United States v. Lewis

United States Court of Appeals,

Eleventh Circuit

No. 96-2056

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Jerry Lee LEWIS, Defendant-Appellant.

June 26, 1997.

Appeal from the United States District Court for the Northern District of Florida. (No. 95-03048-
LAC), Lacey A. Collier, Judge.

Before BIRCH and CARNES, Circuit Judges, and FAY, Senior Circuit Judge.

PER CURIAM:

By a one count indictment, Jerry Lee Lewis (the "defendant") was charged with unlawfully

and knowingly kidnapping a twenty-six year old woman and willfully transporting her in interstate

commerce between the states of Florida and Alabama in violation of 18 U.S.C. § 1201(a)(1). The

defendant pled guilty; the court sentenced him to life imprisonment. The defendant appeals that

sentence. We affirm.

I.

On July 25, 1995, the defendant pled "not guilty" to the charge of kidnapping Monica

Showalter ("Showalter"). Shortly before his scheduled trial, the defendant appeared with counsel

at a rearraignment for the purpose of changing his plea to "guilty." The district court made

numerous inquiries to establish the defendant's ability to understand the proceedings,1 and thereafter

The Judge asked the defendant (1) the extent of his schooling (defendant's response: 3 years
community college); (2) whether he could read and write English (yes); (3) whether he was
having any problems understanding what the Judge or lawyers were saying (no); (4) whether he
had ever been treated for mental illness (no); (5) whether to his knowledge, he was suffering
from any mental or emotional instability (no), (6) whether he had had any drugs or alcohol
within the last 24 hours (no); (7) whether he was under the influence of any medication or
anything else that might impair his ability to think clearly (no); (8) whether he understood that
he had the right to a jury trial, the right to assistance of counsel at trial, the right to have a jury
determine his guilt or innocence, the absolute right to remain silent, the right to confront
witnesses, the right to compel witness attendance, the right to continue with his plea of not
asked the prosecutor to state a factual basis for the plea.

In summary, the prosecutor indicated that, at about 2 a.m. on July 1st, Showalter stopped at

a closed gas station in Gulf Breeze, Florida, to use a pay phone. A few minutes later, the defendant,

who was unknown to Showalter, pulled into the same gas station. The defendant exited his car,

struck Showalter, beat her into unconsciousness, placed her in his own vehicle, and drove westbound

toward Alabama. En route, the defendant forced Showalter to perform oral sex upon him. After

crossing into Alabama, the defendant stopped and raped Showalter both vaginally and anally. The

journey then continued, until the defendant was pulled over for a traffic violation. The police officer

saw Showalter sitting in the passenger seat, noted that she was weeping and wounded, and called

an ambulance. Once Showalter was inside the ambulance, she informed the paramedics that she had

been raped, whereupon the defendant was placed under arrest.

After the prosecution's summary, the defendant averred that not all of the recited facts were

true. When asked by the court to specify which were true and which were not, the defendant

emphatically stated that he did not rape Showalter and that he did not know he was in Alabama.2

The defendant then conferred with his attorney, who subsequently asked the defendant for the record

whether he was "admit[ting] to the kidnapping portion." R2-11. The defendant's response: "Yes."

The court informed the defendant that it made no difference whether he thought he was in Florida

or Alabama and that the "other matters" would be taken up at the sentencing phase; the defendant

guilty, and the right to have the government prove his guilt beyond a reasonable doubt (yes); (9)
whether he understood that by entering a plea he gave up each of those rights, that he would
have no further trial, that he would give up all defenses he might otherwise have, that he would
give up his right to appeal the issue of his guilt or innocence, that he could only appeal the
sentence imposed, that he would be admitting the truth of the charge against him, that he would
not be entitled to withdraw his plea later, and that he could not change his mind (yes). The court
also asked the defendant whether he understood the charge of kidnapping in the indictment (yes).

From the transcript of the rearraignment proceedings:

The Court: Tell me which ones are [true and correct] and which ones aren't.

The Defendant: All the way up to where talking [sic] about I supposedly raped
her and everything, pulled off and raped her. One, I didn't know I was in
Alabama; two, I ain't [sic] rape her, I didn't rape her, I didn't rape her, I
didn't rape her.
said he understood. The court then asked the defendant whether he was "admitting to the actual

kidnapping itself?" The defendant responded: "Yes, sir."

Following the defendant's admission, the prosecution indicated that by denying the rape, the

defendant had failed to acknowledge some purpose for the kidnapping, which the prosecution

believed to be an essential element of the crime. Defense counsel objected to the requirement that

his client admit some specific purpose. After more discussion and a brief recess, however, the

defendant stated that he kidnapped Showalter for "companionship."

The district court then advised the defendant that he was facing a maximum penalty of up

to life imprisonment, or a fine of up to $250,000, or both, a term of supervised release of up to 5

years, a $50.00 special monetary assessment, and possible restitution. The defendant said he

understood. The court asked the defendant if he had discussed the U.S. Sentencing Guidelines with

his attorney. He had, and he understood that his attorney could not tell him what his sentence would

actually be, that the sentence would only be determined after the probation office completed a

presentence report, which the defendant would be able to challenge, and that even after all that was

said and done, the court could in some circumstances still impose a sentence greater or less than that

recommended by the Guidelines. The defendant also professed that he had no questions about his

plea agreement, that he understood the nonbinding nature of the agreement upon the court, that he

knew if his imposed sentence was greater or more severe than expected, he could still not withdraw

the plea, that no threats, pressure, or intimidation had influenced him to plead guilty, that he was

fully satisfied with his attorney's representation, and finally that he had no answers that he wanted

to change, add to, or modify. The court then accepted the defendant's guilty plea.

At the defendant's sentencing hearing, the prosecution put on several witnesses to establish

that Showalter's account of events was the true one. The defendant testified on his own behalf and

told the court a substantially different version. The defendant admitted to beating Showalter, but

claimed that after the altercation, Showalter consented to take a ride with him "to work things out."

The defendant denied forcing Showalter to perform oral sex upon him and denied raping her anally.

He conceded to having vaginal intercourse with Showalter, but claimed it was consensual. He
further claimed that when the police officer pulled him over in Alabama, he had been searching for

a hospital because Showalter was complaining of abdominal pains.

The district court rejected the defendant's version of events and proceeded to determine his

sentence. Section 2A4.1 of the U.S. Sentencing Guidelines provided a base offense level of 24 for

kidnapping. U.S. Sentencing Guidelines Manual § 2A4.1 (1994) [hereinafter U.S.S.G.]. Subsection

(b)(7) of § 2A4.1 instructs that, if the defendant committed another offense during the kidnapping,

the offense level should be determined from the "offense guideline applicable to that other offense

if such offense guideline includes an adjustment for kidnapping [or] abduction[,]" and if such

guideline provides a higher base offense level. U.S.S.G. § 2A4.1(b)(7). The district court found by

a preponderance of the evidence that the defendant committed another offense, sexual abuse. The

"criminal sexual abuse" guideline provided a base offense level of 27. U.S.S.G. § 2A3.1(a) (1994).

The court thus used that base level and increased it by 8 for specific offense characteristics,

including the abduction of Showalter and the defendant's use of force or threats of death, serious

bodily injury, or kidnapping. See U.S.S.G. § 2A3.1(b)(1) (providing for 4 level increase where

offense is committed by the means set forth in 18 U.S.C. § 2241, which refers to the use of force,

threats, or fear); Id. at § 2A3.1(b)(5) (providing for 4 level increase when victim is abducted). The

court then made an upward adjustment of 2 for obstruction of justice, which led to an adjusted

offense level of 37. Finally, the court found that this case warranted a 3 level upward departure from

the Guidelines because the defendant's conduct was unusually heinous, cruel, brutal, and degrading

to the victim. See U.S.S.G. § 5K2.8 (approving of upward departure for extreme conduct). The end

result of these calculations was a guideline level of 40, a criminal history category of III, and a

sentencing range of 360 months to life. The court sentenced the defendant to life imprisonment.

The defendant now challenges (i) the constitutionality of his guilty plea, (ii) the prosecution's

failure to prove sexual assault beyond a reasonable doubt, (iii) the court's adjusted offense level

calculation, (iv) the court's upward departure from the Sentencing Guidelines, and (v) the

constitutionality of the kidnapping statute, 18 U.S.C. § 1201. We find each of the defendant's

arguments to be without merit.
 II.

A defendant who pleads guilty must do so voluntarily and knowingly. United States v.

Lopez, 907 F.2d 1096, 1098 (11th Cir.1990). To ensure that a defendant's guilty plea is knowing,

Rule 11 of the Federal Rules of Criminal Procedure requires the court to " "address the defendant

personally in open court and inform the defendant of, and determine that the defendant understands

... the nature of the charge to which the plea is offered' and the potential consequences of that plea."

Lopez, 907 F.2d at 1099 (quoting Fed.R.Crim.Pro. 11(c)). The defendant's first contention in this

case is that his plea was not entered knowingly because he neither understood the nature of the

kidnapping charge nor the possible consequences of his plea. He claims that the "conduct he

admitted did not constitute the offense charged" and that his "denial of rape was equivalent to the

denial of the kidnapping." Appellant's Br. at 14.

The elements of the crime of kidnapping under 18 U.S.C. § 1201 are (1) the transportation

in interstate commerce (2) of an unconsenting person who is (3) held for ransom, reward, or

otherwise, (4) with such acts being done knowingly and willfully. United States v. Duncan, 855

F.2d 1528, 1537 (11th Cir.1988). As to the first element, the defendant denied "knowing" he had

driven into Alabama. R2-11. The prosecution, however, need not have shown that the defendant

knew he was crossing state lines, but only that, in fact, the defendant did cross state lines:

"Knowledge of crossing state lines is not an essential element of the kidnapping offense. The

requirement that an offender cross state lines merely furnishes a basis for the exercise of federal

jurisdiction." Duncan, 855 F.2d at 1537 (quoting United States v. Leichtman, 742 F.2d 598, 603 n.

5 (11th Cir.1984)); see id. ("If we interpreted § 1201 to require proof that the defendant knew he

was going to cross state lines, we would be contravening the reasoning behind § 1201"); accord

United States v. Davis, 19 F.3d 166, 170 (5th Cir.1994) ("Interstate transportation of the victim is

a jurisdictional question and not an element of the crime [under § 1201]"); United States v. Welch,

10 F.3d 573, 574 (8th Cir.1993) ("The language of [§ 1201], however, does not require that an

offender know that he is crossing state lines. So long as he "willfully transports' his victim and in

doing so, travels in interstate commerce, he need not do so knowingly") (quoting United States v.
Bankston, 603 F.2d 528, 532 (5th Cir.1979)). The court fully informed the defendant that his lack

of knowledge about crossing state lines did not affect the charge. The defendant did not contest that

he actually transported Showalter from Florida to Alabama.

As to the second element, transporting an "unconsenting person," the defendant disputed

only the assertion that he forced Showalter to have sexual intercourse. The defendant otherwise

admitted to the accuracy of the prosecution's story "[a]ll the way up to where [the prosecutor was]

talking about [how he] supposedly raped her." That included forcibly taking Showalter away from

the gas station while she was unconscious. The court explained, and the defendant acknowledged,

that the "other matters," which in context referred to the rape, would be taken up at the sentencing

phase. Both the court and the defendant's own attorney distinguished the "kidnapping part" of the

prosecutor's story and specifically asked the defendant whether he admitted to that; twice the

defendant answered affirmatively.3

As to the remaining elements, the defendant explicitly admitted that he kidnapped Showalter

for "companionship." That was a legally sufficient admission, because pursuant to the "ransom,

reward, or otherwise" language in the federal kidnapping statute, the prosecution need only establish

that the defendant acted "for any reason which would in any way be of benefit." United States v.

Childress, 26 F.3d 498, 503 (4th Cir.1994) (emphasis in original); see also United States v.

Williams, 998 F.2d 258, 267-68 (5th Cir.1993) ("The benefit sought to be obtained could be either
legal or illegal (in itself), and financial or non-financial"). There was never any credible assertion

that the defendant did not otherwise act knowingly and willfully.

The defendant claims that he was not aware of the consequences of pleading guilty. The

transcript of the Rule 11 hearing leads us to the opposite conclusion. The court clearly informed the

defendant that he was facing a maximum of up to life in prison. The defendant said he understood.

The defendant admitted that he had discussed the Sentencing Guidelines with his attorney. Defense

counsel acknowledged throughout the proceedings that sexual abuse was an aggravating factor

It was not until the sentencing hearing that the defendant claimed Showalter voluntarily
accompanied him "to work things out."
which would be taken up at sentencing. The defendant acceded that the court was free to impose

a sentence within the guideline range and that, in some circumstances, the court was free to depart

either upwardly or downwardly from the Guidelines. In sum, we are satisfied that the defendant

understood both the nature and the consequences of his plea.

III.

We review de novo the district court's interpretation and application of the Sentencing

Guidelines. United States v. Trout, 68 F.3d 1276 (11th Cir.1995), cert. denied, --- U.S. ----, 116

S.Ct. 1032, 134 L.Ed.2d 110 (1996). We review the district court's factual findings for clear error.

United States v. Dukovich, 11 F.3d 140, 141 (11th Cir.1994).

A.

The defendant argues that the cross-referencing from the kidnapping guideline, §

2A4.1(b)(7), to the sexual abuse guideline, § 2A3.1(a), required a burden of proof higher than a

preponderance of the evidence. The defendant also argues that, even under the preponderance of

the evidence standard, there was insufficient evidence of sexual abuse to warrant the application of

the sexual assault guideline. Finally, the defendant asserts that, because the kidnapping guideline

referred the court to the sexual abuse guideline, application of an enhancement for kidnapping

constituted impermissible double counting.

In United States v. Watts, --- U.S. ----, 117 S.Ct. 633, 136 L.Ed.2d 554, reh'g denied, --- U.S.

----, 117 S.Ct. 1024, 136 L.Ed.2d 900 (1997), the Supreme Court held that conduct for which a

defendant has been acquitted may be considered "relevant conduct" for sentencing purposes if the

defendant is shown by a preponderance of the evidence to have engaged in that conduct. Id. --- U.S.

at ---- - ----, 117 S.Ct. at 636-38; see United States v. Averi, 922 F.2d 765, 766 (11th Cir.1991)

(holding that facts related to acquitted conduct may be considered in imposing sentence under

Guidelines if proven by a preponderance of evidence). We see no reason under the facts of this case

to treat the defendant's uncharged conduct any differently. See Watts, --- U.S. at ----, 117 S.Ct. at

637 (recognizing Circuit split as to "whether, in extreme circumstances, relevant conduct that would

dramatically increase the sentence must be based on clear and convincing evidence"); United States
v. Kikumura, 918 F.2d 1084, 1102 (3rd Cir.1990) (requiring clear and convincing evidence of

relevant conduct when upward departure increased defendant's sentence from 30 months to 30

years); United States v. Lombard, 72 F.3d 170, 178 (1st Cir.1995) (questioning cross-reference

where the Guidelines "raise[d] the danger of the defendant's trial and conviction being turned into

a means of achieving an end that could not be achieved directly: the imposition of a life sentence

"enhancement' based on a federally unprosecutable murder"). The district court did not err in

applying the preponderance of the evidence standard to determine if the defendant had sexually

abused Showalter. Nor did the court err in finding that the defendant had indeed abused her; the

prosecution presented ample evidence to meet that burden.

The defendant's final challenge to the application of the sexual abuse guideline, wherein he

claims that application of § 2A3.1's enhancement for abduction constituted impermissible double

counting, is meritless. Double counting under separate guidelines is permitted if the Sentencing

Commission intended that result and if each section concerns conceptually separate notions relating

to sentencing. United States v. Aimufua, 935 F.2d 1199, 1200-01 (11th Cir.1991). The kidnapping

provision specifically requires that either the cross-referenced guideline include an adjustment for

kidnapping or, if not, the court should add four levels to the base offense level in the

cross-referenced provision. U.S.S.G. § 2A4.1(b)(7). The Commission clearly intended an

enhancement for kidnapping. Moreover, sexual assault and kidnapping are conceptually separate

notions. The Fifth Circuit has previously found that this cross reference does not offend double

jeopardy rights. United States v. Anderson, 5 F.3d 795, 797-803 (5th Cir.1993). We agree.

B.

The defendant argues that the district court erred in failing to give him an acceptance of

responsibility reduction under U.S.S.G. § 3E1.1(a). He claims that he accepted responsibility by

admitting to kidnapping Showalter and that the dispute about raping her was "a sentencing issue

[which] should not have precluded the acceptance reduction." Appellant's Br. at 30-31. The

prosecution counters that the defendant did not merit the reduction because he received the

obstruction of justice enhancement and because his "implausible version" of the kidnapping refuted
his acceptance.

Although a guilty plea "will constitute significant evidence of acceptance of responsibility[,]

this evidence may be outweighed by conduct of the defendant that is inconsistent with such

acceptance of responsibility." U.S.S.G. § 3E1.1, comment. (n. 3). A defendant may not warrant the

adjustment if he falsely denies relevant conduct for which he is accountable. U.S.S.G. § 3E1.1,

comment. (n. 1(a)). The defendant bears the burden of proving his entitlement to this reduction.

United States v. Cruz, 946 F.2d 122, 126 (11th Cir.1991). This Court reverses rulings on such

matters only if clearly erroneous. United States v. Query, 928 F.2d 383, 386 (11th Cir.1991).

The defendant admitted to kidnapping Showalter, but his assertion that Showalter consented

to sexual intercourse is inconsistent with his acceptance of responsibility. See U.S.S.G. § 3E1.1,

comment. (n. 1(a) & 3). All told, the defendant did not satisfy the burden of proving his entitlement

to the reduction; the district court was thus not clearly erroneous in refusing to give it.

C.

The defendant contends that the district court erred in enhancing his base offense level for

obstruction of justice. The court based that enhancement, in part, on the defendant's false testimony

at sentencing. The defendant argues that the court failed to make specific findings of perjury. The

government responds that particularized findings are not necessary when the sentencing court

generally finds the testimony perjurious.

Section 3C1.1 of the Sentencing Guidelines allows an offense level increase if the defendant

committed perjury, which means giving "false testimony concerning a material matter with the

willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty

memory." United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 1116, 122 L.Ed.2d 445

(1993). Although separate and clear findings that address each element of the alleged perjury are

preferable, a general finding that an enhancement is warranted suffices if it encompasses all of the

factual predicates necessary for a perjury finding. Id. 507 U.S. at 95, 113 S.Ct. at 1116-17. This

Court reviews such determinations for clear error. United States v. Jones, 32 F.3d 1512, 1519 (11th

Cir.1994).
 The court found that the defendant's testimony was a "concoction," and that the victim had

been sexually assaulted. The defendant denied forcing Showalter to perform oral sex upon him and

denied raping her, contending instead that they had consensual sex. We attribute great deference

to the court's credibility determination. United States v. Lee, 68 F.3d 1267, 1276 (11th Cir.1995).

The inconsistencies in the defendant's testimony, as well as the contradictions with other witness

testimony, support a conclusion that the defendant intended to testify falsely, without confusion,

about material matters. Dunnigan, 507 U.S. at 94, 113 S.Ct. at 1116. The court did not err in

enhancing the applicable offense level for obstruction of justice.

D.

The defendant alleges that the court erred in upwardly departing from the Guidelines

because it relied on the degrading nature of his assaults without making the finding that their nature

removed the defendant's case from the "heartland" of sexual assaults. See Koon v. United States, ---

U.S. ----, ----, 116 S.Ct. 2035, 2046, 135 L.Ed.2d 392 (1996). The defendant also argues that the

extent of the departure (3 levels) was unreasonable. We disagree.

This Court reviews guideline departures for abuse of discretion. United States v. Taylor,

88 F.3d 938, 942 (11th Cir.1996). A sentencing could may depart when it 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...." 18 U.S.C. § 3553(b).

The Supreme Court has referred to such circumstances as those that take the case out of the

"heartland" of the applicable guidelines. Koon, --- U.S. at ----, 116 S.Ct. at 2046.

In assessing whether a departure is appropriate, the Koon Court directed sentencing courts

to classify each circumstance as a forbidden, encouraged, discouraged, or unmentioned basis for

departure. Id. If a factor is forbidden, it cannot be considered a basis for departure. Id. at ---- - ----,

116 S.Ct. at 2044-45. If a factor is encouraged, the court is authorized to depart if the Guidelines

do not already take that factor into account. Id. at ----, 116 S.Ct. at 2045. If the factor is

discouraged, or an encouraged factor already taken into account, the factor may be the basis for

departure only if it is present to an exceptional degree or in some other way makes the case different
from the ordinary case. Id. If the factor is unmentioned, the court should consider the structure and

theory of both the relevant guideline and the Guidelines as a whole, and determine whether the

factor is sufficient to take the case out of the heartland. Id.

The district court concluded that the defendant's case involved "aggravating circumstances

of a kind or degree that are not adequately taken into consideration by the Sentencing Guidelines."

R3-99. The court cited "the number of assaults" ("at least three") and "the nature of the assaults"

("forcible oral, anal, and vaginal sex, degrading in type, and insulting in nature"). R3-99. Making

its decision pre-Koon, the court obviously did not classify each circumstance as a forbidden,

encouraged, discouraged, or unmentioned basis for departure. The factors cited, however, are

clearly "encouraged" factors under the Guidelines. See U.S.S.G. §§ 2A3.1, 5K2.8. Other circuits

have established that forced oral and anal sex may be especially degrading under § 5K2.8 and that

those factors are not taken into account under § 2A3.1. See United States v. Johnson, 56 F.3d 947,

958 (8th Cir.1995) (holding that defendant's extreme conduct, including forcing victim to perform

oral sex, fell within parameters of § 5K2.8); United States v. Anderson, 5 F.3d 795, 804 (5th

Cir.1993) (rejecting argument that forced oral and anal sex were already taken into consideration

by Guidelines); United States v. Chatlin, 51 F.3d 869, 873 (9th Cir.1995) (stating that "extreme

conduct may be established by a showing of anal intercourse, which is a degrading form of sexual

abuse"); United States v. Ellis, 935 F.2d 385, 386 (1st Cir.1991) (holding that particularly degrading

forms of sexual abuse warranted upward departure). We agree.

As for the extent of the court's departure, the court noted that U.S.S.G. § 2A4.1(b)(5)

provided a 3 level increase when a kidnapping victim was sexually exploited and observed that,

under such logic, the defendant could qualify for a 6 level increase. (One assault by the defendant

triggered application of the sexual abuse guideline, and the remaining two assaults supported the 6

level departure). The court chose, however, to depart only by 3 levels. The defendant claims the

court's reasoning is contrary to the grouping principles in Chapter 3, part D. See U.S.S.G. § 3D

(providing incremental punishment for multiple count convictions). However, such grouping

principles do not apply to offenses under Chapter 2, part A. U.S.S.G. § 3D1.2(d). We find that the
court's departure was reasonable considering the number and viciousness of the defendant's assaults,

the defendant's criminal history, which included a conviction for robbery and attempted murder

when the defendant choked and raped another woman, and the fact that the sentence imposed was

within the statutory maximum. We conclude that the district court did not err in sentencing the

defendant to life imprisonment.

IV.

As a final attack, the defendant claims the kidnapping statute, 18 U.S.C. § 1201, is an

unconstitutional exercise of Congress's commerce power as that power is defined in United States

v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). He also claims that even if the

statute is constitutional, his actions did not trigger the statute because he was not engaged in

interstate commerce. The defendant raises these issues for the first time on appeal.

"This Court will [generally] not address an issue not decided by the district court." United

States v. McAllister, 77 F.3d 387, 389 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 262, 136

L.Ed.2d 187 (1996). Although that rule is discretionary, we see no reason to depart from it in this

case. Lopez was decided before the defendant kidnapped Showalter. The defendant had every

reason and opportunity to make the same constitutional arguments before the district court.

Prohibiting him from raising them now does not result in a miscarriage of justice. See McAllister,

77 F.3d at 387 (choosing to address merits of new constitutional challenge to criminal statute

because Lopez was decided after defendant's trial); United States v. Hayes, 40 F.3d 362 (11th

Cir.1994) (noting that claims initially raised on appeal cannot succeed without showing of plain

error; "[p]lain error is reversed only in the case "in which a miscarriage of justice would otherwise

result' ") (quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71

L.Ed.2d 816 (1982).) We therefore do not reach the merits of the defendant's constitutional

challenge.

V.

We AFFIRM all aspects of the district court's decision.