in a 30-foot open boat. The district court found that defendant had endangered their lives, and departed upward from 14 months to 36 months. The 1st Circuit affirmed, finding the dangerous circumstances sufficient to justify the departure. Unlike other boats routinely intercepted by marine authorities, defendant’s boat had to be dismantled because immigration authorities concluded that it was unsafe. The new version of the guidelines no longer requires the concurrence of both “a large number of aliens” and “inhumane treatment” for the court to consider an upward departure. Since defendant’s criminal conduct could have resulted in the death of 70 people, the extent of the departure was reasonable. U.S. v. Reyes, 927 F.2d 48 (1st Cir. 1991).
2nd Circuit holds that court erred in departing absent finding that harm to victim was more serious than normal. (721) Defendant pled guilty to knowingly receiving and possessing child pornography. The Second Circuit held that the court erred in departing upward under § 5K2.3 finding that the harm to the victim was much more serious than that normally resulting from the underlying offense. The court merely concluded that the psychological injury suffered by the victim was a “substantial impairment.” However, one would expect that any child who is sexually abused and used to produce child pornography would suffer substantial impairment. The evidence in the record as to the victim’s harm was not sufficient for the appellate court to conclude that the harm was more serious than that normally resulting. U.S. v. Lasaga, 328 F.3d 61 (2d Cir. 2003).
2nd Circuit says upward departure for seriousness of injuries was not improper double counting. (721) Defendant pled guilty to one count of assault resulting in serious bodily injury. He received a six-level enhancement under § 2A2.2(b)(3)(C) for permanent or life-threatening bodily injury. Because of the devastating extent of the victim’s injuries, including testimony from the victim’s wife that he was missing the left side of his brain and would never wake up, the district court also departed upward under § 5K2.2. The court imposed a sentence of 180 months, up from a guideline range of 92-115 months. Defendant argued that the sentence was unreasonable because the court impermissibly “double counted” the severity of the victim’s injuries. The Second Circuit disagreed, and held that the sentence was reasonable. Following Booker, a district court has broad latitude to impose either a Guidelines sentence or a non-Guidelines sentence. An appellate court is limited to examining a sentence for reasonableness. Defendant did not point to any guideline or statute that reflected a legislative intent to preclude the double counting the district court used. U.S. v. Reyes, 557 F.3d 84 (2d Cir. 2008).
2nd Circuit affirms departure where court failed to challenge additional grounds relied on by court. (721) Defendant was convicted of attempted extortion after he threatened to kidnap the young daughter of the bankruptcy trustee because the trustee was taking too long to process a check. The district court departed upward for extreme psychological injury and other aggravating circumstances. See USSG §§ 5K2.0 and 5K2.3. Defendant argued that the sentencing court did not make factual findings sufficient to show that his crime involved aggravating circumstances beyond those contemplated by the guideline. The Second Circuit agreed that the court did not explain how defendant’s action caused harm beyond the typical case, but nonetheless refused to order the sentencing court to reconsider the departure on remand. The court relied on both § 5K2.0 and § 5K2.3. With regard to § 5K2.0, the court listed a number of factors that warranted a departure, including “the nature of what was expressed, the nature of the people involved and the numbers of people involved, the verbal force [with] which the threats were expressed, the period of time over which they occurred, [and] the position of [defendant].” In his opening brief, defendant raised no objection to the sentencing court’s reliance on these factors under § 5K2.0. Ordinarily, an appellate court cannot consider issues the defendant himself did not raise or brief. If any error was committed by the court with regard to § 5K2.0, it did not rise to the level of manifest injustice that would warrant a departure from this rule. U.S. v. Crispo, 306 F.3d 71 (2d Cir. 2002).
2nd Circuit approves extreme conduct and psychological injury departure for repeated threats. (721) 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 for defendant who permanently disabled officer. (721) Defendant was convicted of drug and robbery charges. The district court departed upward under § 5K2.2 because the robbery victim, an undercover officer, was shot twice in the back and suffered serious permanent injuries. Defendant argued that before departing upward, the district court should have grouped the narcotics conspiracy conviction and the robbery conviction and then considered the adjustments under § 2B3.1. The 2nd Circuit found no error. The robbery and narcotics conspiracy were not grouped because they were not closely related counts. Defendant was a member of two separate conspiracies. Further, although § 2B3.1 and 2A2.1 considered the extent of the officer’s injuries, neither explicitly considered the intentional nature of the injuries nor the defendant’s indifference to inflicting them. The guidelines did not adequately take into consideration this aggravating intentional factor or the degree of defendant’s behavior. U.S. v. Jones, 30 F.3d 276 (2nd Cir. 1994).
2nd Circuit affirms departure for psychological injury to recipient of threatening letters. (721) Defendant was convicted of mailing three threatening letters to the same victim. The 2nd Circuit affirmed an upward departure under section 5K2.3 based on the psychological harm to the victim. The district court determined that defendant was responsible for three years’ worth of harassment, not just thee three threatening letters he admitted sending. The victim was afraid to answer the telephone or open her mail for three years and was afraid to remain in the New York area. Her husband was dying of cancer during the years of harassment and the wife viewed the harassment as hastening his demise. U.S. v. Miller, 993 F.2d 16 (2nd Cir. 1993).
2nd Circuit finds insufficient evidence to support departure based on psychological harm to fraud victims. (721) Defendant feigned a romantic interest in older women in order to obtain money from them, and then absconded with the money. The 2nd Circuit found that there was insufficient evidence to support an upward departure under section 5K2.3 based on the psychological harm to the victims. Although one victim testified that she suffered a nervous breakdown, she never stated that defendant’s conduct was the primary, or even a major factor, in the breakdown. Another woman testified that she had lost her job because of the fraud, and had seen a therapist until she could no longer afford it. The experience had also made her reticent to pursue romantic interests in other men. These injuries, by themselves, did not support the departure, since the base offense level for fraud and the vulnerable victim enhancements had already taken into account the harm to the victims. Fraud will generally tend to reduce its victims’ self-esteem. U.S. v. Mandel, 991 F.2d 55 (2nd Cir. 1993).
2nd Circuit upholds upward departure based on violence against co-conspirator. (721) Defendant kidnapped and assaulted one of his co-conspirators to coerce him to continue to participate in the mail fraud scheme. The district departed upward under § 5K2.4, which authorizes an upward departure where a person is abducted to facilitate the commission of the offense of conviction. The 2nd Circuit affirmed, rejecting defendant’s argument that since his act could not have been prosecuted as a federal offense, it was not an appropriate ground for departure. Where violent misconduct, although not itself violating federal law, is undertaken in furtherance of the federal offense, the district court is permitted to depart on the basis of that misconduct. Moreover, guideline § 5K2.4 is not limited to acts of violence against victims of the underlying crime. There is no language indicating that the person abducted cannot be a co-conspirator. U.S. v. Uccio, 940 F.2d 753 (2nd Cir. 1991).
2nd Circuit affirms upward departure based upon severe psychological harm to victim. (721) 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 upholds upward departure based upon finding that defendants’ “intended” or “knowingly risked” another’s death. (721) The district court originally departed upward under guideline § 5K2.1 because it found that the offense of conviction was “intertwined” with the death of a woman. The 2nd Circuit had remanded the case, U.S. v. Rivalta, 892 F.2d 223 (2nd Cir. 1989), because it found that an upward departure would only be justified under guideline 5K1.2 if the defendants had “intended” or “knowingly risked” the woman’s death. The district court then made this finding and reimposed the same sentences. The 2nd Circuit upheld the upward departure. U.S. v. Rivalta, 925 F.2d 596 (2nd Cir. 1991).
2nd Circuit reverses upward departure for lack of explicit findings connecting defendants with a death. (721) Defendants transported and sold a stolen diamond obtained from a diamond dealer who disappeared before the defendant’s arrest and was later found dead. The sentencing judge found that the offense level involved (2B1.2) did not take into account the risk of personal injury. Therefore, the district court departed upward pursuant to guidelines 5K2.1, which allows an upward departure if death results from a criminal offense. The 2nd Circuit held that loss of life does not automatically suggest a sentence at or near the statutory maximum. Factors under 5K2.1 such as whether defendants “intended” or “knowingly risked” the life of another must be considered in order to make an appropriate departure. The 2nd Circuit noted there was “persuasive circumstantial evidence” connecting defendants with the death. However the court remanded and reversed based on a lack of explicit findings by the district court that the death “resulted” from defendant’s actions and lack of explicit findings that defendant’s “knowingly risked” or “intended” the death as required by guideline 5K2.1. U.S. v. Rivalta, 892 F.2d 223 (2nd Cir. 1989).
3rd Circuit finds court improperly relied on defendant’s need for medical care in imposing sentence. (721) Defendant argued that the district court violated 18 U.S.C. § 3582(a), as well as U.S. v. Manzella, 475 F.3d 152 (3d Cir. 2007), when it determined the length of his imprisonment by taking into consideration his need for medical treatment for end-stage liver disease. Section 3582(a) directs a court to consider the § 3553(a) factors in imposing a term of imprisonment, but states that “imprisonment is not an appropriate means of promoting correction and rehabilitation.” Manzella ruled that the district court erred in setting the length of defendant’s prison term solely for rehabilitative reasons. Based on the district court’s explanation of its sentence, it was clear that defendant’s need for medical care was a principal factor in his receiving a sentence of incarceration at the top of the Guidelines range. Given that, the Third Circuit found that the district court violated § 3582(a) and remanded for resentencing. Although defendant’s need for medical care was not the sole determining factor, (whereas in Manzella rehabilitative reasons were the sole determining factor), defendant’s sentence still violated § 3582(a). U.S. v. Hoffa, 587 F.3d 610 (3d Cir. 2009).
3rd Circuit affirms departure for extreme physical pain suffered by shooting victim. (721) Defendant shot a letter carrier delivering mail outside his apartment. One bullet hit the postal worker in her arm, ripping a hole just above her left elbow. The bullet then entered her abdomen and bullet fragments were spread throughout, severing the left lobe of her liver, perforating her duodenum, lacerating her pancreas, and fracturing her rib. The victim was hospitalized for a month, underwent four surgeries for her arm, and had not regained full use of her hand and arm due to the nerve damage. In a letter to the probation department, the victim stated that she suffered serious physical pain every day, including pain and indigestion when she ate, serious pain in her arm, as well as an inability to perform daily functions such as cutting food or typing letters. The Third Circuit affirmed a two-level upward departure under § 5K2.2 based on the extreme physical pain suffered by the victim. The district court did not abuse its discretion in finding that the six-level increase under § 2A2.2(b)(3)(C) for permanent or life-threatening injury was inadequate. “A relatively modest permanent injury gets you six levels, therefore, it might only be fair, logical and reasonable to depart upward so you get seven, eight or nine levels if it’s extraordinary permanent injury….” U.S. v. Philiposian, 267 F.3d 214 (3d Cir. 2001).
3rd Circuit approves departure for psychological injury and endangering solvency of fraud victims. (721) Defendant participated in two separate fraudulent schemes that bilked investors out of more than $880,000. The district court departed upward by five levels after determining that defendant caused psychological injury to his victims and knowingly endangered their solvency. The Third Circuit affirmed. Note 11 to § 2F1.1 specifically authorizes a departure where the loss did not fully capture the harmfulness of the conduct. See also USSG § 5K2.3 (authorizing departure for psychological injury). Defendant’s victims included blue collar workers near retirement who lost their entire life savings, and would be forced to live their retirement years in destitution. Two of the victims were on depression medication and saw a mental health professional in order to deal with their trauama. In addition, the fraud guideline encourages departures when a defrauding party endangers the solvency of at least one victim. See Note 11(f). Actual insolvency is not required – an upward departure is proper when the defendant knew, or should have known, that the fraud potentially endangered the victim’s solvency. This standard may be satisfied even where the risk is limited to the victim’s liquid assets. Here, defendant divested one victim of all her liquid assets, amounting to $45,444. The fact that she retained her house, worth $65,000, was irrelevant. U.S. v. Jarvis, 258 F.3d 235 (3d Cir. 2001).
3rd Circuit departs for extreme psychological damage caused by embezzlement from pension plan. (721) Defendant embezzled money from a profit sharing plan to pay the operating expenses of three failing companies he owned, and engaged two lawyers to create false documents indicating that the withdrawals had been part of a lawful employee stock ownership plan. The district court departed upward two levels under § 5K2.3 based on the extreme psychological damage to the victims. The court noted the emotional costs of defendant’s crimes, including “the humiliation of being forced to seek work at an advanced age and rely on help from family members, the trauma that comes from losing one’s savings, and the psychological damage resulting from resisting slurs, threats, frivolous lawsuits, and pressure from tax authorities.” The Third Circuit agreed that the record supported a finding that defendant caused psychological injury “much more serious” than would normally result from this type of fraudulent activity. The record contained the same type of evidence of individual loss and resulting medical complications found sufficient in U.S. v. Astorri, 923 F.2d 1052 (3d Cir. 1991). U.S. v. Helbling, 209 F.3d 226 (3d Cir. 2000).
3rd Circuit rules court made insufficient findings for extreme psychological injury departure. (721) Defendant pled guilty to an aggravated assault on his former girlfriend. Section 5K2.3 authorizes a departure where the victim suffered a psychological injury much more serious than that normally resulting from commission of the offense. The district court found that the victim was suffering from post-traumatic stress disorder, mood disorders, depression, anxiety and sleeplessness. The Third Circuit held that the court made insufficient findings to support a § 5K2.3 departure because the court did not find that the victim’s psychological injury was “much more serious than that normally resulting from the commission” of an aggravated assault. This finding is a prerequisite to a § 5K2.3 departure. In addition, the judge failed to articulate the reasons for the extent of the departure. On remand, the court might find helpful guidance in § 2A2.2(b) of the aggravated assault guideline. The guidelines treats physical and non-physical injuries as being of substantially similar seriousness. Thus, it would be inconsistent with the guidelines to depart upward by four or more levels under § 5K2.3 without finding that the extreme psychological injury was likely to be protracted. U.S. v. Jacobs, 167 F.3d 792 (3d Cir. 1999).
3rd Circuit rejects departure based on judicial speculation about harm to victims. (721) When Hurricane Hugo hit the Virgin Islands, defendant’s fraudulently under funded insurance company was unable to meet the claims of its policyholders. The district court departed one level under note 9 to § 2F1.1 for the psychological harm risked or caused by the offense and one level for the loss of confidence in an important institution. The Third Circuit reversed since the departures were based on speculation rather than evidence. Although a court has considerable deference in assessing psychological impact on victims, the court must not merely speculate regarding psychological harm. There was no evidence here regarding physical or psychological harm to the victims. The departure based on harm to the insurance industry was not based sworn testimony, but on an unsupported judicial conclusion. Such judicial speculation cannot provide the basis for an upward departure. U.S. v. Neadle, 72 F.3d 1104 (3d Cir. 1995), amended, 79 F.3d 14 (3d Cir. 1996).
3rd Circuit holds that applying amended commentary violated ex post facto clause. (721) Defendant was convicted of obstruction of justice. Section 2J1.2(c) cross-references the guideline for the underlying criminal activity when a defendant obstructs “the investigation or prosecution of a criminal offense.” The district court found that defendant conspired to obstruct a fraud proceeding against himself, and applied the fraud guideline. The 3rd Circuit reversed, agreeing with defendant that the commentary to the 1989 guidelines (in effect when he committed his crime), directed a court to use the cross-reference only when the obstruction was aimed at helping another person escape punishment. Therefore, applying the cross-reference to defendant violated the ex post facto clause. The 1991 amendment was not a clarifying amendment, but a substantive change. U.S. v. Bertoli, 40 F.3d 1384 (3rd Cir. 1994).
3rd Circuit affirms upward departure based upon multiple assault victims. (721) Defendant and a codefendant assaulted three Assistant U.S. Attorneys but pled guilty to assaulting only one of them. The district court departed upward by three levels based on defendant’s assault of multiple victims. The 3rd Circuit affirmed, finding no evidence that the sentencing commission considered multi-victim aggravated assaults in formulating guideline § 2A2.2(b)(1). The three-level departure was also reasonable, even though only two additional victims were involved. The district court structured the departure using the concept of grouping the counts, treating defendant as if he had been convicted of three counts of aggravated assault. U.S. v. Johnson, 931 F.2d 238 (3rd Cir. 1991).
3rd Circuit upholds upward departure based upon extreme psychological injury caused by defendant’s fraud. (721) Defendant’s fraudulent stock scheme swindled various people, including several elderly people, out of large sums of money. The district court increased defendant’s offense level under guideline § 5K2.3 for infliction of extreme psychological injury. The appellate court found sufficient evidence to support this finding. At least two of the couples were elderly and lost their entire life savings. One of the women was forced to seek treatment for high blood pressure, and continued to be under a doctor’s care. One of men who was already in poor health displayed adverse physical and behavioral effects. Judge Hutchinson, dissenting in part, argued that the district court’s findings were clearly erroneous because they were based upon unsupported lay statements. He also found that the victims’ age and financial circumstances were already considered in the guidelines. U.S. v. Astorri, 923 F.2d 1052 (3rd Cir. 1991).
3rd Circuit finds defendant’s intent to kill was a proper basis for departure in firearms and explosives case. (721) Defendant was sentenced under guidelines § 2K2.1 (possession of firearms by prohibited persons), 2K2.2 (possession of firearms in violation of regulatory provisions), and 2K1.6 (transporting explosives with knowledge that others will use the explosives to harm people or property). Defendant argued that these guidelines considered his specific intent to kill, and therefore this was not a proper ground for an upward departure. The 3rd Circuit rejected this argument, finding no clear textual evidence that this factor was considered. Although the firearms guidelines obviously incorporated “some presumption of intended unlawful use,” the intent to shoot and kill someone was “sufficiently different” from other less egregious unlawful uses. Likewise, there is a distinction between one who transports explosives with the knowledge that others will use the explosives to harm people and property, and one who transports explosives intending to harm people and property himself. Defendant’s intent to kill was a proper ground for departure. U.S. v. Kikumura, 918 F.2d 1084 (3rd Cir. 1990), overruled on other grounds by U.S. Grier, 449 F.3d 558 (3d Cir. 2006).
3rd Circuit reverses upward departure, where defendant could not foresee risk of harm his co-defendants created by attempting to escape. (721) Defendant was involved in a conspiracy to sell stolen property. As arrests were being made, two co-defendants fled and a high speed chase ensued. The sentencing court departed upwards based in part on the risk of harm posed by the co-defendants’ attempt to flee. The 3rd Circuit reversed, holding that defendant could not reasonably foresee the significant danger to public safety posed by his co-defendant’s actions. Unlike a bank robbery, those bartering in stolen property “may reasonably foresee absolutely no risk of physically harming others by their actions.” U.S. v. Chiarelli, 898 F.2d 373 (3rd Cir. 1990).
4th Circuit upholds finding that possession of gun caused probation officer psychological injury. (721) Defendant carried a loaded revolver in a bag during a meeting with his probation officer. Police officers arrested defendant during the meeting and found the gun, and defendant pleaded guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). At sentencing, the probation officer testified that defendant’s conduct caused her to wear a bullet-proof vest and to seek a transfer after 25 years as a probation officer. Based on the officer’s testimony, the district court increased defendant’s offense level under § 5K2.3 because he had caused psychological injury to the probation officer. The Fourth Circuit found that the district court had not clearly erred in finding that defendant’s conduct caused psychological injury. U.S. v. Alvarado-Perez, 609 F.3d 609 (4th Cir. 2010).
4th Circuit upholds departure from 60 months to 262 months for death and physical injury. (721) Defendant and two co-defendants went to the wrong house attempting to collect a drug debt. A co-defendant shot and killed one of the occupants, and on the way out, defendant shot and injured a passerby. The district court departed upward from 60 months to 262 months, after applying the 5-step analysis in U.S. v. Rybicki, 96 F.3d 754 (4th Cir. 1996). The court noted that death and physical injury are encouraged bases for departure under §§ 5K2.1 and 5K2.2. “Unintended consequences are often the result of reckless behavior, and while perhaps [defendant] could not have anticipated the particular sequence of events, [he] should have foreseen the possibility of serious physical harm to another as a result of his actions. The district court “understandably reduced [defendant’s] offense level by four levels for his less culpable role in the death.” The sentence was not an abuse of discretion. U.S. v. Scheetz, 293 F.3d 175 (4th Cir. 2002).
4th Circuit approves upward departure for death of kidnapping victim. (721) Defendant persuaded a young woman to accompany him in his car across states lines. He later killed her. He was convicted of kidnapping. The district court imposed a life sentence based either on a cross-reference to the murder guideline or an upward departure under § 5K2.1 for the death of the kidnapping victim. The Fourth Circuit affirmed the life sentence based on the § 5K2.1 departure. Death is an encouraged basis for departure and section 2A4.1 of the 1990 guidelines only took into account the very limited circumstances of a defendant who kidnaps an individual for the purpose of killing her. This is distinguishable from a defendant who kidnaps a victim for another reason and later forms the intent to kill. The extent of the departure was reasonable, because the court found defendant guilty of first-degree murder. U.S. v. Metre, 150 F.3d 339 (4th Cir. 1998).
4th Circuit reverses departures for danger to public, death, and psychological harm to victims’ families. (721) Defendant engaged in a high-speed car race with another car that resulted in the death of the other driver and two innocent drivers. He was convicted of involuntary manslaughter and reckless driving. The district court departed upward by (a) eight levels under § 5K2.14 to reflect the danger to the public, (b) four levels under § 5K2.1 to account for the additional death of the other driver, and (c) three levels under § 5K2.3 based on the extreme psychological impacts to the families of the victims. The Fourth Circuit reversed. The base offense level for the involuntary manslaughter conviction was already increased under § 2A1.4(a)(2) from 10 to 14 due to his reckless driving. Thus, to make a § 5K2.14 departure, the district court needed to find that defendant’s reckless driving was so extraordinary as to be outside the “heartland.” Although the deaths of the two innocent bystanders were taken into account under the manslaughter guideline, the district court found a § 5K2.1 departure appropriate in light of the death of the other race participant. A § 5K2.1 departure is permitted even when the decedent was an active participant in the activity that resulted in his death. However, the departure here was an abuse of discretion because § 5K2.1 requires the court to base the extent of the departure on the defendant’s state of mind. Finally, the § 5K2.3 was improper because the families of the decedents were not victims of the offense under the guidelines. An indirect victim must have some nexus or proximity to the offense. U.S. v. Terry, 142 F.3d 702 (4th Cir. 1998).
4th Circuit approves departure for assaulting wife and putting her in trunk for several days. (721) 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 approves departure for assaulting wife and putting her in trunk for several days. (721) 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. (721) 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 says threatening letters caused extreme psychological injury and were extreme conduct. (721) 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 affirms upward departure for murder related to defendant’s drug crime. (721) Defendant was convicted of drug crimes. The district court departed upward based on evidence that defendant had killed a government informant to protect his drug business. On appeal, the 4th Circuit affirmed. First, there was ample testimony at sentencing to support the finding that defendant killed the informant. Second, it was not improper to base a departure on a crime for which defendant had not been convicted. The death was related to defendant’s drug business and was therefore relevant conduct for sentencing purposes. Proof beyond a reasonable doubt was not required. Third, the informant’s murder was an aggravating factor not identified in the guidelines. Section 5K2.1 provides that if an offense resulted in death, an upward departure may be warranted. Finally, the extent of the departure, from a range of 70-87 to a sentence of 240 months, was not unreasonable. The court analogized to section 2D1.1(a)(2) (applicable where death results from drug use), section 2A1.1 (applicable to 1st degree murder) and the federal death penalty statute. U.S. v. Melton, 970 F.2d 1328 (4th Cir. 1992).
5th Circuit holds that upward departure for multiple deaths was proper. (721) Defendants were part of a loose organization of illegal-alien smugglers. They were arrested after 19 aliens died as a result of being transported by the organization in an overcrowded tractor trailer. Defendants challenged upward departures based on the large number of aliens who died, contending that this was already accounted for by a nine-level adjustment for the number of aliens transported and an eight-level adjustment for the occurrence of a death. The Fifth Circuit affirmed the departures. The Guidelines expressly contemplates upward departures where multiple deaths occur, § 5K2.1, or otherwise where the circumstances are not adequately incorporated into the Guidelines. The upward departures took into account 18 deaths not otherwise provided for. U.S. v. Rodriguez, 553 F.3d 380 (5th Cir. 2008).
5th Circuit approves upward departure for psychological trauma suffered by young abuse victim. (721) Defendant sexually molested a seven-year old girl who lived near him. The district court departed upward under § 5K2.3 based upon the extreme psychological injury suffered by the girl. The court found credible the representation of the girl’s treatment manager that she would suffer long-term psychological affects, such as lack of trust (especially of adults), that were excessively severe. The doctor testified she had evaluated hundreds of victims of sexual abuse and that the girl’s trauma was “the most severe of anybody [she] ha[d] ever worked with.” Additionally, the record demonstrated that the girl’s trauma manifested itself physically. On several occasions, when the girl was asked to talk about the incident, she became physically ill, including severe crying, vomiting and fever. The doctor described these symptoms as those generally associated with a patient suffering from Post Traumatic Stress Disorder. Family members also testified that the girl had become introverted and aggressive. The Fifth Circuit held that the departure was not an abuse of discretion. U.S. v. Hefferon, 314 F.3d 211 (5th Cir. 2002).
5th Circuit affirms obstruction increase and upward departure for hiding fugitive co-defendant. (721) The district court imposed a § 3C1.1 enhancement and departed under § 5K2.0 and § 5K2.2 because defendant and his wife hid his fugitive co‑defendant at his house during the trial. The wife testified that when defendant called her from jail, she told him that the co‑defendant was present at the house. Defendant told her to put the co‑defendant in a motel because he could be criminally charged for having the fugitive at his house. Defendant argued that this did not establish obstruction of justice, only that he knew that his co‑defendant was present at his home. The Fifth Circuit held that the § 3C1.1 enhancement and the upward departure were properly based on defendant’s knowledge that his co‑defendant, a fugitive, was present in his home during the trial. Hiding the co‑defendant allowed defendant to present a defense at trial that blamed the co‑defendant. U.S. v. Ismoila, 100 F.3d 380 (5th Cir. 1996).
5th Circuit approves upward departure for cruel and degrading circumstances of death of carjacking victim. (721) 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 approves § 5K2.1 departure where robbery victim later died from aneurysm. (721) Defendant robbed four gas stations at gunpoint. The trauma of one robbery caused a station employee to suffer a Berry aneurysm at the base of her brain, resulting in her death two days later. The 5th Circuit approved an upward departure under § 5K2.1 based on the death of the employee. A district court is not required to find that all of the § 5K2.1 factors exist in order to depart upward. The district court found that although defendant did not consciously intend to kill the victim, he should have anticipated that a serious injury or death could result from his conduct. This showed that the court considered the relevant § 5K2.1 factors. U.S. v. Davis, 30 F.3d 613 (5th Cir. 1994).
5th Circuit affirms departure based on rapes, psychological injury and heinous conduct. (721) 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 affirms large departure based on murder of theft victim. (721) Defendant pled guilty to theft of a U.S. treasury check and was sentenced under section 2F1.1. Her offense level was increased to 13 under section 2F1.1(4) because the offense involved the conscious or reckless risk of serious bodily injury. This resulted in a guideline range of 15 to 21 months. The district court found that defendant had murdered the theft victim. It departed upward under section 5K2.1 to the maximum statutory sentence of 120 months. The 5th Circuit affirmed, holding that the serious-bodily-injury adjustment did not preclude a departure for death. The extent of the departure, while large, was also approved. The court declined to determine whether such a large departure requires proof by a preponderance of the evidence or by clear and convincing evidence, since the evidence that defendant murdered the victim was ample under either standard. U.S. v. Billingsley, 978 F.2d 861 (5th Cir. 1992).
5th Circuit finds insufficient evidence of extreme psychological injury to victim. (721) The district court departed upward due to psychological harm inflicted on one of the aliens smuggled by the defendants. The defendants attempted to force a 15-year old girl to work as a prostitute until she could pay her fee. When she objected, the co-defendant threatened to cut off her hands and take her back to Mexico, and brandished a revolver. When the girl ran away, they tracked her down and threatened her again. The 5th Circuit rejected this ground for departure, concluding that this did not rise to the level of “substantial impairment of the intellectual, psychological, emotional or behavioral functioning” required by section 5K2.3. The court stated only that defendant’s conduct “resulted in psychological harm to the alien” and that she was placed on tranquilizers “due to a possible nervous breakdown.” There was no evidence of alleged substantial impairment or its duration. U.S. v. Lara, 975 F.2d 1120 (5th Cir. 1992).
5th Circuit upholds upward departure based on death of drug user who overdosed. (721) A drug user died of an overdose after ingesting some unusually pure heroin that defendant sold to her. Defendant was subsequently convicted of selling heroin to the undercover agent. The 5th Circuit affirmed an upward departure based upon section 5K2.1, which permits a departure if death results. The district court found that defendant appreciated the dangerousness of the drug he was distributing and reasonably foresaw death as a result. He was distributing unusually pure heroin to junkies and users, rather than to other distributors who would be expected to dilute the drug for resale. Although the user who died was not a “victim” of the offense of conviction, there was a sufficient nexus between the death and the offense of conviction to apply section 5K2.1. Although in most cases the harm involved will be suffered by the victim of the instant offense, the guidelines do not require this. Rather, the harm must merely be “relevant” to the offense of conviction. U.S. v. Ihegworo, 959 F.2d 26 (5th Cir. 1992).
5th Circuit holds that 4 level enhancement for kidnapping during robbery did not reflect seriousness of kidnapping bank president. (721) Defendant kidnapped a bank president during a robbery and pled guilty to robbery. The district court departed upward, ruling that the robbery guidelines did not adequately reflect the seriousness of defendant’s crimes. The 5th Circuit affirmed. While noting that the general robbery guideline has a 4 level enhancement for kidnapping during a robbery (§ 2B3.1(4)), the court held that this section “does not .ÿ.ÿ. take into account the uniquely severe punishment prescribed by Congress for abduction or kidnapping in connection with a bank robbery.” The court found the 4 level enhancement to be “inadequate to reflect the seriousness of the conduct in issue.” Other factors that supported departure were defendant’s former position as a police officer, the extended duration of the kidnap and the threats made to the bank president. U.S. v. Pridgen, 898 F.2d 1003 (5th Cir. 1990).
5th Circuit finds that location of offense and status of victim may be used to depart from guideline range. (721) Defendant, a crew member on a tuna fishing boat, shot his captain in the leg after the captain cut off his daily pay for refusing to work. The 5th Circuit held that it was proper for the District Court to depart from the 41-51 month range and impose an 8 year sentence. Despite the defendant’s assertions, the departure was not based upon factors already considered by the guidelines (discharge of a firearm and causing serious bodily injury), but rather the location of the offense on the high seas and the victim, the captain of the vessel. These factors were of great gravity and were not adequately taken into account by the guidelines. The court stated that it was “aware of no other civil calling in which obedience to the employer’s orders is enforced by criminal sanctions.” No findings were necessary because these facts were not disputed. U.S. v. Avila-Iscoa, 888 F.2d 1049 (5th Cir. 1989).
5th Circuit finds death of kidnapping victim is proper grounds for departure. (721) Defendant was convicted of kidnapping and the district court departed upward from the guidelines and imposed a 30-year sentence on the grounds that the defendant was a career offender under § 4B1.1. The 5th Circuit affirmed the sentence on the grounds that § 5K2.1 permits a departure from the applicable range if death resulted. Thus, it stated that it need not decide whether the district court properly found that the defendant was a career offender. U.S. v. Melton, 883 F.2d 336 (5th Cir. 1989).
5th Circuit holds defendant’s reckless driving, causing death and injury, was proper grounds for departure. (721) Defendant pled guilty to transporting illegal aliens. The district court made an upward departure from the appropriate range of 4-10 months and imposed a three year sentence. On appeal, the 5th Circuit affirmed the departure as proper on the grounds that the defendant’s reckless driving while attempting to escape had resulted in the death of one alien (§ 5K1.1) and required hospitalization of five others (§ 5K1.2). The sentence was reasonable given the extent of injury caused and the degree of the defendant’s culpability. U.S. v. Salazar-Villarreal, 872 F.2d 121 (5th Cir. 1989).
6th Circuit holds that upward departure for physical injury to guard was improper double counting. (721) Defendants committed an armed robbery of a restaurant, shooting and severely injuring a private security guard. They received a six-level enhancement under § 2B3.1(b)(3)(C) for permanent or life-threatening bodily injury. In addition, the district court departed upward by five levels under § 5K2.2 for the gravity of the injury inflicted on the guard (his dominant right arm had to be amputated). The Sixth Circuit held that the § 5K2.2 departure constituted improper double counting. Section 5K2.0 states that “physical injury would not warrant departure from the guidelines when the robbery offense guideline is applicable because the robbery guidelines includes a specific adjustment based on the extent of any injury.” Departure may be proper in “unusual circumstances” if the weight attached to a particular factor under the guidelines “is inadequate or excessive.” Such extreme or unusual circumstances did not exist here. If physical injury no worse than the guard’s justified an upward departure, it would be justified in most robberies involving life-threatening or permanent injury. U.S. v. Baker, 339 F.3d 400 (6th Cir. 2003).
6th Circuit approves large upward departure for fraud defendant who killed three people. (721) Defendant was convicted of a variety of fraud counts for fraudulently forging and cashing Social Security checks that were made payable to Newman. After a two-day evidentiary hearing, the district court concluded that defendant murdered Newman and that the murder constituted relevant conduct because it facilitated the fraud offense. The court applied a 23-level increase under § 5K2.1 because a death resulted from defendant’s crime. In addition, the court increased defendant’s criminal history category from I to IV after finding that defendant was also responsible for the deaths of two other men in 1990 and 1994, respectively. The Sixth Circuit agreed that there was sufficient evidence that defendant killed the three men in order to obtain their government checks. The district court also properly found that the killing of Newman occurred during the commission of the fraud offense and thus, was relevant conduct. The fraud guideline, § 2F1.1, did not factor in the unique circumstances of this case. Causing death is sufficiently outside of the heartland of the fraud, forgery, and false statement offenses to warrant a departure. Under the circumstances of this case, § 2K2.1 authorized a “substantial” departure. Finally, the court made specific findings to support the three-category criminal history departure. The court stated that category II was equivalent to one felony conviction, and that while two deaths could result in six points, which would be covered by category II, category III would understate the seriousness of the risk defendant posed to the public. The overall departure was reasonable, given that defendant’s relevant conduct and uncharged criminal history involved murder. U.S. v. Mayle, 334 F.3d 552 (6th Cir. 2003).
6th Circuit holds that increases for physical injury and extreme conduct were not double counting. (721) 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 holds defendant accountable for cohort’s physical restraint of torture victim. (721) 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. (721) 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 affirms upward departure for attack on flight crew after plane took off. (721) Defendant, a flight engineer for Federal Express, boarded a Federal Express plane on which he was not working. After the plane took off, he entered the cockpit and attacked the crew with a hammer, a spear gun and a spear. Although all three crew members were seriously injured, they were able to make an emergency landing. Defendant was convicted of attempted aircraft piracy and interference with crew members. The Sixth Circuit affirmed an upward departure based on multiple victims, serious physical injury, significant property damage and the potential for extreme danger to the public. The aircraft piracy guideline, § 2A5.1, did not contemplate multiple victims. The extent of the victimization was extreme, because all three crew members suffered serious physical injuries, a basis for departure under § 5K2.2. Federal Express incurred over $800,000 in property damage from the crime, which is a ground for departure under § 5K2.5. Finally, it was entirely proper for the district court to consider under § 5K2.14 the danger to the public created by defendant’s attack. The crime involved far more than simply rerouting the plane. U.S. v. Calloway, 116 F.3d 1129 (6th Cir. 1997).
6th Circuit reverses departure for extreme psychological injury to robbery victims. (721) Defendants committed an armed bank robbery. The district court departed upward under §5K2.3 (extreme psychological injury), based on the branch manager’s testimony that two of the employees involved in the robbery expressed fear and anxiety and had to be transferred to another branch for two weeks after the incident. A third witness became very nervous after testifying at trial and took a six-week disability leave. An FBI agent also testified that the employee cried and expressed fear for her life. The 6th Circuit found that this evidence did not establish §5K2.3’s requirement that the psychological injury be a substantial impairment of the psychological functioning of the individual. The fact that one employee took an extended disability leave was not probative here, because the leave was in response to having testified at trial, not as a result of the robbery. U.S. v. Bond, 22 F.3d 662 (6th Cir. 1994).
6th Circuit affirms upward departure for defendant who kidnapped child so that he could eventually marry her. (721) Defendant developed a strange obsessive relationship with a young child that he babysat. When the parents attempted to end the relationship by moving, defendant kidnapped the three-year-old girl, intending to marry her when she turned 13. The district court departed upward because (a) the kidnapping was of a specific victim for a specific purpose, and (b) defendant intended to complete the crime, and no matter what the period of incarceration might be, he intended to find the child so that she could help her fulfill her “destiny.” The 6th Circuit affirmed the upward departure. Federal kidnapping generally encompasses three types of kidnapping, none of which described defendant’s crime. Defendant’s admitted purpose in kidnapping the child was to possess her and keep her from her parents, which is indisputably rare and sufficiently aggravating to warrant a departure. U.S. v. Patrick, 935 F.2d 758 (6th Cir. 1991).
7th Circuit departs upward for numerous threatening letters, psychological injury, and humiliation of victims. (721) 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 rejects need for comparative statement to support psychological injury departure. (721) Defendant abducted a 13-year old girl from Wisconsin and lived with her in a series of Texas motels for 3 1/2 months. He subjected her to daily sexual assaults. The district court made a § 5K2.3 departure for the victim’s psychological injury. Defendant argued that the psychologist’s report relied on by the court was insufficient because it did not provide a base line showing a “normal” psychological reaction to such a traumatic event with which to compare the victim’s reaction. The Seventh Circuit held there was no need for such a comparative statement. Although the guideline uses some language that suggests a comparative diagnosis, it also states that the provision applies where the court finds “substantial impairment” of an “extended or continuous duration.” Moreover, it was hard to imagine what a “normal” reaction to being kidnapped and transported across state lines for illegal sexual purposes would be. The report here was sufficient, for it predicted that the victim would suffer “severe personal and interpersonal dysfunction.” U.S. v. Oliver, 118 F.3d 562 (7th Cir. 1997).
7th Circuit approves upward departure where two children died in fire. (721) Defendant was convicted of arson resulting in the death of two of his children. A third child and defendant’s wife narrowly escaped by jumping from a third story window. The 7th Circuit approved a five level upward departure based on the death of two children, and the victimization of the third child and the mother. The court agreed that defendant’s base offense level of 33 under the second degree murder guideline did not take into account the multiple deaths or the extreme violence perpetrated on defendant’s wife and surviving child. Section 5K2.1 states that death is an appropriate factor to consider in departing upward. The five level upward departure placed defendant at a base offense level of 38, which was halfway between second degree murder and first degree murder. This accurately reflected the severity of defendant’s conduct. U.S. v. Menzer, 29 F.3d 1223 (7th Cir. 1994).
7th Circuit says vulnerable victim enhancement and departure for psychological injury was improper double-counting. (721) The 7th Circuit held that a vulnerable victim enhancement under section 3A1.1 and a departure under section 5K2.3 for psychological injury to the victim constituted impermissible double-counting. The district court “drew from the same well” in setting out the considerations of the vulnerable victim enhancement and psychological injury departure. This was done without the type of factual hearing that is required to make determinations on contested issues. U.S. v. Kopshever, 6 F.3d 1218 (7th Cir. 1993).
7th Circuit affirms upward departure where minor lured into prostitution was found dead. (721) Defendant was convicted of the interstate transportation of a minor for purposes of prostitution. The 7th Circuit affirmed an upward departure based upon the fact that the minor was found dead after last being seen entering a car with another man. Application note 2 to section 2G1.2 and section 5K2.1 authorize an upward departure if the offense results in bodily injury or death, respectively. The court agreed that section 5K2.1 departures must be supported by findings that death was intentionally or knowingly risked. In this case, the district court implicitly found that defendant knowingly risked the minor’s death. The court stated that defendant put into motion a chain of events that contained an inevitable tragic result, and that putting the victim on the street as a “young emotionally disturbed teenage runaway without any direction in her life” made it “foreseeable that she could end up like she did.” U.S. v. White, 979 F.2d 539 (7th Cir. 1992).
7th Circuit affirms one departure based upon physical injury and another based upon psychological injury. (721) The district court departed upward by two based upon the physical injury suffered by the defendant’s victim and by two based upon the psychological injury suffered by the defendant’s victim. The 7th Circuit affirmed the two departures, since the physical and psychological harms were separate. The physical harm caused by the administration of potent drugs was distinct from the physical manifestations of psychological injury inflicted by threats, confinement, lies and rape. There was no double counting in treating these harms as separate grounds for increasing defendant’s offense level. Section 2A2.2(b)(3)(B) authorizes a four-level enhancement for inflicting serious bodily injury in the course of an aggravated assault, and the combination of bodily and psychological harm in the present case was the equivalent to such an injury. U.S. v. Newman, 965 F.2d 206 (7th Cir. 1992).
8th Circuit approves 288-month sentence for multiple threats, prolonged harassment, and violent conduct. (721) Defendant was convicted of 19 counts related to his stalking and use of the mails and telephone to threaten and harass his victims. The district court departed or varied upward from a guideline range of 140-175 months to a term of 288 months, finding that the severity of the offenses and defendant’s dangerous nature were not adequately taken into account by the guidelines. The court discussed defendant’s multiple threats and victims over a prolonged period of time (four years). The court also considered that defendant had a “long history of exactly the same kind of behaviors toward other people … in terms of violence and assault….” Even while incarcerated, defendant continued to terrorize people, and had been involved in dozens of jail incidents. The court concluded that defendant’s sentence was necessary “for protection of society and the victims in this case, and given [defendant’s] long history of conduct.” The Eighth Circuit held that the 288-month sentence was not substantively unreasonable as a variance in light of the § 3553(a) factors. The panel found it unnecessary to discuss the alternative rationale for an upward departure under § 5K2.2. U.S. v. Grimes, 702 F.3d 460 (8th Cir. 2012).
8th Circuit approves departure for significant injuries to officers in police car struck by defendant. (721) While fleeing from police, defendant drove his truck into a police car parked on the side of the road. As a result of the collision, one of the two officers inside the police car broke his wrist, and the other officer suffered several serious injuries, including eight broken ribs and kidney damage so severe that he had to have it surgically removed. The district court departed upward under § 2K2.2 based on the officers’ significant injuries, and the Eighth Circuit affirmed. Section 5K2.2 allows substantial departures not only when a defendant intends to inflict an injury, but also when the defendant “knowingly risked” inflicting such an injury. Ample evidence suggested defendant knowingly risked injuring the officers. The marked police car he hit had its emergency overhead lights on, and was parked on the side of the street. Despite the police car’s visibility, pursuing DEA agents did not observe brake lights being activated on the defendant’s truck, and he made no apparent attempt to avoid the head-on collision. The district court did not plainly err in determining the officer who suffered eight broken ribs, a torn renal artery, kidney loss, and other serious injuries, incurred a significant physical injury. U.S. v. Franklin, 695 F.3d 753 (8th Cir. 2012).
8th Circuit affirms psychological injury departure based on unobjected-to facts in PSR. (721) Defendant pled guilty to assault with a dangerous weapon, and received departures under four separate guidelines, including § 5K2.3, for serious psychological injury. The Eighth Circuit held that the unobjected-to facts presented in the PSR adequately supported the departure. The PSR gave a detailed account of the assault, without objection from defendant. It related how defendant assaulted his companion at their home, in front of their children (all of whom were under nine). Defendant’s violent acts caused his children to try to intervene on behalf of their mother, but they were assaulted themselves. Defendant then violently and repeatedly threatened his companion, telling her to choose which child he should kill first, an exchange the children likely heard. The PSR described how this event caused the children extreme psychological difficulties requiring counseling. These specific findings sufficiently supported an upward departure, and were also corroborated by testimony. The district court did not abuse its discretion in departing under § 5K2.3. U.S. v. White Twin, 682 F.3d 773 (8th Cir. 2012).
8th Circuit affirms upward departure for distribution of heroin resulting in death. (721) Defendant was convicted of distributing heroin. The district court departed upward from the 10-16 month range to a 60-month sentence, finding that defendant’s conduct resulted in the death of Gunderson, § 5K2.1. The Eighth Circuit ruled that the district court did not clearly err in determining that defendant’s conduct led to Gunderson’s death. The autopsy showed that the cause of Gunderson’s death was heroin toxicity, and that cocaine was also in Gunderson’s system. The only drugs found in the apartment where Gunderson overdosed were leftover from the packages defendant admitting mailing to Gunderson. Although defendant did not intend Gunderson’s death, and her addiction and co-dependent relationship with Gunderson likely influenced her conduct, the 60-month sentence was reasonable. These circumstances were only mitigating factors to be considered in deciding whether and to what extent to depart upward. The court gave due consideration to these mitigating circumstances in finding a sentence of 60 months was appropriate, as opposed to a longer sentence. U.S. v. Nossan, 647 F.3d 822 (8th Cir. 2011).
8th Circuit approves departure for psychological harm to woman defendant married using false identity. (721) Defendant lived under a number of aliases, running up credit card bills, and then fleeing to avoid prosecution. Using one of the aliases, he married a woman. Two years later, she discovered his past, and filed for an annulment. The district court applied a three-level upward departure under Note 20(A)(ii) to § 2B1.1 for substantial non-pecuniary harm based on the emotional and psychological harm to defendant’s “wife” and her family. The woman and her daughter testified regarding the substantial emotional psychological toll that defendant’s deceit and misrepresentations had taken on their family and particularly the woman’s grandchildren. The district court also departed by two levels under Note 20(A)(i), which authorizes an upward departure if “[a]primary objective of the offense was an aggravated, non-monetary objective.” The district court found that defendant’s primary objective in assuming new identities was to avoid criminal prosecutions in Arizona and California and that his base offense level “substantially understate[d]” the seriousness of his offenses. The Eighth Circuit affirmed, finding that the record supported both upward departures. U.S. v. Kowal, 527 F.3d 741 (8th Cir. 2008).
8th Circuit upholds departure for death of minor who ingested unknown substance. (721) Defendant found a rolled-up dollar bill that contained a white substance. Defendant was not sure what it was although, based on her experience with cocaine, she believed it was not cocaine. She offered two juveniles the opportunity to use the drug. One juvenile accepted, and almost immediately after smoking the substance (which turned out to be methamphetamine), became seriously ill. The juvenile died the following day. Defendant pled guilty to distributing a controlled substance to a minor. The Eighth Circuit approved an upward departure under § 5K2.1, for conduct resulting in death. The departure increased her sentence from a range of 70-87 months to 120 months. The Eighth Circuit affirmed the departure and the resulting sentence. The court’s finding that the minor died as a result of defendant’s actions was not clearly erroneous. The minor became sick almost immediately after ingesting the drug. Although the facts did not show that defendant intended to harm the minor, her actions were very dangerous and showed that she disregarded a known risk by giving an unknown substance, suspected to be a narcotic, to a minor to ingest. U.S. v. Mousseau, 517 F.3d 1044 (8th Cir. 2008).
8th Circuit approves upward departure for same injury that was basis for permanent injury enhancement. (721) Defendant fired a gun several times toward a house. One of the bullets struck a three-year old girl, severing her spinal cord and paralyzing her from the chest down. Defendant pled guilty to assault with a firearm with intent to do bodily harm and to use of a firearm to commit a crime of violence. The district court found that a sentence within the advisory guideline range would not be sufficient under the facts of the case, including the extent and permanence of the girl’s injuries and defendant’s “knowing risk” of shooting “out of the window of a moving car multiple times into a yard full of people” while intoxicated. Defendant argued that the court erred in departing upward on the firearm charge for the same injury that was the basis of a seven-level enhancement under § 2A2.2(b)(3) for permanent or life-threatening injury to the victim. The Eighth Circuit affirmed the upward departure. The girl suffered psychological or emotional injury as well as physical, and her physical injuries were compounded by sustaining them at the young age of three, thus affecting the length and quality of her whole life span. The court explicitly stated that the guideline sentence was insufficient, and its departure satisfied the guidelines rules for upward departure. Double counting is permissible in the departure context if the facts support it. The 228-month sentence was not unreasonable. Although defendant was remorseful and had not intended to shoot the girl, the court found that her acts had been reckless and that her warning to a 13-year old standing in the front yard showed an awareness that someone could be injured by gunshots. U.S. v. Hawkman, 438 F.3d 879 (8th Cir. 2006).
8th Circuit approves upward departures for severe psychological injury and extreme conduct. (721) 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 approves departure for defendant who assaulted babysitter after giving her date rape drug. (721) 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 says knocking victim unconscious, pushing her under water 13 times and not attempting to rescue her was extreme conduct. (721) After a drinking companion insulted defendant and his friends, defendant responded by hitting her hard and knocking her temporarily unconscious. He then dragged her into the river where she regained consciousness. He repeatedly forced her under the water. After he pushed her under 13 to 15 times, he lost his grip and she was swept away downstream. Defendant’s friend searched for her without success, but defendant did nothing to rescue her. Neither reported to anyone that she had been lost in the river, allowing her family to believe that she had been seen getting into a car bound for another state that night. Her body was found in the river three days later. Defendant pled guilty to voluntary manslaughter. The district court departed upward four levels for extreme conduct under § 5K2.8, noting that defendant had repeatedly thrust his victim under water, no doubt terrifying her in the process, that he had allowed her to be swept away without doing anything to save her, and that he had caused pain to her family by failing to disclose what had actually happened to her. The Eighth Circuit rejecting defendant’s argument that his conduct had already been accounted for by the vulnerable victim and physical restraint enhancement. These enhancements were based on entirely separate facts: the victim’s intoxication, her limited state of consciousness, and the restraint placed on her when defendant dragged her into the river. U.S. v. Iron Cloud, 312 F.3d 379 (8th Cir. 2002).
8th Circuit affirms departure for significant physical injury based on head trauma and ear damage. (721) The Eighth Circuit affirmed an upward departure for significant physical injury under § 5K2.2 where defendant beat two of his prostitutes resulting in head trauma and cuts to one and ear damage to another. Although neither victim went to the hospital or obtained medical documentation of permanent injury, the Eighth Circuit found sufficient testimonial evidence of injury. The departure was not an abuse of discretion. 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. (721) 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 upholds same departure for two victims even though one injured more severely. (721) Although the PSR discussed the injuries of one passenger who was hospitalized as a result of defendant’s drunk driving accident, the other passenger, who was not hospitalized, was referred to simply as one of “two injured males” found at the accident scene. Section 5K2.2, which authorizes departures for “significant physical injury,” recommends that courts calibrate departures to the seriousness of the injury. Defendant pointed out that the court did not follow this recommendation, since despite the difference in severity between the two passengers’ injuries, the court departed the same for both. The Eighth Circuit held that the two-level departure for the second injured passenger was not an abuse of discretion. The provision regarding significant physical injury is not a guideline but a policy statement. Policy statements are binding only if they interpret a guideline or prohibit courts from taking action. Because § 5K2.2 does neither, a court may choose not to follow its recommendations. The district court did not abuse its discretion. The PSR’s description of the second passenger as an “injured male” who was “ejected” from the car was sufficient for the enhancement. U.S. v. Goings, 200 F.3d 539 (8th Cir. 2000).
8th Circuit affirms departure for multiple deaths and injury caused by defendant’s drunk driving. (721) While driving drunk, defendant struck two parked cars. The two occupants of one car died. Three others were seriously injured. Defendant pled guilty to one count of involuntary manslaughter. The Eighth Circuit affirmed an upward departure based on the multiple deaths and serious injuries defendant caused. Injury and death are both valid factors for upward departures. Section 5K2.1 permits a departure if death resulted from defendant’s conduct. This is especially true when defendant is responsible, as here, for multiple deaths. Section 5K2.2 permits a departure if “significant physical injury resulted” from defendant’s conduct. It was undisputed that defendant caused “serious bodily injury” to the three surviving victims. One suffered “a sheared brainstem and it [was] a miracle that he [was] alive.” The other two surviving victims required surgery for their injuries. All three victims “continue[d] to deal with the traumatic effects of the offense.” The death and injury in this case were sufficient to justify the 70-month sentence imposed by the district court. The court noted, however, “that in imposing a departure of this magnitude, the district court acted at the outermost limits of its discretionary authority.” U.S. v. Merrival, 176 F.3d 1079 (8th Cir. 1999).
8th Circuit approves departure for raping employee during restaurant robbery. (721) 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 departure for extreme conduct that inflicted extreme psychological injury. (721) 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 approves upward departure for extreme psychological injury suffered by rape victims. (721) Defendant was convicted of raping his disabled younger brother and his younger sister. The 8th Circuit approved an upward departure under § 5K2.3 from a guideline range of 135 to 168 to a sentence of 240 months based on extreme psychological injury to the victims. The district court based the departure upon the evidence at trial plus the victims’ doctor’s testimony at the sentencing hearing. Although defendant’s older sister testified that the victims were adjusting well, the district court was entitled to rely upon a psychologist’s professional opinion regarding these matters. Moreover, given the circumstances of this case, the 72-month departure was reasonable. U.S. v. Yellow, 18 F.3d 1438 (8th Cir. 1994).
8th Circuit holds that court could consider bank teller’s psychological trauma in deciding to depart. (721) Defendant robbed a bank at knifepoint. The bank teller experienced headaches and loss of sleep. She was prescribed medication and met with a chiropractor on two occasions. The district court departed upward based upon defendant’s criminal history and the psychological trauma suffered by his victim. The 8th Circuit found that although standing alone, the evidence of the victim’s psychological injury might not warrant a 25-month departure, the district court committed no error in taking it into account in making its decision to depart upward. Judge Arnold dissented, believing that remand was necessary since there was no basis for concluding the court would have imposed the same sentence without reliance upon the improper ground. U.S. v. Nomeland, 7 F.3d 744 (8th Cir. 1993).
8th Circuit rules that sexual abuse of daughters justified upward departure. (721) Defendant, who ran a day-care center, was convicted of sexually abusing two girls, aged three and four. The district court departed upward in part because of the repetitive nature of defendant’s crimes: nine years earlier defendant had abused his own daughters. The 8th Circuit affirmed this as a grounds for departure. Guideline section 4A1.3(e) expressly permit upward departures where prior similar adult criminal conduct not resulting in a criminal conviction exists. U.S. v. Fawbush, 946 F.2d 584 (8th Cir. 1991).
8th Circuit rules evidence insufficient to justify departure for severe psychological injury to sexual abuse victims. (721) The 8th Circuit ruled that there was insufficient evidence to justify a departure under guideline section 5K2.3 based upon the severe psychological injury suffered by defendant’s sexual abuse victims. The record contained no evidence that either victim suffered harm greater than that normally resulting from sexual abuse. The only evidence was that one of the victims was participating in individual and group therapy. The record did not indicate that in departing upward, the district court relied on any evidence by a psychologist or similar professional. U.S. v. Fawbush, 946 F.2d 584 (8th Cir. 1991).
8th Circuit rules guidelines adequately consider age of sexual abuse victims. (721) Defendant was convicted of sexually abusing two girls, aged three and four. The court departed upward in part based upon the extremely young age of the victims. The 8th Circuit reversed, ruling that the guidelines adequately considered the age of the victims. Under section 2A3.1(b)(2)(A), defendant had already received a four-level increase in offense level because the victims were under the age of 12. These four points increased the sentencing range by three to four years. Given this “dramatic increase,” the victims’ ages were adequately considered. U.S. v. Fawbush, 946 F.2d 584 (8th Cir. 1991).
8th Circuit holds that young age of sexual abuse victim may justify upward departure. (721) Defendant pled guilty to two counts of abusive sexual contact with a seven-year old victim. The court departed upward from 8 to 12 months under § 5K2.2 (physical injury) and 5K2.3 (psychological injury), because the victim was “a very young child of seven years,” and “suffered extensively as a result of the abusive sexual contact.” The 8th Circuit held that departure was not justified under the two sections cited by the district court, but ruled that under the version of the guidelines in effect prior to November 1, 1990, it would be proper to base a departure on the very young age of the victim. Effective November 1, 1990, guideline § 2A3.4 was amended to require a four or six level increase if the victim was under the age of 12. This is an indication that the prior version of the guidelines did not adequately address this aspect of defendant’s crime. Noting that a four-month departure would be justified by the victim’s young age, the court nevertheless remanded the case for the district court to consider a departure based only upon the victim’s age. U.S. v. Morin, 935 F.2d 143 (8th Cir. 1991).
8th Circuit affirms upward departure for extreme psychological injury to fraud victim. (721) Defendant pled guilty to two counts of credit card fraud and one count of mail fraud. The district court departed upward from a guideline range of 30 to 37 months, and sentenced defendant to 84 months. Defendant had a 15-year history of similar thefts, frauds and forgeries, most of which were conducted under other people’s identities. The departure was based in part upon the severe psychological injury and property damage suffered by one of the men whose identity defendant frequently assumed. The 8th Circuit affirmed the upward departure. Defendant ruined the victim’s academic record and “ruined and muddied and sullied forever” the victim’s identity. Moreover, defendant did “not once complete[] a term of supervised release or probation without returning to his pattern of criminal activity and the same types of offenses against the same person without any regard for the consequences to himself or [the victim].” Senior Judge Heaney concurred in the result. U.S. v. Perkins, 929 F.2d 436 (8th Cir. 1991).
9th Circuit upholds departure for abduction to facilitate offense where plea agreement did not address uncharged conduct. (721) Defendant pleaded guilty to conspiracy to distribute methamphetamine, cocaine, and heroin, in violation of 21 U.S.C. § 846. During the period encompassed by the conspiracy, defendant abducted a woman, held her in a motel room, and coerced her into selling and transporting drugs. The plea agreement did not bar the government from relying on this incident to seek a departure. On the basis of this incident, the district court departed upward under § 5K2.4, which authorizes an upward departure when a person is abducted or unlawfully restrained to facilitate commission of an offense. The Ninth Circuit held that in the absence of any provision in the plea agreement concerning uncharged conduct, the district court did not err in departing upward on this ground. U.S. v. Barragan-Espinoza, 350 F.3d 978 (9th Cir. 2003).
9th Circuit upholds departure for psychological and emotional distress to patients of fake doctor. (721) Defendant impersonated a doctor at various medical clinics and a plasma center. The district court departed upward by two levels under Commentary Note 10(a) and (c) to § 2F1.1 because “the offense caused reasonably foreseeable, physical or psychological harm or severe emotional trauma.” The court based its decision on “copious explanatory material” provided by the government, including numerous letters submitted by defendant’s victims concerning the emotional and physical impact of his fraud. U.S. v. Barnes, 125 F.3d 1287 (9th Cir. 1997).
9th Circuit, en banc, upholds departures for injuries and property damage in grenade explosion. (721) Defendant threw a grenade into a police parking lot. Five people were injured in the blast, three of them severely. In addition, several automobiles 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 permits departure for intent to maximize victim’s pain and injuries. (721) Guideline § 2A2.1(b)(1)(A) provides for an increase of four levels for a permanent or life threatening injury, but the court departed upward eight offense levels because an explosives expert testified that staples, screws and nails were added to the explosive device to enhance fragmentation in order to cause severe pain and death. The bomb was intended to kill a Nevada state trooper who had arrested defendant earlier. Based on this evidence, the Ninth Circuit upheld the departure, ruling that the guideline “does not address the appropriate punishment for someone who acts with the deliberate intent to maximize his victim’s pain and injuries.” U.S. v. Collins, 109 F.3d 1413 (9th Cir. 1997).
9th Circuit suggests basing departure for injury to bystanders on bodily injury guideline. (721) Defendant threw a hand grenade into a parking lot. It bounced off a car and rolled toward some bystanders, injuring them when it exploded. The government argued that the district court’s upward departure for injury to the bystanders could be justified by analogy to the aggravated assault guideline in § 2A2.2(b)(3). However, the Ninth Circuit found no specific intent to injure, and therefore suggested that, on remand, if the court decides to depart upward for bodily injury under § 5K2.2, a better analogy would be the increases for permanent or serious bodily injury under § 2B3.1 (Robbery) and § 2B3.2 (Extortion by Force or Threat of Injury or Serious Damage). U.S. v. Sablan, 90 F.3d 362 (9th Cir. 1996).
9th Circuit upholds departure for psychological injury to family of extortion victim. (721) Application note 8 to § 2B3.2 authorizes an upward departure if the extortion offense involved a threat to a family member of the victim. In this case, the defendant threatened to amputate a leg or arm of the victim’s son if the victim did not pay $250,000. There was no dispute that this caused extreme psychological injury to the son and the victim’s wife. Therefore, it was proper for the district court to depart upward. The court noted, however, that it would have been improper to base the departure on § 5K2.3, because, as noted in U.S. v. Hoyungowa, 930 F.2d 744, 747 (9th Cir. 1991), that section authorizes a departure only where the victim himself suffers extreme psychological injury. U.S. v. Alber, 56 F.3d 1106 (9th Cir. 1995).
9th Circuit permits departure in sexual abuse case for extreme repetitive conduct and psychological injury. (721) 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 says grieving mother was “direct victim” of defendant’s lies to government. (721) In U.S. v. Hoyungowa, 930 F.2d 744 (9th Cir. 1991), the 9th Circuit held that the departure for psychological injury under § 5K2.3 applies only to the “direct victims” of the offense. Here, defendant was convicted of lying to the FBI and the grand jury about the whereabouts of an 8-year-old kidnap victim. The 9th Circuit held that there were two direct victims of this offense—the government and the victim’s mother, who suffered serious psychological and physical impairment as a result of defendant’s false statements. Accordingly a one-level departure under § 5K2.3 was upheld. In a footnote, the court noted that the guidelines under which defendant was sentenced—2J1.2(b) and 2J1.3(b)—permit an eight-level increase for causing physical injury to a person. Although the district court did not apply these provisions, the 9th Circuit said it “had legal authority to depart.” U.S. v. Haggard, 41 F.3d 1320 (9th Cir. 1994).
9th Circuit reverses 8-level departure where agent was killed in disposing of illegal fireworks. (721) Defendant was arrested at his home for manufacturing illegal fireworks and the chemicals were transported to Fort Lewis. Thereafter, in the process of preparing to destroy the chemicals at a demolition site, an ATF agent was fatally injured when the chemicals spontaneously ignited and exploded. The district court departed upward by eight levels under § 5K2.1. In doing so however, the judge failed to consider expert testimony and factual proof offered by defendant that the ATF agent was negligent in disposing of the chemicals. The court accepted defendant’s evidence only as “an offer of proof.” On appeal, the 9th Circuit held that this violated Fed. R. Crim. P. 32(c)(3)(D). The sentence was vacated and the case was remanded to a different judge for resentencing. U.S. v. Williams, 41 F.3d 496 (9th Cir. 1994).
9th Circuit reverses “unusual circumstances” upward departure in extortion case. (721) Defendant was convicted of attempting to extort money from his former homosexual lover. At sentencing, the court departed upward two and a half times above the guidelines, based on the “unusual circumstances.” Among other factors, the district court said defendant’s behavior was “cruel and ruthless” because of the victim’s advanced age and fear of exposure as a homosexual. The district court also found “extreme psychological injury” because the victim tried to commit suicide twice. The 9th Circuit found no support for several of the facts cited by the district court. There was no involuntary payment of money by the victim before September 4, 1991, and therefore the victim’s impoverishment was not caused by defendant’s threats. The suicide attempts also preceded the attempted extortion and defendant was acquitted of the count involving anti-Semitic language. The sentence was vacated and the case was remanded for resentencing. U.S. v. Marsh, 26 F.3d 1496 (9th Cir. 1994).
9th Circuit rejects departure not specifically limited to psychological injury to victims in counts of conviction. (721) The district court departed upward based on the psychological injury defendant inflicted on his victims during an 11-month campaign of harassment and intimidation against several interracially married couples. Defendant changed the victim’s addresses causing their mail to be sent elsewhere, had magazines and books sent and charged to them, sent threatening mail to them and even mailed two threatening letters to President Bush signing two of the victims names. Because the district court did not specify the victims it relied on in departing based on psychological injury, the 9th Circuit could not uphold this basis for departure. As the court earlier explained in U.S. v. Fine, 975 F.2d 596 (9th Cir. 1992)(en banc), the grounds for departure in such cases must be limited to the counts of conviction. The departure was upheld on other grounds. U.S. v. McAninch, 994 F.2d 1380 (9th Cir. 1993)
9th Circuit rejects departure for “intended death” in second-degree murder case. (721) Defendant was convicted of second-degree murder. The district court recognized that it would be improper to depart under section 5K2.1 because the guideline for second-degree murder already considered the fact that death resulted. Instead, the court focused on the last sentence of section 5K2.1 which allows departure “if death was intended.” The 9th Circuit held this was error, because a conviction of second-degree murder requires the jury to find that the defendant killed with malice, i.e. intentionally. “Accordingly, the fact that [defendant] killed his wife, standing alone, could not be used to depart upward.” U.S. v. Roston, 986 F.2d 1287 (9th Cir. 1993).
9th Circuit reverses departure for psychological injury, extreme conduct, and property damage. (721) 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 physical injury departure where court doubled the impact of its analogy. (721) The district court departed upward by four offense levels to take account of the bite wounds and crushed thumbs suffered by the FBI agents when defendant resisted arrest. The court justified the degree of departure by analogy to section 2A2.2 which provides for a two-level increase when the defendant’s aggravated assault results in bodily injury. In arriving at its effective four-level increase, the district court apparently multiplied the two-level increase by the number of victims. The 9th Circuit reversed, because under the “grouping” rule in U.S.S.G. section 3D1.4, the offenses against the two victims would have been grouped, resulting in only a two-level net increase. Thus the district court improperly doubled the impact of the aggravating circumstance, and the departure was unreasonable. U.S. v. Streit, 962 F.2d 894 (9th Cir. 1992).
9th Circuit permits departure based on death, only if the death relates to the crime of which defendant was convicted. (721) Guidelines § 5K2.1 provides that “if death resulted, the court may increase the sentence above the authorized guideline range.” The 9th Circuit held that that departure is proper “only if the death in question relates to the crime of which the defendant was convicted.” In this case, it was unclear whether the district court relied on the deaths in departing from the guidelines. The 9th Circuit reminded the court that on remand a departure would be proper only if the court found that the defendant “intended” or “knowingly risked” the deaths. U.S. v. Durham (Richard), 941 F.2d 858 (9th Cir. 1991).
9th Circuit rules that downward departure because the sentence seemed “unusually high” was improper. (721) The district court reasoned that a downward departure was appropriate because the sentence seemed unusually high compared to those the court had seen for similar cases and crimes. The 9th Circuit reversed, holding that “the district court may not depart simply because it is unusual.” U.S. v. Sanchez, 933 F.2d 742 (9th Cir. 1991).
9th Circuit rejects departure where victim was police officer because sentence was already adjusted for “official victim.” (721) Defendant’s 210 month sentence already included an upward adjustment by three levels under § 3A1.2 for killing an “official victim.” Nonetheless it appeared that the district court considered the fact that the victim was a police officer when it departed upward. In vacating the sentence on other grounds, the 9th Circuit emphasized that the departure could not be based on the victim’s status as a law enforcement officer. The court rejected the government’s argument that the murder was unusually aggravated because the officer had approached the defendant in a “nonconfrontational” manner and the defendant was a fugitive. The court held that these circumstances simply warranted application of the guideline for official victims and not departure from the guidelines. U.S. v. Hoyungowa, 930 F.2d 744 (9th Cir. 1991).
9th Circuit reverses departure where firearm discharge was already taken into account by assault guideline. (721) The district court justified a portion of the upward departure on the ground that a firearm had been discharged during the commission of the assault with a deadly weapon. The 9th Circuit reversed, holding that the court overlooked the fact that the computed adjusted offense level on this count had taken the firearm discharge into account, increasing the offense level by five. U.S. v. Brady, 928 F.2d 844 (9th Cir. 1991), abrogated by Nichols v. U.S., 511 U.S. 738, 114 S.Ct. 1921 (1993).
9th Circuit reverses departure for extreme psychological injury to the victim’s family. (721) In departing upward the district court cited the “extreme psychological injury” to the victim’s family, relying on guideline § 5K2.3. The 9th Circuit reversed, noting that the term “victim” in the applicable guidelines § 2A2.2(b) “includes only the direct victim of the crime charged and not others affected by it.” The court noted that if § 5K2.3 applies to those affected by crimes such as the victim’s family, “then the justice system would punish the murderer of the head of a household more harshly than the murderer of a transient.” U.S. v. Hoyungowa, 930 F.2d 744 (9th Cir. 1991).
9th Circuit reverses “physical injury” departure under 5K2.2 for lack of specific findings. (721) The evidence showed that the defendant had hit the officer in the head several times and that he also kicked him. The officer wrote in a police report that he had suffered a bruise near his eye, a scratch on his cheek, and a sprained finger. He did not mention whether the kick had, in fact, landed with sufficient force to cause pain. He also did not indicate that he required medical attention or that his injuries prevented him from carrying out his job for any period of time. In fact he indicated that he was able to minimize the impact of most of the defendant’s blows. Based on this record, and the lack of any specific findings, the 9th Circuit reversed the district court’s upward departure based on “significant physical injury” under § 5K2.2. The court indicated that on remand, the district court was free to supplement the evidentiary record for resentencing. U.S. v. Singleton, 917 F.2d 411 (9th Cir. 1990).
9th Circuit upholds upward departure for inhumane treatment of aliens. (721) Defendant placed seven adults and one six year old child in a sealed compartment measuring 6’ wide 6’ high and 2’ deep located over his van’s exhaust system. He then transported the aliens into the United States. The district court ruled that his treatment was dangerous and inhumane because “they could have died from carbon monoxide poisoning.” Accordingly the district court departed upwards from the guidelines and imposed a 24 month sentence. The 9th Circuit affirmed, holding that the departure was “not unreasonable” under the circumstances. U.S. v. Gomez, 901 F.2d 728 (9th Cir. 1990).
10th Circuit approves departure based on greater psychological injury suffered by child abuse victim. (721) 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. The Tenth Circuit held that the district court did not err in departing upward under § 5K2.3 based on a finding that defendant’s daughter suffered greater psychological injury than normal as a result of defendant’s crime. Although the government did not offer any evidence suggesting the level of psychological injury “normally” suffered by a victim of aggravated sexual assault, such evidence is not a required part of every departure consideration. Where it is patent that the psychological injury to the victim is “much more serious than normally resulting from commission of the offense,” it would be a needless exercise to require the presentation of comparative evidence as a predicate for a § 5K2.3 departure. This was such a case. Uncontested reports revealed a child suffering from severe, debilitating, and potentially long-term psychological damage as a result of defendant’s conduct. U.S. v. Begaye, 635 F.3d 456 (10th Cir. 2011).
10th Circuit reverses where court increased sentence so defendant would qualify for drug treatment program. (719) In sentencing defendant to 56 months, the district court explained that defendant needed a sentence of at least 56 months to complete a drug treatment program together with mental health counseling. However U.S. v. Story, 635 F.3d 1241 (10th Cir. 2011) held that § 3553(a) prohibits consideration of rehabilitation in setting the term of imprisonment. Thus, for example, a court can pursue the goal of rehabilitation in setting the terms of supervised release, but cannot do so in imposing a term of incarceration, or in determining the length of that term. This analysis was recently affirmed by the Supreme Court in Tapia v. U.S., 131 S.Ct. 2382 (2011). Therefore, the Tenth Circuit reversed. The error was plain, even though Story and Tapia had not been decided at the time defendant was sentenced. It was sufficient that the error was clear or obvious at the time of appeal. U.S. v. Cordery, 656 F.3d 1103 (10th Cir. 2011).
10th Circuit approves departure based on greater psychological injury suffered by child abuse victim. (721) 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. The Tenth Circuit held that the district court did not err in departing upward under § 5K2.3 based on a finding that defendant’s daughter suffered greater psychological injury than normal as a result of defendant’s crime. Although the government did not offer any evidence suggesting the level of psychological injury “normally” suffered by a victim of aggravated sexual assault, such evidence is not a required part of every departure consideration. Where it is patent that the psychological injury to the victim is “much more serious than normally resulting from commission of the offense,” it would be a needless exercise to require the presentation of comparative evidence as a predicate for a § 5K2.3 departure. This was such a case. Uncontested reports revealed a child suffering from severe, debilitating, and potentially long-term psychological damage as a result of defendant’s conduct. U.S. v. Begaye, 635 F.3d 456 (10th Cir. 2011).
10th Circuit approves departure where wife’s suicide resulted from defendant’s unlawful possession of firearm. (721) Defendant’s wife used a firearm unlawfully possessed by defendant to kill herself. The district court imposed a two-level upward departure under §5K2.1 because the death of defendant’s wife resulted from his unlawful possession of the firearm. The Tenth Circuit affirmed the departure. There was no indication that §5K2.1 limits the word “death” to mean only deaths due to homicide. There was a sufficient connection between defendant’s offense and his wife’s suicide. Defendant’s unlawful possession of firearms was a “link [] in the chain of events leading up to” his wife’s suicide. Defendant was not required to actually know of his wife’s plans. Defendant’s escalating emotional and physical abuse of his wife, his knowledge of her previous suicide attempt only three weeks prior to her death, his reported attempt to prevent her from taking prescribed antidepressants, and his threat to take their son away from her all indicated that her suicide by his weapon was reasonably foreseeable to him. U.S. v. Montgomery, 550 F.3d 1229 (10th Cir. 2008).
10th Circuit approves upward departure where multiple illegal aliens were killed in car crash. (721) Defendant transported 11 illegal aliens in a vehicle designed to carry eight passengers. The vehicle crashed on a highway, killing four of the passengers, all of whom were thrown from the vehicle. Defendant pled guilty to transporting an illegal alien resulting in death, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(iv). The district court departed upward under § 5K2.1 based on the multiple deaths, and the Tenth Circuit affirmed. The panel found that U.S. v. Jose-Gonzalez, 291 F.3d 697 (10th Cir. 2002), which approved an upward departure in a similar case, was still good law, even though Booker opened the door to evidence that the Sentencing Commission already considered this issue. U.S. v. Munoz-Tello, 531 F.3d 1174 (10th Cir. 2008).
10th Circuit affirms upward departure on the basis of multiple deaths and injuries to illegal aliens. (721) Defendant lost control of his speeding van, causing it to roll over. Sixteen unlawful aliens had been passengers. Three died and ten others were injured, at least four of them seriously. Defendant pled guilty to transporting illegal aliens. The Tenth Circuit affirmed an upward departure based on the multiple death and injuries caused by defendant’s conduct. Sections 2K2.1 and 2K2.2 encourage consideration of death and significant physical injury as grounds for departure. Although § 2L1.1(b)(6) provides for enhancements if “any person” died or sustained serious bodily injury, and § 2L1.1(b)(2) provides for an increase for multiple unlawful aliens, the guidelines do not foreclose consideration of multiple deaths and injuries as grounds for departure. The increase for multiple aliens is not intended as a means of dealing with multiple deaths or injuries. Although defendant contended that his case was not atypical of alien transportation cases, the panel deferred to the district court’s judgment on this issue. In calculating the departure, the district court treated the transportation of each killed and seriously injured passenger as a separate pseudo-count, treated each count as a separate group, and then determined the offense level under § 3D1.4. This methodology was reasonable. U.S. v. Jose-Gonzalez, 291 F.3d 697 (10th Cir. 2002).
10th Circuit rejects finding of extreme psychological injury. (721) Defendant pled guilty to 10 bank robberies. The district court departed upward under § 5K2.3 for extreme psychological injury to the victims of the robberies. One victim had a gun pointed at her midsection and back, and reported that she was “extremely concerned” that defendant would hurt her. She also exhibited behavioral changes that she attributed to this incident. Another victim stated that her preexisting anxiety disorder was exacerbated by the incident. The Tenth Circuit held that there was insufficient evidence of extreme psychological injury to support the departure. A departure may not be based on any psychological injury, but only on “extreme” psychological injury. The record here did not reveal the “normal” level of psychological injury attributable to a victim of a bank robbery. Therefore, the court’s finding that these victims suffered “extreme” injury was clearly erroneous. U.S. v. Okane, 52 F.3d 828 (10th Cir. 1995).
11th Circuit departs for extreme psychological injury where teller did not feel safe two years after robbery. (721) Defendant robbed a bank, screaming at a teller in an out of control manner and pointing a gun at the teller’s head. The teller became so hysterical that she lost control of her bladder. The district court originally applied a two-level bodily injury enhancement, § 2B3.1(b) (3), but this was reversed on appeal. See U.S. v. Sawyer, 115 F.3d 857 (11th Cir. 1997). At resentencing, the district court made a two-level departure under § 5K2.3 for extreme psychological injury. Section 5K2.3 authorizes a departure if the psychological injury is “much more serious than that normally resulting from commission of the offense” as when there is a “substantial impairment of the intellectual, psychological, emotional, or behavioral functioning of a victim … of an extended … duration, and when the impairment manifests itself … by changes in behavior patterns.” The teller testified that, more than two and one half years after the robbery, she still did not feel safe at work, was especially cautious entering and leaving the bank, and had restricted her daily activities. The district court did not abuse its discretion in departing two levels for extreme psychological injury. U.S. v. Sawyer, 180 F.3d 1319 (11th Cir. 1999).
11th Circuit says explosives guideline adequately covered risk of injury to bystanders. (721) Defendants hired an informant to kill or maim several people. The district court departed upward by two levels based on (1) extreme conduct, including the fact that the harassment of one victim was motivated by racial and ethnic prejudice, (2) the risk of harm to innocent bystanders because of the plan to blow up one victim’s law office, and (3) extreme psychological injury to some of the victims. The Eleventh Circuit reversed, since the risk of harm to innocent bystanders was adequately considered in § 2K1.4(a)(1), the guideline applicable to property damage caused by explosives. This guideline provides for a greater offense level where the crime created a substantial risk of death or serious bodily injury to anyone other than a participant in the offense. The other grounds for departure were proper. Racial and ethnic prejudice played a part in the harassment of one victim. The proposed mutilation of another victim also warranted a § 5K2.8 departure. Finally, the evidence supported the finding of severe psychological injuries under § 5K2.3. One victim attended counseling sessions and contemplated suicide. Another victim’s family changed their entire lifestyle to be “extra cautious” U.S. v. Price, 65 F.3d 903 (11th Cir. 1995), abrogated on other grounds by Koon v. U.S., 518 U.S. 81 (1996).
11th Circuit approves § 5K2.1 departure where passenger killed driver while resisting carjacking. (721) Defendant approached a pickup truck and pointed a gun inside the driver’s window. The passenger shot across the driver and through the window, hitting defendant. One of the passenger’s shots also hit the driver. The Eleventh Circuit affirmed a § 5K2.1 departure for the death of the driver, even though the jury acquitted him at penalty phase of trial of the allegation that the driver’s death resulted from the carjacking. The carjacking guideline only takes into account life-threatening bodily injury, not death. A § 5K2.1 departure is justified where death was intentionally or knowingly risked. By approaching the truck with a weapon, defendant knowingly risked the lives of its occupants. Finally, defendant’s acquittal at the penalty phase of his trial was not significant. Acquitted conduct may be considered by a sentencing court because an acquittal only demonstrates lack of proof beyond a reasonable doubt–a standard higher than that required for consideration of relevant conduct at sentencing. U.S. v. Williams, 51 F.3d 1004 (11th Cir. 1995), abrogated on other grounds by Jones v. U.S., 526 U.S. 227, 119 S.Ct. 1215 (1999).
11th Circuit affirms upward departure based upon physical injuries and property damage caused by drunk driver. (721) 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).
California District Court departs downward for Rodney King defendants. (721) Two police officers were convicted of violating the civil rights of Rodney King by assaulting him during his arrest. The district court departed downward 8 levels to level 19 and imposed sentences of 30 months on each defendant. The departure was based on a combination of factors — King’s wrongful conduct contributed significantly to provoking the offense (§5K2.10), the notoriety and defendants’ status as police officers making them subject to prison abuse and the additional multiple adversarial proceedings they face, the lack of danger presented in the future by the defendants and the specter of unfairness raised by the successive state and federal prosecutions. Five of the 8 levels were attributed to King’s wrongful conduct and 3 levels to the convergence of the additional factors. U.S. v. Koon, 833 F. Supp. 769 (C.D. Cal. 1993), affirmed in part, reversed in part by Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996).