United States v. Queensborough

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

9-15-2000

United States v. Queensborough

Precedential or Non-Precedential:

Docket 99-3636

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Filed September 15, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 99-3636

UNITED STATES OF AMERICA

v.

KEENE COURTNEY QUEENSBOROUGH,

Appellant

On Appeal from the District Court of the Virgin Islands

Division of St. Thomas/St. John

(D.C. Crim. No. 96-cr-00090-1

District Judge: Hon. Thomas K. Moore

Argued April 10, 2000

Before: SLOVITER, ROTH and STAPLETON, Circuit Judges

(Filed September 15, 2000)

Thurston T. McKelvin

Federal Public Defender

Pamela Lynn Wood (ARGUED)

Assistant Federal Public Defender

St. Thomas, U.S. Virgin Islands

00804-1327

Attorneys for Appellant

James A. Hurd, Jr.

United States Attorney

Kim L. Chisholm (ARGUED)

Assistant United States Attorney

Charlotte Amalie, U.S. Virgin Islands

00802-6424

Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Appellant Keene Courtney Queensborough, who pled

guilty pursuant to a plea agreement to two counts of a

seven count indictment, appeals from the judgment of

sentence. He raises four issues, but in essence all challenge

the District Court's grant of an upward departure under the

federal sentencing guidelines.

I.

FACTS AND PROCEDURAL HISTORY

On February 15, 1996, Queensborough and Boman

Rabsatt, a juvenile, accosted a man and a woman who were

staying at the Cinnamon Bay Campground, which is part of

the United States National Park in St. John, Virgin Islands.

They first robbed the campers; then they forced them to an

isolated section of the beach area. Rabsatt took the male

victim further down the beach, forced him to lie face down,

and put something that felt like a gun to the back of his

head. Queensborough took the female victim over to some

rocks and ordered her to take off her pants. When she

began to pray aloud, he threatened to kill her. After

demanding that she turn around and face the rocks,

Queensborough held a gun to the woman's head and raped

her. During the rape he told her, "[i]f you make a sound, I'll

blow your fucking head off." Queensborough also forced the

woman to perform oral sex, and raped her again.

2

Queensborough then said that his friend "had to have

some of what he just had." He took the woman to the place

where her male companion was being held and switched

places with Rabsatt, who also raped the woman repeatedly

at gunpoint and forced her to perform oral sex.

Queensborough and Rabsatt then brought the man and the

woman back together and began to talk about killing them.

One of the perpetrators said that they had a boat and that

"two other guys were waiting for them." One perpetrator

also said that they might bring the woman with them and

asked her if she could swim a half mile. Queensborough

and Rabsatt then ordered the man and the woman to have

sex with each other while the two perpetrators watched.

Throughout the ordeal, they threatened the two victims

with death at the point of a gun.

Both rapists were apprehended and charged.

Queensborough was indicted in the District Court of the

Virgin Islands, Division of St. Thomas/St. John, on seven

counts as follows: Count One for aggravated rape; Count

Two for kidnapping with intent to commit rape; Count

Three for kidnapping; Counts Four and Five for robbery;

Count Six for possession of a deadly weapon during

commission of a crime of violence; and Count Seven for

carrying a firearm during and in relation to a crime of

violence. Counts One through Six charged violations of

territorial law, five of which were assimilated into federal

law pursuant to the Assimilative Crimes Act (ACA), 18

U.S.C. S 13(a).1 Count Seven charged a violation of a federal

criminal statute.

_________________________________________________________________

1. The ACA provides that:

Whoever within or upon any [federal enclave] is guilty of any act

or

omission which, although not made punishable by any enactment of

Congress, would be punishable if committed or omitted within the

jurisdiction of the State [or] Territory . . in which such place is

situated, . . . shall be guilty of a like offense and subject to a

like

punishment.

18 U.S.C. S 13(a).

We have explained:

Under the ACA, if conduct prohibited by state [or territorial] law

occurs on federal land, the state criminal law is assimilated into

3

There was a delay in proceeding with the charges against

Queensborough during the period he was declared not

competent to stand trial. After he was declared to have

regained his competency, Queensborough reached a plea

agreement with the government pursuant to which he pled

guilty to Count One, which charged the assimilated crime

of aggravated rape, in violation of Title 14 V.I.C.,SS 1701(2)

and 1700(c) and 18 U.S.C. SS 13 and 2, and Count Seven,

carrying a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. S 924(c)(1) and 2.

The plea agreement between Queensborough and the

government provides that "[t]he United States Attorney

reserves its right to allocute at the time of sentencing . . . .

The government further agrees to recommend a sentence

within the applicable Guidelines range." App. at 103. It also

contains the following:

The parties agree that the Court shall be free to impose

whatever sentence is deemed appropriate, and that the

Court shall not be bound by the parties'

recommendations at the time of sentencing.

The parties agree that the final determination of the

applicable sentence under the Guidelines, including

any and all adjustments and determination of the

defendant's criminal history category, shall be left to

the Court after its review of the Presentence Report.

However, the parties shall be free to object to any

Guideline calculations and other information contained

in the Presentence Report, and to appeal from the

sentence imposed . . . .

App. at 105.

The total offense level for the aggravated rape was 32 and

the guideline range for that count was 121-151 months

_________________________________________________________________

federal law so long as that conduct is not already made punishable

by any `enactment of Congress.' In other words, the ACA fills gaps

in the law applicable to federal enclaves, ensures uniformity

between

criminal prohibitions applicable within the federal enclave and

within the surrounding state, and provides residents of federal

enclaves with the same protection as those outside its boundaries.

United States v. Hall, 979 F.2d 320, 322 (3d Cir. 1992) (citation

omitted).

4

imprisonment.2 After hearing from the parties on the

sentencing issue, the court sentenced Queensborough on

the aggravated rape count to a term of twenty years

imprisonment, which represented a substantial upward

departure. On the firearm count, the court sentenced

Queensborough to a term of 60 months imprisonment, to

be served consecutively, a term set by statute pursuant to

U.S.S.G. S 2K2.4 and 18 U.S.C. S 924(c). Queensborough's

attorney objected to the District Court's sentence as an

abuse of discretion. App. at 97. After the sentencing

hearing was completed, Queensborough's attorney raised

"an additional objection to the legality of the sentence,"

stating that although she and Queensborough had been

given notice by the Probation Office of "a possibility of

upward departure," they had not been given notice"that

there was actually going to be an upward departure." App.

at 101.

Queensborough filed a timely appeal. The District Court

had jurisdiction over this case pursuant to 18 U.S.C.

S 3231 and this court has jurisdiction over the appeal

under 28 U.S.C. S 1291.

II.

DISCUSSION

A.

Notice of Intent to Upwardly Depart

Queensborough first argues that the District Court failed

to give him reasonable notice of its intent to upwardly

depart from the sentencing guidelines and failed to identify

with specificity the grounds for said departure.

_________________________________________________________________

2. The Sentencing Guidelines apply to convictions under the ACA and

direct the sentencing court to "apply the most analogous offense

guideline." U.S.S.G. S 2X5.1. Here, the court applied the guideline in

U.S.S.G. S 2A3.1 for criminal sexual abuse as most analogous to the

crime of aggravated rape.

5

Although Rule 32 of the Federal Rules of Criminal

Procedure does not contain any language requiring that the

District Court give the defendant notice of a possible

upward departure, the Supreme Court has held that,

before a district court can depart upward on a ground

not identified as a ground for upward departure either

in the presentence report or in a prehearing submission

by the Government, . . . the district court[is required

to] give the parties reasonable notice that it is

contemplating such a ruling. This notice must

specifically identify the ground on which the district

court is contemplating an upward departure.

Burns v. United States, 501 U.S. 129, 138-39 (1991)

(emphasis added); see also United States v. Barr , 963 F.2d

641, 655-56 (3d Cir. 1992).

The government argues that Queensborough was given

advance notice that satisfied Burns because the ground for

departure on which the court relied was "identified as . . .

ground[s] for upward departure . . . in the presentence

report." 501 U.S. at 138. The government refers to the

following language in the PSR, which appears under the

heading "Factors That May Warrant Departure":

91. Presentation of information in this section does

not necessarily constitute a recommendation by the

probation officer for a departure.

92. According to U.S.S.G. S 2A3.1, Application Note 5,

"If a victim was sexually abused by more than one

participant, an upward departure may be warranted,

See S 5K2.8 (Extreme Conduct)."

Like the government, the District Court regarded the PSR

as having provided the requisite notice. In sentencing

Queensborough, the court stated:

As is recited in the Presentence Report, and so that

counsel had notice, Paragraph 92, according to the

basic Sentencing Guideline that applies here for

criminal sexual abuse, an upward departure is

warranted if the victim was sexually abused by more

than one participant, and as well under Section

5(k)(2.8) [sic], which deals with extreme conduct.

6

And as it says, if the defendant's conduct is

unusually heinous, cruel, brutal or degrading -- well,

for a rape, I don't know that it qualifies as unusually

heinous, cruel or brutal; however, to then order the

two victims to have sex themselves, in your presence,

at the point of a gun, is unusually degrading. So I'm

not going to prolong it any longer.

App. at 95 (emphasis added).

The District Court thus read the PSR to give notice (1)

that an upward departure was warranted (2) based on the

sexual abuse by two perpetrators and other extreme

conduct in connection with the sexual abuse. We agree

with the District Court's conclusion that the PSR gave the

required notice that a departure could be warranted and

that it could be on the basis of extreme conduct, a

conclusion supported by the PSR's reference to S 5K2.8 and

extreme conduct in its quotation of the application note.

Queensborough relies on two opinions in support of his

contention that he was not given the required notice: the

Supreme Court's opinion in Burns and this court's decision

in Barr. In Burns, a former supervisor in the United States

Agency for International Development (AID) who had

authorized payment of AID funds into an account that he

controlled pled guilty to a three-count information charging

him with theft of Government funds, making false claims

against the government, and attempted tax evasion. The

plea agreement expressed the parties' expectation that the

petitioner would be sentenced within the guidelines range

corresponding to an offense level of 19 and a criminal

history category of I. The PSR confirmed this expectation

and expressly concluded that "[t]here are no factors that

would warrant departure from the guideline sentence."

Burns, 501 U.S. at 131. Nonetheless, the district court

departed upward from the guideline sentencing range

without any prior notice to the defendant. The district court

based its departure on (1) the extensive duration of

petitioner's criminal conduct; (2) the disruption to

governmental functions caused by petitioner's conduct; and

(3) petitioner's use of his tax evasion offense to conceal his

theft and false claims offenses.

7

It was in this "extraordinary case," id. at 135, where the

defendant was given no inkling in either the PSR or in a

prehearing submission by the government that there might

be grounds for an upward departure, that the Supreme

Court held that Fed. R. Crim. P. 32 required the district

court to provide "reasonable notice that it [was]

contemplating" an upward departure and to specifically

identify the ground for the contemplated departure. The

Court expressly noted that "[i]n the ordinary case, the

presentence report or the Government's own

recommendation will notify the defendant that an upward

departure will be at issue and of the facts that allegedly

support such a departure." Id. Unlike the"extraordinary"

situation in Burns, here the PSR did identify "a ground for

upward departure." Inasmuch as the PSR satisfied the

basic requirement of Burns ("before a district court can

depart upward on a ground not identified as a ground for

upward departure . . . in the presentence report"),

Queensborough was not entitled to additional notice from

the court.

Barr is similarly distinguishable. In that case, the district

court decided to depart upward by four levels based on the

fact that the defendant, a former assistant to the Attorney

General, "held a high ranking position with the Department

of Justice and that criminal activity by public officials tends

to erode public confidence in government." Barr, 963 F.2d

at 654. Unlike the PSR in Burns, the PSR in Barr did

identify a possible ground for departure in the section

captioned "Factors That May Warrant Departure," but it

identified only one possible ground, i.e., the commission of

" `the offense in order to facilitate or conceal the

commission of another offense.' " Id. at 652. The PSR

explicitly stated that the probation officer had" `identified

no other factors warranting a departure.' " Id. at 653.

On appeal, we held that the case was governed by Burns,

and reversed. We held that inasmuch as the PSR had not

identified the ground relied on by the district court as a

possible ground for upward departure, the defendant

should have received notice of the district court's intent to

depart based on his high ranking government position. We

noted that the government never directly requested a

8

departure and that the only reference to a "likelihood of

departure" based on the defendant's high ranking position

was the probation officer's statement, in an addendum to a

revised version of the PSR, that a letter submitted by the

government could be read to contain an "inference" that a

departure might be warranted by the "unique combination

of offense and Governmental position in Barr's case." Id. at

656. We held that "finding just an `inference'. . . does not

deem a departure appropriate or give the defendant

sufficient notice that a departure is sought." Id.

Here, by contrast, there was more than "just an

inference" that a departure might be appropriate. As we

have already explained, the District Court permissibly

interpreted paragraph 92 of the PSR as identifying sexual

abuse by two perpetrators and other extreme conduct in

connection with the sexual abuse as possible grounds for

departure. A reasonable reader would understand both

from the placement and language of paragraph 92 in

Queensborough's PSR that, in light of the circumstances,

an upward departure based on extreme conduct was both

possible and warranted. We disagree with Queensborough

that paragraph 92 was ineffective to give him notice simply

because paragraph 91 of the PSR stated that "information

in this section does not necessarily constitute a

recommendation . . . for a departure" (emphasis added).

The possible grounds were identified in the PSR, and we do

not read either Burns or Barr as requiring any more.

Queensborough makes the additional argument that he

lacked notice of the factual basis for the departure. We

disagree. Not only does the PSR review in excruciating

detail the circumstances of the sexual assaults on the

female victim but the PSR, under the heading Part E.

FACTORS THAT MAY WARRANT DEPARTURE, which

appears in large type and bold face, also quotes the

application note to U.S.S.G. S 2A3.1 which states that an

upward departure may be warranted when one of the

victims was sexually abused by more than one participant.

The application note, quoted verbatim in the PSR, then

includes a citation to U.S.S.G. S 5K2.8, and in parenthesis

"(Extreme Conduct)." That guideline, S 5K2.8, provides:

9

If the defendant's conduct was unusually heinous,

cruel, brutal, or degrading to the victim, the court may

increase the sentence above the guideline range to

reflect the nature of the conduct. Examples of extreme

conduct include torture of a victim, gratuitous

infliction of injury, or prolonging of pain or humiliation.

U.S.S.G. S 5K2.8.

That Queensborough's conduct was "unusually heinous,

cruel, brutal, or degrading to the victim" is evident from the

numerous facts previously detailed in the PSR, which

include multiple rapes, forced oral sex, two victims,

repeated death threats, and multiple attackers. The District

Court focused on the "unusually degrading" order to the

two victims to have sex in the presence of the perpetrators

when it stated that it was departing upward based on the

extreme conduct. App. at 95, 113. That there could be an

upward departure on this basis could have come as no

surprise to Queensborough; this aspect of his conduct

featured prominently in the PSR's discussion of his offense.3

In light of the explicit description of the sordid facts, we

believe Queensborough did not lack notice of the factual

basis for the departure. In fact, at sentencing

Queensborough's counsel did not object on the basis that

she lacked notice that these facts might support a

departure; indeed, she acknowledged having notice that

"there was a possibility of upward departure." App. at 101.

Her objection was simply to the lack of notice that"there

was actually going to be an upward departure." App. at

_________________________________________________________________

3. The PSR summarized the female victim's statement:

[T]he two rapists told [the victims] that they . . . would now have

sex

together and that she would be on top. One of them pushed [the

woman] down on top of [the man], who was now lying face-up in the

sand. The rapists told [the woman] to take off her clothes --

everything except her socks. [The man] was told to take off his

pants. [The victims] pretended to have sex but one of the rapists

put

his hand between their genital area and stated that[the man's]

penis was not hard. The rapist said that if [he] did not get hard

within thirty seconds, they would kill him. [The woman] pleaded

with the rapists to give [him] time, that he was frightened.

10

101. But Burns contains no such requirement and

Queensborough cites to no authority that does.

We conclude therefore that under the circumstances

here, Queensborough was given the notice required by

Burns.

B.

Breach of the Plea Agreement

Queensborough next asserts that the government violated

its plea agreement to recommend a sentence within the

applicable guidelines range. Queensborough concedes that

he did not raise this objection in the District Court.

However, we have stated that whether the government

violated the terms of a plea agreement is a question of law

subject to plenary review that may be raised on direct

appeal despite the defendant's failure to raise the issue at

sentencing. See United States v. Moscahlaidis , 868 F.2d

1357, 1360 (3d Cir. 1989). But see, e.g., United States v.

Conner, 930 F.2d 1073, 1076-77 (4th Cir. 1991) (reviewing

district court's resolution of whether government breached

plea agreement under clearly erroneous standard); United

States v. Ataya, 864 F.2d 1324, 1337 (7th Cir. 1988)

(same).

We have made clear that the government has an

obligation to " `adhere strictly to the terms of the bargain it

strikes with defendants.' " Moscahlaidis , 868 F.2d at 1361

(quoting United States v. Miller, 565 F.2d 1273, 1274 (3d

Cir. 1977)). "Because the defendant, by entering into the

plea, surrenders a number of her constitutional rights,

`courts are compelled to scrutinize closely the promise

made by the government in order to determine whether it

has been performed.' " United States v. Nolan-Cooper, 155

F.3d 221, 236 (3d Cir. 1998) (quoting United States v.

Hayes, 946 F.2d 230, 233 (3d Cir. 1991)). In determining

whether the government has violated the terms of the plea

agreement, we ask "whether the government's conduct is

consistent with the parties' reasonable understanding of the

agreement." United States v. Roman, 121 F.3d 136, 142 (3d

Cir. 1997) (quotation omitted).

11

The government does not disagree with Queensborough's

understanding that it was to recommend a sentence within

the applicable guidelines, and it maintains that it did.

Indeed, in her allocution at the sentencing hearing the

prosecutor stated that "the government believes that a

sentence of 151 months for the act of aggravated rape is an

appropriate sentence, covering the conduct of this

defendant . . . ." App. at 79-80. As the guideline range for

that crime was 121-151 months, the government's

recommendation is consistent with its plea agreement.

Queensborough argues that the government paid only

"lip service" to its agreement and that it implicitly suggested

to the court that an upward departure was warranted.

Queensborough's argument that the government failed to

honor its agreement is based on the following colloquy:

[THE GOVERNMENT] But the Court has to acknowledge

that these crimes are very serious and very savage.

This defendant raped -- this is a situation not so much

unlike the case of the sentencing Attorney Wood[for

Queensborough] mentioned, where a defendant

committed --

[THE COURT] It is like or not like?

[THE GOVERNMENT] It's not unlike that case, because this

is a situation where we have three separate acts of

sexual abuse occurring by this defendant that night.

[outlining each assault] . . . . So, this is a situation

where probably, you know, different acts of sexual

aggravated rape could have been charged, but only one

was charged to cover this conduct.

So I think that this is a very savage and very serious

crime. And even though the government in the plea

agreement has agreed to recommend the sentence

within the guideline range, the plea agreement does

acknowledge that a departure is warranted when

there's more than one victim.4

_________________________________________________________________

4. This appears to have been a misstatement. The prosecutor apparently

intended to refer to the presentence report, which would have been an

accurate reference. Queensborough now argues the slip of the tongue

supports his claim but made no attempt to correct the matter at the

sentencing level, where it was more likely to have been useful.

12

I think here we have a situation where you have

[female victim] being savagely abused by this

defendant, and then you have [male victim] as well

being abused by this defendant.

So, this is a situation, I think, that calls for a sentence

at the higher end of the guideline range, and the

government believes that a sentence of 151 months for

the act of aggravated rape is an appropriate sentence,

covering the conduct of this defendant against both

[victims].

[discussion of another case that the court had

questioned him about]

So the fact that there were two victims here is an

aggravating factor the Court should take into account. If

not, the government is recommending the high end of

the guideline range, but it is factor that would warrant

that sentence. . . .

App. 78-80 (emphases added).

The plea agreement provided that each side retained the

right to allocute at sentencing. This is the essence of the

government's allocution on this issue before the District

Court at sentencing. The government, having recommended

a sentence at the high end of the guideline range, offered

reasons in support of that recommendation. It happened

that those reasons, as the government noted, also

warranted an upward departure, but the government

explicitly stated that it was recommending a sentence

within the applicable guideline range. This was consistent

with the agreement. Nothing in the plea agreement suggests

or states that the government may not make the statements

it did.

Queensborough emphasizes the decision of the First

Circuit in United States v. Canada, 960 F.2d 263 (1st Cir.

1992), where the court stated that the government is

prohibited not only from an "explicit repudiation of the

government's assurances, but [the agreement] must in the

interests of fairness be read to forbid end-runs around

them." Id. at 269 (citation and quotations omitted). We

agree with the principle, but we do not agree with

Queensborough that the prosecutor made an "end run"

13

around the agreement in this case. Although the prosecutor

made a misstatement, see note 4 supra , the District Court

was aware of both the plea agreement and the PSR, and

there is no likelihood that it was influenced as a result.

Nor do we think that the prosecutor's remarks

concerning the savageness of Queensborough's conduct

constituted a breach of the plea agreement. The

prosecutor's statement, quoted above supra, was made in

response to defense counsel's argument that

Queensborough should be sentenced to 121 months, the

low end of the guideline range. In support of this argument,

defense counsel referred, inter alia, to the sentence given a

defendant named Caswell Fredericks in another rape case.

Fredericks had pled guilty to four aggravated rapes, and

Queensborough's counsel, in attempting to analogize to the

Fredericks situation, emphasized that Fredericks had"also

received the ten year minimum mandatory, and thefive

years on the gun . . . . And that was on four separate

occasions, each of which being an aggravated rape." App. at

69. We think it clear that, in this case, the prosecutor's

emphasis on the severity of Queensborough's crime and on

the fact that multiple rapes could have been charged for his

conduct was in response to the Fredericks allusion and was

intended to support the government's recommendation of

151 months, the high end of the guideline range, rather

than the 120 months to which Fredericks was sentenced.

Queensborough hones in on the following two sentences

of the government's allocution:

So the fact that there were two victims here is an

aggravating factor the Court should take into account.

If not, the government is recommending the high end

of the guideline range, but it is factor that would

warrant that sentence. . . .

App. at 80.

We do not agree with Queensborough's charge that by

this statement the prosecutor "only suggested a sentence

within the guidelines range . . . as an alternative if the

court did not upward depart." Appellant's Br. at 21. When

the entirety of the prosecutor's statements on

Queensborough's sentence is read, it is manifest that she

14

initially referred the court to the government's promise to

recommend a sentence within the guideline range, App. at

79, and then, on two occasions, explicitly stated that the

government was recommending to the court a sentence

within that range. App. at 79, 80. In that context, the

reference to "an aggravating factor" can only be read as a

basis for a sentence at the high end of the guideline range,

as the prosecutor made clear by adding "is [a] factor that

would warrant that sentence. . . ." App. at 80.

Queensborough does not point to any statement by the

prosecutor recommending that the court depart upward

because there is no such statement.

The plea agreement recognized that the District Court

was free to reject the government's recommendation. The

court chose to do so, and, as is evident from the court's

remarks, it did so on the basis of its abhorrence of the

circumstances of the crime. Notably, the plea agreement did

not provide that Queensborough was free to withdraw his

plea if the court sentenced him to a longer prison term. Cf.

United States v. Grant, 117 F.3d 788, 792 n.5 (5th Cir.

1997) (agreement provided that defendant could withdraw

guilty plea if court set an offense level higher than that in

the plea agreement). The prosecutor adhered to the terms of

the agreement, and we see no basis to vacate the sentence

on the ground of a breach of the plea agreement.

C.

Excessive Departure

In addition to his challenge to the process leading to the

departure, Queensborough asserts two separate but related

challenges to the fact of departure. First, he contends that

the District Court's decision to upwardly depart from the

guidelines based on extreme conduct is not supported by

the record and that such a departure was not permissible

under the guidelines. Second, he contends that the District

Court abused its discretion by imposing an excessive

upward departure. We review a district court's decision to

depart from the applicable guideline range for abuse of

discretion. See Koon v. United States, 518 U.S. 81, 99-100

15

(1996). "A district court by definition abuses its discretion

when it makes an error of law." Id. at 100.

A district court must order a sentence within the relevant

guideline range " `unless 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.' "

United States v. Kikumura, 918 F.2d 1084, 1098 (3d Cir.

1990) (citing 18 U.S.C. S 3553(b)). In Koon, the Supreme

Court noted that the sentencing guidelines provide

"considerable guidance . . . by listing certain factors as

either encouraged or discouraged bases for departure." 518

U.S. at 94. Encouraged factors are those "the Commission

has not been able to take into account fully in formulating

the guidelines." U.S.S.G. S 5K2.0. Because extreme conduct

under U.S.S.G. S 5K2.8 is an encouraged factor, see, e.g.,

United States v. Lewis, 115 F.3d 1531, 1539 (11th Cir.

1997), the sentencing court may depart if the "applicable

guideline does not already take it into account," United

States v. Iannone, 184 F.3d 214, 226 (3d Cir. 1999). If, on

the other hand, the applicable sentencing guideline does

take the encouraged factor into account, the sentencing

court may depart upward if the encouraged factor" `is

present to a degree substantially in excess of that which

ordinarily is involved in the offense.' " Koon, 518 U.S. at 95

(quoting U.S.S.G. S 5K2.0).

Queensborough's PSR calculated his offense level as 32

and his Criminal History as I, resulting in a guideline range

of 121-151 months imprisonment. As noted above, the

District Court, granting an upward departure, sentenced

Queensborough to 240 months (20 years) imprisonment on

the aggravated rape count and to the statutorily mandated

sentence of 60 months on the firearm count, to run

consecutively. It is the sentence for the aggravated rape

that is the basis for the appeal.

1. Record Support for the Departure

Queensborough argues that the record does not support

the finding of extreme conduct because both of the victims

16

stated that they only pretended to have sex with each other.

That argument is a non sequitur. Being put in a position

where the victim must pretend to have sex is degrading;

"extreme" is defined by the guidelines to encompass

degrading conduct. See U.S.S.G. S 5K2.8. Moreover, the

court stated at sentencing that it was the order itself to

have sex that was degrading.

Queensborough then asserts that the District Court erred

by failing to make any comparison between the degradation

in this case and a "typical" sexual assault case. In essence,

Queensborough argues that the District Court should have

established a factual basis involving a typical sexual

assault case, thereby providing a baseline against which to

compare Queensborough's conduct. The comparison to

which Queensborough alludes appears to be that which

may be required when departing based on extreme

psychological injury under U.S.S.G. S 5K2.3, which applies

"[i]f a victim or victims suffered psychological injury much

more serious than that normally resulting from commission

of the offense." Although rape is a particularly intrusive

crime, probably more than any other, and the victim of a

rape may suffer severe psychological damage for long

periods, if not forever, the District Court did not depart on

the basis of S 5K2.3 but under S 5K2.8. That section only

requires that the court determine that the conduct involved

"was unusually heinous, cruel, brutal, or degrading."

The District Judge, who had considerable experience

presiding over criminal cases, did not err in characterizing

the events as degrading and Queensborough's conduct as

extreme. Given the repetitive number of instances of

intrusive physical contact, the order that the two victims

have sex, and the repeated death threats, the record amply

supports a departure based on extreme conduct. See United

States v. Johnson, 144 F.3d 1149, 1150-51 (8th Cir. 1998)

(affirming departure under U.S.S.G. SS 5K2.8 and 5K2.3

based on defendant's conduct during rape and on severe

psychological injury); Lewis, 115 F.3d at 1538-39 (affirming

departure under U.S.S.G. S 5K2.8 based on number and

nature of assaults).

17

2. Whether the Departure was Authorized

Queensborough also argues that no upward departure

was legally permissible because his conduct was already

taken into account by the guidelines. Queensborough does

not suggest that the 20 year sentence imposed by the

District Court was unauthorized by statute. Under the ACA,

which applies here because the offense took place on

federal land, i.e., a national park, Queensborough was

subject to "a like punishment" to that applicable under the

state or territorial law. 18 U.S.C. S 13(a). Courts have

interpreted "like punishment" to mean that state law sets

the minimum and maximum punishment while the federal

sentencing guidelines should be used to determine the

actual sentence within that range. See, e.g., United States

v. Pierce, 75 F.3d 173, 176 (4th Cir. 1996); United States v.

Marmolejo, 915 F.2d 981, 984 (5th Cir. 1990); United States

v. Garcia, 893 F.2d 250, 254 (10th Cir. 1989).

In this case, Queensborough was charged with the

assimilated crime of aggravated rape which carries a term

of imprisonment of 10 years to life under Virgin Islands

law. See 14 V.I.C. S 1700(c). Therefore, the District Court,

although required to determine the actual sentence using

the federal sentencing guidelines, was authorized to

sentence within that range, i.e., up to life imprisonment.

The thrust of Queensborough's argument is that his

offense level was increased by four levels for aggravated

sexual assault by force or threat and an additional four

levels for abduction, thereby resulting in an adjusted

offense level of 35, which he claims took into account all of

his conduct, including any degradation associated with

criminal sexual abuse. We disagree. As an encouraged

factor under the guidelines, extreme conduct may be the

basis for an upward departure if the "applicable guideline

does not already take it into account," Iannone, 184 F.3d at

226, or, if the guideline does take it into account, if the

factor is present to a degree substantially in excess of that

ordinarily involved in the offense. It is evident that the

criminal sexual abuse guideline under which

Queensborough was sentenced contemplates upward

departures based on extreme conduct because the

application notes state that such a departure may be

18

appropriate "[i]f a victim was sexually abused by more than

one participant." U.S.S.G. S 2A3.1, Application Note 5. The

guideline does not state, and Queensborough has not

suggested, that abuse by more than one participant is the

only basis for an extreme conduct departure. Here, given

the patently degrading nature of the order that the two

victims have sex, the District Court could properly have

concluded that Queensborough's conduct was extreme to a

degree not adequately taken into account by the guidelines.

See Lewis, 115 F.3d at 1538-39.

3. The Extent of the Departure

Finally, Queensborough argues that even if an upward

departure was permissible the District Court abused its

discretion by ordering an excessive departure equivalent to

an increase of five or six levels. He contends that even if he

"had inflicted permanent or life-threatening bodily injury,

the increase in his offense level would have been only four

levels." Appellant's Br. at 28 (citing U.S.S.G.S 2A3.1(b)(4)).

He relies on our statement that "analogy to the guidelines

is also a useful and appropriate tool for determining what

offense level a defendant's conduct most closely

approximates." Kikumura, 918 F.2d at 1112. However, "[a]t

this stage, the question is no longer whether the district

court has substituted its judgment for that of the

Sentencing Commission, but whether the court of appeals

should substitute its judgment for that of the district

court." Id. at 1110.

Our dissenting colleague, who agrees that an upward

departure was appropriate, nonetheless would remand

because he believes that the District Court gave"no clue as

to why it decided that a five-level departure was

warranted," dissenting op. at 33, and that "the

reasonableness of the degree of departure in this case is

not apparent from the record." Dissenting op. at 34. He

would follow the process that we used in United States v.

Jacobs, 167 F.3d 792 (3d Cir. 1999). Unlike our colleague,

we believe that both the justification for an upward

departure of the extent given and the District Court's

reasons are fully set forth on the record.

19

The PSR, which was available to both the defense and the

District Court, contains a Victim Impact Statement from

each of the two victims. Lest there be any question about

the extent of the psychological injury to the victims, a brief

review of the written statement of the female victim, who

said that she "knew bad things did happen, but did not

know that evil like this existed," which was included in the

PSR, fully sets forth the "devastating" effect on her of the

brutality of the multiple rapes. She related that, inter alia,

she had "cried every day for months;" "continuing

nightmares;" "continuing months of counseling;" "loss of

the ability to focus on meditation or prayer without

becoming distracted by reliving the horror of that night;"

"waiting in terror for [AIDS] and pregnancy testing;" "the

horror, shame, and embarrassment, when news of this

appeared in newspapers and on t.v. programs;""the

difficulty of trying to handle the everyday events of life while

dealing with this;" "much of what made my life happy and

worth living was not available to me for many months. . .

and in some ways may never return."

The written statement of the male victim included in the

PSR was similar. He related that "[t]he hatred, brutality,

and violence that we were subjected to . . . has

permanently changed my life;" he became "incredibly

fragile;" "experienced repeated and uncontrollable panic . . .

directly related to the violent crimes;" because"during

much of the violence, I was held down from behind, with a

gun in the back of my head or in the side of my face. . . [in

the months that followed] I frequently panicked, fearing

that someone was about to attack me from behind, only to

turn and find no one;" "could no longer walk alone [in the

forest] without panic and extreme anxiety;""sought and

received weekly counseling;" had not fully healed"more

than one and one-half years after that violent night;" "I still

find myself lying awake thinking about the horrors of that

night."

Both victims commented in their written statements

about the length of the sentence that the District Court had

to set. The female victim wrote, "I know you can not return

[my happy spirit] to me, but you can make certain that

others don't lose theirs as well. It is my belief, backed by

20

many studies, that if freedom is given to this person before

he reaches middle age he will repeat the violent crimes he

has committed. That price for his freedom is too high. You

stand between this man and the brutality with which he

will treat other people." The male victim also wrote, "I

sincerely believe that if he is not sentenced to many years

in jail, he will again commit horrific crimes, and in the

future, he may not allow the victims to live. I feel a deep

responsibility to call the attention of the legal system to this

danger, and the court has a deep responsibility to ensure

that others are not endangered by this man." Andfinally,

he wrote, "there is no doubt that each of these men is

capable of murder. Please do not allow these men to hurt

or to kill others."

The PSR, of course, is available and part of the record.

But if the written statements of the victims did not

sufficiently set forth the circumstances and effect of

Queensborough's crime, these victims felt so strongly about

the sentencing that, unlike most victims of rape who shun

further contact with the case once the trial is over, they

both returned for the sentencing hearing and gave their

statements in person and in the presence of the court.

Those statements are included as an Appendix to this

opinion. We find nothing in the Jacobs opinion that is

comparable.

The District Court was not unaware of the need to

articulate the reasons for the upward departure to the

extent it chose, but apparently believed, with good reason,

that it was apparent from the record that had just been

made. Thus, in sentencing Queensborough, the District

Court, having just heard the moving and explicit

statements of both victims, made in open court, stated at

the outset:

THE COURT: Mr. Queensborough, I don't know that

there's a whole lot I can say to you, other than what

[the female victim] and [the male victim] have very

eloquently told you right now.

. . .

The cases alluded to by your counsel earlier are

different, they are distinguishable from this, while they

21

were certainly very bad and dangerous and brutal, but

they do not reach the level of brutality that you did to

these two people.

Not only do I think that it is, that sentencing you on

the high . . . end of the guidelines is appropriate, I

think that it does warrant departure upward.

The court stated that "this case is totally senseless . . . . So

I think that this is one of those instances where the Court

is justified in departing upward." After confirming with the

U.S. Attorney that "the maximum sentence for this is life,"

the court imposed the sentence of 20 years on Count 1 and

the mandatory 5 years on Count 2.

The Supreme Court has made it clear that we are to

afford substantial deference to a District Court's sentencing

decision:

A district court's decision to depart from the Guidelines

. . . will in most cases be due substantial deference, for

it embodies the traditional exercise of discretion by a

sentencing court. Before a departure is permitted,

certain aspects of the case must be found unusual

enough for it to fall outside the heartland of cases in

the Guideline. . . . Whether a given factor is present to

a degree not adequately considered by the Commission,

or whether a discouraged factor nonetheless justifies

departure because it is present in some unusual or

exceptional way, are matters determined in large part

by comparison with the facts of other Guideline cases.

District courts have an institutional advantage over

appellate courts in making these sorts of

determinations. . . .

Koon, 518 U.S. at 98 (citation omitted).

Applying this substantial deference, we conclude that the

District Court did not abuse its discretion in departing

upwards to the degree it did in this case. In setting

Queensborough's sentence, the court compared his conduct

to that of other criminal defendants referred to by defense

counsel during argument, and stated: "[t]he cases alluded

to by your counsel earlier are different . . . while they were

certainly very bad and dangerous and brutal . . . they do

22

not reach the level of brutality that you did to these two

people." App. at 94. The court then identified the maximum

possible sentence for Queensborough's crime, life

imprisonment, and imposed a sentence of twenty years. The

District Court heard the allocution by both attorneys, by

the two victims, and by Queensborough himself. It was in

the best position to determine whether a departure was

warranted and, if so, the extent of the departure, and we

are not inclined to replace its judgment with our own.

III.

CONCLUSION

For the reasons set forth, we will affirm the judgment of

conviction and sentence.

23

APPENDIX

STATEMENT OF FEMALE VICTIM AT SENTENCING

HEARING

When asked if I wished to come here to make a

statement, I initially thought that I would not want to do

so, because I thought it would be very hard to talk about

what happened, and I worried I would embarrass myself by

crying.

And it struck me that the worst, if I did cry, I would be

embarrassed, is a very different result from the threat of

that night when we were attacked by this man. He said to

me, "You cry, you die."

I chose to come here because although you can read the

accounts of what happened that night, you cannot know

how it felt for me to sit with a friend on a beautiful

Valentine's Day night, and suddenly become prey to brutal

predators who would show us repeatedly that our lives no

longer had value, and that they could be taken at any time.

You can read medical reports, but you can't know that

during the attack, there came a time when it hurt so badly

I considered fighting, even if it meant my life, because I

didn't think they could kill me any more dead that I already

felt inside.

However, this was not a choice I could make at that time.

It was something I could not do. I couldn't forfeit what little

chance my friend had for survival.

You can read of our escape, but I want you to know from

me, it was terrifying to feel like a hunted animal, going over

the lava rocks and cactus and dark hillside.

I have never in my entire life had anything as devastating

as this happen. This has invaded every portion of my life.

I tried to think of how best to explain to you how invasive

this has been, and I thought maybe if I shared that I cried

every day for months and months and months, that I've

had continuing nightmares made up of the memories of

that night, from which I awaken screaming. And this goes

24

on, the continuing months of counseling to try to work

through my confused emotions and fears.

That for many months I experienced a loss of the ability

to focus on meditation or prayer, without becoming

distracted by reliving the horror of that night.

That lack of ability to focus has affected other activities

I previously enjoyed, simple things like reading and

watching TV, or basket weaving or quilting.

The embarrassment of the exasperating jumpiness with

which I react to unexpected movement toward me.

Waiting in terror for AIDS and pregnancy testing.

For months I was unable to go out at night, which for me

meant no longer taking any night classes or seeing the

beauty of the stars, or being on the beach.

Having to come back, feeling sick to my stomach when I

am too closely surrounded by strangers, which made

ordinary events like rejoining my exercise class, or even

going to my own church, too difficult for many months.

Activities where strangers were close by remain very

difficult for me. I find it hard to remember that I once could

enjoy a simple even[ing] out dancing with a group of friends

or going to an amusement park for the day.

The loss of opportunity, the promotion that disappeared

when the administrator found out what had happened to

me. The staff, who did not know what happened, couldn't

understand why the promotion had suddenly disappeared

and was not mine. I did not have the energy to argue on my

own behalf with regards to this.

The loss of friends and close family, who could not have

handled this, and who can't handle the continuing

difficulties that this presents.

The sadness and pain of seeing my closest friends hurt

by the fact that I was hurt. I am finding that this having

happened to me continues to hurt those people with whom

I become close.

The horror, shame and embarrassment when news of

this appeared in newspaper and on TV programs. The fact

25

that names were withheld did not disguise that that was

me.

The difficulty of trying to handle the everyday events of

life while dealing with this. I can barely recall large events,

like moving, other than extreme upset over small, minor

things like a scratch from a cardboard box that reminded

me of the scratches received from the lava rocks, from the

attack that night.

And the fear that I would burst into tears over nothing in

front of people who would not have understood why I was

reacting in such a way.

The expense, which now amounts to thousands of

dollars, for ongoing counseling, medical exams, testing,

replacing things destroyed or lost.

My life has gone on, but much of what made my life

happy and worth living was not available to me for many

months, and in some ways may never return.

I was asked if I wanted to be compensated for the money

that was stolen from me. I think that money was minor. I

want returned to me my happy spirit.

And I know bad things to happen, but I did not know

that evil like this existed. I know you cannot return this to

me, but if you delay this happening to others, the price

others have to pay for this person's freedom is too high.

You stand between this man and the brutality with which

I firmly believe he will treat other people. I beg you to

protect other men and women from this.

This finally is what this has brought me to. I base my

entire philosophy on personal freedom, and yet I must ask

that you limit this man's freedom for as long as the law

allows you to do so, in order that the freedom of other

people may be preserved.

26

STATEMENT OF MALE VICTIM AT SENTENCING

HEARING

I'm thinking about what I can offer to you as you think

about sentencing Mr. Queensborough. I need to pass on to

you a bit of the horror of the night that we experienced.

I can't talk to all the details of that night, and I won't, but

a bit of it I think you need to feel and to be aware of.

Right after Mr. Queensborough had himself just finished

raping [female victim], he held me down on the ground with

a gun at my face and to my head, and he threatened

repeatedly to kill us.

And as he went on and on in his state and threatening

manner, he said some things that were deeply disturbing

and that were very revealing about him.

He said, "Do you know why I'm doing this to you, why I'm

going to hurt you?"

He said, "Because I've been in jail and I've been hurt. I

don't care. I'm going to hurt you."

And I laid there on the ground, trembling, thinking this

is a person who doesn't care about himself, he has got no

respect for himself, he has got no respect for others. He has

no respect for human life. And this is the person that's

holding a gun to my head and threatening to kill us, and he

has just finished raping [female victim]. It was deeply

disturbing and very shocking, and I lay there trembling.

Somehow in his mind I believe that he rationalized what

he was doing to us, because he had been hurt in his life.

He said very directly that he had killed other people, and

that it would mean nothing to him to kill us.

At that moment, and as a result of that whole night, my

sense of security in life was shattered. I have been lucky in

my life, surrounded with a lot of love and caring, and I

never faced, I've never faced anyone who had such a lack

of respect for life.

I've come to know a little bit of the sense of fear that

many people go through in life, particularly women, and

not being safe to walk, not being safe to be alone, the

27

horror of panic, see them for real, and some of them are

basically based on the horror of that night.

He said all this to me having just raped [female victim],

and it was very clear, I know in my heart not only was he

capable of raping, which he did, but that he was very

capable of murder as well, of killing.

We were incredibly fortunate to survive that night. We

didn't meet his anger or that of the other assailant. We

didn't meet their hatred. And in not meeting that, I believe

we stopped them from killing us.

I have no doubt in my heart, I know that he is capable

of killing and capable of rape, and I believe that given the

opportunity it will happen again, and that next time the

victims will not survive. In fact, I believe that most people

would not have lived through that. I feel very fortunate, to

myself and to [female victim], that we found a way to

survive and to try to heal afterwards.

So that's why I'm here today, to talk to you about his

sentencing. There's absolutely no sense of - - I have no

interest at all in punishment. I have no pleasure at all

thinking about Mr. Queensborough going to jail. In fact, I

think it's tragic. I think it's very tragic, that since he is

such a young a man, can be so filled with hatred and

horror, his life so out of control that he can commit crimes

that mean that he is not safe to be around other people.

So when I think about what I think is appropriate for his

sentencing, all I think about is the safety of others, that no

one, there's not a person alive that should have to feel what

we felt, that should have to fight for their lives the way we

had to fight. And I believe that he will hurt others again,

and that as a result the Court needs to sentence him to the

maximum amount of sentence that is allowable.

Again, I think it's tragic. There's nothing that I hate more

than the idea of anyone leading their lives like that. But the

safety of others is what I have to keep in mind, and that's

why I came here today.

Thank you for listening and considering that in deciding

on his sentencing . . . .

28

STAPLETON, J., concurring in part and dissenting in part:

I agree with my colleagues that the government did not

breach the plea agreement. The prosecutor expressly

advised the Court that the government had committed itself

to recommend a sentence within the Guidelines range and

that its recommendation was a sentence at the upper end

of the range. In this context, the prosecutor's comment

about "an aggravating factor" could not have communicated

to the Court that the government was recommending a

departure. Nevertheless, I would remand for resentencing.

Queensborough was charged with conduct constituting

"aggravated sexual abuse" under 18 U.S.C.S 2241 which,

like the Virgin Islands rape statute, carries a maximum

sentence of life imprisonment.1 The applicable provision of

the Guidelines is S 2A3.1, which provides a base offense

level of 27 for "sexual abuse" as defined in 18 U.S.C. S 22422

and specifies "Specific Offense Characteristic" upward

increases for various aggravating circumstances. A four-

level increase is required, for example, if a dangerous

_________________________________________________________________

1. Section 2241 provides in relevant part:

(a) By force or threat. -- Whoever, in the special maritime and

territorial jurisdiction of the United States or in a Federal

prison,

knowingly causes another person to engage in a sexual act --

(1) by using force against that other person; or

(2) by threatening or placing that other person in fear that any

person will be subjected to death, serious bodily injury, or

kidnaping;

or attempts to do so, shall be fined under this title, imprisoned

for

any term of years or life, or both. . . .

2. Section 2242 provides in relevant part:

Whoever, in the special maritime and territorial jurisdiction of

the

United States or in a Federal prison, knowingly--

(1) causes another person to engage in a sexual act by threatening

or placing that other person in fear (other than by threatening or

placing that person in fear that any person will be subjected to

death, serious bodily injury, or kidnaping); . . .

or attempts to do so, shall be fined under this title, imprisoned

not

more than 20 years, or both.

29

weapon is used or displayed. An additional four-level

increase is mandated if the victim is abducted, and still

another four-level increase is called for if the victim

sustained permanent or life-threatening bodily injury.3

Application Note 5 to S 2A3.1 makes a cross reference to

S 5K2.8 (departure for "extreme conduct"), which authorizes

an upward departure for conduct that is "unusually

heinous, cruel, brutal or degrading to the victim." The

Application Note suggests, by way of example, that an

upward departure under S 5K2.8 may be appropriate when

the victim is sexually abused by more than one participant.

Queensborough's sentencing judge adopted the Guideline

calculations suggested in the Presentence Report ("PSR"): a

Base Offense Level of 27 followed by a four-level increase

for use of a gun, a four-level increase for abduction, a two-

level decrease for acceptance of responsibility, and a one-

level decrease for timely notifying the authorities of his

intention to plead guilty. This calculation resulted in a total

offense level of 32 and, given Queensborough's Criminal

History Level, a sentencing range of 121 to 151 months.

Queensborough does not challenge this calculation. The

Court went on, however, to depart upward and to impose a

_________________________________________________________________

3. U.S.S.G. 2A3.1(b) provides:

(b) Specific Offense Characteristics

(1) If the offense was committed by the means set forth in 18

U.S.C. S 2241(a) or (b) (including, but not limited to, the use or

display of any dangerous weapon), increase by 4 levels;

(2) (A) If the victim had not attained the age of twelve years,

increase by 4 levels; or (B) if the victim had attained the age of

twelve years but had not attained the age of sixteen years,

increase

by 2 levels.

(3) If the victim was (A) in the custody, care, or supervisory

control

of the defendant; or (B) a person held in the custody of a

correctional facility, increase by 2 levels.

(4) (A) If the victim sustained permanent or life-threatening

bodily

injury, increase by 4 levels; (B) if the victim sustained serious

bodily

injury, increase by 2 levels; or (C) if the degree of injury is

between

that specified in subdivisions (A) and (B), increase by 3 levels.

(5) If the victim was abducted, increase by 4 levels.

30

sentence of 240 months, the equivalent of at least afive-

level increase above the total offense level of 32.

Queensborough challenges the propriety of both the

departure and the extent thereof.

As the District Court recognized, an upward departure

was permissible only if Queensborough's conduct was

heinous, cruel, brutal or degrading to a degree not

adequately taken into account by S 2A3.1 in a situation

where the rape involved an abduction and use of a deadly

weapon. The Court concluded that Queensborough's

conduct was "unusually degrading to the victim" because

"one victim [was] forced to have sex with another victim,"

App. at 113, and, based solely upon this finding, departed

upward five levels. Like my colleagues, I agree that the

directive to the two victims could properly support an

upward departure. I would not affirm the District Court's

sentence, however, because no notice was given that a

departure on this ground was being considered and

because the sentencing judge provided no explanation for

the degree of his departure, a five-level, 89 month increase.

In Burns v. United States, 501 U.S. 129 (1991), the Court

pointed out that Federal Rule of Criminal Procedure 32, as

amended by the Sentencing Reform Act, "provides for

focused, adversarial development of the factual and legal

issues relevant to determining the appropriate Guidelines

sentence." Id. at 134 (emphasis supplied). Rule 32 does this

in part by affording the defendant and the government the

opportunity to comment on "matters relating to the

appropriate sentence." Id. at 134. The Supreme Court

concluded in Burns that Rule 32 contained an implicit

requirement that the defendant receive notice that"an

upward departure will be at issue and of the facts that

allegedly support such a departure." Id. at 135 (emphasis

supplied). As the Court explained:

In the ordinary case, the presentence report or the

Government's own recommendation will notify the

defendant that an upward departure will be at issue

and of the facts that allegedly support such a

departure. Here we deal with the extraordinary case in

which the district court, on its own initiative and

contrary to the expectations of both the defendant and

31

the Government, decides that the factual and legal

predicates for a departure are satisfied. The question

before us is whether Congress, in enacting the

Sentencing Reform Act, intended that the district court

be free to make such a determination without notifying

the parties. We believe that the answer to this question

is clearly no. . . .

As we have set forth, Rule 32 contemplates full

adversary testing of the issues relevant to a Guidelines

sentence and mandates that the parties be given"an

opportunity to comment upon the probation officer's

determination and on other matters relating to the

appropriate sentence." Fed. Rule Crim. Proc. 32(a)(1).

Obviously, whether a sua sponte departure from the

Guidelines would be legally and factually warranted is

a "matte[r] relating to the appropriate sentence." In our

view, it makes no sense to impute to Congress an

intent that a defendant have the right to comment on

the appropriateness of a sua sponte departure but not

the right to be notified that the court is contemplating

such a ruling.

Burns, 501 U.S. at 135-36 (emphasis supplied).

The only fact noted in the PSR under the heading

"Factors That [Might] Warrant Departure" was the fact that

the "victim was sexually abused by more than one

participant." The only fact mentioned by the government at

the sentencing hearing as possibly warranting a departure

was the fact that "there's more than one victim."

Understandably, in this context, defense counsel made no

comment during his allocution on whether the order

directing the victims to have sex was sufficiently degrading

to warrant a departure and, if so, how large that departure

should be.

My colleagues distinguish Burns on the ground that the

PSR here mentioned the directive to have sex in its ten-

page, narrative account of all of the circumstances of the

offense and cited to S 5K2.8, the Guideline section under

which the District Court ultimately departed. Neither

portion of the PSR, however, gave fair notice of the factual

basis for the departure utilized by the Court.

32

While the PSR did cite to the Guideline under which the

Court ultimately departed and thus referenced the"legal

predicate" for the departure that ultimately occurred, that

Guideline is so broad that it provided no hint in this

context of the "factual predicate" that the Court was

considering. Indeed, the PSR's citation to S 5K2.8 came in

support of a suggested factual basis for departure wholly

different from the one adopted by the District Court.

Similarly, the PSR's narrative account included all the facts

related to the crime and did nothing to dispel the idea that

the only basis for departure being considered was that

there were two perpetrators.

In addition to adopting a novel ground for departure, the

District Court provided no clue as to why it decided that a

five-level departure was warranted. The Court simply noted

that the maximum penalty authorized by the statute was

life and then imposed a sentence of 20 years. My colleagues

understandably believe that the extent of the District

Court's departure was determined by reference to the

relationship between a total sentence of twenty years and

the maximum sentence provided by law, i.e., life. If so, the

District Court erred. As my colleagues acknowledge, even

when sentencing for an assimilated crime, a district court

must still base its sentence on the Guidelines. If the

congressionally intended uniformity is to be achieved, it is

the value system of the Guidelines to which the sentencing

judge must adhere.

In United States v. Kikumura, 918 F.2d 1084 (3d Cir.

1990), we held that once a reviewing court concludes that

a departure is permissible, it must still determine whether

the degree of departure was reasonable. While we

recognized that "[a]t this stage of the inquiry, our review is

deferential," id. at 1098, we stressed that "there must be

some objective standards to guide the determination of

reasonableness," id. at 1110, and that"standardless

determinations of reasonableness [would] inevitably

produce unwanted disparity." Id. at 1113. We concluded

that the primary source of those objective standards must

be the Guideline scheme itself. At the same time, we

recognized that those standards will often be discernable in

the Guidelines only by way of analogy and that " analogies

33

to the guidelines . . . are necessarily more open-textured

than [direct] applications of the guidelines." Id. at 1113.

In United States v. Jacobs, 167 F.3d 792 (3d Cir. 1999),

we found implicit in Kikumura a requirement that a

sentencing judge, when departing from the guideline range,

"articulate the reasons for the degree of the departure." Id.

at 798. In the absence of such an explanation or some

other indicia in the record, it is impossible to determine

whether the District Court has conducted the required

analysis. Under Jacobs, where the reasonableness of the

degree of the departure is not otherwise apparent from the

record, a failure to provide an explanation requires a

remand for resentencing. As will be apparent from the

following discussion, I believe the reasonableness of the

degree of departure in this case is not apparent from the

record and that our precedents, accordingly, dictate a

remand for resentencing.

Consistent with our prior approach in comparable cases,

I would not dictate to the District Court the rationale that

it should utilize on remand in determining the degree of

departure. It is appropriate under our precedents, however,

to point out provisions of the Guidelines that the District

Court might wish to consider in making that determination.

See Jacobs 167 F.3d at 800-01.

I would commend to the District Court for its

consideration our decision in Jacobs. The defendant there

was charged with aggravated assault on his former

girlfriend with a knife on federal property. Section 2A2.2,

the aggravated assault guideline, provided for a base

offense level of 15 and for enhancements, inter alia, for use

of a dangerous weapon (4 levels), and infliction of "Serious

Bodily Injury" (4 levels), or "Permanent or Life-Threatening

Bodily Injury" (6 levels).4 The sentencing court added four

_________________________________________________________________

4. U.S.S.G. S 2A2.2(b)(3) provides:

(b) Specific Offense Characteristics

* * *

(3) If the victim sustained bodily injury, increase the offense

level

according to the seriousness of the injury:

34

levels for the use of a knife and six levels because the

victim sustained permanent physical injuries. In addition, it

departed upward five levels under U.S.S.G. S 5K2.3, which

authorizes a departure when "extreme psychological injury"

has been inflicted on the victim.5

As heretofore noted, we remanded for resentencing

because the sentencing judge failed to explain how it

selected a five-level departure and because the

reasonableness of that choice was not obvious from the

record and the Guidelines. In the course of our opinion, we

pointed out that the Guidelines provided a basis for

inferring that in an aggravated assault context, physical

and non-physical injuries to the victim should be treated as

being of substantially similar seriousness. Based on that

inference, we suggested that in departing for a non-physical

injury, the court should be guided by the degree of increase

mandated for a comparable physical injury:

Under S 1B1.1(j), "serious bodily injury" includes the

"protracted impairment of . . . [a] mental faculty."

Under S 1B1.1(h), "permanent or life-threatening bodily

injury" includes a "substantial impairment of[a]

mental faculty that is likely to be permanent." These

_________________________________________________________________

Degree of Bodily InjuryIncrease in Level

(A) Bodily Injury add 2

(B) Serious Bodily Injuryadd 4

(C) Permanent or Life-Threatening

Bodily Injuryadd 6

(D) If the degree of injury is between that specified in

subdivisions (A) and (B), add 3 levels; or

(E) If the degree of injury is between that specified in

subdivisions (B) and (C), add 5 levels.

Provided, however, that the cumulative adjustments from (2) and

(3) shall not exceed 9 levels.

5. U.S.S.G. S 5K2.3 provides in part:

If a victim or victims suffered psychological injury much more

serious than that normally resulting from commission of the

offense,

the court may increase the sentence above the authorized guideline

range.

35

definitions do not, as Jacobs argues, mean that in an

aggravated assault context, S 2A2.2(b) takes into

account all of the extraordinary psychological injuries

covered by S 5K2.3. . . . They may, however, provide a

basis for inferring that the guidelines in an aggravated

assault situation treat physical and non-physical

injuries to a victim as being of substantially similar

seriousness. If one draws such an inference, one may

further conclude that it would be inconsistent with the

approach of the Guidelines to depart upward four

levels or more under S 5K2.3 without finding that the

extreme psychological injury was likely to be

protracted. Conversely, one may conclude that it would

be consistent with the approach of the Guidelines to

depart upwards four levels if there is "extreme

psychological injury," as defined in S 5K2.3, that can be

expected to be "protracted" but not "permanent."

Jacobs, 167 F.3d at 801.

Section 2A3.1 (the sexual abuse guideline), likeS 2A2.2

(the aggravated assault guideline), provides a base offense

level and, inter alia, calls for increases depending on

whether "serious bodily injury" or "permanent or life-

threatening injury" was inflicted on the victim. "Serious

bodily injury" and "permanent or life-threatening injury" for

purposes of both sections include impairment of a"mental

faculty." Section S 5K2.8 (departure for"extreme conduct"),

like S 5K2.3 (departure for "extreme psychological injury"),

authorizes an upward departure where an extraordinary

non-physical injury is inflicted, i.e., where the victim is

subjected to unusually degrading conduct. Although

S 2A3.1 deals with sexual abuse rather than assault and,

accordingly, specifies a substantially higher base offense

level, Jacobs's teachings may be helpful in determining a

reasonable degree of departure here.

As we have noted, if the victim in a sexual assault

sustains "permanent or life-threatening bodily injury,"

S 2A3.1(b) dictates a four level increase in the offense level.

If bodily injury is sustained that is neither "permanent" nor

"life-threatening," but nevertheless serious, a two or three

level increase is required. If one who inflicts non-physical

injury in the course of a sexual assault is to be treated as

36

having culpability equal to that of one who inflicts

comparable physical injury, it would appear unreasonable,

in the absence of a persuasive explanation, to depart more

than four levels in a situation like that before us or to

depart more than three level without finding that the harm

to the victim was life threatening or left continuing effects.

I would also commend for the District Court's

consideration the portion of our Kikumura opinion that

discusses situations where the conduct giving rise to a

departure is itself a crime independent of the offense

charged. See Kikumura, 918 F.2d at 1112. We there

suggested that it would ordinarily not be reasonable to

choose a degree of departure that would result in the

defendant's receiving more total punishment than he would

have received if he had been charged and convicted of both

offenses. Here the conduct giving rise to the departure was

an independent violation of 18 U.S.C. S 2241; when

Queensborough ordered the two victims to have sex, he

"knowingly [attempted to] cause . . . another person to

engage in a sexual act . . . by threatening serious bodily

injury." If he had been prosecuted for both offenses, they

would each have had a total offense level of 32. Because

there was an additional victim of the second crime, they

would not have been grouped together and the combined

offense level, under S 3D1.4, would have been 34. This

produces a Guideline range from 151 to 188 months, a

range substantially below the 240 months imposed here.

I would stress, as we did in Jacobs, that the District

Court would be free on remand to elect a different approach

to determine what is a reasonable degree of departure on

the facts of this case. I would, however, insist on a clear

articulation of the reasons supporting the District Court's

ultimate decision on an appropriate sentence.6

_________________________________________________________________

6. The Court's appendix and its recitation of the details of the offense

and its impact on the victims powerfully communicates the character of

the sexual abuse in this case. To the extent they are included in

response to my dissent, however, they miss the point. The issue for me

is not whether this record will support an upward departure or even

whether it could justify a five-level upward departure.

37

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

The sentencing judge in this case was required by 18 U.S.C.

S 3553(c)(2) to state "the specific reason" for his departure in open

court

and in the court's judgment. In open court, the judge stated:

As is recited in the Presentence Report, and so that counsel had

notice, Paragraph 92, according to the basic Sentencing Guideline

that applies here for criminal sexual abuse, an upward departure is

warranted if the victim was sexually abused by more than one

participant, and as well under Section 5(k)(2.8), which deals with

extreme conduct.

And it says, if the defendant's conduct is unusually heinous,

cruel, brutal or degrading -- well, for a rape, I don't know that

it

qualifies as unusually heinous, cruel or brutal; however, to then

order the two victims to have sex themselves, in your presence, at

the point of a gun, is unusually degrading. So I'm not going to

prolong it any longer."

App. at 95. In its judgment, the Court stated:

The sentence departs from the guideline range for the following

specific reason(s): Extreme conduct pursuant to 5k2.8. The Court

finds defendant's conduct was unusally (sic) degrading to the

victim.

One victim forced to have sex with another victim.

App. at 113.

It is thus unmistakably clear why the District Court departed. The

problematic issues result from the fact that the Court gave no notice that

it was considering a departure on that ground and the fact that it gave

no explanation as to why it thought the order to have sex deserved

punishment beyond that which could have been imposed based on a

finding of permanent physical or psychological injury to the victims.

38