United States v. Johnson

FILED
United States Court of Appeals
Tenth Circuit

October 3, 2007
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 06-7074
RICHARD ALLEN JOHNSON, (D.C. No. CR-03-60-01-WH)
(E. D. Oklahoma)
Defendant-Appellant.
__________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 06-7075
JIMMIE ALLEN PERKINS, (D.C. No. CR-03-60-02-WH)
(E. D. Oklahoma)
Defendant-Appellant.

ORDER AND JUDGMENT *

Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore,

ordered submitted without oral argument.

Defendants Richard Allen Johnson and Jimmie Allen Perkins were convicted of

various criminal counts arising out of their participation in an armed bank robbery. Both

defendants were sentenced to lengthy terms of imprisonment. On direct appeal, this court

affirmed the defendants’ convictions, but remanded both cases with directions to vacate

the defendants’ sentences and resentence them due to a sentencing error. United States v.

Johnson, 168 Fed. Appx. 294 (10th Cir. 2006). On remand, the district court conducted a

resentencing hearing and imposed sentences equal to those originally imposed.

Defendants now appeal their sentences. We exercise jurisdiction pursuant to 28 U.S.C. §

1291 and affirm.

I.

The factual and initial procedural histories of this case were previously

summarized by this court in affirming the defendants’ convictions:

On the afternoon of March 31, 2003, two men wearing camouflage
clothing and masks broke into the home of Lowell and Ima Jean Moore
located outside of Keota, Oklahoma. When Mr. Moore, who was disabled,
returned home from fishing, he was confronted by the men and ordered, at
gunpoint, to comply with their demands. Mrs. Moore, who worked at the
Keota branch of the First National Bank of Stigler (hereinafter the Keota
branch bank), received similar treatment when she returned home that
afternoon from work. The masked men proceeded to question the Moores
about the Keota branch bank and indicated that they intended to rob it,
threatened to kill the Moores if they did not cooperate, threatened to rape
Mrs. Moore, and at one point took steps towards actually raping Mrs.
Moore (i.e., ordering her to remove her pants and then unbuttoning and
unzipping her pants when she refused to cooperate). At approximately 9:30

2
p.m. that evening, a third man wearing camouflage clothing and a mask
arrived at the Moores’ house, stayed for approximately forty-five minutes to
an hour, and then left with firearms taken from the bedroom of Mrs.
Moore’s son. After the third man left the house, the remaining two masked
men escorted the Moores to their bedroom and told them they could lay
down.

At approximately 4:00 a.m. the next morning, the masked men ordered
the Moores out of bed and escorted them outside and into a white van
owned by the Moores. The masked men drove the Moores approximately
two miles from their home, blindfolded them, and proceeded to drive
around for a long period of time, making numerous turns and stopping
twice, once to meet up with another vehicle and a second time during which
Mrs. Moore was removed by the masked men, interrogated again about the
Keota branch bank, and advised of what her role would be in the robbery of
the bank. Eventually, the masked men removed the blindfolds from the
Moores, ordered Mr. Moore to drive the van, and directed him to the Keota
branch bank.

At the Keota branch bank, one of the masked men remained in the van
with Mr. Moore while the other escorted Mrs. Moore, who had keys to the
bank, inside. In accordance with the masked man’s directions, Mrs. Moore
turned off the bank’s alarm system and video camera, and then opened the
bank’s vault. The masked man removed a bag of money from the vault
(totaling $29,300), left the bank with Mrs. Moore, and returned to the van.
Mr. Moore was then ordered to drive as fast as he could out into the
country. Outside of Keota on a country road, the masked men ordered the
Moores out of the van and directed them to “walk west and don’t look
back.” Supp. Vol. II, at 11. The Moores walked to a nearby house where
they called law enforcement authorities. The Moores’ van was
subsequently found abandoned outside of Keota.

On April 25, 2003, a criminal complaint was filed charging Johnson and
Jimmie Perkins with robbing the Keota branch bank, in violation of 18
U.S.C. § 2113(a). (citation omitted). Both men were arrested that same
day. During a post-arrest interview with the Federal Bureau of
Investigation (FBI), Jimmie Perkins admitted his involvement in the
robbery, but asserted that he was forced to participate, under threat of
physical harm to himself and his family, by a group of Mexican men.
When questioned about Johnson’s involvement in the robbery, Jimmie
Perkins refused to say whether Johnson was involved or not.

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 On June 11, 2003, a federal grand jury returned an eight-count
indictment charging Johnson, Jimmie Perkins, and Anthony Perkins
(Jimmie Perkins’ son) with various crimes arising out of the robbery of the
Keota branch bank. (citation omitted). Count I charged the defendants with
conspiracy to commit armed bank robbery in violation of 18 U.S.C. § 371.
Count II charged the defendants with armed bank robbery in violation of 18
U.S.C. § 2113(a) and (c). Count III charged the defendants with hostage
taking in violation of 18 U.S.C. § 1203. (footnote omitted). Count IV
charged Johnson and Jimmie Perkins with possession of a firearm during
the commission of a crime of violence in violation of 18 U.S.C. § 924(c).
Counts V and VI charged Johnson with solicitation to commit a crime of
violence in violation of 18 U.S.C. § 373. Count VII charged Johnson and
Jimmie Perkins with possession of stolen firearms in violation of 18 U.S.C.
§ 924( l ). Finally, Count VIII charged all three defendants with conspiracy
to possess a firearm during the commission of a crime of violence in
violation of 18 U.S.C. § 924(o).

The case proceeded to trial on December 17, 2003. At the conclusion of
the evidence, the jury found the three defendants guilty as charged in the
indictment. With respect to defendants Johnson and Jimmie Perkins, the
jury also found, in response to a special interrogatory, that they brandished
weapons during and in relation to Count IV of the indictment (i.e., the §
924(c) charge).

On May 12, 2004, the district court conducted a joint sentencing hearing
for the three defendants. At the government’s request, the district court
determined it would depart upward in two respects as regards the sentences
of defendants Johnson and Jimmie Perkins. First, the district court
concluded that their § 924(c) convictions effectively skewed their Guideline
ranges lower than they would have been had they not been convicted under
§ 924(c). In other words, the district court concluded that the sentences for
Johnson and Jimmie Perkins “under the Guidelines for violation of Sections
2113(a) and 924(c) might be less severe than had they been convicted of
violating only Section 2113(a) with an enhancement for using a firearm . . .
.” (citation omitted). Thus, in accordance with Application Note 4 to §
2K2.4 of the Sentencing Guidelines (footnote omitted), the district court
chose to calculate Guideline ranges for these two defendants by treating
them as if they had not been convicted of violating § 924(c) (and thus in
turn enhancing their offense levels for using a firearm during and in relation
to the bank robbery). This resulted in an offense level of 38 for Johnson
and 36 for Jimmie Perkins, and in turn a Guideline range of 235 to 293

4
 months for Johnson and 188 to 235 months for Jimmie Perkins.

Second, the district court found “by a preponderance of the evidence that
the combination of the sophistication of the robbery, the duration of the
abduction, the use of multiple firearms and making multiple and repeated
threats of death to multiple victims, and the sexual assault of Mrs. Moore
[we]re aggravating factors present to a degree not adequately considered by
the Sentencing Commission in formulating the Guidelines,” which in turn
caused the case “to differ significantly from the heartland cases covered by
the guidelines.” (citation omitted). Thus, the district court departed upward
by imposing a two-level enhancement to the offense levels of defendants
Johnson and Jimmie Perkins.

Ultimately, the district court sentenced the three defendants in the
following manner. With respect to defendant Johnson, who the district
court found was the leader or organizer of the robbery, the district court
imposed a sentence of 324 months, in the middle of Johnson’s guideline
range of 292 to 365 months. With respect to defendant Jimmie Perkins, the
district court imposed a sentence of 293 months, a sentence at the very top
of the guideline range of 235 to 293 months. Finally, with respect to
defendant Anthony Perkins, the district court imposed a sentence of 188
months, a sentence at the bottom of the guideline range.

United States v. Johnson, 168 Fed. Appx. 294, 298-300 (10th Cir. 2006).

On direct appeal, this court affirmed the convictions of all three defendants, as

well as the sentence of defendant Anthony Perkins, but remanded the cases of defendants

Johnson and Jimmie Perkins to the district court for resentencing. In doing so, this court

concluded that the district court committed plain error in finding that the robbery was

“sophisticated” and, in turn, relying on that finding to help support its decision to upward

depart from the Guideline range with respect to the sentences for defendants Johnson and

Jimmie Perkins. Johnson, 168 Fed. Appx. at 311.

On remand, the government filed a motion essentially asking the district court to

5
impose the same sentences originally imposed. More specifically, the government’s

motion requested that the district court “determine both defendants[’] sentences as if there

were no 18 U.S.C. § 924(c) conviction utilizing an alternate sentencing calculation.”

Johnson ROA, Vol. I, Doc. 136 at 1. The government’s motion also asked the district

court to impose a two-level upward departure on each defendant based on “the

combination of factors” cited in the government’s prior motion for upward departure (i.e.,

extended duration of the offense, use of multiple firearms during the offense, the making

of multiple death threats during the offense, and the sexual assault of one of the victims),

“excluding sophistication of the robbery . . . .” Id. at 3. According to the government,

granting its motion would result in an offense level of 38 and an associated “range of 235-

293 months” for defendant Jimmie Perkins, and an offense level of 40 and an associated

Guideline range of 292-365 months for defendant Johnson (assuming application of a

two-level enhancement for his leadership role). Id. at 4. Both defendants objected to the

government’s motion.

On August 3, 2006, the district court conducted a resentencing hearing for both

defendants. During the hearing, the district court adopted the factual findings it made at

the previous sentencing hearing, except for the question of who was “the perpetrator of

the sexual assault.” Id., Vol. 2 at 10. The district court also made the following,

additional factual findings:

• “defendants chose to abduct Mrs. Moore because she had keys to the bank
and was responsible for opening the bank every morning,” id. at 33;

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 • “[t]hey abducted her husband to further ensure her cooperation,” id.;

• “[t]he Moores were held at gunpoint in their home for 17 hours,” id.;

• “[n]o time during the 17 hours after the defendants learned that they could
not immediately break into the bank, that they had to wait until morning,
did they decide to give up their crime,” id.;

• “[d]uring the ordeal, multiple firearms [we]re used by the defendants,
repeatedly used, to make threats and stuck in the face of both [victims],” id.
at 33-34;

• “[m]ultiple and repeated threats of death by the use of the guns to the
Moores and family members were made by the defendants and they were
made to coerce the Moores into cooperating and keep that cooperation
going for 17 long hours,” id. at 34;

• “there is evidence – convincing evidence that one of the defendants
threatened to sexually assault Ms. Moore and indeed removed her pants
which I think qualifies as a sexual assault, perhaps not technically, but
that’s pretty close to the court,” id.; and

• “the guns stolen from the other family member were likewise brandished
or used or would have been a threat as well as the guns simply brought to
the scene by the defendants themselves,” id.

The district court then concluded as follows:

As to the factors submitted by the government and the sentencing factors
set forth in 18 United States Code, Section 3553(a), the court finds by a
preponderance of the evidence that the combination of the duration of the
abduction, the use and threatening use of the multiple firearms in the
commission of the offense, the multiple and repeated threats of death to the
Moores, and the sexual assault on Ms. Moore are aggravating factors
present to a degree not adequately considered by the Sentencing
Commission in formulating the guidelines for bank robbery, which causes
this case to differ significantly from the heartland cases covered by the bank
robbery guidelines. This is not a smash-and-grab bank robbery. Very few
bank robbers – bank robberies last for 17 hours.

In determining the extent of the departure, the court notes that most

7
 guideline adjustments are two- or three-level adjustments, which in this
case has a significant impact on the sentencing range of the defendants.
Therefore, taking into consideration the combination of factors previously
described, as well as the offense conduct, need for just punishment,
deterrence and protection of the public, the court finds a two-level
adjustment is appropriate in this case.

According to the sentencing table in the guidelines manual, this
departure enhances the sentencing range to 292 to 365 months for Mr.
Johnson and 235 to 293 months for Jimmie Perkins. The sentence imposed
by the court in this case will be fashioned in accordance with those
sentencing ranges.

Id. at 35-36. With respect to defendant Johnson, the district court imposed a total

sentence of 324 months (comprised of 60 months on Count 1, 240 months on each of

Counts 2 and 8, 84 months on Count 4, and 120 months on each of Counts 5, 6, and 7,

with all of the terms, except for that imposed with respect to Count 4, to run

concurrently). With respect to defendant Perkins, the district court imposed a total

sentence of 293 months (comprised of 60 months on Count 1, 209 months on each of

Counts 2 and 8, 84 months on Count 4, and 120 months on Count 7, with all of the terms,

except for that imposed with respect to Count 4, to run concurrently).

II.

A. Defendant Johnson’s appeal - No. 06-7074

The district court, in imposing the two-level upward departures on each defendant,

cited a combination of four factors. Defendant Johnson, in his appeal from resentencing,

challenges three of the four factors relied upon by the district court, i.e., duration of the

abduction, use of multiple firearms, and multiple threats of death. According to Johnson,

8
these three challenged factors “do not survive application of the standards for when a

factor considered by the offense guideline can serve as an upward departure ground.”

Johnson. Br. at 7.

A sentencing court is permitted to depart from the Guidelines after determining a

defendant’s offense level, criminal history category, and the applicable Guideline range if

“the court finds, pursuant to 18 U.S.C. § 3553(b)(1), that there exists an aggravating or

mitigating circumstance . . . of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in formulating the guidelines.” U.S.S.G. §

5K2.0(a)(1)(A). More specifically, a sentencing court may depart based on circumstances

(a) of a kind not adequately taken into consideration by the Guidelines, U.S.S.G. §

5K2.0(a)(2), or (b) present to a degree not adequately taken into consideration by the

Guidelines, id. § 5K2.0(a)(3). A sentencing court may also, as was the case here, “depart

from the applicable guideline range based on a combination of two or more offender

characteristics or other circumstances, none of which independently is sufficient to

provide a basis for departure . . . .” Id. § 5K2.0(c). Under these latter circumstances, a

departure is warranted “only if” the “offender characteristics or other circumstances”

relied on by the sentencing court, “taken together, make the case an exceptional one,” and

“each such offender characteristic or other circumstance is . . . present to a substantial

degree . . . and . . . identified in the guidelines as a permissible ground for departure, even

if such offender characteristic or other circumstance is not ordinarily relevant to a

determination of whether a departure is warranted.” Id. § 5K2.0(c)(1), (2).

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 Generally speaking, when reviewing a district court’s application of the

Sentencing Guidelines, this court reviews any legal questions de novo and the factual

findings for clear error, giving due deference to the district court’s application of the

Guidelines to the facts. United States v. Pettigrew, 468 F.3d 626, 639-40 (10th Cir.

2006). “In specifically reviewing upward departures, this court employs a four-part test,

examining: (1) whether the factual circumstances supporting a departure are permissible

departure factors; (2) whether the departure factors relied upon by the district court

remove the defendant from the applicable Guideline heartland thus warranting a

departure; (3) whether the record sufficiently supports the factual basis underlying the

departure; and (4) whether the degree of departure is reasonable.” United States v.

Wolfe, 435 F.3d 1289, 1295 (10th Cir. 2006). “All of these steps are subject to a unitary

abuse of discretion standard.” Id. (internal quotation marks omitted).

1) Duration of the abduction

Johnson contends that the duration of the abduction was not a proper basis for

departing upward “because the [Sentencing] Commission included abduction in the

robbery guideline and could foresee that abduction could occupy a period of time outside

the time necessary for the robbery.” Johnson Br. at 7. He further argues that “[t]he time

period [of abduction] in this case was only what was necessary to accomplish the robbery,

and abduction did not become an independent criminal objective.” Id.

Generally speaking, “abduction or unlawful restraint” is considered by the

Guidelines to be an “encouraged” basis for departure. See U.S.S.G. § 5K2.4 (“If a person

10
was abducted, taken hostage, or unlawfully restrained to facilitate commission of the

offense or to facilitate the escape from the scene of the crime, the court may increase the

sentence above the authorized guideline range.”). As noted by Johnson, however,

U.S.S.G. § 2B3.1, which establishes the offense level for robbery convictions, expressly

takes abduction into account by mandating a four-level increase “[i]f any person was

abducted to facilitate commission of the offense or to facilitate escape . . . .” Id. §

2B3.1(b)(4)(A). Further, the district court in this case applied that four-level increase in

calculating Johnson’s guideline range. Thus, in order for the abduction that occurred in

this case to properly justify, in combination with one or more other factors, an upward

departure, it must have been “present to a substantial degree . . . .” Id. § 5K2.0(c)(2)(A).

Johnson asserts that “the abduction did not take this case out of the heartland of

robberies represented by Guideline 2B3.1.” Johnson Br. at 13. In support of that

assertion, Johnson argues that “[i]t is foreseeable that robberies may be committed

wherein victims are abducted for several hours in order to facilitate the offense.” Id. at

12. He also asserts that “[t]he abduction was not for a gratuitous period of time, and

ended minutes after the robbery was accomplished.” Id. at 13. In other words, he asserts

that “[t]he abduction . . . was for the length of time needed to accomplish the robbery,”

and no more. Id.

The problem with Johnson’s arguments is that he is incorrectly relying on the

standard set forth in U.S.S.G. § 5K2.0(a)(3), i.e., the requirement that a circumstance be

“present in the offense to a degree substantially in excess of, or substantially below, that

11
which ordinarily is involved in that kind of offense.” That standard, however, is

inapplicable here because the district court did not rely solely on the length of the

abduction, but rather relied on the length of the abduction together with three other

factors, to impose an upward departure. Thus, although Johnson may be correct in

asserting that an abduction lasting seventeen hours could not be considered “substantially

in excess of that which is ordinarily involved in” a bank robbery, it does not answer the

pertinent question of whether the lesser standard set forth in U.S.S.G. § 5K2.0(c)(2)(A) is

satisfied.

After reviewing the record on appeal, we conclude that the length of the abduction

does, indeed, satisfy this lesser standard. The evidence presented at trial in this case

overwhelmingly established, and Johnson does not dispute, that the abduction of the

Moores lasted from approximately 2 p.m. on the afternoon of March 31, 2003, until 7:30

or 8:00 a.m. on the morning of April 1, 2003, or a total of seventeen to eighteen hours.

Further, the district court, in citing the length of the abduction as one of the factors it was

relying on to impose an upward departure, stated: “Very few . . . bank robberies last for

17 hours.” Johnson ROA, Vol. 2 at 36. Notably, Johnson does not directly dispute this

conclusion, nor does he seriously dispute that the length of the abduction was, indeed,

“substantial.” In short, it is clear that the abduction, in terms of length, was present “to a

substantial degree,” and that the district court properly relied on this factor to impose the

upward departure.

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 2) Multiple firearms

Johnson next contends that the use of “multiple firearms was not a factor present

substantially in excess of the typical case, and does not distinguish this case as rare and

exceptional.” Johnson Br. at 13. In support of this contention, Johnson notes that (a)

there is no evidence “that the intruders were armed with more than one firearm each,” id.

at 14, (b) the intruders unloaded and ultimately removed from the house the firearms

belonging to the Moores, and (c) there is no evidence that weapons were used inside the

Moore’s vehicle during the robbery episode. In sum, Johnson argues “that this was a

garden variety abduction/robbery as far as use or number of weapons was involved.” 1 Id.

at 14-15.

The initial problem with Johnson’s arguments is, again, that he is relying on the

more demanding standard set forth in U.S.S.G. § 5K2.0(a)(3), i.e., the requirement that a

circumstance be “present in the offense to a degree substantially in excess of, or

substantially below, that which ordinarily is involved in that kind of offense,” instead of

the lesser, “to a substantial degree” standard set forth in U.S.S.G. § 5K2.0(c)(2)(A).

Applying the correct standard, we conclude, as the district court effectively

concluded, that the defendants’ use of weapons was present “to a substantial degree.” As

previously noted, the district court at the time of resentencing expressly found that

1
Johnson does not, and indeed cannot, dispute that the use of weapons during the
commission of an offense is a permissible ground for departure. See U.S.S.G. § 5K2.6
(“If a weapon or dangerous instrumentality was used or possessed in the commission of
the offense the court may increase the sentence above the authorized guideline range.”).

13
“[d]uring the ordeal, multiple firearms [we]re used by the defendants, repeatedly used, to

make threats and stuck in the face of both [victims].” Johnson ROA, Vol. 2 at 33-34. In

other words, although each of the defendants may only have brandished a single weapon

at a time during the course of the abduction, it is uncontroverted that they repeatedly used

those weapons over the entire course of the abduction to threaten and coerce the Moores

into cooperating. Accordingly, the “use of multiple weapons” was indeed present “to a

substantial degree,” and thus was properly relied on by the district court in imposing the

upward departure.

3) Multiple death threats

Lastly, Johnson concedes “that multiple and repeated threats of death were made

to the Moores, in order to coerce them into cooperating,” but nevertheless argues that “the

role of death threats did not set this case apart as the rare case not envisioned by the

Sentencing Commission.” Johnson Br. at 15. Rather, he argues, “[t]he threats of death

were of the usual kind that accompany robberies–comply or be harmed.” Id. In sum, he

argues that this factor “was not present substantially in excess of what is ordinarily

involved.” 2 Id. at 16.

2
Johnson does not argue that consideration of multiple death threats as a factor
was impermissible under the Guidelines. Although Chapter 5, Part K of the Guidelines
does not appear to expressly discuss the use of death threats, it does indicate that
“extreme conduct” on the part of the defendant may justify an upward departure.
U.S.S.G. § 5K2.8 (“If the defendant’s conduct was unusually heinous, cruel, brutal, or
degrading to the victim, the court may increase the sentence above the guideline range to
reflect the nature of the conduct.”). Further, § 2B3.1 of the Guidelines, which specifically
addresses robberies, does provide for an enhancement if “a threat of death was made . . .
.” U.S.S.G. § 2B3.1(b)(2)(F).

14
 Johnson again relies on the wrong standard in making his argument. Rather than

relying on the correct, “to a substantial degree” standard set, he instead erroneously relies

on the “substantially in excess of” standard. Thus, his arguments fail.

In any event, we conclude after reviewing the record that it was proper for the

district court to rely on this factor in imposing the upward departure. At the time of

resentencing, the district court found, and Johnson now concedes, that “[m]ultiple and

repeated threats of death by the use of the guns to the Moores and family members were

made by the defendants and they were made to coerce the Moores into cooperating and

keep that cooperation going for 17 long hours.” Johnson ROA, Vol. 2 at 34. Thus,

whether or not the use of death threats in this case was “substantially in excess of that . . .

which ordinarily is involved in th[is] kind of offense,” it is clear that death threats were

used here “to a substantial degree.” In turn, it was proper for the district court to rely on

the defendants’ repeated use of death threats in imposing the upward departure.

4) Conclusion

In conclusion, all three of the factors challenged by Johnson were properly relied

on by the district court in imposing the upward departure. Further, it is clear that these

three factors, together with the commission of the sexual assault, made this “an

exceptional” case for purposes of U.S.S.G. § 5K2.0(c)(1), and Johnson does not argue to

the contrary. Thus, we affirm defendant Johnson’s sentence.

B. Defendant Perkins’ appeal - No. 06-7075

Defendant Jimmie Perkins asserts five issues on appeal from his resentencing.

15
 1) Lack of notice of sentencing enhancements

Perkins first contends that the government violated Federal Rule of Criminal

Procedure 32(h) by failing to provide him with adequate notice of its intent to seek

enhancements to his base offense level. In particular, Perkins complains that “no

information, argument or authority, was ever received from the United States Attorney as

to the five sentencing enhancements [ultimately] used [by the district court at the time of

resentencing] to increase [his] sentencing range . . . .” Perkins Br. at 25. Likewise,

Perkins contends, “[t]he Probation Office gave [him] no” notice of these enhancements

prior to the resentencing hearing. Id. at 26. This court “review[s] the District Court’s

adherence to Rule 32(h) de novo.” United States v. Dozier, 444 F.3d 1215, 1217 (10th

Cir. 2006).

Rule 32(h), entitled “Notice of Possible Departure from Sentencing Guidelines,”

provides as follows:

Before the court may depart from the applicable sentencing range on a
ground not identified for departure either in the presentence report or in a
party’s prehearing submission, the court must give the parties reasonable
notice that it is contemplating such a departure. The notice must specify
any ground on which the court is contemplating a departure.

Although this statutory language appears to apply only to upward and downward

departures, we will assume, arguendo, that Rule 32(h) also encompasses enhancements to

a defendant’s offense level.3

3
In Dozier, a panel of this court held that “Rule 32(h) affords a criminal defendant
the right to be notified of any intention by the district court to enhance a sentence and any
(continued...)

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 After Perkins was convicted at trial, the probation office prepared and submitted a

PSR recommending the imposition of five sentencing enhancements: (1) a two-level

enhancement pursuant to U.S.S.G. § 2B3.1(b)(1) for taking the property of a financial

institution; (2) a four-level enhancement pursuant to U.S.S.G. § 2B3.1(b)(4)(A) because a

person was abducted to facilitate commission of the robbery; (3) a one-level enhancement

pursuant to U.S.S.G. § 2B3.1(b)(6) because firearms were taken from the Moores’ house;

(4) a one-level enhancement pursuant to U.S.S.G. § 2B3.1(b)(7) because the amount of

loss was more than $10,000 but less than $50,000; and (5) a two-level enhancement

pursuant to U.S.S.G. § 2B3.1(b)(5) because the offense involved car-jacking (i.e., the

taking of the Moores’ van). Although Perkins objected to four of these proposed

enhancements (he did not object to the two-level enhancement for car-jacking), the

district court overruled his objections and imposed all five of the proposed enhancements.

On direct appeal, this court, applying a plain error standard of review, overruled Perkins’

Booker4 objection to the enhancements. In doing so, this court concluded, in pertinent

part, “that a jury applying a reasonable doubt standard would have found all of the facts

underlying the five enhancements . . . .” Johnson, 168 Fed. Appx. at 307. This court

3
(...continued)
basis for such an enhancement.” 444 F.3d at 1217. This language would seem to suggest
that Rule 32(h) does, in fact, apply to sentencing enhancements, as opposed to upward or
downward departures. However, Dozier itself involved only an upward departure. Thus,
the above-quoted language appears to be dicta. Moreover, the above-quoted language
from Dozier appears to be inconsistent with the plain language of Rule 32(h).
4
United States v. Booker, 543 U.S. 220 (2005).

17
ultimately remanded Perkins’ case for resentencing, however, due to the district court’s

reliance on an improper factor in imposing an upward departure.

On remand, Perkins filed a “Sentencing Memorandum” arguing, in pertinent part,

that a new PSR should be prepared addressing “all sentencing issues . . . that could be

raised or considered by the [district] Court . . . .” Perkins ROA, Vol. 1, Doc. 134 at 3. In

support of this request, Perkins asserted that he “ha[d] received nothing from the

probation officer in this case as to recommendations on the re-sentencing,” “d[idn’t]

know what the Government m[ight] be asking for,” and “want[ed] to know in advance

what the Court w[ould] consider . . . so that [he] could prepare for the [resentencing]

hearing.” Id. at 4. The district court conducted a hearing on Perkins’ motion, during

which Perkins’ counsel conceded that a new PSR was unnecessary. Id., Vol. 2 at 8 (“So,

you know, I’m not here to create a lot more work and, you know, another Presentence

Report, a whole bunch of other investigation. I don’t think we need all of that . . . .”). At

the conclusion of that hearing, the district court denied Perkins’ request for a new PSR,

and instead indicated it would rely on the original PSR. Id. at 19. The district court did,

however, indicate that the parties could “submit additional objections to the” original

PSR. Id. Following this hearing, the government filed a motion requesting that the

district court (a) apply an alternate sentencing calculation, and (b) impose a two-level

upward departure. Perkins filed an objection to the government’s proposed upward

departure. Id., Doc. 137. Importantly, Perkins noted, as part of his objections, that he

would likely be receiving the same enhancements that were originally imposed by the

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district court at the original sentencing hearing. Id. at 4-5 (noting that he would likely

receive a 6-level enhancement based on the use of firearms); id. at 5 (noting that he would

likely receive “a 2 point enhancement because the property of a financial institutional was

the object o the offense,” “an additional 4 points because the Moores were abducted

during the course of the offense,” and “an additional 2 points . . . based on the

carjacking”).

Based upon these facts, Perkins was provided with sufficient notice of the five

sentencing enhancements ultimately imposed by the district court at the resentencing

hearing. Specifically, the district court indicated on remand that it would rely on the

original PSR, which expressly listed each of the five sentencing enhancements. Further,

Perkins effectively conceded in his objections to the government’s proposed upward

departure that he was aware that the five sentencing enhancements would be considered,

and likely applied, by the district court. Thus, we conclude there was no violation of Rule

32(h).

2) District court’s factual findings regarding sentencing enhancements

Perkins next contends that the district court violated his rights by basing each of

the five sentencing enhancements on its own factual findings utilizing a preponderance of

the evidence standard. In other words, Perkins complains that the sentencing

enhancements were neither supported by his own admissions or findings by a jury beyond

a reasonable doubt.

Perkins’ argument clearly lacks merit. Contrary to Perkins’ argument, Booker

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made clear that sentencing facts need not be proved beyond a reasonable doubt. Rather,

as long as a district court applies the Guidelines in an advisory fashion (which the district

court in this case clearly did), facts may be proved by a preponderance of the evidence.

United States v. Magallanez, 408 F.3d 672, 685 (10th Cir. 2005). That is, provided the

sentence imposed by the district court is within the range authorized by the statute under

which the defendant was convicted, judicial fact-finding by a preponderance of the

evidence does not violate the Constitution. United States v. Crockett, 435 F.3d 1305,

1319 (10th Cir. 2006). We note that Perkins does not assert that his sentence exceeded

the statutory maximum. Thus, it was entirely permissible for the district court to make its

own factual findings applying a preponderance of the evidence standard, and to utilize

those findings to enhance Perkins’ base offense level.

3) The alternative sentencing calculation

Perkins next focuses upon the district court’s adoption of what the parties refer to

as “the alternative sentence calculation,” and what essentially amounted to an upward

departure, proposed by the prosecution and authorized by Application Note 4 to U.S.S.G.

§ 2K2.4. In particular, Perkins complains that Application Note 4 “provides no method

or criteria” for application of the alternative sentence calculation. Perkins Br. at 40.

Instead, he argues, “[t]he only direction implicit in this Application Note is that the

highest sentence should be meted out – without any consideration of reasonableness.” Id.

Perkins also appears to suggest that the alternative calculation was inappropriate in light

of the district court’s (a) application of five enhancements to his base offense level, and

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(b) imposition of a two-level upward departure based on other circumstances of the

offense.

Section 2K2.4 of the Sentencing Guidelines governs the calculation of sentences

for offenses involving the “Use of Firearm, Armor-Piercing Ammunition, or Explosive

During or in Relation to Certain Crimes.” Application Note 4 to § 2K2.4 provides, in

pertinent part, that

[i]f a sentence under this guideline is imposed in conjunction with a
sentence for an underlying offense, do not apply any specific offense
characteristic for possession, brandishing, use, or discharge of an explosive
or firearm when determining the sentence for the underlying offense. A
sentence under this guideline accounts for any explosive or weapon
enhancement for the underlying offense of conviction . . . .

U.S.S.G. § 2K2.4, comment. n. 4. Application Note 4 does, however, provide the

following exception to this general rule:

In a few cases in which the defendant is determined not to be a career
offender, the offense level for the underlying offense determined under the
preceding paragraphs may result in a guideline range that, when combined
with the mandatory consecutive sentence under 18 U.S.C. . . . § 924(c), . . .
produces a total maximum penalty that is less than the maximum of the
guideline range that would have resulted had there not been a count of
conviction under 18 U.S.C. . . . § 924(c) . . . (i.e., the guideline range that
would have resulted if the enhancements for possession, use, or discharge
of a firearm had been applied). In such a case, an upward departure may be
warranted so that the conviction under 18 U.S.C. . . . § 924(c) . . . does not
result in a decrease in the total punishment. An upward departure under this
paragraph shall not exceed the maximum of the guideline range that would
have resulted had there not been a count of conviction under 18 U.S.C. § . .
. § 924(c) . . . .

Id.

Although Perkins argues that Application Note 4 “provides no method or criteria”

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for application of the alternative sentence calculation, and thus does not take into account

the overall reasonableness of the sentence, his reading of Application Note 4 is incorrect.

Application Note 4 simply grants sentencing courts authority to “depart upward to ensure

that defendants convicted under both § 924(c) and the underlying crime of violence do

not receive more lenient sentences by virtue of the § 924(c) conviction than if they had

been convicted of the underlying offense alone.” United States v. Banks-Giombetti, 245

F.3d 949, 953 (7th Cir. 2001). In other words, Application Note 4 affords sentencing

courts the discretion to decide, in cases such as this, whether the lower or higher

sentencing range is more appropriate. To be sure, Application Note 4 suggests, and it is

likely to be true, that the higher sentencing range (i.e., the range achieved by upward

departing) will usually be more appropriate. Nevertheless, a defendant, such as Perkins,

is always free to argue that the lower sentencing range is more appropriate (as Perkins did

here), and/or to request a variance below the guideline range ultimately calculated in

order to achieve what the defendant believes to be a “reasonable” sentence.

Perkins’ other arguments also lack merit. In particular, nothing in Application

Note 4 indicates that the alternative sentencing calculation is inappropriate, or should not

otherwise be applied, if a defendant has received a certain number or level of

enhancements to his or her base offense level. Thus, the fact that the district court applied

five enhancements to Perkins’ base offense level did not prohibit it from applying the

alternative sentencing calculation authorized by Application Note 4. Likewise, nothing in

Application Note 4, or any other guideline provision, prohibited the district court from

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applying a second upward departure pursuant to U.S.S.G. § 5K2.0(c).

4) The district court’s upward departure pursuant to § 5K2.0(c)

Perkins challenges each of the four factors cited by the district court in imposing

the two-level upward departure pursuant to § 5K2.0(c). For the reasons already discussed

above in connection with defendant Johnson’s appeal, there is no merit to Perkins’

challenges to the multiple firearms, multiple threats, and duration of abduction factors. In

other words, for the reasons already discussed, the district court properly relied on all

three of these factors in imposing the upward departure pursuant to § 5K2.0(c). Thus,

that leaves only Perkins’ challenge to the sexual assault factor cited by the district court.

Perkins suggests that this is “perhaps . . . the most troubling of all the factors for

the upward departure.” Perkins’ Br. at 45. Although Perkins does not dispute that Mrs.

Moore was sexually assaulted, he argues that the assailant “was never identified between

the three defendants on trial,” and “[t]here was no evidence presented at trial or the first

sentencing hearing [that] the other two defendants were aware the assault occurred.” Id.

Finally, Perkins argues the sexual assault was not a foreseeable act for which he, as the

non-assailant, should be held responsible.

As previously noted, § 5K2.0(c) allows a sentencing court to “depart from the

applicable guideline range based on a combination of two or more offender characteristics

or other circumstances, none of which independently is sufficient to provide a basis for

departure . . . .” The application notes to § 5K2.0 define “circumstance” to “include[], as

appropriate, an offender characteristic or any other offense factor.” U.S.S.G. § 5K2.0,

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comment. n. 1. Both this circuit and the First Circuit have interpreted this definitional

language to mean that “upward departures are allowed for acts of misconduct not

resulting in conviction, as long as those acts, whether or not relevant conduct in the

section 1B1.3 sense, relate meaningfully to the offense of conviction.” United States v.

Amirault, 224 F.3d 9, 12 (1st Cir. 2000) (emphasis added); accord United States v. Neal,

249 F.3d 1251, 1259-60 (10th Cir. 2001) (adopting the First Circuit’s reasoning in

Amirault).

Applying that standard here, it is clear that the sexual assault of Mrs. Moore

“related meaningfully to” Perkins’ “offense[s] of conviction.” In particular, it is

uncontroverted that the assault occurred while the Moores were held hostage in their own

home, and while the three defendants were waiting for the bank to open. Further, the

prosecution presented testimony at trial from a former supervisor of defendant Johnson’s

(Thomas Leon Guinn) who testified that a few weeks prior to the robbery, Johnson

indicated he was thinking about robbing a Keota bank by kidnaping a woman who had

keys to the bank, and that, as part of his robbery scheme, he intended to threaten to rape

or harm the woman. Tr. at 79-81. Based upon this testimony, a reasonable finder of fact

could have concluded, applying a preponderance of the evidence standard, that Johnson

likewise informed the other two defendants, prior to the actual commission of the crime,

about his plan to rape or harm the woman. In turn, then, the sexual assault would clearly

fall within the scope of “relevant conduct” under § 1B1.3 because it would have been

“reasonably foreseeable” by Perkins. U.S.S.G. § 1B1.3(a)(1)(B). Accordingly, the

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district court properly relied on the sexual assault in imposing the two-level upward

departure pursuant to § 5K2.0(c).

5) Presumptive reasonableness of the Sentencing Guidelines

Perkins argues, at length, that “the position of this Circuit as to the presumptive

reasonableness of the sentencing guidelines is in error.” Perkins’ Br. at 49. Perkins’

arguments, however, are clearly foreclosed by the Supreme Court’s recent decision in

United States v. Rita, 127 S.Ct. 2456, 2465 (2007) (approving the presumption of

reasonableness adopted by this circuit and others).

We AFFIRM the sentences of both defendants.

Entered for the Court

Mary Beck Briscoe
Circuit Judge

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