United States v. Price

United States Court of Appeals,

Eleventh Circuit.

Nos. 94-6141, 94-6152.

UNITED STATES of America, Plaintiff-Appellee,

v.

David G. PRICE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

John G. PRICE, Defendant-Appellant.

Sept. 29, 1995.

Appeals from the United States District Court for the Middle
District of Alabama. (No. CR-93-57-N), Ira De Ment, Judge.

Before COX, Circuit Judge, RONEY and WOOD*, Senior Circuit Judges.

PER CURIAM:

John and David Price were convicted for conspiracy, in

violation of 18 U.S.C. § 371 (1988), to commit murder and for the

use of interstate commerce facilities in violation of 18 U.S.C. §

1958 (1988), with the intent to commit murder-for-hire. John Price

was also convicted of solicitation to commit a crime of violence in

violation of 18 U.S.C. § 373 (1988), while David Price was

separately convicted for using interstate commerce facilities in

violation of 18 U.S.C. § 1958 (1988), with the intent to commit

murder-for-hire.1 John Price was sentenced to 360 months

imprisonment and fined. David Price was sentenced to 300 months in

*
Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge
for the Seventh Circuit, sitting by designation.
1
Both Prices were charged with tampering with witnesses, in
violation of 18 U.S.C. § 1512(b)(2)(A) (1988), but were acquitted
on those two counts.
prison and was ordered to pay fines as well. The Prices appeal,

challenging their convictions and their sentences. We affirm their

convictions but vacate their sentences and remand for resentencing.

I. FACTS AND PROCEDURAL
HISTORY

John Price was president of Price Rubber Corporation, a

business headquartered in Montgomery, Alabama. His son David

managed a Texas rubber plant owned by the company. Several

business-related incidents gave rise to the convictions now at

issue.

Before establishing operations in Montgomery, John Price owned

a rubber warehouse and distribution center in Auburn, Georgia.

That facility burned in 1974, causing Price a three million dollar

uninsured loss. The Prices have always believed that Auburn

resident David Hawthorne was responsible for the arson. Nothing

came of their suspicions for a time, however, because shortly after

the fire, the Prices left Auburn and moved to Montgomery to found

Price Rubber.

The Prices acquired more perceived enemies when, in 1986, Sy

Shafer and Ellis Lucas sold their printing concern, Pioneer Press,

to Kenny Price, John Price's nephew. Kenny was affiliated with the

Prices' enterprise, and he ran the printing business "parallel" to

the principal rubber operation. (Gov't Ex. 6 at 17-18.) Shafer

and Lucas retained Leon Capouano, a Montgomery lawyer, to handle

the sale of Pioneer Press.

The acquisition proved troublesome for the Prices. The

parties to the deal became involved in litigation, and ultimately
Shafer and Lucas obtained a money judgment against Pioneer Press

and Kenny Price. Litigation continued through 1992; Sy Shafer had

filed two suits directly against John Price by the fall of 1991.

Family relations turned so sour that John Price fired nephew Kenny,

on the belief that he was stealing from the company. After his

severance from the Price empire, Kenny became a prospective witness

for Sy Shafer against his uncle.

Further problems arose for Price Rubber in 1991, when Internal

Revenue Agent Dwight Huff initiated an examination of the company's

tax records. Though routine, the review spanned the next two

years, in part because of the failure of Price Rubber to timely

provide information necessary for the audit's completion.

Not fond of lawyers, John Price and his son David decided to

bypass legal recourse and deal with their woes through a sinister

plot to pay back their perceived enemies by hiring hitmen to wreak

various degrees of havoc upon them. Bobby Price (unrelated to, but

acquainted with John and David Price) was the Prices' initial

contact with the underworld.2 In November, 1991, David Price

visited Bobby's auto body shop in Montgomery. At this meeting,

David handed Bobby $2000 and instructed him to find "the right

people" to blow up Leon Capouano's law office and to kill David

Hawthorne in Auburn, Georgia. (R. 18 at 329.) Later, David mailed

Bobby two packages which contained maps, photographs, and other

information about Capouano and Hawthorne. The second parcel also

contained a note indicating that David Price had two more names to

2
Bobby Price had worked for the Prices during 1983-1984 and
again during 1987. During those times, Bobby knew both Prices
and had become friends with David Price.
add to the "hit list," apparently Kenny Price and Sy Shafer.

Meanwhile, Bobby Price was arrested July 8, 1992, for

trafficking in marijuana. In exchange for a lighter sentence,

Bobby struck a deal with the government, eventually providing

information about the Prices' murder-for-hire plot.3 After his

agreement with the government, the federal agents orchestrated a

meeting on August 14, 1992, between Bobby Price and David Price,

during which David told Bobby that Kenny Price and David Hawthorne

were still prime targets. David also took Bobby out to Elmore

County, Alabama, to "case" Kenny's trailer. David paid Bobby

$1500, and Bobby explained that he had two friends (FBI special

agents) who would be willing to do these jobs for the Prices.

One week later, Bobby had a similar meeting with John Price.

There, John expressed his desire to have Kenny "busted up pretty

good," (Gov't Ex. 2 at 59), though he expressed hesitation about

killing his nephew outright. As for David Hawthorne, John stated

that "the guy needs to be rubbed out. No question about that."

(Id. at 62.)4

By September 16, Bobby had introduced David Price to the

3
Bobby provided information regarding drug traders in the
Montgomery area during "debriefing sessions" held in July, 1992.
He did not mention John and David Price until August 4, 1992,
after the debriefing agents demanded to know about phone calls
made to Arlington, Texas. (R. 18 at 339-42.) Those calls were
to David Price and concerned the activities at issue in this
case.
4
John Price was more reluctant than his son to order the
murder of their targets. Instead, he graphically described how
he would rather have them mutilated, so that they would have to
live with the damage for the rest of their lives. Still, John
Price was at best indifferent to his targets' survival: "... if
[Hawthorne] should ... should die I don't give a shit...."
(Gov't Ex. 2 at 66; Gov't Ex. 6 at 24-25.)
undercover FBI agents, and meetings between the participants

continued through the fall of 1992. During these meetings, the

murders of Kenny Price, David Hawthorne, and Sy Shafer, as well as

the bombing of Leon Capouano's law office, were planned and paid

for by John and David Price.5 Finally, John Price sent a letter to

the agents in January, 1993, requesting the "well damaged carcass"

of IRS agent Dwight Huff, in retaliation for the inconvenience

caused by the audit of Price Rubber. (Gov't Ex. 63.)

The last meeting between the federal agents and John Price

occurred on January 27, 1993, in Montgomery. There the agents told

Price that the first murder, that of Sy Shafer, had been completed,

and they showed him pictures of what they said was the body. John

Price paid the agents $20,000 and expressed enthusiasm about the

imminent success of the remaining jobs. Later that day, he and son

David were arrested.

A grand jury in the Middle District of Alabama indicted the

Prices jointly, and the case went to trial in June, 1993. The

Prices were acquitted on two counts of witness tampering, but the

jury was unable to reach a verdict on the other counts. As a

result, a mistrial was declared as to those counts. Retrial began

in July, 1993, and the jury returned guilty verdicts against both

defendants on the remaining charges. The Prices filed a motion for

a new trial, which alleged, among other things, that juror

5
The Prices' plans became more grandiose as time passed. By
December, 1992, John Price sent the agents a "menu" of possible
services for the agents to perform and the payments he would make
for each. (R. 17 at 189-92.) Later, Price referred back to the
menu to describe what he wanted done to two attorneys, Dennis
Pentazis and Tim Davis, who were involved in litigation against
him. (R. 17 at 198; 18 at 230.)
misconduct deprived them of a fair trial. The court questioned the

jurors in camera to investigate the alleged improprieties, and some

instances of misconduct were found. The judge ruled that none of

the incidents prejudiced the defendants' rights and denied the

motion for a new trial.

David Price was sentenced to a total of 300 months in prison,

a period of supervised release, and was fined $726,712.40, which

included a fine of $200,000 and costs of incarceration and

supervision. David was also ordered to pay a $200 assessment and

restitution of $350 to Leon Capouano. In calculating David Price's

sentence, the court applied an upward adjustment based on its

finding that he obstructed justice by giving false testimony at

trial. See United States Sentencing Commission, Guidelines Manual

§ 3C1.1 (Nov. 1992).

John Price's sentence consisted of a total of 360 months in

prison and a period of supervised release. Additionally, John

Price was fined $880,752.40, comprised of a $250,000 fine and costs

of incarceration and supervision. He was also ordered to pay $350

in restitution to Capouano.

In calculating both Prices' sentences, the trial judge found

that a two-level upward departure was warranted because of the

racial and ethnic motivation behind the crimes, the severe

psychological injury to the victims, and the threat of harm to

third parties. The Prices appealed.

II. ISSUES ON APPEAL

The Prices raise several issues on appeal. They contend that:

(1) the trial court's denial of their motions for acquittal was
erroneous because they were entrapped as a matter of law; (2) the

trial court's imposition of cost-of-confinement fines violated the

Fifth and Eighth Amendments to the Constitution; and (3) the court

misapplied the sentencing guidelines when it calculated their

sentences.6
III. DISCUSSION

A. Entrapment

The Prices invite us to overturn their convictions, arguing

that the district court should have granted their motions for

acquittal because the government's evidence was insufficient to

negate their entrapment defense. Their argument on this issue

6
The Prices also argue that the trial court improperly
denied their motions for a new trial after allegedly prejudicial
juror misconduct was discovered. They further claim that the
trial court abused its discretion in the manner in which it
conducted its investigation of the possible misconduct.

The Prices allege several acts and omissions by the
trial court which they contend deprived them of a fair
trial. They claim that: (1) the trial court's entrapment
instruction was inadequate; (2) the trial court erred by
removing from evidence the Attorney General's Guidelines on
FBI Undercover Operations; (3) the court erred by not
allowing the defense to have an unredacted copy of informant
Bobby Price's diary; and, (4) the diary and other
information were required to be disclosed under Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
They also attack the trial court's admission into evidence
of a photograph containing inflammatory racial and ethnic
matter, the trial court's instruction given to remedy
"improper" remarks made by the prosecutor, and, finally, the
judge's failure to recuse himself prior to sentencing
because of death threats purportedly made by the Prices.

David Price separately argues that it was error for the
district court to enhance his sentence under U.S.S.G. §
3C1.1 on the ground that Price obstructed justice by
perjuring himself during the trial.

All these contentions are without merit and do not
warrant further discussion. See 11th Cir.R. 36-1.
fails.

Entrapment is generally a jury question. United States v.

Brown, 43 F.3d 618, 622 (11th Cir.1995) (citing Mathews v. United

States, 485 U.S. 58, 61, 108 S.Ct. 883, 886, 99 L.Ed.2d 54 (1988);

United States v. Costales, 5 F.3d 480, 487 (11th Cir.1993)).

Therefore, appellate review of a defendant's contention that he was

entrapped as a matter of law is a sufficiency of the evidence

inquiry, limited to deciding whether the evidence was sufficient

for a reasonable jury to conclude that the defendant was

predisposed to take part in the illicit activity. Brown, 43 F.3d

at 622 (citing United States v. Aibejeris, 28 F.3d 97, 99 (11th

Cir.1994)). Review is de novo, but we must view all facts and make

all inferences in the government's favor. Id. (citing Aibejeris,

28 F.3d at 98). We cannot overturn a verdict if any reasonable

construction of the evidence would allow the jury to find the

defendant guilty beyond a reasonable doubt. Id. (citing United

States v. Ventura, 936 F.2d 1228, 1230 (11th Cir.1991)).

A valid entrapment defense consists of two elements:

government inducement and the defendant's lack of predisposition to

commit the crime prior to the inducement. Mathews, 485 U.S. at 63,

108 S.Ct. at 886 (citations omitted). While the burden of

production rests with the defendant to show inducement, once that

showing is made, the burden shifts to the government to prove

beyond a reasonable doubt that the accused was predisposed to

commit the crime. Brown, 43 F.3d at 623.

To establish government inducement, an "element of persuasion

or mild coercion" is necessary. Id. In this case, there are
numerous instances of government attempts to persuade or pressure

John and David Price to commit the crimes they planned. For

example, Bobby Price invoked his relationship with the Prices in

offering to pay them back for past favors by arranging the murders

of the Prices' enemies. A reasonable jury could have believed that

such pressure induced the Prices to put their schemes in motion, so

the court properly decided to charge the jury on entrapment.

The flaw in the Prices' argument is their contention that no

reasonable jury could conclude that they were predisposed to engage

in their murder-for-hire plot. They argue that they were not

"disposed" to commit the crimes charged until after the initial

contact with government agents. The Prices correctly assert that

"one may not become unentrapped when the disposition arises after

entrapment," (Appellant John Price's Br. at 24), and they claim,

based on excerpts from the conversations they had with Bobby Price

and the FBI agents, that they were reluctant to take part in the

murder-for-hire scheme until after government persuasion.

Predisposition is "necessarily a fact-intensive inquiry

because it is a subjective inquiry into a defendant's state of

mind." Brown, 43 F.3d at 625 (rejecting five-factor list used by

other circuits in reviewing predisposition in favor of case-by-case

analysis). To show predisposition, the government must prove

beyond a reasonable doubt that "the defendant was actually

predisposed to commit the underlying crime absent the government's

role in assisting such commission." Aibejeris, 28 F.3d at 99

(citing Jacobson v. United States, 503 U.S. 540, 547-49, 112 S.Ct.

1535, 1540, 118 L.Ed.2d 174 (1992)); see also Brown, 43 F.3d at
624-25 (endorsing approach based on defendant's "readiness and

willingness" to commit the crime; listing several "guiding

principles" to use in reviewing predisposition findings, such as

jury consideration of demeanor and credibility evidence).

We cannot say that the evidence was insufficient for the jury

to conclude beyond a reasonable doubt that the Prices were

predisposed to commit the crimes of which they were convicted.

While some statements made by both John and David Price suggest

hesitation to go as far as murder, there are other indications of

their readiness and willingness to have their perceived enemies

maimed or killed. Significantly, David Price met with Bobby Price

and made the first "downpayment" for their series of "hits" in

November, 1991, long before Bobby became a government agent. In

negotiating with the FBI agents about their fees, both John and

David Price made reference to payments previously given to Bobby.

This further suggests that the Prices' disposition arose before

government agents allegedly pressured them to discuss murder.

B. Sentencing Issues

The Prices attack several aspects of their sentences. They

argue that the fines imposed to pay for costs of incarceration and

supervision are unconstitutional, and they also contest the

two-level upward departure that the trial judge found was merited

because of the nature of the Prices' plans and actions.

1. Cost-of-Confinement Fines

The Prices argue that the fines levied upon them pursuant to

U.S.S.G. § 5E1.2(i) to pay for costs of incarceration are excessive

under the Eighth Amendment and violate due process under the Fifth
Amendment because they are not rationally related to the purposes

of the Sentencing Reform Act. The Prices argue that U.S.S.G. §

5E1.2(i), which provides for cost-of-incarceration fines, and 18

U.S.C. § 3553(a) (1988), which states that courts shall "impose a

sentence sufficient, but not greater than necessary," are in

conflict, since § 5E1.2(i) imposes an "additional" fine on top of
7
the fine ranges contained in the table provided by § 5E1.2(c).
The government, on the other hand, asserts that the fine is neither

excessive nor irrational. Such questions of law are subject to

plenary review. See United States v. Weaver, 920 F.2d 1570, 1573

(11th Cir.1991).

The validity of U.S.S.G. § 5E1.2(i) is an issue of first

impression in this circuit, and other circuits are split on the

question. Compare United States v. Spiropoulos, 976 F.2d 155, 165-

67 (3d Cir.1992) (holding § 5E1.2(i) to be inconsistent with

Sentencing Reform Act while avoiding due process question) with

United States v. Hagmann, 950 F.2d 175, 187 (5th Cir.1991), cert.

denied, --- U.S. ----, 113 S.Ct. 108, 121 L.Ed.2d 66 (1992)

7
The Prices argue that such a fine is by definition
excessive under the Eighth Amendment. We reject their argument.
The penalties levied on the Prices are neither excessive nor
grossly disproportionate to the crimes committed, see Alexander
v. United States, --- U.S. ----, ----, 113 S.Ct. 2766, 2770, 125
L.Ed.2d 441 (1993); United States v. Elkins, 885 F.2d 775, 789
(11th Cir.1989), cert. denied, 494 U.S. 1005, 110 S.Ct. 1300, 108
L.Ed.2d 477 (1990), and so pass muster under the Eighth
Amendment. Indeed, a fine based on a criminal's stay in prison
seems to be by definition proportional to the crime committed.
The Prices also argue that it is excessive to require them to pay
for their imprisonment costs when they have yet to incur them.
This argument is beside the point as well, since the fines are
meant to penalize their criminal actions, not to pay the bills as
they accrue while in prison. Also, the money will go not to
their prison facilities but to the Crime Victims Fund, 42 U.S.C.
§§ 10601 to 10603 (1988).
(finding that cost-of-incarceration fines are rational means to

assist victims of crime collectively). In declaring guideline §

5E1.2(i) invalid, the Third Circuit found that the plain language

of the section indicated that the fines imposed thereunder were to

reimburse the government for the costs of imprisonment.

Spiropoulos, 976 F.2d at 166. The court concluded that the

Sentencing Reform Act did not authorize fines to cover costs of

confinement, even though the money collected from the fines went to

the Crime Victims Fund and not actually to pay for penal

operations. Id. at 166-67.

We disagree with the assertion that Congress did not consider

imposition of cost-of-confinement fines to be within the scope of

the Sentencing Reform Act's goal of restitution. See 18 U.S.C.A.

§ 3572(a)(6) (West Supp.1995) (providing that courts can consider

"the expected costs to the government of any imprisonment,

supervised release, or probation component of the sentence" in

setting amount of fine); 28 U.S.C.A. § 994(y) (West Supp.1995)

(stating that Sentencing Commission may include as component of

fine calculus the expected costs of imprisonment). Instead, we

find Hagmann to be persuasive. We agree with the Fifth Circuit

that "the uniform practice of fining criminals on the basis of

their individualistic terms of imprisonment—an indicator of the

actual harm each has inflicted upon society—is a rational means to

assist the victims of crime collectively." Hagmann, 950 F.2d at

187.

Although the Third Circuit in Spiropoulos found the analysis

in Hagmann to be "too facile," 976 F.2d at 168, Spiropoulos has
been rejected, and Hagmann followed, in every other circuit that

has addressed the issue. See, e.g., United States v. Zakhor, 58

F.3d 464, 466 (9th Cir.1995) (upholding cost of confinement fines);

United States v. May, 52 F.3d 885, 891 (10th Cir.1995) (finding

guideline rationally related to legitimate government interest);

United States v. Leonard, 37 F.3d 32, 39 (2d Cir.1994) (citing

Hagmann and holding § 5E1.2(i) consistent with 18 U.S.C. §

3553(a)); United States v. Turner, 998 F.2d 534, 538 (7th

Cir.1993) (holding that § 5E1.2(i) is authorized by statute), cert.

denied, --- U.S. ----, 114 S.Ct. 639, 126 L.Ed.2d 598 (1993). We

join the other circuits that have upheld U.S.S.G. § 5E1.2(i), and

we reject both constitutional challenges made by the Prices.

2. Upward Departure Granted by the District Court

The trial court found that the Prices' crimes went beyond the

"heartland" of typical cases, see U.S.S.G. § 5K2.0, and departed

upward by two levels from the applicable guidelines in calculating

their sentences. (R. 31 at 103.) In deciding that this case

merited departure, the court found that three aspects of the

Prices' activities were not adequately considered by the

guidelines: (1) their extreme conduct, including the fact that

harassment of Leon Capouano was motivated by racial and ethnic

prejudice, and that the Prices planned to mutilate IRS agent David

Huff; (2) the risk of harm to innocent bystanders because of the

plan to blow up Capouano's law firm; and (3) the extreme

psychological injury to Kenny Price and other victims.8 The court

treated these factors as a group, assigning no relative weight to

8
(R.Ex. 210 at 6 (John Price), 208 at 6 (David Price).)
one factor over another in making the decision to depart from the

guidelines. The Prices challenge the departure, arguing that the

sentencing guidelines adequately considered all aspects of their

crimes, and that there was insufficient factual support for the

trial court's findings. The government originally moved for a

four-level departure, but on appeal urges us to affirm the

two-level departure as reasonable.

In sentencing determinations, a court may impose a sentence

outside the range established by the guidelines, if 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." 18 U.S.C. §

3553(b) (1988). We review such departures by applying a three-step

analysis. United States v. Dailey, 24 F.3d 1323, 1325 (11th

Cir.1994) (citing Weaver, 920 F.2d at 1573). We review de novo a

decision as to whether the guidelines adequately consider a

particular factor so as to preclude a sentencing court's reliance

on it as a basis for departure. Id. Second, we review the factual

findings underlying the trial court's decision to depart for clear

error. Id. Finally, we review the departure itself for

reasonableness. Id.; accord United States v. Passmore, 984 F.2d

933, 937 (8th Cir.1993) (holding that extent of upward departure is

a "judgment call" by district court). We deal with each factor

relied upon by the trial court in turn.

a. Extreme conduct (racial/ethnic motivation for crimes; planned
mutilation of victims)

The Prices do not challenge the trial court's determination
that racist or anti-semitic motivation for a crime was a proper

basis for departure.9 Instead, they argue that their actions were

not racially or ethnically motivated, and that it was clear error

for the trial court to find that they were. Our review, then, is

limited to determining whether the trial court's factual findings

are clearly erroneous.

We find no clear error in the trial court's finding that the

Prices were motivated by ethnic hatred in their harassment of Leon

Capouano. While it is true that the court, as well as the

government, acknowledged that two primary motivators for the

Prices' conduct were greed and business litigation, the trial court

concluded that racial and ethnic prejudice also played a part. See

McAninch, 994 F.2d at 1388 (affirming trial court's conclusion that

hatred was motivator of crime despite evidence that psychological

problems could have been the cause). The Prices knew that Capouano

was Jewish, and when they vandalized his home they painted

swastikas and anti-semitic and racist remarks designed to strike at

his religious heritage. The Prices also made repeated anti-semitic

remarks about Capouano and Jews in general. While the Prices

counter that any racist and anti-semitic conduct was impulsive and

isolated, there is evidence that the Prices put some thought into

9
While we do not reach the issue here, we note that other
circuits have allowed departures based on racist or anti-semitic
motivation. See, e.g., United States v. McAninch, 994 F.2d 1380,
1387-89 (9th Cir.) (holding that defendant's racist motivation is
valid ground for departure because it is not otherwise treated in
guidelines), cert. denied, --- U.S. ----, 114 S.Ct. 394, 126
L.Ed.2d 342 (1993); United States v. Salyer, 893 F.2d 113, 115-
16 (6th Cir.1989) (race of victim could be considered under
U.S.S.G. § 3A1.1 where defendant tailored actions to exploit
special vulnerability of African-American family to cross
burning).
what they did and how they did it. See United States v. Sanders,

41 F.3d 480, 485 (9th Cir.1994) (holding that racist and

anti-semitic letters, though short and simplistic, evidenced

deliberation where defendant had to look up addresses and tailor

each message to the group he was attacking), cert. denied, --- U.S.

----, 115 S.Ct. 2010, 131 L.Ed.2d 1009 (1995).

As for the proposed mutilation of IRS agent Dwight Huff, the

Sentencing Commission did not adequately provide for such a grisly

variety of the crime when it designed the applicable guidelines for

conspiracy, solicitation, or murder-for-hire. See U.S.S.G. § 5K2.8

(allowing departure where defendant's conduct was unusually

heinous, cruel, brutal, or degrading to victim). As the trial

court concluded, these crimes were more depraved than the typical

cases the guidelines were designed to cover, so that a departure

based in part on the proposed mutilation of Huff was warranted.

Further, we find no clear error in the trial court's underlying

factual findings. John Price explicitly ordered Huff's

"well-damaged carcass" in a taped conversation with the FBI.

b. Risk of harm to innocent third parties

The trial court held that the potential for "injury even to

the point of death" to a multitude of unknown victims as a result

of the defendants' criminal activity was a factor not adequately

considered in the applicable guidelines. (R. 31 at 104.) The

factual predicate to this holding was the probability of injury to

innocent bystanders had the scheme to blow up Leon Capouano's law

office succeeded. The Prices argue that any risk to bystanders was

already taken into account by the guidelines.
 We first examine the guidelines to determine whether the

district court correctly concluded that the danger to innocent

bystanders from a bombing was not adequately considered. Reading

U.S.S.G. § 2K1.4, we agree with the Prices that the risk of harm to

third parties is already incorporated into the guideline applicable

to property damage caused by explosives. The presentence

investigation reports explicitly applied guideline § 2K1.4(a)(1),

which provides for a greater base offense level where the crime

"created a substantial risk of death or serious bodily injury to

any person other than a participant in the offense...." (emphasis

added). This includes people caught inside a building as well as

bystanders injured in a blast. There may well be bombing cases

involving risks to third parties of a kind outside the "heartland"

of such cases. But the government points to nothing in the record

demonstrating that this is such a case. As a result, we hold that

the trial court misapplied the guidelines to the extent that the

risk to third parties was double-counted; the court's reliance on

the harm to innocent bystanders was thus misplaced as a ground for

departure.

c. Extreme psychological injury to Kenny Price

The Prices also challenge the court's reliance on its finding

of extreme psychological harm to several of the victims, most

notably Kenny Price, as a basis for upward departure. The Prices

do not question the court's capacity to increase their sentences

where their victims suffered severe psychological injury. See

U.S.S.G. § 5K2.3. They only argue that the evidence introduced by

the government did not show that Kenny Price or the other victims
suffered an "injury much more serious than that normally resulting"

from being a target for murder. See U.S.S.G. § 5K2.3, p.s. Our

review, then, is limited to reviewing the court's factual findings

for clear error.

To be sufficiently severe to warrant a departure, there must

be "a substantial impairment of the intellectual, psychological,

emotional, or behavioral functioning of a victim" likely to last

for an extended duration and to manifest itself by physical or

psychological symptoms, or by changes in behavior. U.S.S.G. §

5K2.3. See United States v. Wilson, 993 F.2d 214, 218 (11th

Cir.1993) (stating that "[w]e doubt that feelings of foolishness,

anger, or disappointment are so far beyond the heartland of fraud

offenses" to rise to the level of extreme psychological harm).

While we have never decided the extent of harm needed to show

"extreme psychological injury," other circuits have affirmed trial

courts that departed from the guidelines based on factual findings

similar to those in this case. See, e.g., United States v.

Anderson, 5 F.3d 795, 804-805 (5th Cir.1993) (upholding departure

based on letter of victim describing "her ordeal and its effects on

her life"), cert. denied, --- U.S. ----, 114 S.Ct. 1118, 127

L.Ed.2d 428 (1994); United States v. Miller, 993 F.2d 16, 21 (2d

Cir.1993) (upholding departure where victim was afraid to answer

phone, open mail, or stay in New York area).

Upon review of the presentence investigation reports (PSIs),

we cannot say that the trial court clearly erred in finding that

several of the victims suffered severe psychological injuries of

the type addressed by U.S.S.G. § 5K2.3. The PSIs state that this
ordeal was very traumatic for Kenny Price. He attended counseling

sessions, and at one point contemplated suicide. Kenny suffered

from depression, and he stated that he no longer felt safe in his

home or when he went anywhere. IRS agent Dwight Huff stated in the

PSIs that his whole family changed their lifestyle to be "extra

cautious of their surroundings," and he also said that his children

were psychologically affected. Leon Capouano and David Hawthorne

installed security systems in their houses and also restricted

their activities outside their homes after the incidents at issue

in this case. We find no error in the trial court's reliance on

this evidence of extreme psychological injury as a basis for upward

departure under U.S.S.G. § 5K2.3.

d. Reasonableness of the two-level upward departure

Our final task in weighing the trial court's decision to

depart is to evaluate the overall departure for reasonableness.

Dailey, 24 F.3d at 1325. The trial court did not separately assign

a departure level to each ground in ordering an overall departure

of two levels. In light of our determination that one of the three

grounds for the departure was already considered in the relevant

guidelines, we are unable to say that the overall departure would

have been the same based only on the other two grounds. See

Williams v. United States, 503 U.S. 193, 202-03, 112 S.Ct. 1112,

1120-21, 117 L.Ed.2d 341 (1992). Therefore, we vacate the sentence

and remand to the district court for resentencing consistent with

this opinion.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the Prices' convictions;
we VACATE their sentences and REMAND for resentencing.

CONVICTIONS AFFIRMED; SENTENCES VACATED and REMANDED for

RESENTENCING.