United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 26, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10427
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL SHANE PHIPPS;
DEAN RAYBURN GILLEY,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Texas
Before JOLLY, DUHÉ, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
In this criminal appeal, Michael Shane Phipps and Dean Rayburn Gilley challenge their
sentences imposed on remand, arguing that the district court impermissibly upwardly departed at
resentencing by ordering that their kidnaping and carjacking sentences run consecutively. For the
following reasons, we hold that the district court was free to reconsider an upward departure through
consecutive sentencing on remand and that, on the facts presented, such upward departure was both
warranted by the existence of aggravating factors and reasonable in degree. We therefore affirm the
1
district court’s judgment sentencing Phipps and Gilley each to a term of imprisonment of 789
months, five years of supervised release, restitution in the amount of $ 7, 785.69, and a $ 400 special
assessment.
FACTUAL AND PROCEDURAL BACKGROUND
On May 16, 2001, a grand jury charged Phipps and Gilley in a multiple-count superseding
indictment.1 Count 1 of the indictment charged the defendants with conspiracy to commit kidnaping,
in violation of 18 U.S.C. §§ 1201 (a) (1) and (c). Count 2 charged Phipps and Gilley with kidnaping
and aiding and abetting, in violation of 18 U.S.C. §§ 1201 (a)(1) and 2. Count 3 charged Phipps and
Gilley with the use of a firearm during and in relation to the kidnaping and aiding and abetting, in
violation of 18 U.S.C. §§ 924 (c) (1) (A) (ii) and 2. Count 4 charged the two defendants with
carjacking and aiding and abetting, in violation of 18 U.S.C. §§ 2119 and 2. Finally, Count 5 charged
them with the use of a firearm during and in relation to the carjacking and aiding and abetting, in
violation of 18 U.S.C. §§ 924 (c) (1) (A) (ii) and (2). On September 25, 2001, after a two day trial,
the jury found Phipps and Gilley guilty on all five counts.
The Presentencing Reports (“PSRs” or “reports”) grouped together three of the five counts
of conviction against each defendant for the purposes of calculating their respective base offense
levels pursuant to Chapter 3, Part D (Multiple Counts) of the November 1, 2001, United States
Sentencing Guidelines Manual (“Sentencing Guidelines,” o r “Guidelines”). Counts 3 and 5, the
defendants’ firearms counts, by statute required mandatory terms of imprisonment of 7 years for the
first offense (Count 3) and 25 years for the subsequent offense (Count 5), each to run consecutively
1
The superseding indictment also charged the defendants’ accomplice, Julian Medina, for his
role in the offenses. Medina does not appeal his sentence here.
2
with any other sentence imposed, and were therefore excluded from the Guidelines’ multiple grouping
rules. See USSG §§ 2K2.4; 3D1.1; 18 U.S.C. § 924 (c) (1) (C) (i ). Because the defendants’
conspiracy, kidnaping, and carjacking offenses (Counts 1, 2, and 4) were closely related and involved
substantially the same harm, the PSR recommended that these counts of conviction be grouped
together and assigned a single offense level, see USSG §§ 3D1.1, 3D1.2 (2001), corresponding to
the most serious count in the group. See USSG § 3D1.3 (a); United States v. Davis, 226 F.3d 346,
359 (5th Cir. 2000). These multiple grouping rules led to the use of the criminal sexual abuse
guidelines, USSG § 2A1.3, as the defendants forced the victim to perform sexual acts during the
course of her kidnaping. See USSG § 2A4.1 (b) (7) (A). Section 2A1.3 produced a base offense
level of 27. The PSR additionally recommended a two-level enhancement for obstruction of justice,
USSG § 3C1.1, a 4-level enhancement for forcing the victim to engage in a sexual act by threatening
or placing her in fear of death, serious bodily injury, or kidnaping, USSG § 2A3.1 (b) (1), and a 4-
level enhancement for the defendants’ abduction of the victim, USSG § 2A3.1 (b) (5). Based on
each defendant’s total offense level score of 37 and Criminal History Category of V, the PSR
recommended a guideline range of 324 to 405 months’ imprisonment for counts 1, 2, and 4. The
PSR concluded that “[a]t this time, there are no known mitigating or aggravating factors that would
warrant a departure from the prescribed guideline range.”
At sentencing on January 11, 2002, the district court adopted the findings and conclusions
of the PSR, stating its intent “to impose the maximum sentence that [could] be imposed” to “ensure”
that the defendants would be “imprisoned for the remainder of their lives . . . because they are such
a menace to society they should never be free again . . . .” The district court therefore sentenced
each defendant at the top of the guidelines range to 789 months’ (65 years, 9 months’) imprisonment,
3
to be followed by a five-year term of supervised release. Specifically, the district court sentenced
them to 405 months’ imprisonment on each of the conspiracy, kidnaping, and carjacking counts, with
these sentences to run concurrent ly. The district court further imposed a mandatory 7-year (84
month) term of imprisonment on Count 3 (use of a firearm during and in relation to a crime of
violence) and a mandatory 25-year (300 month) prison term on Count 5 (subsequent conviction for
the use of a firearm during and in relation to a crime of violence), to run consecutively to each other
and to the 405-month sentence. The court also sentenced the defendants to restitution in the amount
of $ 7,785.69 and a $ 400 special assessment.
Phipps and Gilley appealed their convictions and sentences. On January 15, 2003, in United
States v. Phipps, 319 F.3d 177 (5th Cir. 2003) (“Phipps I”), this Court affirmed their convictions on
all counts except one § 924 (c) count, reasoning that the rule of lenity compelled the conclusion that
§ 924 (c) “does not . . . authorize multiple convictions for a single use of a single firearm based on
multiple predicate offenses.”2 Phipps I, 319 F.3d at 183. We then vacated their sentences, directed
that the district court dismiss one of the § 924 (c) counts, and remanded for resentencing on all
remaining counts “as a result of the § 924 (c) error.” Id. at 189. In reaching our decision, we noted
that the district court had expressed its desire at the initial sentencing to impose the maximum
sentences permitted by law and had assumed the validity of both § 924 (c) convictions when it
decided to run the carjacking sentence concurrently with the conspiracy and kidnaping sentences.
Id.
2
We also found that the district court’s imposition of a 405-month term of imprisonment as to
the carjacking count was plain error because the statutory maximum for that count was 300
months, but that the defendants were not prejudiced because the carjacking sentence ran
concurrently with the valid, longer sentences for conspiracy and kidnaping. Nonetheless, we
vacated all sentences and remanded for resentencing on all counts of conviction.
4
Accordingly, we stated:
With only one valid § 924 (c) (1) conviction, the [district] court may wish to reconsider
whether the carjacking sentence should run concurrently or consecutively with the conspiracy
and kidnaping sentences. We therefore remand with instruction that the district court may
reconsider this question under our limited remand rule.
Id. at 192 (citing United States v. Marmolejo, 139 F.3d 528, 530 (5th Cir.1998)).
On remand, the district court issued an order directing the preparation of revised PSRs to
reflect this court’s opinion in Phipps I. Prior to resentencing, the Government filed a motion to
upwardly depart, arguing that an upward departure was warranted under USSG § 5K2.3, p.s., for
the infliction of extreme psychological injury, citing the victim’s suffering and noting that she
continues to suffer “substantial impairment” of an “extended or continuous duration” as a result of
the defendants’ offense conduct. The Government also asserted that the defendants’ extreme conduct
warranted an upward departure pursuant to USSG § 5K2.8, p.s., applicable where the offense
conduct was “unusually heinous, cruel, brutal, or degrading to the victim.” The Second Addendum
to each defendant’s PSR similarly recommended an upward departure pursuant to the generalized
authority of § 5K2.0, p.s., and the specific provisions for extreme psychological injuries, § 5K2.3,
p.s., and criminal purpose, § 5K2.9, p.s., on the basis that, given the criminal purpose and totality of
the crime, the “actual seriousness” of the carjacking offense was not fully taken into account in the
kidnaping guideline. The probation officer cited as aggravating factors warranting departure the
defendants’ use of a knife to commit the carjacking, their intent to kill the victim, and the long-term
emotional trauma suffered by the victim as a result of their offenses.
At resentencing, the district court dismissed one of the § 924 (c) firearms counts, Count 5,
in accordance with this Court’s opinion in Phipps I. The district court then adopted the findings and
5
conclusions of the Second Addendum to the PSR, agreeing that an upward departure was warranted
pursuant to §§ 5K2.0, 5K2.3, and 5K2.8 for the reasons stated in the Government’s motion and
concluding “that the upward departure should be in the form of imposition of a consecutive sentence
as to the kidnaping and the carjacking counts.” The district court thus sentenced each defendant to
405 months’ imprisonment on Counts 1 and 2, ordering that these sentences run consecutively to
each other. As to Count 4, the district court sentenced each defendant to 300 months, to run
consecutively to all other sentences imposed by the court (including those imposed by counts 1 and
2). Finally, the court imposed a mandatory sentence of 84 months as to Count 3, to run consecutively
to all other sentences imposed, producing an aggregate total sentence of 789 months. Phipps and
Gilley now appeal their sentences.
DISCUSSION
Phipps and Gilley contend that the district court erred on remand by imposing an upward
departure through consecutive sentencing based on its finding that the otherwise applicable 489-
month term of imprisonment did not adequately reflect the extreme nature of the defendants’ conduct
or the resultant profound psychological injury sustained by the victim. As a threshold matter, Phipps
and Gilley assert that the district court was precluded from revisiting whether there existed a factual
and legal basis supporting such an upward departure by the law of the case doctrine, this Court’s
mandate in Phipps I, the waiver rule, and 18 U.S.C. § 3742 of the Prosecutorial Remedies and Tools
Against the Exploitation of Children Today Act of 2003 (“Protect Act”), Pub.L. No. 108-21, 117
Stat. 650 (2003). The defendants assert in the alternative that there was no basis for an upward
departure because the factors relied upon by the district court in deciding to impose consecutive
sentences were already adequately taken into account by the applicable guideline range. The
6
defendants further contend that the extent of the upward departure, which increased each of their
sentences by 25 years, was unreasonable. Our thorough review of the record and this Circuit’s
precedent, however, convinces us that the district court committed no reversible error at
resentencing.
I. Sentencing issues open for reconsideration on remand
We first address the defendants’ assertion that the law of the case doctrine and its corollary,
the mandate rule, foreclosed the district court’s imposition of a discretionary upward departure in the
form of consecutive sentencing. “Whether the law of the case doctrine foreclosed the district court’s
exercise of discretion on remand and the interpretation of the scope of this court’s remand order
present questions of law that this court reviews de novo.” United States v. Lee, 358 F.3d 315, 320
(5th Cir. 2004) (“Lee II”) (citing Sobley v. Southern Natural Gas Co., 302 F.3d 325, 332 (5th Cir.
2002) (internal quotation omitted)).
Under the law of the case doctrine, ordinarily “‘an issue of fact or law decided on appeal may
not be reexamined either by the district court on remand o r by the appellate court on subsequent
appeal.’” Lee II, 358 F.3d at 320 (citing United States v. Matthews, 312 F.3d 652, 657 (5th Cir.
2002) (Matthews II), cert. denied sub nom, Matthews v. United States, 123 S.Ct. 1604 (2003)
(citation omitted)). As we have clarified recently, this “proscription covers issues we have decided
expressly and by necessary implication, reflecting the ‘sound policy that when an issue is once
litigated and decided, that should be the end of the matter.’” Id. (citing United States v. United
States Smelting Ref. & Mining Co., 339 U.S. 186, 198 (1950) (internal citation omitted)).3 These
3
Rather than “a limit on judicial power,” however, the law of the case doctrine “is an exercise
of judicial discretion which merely expresses the practice of the courts generally to refuse to
reopen what has been decided.” Lee II, 358 F.3d at 320 (citing Messinger v. Anderson, 225 U.S.
7
tenets equally apply to the mandate rule, which, as a derivative of law of the case, “compels
compliance on remand with the dictates of a superior court and forecloses relitigation of issues
expressly or impliedly decided by the appellate court.” Lee II, 358 F.3d at 321 (citing United States
v. Bell, 988 F.2d 247, 251 (1st Cir.1993)). The mandate rule thus posits that “‘[a]bsent exceptional
circumstances, . . . a lower court on remand must implement both the letter and the spirit of the
appellate court’s mandate and may not disregard the explicit directives of that court.’” Id. (quoting
Matthews II, 312 F.3d at 657).
Applying these principles in the instant case, we conclude that neither the law of the case
doctrine nor the mandate rule prevented the district court from revisiting the upward departure issue
on remand. Phipps and Gilley correctly point out that at the initial sentencing, the district court
adopted the findings and conclusions of the PSRs, including the PSRs’ determination that, at the time
of the reports, there existed no aggravating or mitigating factors that would warrant a departure from
the prescribed guidelines range. Contrary to the defendants’ assertions, however, these findings and
conclusions did not become law of the case because they were not before this Court in Phipps I and
hence were not “decided” expressly or implicitly by us on appeal. See, e.g., Lee II, 358 F.3d at 320.
United States v. Mendez, 102 F.3d 126, 131 (5th Cir. 1996), relied upon by the defendants for the
proposition that a decision by the district court cannot be revisited during later stages of the same
case, does not compel a contrary conclusion. In Mendez, we held that the law of the case doctrine
foreclosed the district court’s reexamination of an issue that “was squarely decided by us” in the
prior appeal. Id. Nowhere in Mendez did we address whether a district court may depart from its
436, 444 (1912); Matthews II, 312 F.3d at 657).
8
unappealed findings and conclusions in a subsequent proceeding.
Nor did the mandate rule foreclose the district court’s reconsideration on remand of
consecutive sentencing resulting in an upward departure. Phipps and Gilley concede that this Court’s
mandate in Phipps I “did state that the district court could reconsider the question of whether to run
the sentence fo r the carjacking conviction concurrent with the sentences for conspiracy and
kidnaping.” See 319 F.3d at 192. Nonetheless, the defendants argue that the imposition of an
upward departure through consecutive sentencing was not available to the district court on remand,
contending that this Court did not authorize the district court to revisit the findings and conclusions
it made at the initial sentencing based on the PSRs. In support of this contention, the defendants
attempt to distinguish this Court ’s decision in Lee II, 358 F.3d at 324, in which we held that the
mandate at issue in that case did not foreclose the district court’s upward departure on remand.
While we agree that Lee II is distinguishable from the instant case, we find that the reasons
why that is so compel our conclusion that our Phipps I mandate did not preclude the district court
from upwardly departing through consecutive sentencing. In Phipps I, we expressly invited the
district court to reconsider the imposition of consecutive sentencing, fully aware that the district
court’s dismissal, in accordance with our opinion, of one of the § 924 (c) counts would lower each
defendant’s sentence by 25 years. See 319 F.3d at 192. As we have repeatedly stated, under our
limited mandate rule, generally “only those discrete, particular issues identified by the appeals court
for remand are properly before the resentencing court.” Lee II, 358 F.3d at 321 (quoting United
States v. Marmolejo, 139 F.3d 528, 530 (5th Cir. 1998) (“Marmolejo II”)). Because we specifically
identified the issue of consecutive sentencing for remand, it is beyond cavil that that issue was open
for the district court’s reconsideration. This case thus does not raise the more complex issues
9
presented in Lee II, in which the mandate before us was silent about an upward departure in any form,
requiring our consideration of whether that sentencing issue “arose out of the correction of the
sentence ordered by this Court.” We do not even engage in that analysis in this case. Our Phipps I
mandate authorized the district court to reconsider consecutive sentencing, and it did just that.
The defendants’ waiver argument is similarly infirm. Phipps and Gilley contend that because
the Government did not challenge the district court’s finding that there was no basis for an upward
departure either at the original sentencing or in the prior appeal, the Government could not then urge
an upward departure on remand. This contention, however, is foreclosed by our decision in Lee II,
in which we clarified that our waiver doctrine does not preclude raising an unappealed issue for the
first time on remand when that issue could not have been raised previously and became extant as a
consequence of our appel late mandate. Lee II, 358 F.3d at 324. As in Lee II, in this case the
Government had no grounds to appeal the district court’s initial decision not to upwardly depart. See
id. (quoting 18 U.S.C. § 3742 (b)(1)-(4)). Therefore, contrary to the defendants’ assertions, we
cannot say that the Government had “ample incentive” to raise but chose to forego this issue at a
prior stage of the proceedings. See id. (distinguishing United States v. Hass, 199 F.3d 749, 753 (5th
Cir. 1999), cert denied sub nom. Hass v. United States, 531 U.S. 812 (2000)).
Finally, Phipps and Gilley argue that §§ 3553 (c) and 3742 (g) (2) of the Protect Act
prohibited the district court from upwardly departing on remand through consecutive resentencing.
Effective April 30, 2003, § 3553 (c) requires that the district court include in its written judgment the
specific reasons warranting a departure “[i]f the court departs from the applicable guideline range.”
In turn, § 3742(g) provides that, upon resentencing after appeal, the district court may only depart
from the guidelines based on a ground that was both approved by the appellate court and “specifically
10
and affirmatively included in the written statement of reasons” issued in connection with the original
sentencing.4 According to the defendants, because the district court did not make a finding at the
initial sentencing hearing that there was a basis for departure, it could not upwardly depart at
resentencing on remand. We disagree.
While this Court has yet to address whether these provisions of the Protect Act bar the district
court from imposing a “new” departure on remand, we hold that they do not where, as here, the
district court did not depart at the original sentencing. In this case, the need for an upward departure
to satisfy the objectives of the Sentencing Guidelines arose out of our appellate mandate, which, by
directing the dismissal of one of the § 924 (c) counts, removed the basis upon which the district court
had relied in determining the appropriate sentencing package. A departure on grounds made newly-
germane as a result of our correction of the sentence can arise only upon resentencing after appeal,
and thus could not have been included in the original statement of reasons. Such departures do not
fit within the purpose of § 3742 (g), to “prevent sentencing courts, upon remand, from imposing
the same illegal departure on a different theory.” H.R. Conf. Rep. 108-66, at 59 (2003), reprinted
in 2003 U.S.C.C.A.N. 683, 694. In this case, the district court did not upwardly depart at the initial
sentencing, and we authorized the reconsideration of consecutive sentencing on remand. Our view
is consistent with that of every other circuit that has considered the extent to which § 3742 (g) limits
the authority of the district court to upwardly depart on remand. See United States v. Martin, 2004
4
We note that the defendants’ initial sentencing took place prior to April 30, 2003, the
effective date of the Protect Act. We need not decide, however, whether §§ 3553 (c) and 3742
(g) (2) apply retroactively, because even assuming that they do, we conclude that the provisions
do not bar the district court from upwardly departing for the first time on remand where such
departure was approved by the appellate court.
11
WL 626732, *8 (1st Cir. 2004) (holding “that § 3742 (g) does not prohibit departures necessary to
satisfy the double jeopardy crediting requirement” because such a departure “can arise, by its very
nature, o nly upon resentencing after appeal, and thus could not have been listed in the original
statement of reasons”); United States v. Lauersen, 348 F.3d 329, 344 n. 16 (2d Cir. 2003) (allowing
a new departure on remand, despite the restrictive language of § 3742(g), because “the basis for . .
. [the] departure did not exist at [the] initial sentencing” but rather arose out of the remand order);
United States v. Cole, 357 F.3d 780, 786 (8th Ci r. 2004) (holding that § 3742 (g) (2) did not
“require the district court to impose a sentence limited only to the grounds identified in a prior section
3553(c) written statement” because the court was not required to make a written statement in that
case, where the original sentencing occurred prior to the effective date of the Protect Act).
In sum, we therefore agree with the Government that on remand, the district court was free
to reconsider consecutive sentencing entailing an upward departure because the issue was not waived
in the initial appeal, was expressly left open by this court’s mandate in Phipps I for reconsideration
at resentencing, and became germane only as a result of the correction of the sentence ordered by this
court in the initial appeal.
II. The propriety of upwardly departing based on aggravating factors
Phipps and Gilley next assert that the district court’s upward departure from the criminal
sexual abuse guidelines range was not warranted and, alternatively, that the extent of the upward
departure was unreasonable. We affirm.
A. Standard of review
Section 3742 (e) of the Protect Act governs the scope of our review of sentencing appeals.
As we have previously stated, § 3742 (e) has decreased the level of deference we previously accorded
12
district courts’ sentencing determinations to require de novo review, “but only when courts of appeals
are considering determinations under subsections (3)(A) or (3)(B) of . . . § 3742(e).” Lee II, 358
F.3d at 326 (quoting United States v. Bell, 351 F.3d 672, 675 (5th Cir. 2003)). Subsection (3) (A),
pertaining to a district court’s failure to include written reasons for the departure, does not apply in
this case. See id. Nor does subsection (3) (B) apply where, as here, the district court’s departure
was “based on a factor that does advance the objectives set forth in section 3553(a)(2), namely, those
pertaining to “the need for the sentence imposed . . . (A) to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate
deterrence to criminal conduct; and (C) to protect the public from further crimes of the defendant.”
See id. (quoting Bell, 351 F.3d at 676) (emphasis added); 18 U.S.C. § 3742 (e) (3) (B) (i).5 Because
this case involves a departure determination made neither under (3) (A) nor (3) (B), we review the
district court’s decision to upwardly depart for abuse of discretion, and, as in pre-Protect Act cases,
we will affirm “if (1) the court gives acceptable reasons for departing, and (2) the extent of the
departure is reasonable.” United States v. Tampico, 297 F.3d 396, 401 (5th Cir. 2002) (citation
omitted); see Lee II, 358 F.3d at 326.
B. The upward departure
At resentencing, the district court imposed a 25-year upward departure from the defendants’
§ 2A1.3 criminal sexual abuse guideline range of 324 to 405 months (for the grouped conspiracy,
5
At sentencing, the district court emphasized its intent “to impose the maximum sentence that
[could] be imposed” to “ensure” that the defendants would “imprisoned for the remainder of their
lives . . . .” Stating that the defendants “are such a menace to society they should never be free
again,” the district court decided to “sentenc[e the defendants] at the top of the guideline range
because a sentence at that level will most effectively serve the Court's sentencing objectives of
punishment and incapacitation of the defendant for the protection of the public.”
13
kidnaping, and carjacking counts) through consecutive sentencing on three grounds: the presence in
this case of aggravating factors not adequately taken into account by the guidelines, § 5K.0, p.s., the
extreme psychological injury sustained by the victim, § 5K2.3, p.s., and the defendants’ extreme
conduct, § 5K2.8, p.s. Because Phipps and Gilley each also faced a mandatory minimum consecutive
sentence of 84 months for the use and carry of a firearm, the departure increased their sentences from
489 to 789 months.
The defendants argue that the district court erred by upwardly departing because each of the
factors relied upon by the district court was already taken into account by the applicable criminal
sexual abuse guideline range, the guideline enhancements, and the mandatory minimum consecutive
sentence of 84 months for the use and carry of a firearm. Phipps and Gilley further argue that the
extent of the upward departure, which added 25 years to each defendant’s sentence, was
unreasonable. We disagree.
An upward departure is justified when the case is atypical, and does not fall into the
“heartland” of cases embodied by the sentencing guidelines. United States v. Winters, 174 F.3d 478,
482 (5th Cir.1999). A district court thus may depart upwardly from the defendant’s range if it “finds
that there exists an aggravating . . . circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the guidelines and that should result in
a sentence different from that described.” 18 U.S.C. § 3553 (b). Where an encouraged factor has
been taken into account by the applicable guidelines and enhancements or is inherent in the offense,
the sentencing court may depart “only if the factor is present to a degree substantially in excess of
that which is ordinarily involved in the offense.” Koon v. United States, 518 U.S. 81, 88 (1996)
(quoting USSG § 5K2.0).
14
After thoroughly reviewing the record in this case, we cannot say that the district court
abused it s discretion by upwardly departing. The district court found that the victim sustained
profound psychological harm as a result of her ordeal. Pursuant to § 5K2.3, p.s., a district court may
impose an upward departure for extreme psychological injury that is “much more serious than that
normally resulting from the commission of the offense.” USSG § 5K2.3. Ordinarily, this adjustment
is warranted “only when there is a substantial impairment of the intellectual, psychological, emotional,
or behavioral functioning of the victim,” which “is likely to be of an extended or continuous
duration,” and which “manifests itself by physical or psychological symptoms or changes in behavior
patterns.” The district court found that to be the case here.
The PSRs, which were available both to the defense and the district court, included a victim
impact statement, a letter from the victim, and a transcript of an officer’s interview with the victim
conducted one day prior to resentencing. Taken together with the victim’s trial testimony, these
statements fully set forth the devastating impact the victim suffered, and continues to suffer, as a
result of the carjacking, kidnaping, repeated sexual assaults, use of a gun and a knife, and threats of
death by Phipps and Gilley. In her impact statement, the victim, a 61-year-old grandmother, describes
how she cannot cope, cannot trust anyone, and lives in continuous fear of being sexually assaulted.
She states that her ordeal left her unable to have a loving relationship and has destroyed her marriage.
In the span of some two years since the abduction and sexual assaults, she has moved from Texas to
three different states. Thoughts of the kidnaping and rape continue to haunt the victim every single
day. In her letter to the court, the victim similarly details the emotional trauma she suffered at the
hands of the defendants, including her incessant fear of being robbed or raped, her fear of going out
alone at night, and her inability to sleep without first ensuring that all windows and doors are locked.
15
The victim stated, in short, “I have lost everything. I feel like I’m the one in jail, not free to live my
life, a life they took from me on December 13th.’”
Phipps and Gilley concede that the victim has suffered psychological injury, but argue that
a departure based on this factor was not appropriate because her psychological injury was not “much
more serious than that normally resulting” from the litany of offenses underlying their
sentences—conspiracy, kidnaping, carjacking, sexual assault, and the use and carry of a firearm
during the commission of a crime of violence. The defendants assert that the victim’s emotional
suffering, while serious, was to be expected given the serious nature of the listed offenses and
therefore is not a factor that takes this case out of the “heartland” of cases involving the same offense
conduct. Phipps and Gilley further protest that an upward departure was not warranted because the
applicable criminal sexual abuse guidelines and enhancements already took into account all of their
offense conduct.
While we acknowledge that measuring the relative severity of psychological injury suffered
by victims of the aforementioned offenses presents a difficult question, we are persuaded in this case
that the unrebutted statements by the victim establish that she has suffered extraordinary
psychological injury within the meaning of § 5K2.3. See United States v. Anderson, 5 F.3d 795, 805
(5th Cir. 1993) (holding in part that a victim’s unrebutted letter may suffice as evidence of extreme
psychological injury warranting a departure). We emphasize that in determining whether an upward
departure on this ground is appropriate, “we measure the psychological harm to [the victim] 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 [the particular] defendants.” Id. at 805 n. 17. Adhering to this principle, we find that
16
the district court’s additional ground for departure--the extreme nature of the defendants’ conduct--
further supports our conclusion that the victim sustained extraordinary psychological damage. See
id. at 805.
Pursuant to § 5K2.8, p.s., a district court may depart upward from the guidelines range “[i]f
the defendant’s conduct was unusually heinous, cruel, brutal, or degrading to the victim. . . . .” The
Policy Statement provides as examples of “extreme conduct” the “torture of a victim, gratuitous
infliction of injury, or prolonging of pain or humiliation.’” The district court found, and we agree,
that the conduct by Phipps and Gilley was “unusually heinous” and “degrading to the victim,” and
involved circumstances not considered by the guidelines. First, we note that despite the seriousness
of any criminal sexual abuse offense, the guidelines specifically contemplate that “an upward
departure may be warranted” where “the victim was sexually abused by more than one participant.”
USSG § 2A3.1, comment. (n.5). Both Phipps and Gilley sexually abused the victim in this case.
Over the course of the 24-hour abduction, from Texas to New Mexico, the victim was repeatedly
subjected to sexual abuse and the threat of sexual abuse. Gilley raped the victim and forced her to
perform oral sex in the presence of Phipps. Phipps, in turn, attempted to force her to perform oral
sex and repeatedly threatened to sexually abuse the victim. Upon arrival in Albuquerque, the
defendants held the victim captive in a motel room, where they forced her to disrobe and shower in
front of them to ensure that all traces of forensic evidence from Gilley’s sexual assault were
destroyed. Throughout the ordeal, Gilley continuously threatened the victim with a knife to keep
her under control, and both defendants led her to believe that they still had the gun that they had used
at the outset of the kidnaping but had in fact later handed off to an accomplice. These events
culminated in a dark street in Albuquerque, where the defendants, with the victim in tow, parked the
17
car next to a dumpster, stepped out, and argued over whether murdering the victim would increase
the severity of the sentences they would face if apprehended for the “kidnaping, rape, [and] robbery”
they already had committed.6 It was only happenstance that the victim managed to escape.
Under the circumstances presented, we find that these additional factors exceed those inherent
in the typical criminal sexual abuse case and amply justify the district court’s upward departure based
on the defendants’ extreme conduct under § 5K2.8. We also find, as indicated above, that the
heinousness of the defendants’ offense conduct substantiates the unrebutted testimony of the victim
as to her extreme psychological injury. See Anderson, 5 F.3d at 805. Because the defendants’ sexual
abuse conduct was extreme, we cannot say that the district court abused its discretion in determining
that the severity of the resultant psychological injury likewise exceeded that “suffered by victims of
‘ordinary’ sexual abuse crimes.” Id.; USSG § 5K2.3.
Finally, in light of the foregoing, we conclude that the extent of the district court’s upward
departure, which increased the defendants’ sentences by 25 years, was not unreasonable. See, e.g.,
United States v. Lewis, 115 F.3d 1531,1538 (11th Cir. 1997) (upholding departure to life
imprisonment where defendant beat, abducted, raped, and sodomized the victim); United States v.
Johnson, 56 F.3d 947, 958 (8t h Cir. 1995) (upholding a departure from 65 years based on four
firearms counts to a 1,253-month prison term where the defendant carjacked, abducted, beat, raped,
and sodomized the victim).
6
Gilley got out of the car, threw a Sears bag in the dumpster and said to Phipps, “You got to
do what you got to do, man. If we are gonna go to prison for a federal offense--- kidnaping,
rape, robbery --- one more for murder won’t matter.” Phipps put his hand in his pocket.
Believing he was about to shoot her, the victim ran away screaming “They’ve got a gun. They’re
going to kill me.” She ran toward a man, who let her in his house.
18
CONCLUSION
Because we find that the district court did not exceed the scope of our Phipps I mandate by
reconsidering the imposition of an upward departure, and that such departure was both warranted
by the existence of aggravating factors and reasonable in degree, we AFFIRM Phipps’ and Gilley’s
sentences.
AFFIRMED.
19
United States v. Phipps
Court: Court of Appeals for the Fifth Circuit
Date filed: 2004-04-26
Citations: 368 F.3d 505
Copy Citations