United States v. Anderson

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 92-7646
__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DUANE ALBERT ANDERSON,

Defendant-Appellant.

* * * * * *

__________________

No. 92-7733
__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARK CHARLES BARNETT, a/k/a
Neil Thomas Hanley,

Defendant-Appellant.

______________________________________________

Appeals from the United States District Court for the
Southern District of Mississippi
______________________________________________
(October 14, 1993)
Before GARWOOD, DAVIS and SMITH, Circuit Judges.

GARWOOD, Circuit Judge:

These appeals, consolidated for purposes of oral argument,

arise from the kidnapping and subsequent sexual abuse of Deanna

Marie Caveny (Caveny). Defendants-appellants Duane Albert Anderson

(Anderson) and Mark Charles Barnett, a/k/a Neil Thomas Hanley

(Barnett), challenge the sentences imposed following the entry of

their pleas of guilty to the federal kidnapping offense. Anderson

contends that the district court erred in calculating his base

offense level for kidnapping by allegedly counting the kidnapping

offense twice, first by relying on the kidnapping guideline, and

second by referring to the sexual abuse guideline and enhancing

that base offense level for abduction of the sexual abuse victim.

Barnett also challenges the reference to the sexual abuse guideline

in calculating his kidnapping offense level, arguing, inter alia,

that the sexual abuse committed was a state, and not federal,

offense and therefore could not be "another offense" under the

federal sentencing guidelines. Finally, defendants assert that the

district court abused its discretion in departing upward from the

resulting guideline range on the grounds that Caveny suffered

extreme psychological injury and that the defendants' actions were

unusually heinous and cruel. Finding no reversible error and no

abuse of discretion, we affirm.

Facts and Proceedings Below

On April 7, 1992, Anderson and Barnett forcibly abducted

Caveny, a 29-year-old mathematics professor, from the parking lot

of a laundromat near her apartment in Charleston, South Carolina.

2
Anderson seized her and attempted to force her into her automobile,

a maroon 1981 Chevrolet Citation; Barnett assisted him by opening

the door of the vehicle. Following a brief struggle, Caveny

surrendered her car keys to Anderson. After the defendants subdued

Caveny and got into the car with her, Barnett drove to a nearby

shopping center parking lot where he used Caveny's automatic teller

card to obtain approximately $200 from an automatic teller machine.

With Barnett driving and Anderson in the back seat with

Caveny, the trio traveled toward Alabama. Several hours after the

abduction, Anderson raped Caveny in the rear seat of her car.

During the drive to Alabama, Anderson raped her two or three

additional times. Anderson also subjected Caveny to anal sex and

demanded that she perform oral sex upon him. Over the course of

the kidnapping ordeal, Anderson and Barnett threatened to kill

Caveny and told her about other people they had killed or planned

to kill; they proposed getting rid of any evidence against them by

burning her body and her car.

During the night, the defendants stopped at a motel in

Bessemer, Alabama. Barnett registered in the name of Neil Hanley.

The manager of the hotel remembered that Barnett did not know the

license number of the vehicle he was driving and that he went

outside to the car to obtain that information. Barnett told the

manager there would be two persons in the room, but the manager saw

only Barnett. In the motel room, Anderson raped Caveny at least

twice. Caveny attempted to get help by leaving messages torn from

3
soap wrappers in the motel room.1

On the morning of April 8, the defendants drove Caveny to

Meridian, Mississippi. When Barnett stopped at a convenience store

to buy food, Caveny was able to get out of the car and obtain help

at a nearby store. According to a presentence investigation report

(PSI) prepared by the United States Probation Office, Anderson

"followed" her from the car and was subsequently arrested.2

Barnett drove off in Caveny's car and was not apprehended until

April 10, 1992, when he was arrested for trespassing by the

Orlando, Florida Police Department, and a background check revealed

that Barnett was wanted by federal authorities in connection with

the Caveny kidnapping.

A grand jury indicted Anderson and Barnett in a two-count

indictment charging that defendants (1) kidnapped Caveny and

intentionally transported her in interstate commerce from

Charleston, South Carolina, to Meridian, Mississippi, in violation

of 18 U.S.C. § 1201(a)(1); and (2) unlawfully transported a stolen

motor vehicle in interstate commerce, in violation of 18 U.S.C. §

2312. Anderson and Barnett were also charged with aiding and

1
During the stay in the motel room, Caveny was allowed to
shower. Using the wrapper from a bar of soap, she tore the
printed letters H, E, L, and P and arranged these letters behind
the toilet, hoping someone who could aid her would find them.
Caveny also concealed a pair of bloody underwear in the bed
clothing. Federal agents later recovered both the letters and
the underwear.
2
A dispute arose at Anderson's sentencing hearing over
whether, when Anderson "followed" Caveny from the vehicle, he was
aiding Caveny in leaving the car and calling the police or
chasing her to prevent her escape. Anderson makes no complaint
on appeal respecting any matter related to this dispute.

4
abetting each other in the commission of both charged offenses, in

violation of 18 U.S.C. § 2. Both defendants pleaded guilty to the

kidnapping count in return for dismissal of the motor vehicle

charge.

PSIs were prepared for Anderson and Barnett, using the 1991

edition of the Sentencing Guidelines. The PSIs began calculations

of the defendants' offense levels with the kidnapping guideline,

U.S.S.G. § 2A4.1, which carries a base offense level of 24.

U.S.S.G. § 2A4.1(a). The Sentencing Commission recognized the

possibility that a kidnapping victim might be sexually exploited

during the kidnapping offense and provided a 3-level increase, to

level 27, in such an event. U.S.S.G. § 2A4.1(b)(5). The

kidnapping guideline goes on to further provide, however, that if

"another offense" (unspecified by the guidelines) was committed

during the kidnapping, the sentencing court should increase the

offense level to the level applicable to the other offense if the

resulting offense level is higher. U.S.S.G. § 2A4.1(b)(7).3 The

3
Section 2A4.1(b)(7) provides:

"[I]f another offense was committed during the
kidnapping, abduction, or unlawful restraint, increase
to

(A) the offense level from the Chapter Two
offense guideline applicable to that other offense
if such offense guideline includes an adjustment
for kidnapping, abduction, or unlawful restraint,
or otherwise takes such conduct into account; or

(B) 4 plus the offense level from the offense
guideline applicable to that other offense,
but in no event greater than level 43, in any
other case,

if the resulting offense level is greater than that

5
PSIs then referred to section 2A3.1, the guideline for criminal

sexual abuse. This section establishes a base offense level of 27

and allows an enhancement of 4 levels, to level 31, if the victim

of the sexual abuse was abducted. U.S.S.G. § 2A3.1(b)(5). The

PSIs calculated the defendants' offense levels to be 31, the level

reached by reference to the sexual abuse guideline, because that

level was greater than the level 27 resulting under the kidnapping

guideline. The PSIs credited both defendants with acceptance of

responsibility, pursuant to U.S.S.G. § 3E1.1(a), and bestowed on

them a 2-level reduction, yielding net total offense levels for

each of 29. Finally, the PSIs noted that ample justification

existed for the district court to make an upward departure, based

on circumstances not otherwise taken into account by the

guidelines, such as the psychological injury to Caveny and the

defendants' extreme conduct. U.S.S.G. §§ 5K2.0, 5K2.3, and 5K2.8.

Anderson and Barnett both objected to their PSIs on the ground

that the enhancement of the sexual abuse guideline for abduction,

when they were convicted of abduction, was essentially a double

counting of the kidnapping offense and therefore violated the

prohibition against double jeopardy.

The district court denied defendants' objections and sentenced

them according to the recommendations of the PSIs, using the

offense levels of 29 reached by reference to the sexual abuse

guideline, with a credit for acceptance of responsibility. The

court departed upward by 4 levels, for total offense levels of 33,

determined above."

6
on the bases of the extreme psychological harm sustained by Caveny

and the extreme conduct exhibited by Anderson and Barnett.

Anderson's criminal history category of III, with an offense

level of 33, yielded a sentencing range of 168 to 210 months. The

district court sentenced him to 200 months imprisonment, followed

by 5 years supervised release. Barnett, with a criminal history

category of V and an offense level of 33, faced a sentencing range

of 210 to 262 months. He received a term of 240 months

imprisonment and 5 years supervised release.

On appeal, Anderson and Barnett challenge the calculation of

their offense levels and the district court's upward departure.

Discussion

I. Application of the Kidnapping Guideline

We will uphold a sentence imposed pursuant to the guidelines

unless it is imposed in violation of law, is the result of

incorrect application of the guidelines, or is an unreasonable

departure from the applicable guideline range. 18 U.S.C. §

3742(e); United States v. Buenrostro, 868 F.2d 135, 139 (5th Cir.

1989), cert. denied, 110 S.Ct. 1957 (1990). We review

determinations of legal principles de novo and factual findings for

clear error. United States v. Mourning, 914 F.2d 699, 704 (5th

Cir. 1990).

A. Anderson's claims

In sentencing the defendants, the district court began with

the kidnapping guideline, section 2A4.1, with its base offense

level of 24. Next, as directed by section 2A4.1(b)(7), the court

referred to the criminal sexual abuse guideline, section 2A3.1,

7
which carries a base offense level of 27. Finally, the court

enhanced the sexual abuse offense level for abduction of the

victim, reaching an offense level (before any departure) of 31.

Anderson does not argue that the district court improperly

turned to section 2A3.1 from section 2A4.1(b)(7). Instead, he

complains that it was error for the district court to enhance the

sexual abuse base offense level for the abduction of the victim,

reasoning that the court already took the kidnapping offense into

consideration when it began its calculations with section 2A4.1,

the kidnapping guideline. Of the 3 offense levels considered,4 he

claims that the original level 24 and the final level 31 were each

punishment for the kidnapping offense. This, he contends,

constitutes impermissible double counting. Anderson maintains that

the proper result would be to compare the base offense levels for

the kidnapping and sexual abuse guidelines and choose the higher,

without enhancing those levels for specific offense

characteristics. Under this theory, Anderson would have a base

offense level of 27, the base offense level for criminal sexual

abuse, as that level is higher than the base offense level of 24

for kidnapping.

Anderson ignores the clear direction of the guidelines, which

expressly provide that an entire guideline shall be applied upon

reference from another guideline:

4
The 3 offense levels alluded to by Anderson are (1) level
24, the base offense level under the kidnapping guideline; (2)
level 27, the base offense level under the sexual abuse
guideline; and (3) level 31, the offense level reached after
enhancement of the sexual abuse offense level for abduction of
the victim.

8
 "Unless otherwise expressly indicated, a reference to
another guideline, or an instruction to apply another
guideline, refers to the entire guideline, i.e., the base
offense level plus all applicable specific offense
characteristics and cross references." U.S.S.G § 1B1.5.
(Emphasis added).

The commentary to section 1B1.5 directs the court to use the

greater final offense level when directed to apply another

guideline if it results in a greater offense level, even to the

point of including any applicable Chapter Three adjustments. Id.,

comment. (n.3). See also United States v. Galloway, 963 F.2d 1388,

1392 (10th Cir.), cert. denied, 113 S.Ct. 418 (1992) (enhancement

of criminal sexual abuse offense level for abduction of victim did

not constitute cumulative punishment of defendant convicted of, and

sentenced for, kidnapping).

Prior decisions of this Circuit and others demonstrate that

the district court followed the correct procedure in calculating

Anderson's offense level under the kidnapping guideline. We

approved the application of the "other offense" guideline pursuant

to the section-switching provision of the kidnapping guideline in

United States v. Jackson, 978 F.2d 903, 913 (5th Cir. 1992), cert.

denied, 113 S.Ct. 2429 (1993). In that case, the district court

sentenced the defendants, who were convicted of kidnapping, under

the guideline for murder following the direction of section

2A4.1(b)(5),5 which provided that if the result of applying the

kidnapping guideline were less than that resulting from application

of another offense, the guideline for the other offense should be

5
The defendants in Jackson were sentenced under the 1990
version of the guidelines, in which the provision now contained
in section 2A4.1(b)(7) was included in section 2A4.1(b)(5).

9
applied. Jackson, 978 F.2d at 913. See also United States v.

Rocha, 916 F.2d 219, 242-244 (5th Cir. 1990), cert. denied, 111

S.Ct. 2057 (1991) (affirming enhancement of kidnapping guideline on

basis of extortion); United States v. DePew, 932 F.2d 324, 329 (4th

Cir.), cert. denied, 112 S.Ct. 210 (1991) (affirming use of murder

offense level).

Although we have not previously applied section 2A4.1(b)(7) in

the context of criminal sexual abuse, the Third and Tenth Circuits

have affirmed the use of section 2A3.1 to enhance a sentence for

kidnapping. See United States v. Pollard, 986 F.2d 44, 47 (3rd

Cir.), cert. denied, 113 S.Ct. 2457 (1993); United States v.

Galloway, 963 F.2d at 1391-1392. These decisions demonstrate the

correctness of the district court's actions in calculating the

defendants' total offense levels.

B. Barnett's claims

Barnett contends that the district court erred in not making

a factual determination that his actions constituted the crime of

sexual abuse before enhancing the kidnapping offense for the sexual

abuse.6 He proposes two different reasons why he should not be

6
In his briefs on appeal, Barnett does not oppose the
technical application of section 2A4.1(b)(7), with its reference
to section 2A3.1. At oral argument, however, counsel for Barnett
challenged the district court's use of section 2A4.1(b)(7), and
by reference section 2A3.1, on the ground that an enhancement for
sexual exploitation of a kidnapping victim is already provided in
section 2A4.1(b)(5). If the criminal sexual abuse guideline
would always provide a higher offense level than that reached
under the kidnapping guideline, he argues, the three-level
enhancement of section 2A4.1(b)(5) would be superfluous. This
argument, even had it been timely raised, is unavailing. The
guidelines expressly contemplate that the effect of sexual abuse
of a kidnapping victim is not limited to the three-level increase
provided by § 2A4.1(b)(5), but could be calculated as "another

10
held responsible for the sexual abuse.

First, in his original brief, as before the district court,

Barnett focuses on his contention that he did not personally commit

any sexual offense, and that it was his codefendant Anderson who

sexually assaulted Caveny. Barnett argues that he only drove the

car, and that, because he was driving through heavy fog with the

car radio turned up, he was "virtually unaware" of what was

transpiring between Anderson and Caveny in the back seat of the

car. He also claims that he was in the shower when Anderson

sexually assaulted Caveny in the motel room. As a result, he

maintains, he could be held accountable for auto theft but not for

sexual abuse.

This argument lacks merit. The district court sentenced

Barnett for the kidnapping of Caveny, not for the sexual abuse

which occurred.7 The court considered the effect of the sexual

offense" under section 2A4.1(b)(7) by reference to section 2A3.1.
The background commentary explaining section 2A4.1(b)(7) uses
criminal sexual abuse, section 2A3.1, as an example of "another
offense" for purposes of referral to another guideline. U.S.S.G.
§ 2A4.1, comment. (backg'd) (1991).
In addition, Barnett's concern, that section 2A4.1(b)(5) is
made superfluous if section 2A4.1(b)(7) provides enhancement for
sexual abuse of a kidnapping victim, is misplaced. The base
offense level of 27 provided in section 2A3.1 governs sexual
conduct in violation of 18 U.S.C. §§ 2241 and 2242. Other sexual
offenses which could be the object of section 2A4.1(b)(7)'s
reference to "another offense" pertain to guidelines with much
lower offense levels than section 2A4.1. See, e.g., U.S.S.G. §
2A3.2 (criminal sexual abuse of a minor, based on violation of 18
U.S.C. § 2243(a): base offense level 15); U.S.S.G. § 2A3.3
(criminal sexual abuse of a ward, based on violation of 18 U.S.C.
§ 2243(b): base offense level 9); U.S.S.G. § 2A3.4 (abusive
sexual contact, based on violation of 18 U.S.C. §
2244(a)(1),(2),(3): base offense levels of 16, 12, 10).
7
That Barnett may have admitted to aiding and abetting
Anderson's sexual offenses does not change the fact that the

11
abuse only as a specific offense characteristic of the kidnapping

offense. Specific offense characteristics, unless otherwise

specified, are determined on the basis of relevant conduct and are

not limited to stipulations made by a defendant entering a plea

bargain. U.S.S.G. § 1B1.3(a). There is ample evidence in the

record on appeal to support the district court's treatment of the

sexual abuse of Caveny as conduct relevant to Barnett's kidnapping

offense.8

Barnett was charged with, and pleaded guilty to, aiding and

abetting Anderson in the kidnapping of Caveny. At his plea

hearing, the government presented the factual basis for the plea.

This summary of the events underlying the charges brought against

Barnett contained references to the sexual assaults of Caveny.

Barnett agreed with the entire factual scheme as presented by the

government and assured the district court, upon close questioning,

that he understood the implications of the aiding and abetting

charge against him and that he did not contest it.9 Although it is

district court applied the kidnapping guideline, not the criminal
sexual abuse guideline. The court's reference to section 2A3.1
was at the direction of, and in application of, section
2A4.1(b)(7).
8
The district court was clearly not required to credit
Barnett's claim that he was unaware of what was going on over the
course of two days between the other two occupants of the same
vehicle and motel room when that activity involved at least seven
sexual assaults.
9
The following discussion occurred at the plea hearing:

"Q. [By the court] Now, you are also charged with the
violation of Section 2 of Title 18. This is the aider
and abetter statute. And it says that whoever commits
an offense against the United States or aids, abets,
counsels, demands, induces or procures it's [sic]

12
undisputed that Barnett did not personally sexually abuse Caveny

during the kidnapping offense, he is liable as an aider and abetter

for the relevant conduct of Anderson. The district court could

properly consider the effect of Anderson's sexual offenses in

sentencing Barnett.

Barnett raised his second challenge to the calculation of his

offense level in his reply brief in this Court. He claims that

enhancement of his kidnapping offense on the basis of the sexual

abuse of Caveny was improper because he could not have been

convicted of the federal crime of sexual abuse or aggravated sexual

abuse.10 This challenge is untimely. We will not consider issues

raised for the first time in an appellant's reply brief. United

States v. Clinical Leasing Service, Inc., 982 F.2d 900, 902 n. 4

(5th Cir. 1992). Because this issue is not properly before us, we

commission is punishable as a principal. . . . Do you
understand what the aider and abetter statute provides?
A. Yes, I do, sir.
Q. And do you understand how it figures into this
matter?
A. Yes, I do.
Q. It says that if you aided and abetted someone else
who was in the midst of -- who was in the course of
committing the crime charged in Count 1 (the kidnapping
charge), that makes you guilty. Do you understand
that?
A. Yes, I do.
. . . .
Q. It means that you are not there by accident or you
didn't do some acts that lead to the commission of the
crime in assisting somebody by accident or mistake or
misunderstanding, but that you knowingly did something
towards the commission of a crime. Do you understand
that?
A. Yes."
10
Although this argument applies equally to Anderson, he has
not raised it either before the district court or on appeal and
has thus waived it.

13
do not consider the question of whether there was sufficient

evidence for the district court to conclude that the sexual

assaults of Caveny constituted an offense under the state laws of

South Carolina or Alabama, the states in which the sexual abuse

occurred. We observe that neither defendant has ever denied that

the sexual abuse occurred, nor did they argue before the district

court that Anderson's conduct did not amount to a sexual offense.

Nor have either ever contended, here or below, that Anderson's

conduct did not amount to rape or other similar sexual offense

under the laws of South Carolina or Alabama.

Even were we to address this issue, we would not agree with

Barnett's position. Barnett's reading of the criminal statute is

correct,11 but he overlooks the interpretation that courts,

including our own, have given section 2A4.1(b)(7)'s reference to

"another offense," an interpretation which is confirmed by recently

proposed amendments to section 2A4.1.

The guidelines do not define "another offense" as used in

section 2A4.1 and other section-switching guidelines. Nothing in

the commentary to those sections suggests that the term is limited

to violations of federal law. The Sentencing Commission's May 8,

1993, proposed amendment to the commentary to section 2A4.1

confirms that it intended the language of section 2A4.1(b)(7) to

11
For sexual abuse to constitute a federal offense, it must be
committed "in the special maritime and territorial jurisdiction
of the United States or in a Federal prison . . . ." 18 U.S.C.
§§ 2241 (aggravated sexual abuse) and 2242 (sexual abuse).
Because Anderson's sexual abuse of Caveny did not occur within
federal jurisdiction, neither Anderson nor Barnett could have
been charged with criminal sexual abuse in a federal court.

14
include state and local, as well as federal, offenses. The

amendment, scheduled to be effective November 1, 1993, and as of

this writing under review by Congress, replaces the commentary's

reference to "another offense" with the phrase "another federal,

state, or local offense that results in a greater offense level

(subsections (b)(7) and (c)(1))." 58 Fed.Reg. 27150 (1993)

(proposed May 8, 1993). The Commission explains that "[t]his

amendment clarifies that the references to `other offense' and

`another offense' in Section 2A4.1(b)(7) . . . refer to federal,

state, or local offenses." Id.

Were this amendment already in effect, it would be binding.

"[C]ommentary in the Guidelines Manual that interprets or explains

a guideline is authoritative unless it violates the Constitution or

a federal statute, or is inconsistent with, or a plainly erroneous

reading of, that guideline." Stinson v. United States, 113 S.Ct.

1913, 1915 (1993). Further, the amendment would apply to Barnett's

sentence, even though he was sentenced under an earlier version of

the guidelines. Amendments to the guidelines and their commentary

intended only to clarify, rather than effect substantive changes,

may be considered even if not effective at the time of the

commission of the offense or at the time of sentencing. U.S.S.G.

§ 1B1.11(b)(2) (1992);12 United States v. Evbuomwan, 992 F.2d 70,

12
Section 1.B.11(b)(2) provides in relevant part that ". . .
if a court applies an earlier edition of the Guidelines Manual,
the Court shall consider subsequent amendments, to the extent
that such amendments are clarifying rather than substantive
changes." Defendants were sentenced in September and October
1992 under the 1991 version of the guidelines. Although section
1B1.11 was not added until the November 1, 1992, version,
clarifying amendments may still be applied in cases decided under

15
74 n.1 (5th Cir. 1993); United States v. Aguilera-Zapata, 901 F.2d

1209, 1213 (5th Cir. 1990).

Although the amendment is not controlling, we consider it as

evidence of the Sentencing Commission's intent behind section

2A4.1(b)(7). See United States v. Byrd, 995 F.2d 536, 539-540 n.3

(4th Cir. 1993) (addressing proposed 1993 amendments to commentary

to U.S.S.G. § 4A1.2).

Moreover, the clarification proposed by the Commission is

consistent with previous applications of section 2A4.1(b)(7) in

which courts enhanced the kidnapping guideline by application of

other offense guidelines, without consideration of the federal

jurisdictional grounds for the other offense. In United States v.

Jackson, we upheld the application of the guideline for murder in

sentencing a defendant convicted of kidnapping without discussion

of whether a basis for federal jurisdiction over the murder

existed.13 Jackson, 978 F.2d at 913-914. In Jackson, we cited

Galloway with approval. Galloway concerned the sexual abuse

guideline, but the issue of the lack of federal jurisdiction

the 1991 version, because 1B1.11 was merely a reiteration of the
Sentencing Commission's position on clarifying amendments. See
United States v. Aguilera-Zapata, 901 F.2d 1209, 1213-1214 (5th
Cir. 1990) (applying 1989 amendment retroactively to sentencing
for offense committed prior to effective date on grounds that
amendment was intended only to clarify guideline application
note) (relying on United States v. White, 875 F.2d 427, 433 (4th
Cir. 1989) (opinion by Judge Wilkins, Chairman of the United
States Sentencing Commission)).
13
Unlike the sexual abuse in the present case, the murder in
Jackson was a federal offense because it occurred in the course
of a kidnapping. 18 U.S.C. § 1111. This was not, however, the
basis for our allowing the application of the murder guideline in
sentencing the Jackson defendants.

16
apparently was not raised. Neither the court in Galloway nor our

court in Jackson expressly addressed the possibility that the lack

of federal jurisdiction over the "other offense" had any bearing on

the application of the section-switching provision of section

2A4.1(b)(7).14

In United States v. Perez, 897 F.2d 751 (5th Cir.), cert.

denied, 111 S.Ct. 117 (1990), we approved an upwards adjustment

based on application of the aggravated assault guideline for a

defendant who was convicted of several firearms possession

offenses. U.S.S.G. § 2K2.1(c)(1), the applicable firearms

guideline, allows application of other offense guidelines where a

defendant used or possessed a firearm in connection with the

commission of another offense. In Perez, we relied on the

commentary to section 2K2.1(c)(1) (1990) which expressly

contemplated that a sentencing court would use state offenses to

enhance a firearms offense level. This commentary was omitted in

14
The Third Circuit has rejected a contention similar to
Barnett's on the ground that federal jurisdiction over offense
conduct serves to allow the sentencing court to consider all
relevant conduct without regard to jurisdictional basis. United
States v. Pollard, 986 F.2d 44, 47 (3rd Cir.), cert. denied, 113
S.Ct. 2457 (1993). In Pollard, the defendant lured young boys
from New York City to an apartment in New Jersey where he
sexually assaulted them. As in the present case, the district
court sentenced the defendant under section 2A4.1, calculating
the defendant's offense level by reference to section 2A3.1. The
defendant argued that the reference to the criminal sexual abuse
section was improper because he could not have been convicted in
federal court of that crime. The Third Circuit disagreed,
holding that once a jurisdictional basis had been established
over the kidnappings, all relevant conduct could be considered in
calculating his sentence. 986 F.2d at 47. Treating the sexual
abuse as relevant conduct, the court stated that it made "no
difference" that the district court lacked jurisdiction to try
him for it. Id

17
the 1991 guidelines under which Barnett was sentenced. However,

there is nothing in the wording, structure, context, or history of

the 1991 amendment (which wholly deleted sections 2K2.1, 2K2.2, and

2K2.3 and their commentary and replaced them with a new section

2K2.1 and commentary) to suggest that the omission was intended as

a repudiation of this aspect of the former commentary (the new

commentary to the new section 2K2.1 simply does not address this

matter). See 1991 Guidelines Manual § 2K2.1 and commentary and

Appendix C, amendment No. 374. That this omission was not an

implied repudiation of that aspect of the commentary also seems

evident in the 1993 proposed amendments to the guidelines.

Submitted with the proposed 1993 amendment to the section 2A4.1

commentary are similar proposed changes to the section 2K2.1

commentary. These changes will clarify that "another offense" of

section 2K2.1 refers to federal, state, and local offenses. See 58

Fed.Reg. 27150 (1993) (proposed May 8, 1993).

The district court did not err in considering the sexual abuse

as "another offense" for purposes of calculating Barnett's offense

level under the kidnapping guideline.

II. Upward Departure

When the district court departs from the guideline range, the

departure must be reasonable, and the court must offer reasons

justifying the departure in terms of the policies underlying the

sentencing guidelines. United States v. Mejia-Orosco, 867 F.2d

216, 221 (5th Cir.), cert. denied, 109 S.Ct. 3257 (1989). A

departure is within the discretion of the sentencing court. United

States v. Ihegworo, 959 F.2d 26, 28 (5th Cir. 1992). A departure

18
based on circumstances already adequately considered by the

guidelines is an incorrect application of the guidelines. Williams

v. United States, 112 S.Ct. 1112, 1119 (1992).

In sentencing Anderson and Barnett, the district court

departed upward, raising the defendants' total offense levels by

four points.15 Grounds for the court's departure include: (1) that

there existed circumstances not already taken into consideration by

the guidelines; (2) that Caveny had suffered extreme psychological

harm; and (3) that the defendants had exhibited unusually heinous

conduct.

The district court's stated reasons for departure are as

follows:

"[B]ased on Guideline Section[s] 5K2.0, 5K2.3 and 5K2.8,
the Court finds that an upward departure in this case is
called for. The Court notes that there exist[]
aggravating or mitigating circumstances of a kind or a
degree not adequately taken into consideration by the
sentencing commission in formulating the guidelines. The
victim has suffered extreme psychological injury. Her
behavior patterns have been altered and the victim
suffered gratuitous infliction of injury and prolonged
humiliation. Additionally, the Court is convinced that
the guidelines herein do not take into account the number
and nature of the repeated sexual abuses imposed upon the
victim here. Therefore, a four level upward departure
will be made."16

The guidelines allow departures from applicable sentencing

ranges

15
Defendants challenge the grounds for, not the extent of, the
departure. We note that the sentences imposed by the district
court were well within the statutory range of punishment for
kidnapping offenses, which is "imprisonment for any term of years
or for life." 18 U.S.C. § 1201(a).
16
The quoted language is taken from the transcript of
Barnett's sentencing hearing. The district court gave the same
reasons for departing upward in sentencing Anderson.

19
 "[u]nder 18 U.S.C. § 3553(b) . . . if the [sentencing]
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.'"
U.S.S.G. § 5K2.0, p.s.

Anderson asserts that the guidelines already take his conduct SQ

kidnapping and sexual abuse SQ into consideration and that

therefore the district court should not have departed from the

guideline range. The district court found, however, that the

guidelines had not adequately taken into consideration either the

number (at least seven) or the nature (including forced anal and

oral sex) of the sexual abuse. This finding, which we hold not to

be clearly erroneous, supports the court's initial decision to

depart under section 5K2.0.

In addition to the general grounds of section 5K2.0, the

district court found cause to depart upward in the psychological

harm suffered by Caveny as a result of her ordeal. The guidelines

allow upward departure "[i]f a victim or victims suffered

psychological injury much more serious than that normally resulting

from commission of the offense . . . ." U.S.S.G. § 5K2.3, p.s. In

such an instance, "[t]he extent of the increase ordinarily should

depend on the severity of the psychological injury and the extent

to which the injury was intended or knowingly risked." Id. A

psychological injury is sufficiently severe where there exists (1)

a substantial impairment of the intellectual, psychological,

emotional, or behavioral functioning of a victim, (2) which is of

an extended or continuous duration, and (3) which manifests itself

by physical or psychological symptoms or by changes in behavior

20
patterns. Id.

In determining the psychological effect on Caveny, the

district court relied on a letter, quoted in its entirety in the

victim impact section of the PSIs prepared for defendants'

sentencings, in which Caveny described her ordeal and its effects

on her life. Caveny feared for her life throughout the kidnapping.

Anderson and Barnett threatened to kill her and told her stories of

other people they had killed or planned to kill. They made clear

to her that they needed to dispose of her because she was the only

evidence against them. Anderson told Caveny that they would burn

her car and her body to destroy any evidence. After her escape and

before Barnett was apprehended by the Florida police, Caveny feared

that Barnett would know that she had "snitched" to the police and

would try to find her to seek revenge on her and her family.

Anderson had told her that Barnett was planning to return to

Florida to "`take care of someone' who had `snitched on them.'"

According to her letter, the kidnapping had a profound effect on

Caveny's daily life. Caveny and her husband have moved to a new

apartment. She is reluctant to leave the apartment by herself or

to be alone at home; she checks every room and closet in her

apartment and experiences fears of people hiding in the trees near

her apartment. She no longer feels safe, even within her own

apartment; she carries mace with her at all times and has installed

extra locks on her windows and doors. She has lost her feelings of

confidence, trust, and independence. She fears the time when

Anderson and Barnett will eventually be released from prison.

Anderson and Barnett claim that any psychological injury

21
suffered by Caveny did not meet the section 5K2.3 standard and was

insufficient to support an upwards departure. In addition, they

contend that Caveny's letter is insufficient evidence of the

psychological effects of the kidnapping ordeal and that departure

was unwarranted because the government failed to produce testimony

from a counselor or psychologist that Caveny's condition requires

medication or therapy or otherwise meets the section 5K2.3

standard.

Anderson relies on United States v. Fawbush, 946 F.2d 584, 586

(8th Cir. 1991). In that case, the Eighth Circuit found

insufficient to support a section 5K2.3 departure the

unsubstantiated opinion of the probation officer and the fact that

the victim was receiving counseling. The court acknowledged,

however, that it might have reached a different result if the

district court's reasons had been substantiated. Fawbush, 946 F.2d

at 586. In a similar vein, our court held in United States v.

Lara, 975 F.2d 1120, 1127-1128 (5th Cir. 1992), that a district

court's upward departure under section 5K2.3 was not justified by

the findings of a PSI which contained only conclusory statements

concerning psychological harm to the victim.

In our case, however, unlike either Fawbush or Lara, the

district court had before it a detailed letter from the victim

describing the events in question and their significant effects on

her life. This letter demonstrates substantial changes in Caveny's

psychological and behavioral functioning. None of this was

rebutted. While some testimony by a counselor or other expert in

psychology would certainly be of value in determining this issue,

22
such evidence is not always a prerequisite for a section 5K2.3

departure. See, e.g., United States v. Miller, 993 F.2d 16, 21

(2nd Cir. 1993) (affirming section 5K2.3 departure without

requiring expert testimony).

Acknowledging that this particular issue presents a very close

question, we ultimately conclude that the district court acted

within its discretion in departing upward on the basis of the

psychological injury. We are supported in this determination by

the last ground for departure, the heinousness of the defendants'

conduct, which provides strong grounds for departure.

The guidelines permit an upward departure "[i]f the

defendant's conduct was unusually heinous, cruel, brutal, or

degrading to the victim . . . . Examples of extreme conduct

include torture of a victim, gratuitous infliction of injury, or

prolonging of pain or humiliation." U.S.S.G. § 5K2.8, p.s. The

events in question provide such an example of unusually heinous and

degrading conduct. Over the course of two days, Caveny was

repeatedly raped and forced to engage in oral and anal sex, which

is unusually cruel and degrading. The defendants threatened to

kill her and described to her, not only tales of others they had

killed, but also what they would do with her to destroy any

evidence. The district court clearly did not abuse its discretion

in determining that the defendants had exhibited unusually heinous

and degrading conduct under section 5K2.8.

Although not always the case, here the heinousness of the

conduct is in some respects the other side of the same coin as the

victim's psychological harm, and the outrageousness of the

23
defendants' actions in turn supports the district court's departure

on the psychological injury grounds. One may infer some

psychological harm to Caveny from the conduct of the defendants;

and, the repeated rapes and threats of death give concrete

substance to Caveny's unrebutted claims of psychological injury.

In these circumstances, because the defendants' conduct was extreme

for sexual abuse offenses, the district court could conclude that

Caveny's psychological harm was also greater than that suffered by

most victims of sexual abuse.17

The district court was clearly within its discretion in

departing from the guidelines on the basis of the defendants'

extreme conduct.

Conclusion

The district court properly considered the sexual abuse of

Caveny in sentencing Anderson and Barnett. The court correctly

applied the kidnapping guideline and properly enhanced that

section's offense level by reference to the guideline for criminal

sexual abuse. The four-level upward departure was reasonable, and

the district court's justifications for the departure were well-

founded by the defendants' conduct and the psychological harm

inflicted on their victim.

The convictions and sentences of Anderson and Barnett are

AFFIRMED.

17
In deciding this issue, we measure the psychological harm to
Caveny against that suffered by victims of "ordinary" sexual
abuse crimes; our standard is not what psychological injury would
be considered the normal result of extreme sexual abuse and
related conduct such as that exhibited by defendants.

24