United States v. Queensborough

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit

9-15-2000

United States v. Queensborough
Precedential or Non-Precedential:

Docket 99-3636

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Filed September 15, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 99-3636

UNITED STATES OF AMERICA

v.

KEENE COURTNEY QUEENSBOROUGH,

Appellant

On Appeal from the District Court of the Virgin Islands
Division of St. Thomas/St. John
(D.C. Crim. No. 96-cr-00090-1
District Judge: Hon. Thomas K. Moore

Argued April 10, 2000

Before: SLOVITER, ROTH and STAPLETON, Circuit Judges

(Filed September 15, 2000)

Thurston T. McKelvin
Federal Public Defender
Pamela Lynn Wood (ARGUED)
Assistant Federal Public Defender
St. Thomas, U.S. Virgin Islands
00804-1327

Attorneys for Appellant
 James A. Hurd, Jr.
United States Attorney
Kim L. Chisholm (ARGUED)
Assistant United States Attorney
Charlotte Amalie, U.S. Virgin Islands
00802-6424

Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Appellant Keene Courtney Queensborough, who pled
guilty pursuant to a plea agreement to two counts of a
seven count indictment, appeals from the judgment of
sentence. He raises four issues, but in essence all challenge
the District Court's grant of an upward departure under the
federal sentencing guidelines.

I.

FACTS AND PROCEDURAL HISTORY

On February 15, 1996, Queensborough and Boman
Rabsatt, a juvenile, accosted a man and a woman who were
staying at the Cinnamon Bay Campground, which is part of
the United States National Park in St. John, Virgin Islands.
They first robbed the campers; then they forced them to an
isolated section of the beach area. Rabsatt took the male
victim further down the beach, forced him to lie face down,
and put something that felt like a gun to the back of his
head. Queensborough took the female victim over to some
rocks and ordered her to take off her pants. When she
began to pray aloud, he threatened to kill her. After
demanding that she turn around and face the rocks,
Queensborough held a gun to the woman's head and raped
her. During the rape he told her, "[i]f you make a sound, I'll
blow your fucking head off." Queensborough also forced the
woman to perform oral sex, and raped her again.

2
Queensborough then said that his friend "had to have
some of what he just had." He took the woman to the place
where her male companion was being held and switched
places with Rabsatt, who also raped the woman repeatedly
at gunpoint and forced her to perform oral sex.
Queensborough and Rabsatt then brought the man and the
woman back together and began to talk about killing them.
One of the perpetrators said that they had a boat and that
"two other guys were waiting for them." One perpetrator
also said that they might bring the woman with them and
asked her if she could swim a half mile. Queensborough
and Rabsatt then ordered the man and the woman to have
sex with each other while the two perpetrators watched.
Throughout the ordeal, they threatened the two victims
with death at the point of a gun.

Both rapists were apprehended and charged.
Queensborough was indicted in the District Court of the
Virgin Islands, Division of St. Thomas/St. John, on seven
counts as follows: Count One for aggravated rape; Count
Two for kidnapping with intent to commit rape; Count
Three for kidnapping; Counts Four and Five for robbery;
Count Six for possession of a deadly weapon during
commission of a crime of violence; and Count Seven for
carrying a firearm during and in relation to a crime of
violence. Counts One through Six charged violations of
territorial law, five of which were assimilated into federal
law pursuant to the Assimilative Crimes Act (ACA), 18
U.S.C. S 13(a).1 Count Seven charged a violation of a federal
criminal statute.
_________________________________________________________________

1. The ACA provides that:

Whoever within or upon any [federal enclave] is guilty of any act
or
omission which, although not made punishable by any enactment of
Congress, would be punishable if committed or omitted within the
jurisdiction of the State [or] Territory . . in which such place is
situated, . . . shall be guilty of a like offense and subject to a
like
punishment.

18 U.S.C. S 13(a).

We have explained:

Under the ACA, if conduct prohibited by state [or territorial] law
occurs on federal land, the state criminal law is assimilated into

3
There was a delay in proceeding with the charges against
Queensborough during the period he was declared not
competent to stand trial. After he was declared to have
regained his competency, Queensborough reached a plea
agreement with the government pursuant to which he pled
guilty to Count One, which charged the assimilated crime
of aggravated rape, in violation of Title 14 V.I.C.,SS 1701(2)
and 1700(c) and 18 U.S.C. SS 13 and 2, and Count Seven,
carrying a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. S 924(c)(1) and 2.

The plea agreement between Queensborough and the
government provides that "[t]he United States Attorney
reserves its right to allocute at the time of sentencing . . . .
The government further agrees to recommend a sentence
within the applicable Guidelines range." App. at 103. It also
contains the following:

The parties agree that the Court shall be free to impose
whatever sentence is deemed appropriate, and that the
Court shall not be bound by the parties'
recommendations at the time of sentencing.

The parties agree that the final determination of the
applicable sentence under the Guidelines, including
any and all adjustments and determination of the
defendant's criminal history category, shall be left to
the Court after its review of the Presentence Report.
However, the parties shall be free to object to any
Guideline calculations and other information contained
in the Presentence Report, and to appeal from the
sentence imposed . . . .

App. at 105.

The total offense level for the aggravated rape was 32 and
the guideline range for that count was 121-151 months
_________________________________________________________________

federal law so long as that conduct is not already made punishable
by any `enactment of Congress.' In other words, the ACA fills gaps
in the law applicable to federal enclaves, ensures uniformity
between
criminal prohibitions applicable within the federal enclave and
within the surrounding state, and provides residents of federal
enclaves with the same protection as those outside its boundaries.

United States v. Hall, 979 F.2d 320, 322 (3d Cir. 1992) (citation
omitted).

4
imprisonment.2 After hearing from the parties on the
sentencing issue, the court sentenced Queensborough on
the aggravated rape count to a term of twenty years
imprisonment, which represented a substantial upward
departure. On the firearm count, the court sentenced
Queensborough to a term of 60 months imprisonment, to
be served consecutively, a term set by statute pursuant to
U.S.S.G. S 2K2.4 and 18 U.S.C. S 924(c). Queensborough's
attorney objected to the District Court's sentence as an
abuse of discretion. App. at 97. After the sentencing
hearing was completed, Queensborough's attorney raised
"an additional objection to the legality of the sentence,"
stating that although she and Queensborough had been
given notice by the Probation Office of "a possibility of
upward departure," they had not been given notice"that
there was actually going to be an upward departure." App.
at 101.

Queensborough filed a timely appeal. The District Court
had jurisdiction over this case pursuant to 18 U.S.C.
S 3231 and this court has jurisdiction over the appeal
under 28 U.S.C. S 1291.

II.

DISCUSSION

A.

Notice of Intent to Upwardly Depart

Queensborough first argues that the District Court failed
to give him reasonable notice of its intent to upwardly
depart from the sentencing guidelines and failed to identify
with specificity the grounds for said departure.
_________________________________________________________________

2. The Sentencing Guidelines apply to convictions under the ACA and
direct the sentencing court to "apply the most analogous offense
guideline." U.S.S.G. S 2X5.1. Here, the court applied the guideline in
U.S.S.G. S 2A3.1 for criminal sexual abuse as most analogous to the
crime of aggravated rape.

5
Although Rule 32 of the Federal Rules of Criminal
Procedure does not contain any language requiring that the
District Court give the defendant notice of a possible
upward departure, the Supreme Court has held that,

before a district court can depart upward on a ground
not identified as a ground for upward departure either
in the presentence report or in a prehearing submission
by the Government, . . . the district court[is required
to] give the parties reasonable notice that it is
contemplating such a ruling. This notice must
specifically identify the ground on which the district
court is contemplating an upward departure.

Burns v. United States, 501 U.S. 129, 138-39 (1991)
(emphasis added); see also United States v. Barr , 963 F.2d
641, 655-56 (3d Cir. 1992).

The government argues that Queensborough was given
advance notice that satisfied Burns because the ground for
departure on which the court relied was "identified as . . .
ground[s] for upward departure . . . in the presentence
report." 501 U.S. at 138. The government refers to the
following language in the PSR, which appears under the
heading "Factors That May Warrant Departure":

91. Presentation of information in this section does
not necessarily constitute a recommendation by the
probation officer for a departure.

92. According to U.S.S.G. S 2A3.1, Application Note 5,
"If a victim was sexually abused by more than one
participant, an upward departure may be warranted,
See S 5K2.8 (Extreme Conduct)."

Like the government, the District Court regarded the PSR
as having provided the requisite notice. In sentencing
Queensborough, the court stated:

As is recited in the Presentence Report, and so that
counsel had notice, Paragraph 92, according to the
basic Sentencing Guideline that applies here for
criminal sexual abuse, an upward departure is
warranted if the victim was sexually abused by more
than one participant, and as well under Section
5(k)(2.8) [sic], which deals with extreme conduct.

6
 And as it says, if the defendant's conduct is
unusually heinous, cruel, brutal or degrading -- well,
for a rape, I don't know that it qualifies as unusually
heinous, cruel or brutal; however, to then order the
two victims to have sex themselves, in your presence,
at the point of a gun, is unusually degrading. So I'm
not going to prolong it any longer.

App. at 95 (emphasis added).

The District Court thus read the PSR to give notice (1)
that an upward departure was warranted (2) based on the
sexual abuse by two perpetrators and other extreme
conduct in connection with the sexual abuse. We agree
with the District Court's conclusion that the PSR gave the
required notice that a departure could be warranted and
that it could be on the basis of extreme conduct, a
conclusion supported by the PSR's reference to S 5K2.8 and
extreme conduct in its quotation of the application note.

Queensborough relies on two opinions in support of his
contention that he was not given the required notice: the
Supreme Court's opinion in Burns and this court's decision
in Barr. In Burns, a former supervisor in the United States
Agency for International Development (AID) who had
authorized payment of AID funds into an account that he
controlled pled guilty to a three-count information charging
him with theft of Government funds, making false claims
against the government, and attempted tax evasion. The
plea agreement expressed the parties' expectation that the
petitioner would be sentenced within the guidelines range
corresponding to an offense level of 19 and a criminal
history category of I. The PSR confirmed this expectation
and expressly concluded that "[t]here are no factors that
would warrant departure from the guideline sentence."
Burns, 501 U.S. at 131. Nonetheless, the district court
departed upward from the guideline sentencing range
without any prior notice to the defendant. The district court
based its departure on (1) the extensive duration of
petitioner's criminal conduct; (2) the disruption to
governmental functions caused by petitioner's conduct; and
(3) petitioner's use of his tax evasion offense to conceal his
theft and false claims offenses.

7
It was in this "extraordinary case," id. at 135, where the
defendant was given no inkling in either the PSR or in a
prehearing submission by the government that there might
be grounds for an upward departure, that the Supreme
Court held that Fed. R. Crim. P. 32 required the district
court to provide "reasonable notice that it [was]
contemplating" an upward departure and to specifically
identify the ground for the contemplated departure. The
Court expressly noted that "[i]n the ordinary case, the
presentence report or the Government's own
recommendation will notify the defendant that an upward
departure will be at issue and of the facts that allegedly
support such a departure." Id. Unlike the"extraordinary"
situation in Burns, here the PSR did identify "a ground for
upward departure." Inasmuch as the PSR satisfied the
basic requirement of Burns ("before a district court can
depart upward on a ground not identified as a ground for
upward departure . . . in the presentence report"),
Queensborough was not entitled to additional notice from
the court.

Barr is similarly distinguishable. In that case, the district
court decided to depart upward by four levels based on the
fact that the defendant, a former assistant to the Attorney
General, "held a high ranking position with the Department
of Justice and that criminal activity by public officials tends
to erode public confidence in government." Barr, 963 F.2d
at 654. Unlike the PSR in Burns, the PSR in Barr did
identify a possible ground for departure in the section
captioned "Factors That May Warrant Departure," but it
identified only one possible ground, i.e., the commission of
" `the offense in order to facilitate or conceal the
commission of another offense.' " Id. at 652. The PSR
explicitly stated that the probation officer had" `identified
no other factors warranting a departure.' " Id. at 653.

On appeal, we held that the case was governed by Burns,
and reversed. We held that inasmuch as the PSR had not
identified the ground relied on by the district court as a
possible ground for upward departure, the defendant
should have received notice of the district court's intent to
depart based on his high ranking government position. We
noted that the government never directly requested a

8
departure and that the only reference to a "likelihood of
departure" based on the defendant's high ranking position
was the probation officer's statement, in an addendum to a
revised version of the PSR, that a letter submitted by the
government could be read to contain an "inference" that a
departure might be warranted by the "unique combination
of offense and Governmental position in Barr's case." Id. at
656. We held that "finding just an `inference'. . . does not
deem a departure appropriate or give the defendant
sufficient notice that a departure is sought." Id.

Here, by contrast, there was more than "just an
inference" that a departure might be appropriate. As we
have already explained, the District Court permissibly
interpreted paragraph 92 of the PSR as identifying sexual
abuse by two perpetrators and other extreme conduct in
connection with the sexual abuse as possible grounds for
departure. A reasonable reader would understand both
from the placement and language of paragraph 92 in
Queensborough's PSR that, in light of the circumstances,
an upward departure based on extreme conduct was both
possible and warranted. We disagree with Queensborough
that paragraph 92 was ineffective to give him notice simply
because paragraph 91 of the PSR stated that "information
in this section does not necessarily constitute a
recommendation . . . for a departure" (emphasis added).
The possible grounds were identified in the PSR, and we do
not read either Burns or Barr as requiring any more.

Queensborough makes the additional argument that he
lacked notice of the factual basis for the departure. We
disagree. Not only does the PSR review in excruciating
detail the circumstances of the sexual assaults on the
female victim but the PSR, under the heading Part E.
FACTORS THAT MAY WARRANT DEPARTURE, which
appears in large type and bold face, also quotes the
application note to U.S.S.G. S 2A3.1 which states that an
upward departure may be warranted when one of the
victims was sexually abused by more than one participant.
The application note, quoted verbatim in the PSR, then
includes a citation to U.S.S.G. S 5K2.8, and in parenthesis
"(Extreme Conduct)." That guideline, S 5K2.8, provides:

9
 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. Examples of extreme
conduct include torture of a victim, gratuitous
infliction of injury, or prolonging of pain or humiliation.

U.S.S.G. S 5K2.8.

That Queensborough's conduct was "unusually heinous,
cruel, brutal, or degrading to the victim" is evident from the
numerous facts previously detailed in the PSR, which
include multiple rapes, forced oral sex, two victims,
repeated death threats, and multiple attackers. The District
Court focused on the "unusually degrading" order to the
two victims to have sex in the presence of the perpetrators
when it stated that it was departing upward based on the
extreme conduct. App. at 95, 113. That there could be an
upward departure on this basis could have come as no
surprise to Queensborough; this aspect of his conduct
featured prominently in the PSR's discussion of his offense.3

In light of the explicit description of the sordid facts, we
believe Queensborough did not lack notice of the factual
basis for the departure. In fact, at sentencing
Queensborough's counsel did not object on the basis that
she lacked notice that these facts might support a
departure; indeed, she acknowledged having notice that
"there was a possibility of upward departure." App. at 101.
Her objection was simply to the lack of notice that"there
was actually going to be an upward departure." App. at
_________________________________________________________________

3. The PSR summarized the female victim's statement:

[T]he two rapists told [the victims] that they . . . would now have
sex
together and that she would be on top. One of them pushed [the
woman] down on top of [the man], who was now lying face-up in the
sand. The rapists told [the woman] to take off her clothes --
everything except her socks. [The man] was told to take off his
pants. [The victims] pretended to have sex but one of the rapists
put
his hand between their genital area and stated that[the man's]
penis was not hard. The rapist said that if [he] did not get hard
within thirty seconds, they would kill him. [The woman] pleaded
with the rapists to give [him] time, that he was frightened.

10
101. But Burns contains no such requirement and
Queensborough cites to no authority that does.

We conclude therefore that under the circumstances
here, Queensborough was given the notice required by
Burns.

B.

Breach of the Plea Agreement

Queensborough next asserts that the government violated
its plea agreement to recommend a sentence within the
applicable guidelines range. Queensborough concedes that
he did not raise this objection in the District Court.
However, we have stated that whether the government
violated the terms of a plea agreement is a question of law
subject to plenary review that may be raised on direct
appeal despite the defendant's failure to raise the issue at
sentencing. See United States v. Moscahlaidis , 868 F.2d
1357, 1360 (3d Cir. 1989). But see, e.g., United States v.
Conner, 930 F.2d 1073, 1076-77 (4th Cir. 1991) (reviewing
district court's resolution of whether government breached
plea agreement under clearly erroneous standard); United
States v. Ataya, 864 F.2d 1324, 1337 (7th Cir. 1988)
(same).

We have made clear that the government has an
obligation to " `adhere strictly to the terms of the bargain it
strikes with defendants.' " Moscahlaidis , 868 F.2d at 1361
(quoting United States v. Miller, 565 F.2d 1273, 1274 (3d
Cir. 1977)). "Because the defendant, by entering into the
plea, surrenders a number of her constitutional rights,
`courts are compelled to scrutinize closely the promise
made by the government in order to determine whether it
has been performed.' " United States v. Nolan-Cooper, 155
F.3d 221, 236 (3d Cir. 1998) (quoting United States v.
Hayes, 946 F.2d 230, 233 (3d Cir. 1991)). In determining
whether the government has violated the terms of the plea
agreement, we ask "whether the government's conduct is
consistent with the parties' reasonable understanding of the
agreement." United States v. Roman, 121 F.3d 136, 142 (3d
Cir. 1997) (quotation omitted).

11
The government does not disagree with Queensborough's
understanding that it was to recommend a sentence within
the applicable guidelines, and it maintains that it did.
Indeed, in her allocution at the sentencing hearing the
prosecutor stated that "the government believes that a
sentence of 151 months for the act of aggravated rape is an
appropriate sentence, covering the conduct of this
defendant . . . ." App. at 79-80. As the guideline range for
that crime was 121-151 months, the government's
recommendation is consistent with its plea agreement.

Queensborough argues that the government paid only
"lip service" to its agreement and that it implicitly suggested
to the court that an upward departure was warranted.
Queensborough's argument that the government failed to
honor its agreement is based on the following colloquy:

[THE GOVERNMENT] But the Court has to acknowledge
that these crimes are very serious and very savage.
This defendant raped -- this is a situation not so much
unlike the case of the sentencing Attorney Wood[for
Queensborough] mentioned, where a defendant
committed --

[THE COURT] It is like or not like?

[THE GOVERNMENT] It's not unlike that case, because this
is a situation where we have three separate acts of
sexual abuse occurring by this defendant that night.
[outlining each assault] . . . . So, this is a situation
where probably, you know, different acts of sexual
aggravated rape could have been charged, but only one
was charged to cover this conduct.

So I think that this is a very savage and very serious
crime. And even though the government in the plea
agreement has agreed to recommend the sentence
within the guideline range, the plea agreement does
acknowledge that a departure is warranted when
there's more than one victim.4
_________________________________________________________________

4. This appears to have been a misstatement. The prosecutor apparently
intended to refer to the presentence report, which would have been an
accurate reference. Queensborough now argues the slip of the tongue
supports his claim but made no attempt to correct the matter at the
sentencing level, where it was more likely to have been useful.

12
 I think here we have a situation where you have
[female victim] being savagely abused by this
defendant, and then you have [male victim] as well
being abused by this defendant.

So, this is a situation, I think, that calls for a sentence
at the higher end of the guideline range, and the
government believes that a sentence of 151 months for
the act of aggravated rape is an appropriate sentence,
covering the conduct of this defendant against both
[victims].
[discussion of another case that the court had
questioned him about]

So the fact that there were two victims here is an
aggravating factor the Court should take into account. If
not, the government is recommending the high end of
the guideline range, but it is factor that would warrant
that sentence. . . .

App. 78-80 (emphases added).

The plea agreement provided that each side retained the
right to allocute at sentencing. This is the essence of the
government's allocution on this issue before the District
Court at sentencing. The government, having recommended
a sentence at the high end of the guideline range, offered
reasons in support of that recommendation. It happened
that those reasons, as the government noted, also
warranted an upward departure, but the government
explicitly stated that it was recommending a sentence
within the applicable guideline range. This was consistent
with the agreement. Nothing in the plea agreement suggests
or states that the government may not make the statements
it did.

Queensborough emphasizes the decision of the First
Circuit in United States v. Canada, 960 F.2d 263 (1st Cir.
1992), where the court stated that the government is
prohibited not only from an "explicit repudiation of the
government's assurances, but [the agreement] must in the
interests of fairness be read to forbid end-runs around
them." Id. at 269 (citation and quotations omitted). We
agree with the principle, but we do not agree with
Queensborough that the prosecutor made an "end run"

13
around the agreement in this case. Although the prosecutor
made a misstatement, see note 4 supra , the District Court
was aware of both the plea agreement and the PSR, and
there is no likelihood that it was influenced as a result.

Nor do we think that the prosecutor's remarks
concerning the savageness of Queensborough's conduct
constituted a breach of the plea agreement. The
prosecutor's statement, quoted above supra, was made in
response to defense counsel's argument that
Queensborough should be sentenced to 121 months, the
low end of the guideline range. In support of this argument,
defense counsel referred, inter alia, to the sentence given a
defendant named Caswell Fredericks in another rape case.
Fredericks had pled guilty to four aggravated rapes, and
Queensborough's counsel, in attempting to analogize to the
Fredericks situation, emphasized that Fredericks had"also
received the ten year minimum mandatory, and thefive
years on the gun . . . . And that was on four separate
occasions, each of which being an aggravated rape." App. at
69. We think it clear that, in this case, the prosecutor's
emphasis on the severity of Queensborough's crime and on
the fact that multiple rapes could have been charged for his
conduct was in response to the Fredericks allusion and was
intended to support the government's recommendation of
151 months, the high end of the guideline range, rather
than the 120 months to which Fredericks was sentenced.

Queensborough hones in on the following two sentences
of the government's allocution:

So the fact that there were two victims here is an
aggravating factor the Court should take into account.
If not, the government is recommending the high end
of the guideline range, but it is factor that would
warrant that sentence. . . .

App. at 80.

We do not agree with Queensborough's charge that by
this statement the prosecutor "only suggested a sentence
within the guidelines range . . . as an alternative if the
court did not upward depart." Appellant's Br. at 21. When
the entirety of the prosecutor's statements on
Queensborough's sentence is read, it is manifest that she

14
initially referred the court to the government's promise to
recommend a sentence within the guideline range, App. at
79, and then, on two occasions, explicitly stated that the
government was recommending to the court a sentence
within that range. App. at 79, 80. In that context, the
reference to "an aggravating factor" can only be read as a
basis for a sentence at the high end of the guideline range,
as the prosecutor made clear by adding "is [a] factor that
would warrant that sentence. . . ." App. at 80.
Queensborough does not point to any statement by the
prosecutor recommending that the court depart upward
because there is no such statement.

The plea agreement recognized that the District Court
was free to reject the government's recommendation. The
court chose to do so, and, as is evident from the court's
remarks, it did so on the basis of its abhorrence of the
circumstances of the crime. Notably, the plea agreement did
not provide that Queensborough was free to withdraw his
plea if the court sentenced him to a longer prison term. Cf.
United States v. Grant, 117 F.3d 788, 792 n.5 (5th Cir.
1997) (agreement provided that defendant could withdraw
guilty plea if court set an offense level higher than that in
the plea agreement). The prosecutor adhered to the terms of
the agreement, and we see no basis to vacate the sentence
on the ground of a breach of the plea agreement.

C.

Excessive Departure

In addition to his challenge to the process leading to the
departure, Queensborough asserts two separate but related
challenges to the fact of departure. First, he contends that
the District Court's decision to upwardly depart from the
guidelines based on extreme conduct is not supported by
the record and that such a departure was not permissible
under the guidelines. Second, he contends that the District
Court abused its discretion by imposing an excessive
upward departure. We review a district court's decision to
depart from the applicable guideline range for abuse of
discretion. See Koon v. United States, 518 U.S. 81, 99-100

15
(1996). "A district court by definition abuses its discretion
when it makes an error of law." Id. at 100.

A district court must order a sentence within the relevant
guideline range " `unless 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 in formulating the guidelines that
should result in a sentence different from that described.' "
United States v. Kikumura, 918 F.2d 1084, 1098 (3d Cir.
1990) (citing 18 U.S.C. S 3553(b)). In Koon, the Supreme
Court noted that the sentencing guidelines provide
"considerable guidance . . . by listing certain factors as
either encouraged or discouraged bases for departure." 518
U.S. at 94. Encouraged factors are those "the Commission
has not been able to take into account fully in formulating
the guidelines." U.S.S.G. S 5K2.0. Because extreme conduct
under U.S.S.G. S 5K2.8 is an encouraged factor, see, e.g.,
United States v. Lewis, 115 F.3d 1531, 1539 (11th Cir.
1997), the sentencing court may depart if the "applicable
guideline does not already take it into account," United
States v. Iannone, 184 F.3d 214, 226 (3d Cir. 1999). If, on
the other hand, the applicable sentencing guideline does
take the encouraged factor into account, the sentencing
court may depart upward if the encouraged factor" `is
present to a degree substantially in excess of that which
ordinarily is involved in the offense.' " Koon, 518 U.S. at 95
(quoting U.S.S.G. S 5K2.0).

Queensborough's PSR calculated his offense level as 32
and his Criminal History as I, resulting in a guideline range
of 121-151 months imprisonment. As noted above, the
District Court, granting an upward departure, sentenced
Queensborough to 240 months (20 years) imprisonment on
the aggravated rape count and to the statutorily mandated
sentence of 60 months on the firearm count, to run
consecutively. It is the sentence for the aggravated rape
that is the basis for the appeal.

1. Record Support for the Departure

Queensborough argues that the record does not support
the finding of extreme conduct because both of the victims

16
stated that they only pretended to have sex with each other.
That argument is a non sequitur. Being put in a position
where the victim must pretend to have sex is degrading;
"extreme" is defined by the guidelines to encompass
degrading conduct. See U.S.S.G. S 5K2.8. Moreover, the
court stated at sentencing that it was the order itself to
have sex that was degrading.

Queensborough then asserts that the District Court erred
by failing to make any comparison between the degradation
in this case and a "typical" sexual assault case. In essence,
Queensborough argues that the District Court should have
established a factual basis involving a typical sexual
assault case, thereby providing a baseline against which to
compare Queensborough's conduct. The comparison to
which Queensborough alludes appears to be that which
may be required when departing based on extreme
psychological injury under U.S.S.G. S 5K2.3, which applies
"[i]f a victim or victims suffered psychological injury much
more serious than that normally resulting from commission
of the offense." Although rape is a particularly intrusive
crime, probably more than any other, and the victim of a
rape may suffer severe psychological damage for long
periods, if not forever, the District Court did not depart on
the basis of S 5K2.3 but under S 5K2.8. That section only
requires that the court determine that the conduct involved
"was unusually heinous, cruel, brutal, or degrading."

The District Judge, who had considerable experience
presiding over criminal cases, did not err in characterizing
the events as degrading and Queensborough's conduct as
extreme. Given the repetitive number of instances of
intrusive physical contact, the order that the two victims
have sex, and the repeated death threats, the record amply
supports a departure based on extreme conduct. See United
States v. Johnson, 144 F.3d 1149, 1150-51 (8th Cir. 1998)
(affirming departure under U.S.S.G. SS 5K2.8 and 5K2.3
based on defendant's conduct during rape and on severe
psychological injury); Lewis, 115 F.3d at 1538-39 (affirming
departure under U.S.S.G. S 5K2.8 based on number and
nature of assaults).

17
2. Whether the Departure was Authorized

Queensborough also argues that no upward departure
was legally permissible because his conduct was already
taken into account by the guidelines. Queensborough does
not suggest that the 20 year sentence imposed by the
District Court was unauthorized by statute. Under the ACA,
which applies here because the offense took place on
federal land, i.e., a national park, Queensborough was
subject to "a like punishment" to that applicable under the
state or territorial law. 18 U.S.C. S 13(a). Courts have
interpreted "like punishment" to mean that state law sets
the minimum and maximum punishment while the federal
sentencing guidelines should be used to determine the
actual sentence within that range. See, e.g., United States
v. Pierce, 75 F.3d 173, 176 (4th Cir. 1996); United States v.
Marmolejo, 915 F.2d 981, 984 (5th Cir. 1990); United States
v. Garcia, 893 F.2d 250, 254 (10th Cir. 1989).

In this case, Queensborough was charged with the
assimilated crime of aggravated rape which carries a term
of imprisonment of 10 years to life under Virgin Islands
law. See 14 V.I.C. S 1700(c). Therefore, the District Court,
although required to determine the actual sentence using
the federal sentencing guidelines, was authorized to
sentence within that range, i.e., up to life imprisonment.

The thrust of Queensborough's argument is that his
offense level was increased by four levels for aggravated
sexual assault by force or threat and an additional four
levels for abduction, thereby resulting in an adjusted
offense level of 35, which he claims took into account all of
his conduct, including any degradation associated with
criminal sexual abuse. We disagree. As an encouraged
factor under the guidelines, extreme conduct may be the
basis for an upward departure if the "applicable guideline
does not already take it into account," Iannone, 184 F.3d at
226, or, if the guideline does take it into account, if the
factor is present to a degree substantially in excess of that
ordinarily involved in the offense. It is evident that the
criminal sexual abuse guideline under which
Queensborough was sentenced contemplates upward
departures based on extreme conduct because the
application notes state that such a departure may be

18
appropriate "[i]f a victim was sexually abused by more than
one participant." U.S.S.G. S 2A3.1, Application Note 5. The
guideline does not state, and Queensborough has not
suggested, that abuse by more than one participant is the
only basis for an extreme conduct departure. Here, given
the patently degrading nature of the order that the two
victims have sex, the District Court could properly have
concluded that Queensborough's conduct was extreme to a
degree not adequately taken into account by the guidelines.
See Lewis, 115 F.3d at 1538-39.

3. The Extent of the Departure

Finally, Queensborough argues that even if an upward
departure was permissible the District Court abused its
discretion by ordering an excessive departure equivalent to
an increase of five or six levels. He contends that even if he
"had inflicted permanent or life-threatening bodily injury,
the increase in his offense level would have been only four
levels." Appellant's Br. at 28 (citing U.S.S.G.S 2A3.1(b)(4)).
He relies on our statement that "analogy to the guidelines
is also a useful and appropriate tool for determining what
offense level a defendant's conduct most closely
approximates." Kikumura, 918 F.2d at 1112. However, "[a]t
this stage, the question is no longer whether the district
court has substituted its judgment for that of the
Sentencing Commission, but whether the court of appeals
should substitute its judgment for that of the district
court." Id. at 1110.

Our dissenting colleague, who agrees that an upward
departure was appropriate, nonetheless would remand
because he believes that the District Court gave"no clue as
to why it decided that a five-level departure was
warranted," dissenting op. at 33, and that "the
reasonableness of the degree of departure in this case is
not apparent from the record." Dissenting op. at 34. He
would follow the process that we used in United States v.
Jacobs, 167 F.3d 792 (3d Cir. 1999). Unlike our colleague,
we believe that both the justification for an upward
departure of the extent given and the District Court's
reasons are fully set forth on the record.

19
The PSR, which was available to both the defense and the
District Court, contains a Victim Impact Statement from
each of the two victims. Lest there be any question about
the extent of the psychological injury to the victims, a brief
review of the written statement of the female victim, who
said that she "knew bad things did happen, but did not
know that evil like this existed," which was included in the
PSR, fully sets forth the "devastating" effect on her of the
brutality of the multiple rapes. She related that, inter alia,
she had "cried every day for months;" "continuing
nightmares;" "continuing months of counseling;" "loss of
the ability to focus on meditation or prayer without
becoming distracted by reliving the horror of that night;"
"waiting in terror for [AIDS] and pregnancy testing;" "the
horror, shame, and embarrassment, when news of this
appeared in newspapers and on t.v. programs;""the
difficulty of trying to handle the everyday events of life while
dealing with this;" "much of what made my life happy and
worth living was not available to me for many months. . .
and in some ways may never return."

The written statement of the male victim included in the
PSR was similar. He related that "[t]he hatred, brutality,
and violence that we were subjected to . . . has
permanently changed my life;" he became "incredibly
fragile;" "experienced repeated and uncontrollable panic . . .
directly related to the violent crimes;" because"during
much of the violence, I was held down from behind, with a
gun in the back of my head or in the side of my face. . . [in
the months that followed] I frequently panicked, fearing
that someone was about to attack me from behind, only to
turn and find no one;" "could no longer walk alone [in the
forest] without panic and extreme anxiety;""sought and
received weekly counseling;" had not fully healed"more
than one and one-half years after that violent night;" "I still
find myself lying awake thinking about the horrors of that
night."

Both victims commented in their written statements
about the length of the sentence that the District Court had
to set. The female victim wrote, "I know you can not return
[my happy spirit] to me, but you can make certain that
others don't lose theirs as well. It is my belief, backed by

20
many studies, that if freedom is given to this person before
he reaches middle age he will repeat the violent crimes he
has committed. That price for his freedom is too high. You
stand between this man and the brutality with which he
will treat other people." The male victim also wrote, "I
sincerely believe that if he is not sentenced to many years
in jail, he will again commit horrific crimes, and in the
future, he may not allow the victims to live. I feel a deep
responsibility to call the attention of the legal system to this
danger, and the court has a deep responsibility to ensure
that others are not endangered by this man." Andfinally,
he wrote, "there is no doubt that each of these men is
capable of murder. Please do not allow these men to hurt
or to kill others."

The PSR, of course, is available and part of the record.
But if the written statements of the victims did not
sufficiently set forth the circumstances and effect of
Queensborough's crime, these victims felt so strongly about
the sentencing that, unlike most victims of rape who shun
further contact with the case once the trial is over, they
both returned for the sentencing hearing and gave their
statements in person and in the presence of the court.
Those statements are included as an Appendix to this
opinion. We find nothing in the Jacobs opinion that is
comparable.

The District Court was not unaware of the need to
articulate the reasons for the upward departure to the
extent it chose, but apparently believed, with good reason,
that it was apparent from the record that had just been
made. Thus, in sentencing Queensborough, the District
Court, having just heard the moving and explicit
statements of both victims, made in open court, stated at
the outset:

THE COURT: Mr. Queensborough, I don't know that
there's a whole lot I can say to you, other than what
[the female victim] and [the male victim] have very
eloquently told you right now.

. . .

The cases alluded to by your counsel earlier are
different, they are distinguishable from this, while they

21
 were certainly very bad and dangerous and brutal, but
they do not reach the level of brutality that you did to
these two people.

Not only do I think that it is, that sentencing you on
the high . . . end of the guidelines is appropriate, I
think that it does warrant departure upward.

The court stated that "this case is totally senseless . . . . So
I think that this is one of those instances where the Court
is justified in departing upward." After confirming with the
U.S. Attorney that "the maximum sentence for this is life,"
the court imposed the sentence of 20 years on Count 1 and
the mandatory 5 years on Count 2.

The Supreme Court has made it clear that we are to
afford substantial deference to a District Court's sentencing
decision:

A district court's decision to depart from the Guidelines
. . . will in most cases be due substantial deference, for
it embodies the traditional exercise of discretion by a
sentencing court. Before a departure is permitted,
certain aspects of the case must be found unusual
enough for it to fall outside the heartland of cases in
the Guideline. . . . Whether a given factor is present to
a degree not adequately considered by the Commission,
or whether a discouraged factor nonetheless justifies
departure because it is present in some unusual or
exceptional way, are matters determined in large part
by comparison with the facts of other Guideline cases.
District courts have an institutional advantage over
appellate courts in making these sorts of
determinations. . . .

Koon, 518 U.S. at 98 (citation omitted).

Applying this substantial deference, we conclude that the
District Court did not abuse its discretion in departing
upwards to the degree it did in this case. In setting
Queensborough's sentence, the court compared his conduct
to that of other criminal defendants referred to by defense
counsel during argument, and stated: "[t]he cases alluded
to by your counsel earlier are different . . . while they were
certainly very bad and dangerous and brutal . . . they do

22
not reach the level of brutality that you did to these two
people." App. at 94. The court then identified the maximum
possible sentence for Queensborough's crime, life
imprisonment, and imposed a sentence of twenty years. The
District Court heard the allocution by both attorneys, by
the two victims, and by Queensborough himself. It was in
the best position to determine whether a departure was
warranted and, if so, the extent of the departure, and we
are not inclined to replace its judgment with our own.

III.

CONCLUSION

For the reasons set forth, we will affirm the judgment of
conviction and sentence.

23
APPENDIX

STATEMENT OF FEMALE VICTIM AT SENTENCING
HEARING

When asked if I wished to come here to make a
statement, I initially thought that I would not want to do
so, because I thought it would be very hard to talk about
what happened, and I worried I would embarrass myself by
crying.

And it struck me that the worst, if I did cry, I would be
embarrassed, is a very different result from the threat of
that night when we were attacked by this man. He said to
me, "You cry, you die."

I chose to come here because although you can read the
accounts of what happened that night, you cannot know
how it felt for me to sit with a friend on a beautiful
Valentine's Day night, and suddenly become prey to brutal
predators who would show us repeatedly that our lives no
longer had value, and that they could be taken at any time.

You can read medical reports, but you can't know that
during the attack, there came a time when it hurt so badly
I considered fighting, even if it meant my life, because I
didn't think they could kill me any more dead that I already
felt inside.

However, this was not a choice I could make at that time.
It was something I could not do. I couldn't forfeit what little
chance my friend had for survival.

You can read of our escape, but I want you to know from
me, it was terrifying to feel like a hunted animal, going over
the lava rocks and cactus and dark hillside.

I have never in my entire life had anything as devastating
as this happen. This has invaded every portion of my life.

I tried to think of how best to explain to you how invasive
this has been, and I thought maybe if I shared that I cried
every day for months and months and months, that I've
had continuing nightmares made up of the memories of
that night, from which I awaken screaming. And this goes

24
on, the continuing months of counseling to try to work
through my confused emotions and fears.

That for many months I experienced a loss of the ability
to focus on meditation or prayer, without becoming
distracted by reliving the horror of that night.

That lack of ability to focus has affected other activities
I previously enjoyed, simple things like reading and
watching TV, or basket weaving or quilting.

The embarrassment of the exasperating jumpiness with
which I react to unexpected movement toward me.

Waiting in terror for AIDS and pregnancy testing.

For months I was unable to go out at night, which for me
meant no longer taking any night classes or seeing the
beauty of the stars, or being on the beach.

Having to come back, feeling sick to my stomach when I
am too closely surrounded by strangers, which made
ordinary events like rejoining my exercise class, or even
going to my own church, too difficult for many months.

Activities where strangers were close by remain very
difficult for me. I find it hard to remember that I once could
enjoy a simple even[ing] out dancing with a group of friends
or going to an amusement park for the day.

The loss of opportunity, the promotion that disappeared
when the administrator found out what had happened to
me. The staff, who did not know what happened, couldn't
understand why the promotion had suddenly disappeared
and was not mine. I did not have the energy to argue on my
own behalf with regards to this.

The loss of friends and close family, who could not have
handled this, and who can't handle the continuing
difficulties that this presents.

The sadness and pain of seeing my closest friends hurt
by the fact that I was hurt. I am finding that this having
happened to me continues to hurt those people with whom
I become close.

The horror, shame and embarrassment when news of
this appeared in newspaper and on TV programs. The fact

25
that names were withheld did not disguise that that was
me.

The difficulty of trying to handle the everyday events of
life while dealing with this. I can barely recall large events,
like moving, other than extreme upset over small, minor
things like a scratch from a cardboard box that reminded
me of the scratches received from the lava rocks, from the
attack that night.

And the fear that I would burst into tears over nothing in
front of people who would not have understood why I was
reacting in such a way.

The expense, which now amounts to thousands of
dollars, for ongoing counseling, medical exams, testing,
replacing things destroyed or lost.

My life has gone on, but much of what made my life
happy and worth living was not available to me for many
months, and in some ways may never return.

I was asked if I wanted to be compensated for the money
that was stolen from me. I think that money was minor. I
want returned to me my happy spirit.

And I know bad things to happen, but I did not know
that evil like this existed. I know you cannot return this to
me, but if you delay this happening to others, the price
others have to pay for this person's freedom is too high.

You stand between this man and the brutality with which
I firmly believe he will treat other people. I beg you to
protect other men and women from this.

This finally is what this has brought me to. I base my
entire philosophy on personal freedom, and yet I must ask
that you limit this man's freedom for as long as the law
allows you to do so, in order that the freedom of other
people may be preserved.

26
STATEMENT OF MALE VICTIM AT SENTENCING
HEARING

I'm thinking about what I can offer to you as you think
about sentencing Mr. Queensborough. I need to pass on to
you a bit of the horror of the night that we experienced.

I can't talk to all the details of that night, and I won't, but
a bit of it I think you need to feel and to be aware of.

Right after Mr. Queensborough had himself just finished
raping [female victim], he held me down on the ground with
a gun at my face and to my head, and he threatened
repeatedly to kill us.

And as he went on and on in his state and threatening
manner, he said some things that were deeply disturbing
and that were very revealing about him.

He said, "Do you know why I'm doing this to you, why I'm
going to hurt you?"

He said, "Because I've been in jail and I've been hurt. I
don't care. I'm going to hurt you."

And I laid there on the ground, trembling, thinking this
is a person who doesn't care about himself, he has got no
respect for himself, he has got no respect for others. He has
no respect for human life. And this is the person that's
holding a gun to my head and threatening to kill us, and he
has just finished raping [female victim]. It was deeply
disturbing and very shocking, and I lay there trembling.

Somehow in his mind I believe that he rationalized what
he was doing to us, because he had been hurt in his life.
He said very directly that he had killed other people, and
that it would mean nothing to him to kill us.

At that moment, and as a result of that whole night, my
sense of security in life was shattered. I have been lucky in
my life, surrounded with a lot of love and caring, and I
never faced, I've never faced anyone who had such a lack
of respect for life.

I've come to know a little bit of the sense of fear that
many people go through in life, particularly women, and
not being safe to walk, not being safe to be alone, the

27
horror of panic, see them for real, and some of them are
basically based on the horror of that night.

He said all this to me having just raped [female victim],
and it was very clear, I know in my heart not only was he
capable of raping, which he did, but that he was very
capable of murder as well, of killing.

We were incredibly fortunate to survive that night. We
didn't meet his anger or that of the other assailant. We
didn't meet their hatred. And in not meeting that, I believe
we stopped them from killing us.

I have no doubt in my heart, I know that he is capable
of killing and capable of rape, and I believe that given the
opportunity it will happen again, and that next time the
victims will not survive. In fact, I believe that most people
would not have lived through that. I feel very fortunate, to
myself and to [female victim], that we found a way to
survive and to try to heal afterwards.

So that's why I'm here today, to talk to you about his
sentencing. There's absolutely no sense of - - I have no
interest at all in punishment. I have no pleasure at all
thinking about Mr. Queensborough going to jail. In fact, I
think it's tragic. I think it's very tragic, that since he is
such a young a man, can be so filled with hatred and
horror, his life so out of control that he can commit crimes
that mean that he is not safe to be around other people.

So when I think about what I think is appropriate for his
sentencing, all I think about is the safety of others, that no
one, there's not a person alive that should have to feel what
we felt, that should have to fight for their lives the way we
had to fight. And I believe that he will hurt others again,
and that as a result the Court needs to sentence him to the
maximum amount of sentence that is allowable.

Again, I think it's tragic. There's nothing that I hate more
than the idea of anyone leading their lives like that. But the
safety of others is what I have to keep in mind, and that's
why I came here today.

Thank you for listening and considering that in deciding
on his sentencing . . . .

28
STAPLETON, J., concurring in part and dissenting in part:

I agree with my colleagues that the government did not
breach the plea agreement. The prosecutor expressly
advised the Court that the government had committed itself
to recommend a sentence within the Guidelines range and
that its recommendation was a sentence at the upper end
of the range. In this context, the prosecutor's comment
about "an aggravating factor" could not have communicated
to the Court that the government was recommending a
departure. Nevertheless, I would remand for resentencing.

Queensborough was charged with conduct constituting
"aggravated sexual abuse" under 18 U.S.C.S 2241 which,
like the Virgin Islands rape statute, carries a maximum
sentence of life imprisonment.1 The applicable provision of
the Guidelines is S 2A3.1, which provides a base offense
level of 27 for "sexual abuse" as defined in 18 U.S.C. S 22422
and specifies "Specific Offense Characteristic" upward
increases for various aggravating circumstances. A four-
level increase is required, for example, if a dangerous
_________________________________________________________________

1. Section 2241 provides in relevant part:

(a) By force or threat. -- Whoever, in the special maritime and
territorial jurisdiction of the United States or in a Federal
prison,
knowingly causes another person to engage in a sexual act --

(1) by using force against that other person; or

(2) by threatening or placing that other person in fear that any
person will be subjected to death, serious bodily injury, or
kidnaping;

or attempts to do so, shall be fined under this title, imprisoned
for
any term of years or life, or both. . . .

2. Section 2242 provides in relevant part:

Whoever, in the special maritime and territorial jurisdiction of
the
United States or in a Federal prison, knowingly--

(1) causes another person to engage in a sexual act by threatening
or placing that other person in fear (other than by threatening or
placing that person in fear that any person will be subjected to
death, serious bodily injury, or kidnaping); . . .
 or attempts to do so, shall be fined under this title, imprisoned
not
more than 20 years, or both.

29
weapon is used or displayed. An additional four-level
increase is mandated if the victim is abducted, and still
another four-level increase is called for if the victim
sustained permanent or life-threatening bodily injury.3
Application Note 5 to S 2A3.1 makes a cross reference to
S 5K2.8 (departure for "extreme conduct"), which authorizes
an upward departure for conduct that is "unusually
heinous, cruel, brutal or degrading to the victim." The
Application Note suggests, by way of example, that an
upward departure under S 5K2.8 may be appropriate when
the victim is sexually abused by more than one participant.

Queensborough's sentencing judge adopted the Guideline
calculations suggested in the Presentence Report ("PSR"): a
Base Offense Level of 27 followed by a four-level increase
for use of a gun, a four-level increase for abduction, a two-
level decrease for acceptance of responsibility, and a one-
level decrease for timely notifying the authorities of his
intention to plead guilty. This calculation resulted in a total
offense level of 32 and, given Queensborough's Criminal
History Level, a sentencing range of 121 to 151 months.
Queensborough does not challenge this calculation. The
Court went on, however, to depart upward and to impose a
_________________________________________________________________

3. U.S.S.G. 2A3.1(b) provides:

(b) Specific Offense Characteristics

(1) If the offense was committed by the means set forth in 18
U.S.C. S 2241(a) or (b) (including, but not limited to, the use or
display of any dangerous weapon), increase by 4 levels;

(2) (A) If the victim had not attained the age of twelve years,
increase by 4 levels; or (B) if the victim had attained the age of
twelve years but had not attained the age of sixteen years,
increase
by 2 levels.

(3) If the victim was (A) in the custody, care, or supervisory
control
of the defendant; or (B) a person held in the custody of a
correctional facility, increase by 2 levels.

(4) (A) If the victim sustained permanent or life-threatening
bodily
injury, increase by 4 levels; (B) if the victim sustained serious
bodily
injury, increase by 2 levels; or (C) if the degree of injury is
between
that specified in subdivisions (A) and (B), increase by 3 levels.
(5) If the victim was abducted, increase by 4 levels.

30
sentence of 240 months, the equivalent of at least afive-
level increase above the total offense level of 32.
Queensborough challenges the propriety of both the
departure and the extent thereof.

As the District Court recognized, an upward departure
was permissible only if Queensborough's conduct was
heinous, cruel, brutal or degrading to a degree not
adequately taken into account by S 2A3.1 in a situation
where the rape involved an abduction and use of a deadly
weapon. The Court concluded that Queensborough's
conduct was "unusually degrading to the victim" because
"one victim [was] forced to have sex with another victim,"
App. at 113, and, based solely upon this finding, departed
upward five levels. Like my colleagues, I agree that the
directive to the two victims could properly support an
upward departure. I would not affirm the District Court's
sentence, however, because no notice was given that a
departure on this ground was being considered and
because the sentencing judge provided no explanation for
the degree of his departure, a five-level, 89 month increase.

In Burns v. United States, 501 U.S. 129 (1991), the Court
pointed out that Federal Rule of Criminal Procedure 32, as
amended by the Sentencing Reform Act, "provides for
focused, adversarial development of the factual and legal
issues relevant to determining the appropriate Guidelines
sentence." Id. at 134 (emphasis supplied). Rule 32 does this
in part by affording the defendant and the government the
opportunity to comment on "matters relating to the
appropriate sentence." Id. at 134. The Supreme Court
concluded in Burns that Rule 32 contained an implicit
requirement that the defendant receive notice that"an
upward departure will be at issue and of the facts that
allegedly support such a departure." Id. at 135 (emphasis
supplied). As the Court explained:

In the ordinary case, the presentence report or the
Government's own recommendation will notify the
defendant that an upward departure will be at issue
and of the facts that allegedly support such a
departure. Here we deal with the extraordinary case in
which the district court, on its own initiative and
contrary to the expectations of both the defendant and

31
 the Government, decides that the factual and legal
predicates for a departure are satisfied. The question
before us is whether Congress, in enacting the
Sentencing Reform Act, intended that the district court
be free to make such a determination without notifying
the parties. We believe that the answer to this question
is clearly no. . . .

As we have set forth, Rule 32 contemplates full
adversary testing of the issues relevant to a Guidelines
sentence and mandates that the parties be given"an
opportunity to comment upon the probation officer's
determination and on other matters relating to the
appropriate sentence." Fed. Rule Crim. Proc. 32(a)(1).
Obviously, whether a sua sponte departure from the
Guidelines would be legally and factually warranted is
a "matte[r] relating to the appropriate sentence." In our
view, it makes no sense to impute to Congress an
intent that a defendant have the right to comment on
the appropriateness of a sua sponte departure but not
the right to be notified that the court is contemplating
such a ruling.

Burns, 501 U.S. at 135-36 (emphasis supplied).

The only fact noted in the PSR under the heading
"Factors That [Might] Warrant Departure" was the fact that
the "victim was sexually abused by more than one
participant." The only fact mentioned by the government at
the sentencing hearing as possibly warranting a departure
was the fact that "there's more than one victim."
Understandably, in this context, defense counsel made no
comment during his allocution on whether the order
directing the victims to have sex was sufficiently degrading
to warrant a departure and, if so, how large that departure
should be.

My colleagues distinguish Burns on the ground that the
PSR here mentioned the directive to have sex in its ten-
page, narrative account of all of the circumstances of the
offense and cited to S 5K2.8, the Guideline section under
which the District Court ultimately departed. Neither
portion of the PSR, however, gave fair notice of the factual
basis for the departure utilized by the Court.

32
While the PSR did cite to the Guideline under which the
Court ultimately departed and thus referenced the"legal
predicate" for the departure that ultimately occurred, that
Guideline is so broad that it provided no hint in this
context of the "factual predicate" that the Court was
considering. Indeed, the PSR's citation to S 5K2.8 came in
support of a suggested factual basis for departure wholly
different from the one adopted by the District Court.
Similarly, the PSR's narrative account included all the facts
related to the crime and did nothing to dispel the idea that
the only basis for departure being considered was that
there were two perpetrators.

In addition to adopting a novel ground for departure, the
District Court provided no clue as to why it decided that a
five-level departure was warranted. The Court simply noted
that the maximum penalty authorized by the statute was
life and then imposed a sentence of 20 years. My colleagues
understandably believe that the extent of the District
Court's departure was determined by reference to the
relationship between a total sentence of twenty years and
the maximum sentence provided by law, i.e., life. If so, the
District Court erred. As my colleagues acknowledge, even
when sentencing for an assimilated crime, a district court
must still base its sentence on the Guidelines. If the
congressionally intended uniformity is to be achieved, it is
the value system of the Guidelines to which the sentencing
judge must adhere.

In United States v. Kikumura, 918 F.2d 1084 (3d Cir.
1990), we held that once a reviewing court concludes that
a departure is permissible, it must still determine whether
the degree of departure was reasonable. While we
recognized that "[a]t this stage of the inquiry, our review is
deferential," id. at 1098, we stressed that "there must be
some objective standards to guide the determination of
reasonableness," id. at 1110, and that"standardless
determinations of reasonableness [would] inevitably
produce unwanted disparity." Id. at 1113. We concluded
that the primary source of those objective standards must
be the Guideline scheme itself. At the same time, we
recognized that those standards will often be discernable in
the Guidelines only by way of analogy and that " analogies

33
to the guidelines . . . are necessarily more open-textured
than [direct] applications of the guidelines." Id. at 1113.

In United States v. Jacobs, 167 F.3d 792 (3d Cir. 1999),
we found implicit in Kikumura a requirement that a
sentencing judge, when departing from the guideline range,
"articulate the reasons for the degree of the departure." Id.
at 798. In the absence of such an explanation or some
other indicia in the record, it is impossible to determine
whether the District Court has conducted the required
analysis. Under Jacobs, where the reasonableness of the
degree of the departure is not otherwise apparent from the
record, a failure to provide an explanation requires a
remand for resentencing. As will be apparent from the
following discussion, I believe the reasonableness of the
degree of departure in this case is not apparent from the
record and that our precedents, accordingly, dictate a
remand for resentencing.

Consistent with our prior approach in comparable cases,
I would not dictate to the District Court the rationale that
it should utilize on remand in determining the degree of
departure. It is appropriate under our precedents, however,
to point out provisions of the Guidelines that the District
Court might wish to consider in making that determination.
See Jacobs 167 F.3d at 800-01.

I would commend to the District Court for its
consideration our decision in Jacobs. The defendant there
was charged with aggravated assault on his former
girlfriend with a knife on federal property. Section 2A2.2,
the aggravated assault guideline, provided for a base
offense level of 15 and for enhancements, inter alia, for use
of a dangerous weapon (4 levels), and infliction of "Serious
Bodily Injury" (4 levels), or "Permanent or Life-Threatening
Bodily Injury" (6 levels).4 The sentencing court added four
_________________________________________________________________

4. U.S.S.G. S 2A2.2(b)(3) provides:

(b) Specific Offense Characteristics

* * *

(3) If the victim sustained bodily injury, increase the offense
level
according to the seriousness of the injury:

34
levels for the use of a knife and six levels because the
victim sustained permanent physical injuries. In addition, it
departed upward five levels under U.S.S.G. S 5K2.3, which
authorizes a departure when "extreme psychological injury"
has been inflicted on the victim.5

As heretofore noted, we remanded for resentencing
because the sentencing judge failed to explain how it
selected a five-level departure and because the
reasonableness of that choice was not obvious from the
record and the Guidelines. In the course of our opinion, we
pointed out that the Guidelines provided a basis for
inferring that in an aggravated assault context, physical
and non-physical injuries to the victim should be treated as
being of substantially similar seriousness. Based on that
inference, we suggested that in departing for a non-physical
injury, the court should be guided by the degree of increase
mandated for a comparable physical injury:

Under S 1B1.1(j), "serious bodily injury" includes the
"protracted impairment of . . . [a] mental faculty."
Under S 1B1.1(h), "permanent or life-threatening bodily
injury" includes a "substantial impairment of[a]
mental faculty that is likely to be permanent." These
_________________________________________________________________

Degree of Bodily InjuryIncrease in Level

(A) Bodily Injury add 2
(B) Serious Bodily Injuryadd 4
(C) Permanent or Life-Threatening
Bodily Injuryadd 6

(D) If the degree of injury is between that specified in
subdivisions (A) and (B), add 3 levels; or

(E) If the degree of injury is between that specified in
subdivisions (B) and (C), add 5 levels.

Provided, however, that the cumulative adjustments from (2) and
(3) shall not exceed 9 levels.

5. U.S.S.G. S 5K2.3 provides in part:

If a victim or victims suffered psychological injury much more
serious than that normally resulting from commission of the
offense,
the court may increase the sentence above the authorized guideline
range.

35
 definitions do not, as Jacobs argues, mean that in an
aggravated assault context, S 2A2.2(b) takes into
account all of the extraordinary psychological injuries
covered by S 5K2.3. . . . They may, however, provide a
basis for inferring that the guidelines in an aggravated
assault situation treat physical and non-physical
injuries to a victim as being of substantially similar
seriousness. If one draws such an inference, one may
further conclude that it would be inconsistent with the
approach of the Guidelines to depart upward four
levels or more under S 5K2.3 without finding that the
extreme psychological injury was likely to be
protracted. Conversely, one may conclude that it would
be consistent with the approach of the Guidelines to
depart upwards four levels if there is "extreme
psychological injury," as defined in S 5K2.3, that can be
expected to be "protracted" but not "permanent."

Jacobs, 167 F.3d at 801.

Section 2A3.1 (the sexual abuse guideline), likeS 2A2.2
(the aggravated assault guideline), provides a base offense
level and, inter alia, calls for increases depending on
whether "serious bodily injury" or "permanent or life-
threatening injury" was inflicted on the victim. "Serious
bodily injury" and "permanent or life-threatening injury" for
purposes of both sections include impairment of a"mental
faculty." Section S 5K2.8 (departure for"extreme conduct"),
like S 5K2.3 (departure for "extreme psychological injury"),
authorizes an upward departure where an extraordinary
non-physical injury is inflicted, i.e., where the victim is
subjected to unusually degrading conduct. Although
S 2A3.1 deals with sexual abuse rather than assault and,
accordingly, specifies a substantially higher base offense
level, Jacobs's teachings may be helpful in determining a
reasonable degree of departure here.

As we have noted, if the victim in a sexual assault
sustains "permanent or life-threatening bodily injury,"
S 2A3.1(b) dictates a four level increase in the offense level.
If bodily injury is sustained that is neither "permanent" nor
"life-threatening," but nevertheless serious, a two or three
level increase is required. If one who inflicts non-physical
injury in the course of a sexual assault is to be treated as

36
having culpability equal to that of one who inflicts
comparable physical injury, it would appear unreasonable,
in the absence of a persuasive explanation, to depart more
than four levels in a situation like that before us or to
depart more than three level without finding that the harm
to the victim was life threatening or left continuing effects.

I would also commend for the District Court's
consideration the portion of our Kikumura opinion that
discusses situations where the conduct giving rise to a
departure is itself a crime independent of the offense
charged. See Kikumura, 918 F.2d at 1112. We there
suggested that it would ordinarily not be reasonable to
choose a degree of departure that would result in the
defendant's receiving more total punishment than he would
have received if he had been charged and convicted of both
offenses. Here the conduct giving rise to the departure was
an independent violation of 18 U.S.C. S 2241; when
Queensborough ordered the two victims to have sex, he
"knowingly [attempted to] cause . . . another person to
engage in a sexual act . . . by threatening serious bodily
injury." If he had been prosecuted for both offenses, they
would each have had a total offense level of 32. Because
there was an additional victim of the second crime, they
would not have been grouped together and the combined
offense level, under S 3D1.4, would have been 34. This
produces a Guideline range from 151 to 188 months, a
range substantially below the 240 months imposed here.

I would stress, as we did in Jacobs, that the District
Court would be free on remand to elect a different approach
to determine what is a reasonable degree of departure on
the facts of this case. I would, however, insist on a clear
articulation of the reasons supporting the District Court's
ultimate decision on an appropriate sentence.6
_________________________________________________________________

6. The Court's appendix and its recitation of the details of the offense
and its impact on the victims powerfully communicates the character of
the sexual abuse in this case. To the extent they are included in
response to my dissent, however, they miss the point. The issue for me
is not whether this record will support an upward departure or even
whether it could justify a five-level upward departure.

37
A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

_________________________________________________________________

The sentencing judge in this case was required by 18 U.S.C.
S 3553(c)(2) to state "the specific reason" for his departure in open
court
and in the court's judgment. In open court, the judge stated:

As is recited in the Presentence Report, and so that counsel had
notice, Paragraph 92, according to the basic Sentencing Guideline
that applies here for criminal sexual abuse, an upward departure is
warranted if the victim was sexually abused by more than one
participant, and as well under Section 5(k)(2.8), which deals with
extreme conduct.

And it says, if the defendant's conduct is unusually heinous,
cruel, brutal or degrading -- well, for a rape, I don't know that
it
qualifies as unusually heinous, cruel or brutal; however, to then
order the two victims to have sex themselves, in your presence, at
the point of a gun, is unusually degrading. So I'm not going to
prolong it any longer."

App. at 95. In its judgment, the Court stated:

The sentence departs from the guideline range for the following
specific reason(s): Extreme conduct pursuant to 5k2.8. The Court
finds defendant's conduct was unusally (sic) degrading to the
victim.
One victim forced to have sex with another victim.

App. at 113.

It is thus unmistakably clear why the District Court departed. The
problematic issues result from the fact that the Court gave no notice that
it was considering a departure on that ground and the fact that it gave
no explanation as to why it thought the order to have sex deserved
punishment beyond that which could have been imposed based on a
finding of permanent physical or psychological injury to the victims.

38