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. e du/thir dc ir c uit_2000/198Filed 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 Isl ands 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 Judg es

(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 AppellantJames 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 o f a seven count indictment, appeals from the judgment o f sentence. He raises four issues, but in essence all challenge the District Court's grant of an upward departure u nder 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 pa rt of the United States National Park in St. John, Virgin Islands. They first robbed the campers; then they forced the m to an

isolated section of the beach area. Rabsatt took th e male victim further down the beach, forced him to lie fa ce 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 s he began to pray aloud, he threatened to kill her. Aft er demanding that she turn around and face the rocks, Queensborough held a gun to the woman's head and ra ped her. During the rape he told her, "[i]f you make a sound, I'll blow your fucking head off." Queensborough also for ced the woman to perform oral sex, and raped her again.

2Queensborough then said that his friend "had to hav e

some of what he just had." He took the woman to the place where her male companion was being held and switche d places with Rabsatt, who also raped the woman repea tedly 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 a nd that "two other guys were waiting for them." One perpetr ator also said that they might bring the woman with them and asked her if she could swim a half mile. Queensboro ugh

and Rabsatt then ordered the man and the woman to h ave sex with each other while the two perpetrators watc hed. Throughout the ordeal, they threatened the two vict ims 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; C ount Two for kidnapping with intent to commit rape; Coun t Three for kidnapping; Counts Four and Five for robb ery; 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 crim e of violence. Counts One through Six charged violations of territorial law, five of which were assimilated int o 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 o r omitted within the jurisdiction of the State [or] Territory . . in which such place is situated, . . . shall be guilty of a like of fense and subject to a

like punishment.

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

We have explained:

Under the ACA, if conduct prohibited by stat e [or territorial] law occurs on federal land, the state criminal l aw is assimilated into

3There was a delay in proceeding with the charges ag ainst

Queensborough during the period he was declared not competent to stand trial. After he was declared to have regained his competency, Queensborough reached a pl ea 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 Se ven, carrying a firearm during and in relation to a crim e 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 Attor ney reserves its right to allocute at the time of sente ncing . . . . The government further agrees to recommend a senten ce within the applicable Guidelines range." App. at 10 3. It also contains the following:

The parties agree that the Court shall be fr ee 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 determinati on of the applicable sentence under the Guidelines, in cluding any and all adjustments and determination of the defendant's criminal history category, shall be left to

the Court after its review of the Presentenc e Report. However, the parties shall be free to object to any

Guideline calculations and other information contained in the Presentence Report, and to appeal fro m 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 mont hs

___________________________________________________ ______________

federal law so long as that conduct is not a lready made punishable by any `enactment of Congress.' In other wor ds, the ACA fills gaps in the law applicable to federal enclaves, e nsures uniformity

between criminal prohibitions applicable within the federal enclave and within the surrounding state, and provides r esidents of federal enclaves with the same protection as those o utside its boundaries.

United States v. Hall, 979 F.2d 320, 322 (3d Cir. 1 992) (citation omitted).

4imprisonment.2 After hearing from the parties on th e

sentencing issue, the court sentenced Queensborough on the aggravated rape count to a term of twenty years imprisonment, which represented a substantial upwar d departure. On the firearm count, the court sentence d Queensborough to a term of 60 months imprisonment, to be served consecutively, a term set by statute purs uant to U.S.S.G. S 2K2.4 and 18 U.S.C. S 924(c). Queensboro ugh's attorney objected to the District Court's sentence as an abuse of discretion. App. at 97. After the sentenci ng hearing was completed, Queensborough's attorney rai sed "an additional objection to the legality of the sen tence," stating that although she and Queensborough had bee n given notice by the Probation Office of "a possibil ity of upward departure," they had not been given notice"t hat there was actually going to be an upward departure. " App.

at 101.

Queensborough filed a timely appeal. The District C ourt had jurisdiction over this case pursuant to 18 U.S. C. S 3231 and this court has jurisdiction over the app eal

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 upwa rdly depart from the sentencing guidelines and failed to identify with specificity the grounds for said departure.

___________________________________________________ ______________

2. The Sentencing Guidelines apply to convictions u nder the ACA and direct the sentencing court to "apply the most anal ogous offense guideline." U.S.S.G. S 2X5.1. Here, the court appli ed the guideline in

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

5Although Rule 32 of the Federal Rules of Criminal

Procedure does not contain any language requiring t hat the District Court give the defendant notice of a possi ble 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 depart ure 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 mus t specifically identify the ground on which th e 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 gro und for departure on which the court relied was "identified as . . . ground[s] for upward departure . . . in the present ence 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 sect ion does not necessarily constitute a recommendation by the probation officer for a departure.

92. According to U.S.S.G. S 2A3.1, Applicati on Note 5, "If a victim was sexually abused by more tha n one participant, an upward departure may be warr anted, See S 5K2.8 (Extreme Conduct)."

Like the government, the District Court regarded th e PSR as having provided the requisite notice. In sentenc ing 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 i s warranted if the victim was sexually abused by more than one participant, and as well under Sect ion 5(k)(2.8) [sic], which deals with extreme co nduct.

6And as it says, if the defendant's conduct is

unusually heinous, cruel, brutal or degradin g -- well, for a rape, I don't know that it qualifies a s unusually heinous, cruel or brutal; however, to then o rder the two victims to have sex themselves, in your presence, at the point of a gun, is unusually degradin g. 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 agr ee with the District Court's conclusion that the PSR g ave 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 5K 2.8 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 notic e: the Supreme Court's opinion in Burns and this court's d ecision in Barr. In Burns, a former supervisor in the Unite d States Agency for International Development (AID) who had authorized payment of AID funds into an account tha t he controlled pled guilty to a three-count information charging him with theft of Government funds, making false cl aims against the government, and attempted tax evasion. The plea agreement expressed the parties' expectation t hat the petitioner would be sentenced within the guidelines range corresponding to an offense level of 19 and a crimi nal history category of I. The PSR confirmed this expec tation and expressly concluded that "[t]here are no factor s that would warrant departure from the guideline sentence ." Burns, 501 U.S. at 131. Nonetheless, the district c ourt departed upward from the guideline sentencing range without any prior notice to the defendant. The dist rict court based its departure on (1) the extensive duration o f petitioner's criminal conduct; (2) the disruption t o governmental functions caused by petitioner's condu ct; and (3) petitioner's use of his tax evasion offense to conceal his

theft and false claims offenses.

7It was in this "extraordinary case," id. at 135, w here 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 Suprem e Court held that Fed. R. Crim. P. 32 required the di strict court to provide "reasonable notice that it [was] contemplating" an upward departure and to specifica lly 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 up ward departure will be at issue and of the facts that al legedly support such a departure." Id. Unlike the"extraordi nary" situation in Burns, here the PSR did identify "a gr ound for upward departure." Inasmuch as the PSR satisfied th e basic requirement of Burns ("before a district cour t can depart upward on a ground not identified as a groun d for upward departure . . . in the presentence report"), Queensborough was not entitled to additional notice from

the court.

Barr is similarly distinguishable. In that case, th e 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 Dep artment of Justice and that criminal activity by public off icials tends to erode public confidence in government." Barr, 96 3 F.2d at 654. Unlike the PSR in Burns, the PSR in Barr di d identify a possible ground for departure in the sec tion captioned "Factors That May Warrant Departure," but it identified only one possible ground, i.e., the comm ission of

" `the offense in order to facilitate or conceal th e commission of another offense.' " Id. at 652. The P SR 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 Bu rns, and reversed. We held that inasmuch as the PSR had not identified the ground relied on by the district cou rt 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 positio n. We noted that the government never directly requested a

8departure and that the only reference to a "likelih ood of

departure" based on the defendant's high ranking po sition was the probation officer's statement, in an addend um 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 combina tion 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. A s we have already explained, the District Court permissi bly 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 ground s for departure. A reasonable reader would understand bot h from the placement and language of paragraph 92 in Queensborough's PSR that, in light of the circumsta nces, an upward departure based on extreme conduct was bo th possible and warranted. We disagree with Queensboro ugh that paragraph 92 was ineffective to give him notic e simply because paragraph 91 of the PSR stated that "inform ation in this section does not necessarily constitute a recommendation . . . for a departure" (emphasis add ed). The possible grounds were identified in the PSR, an d 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 departur e. We disagree. Not only does the PSR review in excruciat ing

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 th e application note to U.S.S.G. S 2A3.1 which states t hat an upward departure may be warranted when one of the victims was sexually abused by more than one partic ipant. The application note, quoted verbatim in the PSR, t hen includes a citation to U.S.S.G. S 5K2.8, and in par enthesis "(Extreme Conduct)." That guideline, S 5K2.8, provi des:

9If the defendant's conduct was unusually hei nous,

cruel, brutal, or degrading to the victim, t he court may increase the sentence above the guideline ra nge to reflect the nature of the conduct. Examples of extreme conduct include torture of a victim, gratuit ous 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 evide nt from the numerous facts previously detailed in the PSR, whic h include multiple rapes, forced oral sex, two victim s, 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 perp etrators when it stated that it was departing upward based o n the extreme conduct. App. at 95, 113. That there could be an upward departure on this basis could have come as n o surprise to Queensborough; this aspect of his condu ct 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 fa ctual 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 t hat "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 th ey . . . would now have

sex together and that she would be on top. One o f 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 o ff her clothes -- everything except her socks. [The man] was t old to take off his pants. [The victims] pretended to have sex b ut one of the rapists

put his hand between their genital area and stat ed 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.

10101. 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 b y

Burns.

B.

Breach of the Plea Agreement

Queensborough next asserts that the government viol ated its plea agreement to recommend a sentence within t he applicable guidelines range. Queensborough concedes that he did not raise this objection in the District Cou rt. However, we have stated that whether the government violated the terms of a plea agreement is a questio n of law subject to plenary review that may be raised on dir ect 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 St ates v. Conner, 930 F.2d 1073, 1076-77 (4th Cir. 1991) (rev iewing district court's resolution of whether government b reached plea agreement under clearly erroneous standard); U nited 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 th e bargain it strikes with defendants.' " Moscahlaidis , 868 F.2d at 1361 (quoting United States v. Miller, 565 F.2d 1273, 12 74 (3d Cir. 1977)). "Because the defendant, by entering in to the plea, surrenders a number of her constitutional rig hts, `courts are compelled to scrutinize closely the pro mise made by the government in order to determine whethe r it has been performed.' " United States v. Nolan-Coope r, 155 F.3d 221, 236 (3d Cir. 1998) (quoting United States v. Hayes, 946 F.2d 230, 233 (3d Cir. 1991)). In determ ining whether the government has violated the terms of th e plea agreement, we ask "whether the government's conduct is consistent with the parties' reasonable understandi ng of the agreement." United States v. Roman, 121 F.3d 136, 1 42 (3d Cir. 1997) (quotation omitted).

11The government does not disagree with Queensborough 's

understanding that it was to recommend a sentence w ithin the applicable guidelines, and it maintains that it did. Indeed, in her allocution at the sentencing hearing the prosecutor stated that "the government believes tha t a sentence of 151 months for the act of aggravated ra pe 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 agreemen t.

Queensborough argues that the government paid only "lip service" to its agreement and that it implicit ly 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 collo quy:

[THE GOVERNMENT] But the Court has to acknow ledge 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 W ood[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 tha t 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 v ery serious crime. And even though the government in the plea agreement has agreed to recommend the senten ce within the guideline range, the plea agreeme nt does acknowledge that a departure is warranted wh en there's more than one victim.4

___________________________________________________ ______________

4. This appears to have been a misstatement. The pr osecutor apparently intended to refer to the presentence report, which would have been an accurate reference. Queensborough now argues the sl ip of the tongue supports his claim but made no attempt to correct t he matter at the sentencing level, where it was more likely to have been useful.

12I think here we have a situation where you have

[female victim] being savagely abused by thi s defendant, and then you have [male victim] a s well being abused by this defendant.

So, this is a situation, I think, that call s for a sentence at the higher end of the guideline range, an d the government believes that a sentence of 151 m onths for the act of aggravated rape is an appropriate sentence, covering the conduct of this defendant again st both [victims]. [discussion of another case that the court h ad questioned him about]

So the fact that there were two victims her e is an aggravating factor the Court should take int o account. If not, the government is recommending the high end of the guideline range, but it is factor that w ould 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 essenc e of the government's allocution on this issue before the Di strict Court at sentencing. The government, having recomme nded a sentence at the high end of the guideline range, offered reasons in support of that recommendation. It happe ned that those reasons, as the government noted, also warranted an upward departure, but the government explicitly stated that it was recommending a senten ce within the applicable guideline range. This was con sistent with the agreement. Nothing in the plea agreement s uggests or states that the government may not make the stat ements

it did.

Queensborough emphasizes the decision of the First Circuit in United States v. Canada, 960 F.2d 263 (1 st Cir. 1992), where the court stated that the government i s prohibited not only from an "explicit repudiation o f the government's assurances, but [the agreement] must i n the

interests of fairness be read to forbid end-runs ar ound 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"

13around the agreement in this case. Although the pro secutor

made a misstatement, see note 4 supra , the Distric t Court was aware of both the plea agreement and the PSR, a nd

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 conduc t constituted a breach of the plea agreement. The prosecutor's statement, quoted above supra, was mad e in response to defense counsel's argument that Queensborough should be sentenced to 121 months, th e low end of the guideline range. In support of this argument, defense counsel referred, inter alia, to the senten ce 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 ha d"also received the ten year minimum mandatory, and thefiv e years on the gun . . . . And that was on four separ ate occasions, each of which being an aggravated rape." App. at 69. We think it clear that, in this case, the prose cutor's emphasis on the severity of Queensborough's crime a nd on the fact that multiple rapes could have been charge d 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, ra ther

than the 120 months to which Fredericks was sentenc ed.

Queensborough hones in on the following two sentenc es of the government's allocution:

So the fact that there were two victims here is an aggravating factor the Court should take int o account. If not, the government is recommending the h igh end of the guideline range, but it is factor tha t would

warrant that sentence. . . .

App. at 80.

We do not agree with Queensborough's charge that by this statement the prosecutor "only suggested a sen tence 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 th at she

14initially referred the court to the government's pr omise to

recommend a sentence within the guideline range, Ap p. at 79, and then, on two occasions, explicitly stated t hat 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 re ad as a basis for a sentence at the high end of the guideli ne range, as the prosecutor made clear by adding "is [a] fact or that would warrant that sentence. . . ." App. at 80. Queensborough does not point to any statement by th e prosecutor recommending that the court depart upwar d

because there is no such statement.

The plea agreement recognized that the District Cou rt was free to reject the government's recommendation. The court chose to do so, and, as is evident from the c ourt's remarks, it did so on the basis of its abhorrence o f the circumstances of the crime. Notably, the plea agree ment 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 with draw guilty plea if court set an offense level higher th an that in the plea agreement). The prosecutor adhered to the terms of the agreement, and we see no basis to vacate the se ntence 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 r elated challenges to the fact of departure. First, he cont ends that the District Court's decision to upwardly depart fr om the guidelines based on extreme conduct is not supporte d by the record and that such a departure was not permis sible under the guidelines. Second, he contends that the District Court abused its discretion by imposing an excessiv e upward departure. We review a district court's deci sion to depart from the applicable guideline range for abus e 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 r elevant guideline range " `unless the court finds that ther e exists an aggravating or mitigating circumstance of a kind, o r 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 des cribed.' " United States v. Kikumura, 918 F.2d 1084, 1098 (3d Cir. 1990) (citing 18 U.S.C. S 3553(b)). In Koon, the Su preme Court noted that the sentencing guidelines provide "considerable guidance . . . by listing certain fac tors as either encouraged or discouraged bases for departur e." 518 U.S. at 94. Encouraged factors are those "the Commi ssion has not been able to take into account fully in for mulating 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 C ir. 1997), the sentencing court may depart if the "appl icable guideline does not already take it into account," U nited 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 senten cing 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 guide line range of 121-151 months imprisonment. As noted above, the District Court, granting an upward departure, sente nced Queensborough to 240 months (20 years) imprisonment on the aggravated rape count and to the statutorily ma ndated sentence of 60 months on the firearm count, to run consecutively. It is the sentence for the aggravate d rape that is the basis for the appeal.

1. Record Support for the Departure

Queensborough argues that the record does not suppo rt the finding of extreme conduct because both of the victims

16stated that they only pretended to have sex with ea ch other.

That argument is a non sequitur. Being put in a pos ition where the victim must pretend to have sex is degrad ing; "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 it self to have sex that was degrading.

Queensborough then asserts that the District Court erred by failing to make any comparison between the degra dation in this case and a "typical" sexual assault case. I n essence, Queensborough argues that the District Court should have established a factual basis involving a typical sex ual assault case, thereby providing a baseline against which to compare Queensborough's conduct. The comparison to which Queensborough alludes appears to be that whic h 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 in jury much more serious than that normally resulting from comm ission of the offense." Although rape is a particularly in trusive crime, probably more than any other, and the victim of a rape may suffer severe psychological damage for lon g periods, if not forever, the District Court did not depart on

the basis of S 5K2.3 but under S 5K2.8. That sectio n 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 chara cterizing the events as degrading and Queensborough's conduct as extreme. Given the repetitive number of instances o f intrusive physical contact, the order that the two victims have sex, and the repeated death threats, the recor d 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 5K 2.3 based on defendant's conduct during rape and on sev ere psychological injury); Lewis, 115 F.3d at 1538-39 ( affirming departure under U.S.S.G. S 5K2.8 based on number an d nature of assaults).

172. Whether the Departure was Authorized

Queensborough also argues that no upward departure was legally permissible because his conduct was alr eady taken into account by the guidelines. Queensborough does not suggest that the 20 year sentence imposed by th e District Court was unauthorized by statute. Under t he ACA, which applies here because the offense took place o n federal land, i.e., a national park, Queensborough was subject to "a like punishment" to that applicable u nder the state or territorial law. 18 U.S.C. S 13(a). Courts have interpreted "like punishment" to mean that state la w sets the minimum and maximum punishment while the federa l sentencing guidelines should be used to determine t he actual sentence within that range. See, e.g., Unite d States v. Pierce, 75 F.3d 173, 176 (4th Cir. 1996); United States v. Marmolejo, 915 F.2d 981, 984 (5th Cir. 1990); Unite d 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 Is lands law. See 14 V.I.C. S 1700(c). Therefore, the Distri ct Court, although required to determine the actual sentence using the federal sentencing guidelines, was authorized t o sentence within that range, i.e., up to life impris onment.

The thrust of Queensborough's argument is that his offense level was increased by four levels for aggr avated sexual assault by force or threat and an additional four levels for abduction, thereby resulting in an adjus ted offense level of 35, which he claims took into acco unt all of his conduct, including any degradation associated w ith criminal sexual abuse. We disagree. As an encourage d factor under the guidelines, extreme conduct may be the basis for an upward departure if the "applicable gu ideline does not already take it into account," Iannone, 18 4 F.3d at 226, or, if the guideline does take it into account , if the factor is present to a degree substantially in exce ss of that ordinarily involved in the offense. It is evident t hat 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 b e

18appropriate "[i]f a victim was sexually abused by m ore than

one participant." U.S.S.G. S 2A3.1, Application Not e 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 gui delines. See Lewis, 115 F.3d at 1538-39.

3. The Extent of the Departure

Finally, Queensborough argues that even if an upwar d departure was permissible the District Court abused its discretion by ordering an excessive departure equiv alent 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 o nly four levels." Appellant's Br. at 28 (citing U.S.S.G.S 2A 3.1(b)(4)). He relies on our statement that "analogy to the gui delines is also a useful and appropriate tool for determini ng 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 d istrict court has substituted its judgment for that of the Sentencing Commission, but whether the court of app eals should substitute its judgment for that of the dist rict

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 c ase is not apparent from the record." Dissenting op. at 34 . He would follow the process that we used in United Sta tes v. Jacobs, 167 F.3d 792 (3d Cir. 1999). Unlike our col league, we believe that both the justification for an upwar d departure of the extent given and the District Cour t's reasons are fully set forth on the record.

19The PSR, which was available to both the defense an d 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 victi ms, a brief

review of the written statement of the female victi m, who said that she "knew bad things did happen, but did not know that evil like this existed," which was includ ed in the PSR, fully sets forth the "devastating" effect on h er 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;" "lo ss of the ability to focus on meditation or prayer withou t 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 happ y and worth living was not available to me for many month s. . . and in some ways may never return."

The written statement of the male victim included i n the PSR was similar. He related that "[t]he hatred, bru tality, 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"du ring 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 fac e. . . [in the months that followed] I frequently panicked, fe aring that someone was about to attack me from behind, on ly 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"m ore than one and one-half years after that violent nigh t;" "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 no t return [my happy spirit] to me, but you can make certain t hat others don't lose theirs as well. It is my belief, backed by

20many studies, that if freedom is given to this pers on before

he reaches middle age he will repeat the violent cr imes he has committed. That price for his freedom is too hi gh. You stand between this man and the brutality with which he will treat other people." The male victim also wrot e, "I sincerely believe that if he is not sentenced to ma ny years in jail, he will again commit horrific crimes, and in the future, he may not allow the victims to live. I fee l a deep responsibility to call the attention of the legal s ystem to this danger, and the court has a deep responsibility to ensure that others are not endangered by this man." Andfin ally, 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 re cord.

But if the written statements of the victims did no t sufficiently set forth the circumstances and effect of Queensborough's crime, these victims felt so strong ly about the sentencing that, unlike most victims of rape wh o shun

further contact with the case once the trial is ove r, they both returned for the sentencing hearing and gave t heir statements in person and in the presence of the cou rt. Those statements are included as an Appendix to thi s 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 Distri ct Court, having just heard the moving and explicit statements of both victims, made in open court, sta ted at

the outset:

THE COURT: Mr. Queensborough, I don't know t hat there's a whole lot I can say to you, other than what [the female victim] and [the male victim] ha ve very eloquently told you right now.

. . .

The cases alluded to by your counsel earlie r are different, they are distinguishable from thi s, while they

21were certainly very bad and dangerous and br utal, but

they do not reach the level of brutality tha t you did to these two people.

Not only do I think that it is, that senten cing you on the high . . . end of the guidelines is appr opriate, I think that it does warrant departure upward.

The court stated that "this case is totally sensele ss . . . . So

I think that this is one of those instances where t he Court is justified in departing upward." After confirming with the U.S. Attorney that "the maximum sentence for this i s 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 t he Guidelines

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

it embodies the traditional exercise of disc retion by a sentencing court. Before a departure is perm itted, certain aspects of the case must be found un usual 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 Co mmission, or whether a discouraged factor nonetheless justifies departure because it is present in some unus ual or exceptional way, are matters determined in l arge part by comparison with the facts of other Guidel ine cases.

District courts have an institutional advant age over appellate courts in making these sorts of

determinations. . . .

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

Applying this substantial deference, we conclude th at the District Court did not abuse its discretion in depa rting upwards to the degree it did in this case. In setti ng Queensborough's sentence, the court compared his co nduct to that of other criminal defendants referred to by defense counsel during argument, and stated: "[t]he cases a lluded to by your counsel earlier are different . . . whil e they were certainly very bad and dangerous and brutal . . . t hey do

22not reach the level of brutality that you did to th ese 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 year s. The District Court heard the allocution by both attorne ys, by the two victims, and by Queensborough himself. It w as 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 o wn.

III.

CONCLUSION

For the reasons set forth, we will affirm the judgm ent of

conviction and sentence.

23APPENDIX

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 wan t to do so, because I thought it would be very hard to talk about what happened, and I worried I would embarrass myse lf by crying.

And it struck me that the worst, if I did cry, I wo uld be embarrassed, is a very different result from the th reat of that night when we were attacked by this man. He sa id 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 kn ow how it felt for me to sit with a friend on a beauti ful Valentine's Day night, and suddenly become prey to brutal predators who would show us repeatedly that our liv es no longer had value, and that they could be taken at a ny time.

You can read medical reports, but you can't know th at during the attack, there came a time when it hurt s o badly I considered fighting, even if it meant my life, be cause 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 deva stating as this happen. This has invaded every portion of m y 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 o f that night, from which I awaken screaming. And this goes

24on, the continuing months of counseling to try to w ork

through my confused emotions and fears.

That for many months I experienced a loss of the ab ility 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 ac tivities I previously enjoyed, simple things like reading an d watching TV, or basket weaving or quilting.

The embarrassment of the exasperating jumpiness wit h 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 f or 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 whe n I am too closely surrounded by strangers, which made ordinary events like rejoining my exercise class, o r even going to my own church, too difficult for many mont hs.

Activities where strangers were close by remain ver y difficult for me. I find it hard to remember that I once could enjoy a simple even[ing] out dancing with a group o f friends or going to an amusement park for the day.

The loss of opportunity, the promotion that disappe ared when the administrator found out what had happened to me. The staff, who did not know what happened, coul dn't understand why the promotion had suddenly disappear ed and was not mine. I did not have the energy to argu e 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 h urt 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

25that names were withheld did not disguise that that was

me.

The difficulty of trying to handle the everyday eve nts of life while dealing with this. I can barely recall l arge events, like moving, other than extreme upset over small, m inor things like a scratch from a cardboard box that rem inded me of the scratches received from the lava rocks, f rom the attack that night.

And the fear that I would burst into tears over not hing 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, tes ting, 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 m oney that was stolen from me. I think that money was min or. 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 retu rn 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 w hich 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 mu st ask that you limit this man's freedom for as long as th e law allows you to do so, in order that the freedom of o ther people may be preserved.

26STATEMENT OF MALE VICTIM AT SENTENCING

HEARING

I'm thinking about what I can offer to you as you t hink about sentencing Mr. Queensborough. I need to pass on to you a bit of the horror of the night that we experi enced.

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 awar e of.

Right after Mr. Queensborough had himself just fini shed raping [female victim], he held me down on the grou nd 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 threateni ng manner, he said some things that were deeply distur bing and that were very revealing about him.

He said, "Do you know why I'm doing this to you, wh y I'm going to hurt you?"

He said, "Because I've been in jail and I've been h urt. 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 othe rs. He has no respect for human life. And this is the person t hat's holding a gun to my head and threatening to kill us , and he has just finished raping [female victim]. It was de eply disturbing and very shocking, and I lay there tremb ling.

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 peop le, 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 bee n 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

27horror of panic, see them for real, and some of the m are

basically based on the horror of that night.

He said all this to me having just raped [female vi ctim], and it was very clear, I know in my heart not only was he capable of raping, which he did, but that he was ve ry 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 assailan t. 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 capa ble of killing and capable of rape, and I believe that given the opportunity it will happen again, and that next tim e the victims will not survive. In fact, I believe that m ost people would not have lived through that. I feel very fort unate, 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 ha ve no interest at all in punishment. I have no pleasure a t all thinking about Mr. Queensborough going to jail. In fact, I think it's tragic. I think it's very tragic, that s ince he is such a young a man, can be so filled with hatred an d horror, his life so out of control that he can comm it crimes that mean that he is not safe to be around other pe ople.

So when I think about what I think is appropriate f or his sentencing, all I think about is the safety of othe rs, 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 other s again,

and that as a result the Court needs to sentence hi m 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 th at. But the safety of others is what I have to keep in mind, an d that's why I came here today.

Thank you for listening and considering that in dec iding on his sentencing . . . .

28STAPLETON, 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 com ment about "an aggravating factor" could not have commun icated to the Court that the government was recommending a departure. Nevertheless, I would remand for resente ncing.

Queensborough was charged with conduct constituting "aggravated sexual abuse" under 18 U.S.C.S 2241 whi ch, like the Virgin Islands rape statute, carries a max imum sentence of life imprisonment.1 The applicable prov ision of the Guidelines is S 2A3.1, which provides a base of fense

level of 27 for "sexual abuse" as defined in 18 U.S .C. S 22422 and specifies "Specific Offense Characteristic" upw ard increases for various aggravating circumstances. A fourlevel increase is required, for example, if a dange rous

___________________________________________________ ______________

1. Section 2241 provides in relevant part:

(a) By force or threat. -- Whoever, in the special maritime and territorial jurisdiction of the United State s or in a Federal prison, knowingly causes another person to engage in a sexual act --

(1) by using force against that other perso n; or

(2) by threatening or placing that other pe rson in fear that any person will be subjected to death, serious b odily injury, or kidnaping;

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

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

2. Section 2242 provides in relevant part:

Whoever, in the special maritime and territ orial jurisdiction of

the United States or in a Federal prison, knowin gly--

(1) causes another person to engage in a se xual 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 t his title, imprisoned

not more than 20 years, or both.

29weapon is used or displayed. An additional four-lev el

increase is mandated if the victim is abducted, and still

another four-level increase is called for if the vi ctim sustained permanent or life-threatening bodily inju ry.3 Application Note 5 to S 2A3.1 makes a cross referen ce to S 5K2.8 (departure for "extreme conduct"), which au thorizes 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 w hen the victim is sexually abused by more than one part icipant.

Queensborough's sentencing judge adopted the Guidel ine calculations suggested in the Presentence Report (" PSR"): a Base Offense Level of 27 followed by a four-level i ncrease for use of a gun, a four-level increase for abducti on, a twolevel decrease for acceptance of responsibility, an d a onelevel decrease for timely notifying the authorities of his intention to plead guilty. This calculation resulte d in a total offense level of 32 and, given Queensborough's Crim inal History Level, a sentencing range of 121 to 151 mon ths. Queensborough does not challenge this calculation. The Court went on, however, to depart upward and to imp ose a

___________________________________________________ ______________

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

(b) Specific Offense Characteristics

(1) If the offense was committed by the mea ns 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 b y 4 levels;

(2) (A) If the victim had not attained the age of twelve years, increase by 4 levels; or (B) if the victim h ad 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, c are, or supervisory

control of the defendant; or (B) a person held in th e custody of a correctional facility, increase by 2 levels.

(4) (A) If the victim sustained permanent o r life-threatening bodily injury, increase by 4 levels; (B) if the vic tim 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.

30sentence of 240 months, the equivalent of at least afivelevel 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 departu re 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 situa tion where the rape involved an abduction and use of a d eadly weapon. The Court concluded that Queensborough's conduct was "unusually degrading to the victim" bec ause "one victim [was] forced to have sex with another v ictim," App. at 113, and, based solely upon this finding, d eparted upward five levels. Like my colleagues, I agree tha t the directive to the two victims could properly support an upward departure. I would not affirm the District C ourt's sentence, however, because no notice was given that a departure on this ground was being considered and because the sentencing judge provided no explanatio n 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 Guid elines sentence." Id. at 134 (emphasis supplied). Rule 32 does this in part by affording the defendant and the governme nt the opportunity to comment on "matters relating to the appropriate sentence." Id. at 134. The Supreme Cour t concluded in Burns that Rule 32 contained an implic it 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 (em phasis 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 a t issue and of the facts that allegedly support such a departure. Here we deal with the extraordina ry case in which the district court, on its own initiat ive and contrary to the expectations of both the def endant and

31the Government, decides that the factual and legal

predicates for a departure are satisfied. Th e question before us is whether Congress, in enacting t he Sentencing Reform Act, intended that the dis trict court

be free to make such a determination without notifying the parties. We believe that the answer to t his 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 gi ven"an opportunity to comment upon the probation of ficer's determination and on other matters relating to the appropriate sentence." Fed. Rule Crim. Proc. 32(a)(1). Obviously, whether a sua sponte departure fr om the Guidelines would be legally and factually wa rranted is a "matte[r] relating to the appropriate sent ence." In our view, it makes no sense to impute to Congres s an intent that a defendant have the right to co mment on the appropriateness of a sua sponte departur e but not the right to be notified that the court is c ontemplating 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 fa ct that the "victim was sexually abused by more than one participant." The only fact mentioned by the govern ment at the sentencing hearing as possibly warranting a dep arture

was the fact that "there's more than one victim." Understandably, in this context, defense counsel ma de 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 d eparture

should be.

My colleagues distinguish Burns on the ground that the

PSR here mentioned the directive to have sex in its tenpage, 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. Neith er portion of the PSR, however, gave fair notice of th e factual basis for the departure utilized by the Court.

32While the PSR did cite to the Guideline under which the

Court ultimately departed and thus referenced the"l egal predicate" for the departure that ultimately occurr ed, that Guideline is so broad that it provided no hint in t his context of the "factual predicate" that the Court w as 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 Cour t. 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 t hat there were two perpetrators.

In addition to adopting a novel ground for departur e, the District Court provided no clue as to why it decide d that a five-level departure was warranted. The Court simpl y noted that the maximum penalty authorized by the statute was life and then imposed a sentence of 20 years. My co lleagues understandably believe that the extent of the Distr ict Court's departure was determined by reference to th e relationship between a total sentence of twenty yea rs and the maximum sentence provided by law, i.e., life. I f so, the District Court erred. As my colleagues acknowledge, even when sentencing for an assimilated crime, a distric t court

must still base its sentence on the Guidelines. If the congressionally intended uniformity is to be achiev ed, it is the value system of the Guidelines to which the sen tencing judge must adhere.

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

. 1990), we held that once a reviewing court conclude s 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, ou r 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 conclu ded that the primary source of those objective standard s must be the Guideline scheme itself. At the same time, w e recognized that those standards will often be disce rnable in the Guidelines only by way of analogy and that " an alogies

33to the guidelines . . . are necessarily more open-t extured

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

In United States v. Jacobs, 167 F.3d 792 (3d Cir. 1 999), 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 depar ture." Id. at 798. In the absence of such an explanation or so me other indicia in the record, it is impossible to de termine whether the District Court has conducted the requir ed analysis. Under Jacobs, where the reasonableness of the degree of the departure is not otherwise apparent f rom the record, a failure to provide an explanation require s a remand for resentencing. As will be apparent from t he following discussion, I believe the reasonableness of the degree of departure in this case is not apparent fr om the record and that our precedents, accordingly, dictat e a remand for resentencing.

Consistent with our prior approach in comparable ca ses, I would not dictate to the District Court the ratio nale that it should utilize on remand in determining the degr ee 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 determi nation.

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. Sectio n 2A2.2, the aggravated assault guideline, provided for a ba se offense level of 15 and for enhancements, inter ali a, for use of a dangerous weapon (4 levels), and infliction of "Serious Bodily Injury" (4 levels), or "Permanent or Life-Th reatening Bodily Injury" (6 levels).4 The sentencing court ad ded four

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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:

34levels for the use of a knife and six levels becaus e the

victim sustained permanent physical injuries. In ad dition, 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 opi nion, we pointed out that the Guidelines provided a basis fo r inferring that in an aggravated assault context, ph ysical and non-physical injuries to the victim should be t reated as being of substantially similar seriousness. Based o n 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" i ncludes the "protracted impairment of . . . [a] mental f aculty." Under S 1B1.1(h), "permanent or life-threate ning bodily injury" includes a "substantial impairment o f[a] mental faculty that is likely to be permanen t." These

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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 adju stments 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 psychologica l injury much more serious than that normally resulting from co mmission of the offense, the court may increase the sentence above th e authorized guideline

range.

35definitions do not, as Jacobs argues, mean t hat in an

aggravated assault context, S 2A2.2(b) takes into account all of the extraordinary psychologic al injuries covered by S 5K2.3. . . . They may, however, provide a basis for inferring that the guidelines in a n aggravated assault situation treat physical and non-phy sical injuries to a victim as being of substantial ly similar seriousness. If one draws such an inference, one may further conclude that it would be inconsiste nt 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 b e protracted. Conversely, one may conclude tha t it would be consistent with the approach of the Guide lines to depart upwards four levels if there is "extr eme psychological injury," as defined in S 5K2.3 , that can be expected to be "protracted" but not "permane nt."

Jacobs, 167 F.3d at 801.

Section 2A3.1 (the sexual abuse guideline), likeS 2 A2.2 (the aggravated assault guideline), provides a base offense level and, inter alia, calls for increases dependin g on whether "serious bodily injury" or "permanent or li fethreatening injury" was inflicted on the victim. "S erious bodily injury" and "permanent or life-threatening i njury" for purposes of both sections include impairment of a"m ental faculty." Section S 5K2.8 (departure for"extreme co nduct"), like S 5K2.3 (departure for "extreme psychological injury"), authorizes an upward departure where an extraordina ry non-physical injury is inflicted, i.e., where the v ictim 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 determi ning a reasonable degree of departure here.

As we have noted, if the victim in a sexual assault sustains "permanent or life-threatening bodily inju ry," S 2A3.1(b) dictates a four level increase in the of fense level. If bodily injury is sustained that is neither "perm anent" 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 t reated as

36having culpability equal to that of one who inflict s

comparable physical injury, it would appear unreaso nable, in the absence of a persuasive explanation, to depa rt more

than four levels in a situation like that before us or to depart more than three level without finding that t he harm to the victim was life threatening or left continui ng effects.

I would also commend for the District Court's consideration the portion of our Kikumura opinion t hat discusses situations where the conduct giving rise to a departure is itself a crime independent of the offe nse charged. See Kikumura, 918 F.2d at 1112. We there suggested that it would ordinarily not be reasonabl e to choose a degree of departure that would result in t he 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 depar ture 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 perso n to engage in a sexual act . . . by threatening serious bodily injury." If he had been prosecuted for both offense s, they

would each have had a total offense level of 32. Be cause there was an additional victim of the second crime, they would not have been grouped together and the combin ed offense level, under S 3D1.4, would have been 34. T his produces a Guideline range from 151 to 188 months, a range substantially below the 240 months imposed he re.

I would stress, as we did in Jacobs, that the Distr ict

Court would be free on remand to elect a different approach to determine what is a reasonable degree of departu re 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

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6. The Court's appendix and its recitation of the d etails of the offense and its impact on the victims powerfully communicat es the character of the sexual abuse in this case. To the extent they a re included in response to my dissent, however, they miss the poin t. The issue for me is not whether this record will support an upward d eparture or even whether it could justify a five-level upward depart ure.

37A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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The sentencing judge in this case was required by 1 8 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 jud ge stated:

As is recited in the Presentence Report, an d 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 ra pe, I don't know that

it qualifies as unusually heinous, cruel or bru tal; 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 rang e 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 v ictim.

App. at 113.

It is thus unmistakably clear why the District Cour t departed. The problematic issues result from the fact that the Co urt gave no notice that it was considering a departure on that ground and t he fact that it gave no explanation as to why it thought the order to ha ve sex deserved punishment beyond that which could have been impose d based on a finding of permanent physical or psychological inju ry to the victims.

38