United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-3851
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
*
Michael J. Sickinger, *
*
*
Defendant-Appellant. *
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Submitted: March 9, 1999
Filed: June 14, 1999
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Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges and
SACHS,1 District Judge.
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SACHS, District Judge.
Michael J. Sickinger was charged with and found guilty of
kidnapping in violation of 18 U.S.C. § 1201(a) and of interstate
domestic violence in violation of 18 U.S.C. § 2261(a). The
district court2 sentenced Sickinger to 78 months in prison on each
1
The Honorable Howard F. Sachs, United States District Judge
for the Western District of Missouri, sitting by designation.
2
The Honorable E. Richard Webber, United States District Judge
for the Eastern District of Missouri.
count, to run concurrently. Sickinger appeals, claiming a
violation of the Fifth Amendment double jeopardy clause and two
errors in applying the United States Sentencing Guidelines
("U.S.S.G."). We reject several of these contentions, but because
we find one sentencing error we vacate the judgment and remand for
resentencing.
I.
On January 24, 1998, Judith Walker, Sickinger's girlfriend at
the time, and her friend, Tammy Wilson, were cleaning a business in
Clayton, Missouri. Sickinger arrived at the business shortly
before noon and confronted Wilson and Walker through a window at
the business. Shortly thereafter Sickinger gained access to the
building, seized Walker by the hair, punched her in the stomach and
pushed her into a bathroom. Wilson screamed at Sickinger to stop
and threatened to call 911. Sickinger turned and called out
"Bitch, I'll kill you if you call 911." Sickinger then seized
Wilson's hair, threw her to the ground and kicked her in the face
twice, shattering bones in her eye socket and breaking her nose and
sinuses.
Sickinger then started choking Walker and dragged her by the
hair to his Corvette. Once in the Corvette, Sickinger hit Walker
in the nose and told her to keep her head down. When she raised
her head, Sickinger struck her in the face and back of her head.
When she tried to get out of the car, he used his hand and the
power locks to keep the door shut.
After crossing into Illinois Sickinger stopped for shopping at
a convenience store and a fast food drive-through. Walker later
stated that she did not attempt to run because she had nowhere to
go and was afraid of being beaten by Sickinger. Sickinger warned
Walker not to attempt to run. They rented a hotel room and
Sickinger placed two chairs in front of the door. Sickinger did
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not at that time threaten or physically restrain Walker. Walker
did not attempt to escape because she "lost so much blood . . .
[and] I'm not going to get hit no more."
The next morning, Sickinger drove Walker to a gasoline station
where she entered alone and purchased a drink and sunglasses to
hide her black eyes. She made no attempt to escape or to alert
authorities. That afternoon, Sickinger and Walker were stopped by
an Illinois police officer and Sickinger was arrested.
II.
A. Double Jeopardy.
Sickinger argues that conviction and sentencing on both
interstate domestic violence and kidnapping constitutes double
jeopardy in violation of the Fifth Amendment. Sickinger failed to
raise this argument in the district court and thus it has not been
preserved. United States v. Santana, 150 F.3d 860, 863-64 (8th
Cir. 1998); United States v. Garrett, 961 F.2d 743, 748 (8th Cir.
1992). We will, however, review the contention for plain error.
United States v. Uder, 98 F.3d 1039, 1045 (8th Cir. 1996); United
States v. Merritt, 982 F.2d 305, 306-07 (8th Cir.1992). Under the
Court's plain error review we must affirm unless (1) the district
court erred; (2) the error was plain under current law, i.e., clear
and obvious; and (3) the error was prejudicial. United States v.
Jackson, 155 F.3d 942, 947-48 (8th Cir.), cert. denied, 119 S.Ct.
627 (1998).
Under this standard, we cannot find that plain error has been
committed by the district court. The only cases examining the
contention raised by Sickinger, that interstate domestic violence
is simply a more specific type of kidnapping, have rejected the
argument. See United States v. Bailey, 112 F.3d 758, 766-67 (4th
Cir.) cert. denied, 118 S.Ct. 240 (1997); United States v. Frank,
8 F. Supp.2d 253, 282 n. 26 (S.D.N.Y. 1998). Applying Blockburger
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v. United States, 284 U.S. 299 (1932), the courts in Bailey and
Frank held that each statute -- kidnapping and domestic violence --
requires proof of a fact that the other statute does not require.
For example, kidnapping requires proof of "holding," while the
domestic violence statute does not, and the domestic violence
statute requires proof of an "intimate partner," a fact not
required for a kidnapping conviction. See Bailey, 112 F.3d at 766-
67; Frank, 8 F. Supp.2d at 282 n. 26. In light of these cases, we
cannot say that any district court error was "clear and obvious."
Jackson, 155 F.3d at 947.3 We are thus unable to conclude that the
district court plainly erred and we reject Sickinger's double
jeopardy challenge.4
B. Sentencing Guidelines.
1.
Sickinger argues that the district court erred in failing to
grant a one-level reduction for release within 24 hours under
U.S.S.G. § 2A4.1(b)(4)(C) and the Commentary thereto.5 Sickinger
claims that Walker was constructively released prior to 24 hours
because Walker was left alone at a convenience store on two
occasions and could have escaped. In the circumstances here, we
conclude that the district court did not err in failing to grant a
3
Because of the standard of review we use here, we do not
reach the ultimate question of whether we necessarily agree with
Bailey and Frank.
4
Sickinger argues in his reply brief that the error of trial
counsel caused him not to raise the double jeopardy argument in the
district court. Such an ineffective assistance claim could be
pursued under 28 U.S.C. § 2255.
5
Section 2A4.1(b)(4)(C) provides that "[i]f the victim was
released before twenty-four hours had elapsed, decrease by one
level." The Commentary states that "For the purposes of subsection
(b)(4)(C), 'released' includes allowing the victim to escape or
turning him over to law enforcement authorities without resis-
tance."
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one-level reduction. United States v. Frieberger, 28 F.3d 916, 918
(8th Cir. 1994) (district court's application of the Guidelines
reviewed de novo; factual findings reviewed for clear error). The
district court could reasonably have determined that in light of
the extraordinarily severe nature of Sickinger's abusive behavior
towards Walker and Wilson, Walker was not in a position - physical-
ly, mentally or emotionally - to flee. Although Sickinger's
control had slackened, he did not release or abandon his prisoner.
2.
Sickinger argues finally that the district court erred when it
increased the sentencing offense level by four points for permanent
or life-threatening injury to Wilson, the friend who was most
severely injured. We agree that the Sentencing Guidelines do not
specifically cover this aspect of the criminal affair and remand
for resentencing.
Sentencing Guideline § 2A4.1 specifies a base offense level of
24 for kidnapping, abduction and unlawful restraint. Subsection
(b)(2) states that the base offense level should be increased four
levels if "the victim sustained permanent or life-threatening
bodily injury," and two levels if "the victim sustained serious
bodily injury." It further specifies that a three level increase
is appropriate if the degree of the victim's injury falls between
serious and permanent or life-threatening. The district court
found Wilson's injuries permanent and increased the base offense
level by four, resulting in an offense level of 28 and a sentencing
range of 78 to 97 months.
As that term is used in § 2A4.1, "the victim" rather plainly
refers solely to the victim of the kidnapping, and not to persons
suffering collateral injury during the kidnapping who are not
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themselves abducted. In addition to the plain language of
subsection (b)(2), we find support for this conclusion in the other
subsections of § 2A4.1. See, e.g., § 2A4.1(b)(4)(A) and (B) ("If
the victim was not released before . . . days. . . .");
§ 2A4.1(b)(5) ("If the victim was sexually exploited. . . .");
§ 2A4.1(b)(6) ("If the victim is a minor. . . ."); § 2A4.1(c)(1)
("If the victim was killed. . . ."). Quite obviously the referenc-
es are to persons who have been abducted. Moreover, courts
addressing use of "the victim" in similar Guidelines provisions
have held that "increases based on injury to 'the victim' are
predicated upon the risk to a single intended victim, and do not
account for injuries and risks of injury to bystanders. . . ."
United States v. Malpeso, 115 F.3d 155, 169 (2d Cir. 1997)
(collecting cases from the Third, Fifth, Sixth and Ninth Circuits),
cert. denied, 118 S.Ct. 2366 (1998). While Wilson was certainly a
victim of Sickinger's criminal activities, she was not the
kidnapping victim.
The Government relies on the robbery Guidelines provision,
U.S.S.G. § 2B3.1, in support of its argument that injuries to third
parties may result in an increase in the offense level. This
reliance is misplaced. Unlike § 2A4.1, § 2B3.1 refers to injuries
sustained by "any victim." We have no trouble with those cases
that have interpreted "any victim" in § 2B3.1 to encompass, for
example, bystanders, customers, tellers and security guards injured
during the course of a bank robbery even though the bank and not
the individuals is robbed. See, e.g., United States v. Molina, 106
F.3d 1118 (2d Cir.), cert. denied, 520 U.S. 1247 (1997); United
States v. Muhammad, 948 F.3d 1449 (6th Cir. 1991). But we join
those courts that have found a meaningful distinction between the
"any victim" language in § 2B3.1 and the "the victim" language
found in other Guidelines provisions. See, e.g., Malpeso, 115 F.3d
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at 169-70; United States v. Graves, 908 F.2d 528, 530-31 (9th Cir.
1990).
Notwithstanding our conclusion that § 2A4.1 does not specify
an upward adjustment for injuries to the bystander, Wilson, it is
our view the district court may, on resentencing, consider whether
an upward departure is appropriate under authority found in
U.S.S.G. § 5K2.0 based on Wilson's injuries.6 See, e.g., Malpeso,
115 F.3d at 170; United States v. Moore, 997 F.2d 30, 35-36 (5th
Cir. 1993).
Presumably, if it departs upward, the district court will make
a careful reevaluation of the physical injury that occurred and
will attempt to harmonize any departure with other provisions of
the Guidelines.
For the reasons stated, the judgment is vacated and the case
remanded to the district court for resentencing consistent with
this opinion.
6
We have considered the desirability of limiting further
proceedings to matters germane to the issue on which a reversal is
based, in order to avoid unjustified reconsideration of wholly
unrelated matters. See United States v. Cornelius, 968 F.2d 703
(8th Cir. 1992). Where one basis for an enhanced sentence is ruled
legally impermissible, however, this occasionally allows use of
another ground for enhancement. See, e.g., United States v. Jacobs,
136 F.3d 1187 (8th Cir. 1998) (Guideline enhancement allowed after
statutory firearm enhancement fails). In a case like this one we
see no principled basis for blinding the sentencing judge to issues
that are intimately related to those requiring a new sentence.
Even though we have ruled that Wilson's injuries were not the
injuries to a kidnapping victim that are dealt with in the
kidnapping Guideline, we are satisfied that sound procedure under
Guideline Sentencing would permit the resentencing judge to
reconsider the injuries occurring during the course of the crime
and to determine whether they should be taken into account in some
manner in reimposing sentence.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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