UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4447

MARCUS J. LEWIS,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Newport News.

Rebecca Beach Smith, District Judge.

(CR-03-7)

Submitted: November 26, 2003

Decided: March 9, 2004

Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Frank W. Dunham, Jr., Federal Public Defender, Larry M. Dash,

Assistant Federal Public Defender, Norfolk, Virginia, for Appellant.

Paul J. McNulty, United States Attorney, Ryan R. McKinstry, Special

Assistant United States Attorney, Norfolk, Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Marcus J. Lewis ("Lewis") pled guilty to assault resulting in serious bodily injury, 18 U.S.C.A. §§ 7, 113(a)(6) (West 2000 & Supp.

2003). The victim was his stepson, Marcus Lewis, Jr. ("Marcus"),

who was two years old. The district court sentenced Lewis to ninety

months imprisonment. Lewis appeals his sentence, arguing that the

district court abused its discretion in departing above the guideline

range based on extreme conduct, U.S. Sentencing Guidelines Manual

§ 5K2.8, p.s. (2002), and the similarity of his conduct to a prior

offense for which he had been court-martialed. We affirm. 

On January 2, 2003, while Lewis’s wife, Army Sgt. Lisa Lewis,

was at work, Marcus sustained first and second degree burns on his

face, torso, buttocks, and fingers caused by contact with the five-inch

long rectangular hot metal grate that covered the vent of a hair dryer.

Lewis later gave conflicting statements about how the burns occurred.

Marcus was in bed when Lisa came home that evening and left early

the next morning for temporary duty in Texas. A day later, Lewis told

Lisa during a telephone call that he had accidentially burned Marcus

with the dryer. At Lisa’s direction, Lewis took Marcus to the house

of a friend, who took Marcus to the hospital at Ft. Eustis, Virginia.

Marcus was later evaluated at the Portsmouth Naval Medical Center

burn unit. The doctor there determined that the burns were a day or

two old and beginning to scab over, except on Marcus’s buttocks,

possibly because those burns were kept more moist by his diaper.

Marcus was prescribed Motrin and apparently was released. The

assessment sheet categorized his condition as "semi-urgent." A search

of the Lewis’ quarters disclosed a sheet from Marcus’s bed and one

from a queen-sized bed, both stained with blood; a child’s shirt and

pants, both stained with blood; and an adult shirt and undershirt, both

stained with blood. 

Lewis had previously been convicted at a general court martial of

two counts of assaulting Marcus when he was less than three months

old. In that offense, Lewis twisted Marcus’s arms and legs, squeezed

Marcus’s chest, and struck his head on several occasions, causing

Marcus to suffer fourteen fractures. Lewis was confined for eighteen

2 UNITED STATES v. LEWIS
months and given a dishonorable discharge from the Army. The discharge was suspended pending Lewis’s appeal, which had not been

resolved at the time of the instant offense. 

Before sentencing, the government moved for an upward departure

based on extreme conduct, USSG § 5K2.8, and the fact that Lewis

received a relatively lenient sentence for a prior similar crime committed against the same victim. See USSG § 4A1.3, comment.

(backg’d). The district court agreed that an upward departure was

appropriate. First, the court found that Lewis’s conduct fit the definition of extreme conduct, i.e., it was cruel, brutal and degrading, and

included the gratuitous infliction of injury with prolonged pain and

humiliation. The court also found that the enhancement for serious

bodily injury provided in § 2A2.2, the guideline applicable to the

offense, did not account for this aspect of Lewis’s conduct because

it focused on the victim’s injury rather than the nature of the defendant’s conduct. With respect to the second ground for departure urged

by the government, the court decided that Lewis’s criminal history

category was adequate to reflect his past criminal conduct. However,

the court found that the similarity between the instant offense and

Lewis’s prior conviction for abuse of the same victim warranted a

departure. The court departed to a sentence of ninety months imprisonment, the equivalent of a three-level upward departure, or nineteen

months more than the maximum of seventy-one months permitted

under the applicable guideline range. 

A sentencing court may depart from the guideline range only if the

court finds an aggravating or mitigating factor of a kind, or to a

degree, not adequately considered by the Sentencing Commission. 18

U.S.C. § 3553(b) (2000); Koon v. United States, 518 U.S. 81, 98

(1996). As of April 30, 2003, the Prosecutorial Remedies and Tools

Against the Exploitation of Children Today Act of 2003 ("PROTECT

Act"), Pub. L. No. 108-21, 117 Stat. 650, requires a reviewing court

to conduct a de novo review of certain departure decisions. Id.

§ 401(d), 117 Stat. at 670. The appeals court must review de novo

whether the district court failed to provide a written statement of its

reasons for departing, 18 U.S.C.A. § 3742(e)(3)(A) (West Supp.

2003), and whether the departure was based on a factor that (1) does

not advance the objectives set forth in 18 U.S.C.A. § 3553(a)(2)

(West Supp. 2003), (2) is not authorized by § 3553(b), or (3) is not

UNITED STATES v. LEWIS 3
justified by the facts of the case. Id. § 401(d), 117 Stat. at 670; 18

U.S.C.A. § 3742(e)(3)(B)(i)-(iii) (West Supp. 2003). 

A sentencing court is encouraged to depart upward to reflect the

nature of the conduct "[i]f the defendant’s conduct was unusually heinous, cruel, brutal, or degrading to the victim . . ." and suggests as

examples of such conduct "torture of a victim, gratuitous infliction of

injury, or prolonging of pain or humiliation." USSG § 5K2.8. Lewis

acknowledges that extreme conduct is an encouraged factor for departure, but argues that his conduct was not as egregious as the conduct

of other defendants in cases where an upward departure for extreme

conduct has been upheld on appeal. See, e.g. United States v. Myers,

66 F.3d 1364, 1369 (4th Cir. 1995) (victim of carjacking and kidnapping was raped repeatedly at gunpoint, choked, had her neck twisted

until her collarbone popped, was pistol whipped and dragged, and suffered permanent damage to one eye). 

The district court emphasized the age of the victim in its explanation of reasons for the departure. However, the fact that the victim

was a two-year old child was accounted for in the guideline calculation when Lewis received a two-level vulnerable victim adjustment

under USSG § 3A1.1(b)(1), and thus cannot be used to justify a

departure. We note that Lewis prolonged Marcus’s pain by repeatedly

burning him and not seeking treatment for his burns. The burns were

severe enough that at least some of the wounds bled. Lewis surely

observed a pain reaction from Marcus each time he touched the dryer

to Marcus’s skin. Yet he continued, burning Marcus all over his body.

Although the burns apparently healed quickly, we conclude that this

repeated infliction of pain qualifies as extreme conduct. Therefore, we

are satisfied that the district court’s decision to depart on this ground

advanced the objectives set out in § 3553(a)(2) and was justified by

the facts of this case. We further conclude that the extent of the departure was not unreasonable, see § 3742(e)(3)(C), and we affirm the

departure on this ground. 

The correctness of the court’s decision to depart because of the

similarity of Lewis’s conduct to his prior offense is less clear. Under

§ 4A1.3, an upward departure is encouraged if the defendant’s criminal history category does not adequately reflect the seriousness of his

past criminal conduct or the likelihood that he will commit further

4 UNITED STATES v. LEWIS
crimes. The background commentary to guideline section 4A1.1 notes

that "§ 4A1.3 permits information about the significance or similarity

of past conduct underlying prior convictions to be used as a basis for

imposing a sentence outside the applicable guideline range." Such a

history may warrant a departure because it indicates a high likelihood

of recidivism. Section 4A1.3 also states that a departure may be warranted when the defendant previously received a lenient sentence for

a serious offense. 

Lewis’s case is not like these examples because he was convicted

for his prior assault on Marcus and the sentence was counted in his

criminal history. The district court could have relied on either the

leniency of Lewis’s prior eighteen-month sentence of imprisonment

or the likelihood that he might commit such offenses in the future to

explain its departure, but it did not. While the inadequacy of the

defendant’s criminal history category is an encouraged factor for

departure, and the similarity of a prior offense to the instant offense

may be a factor in that determination, the similarity of a prior offense

—standing alone—is a factor that is unmentioned in the guidelines as

a basis for departure. Factors that are unmentioned in the guidelines

as possible grounds for departure may infrequently justify a departure

where the structure and the theory of both relevant individual guidelines and the Guidelines as a whole indicate that they take a case out

of the applicable guideline’s heartland. United States v. Rybicki, 96

F.3d 754, 758 (4th Cir. 1996) (internal quotation and citation omitted). 

Here, employing a de novo standard of review, we conclude that

Lewis’s repeat assault on the same victim takes his case out of the

heartland of cases in which § 2A2.2 applies, and that the departure

does not conflict with the objectives of the Protect Act. 

We therefore affirm the sentence imposed by the district court. We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

UNITED STATES v. LEWIS 5