2000 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"United States v. Queensborough" (2000). 2000 Decisions. Paper 198.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/198
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 fourlevel 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 twolevel decrease for acceptance of responsibility, and a onelevel 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 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 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 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. 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 lifethreatening 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