United States v. Johnson

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 19, 2004
• Docket: 02-5840
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Cole, et al. Nos. 02-5839/5840 ELECTRONIC CITATION: 2004 FED App. 0051P (6th Cir.) File Name: 04a0051p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Jeff Mueller, LAW OFFICE OF JEFF FOR THE SIXTH CIRCUIT MUELLER, Jackson, Tennessee, Bruce I. Griffey, OFFICE _________________ OF BRUCE IRWIN GRIFFEY, Memphis, Tennessee, for Appellants. James W. Powell, ASSISTANT UNITED UNITED STATES OF AMERICA , X STATES ATTORNEY, Jackson, Tennessee, for Appellee. Plaintiff-Appellee, - ON BRIEF: Jeff Mueller, LAW OFFICE OF JEFF - MUELLER, Jackson, Tennessee, Bruce I. Griffey, OFFICE - Nos. 02-5839/5840 OF BRUCE IRWIN GRIFFEY, Memphis, Tennessee, for v. - Appellants. James W. Powell, ASSISTANT UNITED > STATES ATTORNEY, Jackson, Tennessee, for Appellee. , RICHARD COLE , III (02-5839); - JONATHAN JOHNSON _________________ - (02-5840), - OPINION Defendants-Appellants. - _________________ N FORESTER, District Judge. The Defendants, Richard Appeal from the United States District Court Cole, III (“Cole”) and Jonathan Johnson (“Johnson”) appeal for the Western District of Tennessee at Jackson. the sentences imposed on them by the U.S. District Court for No. 01-10023—James D. Todd, Chief District Judge. the Western District of Tennessee pursuant to the 2001 United States Sentencing Guidelines (“U.S.S.G.”), resulting from Argued: October 30, 2003 their convictions for kidnapping, assault, and the use of a firearm during a crime of violence.1 Decided and Filed: February 19, 2004

Before: MOORE and ROGERS, Circuit Judges; 1 FORESTER, Chief District Judge.* The six-count indictment against the defendants consisted of the following: Count 1, conspiring to kidnap and sexually assault a Postmaster in violation of 18 U.S.C. § 1201(c); Count 2, kidnapping a Postmaster in violation of 18 U.S.C. § 1201(a)(5); Count 3, car-jacking a Postmaster’s vehicle in violation of 18 U.S.C. § 2119; C ount 4, assaulting a Postmaster with a weapon in violation of 18 U.S.C. § 111; Count 5, hindering and delaying a Postmaster’s communication with law enforcement by threa ts of force and violence in vio lation of 18 U .S.C. § 1512(b )(3); Count 6, brandishing a firearm during a crime of violence * in violation of 18 U.S.C. § 924(c). Pursuant to plea negotiations, Johnson The Honorable Karl S. Forester, Chief United States District Judge and Cole pled guilty to Counts 2, 4, and 6 of the ind ictment. Counts 1, 3, for the Eastern District of Kentucky, sitting by designation. and 5 were dism issed. Johnson received a total sentence of 489 months;

1 Nos. 02-5839/5840 United States v. Cole, et al. 3 4 United States v. Cole, et al. Nos. 02-5839/5840

On appeal, Cole presents the following arguments: (1) the After her release, the victim gave two statements to Postal district court erred when it utilized U.S.S.G. § 2A3.1, instead Inspector Katrina Chalmers. The statements provided the of U.S.S.G. § 2A4.1 for the kidnapping offense; (2) the details of the defendants’ activities as later set forth in the district court should not have granted a four-level sentence presentence investigation report. The victim stated that, prior enhancement for abduction on a conviction for a kidnapping to her release, Johnson found an insurance card in the glove offense pursuant to U.S.S.G. § 2A3.1(b)(5); and (3) the box of her vehicle and told her that he had her address and district court wrongly refused to grant a downward departure would “send someone to kill her” if she told anyone about the for diminished capacity and aberrant behavior pursuant to incident. Johnson also repeatedly stated that he ought to kill U.S.S.G. §§ 5K2.13 and 5K2.20. Johnson contends that the her because she had seen his and Cole’s faces. district court erred when it increased his offense level by two points for obstruction of justice under U.S.S.G. § 3C1.1. In The defendants pled guilty to kidnapping, assault, and the addition, both Cole and Johnson allege that the district court use of a firearm during a crime of violence, and a sentencing erred when it granted a three-level upward departure for hearing was held for each defendant. With respect to Cole, extreme conduct in accordance with U.S.S.G. § 5K2.8. For the district court began with the kidnapping charge and the following reasons, we AFFIRM. proceeded to U.S.S.G. § 2A4.1.2 However, that guideline,

I. JURISDICTION 2 Although later amended, U.S.S.G. § 2A4.1. (2001) provided: The district court had jurisdiction pursuant to 18 U.S.C. Kidnapping, A bdu ction, U nlawful R estraint: § 3231. This Court has jurisdiction pursuant to 28 U.S.C. (a) Base Offense Level: 24 § 1291. (b) Specific Offense Characteristics (1) If a ransom demand or a demand upon government was made, II. FACTUAL BACKGROUND AND PROCEDURAL increase by 6 levels. HISTORY (2) (A) If the victim sustained perm anent or life-threatening bo dily injury, increase by 4 levels; (B) if the victim sustained serious bod ily injury, increase by 2 levels; or (C) if the degree of injury is between At or around noon on May 1, 2001, the defendants entered that specified in subdivisions (A ) and (B ), increase by 3 levels. the Bells, Tennessee U.S. Post Office. Cole and Johnson, (3) If a dangerous weapo n was used, increa se by 2 levels. who was armed with an unloaded .38 caliber pistol tucked (4)(A) If the victim was not released before thirty days had elapsed, into the front waist-band of his pants, forced the victim (a increase by 2 levels. (B) If the victim was not released before seven days had elapsed, United States Postmaster) out of the building and into her increase by 1 level. vehicle, in which Cole and Johnson, along with their victim, (C) If the victim was released before twenty-four hours had elapsed, fled the scene. For four hours, the defendants held the victim decrease by 1 lev el. captive, driving the back roads surrounding Jackson, (5) If the victim was sexually exp loited: increase by 3 levels. Tennessee, and taking turns sexually assaulting her. She was (6) If the victim is a minor and, in exchange for money or other released around 4 p.m., whereupon she reported the crime. consideration, was placed in the care or custody of another person who had no legal right to such care or custody of the victim, increase The defendants were arrested a short time later. by 3 levels. (7) If the victim was kidnapped, abducted, or unlawfully restrained during the commission of, or in connection with, another offense or escape therefrom; or if another offense was committed during the Cole wa s sentenced to a total of 319 months. kidnapping, abd uction, or unlawful restraint, increase to-- Nos. 02-5839/5840 United States v. Cole, et al. 5 6 United States v. Cole, et al. Nos. 02-5839/5840

under (b)(7)(A), directed the court to refer to U.S.S.G. aberrant behavior pursuant to U.S.S.G. §§ 5K2.134 and § 2A3.13 and impose sentence under that section if it resulted 5K2.205 because Cole’s acts fell outside the language in a greater offense level. As a result, Cole received a higher permitting such departure. Finally, the court departed upward base offense level. Additionally, pursuant to specific offense three levels for extreme conduct based on U.S.S.G. § 5K2.8.6 characteristic (b)(5) of U.S.S.G. § 2A3.1, the district court This resulted in a total sentence of 319 months.7 granted a four level sentence enhancement because the victim had been abducted. The district court also denied Cole’s request for a downward departure for diminished capacity and 4 U.S.S.G. § 5K 2.13 . Diminished Cap acity (Policy Statement) A sentence below the applicable guideline range may be warranted if the defendant committed the offense while suffering from a significantly reduced mental capacity. However, the court may not depart below the ap plicab le guideline range if (1) the significa ntly reduced mental capacity was caused by the voluntary use of drugs or (A) the offense level from the Chapter Two offense guideline other intoxicants; (2) the facts and circum sta nces of the defenda nt's app licable to that other offense if such offense guideline includes an offense indicate a need to protect the public because the offense adjustment for kidnapping, abduction, or unlawful restraint, or involved actual violence or a serious threat of violence; or (3) the otherwise takes such conduct into account; or de fendant's criminal history indicates a need to incarcerate the (B) 4 plus the offense level from the o ffense guideline applicable to defendant to protect the public if a departure is warranted, the extent that other offense, but in no event greater than level 43, in any other of the departure should reflect the extent to which the reduced mental case, if the resulting offense le vel is greater than that determined capacity contributed to the commission of the offense. above. 5 3 U.S.S.G. § 5K 2.20 . Aberrant B ehavior (P olicy Statement) U.S.S.G.§ 2A3.1. Criminal Sexual Abuse; Attempt to Co mmit A sentenc e belo w the applicable guideline range may be warranted Criminal Sexual Abuse: in an extraordinary case if the defendant's criminal conduct (a) Base Offense Level: 27 constituted aberrant behavior. However, the court may not depart (b) Specific Offense Characteristics below the guideline range on this basis if (1) the offense involved (1) If the offense was committed by the means set forth in 18 U.S.C. serious bod ily injury or death; (2) the defendant discharged a firearm § 2241(a) o r (b), increase by 4 levels. or otherwise used a firearm or a dangerous weapon; (3) the instant (2) (A) If the victim had not attained the age of twelve years, increa se offense of conviction is a serious drug trafficking offense; (4) the by 4 levels; or (B) if the victim had attained the age of twelve years defendant has more than one criminal history point, as determined but had no t attained the age of sixteen years, increase by 2 levels. under Chapter Four (Criminal History and Criminal Livelihood); or (3) If the victim was (A ) in the custody, care, or supervisory control (5) the defendant has a prior federal, or state, felony conviction, of the defendant; or (B) a person held in the custody of a correctional regardless of whether the conviction is countable under Chapter Four. facility, increase by 2 leve ls. (4) (A) If the victim sustained permanent or life-threatening b odily 6 injury, increase by 4 levels; (B) if the victim sustained serious bod ily U.S.S.G. § 5K 2.8. E xtreme Co nduc t (Policy Statem ent) injury, increase by 2 levels; or (C ) if the degree of injury is between If the defendant's conduct was unusually heinous, cruel, brutal, or that specified in subdivisions (A ) and (B ), increase by 3 levels. degrading to the victim, the court may increase the sentence above (5) If the victim was abduc ted, increase by 4 levels. the guideline range to reflect the nature of the conduct. Examples of (6) If, to persuade, induce, entice, or coerce a minor to engage in extreme conduct include torture of a victim, gratuitous infliction of prohibited sexual cond uct, or if, to facilitate transportation o r travel, injury, or prolonging of pain or humiliation. by a minor or a participant, to engage in prohib ited sexual conduc t, 7 the offense involved (A) the knowing misrepresentation of a The sentence breaks down in the following manner: 235 months on pa rticipant's identity; or (B) the use of a computer or an Internet- Count 2, kidnapping; 120 months on Count 4, assault, to run concurrent access device, increase by 2 levels. with Count 2; and 84 months on Count 6, the firearm charge, to run Nos. 02-5839/5840 United States v. Cole, et al. 7 8 United States v. Cole, et al. Nos. 02-5839/5840

With regard to Johnson, the district court increased his committed during the kidnapping, abduction, or unlawful offense level two points for obstruction of justice pursuant to restraint, increase to- (A) the offense level from the U.S.S.G. § 3C1.18 because of the threats he made to the Chapter Two offense guideline applicable to that other victim prior to releasing her. Additionally, as it had done offense if such offense guideline includes an adjustment with regard to Cole, the court departed upward three levels for for kidnapping, abduction, or unlawful restraint . . . if the extreme conduct based on U.S.S.G. § 5K2.8. Johnson was resulting offense level is greater than that determined ultimately sentenced to a term of 489 months.9 above. III. DEFENDANT COLE U.S.S.G. § 2A4.1(b)(7). The guideline also provides, at U.S.S.G. § 2A4.1(b)(5)(A), for an increase of three points if A. Appropriateness of Sentencing Guideline Used the victim was sexually exploited. Defendant Cole was indicted and pled guilty to a violation This Court utilizes a de novo review with respect to a of 18 U.S.C. § 1201(a)(5), which proscribes the offense of sentencing court’s interpretation of the United States kidnapping. The U.S.S.G. Appendix A, Statutory Index, Sentencing Guidelines, and a clearly erroneous standard with specifies the offense guideline section in Chapter Two respect to factual findings. See United States v. Kimble, 305 applicable to the statute of conviction. The proper guideline F.3d 480, 485 (6th Cir. 2002); United States v. Denton, 246 specified by the index for a violation of 18 U.S.C. § 1201 is F.3d 784, 789 (6th Cir. 2001); United States v. Scott, 74 F.3d set out at § 2A4.1, and specifies a base offense level of 24. 107, 111 (6th Cir. 1996). This guideline provides in part that: The defendants’ victim, after being kidnapped, was forcibly if the victim was kidnapped, abducted, or unlawfully raped at gunpoint. The offense guideline for criminal sexual restrained during the commission of, or in connection assault is U.S.S.G. § 2A3.1, which specifies a base offense with, another offense . . . or if another offense was level of 27 and includes an adjustment for kidnapping, abduction, or unlawful restraint as a specific offense characteristic. The district court, applying the specific consecutive with Co unts 2 and 4. offense characteristics of U.S.S.G. § 2A3.1(b)(1) and 2A3.1(b)(5), determined the resulting offense level to be 35. 8 The court concluded that because the offense level under U.S.S.G. § 3C1.1. Obstructing or Impeding the Administration of Justice U.S.S.G. § 2A3.1 was greater than the base offense level If (A) the defendant willfully obstructed or impeded, or attempted to under § 2A4.1, § 2A4.1(b)(7) required the use of § 2A3.1 and obstruct or impede, the administration of justice during the course of prohibited the application of § 2A4.1. Cole argues that this the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the conclusion was erroneous. defendant's offense of conviction an d any relevant conduct; or (ii) a closely related offense, increase the offense level by 2 levels. While this Court has not yet addressed this issue, each and every one of the courts of appeals that has done so has 9 The sentence breaks down in the following manner: 405 months on determined the use of U.S.S.G. § 2A3.1 to enhance a sentence Count 2, kidnapping; 120 months on Count 4, assault, to run concurrent for kidnapping to be appropriate. We are inclined to agree with Count 2; and 84 months on Count 6, the firearm charge, to run with the circuits that have heretofore so held, and thus the consecutive with Co unts 2 and 4. Nos. 02-5839/5840 United States v. Cole, et al. 9 10 United States v. Cole, et al. Nos. 02-5839/5840

district court was correct in proceeding from U.S.S.G. An enhancement is provided when the offense is § 2A4.1(b)(7)(A) to U.S.S.G. § 2A3.1.10 As the Court in U.S. committed for ransom or to facilitate the commission of v. Galloway, 963 F.2d 1388 (10th Cir.1992), reasoned: another offense. Should the application of this guideline result in a penalty less than the result achieved by We find that § 2A4.1(b)(5) is not ambiguous. When a applying the guideline for the underlying offense, apply victim is kidnapped in order to facilitate the commission the guideline for the underlying offense (e.g. § 2A3.1, of another offense, § 2A4.1(b)(5) directs the sentencing Criminal Sexual Abuse). court to apply the guideline with the higher offense as between the kidnapping guideline and the guideline for The Sentencing Commission’s intent to apply the higher the other offense. The background notes to § 2A4.1 of the two guidelines is unmistakable. explain: Id. at 1391. It could be argued that U.S.S.G. §§ 2A4.1 and 2A3.1 overlap to such an extent that a feasible alternative means of 10 sentencing would be to use § 2A4.1 and then add three levels See United States v. M ichaud, 268 F.3d 728, 738 -39 (9th Cir. for sexual exploitation under specific offense characteristic 2001)(upholding actions of district court identical to those here at issue: (b)(5) of that guideline. However, the general application “Section 2A4 .1(b)(7) states unambiguously that the offense level principles of the U.S.S.G. in the section titled, “Application calculation from the other offense com mitted during a kidnapp ing is to app ly ‘if the resulting offense level is greater than that determined’ using Instructions,” require that, “[w]here two or more guideline § 2A4 .1"); Un ited States v. R ice, No. 00-45 94, 2001 W L 1087 68 (4th Cir. provisions appear equally applicable, but the guidelines Feb. 8, 2001); United States v. C ree, 166 F.3d 1270 (8th Cir. authorize the application of only one such provision, use the 1999)(upho lding district court’s application o f § 2A 3.1 base offense level provision that results in the greater offense level.” U.S.S.G. for criminal sexual abuse, rather than the lower b ase offense level of § 1B1.1, Application Note 5. This statement dispels with any 2A4.1 for kidnapping, even though sexual assault was committed outside of federal territorial jurisdiction); United States v. Lew is, 115 F.3d 1531 need to determine which allegedly conflicting section (11th Cir. 19 97); United States v. Po llard, 986 F.2d 44, 46 (3rd Cir. 1993) controls. Clearly, the provision resulting in the greater (upholding conviction and ruling of district court that applied sentencing offense level is U.S.S.G. § 2A3.1. As a result, the correct guideline for criminal sexual abuse to a defendant convicted of conspiracy guideline was used. to kidnap even though he was not charged with an assault offense, stating: “There is no statuto ry or co nstitutional requirement that a defendant be convicted of cond uct before the cond uct may be co nsidered in B. The Four-Level Sentence Enhancement for sentencing.”); Un ited States v. An derso n, 5 F.3d 795 (5th Cir. Abduction under U.S.S.G. § 2A3.1(b)(5) 1993)(though this court had not previously applied U.S.S.G. § 2A4.1(b)(7) in the criminal sexual abuse context, it had approved the The district court sentenced Cole for the crime of section-switching provision of the guideline and cited as authority cases kidnapping. However, in so doing, it correctly employed of the T hird an d T enth C ircuits listed herein); United States v. Galloway, U.S.S.G. § 2A3.1 as the offense guideline, thereby ultimately 963 F.2d 1388, 1391 (10th Cir. 1992)(“The Sentencing Co mmission’s intent to apply the higher of the two guidelines is unmistakable. . . . The sentencing him for criminal sexual assault and abduction. fact that a defendant may have committed a second additional offense Cole asserts that the district court’s use of the specific offense cannot relieve him from responsibility for the more serious of the characteristic (b)(5) of U.S.S.G. § 2A3.1, which calls for an offenses. If that were the case, a defendant would receive a benefit from increase of four from the base offense level when the victim the fact that he chose to commit an additional offense”). Nos. 02-5839/5840 United States v. Cole, et al. 11 12 United States v. Cole, et al. Nos. 02-5839/5840

was abducted, is an impermissible double counting because C. Diminished Capacity and Aberrant Behavior an essential element of kidnapping is abduction. Cole argues that the four level enhancement “would enhance for the very Although “a district court’s discretionary decision not to action which defines the crime itself.” Appellant’s Br. at 10. depart downward from the Guidelines range ordinarily is not appealable,” an appeal is allowed “when the district court As noted above, this Court reviews a district court’s believed that it lacked any authority to depart downward as a application of the sentencing guideline de novo, while factual matter of law.” United States v. Burke, 237 F.3d 741, 743 findings are upheld unless they are clearly erroneous. See (6th Cir. 2001). United States v. Weekly, 130 F.3d 747, 750 (6th Cir. 1997). 1. Diminished Capacity This Court has held, albeit on different facts, that “impermissible ‘double counting’ occurs when precisely the At Cole’s sentencing hearing, the district court concluded same aspect of a defendant’s conduct factors into his sentence that, based on expert trial testimony, Cole suffered from in separate ways.” United States v. Farrow, 198 F.3d 179, diminished capacity. However, the district court denied a 193 (6th Cir.1999) (citing United States v. Perkins, 89 F.3d downward departure from the applicable sentencing 303, 310 (6th Cir.1996)). Applying this established tenet to guideline, finding that the guideline limitations prohibited the instant case, it is clear that no impermissible double such a departure. counting has occurred. Cole was convicted of kidnapping. Appropriately, the district court proceeded to U.S.S.G. U.S.S.G. § 5K2.13, titled “Diminished Capacity,” states § 2A4.1 as the applicable sentencing guideline with respect to that the district courts have the discretion to grant a kidnapping. That section required the court to proceed to downward departure from the applicable sentencing U.S.S.G. § 2A3.1. The district court sentenced Cole for guidelines “if the defendant committed the offense while criminal sexual assault and increased the base offense level by suffering from a significantly reduced mental capacity.” four pursuant to U.S.S.G. § 2A3.1(b)(1) because the offense U.S.S.G. § 5K2.13. However, this policy statement is involved the use of force, and again by four pursuant to limited, in that the district court has no such discretion if “the U.S.S.G. § 2A3.1(b)(5) because he had abducted his victim. It cannot be said that the district court took into account Cole’s act of kidnapping when it turned to U.S.S.G. § 2A3.1. enhanced the sexual abuse base offense level for the abduction of the Clearly, kidnapping and sexual assault are two independent victim. Id. at 799. The defendant argued that “the court already took the and separate crimes, and should be considered separately at kidnapping offense into consideration when it began its calculations with sentencing.11 section 2A4.1, the kidnapping guideline.” Id. The Fifth Circuit summarily rejected this argument. It stressed that the Sentencing Guidelines “expressly pro vide that an entire guideline shall 11 be applied upon reference from another guideline.” Id. The court cited This Court is also guided by the Fifth Circuit decision in United U.S.S.G. § 1B1.5(a), which states that “[a] cross reference ( an instruction States v. An derso n, 5 F.3d 795 (5th Cir. 1993), in finding that the district to apply another guideline) refers to the entire offense guideline (i.e., the court herein properly applied the complained-of four level enhancement base offense level, specific offense characteristics, cross references, and unde r U.S .S.G. § 2A3.1(b)(5). Anderson presented facts similar to those special instructions.)” U .S.S.G . § 1B 1.5(a). As a result of this language, in the instant matter, where the defendant likewise argued that the district the court concluded that the district court had not erred in its application court engaged in “impermissible double counting” when, after beginning of the Sentencing Guidelines and hence, there was no impermissible with U.S.S.G. § 2A4 .1, and turning to U.S.S.G. § 2A3.1, the district court double co unting. Anderson, 5 F.3d at 799. Nos. 02-5839/5840 United States v. Cole, et al. 13 14 United States v. Cole, et al. Nos. 02-5839/5840

facts and circumstances of the defendant’s offense indicate a that it lacked the discretion to grant a downward departure need to protect the public because the offense involved actual from the Sentencing Guideline.13 violence or a serious threat of violence.” U.S.S.G. § 5K2.13. 2. Aberrant Behavior A crime of violence includes any offense that “(1) has as an element the use, attempted use, or threatened use of physical Cole advances the further argument that the district court force against the person of another, or (2) . . . otherwise erred in concluding that it lacked the authority to grant a involves conduct that presents a serious potential risk of downward departure in light of Cole’s aberrant behavior. physical injury to another.” U.S.S.G. § 4B1.2(a).12 Cole was Based on the following review, this Court holds that the convicted of kidnapping under 18 U.S.C. § 1201, assault district court was correct in so concluding.14 U.S.S.G. under 18 U.S.C. § 111, and use of a firearm during a crime of § 5K2.20 gives district courts the leeway to depart downward violence pursuant to 18 U.S.C. § 924(c). “in an extraordinary case if the defendant’s criminal conduct

Although the crime of kidnapping lacks the element of use or threat of use of physical force against another, it falls under 13 that language of U.S.S.G. § 4B1.2(a)(2), as it involves Cole argues that the prohibition of downward departures in relation to violent crimes results in cruel and unusua l punishment with respect to “conduct that presents a serious potential risk of physical defendants such as himself who possess limited functioning. Cole states injury to another.” U.S.S.G. § 4B1.2. The use of force is in his brief that “[t]he very dim inished capa city that he p ossesses limits integral to a conviction for assault, as 18 U.S.C. § 111 is his ability to comprehend and ap preciate the differences between the violated when one “forcibly assaults . . . any person . . .” commission of a violent and non-vio lent offense and the relative effects 18 U.S.C. § 111. Vis a vis the firearm charge, Cole pled of sentencing as well.” A ppe llant’s Br. at 12. However, Cole neglec ts to cite even o ne authority supporting his constitutional argument, and thus guilty to a violation of 18 U.S.C. § 924(c). That section states this argum ent is deemed waived. See, e.g., Mc Pherson v. Kelse y, 125 that “[a]ny person who, during and in relation to any crime of F.3d 989, 995-96 (6th Cir. 1997)(“issues adverted to in a perfunctory violence . . . uses or carries a firearm” will, in addition to manner, unacc omp anied by som e effort at developed augmentation, are being punished for the underlying crime, be punished for deemed waived. It is not sufficient for a party to mention a possible incorporating a firearm into the commission of the crime. argument in the mo st skeletal way, leaving the court to . . . put flesh on its bones.”)(quoting Citizens Awareness Network, Inc. v. U.S. Nuclear 18 U.S.C. § 924(c)(emphasis added). Because 18 U.S.C. Regulatory Comm ’n, 59 F.3d 284, 293-94 (1st Cir. 1995)). Furthermore, § 924(c) is only violated if a gun is used in connection with a majo rity of the courts of appeals have denied downward departures a “crime of violence,” it is inherent that a conviction under U.S.S.G. § 5K2.13 in cases involving violent crime s, see, e.g.,U.S. thereunder “involves” a crime of violence. It is thus clear that v. Mo rin, 124 F.3d 649 (4th Cir. 19 97), U.S. v. Th ames, 214 F.3d 608 (5th each of the offenses for which Cole was convicted meets the Cir. 200 0); U.S. v. Maddelena , 893 F.2d 815 (6th C ir. 198 9); U.S. v. Mayotte, 76 F.3d 887 (8th C ir. 199 6); U.S. v. Petitta, 899 F.2d 122 6 (9th definition of a “crime of violence” under U.S.S.G. Cir. 1990), whether the defendant suffered from diminished capacity or § 4B1.2(a), and the district court was correct in concluding not. See, e.g., U.S . v. Sullivan, 75 F.3d 29 7 (7th Cir. 1996)(defendant unsuccessfully arguing that the denial of a downward departure on diminished capacity groun ds violated his D ue Pro cess and Equal Protection rights). 12 This Court has held that the definition of “crime of violence” 14 within U.S.S.G. § 4B 1.2 “can be read in concert with § 5K2.13,” thereby “[A] district court’s determination that it lacked authority to depart providing guidance as to wha t does and does not constitute a violent downward is a matter of Guidelines interpretation that we review de offense. Un ited States v. C lements, 144 F.3d 981, 982 (6th Cir. 1998). nov o.” U nited States v. Bu rke, 237 F.3d 74, 7 43 (6th Cir. 200 1). Nos. 02-5839/5840 United States v. Cole, et al. 15 16 United States v. Cole, et al. Nos. 02-5839/5840

constituted aberrant behavior.” U.S.S.G. § 5K2.20. a sentence above the guideline range “[i]f the defendant’s However, this policy statement is limited in that no departure conduct was unusually heinous, cruel, brutal, or degrading to is permitted if “(1) the offense involved serious bodily injury the victim,” so as to “reflect the nature of the conduct.” or death; [or] (2) the defendant . . . used a firearm or a U.S.S.G. § 5K2.8. Examples of actions constituting “extreme dangerous weapon.” U.S.S.G. § 5K2.20. conduct” include “torture of a victim, gratuitous infliction of injury, or prolonging of pain or humiliation.” Id. In The district court denied a downward departure with characterizing Cole’s actions as involving extreme conduct, respect to the assault charge because the victim was raped - the district court noted the following aspects of the crime as clearly a crime involving serious bodily injury. The district relevant: (1) the victim was raped by more than one court apparently failed to specifically address the crimes of participant; (2) the sexual assaults were repeated over a four- kidnapping and use of a firearm at sentencing, but again, no hour period at gunpoint; (3) the victim’s life was threatened; downward departure would be permitted for these crimes and (4) the “obvious terror” the victim must have felt. In because Cole and his accomplice used a .38 caliber gun sum, the district court characterized the crime as “an during the offense. afternoon of terror” for the victim, finding that this was “more than the average rape victim has to deal with.” J.A. at 215. D. Three-Level Upward Departure for Extreme Conduct This Court has consistently affirmed district court decisions granting upward departures pursuant to U.S.S.G. § 5K2.8. The district court deviated from the applicable sentencing See, e.g., United States v. Sizemore, No. 99-6321, 238 F.3d guideline, and granted an upward departure of three levels 425, 2000 WL 1871723, at * 1 (6th Cir., Dec. 12, based on U.S.S.G. § 5K2.8, titled “Extreme Conduct.” Cole 2000)(affirming four-level upward departure where drug argues that his conduct did not constitute “extreme behavior,” conspirators tortured co-conspirator); United States v. Davis, and asserts that none of the examples cited in U.S.S.G. 170 F.3d 617, 624 (6th Cir. 1999)(affirming eight-level § 5K2.8 (torture of a victim, gratuitous infliction of injury, or upward departure where wire-fraud defendant intentionally prolonging of pain or humiliation) apply to this case. inflicted psychological harm on elderly, sick telemarketing victims by being “loud, rude, obnoxious, [and] controlling”); This Court reviews a district court’s departure from the United States v. Harris, 943 F.2d 53, 1991 WL 165586, at *3 recommended Guidelines sentence under an abuse of (6th Cir. Aug. 27, 1991) (affirming ten and twelve-level discretion standard. See, e.g., United States v. Baker, 339 departures where witness-tamperers abducted witness and F.3d 400, 403 (6th Cir. 2003). Congress permits district raped witness’s wife). It would appear from this line of cases courts to depart from the relevant guideline range if “there that repeated sexual assaults by multiple participants over a exists an aggravating or mitigating circumstance of a kind, or four-hour period at gun point could be characterized as to a degree, not adequately taken into consideration by the heinous, brutal, cruel and degrading to the victim. Sentencing Commission.” Koon v. United States, 518 U.S. Furthermore, such assaults could be said to have included 81, 92 (1996)(quoting 18 U.S.C. § 3553(b)). The policy statement in U.S.S.G. § 5K2.8, upon which the district court based its decision regarding the upward departure, provides district courts with discretion to increase Nos. 02-5839/5840 United States v. Cole, et al. 17 18 United States v. Cole, et al. Nos. 02-5839/5840

“prolonging of pain or humiliation” under U.S.S.G. facts constitutes obstruction of justice is a mixed question of § 5K2.8.15 law and fact that we review de novo. Finally, once a district court has determined that a defendant obstructed justice, then IV. DEFENDANT/APPELLANT JOHNSON application of a two-level enhancement at that point is mandatory, and we review the enhancement de novo.” A. Two-Point Offense Level Increase for Obstruction Middleton, 246 F.3d at 846. However, in United States v. of Justice Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002), we held that, in light of Buford, a clear error standard of review was Defendant Johnson argues that the district court erred in “appropriate for reviewing sentencing decisions under increasing his offense level by two points for obstruction of § 3C1.1, where the sole issue before the district court is a justice under U.S.S.G. § 3C1.1. The district court found that fact-bound application of the guideline provisions,” Id. at when Johnson wilfully threatened the victim at a time when 390. We decline at this time to endorse a particular approach, an investigation had commenced, he was in fact guilty of as the district court’s decision here is correct under either.16 obstruction of justice under U.S.S.G. § 3C1.1. The district court found that the threats made by Johnson to This Court acknowledges that it has utilized two differing the victim fell squarely into the examples given in standards of review when examining a district court’s Application Note 4(a) of U.S.S.G. § 3C1.1; specifically that application of U.S.S.G. § 3C1.1. The confusion on this issue the defendant threatened the witness directly. 17 The district proliferated following the Supreme Court’s decision in Buford v. United States, 532 U.S. 59 (2001), in which the Court called for greater deference when reviewing a district 16 court’s “fact-bound” application of a sentencing guideline. U.S.S.G. § 3C1.1, titled, “Obstructing or Impeding the Administration of Justice,” provides that “[i]f (A) the defendant wilfully Id. at 66. Thereafter, we have applied both a tri-partite obstructed or impeded, or attempted to obstruct or impede, the standard of review and a more deferential clear-error standard. administration of justice during the course of the investigation, In United States v. Middleton, 246 F.3d 825, 845-46 (6th Cir. prosecution, or sentencing of the instant offense of conviction, and (B) the 2001), and United States v. Camejo, 333 F.3d 669 (6th Cir. obstructive conduct related to (i) the defendant’s offense of conviction 2003), we applied the three-part standard: “First we review and any relevant conduct; or (ii) a closely related offense, increase the the factual determinations made by the district court for clear offense level by 2 levels.” Among the examples given of the cond uct to which the adjustment applies is “threatening, intimidating, or otherwise error. Second, a district court’s conclusion that a given set of unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attem pting to do so .” U.S .S.G. § 3C 1.1, A pplication N ote 4(a). 15 Because U.S.S.G. § 2A 4.1(b)(4 )(C) reduces the offense level if the 17 victim is released in less than 24 hours, Cole argues that the four hours The Court also found that the threats fell within the language of involved here should be viewed as “abnorm ally short.” However, Cole Application No te 4(i), wh ich says tha t the obstruction of justice was not sentenced und er U.S.S.G. § 2A4.1, and therefore that particular enhancement applies also to “other conduct prohibited by obstruction of offense characteristic bears no application in this case. Furthermore, justice provisions under Title 18, United States Code.” U.S.S.G. § 3C1.1, Application Note 5 of U .S.S.G. § 2A3.1, the relevant sentencing Application Note 4(i). The Court found that 18 U.S.C. § 1512(b) was guideline, states that an upward departure may be warranted “[i]f a victim violated by Johnson’s cond uct. 18 U .S.C. § 1512(b ) is violated when one was sexually abused by more than one participa nt,” and goes on to “knowingly uses intimidation or physical force, threatens, or co rruptly reference U.S.S.G. § 5K 2.8. Therefore, it would appear that the fact of persuades another person, o r attemp ts to do so . . . with intent to multiple particip ants, stand ing alone, warrants an upw ard d eparture. (3) hinder, delay, or prevent the communication to a law enforcement Nos. 02-5839/5840 United States v. Cole, et al. 19 20 United States v. Cole, et al. Nos. 02-5839/5840

court did not err in finding that Johnson’s threats to the victim wilfully, this Court will affirm the district court’s decision to were made in the hope that the victim would not report the enhance his sentence upward pursuant to U.S.S.G. § 3C1.1. crime to police, and thus constituted an obstruction of justice. See United States v. Brown, 237 F.3d 625 (6th Cir. B. Three-Level Sentence Enhancement for Extreme 2001)(threats made by defendant to potential witness Conduct “substantively amount to obstruction of justice.”) Johnson’s victim reported that, toward the end of her captivity, Johnson The district court deviated from the applicable sentencing found an insurance card in the glove box of her vehicle and guideline and granted an upward departure of three levels told her that he had her address and would “send someone to based on U.S.S.G. § 5K2.8, titled “Extreme Conduct,” when kill her” if she told anyone about the incident. Johnson also calculating the total offense level with respect to Defendant repeatedly stated that he ought to kill her because she had Johnson. seen his and Cole’s faces. The policy statement in U.S.S.G. § 5K2.8, upon which the As to whether Johnson wilfully obstructed justice, this district court based its decision regarding the upward Court concludes that he intentionally threatened the victim at departure, provides district courts with discretion to increase a time when he knew or should have known that an a sentence above the guideline range “[i]f the defendant’s investigation had probably commenced. When the victim conduct was unusually heinous, cruel, brutal, or degrading to was abducted she was the only employee at the post office. the victim,” so as to “reflect the nature of the conduct.” It seems implausible that Johnson did not consider that when U.S.S.G. § 5K2.8. Examples of actions constituting “extreme the other employees returned from lunch, they would see that conduct” include “torture of a victim, gratuitous infliction of the post office was left abandoned, no note was left to explain injury, or prolonging of pain or humiliation.” Id. the victim’s absence, and all of the victim’s belongings remained there except for her car keys. This conclusion is As it had done with respect to Defendant Cole, in further bolstered by the fact that Johnson knew the victim was characterizing Defendant Johnson’s actions as involving the only employee on duty at the time he and Cole were extreme conduct, the district court noted the following aspects present at the post office, and went to the trouble of hiding the of the crime as relevant: (1) the victim was raped by more gun used in the crime. Finally, when Postal Inspector than one participant; (2) the sexual assaults were repeated Chalmers asked Cole how he found out that the police were over a four-hour period at gunpoint; (3) the victim’s life was looking for him and Johnson, Cole stated that Johnson’s sister threatened; and (4) the “obvious terror” the victim must have had stopped them in the road and told them. This occurred felt. Johnson argues that to impose an upward departure before the victim was released. Therefore, because Johnson based on the fact that the victim was sexually assaulted by made threats constituting an obstruction of justice, and did so more than one participant results in punishing Johnson for the actions of Cole. However, Johnson fails to cite a single case to further develop this argument, and thus it is deemed waived. See United States v. Corrado, 304 F.3d 593, 611 officer . . . of information relating to the commission . . . of a Federal offense . . .” 18 U .S.C. § 151 2(b). This Court has previously recognized that conduct prohibited by 18 U.S.C. § 1512 is an appropriate ground for a two-level increase for obstruction of justice under U.S.S.G. § 3C1.1. See, United States v. R aha l, 191 F.3d 642, 647 (6th Cir. 1999). Nos. 02-5839/5840 United States v. Cole, et al. 21

n.12 (6th Cir. 2002).18 Thus, this Court finds that the district court correctly granted an upward departure pursuant to U.S.S.G. § 5K2.8 and § 2A3.1. V. CONCLUSION Accordingly, we AFFIRM the judgment of the district court.

18 That aside, Johnson’s argument still fails. It is a clear tenet of American law that one can be held accountable for the acts of another conspirator. See, e.g., Pinkerton v. U.S., 328 U .S. 640(1946)(overt acts of one co-conspirator in a conspiracy are in law the acts of all). The Third Circuit has also had no hesitation in granting an upward departure under U.S.S.G. § 2A3.1, Application Note 5, with its reference to § 5K2.8, based on sexual abuse by more than one pa rticipant. United States v. Qu eensborough, 227 F.3d 149 (3rd Cir. 20 00).