United States v. Terry

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 96-4919

NARKEY KEVAL TERRY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-96-207-A)

Argued: October 29, 1997

Decided: April 22, 1998

Before LUTTIG and WILLIAMS, Circuit Judges, and BULLOCK,
Chief United States District Judge for the
Middle District of North Carolina, sitting by designation.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Williams wrote
the opinion, in which Judge Luttig and Chief Judge Bullock joined.

_________________________________________________________________

COUNSEL

ARGUED: David Benjamin Smith, ENGLISH & SMITH, Alexan-
dria, Virginia, for Appellant. Randy I. Bellows, Assistant United
States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF:
Helen F. Fahey, United States Attorney, Alexandria, Virginia, for
Appellee.

_________________________________________________________________
OPINION

WILLIAMS, Circuit Judge:

Narkey Terry was convicted in the United States District Court for
the Eastern District of Virginia of two counts of involuntary man-
slaughter and one count of reckless driving. Although the Sentencing
Guidelines called for a sentencing range of 21 to 27 months for
Terry's crimes, the district court sentenced Terry to 120 months
imprisonment. The district court, relying upon three separate encour-
aged factors, departed upward a total of fifteen levels. Terry now
appeals the district court's upward departure. Finding that the district
court erred in several respects, we vacate the sentence imposed and
remand for resentencing.

I.

In the early morning of April 17, 1996, Terry was driving his Jeep
Cherokee northward along the George Washington Memorial Park-
way (G.W. Parkway).1 Near the Ronald Reagan National Airport exit,
Terry pulled in behind a Chevrolet Beretta driven by Billy Canipe.
According to the testimony of several eyewitnesses, Canipe was driv-
ing about 20 miles per hour in the left (passing) lane. Seemingly upset
with Canipe's slow pace, Terry began tailgating him. After two or
three minutes, the low-speed tailgating escalated to a high-speed
chase. Over the course of approximately eight miles, witnesses saw
the two drivers race each other at speeds of up to 80 miles per hour.2
_________________________________________________________________
1 The G.W. Parkway "stretches from Mount Vernon at its southern end
through the city of Alexandria, north through Arlington and Fairfax
Counties, past Memorial and Key Bridges, to its northern end at the
intersection of the Capital Beltway." Udall v. Washington, Virginia &
Maryland Coach Co., 398 F.2d 765, 766 (D.C. Cir. 1968). Of particular
importance in this case, the G.W. Parkway is a federal highway under the
jurisdiction of the United States and the direction of the National Park
Service. See id. at 766-67.
2 The posted speed limit over that stretch of the G.W. Parkway varied
from 40 to 50 miles per hour. Near Roosevelt Island, however, construc-
tion further limited the speed limit to 30 miles per hour.

2
Eventually, Terry's Jeep hit Canipe's Beretta, causing the Beretta
to spin across the median and into the southbound lanes, where it
struck a Ford Taurus driven by George Smyth. The impact killed Mr.
Smyth instantly. A section of Canipe's car, weighing close to 500
pounds, flew into the air and landed on the windshield of a Dodge
Caravan driven by Nancy McBrien. Mrs. McBrien died within
moments of the crash. Canipe was thrown from his car and sustained
fatal injuries. Terry sustained a broken ankle and cuts and bruises to
his face and chest.

The United States charged Terry with two counts of involuntary
manslaughter (Nancy McBrien and George Smyth) in violation of 18
U.S.C.A. § 1112 (West 1984 & Supp. 1997); with one count of reck-
less driving in violation of 18 U.S.C.A. § 13 (West Supp. 1997) and
Va. Code Ann. § 46.2-852 (Michie 1996); and with one count of car-
rying a concealed weapon in violation of 18 U.S.C.A.§ 13 and Va.
Code Ann. § 18.2-308 (Michie Supp. 1997). Terry pleaded guilty to
carrying a concealed weapon. Following a two-day jury trial, Terry
was convicted on the remaining three counts.

Terry was sentenced pursuant to the involuntary manslaughter
guideline. See U.S. Sentencing Guidelines Manual § 2A1.4 (1995).
Due to his reckless driving, Terry's base offense level was set at four-
teen. See U.S.S.G. § 2A1.4(a)(2). Because Terry was convicted on
two counts of involuntary manslaughter, his base offense level was
increased an additional two levels pursuant to the Guidelines' group-
ing rules. See U.S.S.G. § 3D1.4. With an adjusted offense level of 16
and a criminal history category of I, Terry's guideline range was 21-
27 months. See U.S.S.G. Ch.5, Pt.A.

Believing that 33 months3 would be "a wholly inadequate sentence
given the severity of the defendant's conduct," (J.A. at 125), the dis-
trict court determined that an upward departure was warranted. First,
_________________________________________________________________
3 The district court mistakenly stated that the guideline range for a
defendant with an adjusted offense level of 16 and a criminal history cat-
egory of I was 27-33 months. Because the applicable guideline range is
"relevant in assessing the reasonableness of the departure," United States
v. Talbot, 902 F.2d 1129, 1134 (4th Cir. 1990), we note that the correct
guideline range was, in fact, 21-27 months.

3
the district court departed upward eight levels to reflect the danger to
the public created by Terry's reckless driving. See U.S.S.G. § 5K2.14,
p.s. Next, the district court departed upward four levels to account for
the additional death of Canipe. See U.S.S.G.§ 5K2.1, p.s. Finally, the
district court departed upward three levels to take into consideration
the extreme psychological impact to the family members of the vic-
tims. See U.S.S.G. § 5K2.3, p.s. In total, the district court departed
upward fifteen levels. With a total offense level of 31 and a criminal
history category of I, Terry's guideline range was 108-135 months.
See U.S.S.G. Ch.5, Pt.A. Terry was sentenced to 120 months impris-
onment on the two involuntary manslaughter counts, a concurrent
term of 12 months on the reckless driving charge, and a consecutive
6 month term of imprisonment on the concealed weapon charge. On
appeal, Terry argues only that the district court abused its discretion
in departing upward by fifteen levels.

II.

It is well established that a sentencing court may depart from the
applicable guideline range where "the court finds that there exists an
aggravating or mitigating circumstance of a kind, or to a degree, not
adequately taken into consideration by the Sentencing Commission."
18 U.S.C.A. § 3553(b) (West Supp. 1997). In determining "whether
a potential basis for departure was adequately considered by the [Sen-
tencing] Commission . . ., a sentencing court must focus on whether
the factor is taken into account by the guidelines, policy statements,
or commentary." United States v. Barber, 119 F.3d 276, 280 (4th Cir.)
(en banc), cert. denied, 118 S. Ct. 457 (1997); see also United States
v. Brock, 108 F.3d 31, 33 (4th Cir. 1997). For example, if a factor has
been forbidden by the Sentencing Commission, "the sentencing court
cannot use it as a basis for departure." Koon v. United States, 116 S.
Ct. 2035, 2045 (1996); see also Barber, 119 F.3d at 280 (noting that
"a departure premised upon [a forbidden] factor is never permissi-
ble"). In contrast, if a factor is one upon which the Sentencing Com-
mission encourages departure, and that factor is not taken into
account by the applicable guideline, a court may exercise its discre-
tion and depart on that basis. See Koon, 116 S. Ct. at 2045. However,
if an encouraged factor is already taken into account in the applicable
guideline, or if a factor is discouraged, the sentencing court may
depart "only if the factor is present to an exceptional degree or in

4
some other way makes the case different from the ordinary case
where the factor is present." Id. Finally, "[i]f a factor is unmentioned
in the Guidelines, the court must, after considering the structure and
theory of both relevant individual guidelines and the Guidelines taken
as a whole, decide whether [the factor] is sufficient to take the case
out of the Guideline's heartland." Id. (internal citation and quotation
marks omitted).

Here, the district court relied upon three separate encouraged fac-
tors in departing upward a total of fifteen levels. We review each
departure in turn, keeping in mind that a district court's decision to
depart is reviewed for abuse of discretion. See Koon, 116 S. Ct. at
2043 ("[A]ppellate court[s] should not review the departure decision
de novo, but instead should ask whether the sentencing court abused
its discretion."); see also Barber, 119 F.3d at 283 (noting that the
Supreme Court "made clear that it intended to adopt a traditional
abuse of discretion standard").

A.

The district court departed upward eight levels"finding that the
public's welfare and safety were significantly endangered during the
protracted reckless driving of defendant." (J.A. at 126.) Danger to the
public's safety is a factor upon which the Sentencing Commission has
encouraged departure. In particular, § 5K2.14, p.s. provides:

If national security, public health, or safety was significantly
endangered, the court may increase the sentence above the
guideline range to reflect the nature and circumstances of
the offense.

U.S.S.G. § 5K2.14, p.s. Because endangering the public safety is an
encouraged basis for departure, we must determine whether the con-
duct that created the danger is taken into account by the involuntary
manslaughter guideline. See Barber, 119 F.3d at 285 (noting that
encouraged factors normally may not be relied upon if already taken
into account by the applicable guideline).

According to the district court, the public welfare was endangered

5
by Terry's protracted reckless driving. Our review of § 2A1.4 indi-
cates, however, that Terry's reckless driving was already taken into
account by the involuntary manslaughter guideline. Specifically, the
base offense level for Terry's involuntary manslaughter convictions
was increased from ten to fourteen due to his reckless driving. See
U.S.S.G. § 2A1.4(a)(2). It is clear, therefore, that the danger to the
public created by Terry's reckless driving was taken into account in
the guideline that he was sentenced under. As a result, departure
based upon reckless driving pursuant to § 5K2.14, p.s. generally
would not be appropriate.4 See U.S.S.G. § 5K2.0, p.s. (noting that
where the applicable offense guideline takes into consideration an
encouraged factor, departure from the applicable guideline range is
generally not warranted).

Nevertheless, an upward departure would be permitted if Terry's
reckless driving was "present to an exceptional degree or in some
other way makes the case different from the ordinary case where the
factor is present." Koon, 116 S. Ct. at 2045. This may be just such a
case. Terry engaged in a road duel on a scenic parkway not designed
for high-speed driving. The high-speed duel was variously described
by eyewitnesses as a game of "cat-and-mouse,""tag," and "chicken."
We doubt that such conduct is typical of reckless driving cases. The
district court, however, did not recognize that§ 2A1.4(a)(2)
accounted for Terry's reckless driving. See Barber, 119 F.3d at 282.
As a result, the district court did not specifically find that Terry's
_________________________________________________________________
4 As support, the Government cites several cases, one of which is not
even good law, for the proposition that a defendant's reckless driving
justifies an upward departure under § 5K2.14, p.s. See United States v.
Perez-Magana, 929 F.2d 518 (9th Cir.), withdrawn, 942 F.2d 1486 (9th
Cir. 1991); United States v. Chiarelli, 898 F.2d 373 (3d Cir. 1990). We
do not dispute that reckless driving endangers the public safety. Nor do
we dispute that endangering the public safety is an encouraged basis for
departure. The question here, however, is whether Terry's reckless driv-
ing was already taken into account by the guideline pursuant to which
Terry was sentenced. See Barber, 119 F.3d at 285. Unlike § 2L1.1, see
Perez-Magana, 929 F.2d at 518 (defendant sentenced under § 2L1.1 for
transporting illegal aliens), or § 2B1.1, see Chiarelli, 898 F.2d at 373
(defendant sentenced under § 2B1.1 for receiving stolen property),
§ 2A1.4 takes into account a defendant's reckless driving. Thus, Perez-
Magana and Chiarelli are plainly inapposite to the instant facts.

6
reckless driving was so extraordinary that it was outside the "heart-
land" of situations encompassed by the applicable guideline. Under
these circumstances, it is appropriate to remand so that the district
court may determine in the first instance whether the danger created
by Terry's reckless conduct was outside the "heartland" of the typical
involuntary manslaughter case involving reckless driving. See United
States v. Blake, 81 F.3d 498, 505 (4th Cir. 1996) (noting that the "fail-
ure to make the required findings necessitates remand").

If, on remand, the district court determines that an upward depar-
ture is warranted, it must also determine the extent of its departure.
Although the Sentencing Commission has not provided the district
courts with any specific guidance for determining the extent of a
departure, the Sentencing Reform Act requires that any departure be
reasonable under the circumstances. See 18 U.S.C.A. § 3742(f)(2)
(West Supp. 1997). In determining what is reasonable under the cir-
cumstances, the sentencing court should first consider the rationale
and methodology of the Sentencing Guidelines. See, e.g., United
States v. Ferra, 900 F.2d 1057, 1061-62 (7th Cir. 1990) (observing
that "[a] judge may not say: `I have decided to depart, so I now throw
away the guidelines'"). In particular, it is often helpful to look to the
treatment of analogous conduct in other sections of the Sentencing
Guidelines.5 See, e.g.,United States v. Gary, 18 F.3d 1123, 1131 (4th
Cir. 1994) (holding that "[a]nalogies to similar offenses or aggravat-
ing circumstances . . . prov[ide] the best method for a principled
_________________________________________________________________
5 For example, "recklessly creat[ing] a substantial risk of death or seri-
ous bodily injury to another person in the course of fleeing from a law
enforcement officer" warrants a two-level increase. See U.S.S.G.
§ 3C1.2. Although § 3C1.2 applies only where a defendant endangers the
public while fleeing from the police, it may provide a useful guide for
determining the extent of a departure in a case such as this. See, e.g.,
United States v. Gonzalez, 71 F.3d 819, 837 (11th Cir 1996) (applying
adjustment where defendant "operated his vehicle, in reverse, at a high
rate of speed on a residential street"); United States v. Woody, 55 F.3d
1257, 1274 (7th Cir. 1995) (applying adjustment where defendant led
police on high speed chase); United States v. Luna, 21 F.3d 874, 885 (9th
Cir. 1994) (applying adjustment where defendant drove through neigh-
borhood at a high rate of speed); United States v. Mills, 1 F.3d 414, 423
(6th Cir. 1993) (applying adjustment where defendant drives at speeds up
to 100 miles per hour on narrow road).

7
determination of departures"); United States v. Melton, 970 F.2d
1328, 1334 (4th Cir. 1992) (noting that analogous guideline provi-
sions provide the best method for determining the extent of depar-
tures); United States v. Jackson, 921 F.2d 985, 991 (10th Cir. 1990)
(stating that a sentencing court should draw analogies from other pro-
visions in the guidelines when determining the extent of a departure);
United States v. Kikumura, 918 F.2d 1084, 1112 (3d Cir. 1990) (stat-
ing that "analogy to the guidelines is . . . a useful and appropriate tool
for determining" the extent of departures); United States v. Kim, 896
F.2d 678, 684 (2d Cir. 1990) (noting that "the structure of the Guide-
lines offers some guidance as to the normal extent of the departure").
In the event the Sentencing Guidelines do not provide any useful
analogies, however, the sentencing "court must set forth some form
of principled justification for its departure determination."6 Gary, 18
F.3d at 1131 (noting that the sentencing "court may find it useful to
analogize to similar case law").

B.

Although the deaths of Mr. Smyth and Mrs. McBrien were taken
into account in the applicable manslaughter guideline, see U.S.S.G.
§ 2A1.4(a)(2), the district court determined that a four-level upward
departure under § 5K2.1, p.s. was appropriate in light of "the addi-
tional death of Billy Canipe," (J.A. at 126). This factor is also one
upon which the Sentencing Commission has encouraged departure.
Section 5K2.1, p.s. provides: "If death resulted, the court may
increase the sentence above the authorized guideline range." U.S.S.G.
§ 5K2.1, p.s. Terry argues that Canipe's death does not warrant a
_________________________________________________________________
6 In this case, the district court's decision to depart upward by eight
levels under § 5K2.14 was based entirely on the following:

Over an 8-mile stretch of the George Washington Memorial
Parkway, a scenic roadway not constructed for high speed driv-
ing, defendant drove at speeds exceeding 70 miles per hour . . . .
Because defendant . . . endangered every driver along that 8-mile
stretch . . . the Court increases the offense level 1 point for each
mile.

(J.A. at 126.) We do not believe that the district court's methodology
provides a principled justification for departing by eight levels.

8
departure from the authorized guideline range, however, because the
district court found that Canipe was partly "responsible for the
aggressive driving behavior that led to his death." (J.A. at 126.) To
our knowledge, no circuit or district court has determined whether an
upward departure under § 5K2.1, p.s. is permitted when the decedent
is partly responsible for his own death. We take the opportunity now
and so hold.

It is black letter law that a defendant may be charged with homi-
cide even if the decedent was an active participant in the activity that
resulted in his death. See Wayne R. LaFave & Austin W. Scott,
Criminal Law 481 n.40 (2d ed. 1986) (collecting cases). This well-
settled rule is based upon the premise that criminal prosecutions are
brought to punish criminal conduct and to protect the public, not to
recompense the victim for his injuries. See id. As a result, the victim's
role in the offense is generally not relevant.7 See, e.g., State v.
Plaspohl, 157 N.E.2d 579, 581 (Ind. 1959) (holding that negligence
by the victim "does not bar an action against another for the wrong
which he has committed against the peace and dignity of the state").
Thus, when a "death results from the reckless use of the highway, the
fact that the deceased joined in the reckless activity does not negate
the fact of the death, nor does it assuage the loss to the family of the
deceased or the community." Id. More important, it does not negate
the defendant's culpability. Accordingly, we hold that an upward
departure under § 5K2.1, p.s. is permitted even when the decedent
was an active participant in the activity that resulted in his death.8
_________________________________________________________________
7 Of course, a victim's role in the offense may provide the defendant
with an affirmative defense, e.g., self-defense. Moreover, the victim's
conduct may negate an element of the offense, e.g., causation.
8 We recognize that a downward departure is encouraged in cases
where "the victim's wrongful conduct contributed significantly to pro-
voking the offense behavior." U.S.S.G. § 5K2.10, p.s. That acknowledg-
ment, however, does not alter our conclusion that an upward departure
under § 5K2.1, p.s. is permitted in this case. Where the victim is signifi-
cantly responsible for the conduct that led to the offense, § 5K2.10, p.s.
provides for a downward departure, not for absolution. Thus, a defendant
is still accountable, albeit to a lesser degree, for an offense against a
complicitous victim. Absent the upward departure pursuant to § 5K2.1,
p.s., Terry's sentence would not have taken into account the additional
death of Canipe. Therefore, while Canipe's role in the offense may limit
the extent of the upward departure, it does not preclude a departure.

9
Because the additional death of Canipe was not already accounted for
in the guideline under which Terry was sentenced, the district court
did not abuse its discretion in departing upward pursuant to § 5K2.1,
p.s. See Koon, 116 S. Ct. at 2045 (noting that a district court may
exercise its discretion and depart if a factor upon which the Sentenc-
ing Commission encourages departure is not taken into account by the
applicable guideline).

Although we conclude that Canipe's death may provide the basis
for an upward departure, the district court, absent additional findings
of fact, abused its discretion in departing upward by four levels. See
Gary, 18 F.3d at 1130 (noting that the final step in our review is
determining "whether the extent of the departure was an abuse of the
district court's discretion"). In determining the extent of a departure
under § 5K2.1, p.s., the Sentencing Commission provides the follow-
ing guidance:

Loss of life does not automatically suggest a sentence at or
near the statutory maximum. The sentencing judge must
give consideration to matters that would normally distin-
guish among levels of homicide, such as the defendant's
state of mind and the degree of planning or preparation.
Other appropriate factors are whether multiple deaths
resulted, and the means by which life was taken. The extent
of the increase should depend on the dangerousness of the
defendant's conduct, the extent to which death or serious
injury was intended or knowingly risked, and the extent to
which the offense level for the offense of conviction, as
determined by the other Chapter Two guidelines, already
reflects the risk of personal injury. For example, a substan-
tial increase may be appropriate if the death was intended or
knowingly risked or if the underlying offense was one for
which base offense levels do not reflect an allowance for the
risk of personal injury, such as fraud.

U.S.S.G. § 5K2.1, p.s. In making its departure decision, the district
court failed to consider any of the aforementioned factors.9 In particu-
_________________________________________________________________
9 Despite the Government's contentions to the contrary, the district
court did not depart upward four levels under § 5K2.1, p.s. because mul-

10
lar, the district court did not make any findings as to Terry's state of
mind. As a consequence, it is not possible to determine the basis for
(or the reasonableness of) the district court's decision to depart by
four levels.

It is well established that the reasonableness of a departure may be
evaluated by "treat[ing] the aggravating factor as a separate crime and
ask[ing] how the defendant would be treated if convicted of it."
United States v. Ferra, 900 F.2d 1057, 1062 (7th Cir. 1990). In addi-
tion, an upward departure should "not exceed the sentence that would
_________________________________________________________________
tiple deaths resulted. Rather, the district court determined that a departure
under § 5K2.1, p.s. was appropriate in light of "the additional death of
Billy Canipe." (J.A. at 126.) Moreover, an upward departure under
§ 5K2.1, p.s. for multiple deaths would be inappropriate in this case.
Here, two of the three deaths caused by Terry's reckless driving were
taken into account by the involuntary manslaughter guideline. Thus,
there was only one death warranting a departure under § 5K2.1, p.s. See
United States v. Barber, 119 F.3d 276, 285 (4th Cir.) (en banc) (noting
that an encouraged factor, e.g., death, may not be relied upon if already
taken into account by the applicable guideline), cert. denied, 118 S. Ct.
457 (1997); cf. United States v. Carrion-Cruz , 92 F.3d 5, 6 (1st Cir.
1996) (permitting departure under § 5K2.1, p.s. for multiple deaths
where four people died and applicable guideline (carjacking) did not
account for deaths); United States v. Hui, 83 F.3d 592, 594 (2d Cir.
1996) (permitting departure under § 5K2.1, p.s. for multiple deaths
where ten people died and defendant pleaded guilty to only one count of
manslaughter). The Government's real complaint, it would seem, is that
the grouping rules do not adequately take into account multiple deaths.
In particular, the Government argues that a two-level increase is inade-
quate to account for the loss of a second life. Similarly, a one-level
increase is inadequate to account for the loss of a third life. We note,
however, that § 3D1.4 provides for a departure in cases where the group-
ing rules are inadequate in "ensuring appropriate additional punishment
for the additional crime." U.S.S.G. § 3D1.4, comment. (backg'd). With-
out commenting upon the likelihood of success, the Government may
argue on remand that an upward departure is warranted under § 3D1.4.
See United States v. Apple, 962 F.2d 335, 337 (4th Cir. 1992) (holding
that the scope of remand is determined by the Court of Appeals); see also
United States v. Ynfante, 78 F.3d 677, 679-80 (D.C. Cir. 1996) (permit-
ting Government on remand to argue theory not raised at initial sentenc-
ing).

11
result under the Guidelines if [the defendant] actually had been con-
victed of [the conduct underlying the departure]." United States v.
Melton, 970 F.2d 1328, 1334 (4th Cir. 1992); accord United States
v. Kikumura, 918 F.2d 1084, 1112 (3d Cir. 1990); Ferra, 900 F.2d at
1063; cf. United States v. Summers, 893 F.2d 63, 68 (4th Cir. 1990)
(holding that a downward departure should not fall below the sen-
tence that would result under the Guidelines absent the conduct
underlying the departure). Had Terry been convicted of an additional
count of involuntary manslaughter, he would have received only a
one level increase under the Sentencing Guidelines' grouping rules.
See U.S.S.G. § 3D.1.4. In contrast, had Terry been convicted of sec-
ond degree murder, his base offense level would have been 33. See
U.S.S.G. § 2A1.2. Accordingly, the extent of the district court's
departure turns on whether the recklessness exhibited by Terry was
adequate to establish the existence of malice.10 Because the district
court made no such findings, we remand.
_________________________________________________________________

10 In United States v. Fleming , 739 F.2d 945 (4th Cir. 1984), we
affirmed a conviction for second degree murder in a case bearing a strik-
ing similarity to the instant one. The defendant, driving approximately 80
miles per hour on the G.W. Parkway, lost control of his car on a sharp
curve. The car slid across the median and into the southbound lanes,
where it struck a car driven by Margaret Haley. Ms. Haley died before
she could be removed from her car. The defendant was subsequently
convicted of second degree murder. See id. at 947. In affirming the
defendant's conviction, we noted the following:

Proof of the existence of malice does not require a showing that
the accused harbored hatred or ill will against the victim or oth-
ers. Neither does it require proof of an intent to kill or injure.
Malice may be established by evidence of conduct which is reck-
less and wanton and a gross deviation from a reasonable standard
of care, of such a nature that a jury is warranted in inferring that
defendant was aware of a serious risk of death or serious bodily
harm. To support a conviction for [second degree] murder, the
government need only have proved that defendant intended to
operate his car in the manner in which he did with a heart that
was without regard for the life and safety of others.

Id. at 947-48 (citations and internal quotation marks omitted).

12
C.

Finally, the district court departed upward three levels under
§ 5K2.3, p.s. to take into consideration the psychological impact upon
the families of the victims. Section 5K2.3, p.s. provides, in pertinent
part, that a district "court may increase the sentence above the autho-
rized guideline range" "[i]f a victim or victims suffered psychological
injury much more serious than that normally resulting from commis-
sion of the offense." U.S.S.G. § 5K2.3, p.s. Although this factor is one
on which the Sentencing Commission has encouraged departure,
Terry contends that the district court abused its discretion in departing
pursuant to § 5K2.3, p.s. because the members of the McBrien and
Smyth families were not themselves victims. In the alternative, Terry
argues that there was no evidence that they "suffered psychological
injury much more serious than that normally resulting" when a family
member is unexpectedly killed.

By § 5K2.3's own terms, it applies only to the victim(s) of the
offense. The term "offense" is defined throughout the Sentencing
Guidelines as "the offense of conviction." U.S.S.G. § 1B1.1, com-
ment. (n.1(l)). Here, the offense of conviction is involuntary man-
slaughter. As a result, the district court's three-level upward departure
can be sustained only if the family members of the individuals actu-
ally killed are themselves victims of the homicide. Terry contends
that the term "victim" is limited to the direct victims of the offense
of conviction. In contrast, the Government argues that the term should
include both the direct and the indirect victims of the offense. For the
reasons that follow, we conclude that the term includes both direct
and indirect victims. Because, however, the families of Mr. Smyth
and Mrs. McBrien are neither the direct nor the indirect victims of the
offense of conviction, we hold that the district court abused its discre-
tion in departing pursuant to § 5K2.3, p.s. 11
_________________________________________________________________
11 Because we hold that the district court erred in departing under
§ 5K2.3, p.s. we need not, and do not, address Terry's alternative argu-
ment that the families in question did not "suffer[ ] psychological injury
much more serious than that normally resulting from[the] commission
of the offense." U.S.S.G. § 5K2.3, p.s. Moreover, we need not address
Terry's contention that he did not receive "reasonable notice" under Rule
32 of the Federal Rules of Criminal Procedure that the district court was
contemplating an upward departure under § 5K2.3, p.s.

13
Regrettably, neither § 5K2.3, p.s. nor § 1B1.1 defines "victim."12
When Congress does not expressly define a statutory term or phrase,
a court should "normally construe it in accord with its ordinary or nat-
ural meaning." Smith v. United States, 508 U.S. 223, 228 (1993);
Burns v. Alcala, 420 U.S. 575, 580-81 (1975) (stating "that words
used in a statute are to be given their ordinary meaning"). We believe
that that axiom applies with equal force when the United States Sen-
tencing Commission fails to define a term or phrase in the Sentencing
Guidelines. See Mistretta v. United States, 488 U.S. 361, 412 (1989)
(Scalia, J., dissenting) (observing that the Sentencing Guidelines
"have the force and effect of law").

Black's defines "victim" as "[t]he person who is the object of a
crime or tort, as the victim of a robbery is the person robbed." Black's
Law Dictionary 1405 (6th ed. 1990). Under this definition, the victim
of a homicide is the person killed, not a family member. As such, the
definition in Black's is consistent with the meaning proposed by
Terry. Not all dictionaries, however, define "victim" so narrowly.
Webster's defines "victim" as "one that is . . . adversely affected by
a force or agent." Webster's Ninth New Collegiate Dictionary 1314
(1983). Under this sweeping definition, anyone adversely affected by
a homicide is a victim. Although very different in scope, both defini-
tions are consistent with how the term "victim" is commonly
employed.13 Cf. Bailey v. United States, 116 S. Ct. 501, 506 (noting
that the term "use" has several different meanings depending on the
context). Because the term "victim" standing alone is ambiguous, we
review how the term has been interpreted in other sections of the
Guidelines. See Alexander S. v. Boyd, 113 F.3d 1373, 1384 (4th Cir.
1997) (noting that "identical terms within an Act should be given the
same meaning"), cert. denied, 118 S. Ct. 880 (1998).

As noted above, the term "victim" is used throughout the Guide-
lines. See, e.g., § 3A1.1 (vulnerable victim); § 3A1.2 (official victim);
§ 3A1.3 (restraint of victim); § 3D1.2 (grouping rules); § 5K2.8, p.s.
_________________________________________________________________
12 Section 1B1.1 defines "terms that are used frequently in the guide-
lines and are of general applicability." U.S.S.G.§ 1B1.1, comment. (n.1).
13 Although the most obvious understanding of "victim" is that given in
Black's, it is not uncommon to hear a widow or an orphan described as
the "real victim" of a homicide.

14
(extreme conduct); § 5K2.10, p.s. (victim's conduct). Like § 5K2.3,
p.s., the "vulnerable victim" enhancement applies only to the vic-
tim(s) of the offense of conviction.14 Unlike § 5K2.3, p.s., however,
§ 3A1.1 casts some light on the meaning of the term "victim." For
example, the commentary to § 3A1.1 notes that a bank teller could be
the "victim" of a bank robbery, see U.S.S.G. § 3A1.1, comment. (n.2),
even though the bank, and not the teller, is the direct victim of the
offense of conviction. Not surprisingly, in United States v. Blake, 81
F.3d 498 (4th Cir. 1996), we explicitly held that a vulnerable victim
need not be the direct victim of the offense of conviction. Id. at 503-
04 (holding that credit card holders were victims in scheme to defraud
credit card issuers); accord United States v. Echevarria, 33 F.3d 175,
180-81 (2d Cir. 1994) (holding that patients of defendant who posed
as doctor were victims even though it was the government and an
insurance company that were defrauded); United States v. Bachynsky,
949 F.2d 722, 735-36 (5th Cir. 1991) (holding that doctor's patients
were victims in case of insurance fraud). Similarly, we have upheld
an enhancement under § 3A1.3, even though the"victim" was not the
direct victim of the offense of conviction.15 See United States v.
Stokley, 881 F.2d 114, 116 (4th Cir. 1989). In contrast, the term "vic-
tim" under the grouping rules is limited to the"one person who is
directly and most seriously affected by the offense."16 U.S.S.G.
_________________________________________________________________
14 Section 3A1.1 provides:

If the defendant knew or should have known that a victim of the
offense was unusually vulnerable due to age, physical or mental
condition, or that a victim was otherwise particularly susceptible
to the criminal conduct, increase by 2 levels.

U.S.S.G. § 3A1.1(b).
15 Section 3A1.3 provides: "If a victim was physically restrained in the
course of the offense, increase by 2 levels." U.S.S.G. § 3A1.3. In United
States v. Stokley, 881 F.2d 114 (4th Cir. 1989), the defendant planted a
bomb in the home of Deborah Legg. As Ms. Legg attempted to escape,
the defendant blocked the doorway. The bomb exploded, injuring both
Ms. Legg and the defendant. The defendant was subsequently convicted
of destroying a building with an explosive device. Although not the
direct victim of the offense of conviction, we nevertheless upheld a
departure under § 3A1.3. See id. at 115-17.
16 Under the Guidelines' grouping rules, counts involving different vic-
tims cannot be grouped together. U.S.S.G. § 3D1.2(a).

15
§ 3D1.2, comment. (n.2) (emphasis added). As a consequence, for the
purpose of § 3D1.2, "[t]he term `victim' is not intended to include
indirect or secondary victims." U.S.S.G. § 3D1.2, comment. (n.2).

Although § 3D1.2's narrow definition of "victim" comports with
that given in Black's and urged by Terry, we do not believe that it
should apply here. First, the very fact that the Sentencing Commission
found it necessary to expressly exclude "indirect victims" from the
definition of "victim" in § 3D1.2 strongly suggests that the term ordi-
narily includes them. Second, the context in which the term "victim"
is used in § 5K2.3 is nearly identical to the context in which it is used
in §§ 3A1.1 and 3A1.3. Accordingly, after carefully reviewing the
overall framework of the Sentencing Guidelines, especially the addi-
tional guideline sections employing the term, we hold that § 5K2.3,
p.s. is not limited to the direct victim of the offense of conviction. Cf.
United States v. Okane, 52 F.3d 828, 835 (10th Cir. 1995) (holding
that "victim" in § 5K2.3, p.s. included a bank's employees and cus-
tomers).

Although a victim need not be the direct victim of the offense of
conviction, we do not believe, as the Government contends, that every
individual adversely affected by the offense of conviction is an indi-
rect victim. Rather, an indirect victim must have some nexus or prox-
imity to the offense. Put simply, an individual is an indirect victim
because of his relationship to the offense, not because of his relation-
ship to the direct victim. Bank tellers and patrons are indirect victims
in a bank robbery, see U.S.S.G. § 3A1.1, comment. (n.2), credit card
holders are indirect victims in a scheme to defraud their credit card
issuers, see Blake, 81 F.3d at 503-04, and patients are indirect victims
in a plan to defraud their insurance carrier, see Echevarria, 33 F.3d
at 175, because of their nexus or proximity to the offense of convic-
tion. Here, however, there is no evidence that the families in question
had any relationship to the offense beyond their relationship to the
direct victims.17 Because we conclude that the families of Mr. Smyth
and Mrs. McBrien are not victims of the offense of conviction, the
_________________________________________________________________

17 For instance, a family member might be an indirect victim if she had
been involved in the accident as either a passenger or a bystander.

16
district court abused its discretion in departing upward by three levels
under § 5K2.3, p.s.18

III.

Although the district court relied upon three separate encouraged
factors in seeking to justify an upward departure, each encouraged
factor was either already taken into account in the applicable guide-
line, as in the case of § 5K2.14, p.s. (endangering public safety), not
applicable to the facts of this case, as in the case of § 5K2.3, p.s.
(extreme psychological injury to the victim of the offense), or not
appropriately applied, as in the case of § 5K2.1, p.s. (death). Accord-
ingly, we vacate the sentence imposed and remand for resentencing.

VACATED AND REMANDED
_________________________________________________________________
18 In a case directly on point, the Ninth Circuit held that § 5K2.3, p.s.
applies "only to the direct victim of the crime and not to others affected
by the crime, such as the [direct victims'] family." United States v.
Hoyungowa, 930 F.2d 744, 747 (9th Cir. 1991). Although we disagree
with the Ninth Circuit's conclusion that § 5K2.3, p.s. applies only to the
direct victim of the offense of conviction, we agree with its holding.

17