The Honorable Russell G. Clark, United States District Judge for the Western 1

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-3163

___________

United States of America, *

Plaintiff - Appellee, * Appeal from the United States

 v. * Western District of Missouri.

Marques D. Rodgers, *

Defendant - Appellant. *

*

* District Court for the 

*

*

*

___________

Submitted: April 18, 1997

 Filed: September 2, 1997 

___________

Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.

___________

HANSEN, Circuit Judge.

Marques D. Rodgers was convicted on two counts of distribution of

marijuana and one count of attempting to kill a witness to prevent his

testimony. Following the verdict, the district court sentenced Rodgers

1

to a total of 324 months of imprisonment. He appeals his sentence, and we

affirm.
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I.

In December 1993, Marques D. Rodgers worked at the Humane Society in

Joplin, Missouri, and lived in a house on the premises. He became

acquainted with an animal control officer named Eric Wright, who was a

reserve police officer for Carterville, Missouri. Wright went to Rodgers’

home on several occasions, where he observed drugs and assault weapons.

Over time, Wright came to understand that Rodgers was dealing drugs. 

Wright informed a DARE officer about Rodgers’ activities, and the FBI

subsequently enlisted him to work undercover and to negotiate with Rodgers

for drugs and guns. Wright succeeded in purchasing a firearm and about 30

grams of marijuana. A search warrant was executed, and Rodgers was

arrested. An SKS semiautomatic assault rifle, 16.2 grams of marijuana, .62

grams of cocaine base, and .36 grams of methamphetamine were seized, along

with a variety of drug paraphernalia.

Four days later, Wright—who would be the primary witness for the

prosecution—was assaulted by Marques Rodgers and his brother Marvin in

front of Wright’s house. Marques Rodgers attacked Wright from behind with

a gun. When Rodgers put the gun to Wright’s face, Wright grabbed it, and

they struggled until Marvin Rodgers joined the fray and struck Wright

repeatedly in the back of the head with a hard object. Wright then fell

to his knees, and Marvin Rodgers placed a gun to his head. While Wright

begged for his life, Marvin cocked the hammer and pulled the trigger. For

some reason, the gun failed to fire. 

The brothers then tried to force Wright into a van. Another struggle

ensued, in which Wright was able to pull out a concealed weapon and get a

shot off. The two assailants turned and ran. Seconds later, Marvin

Rodgers stopped, turned, and raised his arm as if to shoot. Wright raised

his own gun, shooting and killing Marvin Rodgers. Marques Rodgers

disappeared and remained at large for over a year. He was 
The offenses were grouped together for purposes of sentencing. The base

2

offense level for attempting to kill a federal witness is 28. After adjustments, the

offense level rose to 36. Rodgers had 20 criminal history points, which placed him in

criminal history category six, with a resulting sentencing range of 324-405 months.

Pursuant to USSG § 5G1.2(d), the court imposed the statutory maximum of 20 years

(240 months) on the attempt to kill a federal witness count, and then imposed a

consecutive 84-month sentence on the drug counts to achieve the total punishment (324

months) called for by the identified guidelines range.

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eventually apprehended in London, England.

Rodgers was extradited, tried, and found guilty on two counts of

distribution of marijuana and one count of attempting to kill a federal

witness. The court sentenced him to a total of 324 months, which was the

bottom of the identified guideline range.2

II.

Rodgers challenges three adjustments made at sentencing and claims

that his counsel provided ineffective assistance. We address each issue in

turn.

Obstruction of Justice

 Rodgers first challenges the two-level upward adjustment he received

for obstruction of the administration of justice pursuant to U.S.

Sentencing Guidelines Manual § 3C1.1 (1995). 

After the attempted murder of Eric Wright in Missouri, Rodgers fled

to Iowa and changed his appearance. He then assumed a new identity,

obtained a fake identification and passport, and fled the country to

London, England, where he was subsequently arrested and placed in jail

while he resisted extradition. The government presented 
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evidence at sentencing that he had attempted to escape from custody in

Britain, and the district court found that he had done so. Rodgers claims

that the district court clearly erred in finding that the escape attempt

occurred and that, in any case, the record does not support the imposition

of this enhancement. We disagree.

We first examine the trial court’s finding of fact. We review the

district court’s findings of fact at sentencing under the standard set out

by Congress in 18 U.S.C. § 3742(e) (1994), which provides that we must

“give due regard to the opportunity of the district court to judge the

credibility of the witnesses, and shall accept the findings of fact of the

district court unless they are clearly erroneous . . . .” See United States

v. Cornelius, 931 F.2d 490, 493 (8th Cir. 1991). In Anderson v. City of

Bessemer City, 470 U.S. 564, 573-74 (1985), the Supreme Court further

explicated the “clearly erroneous” standard, writing:

If the district court’s account of the evidence is plausible in

light of the record viewed in its entirety, the court of

appeals may not reverse it even though convinced that had it

been sitting as the trier of fact, it would have weighed the

evidence differently. Where there are two permissible views of

the evidence, the factfinder’s choice between them cannot be

clearly erroneous.

Evidence of the escape was limited to the testimony of Chris Morales,

who testified at trial that Rodgers called her from jail and informed her

that “on his way from jail to [c]ourt there would be an escape attempt.”

(Trial Tr. at 313.) He also informed her that he had recruited a guard to

help him and that he would flee to South America. (Trial Tr. At 314.) The

government had the burden of proving the fact of the escape attempt by a preponderance of the evidence. United

States v. Miller, 943 F.2d 858, 860 (8th Cir. 1991). Although we agree with appellant that

the evidence regarding the escape attempt was certainly not overwhelming,

we find that the district court’s determination that the government had met

its burden was not clearly erroneous. This finding was based, in large

part, on credibility determinations. “[W]hen a trial judge’s 
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finding is based on his decision to credit the testimony of one of two or

more witnesses, each of whom has told a coherent and facially plausible

story that is not contradicted by extrinsic evidence, that finding, if not

internally inconsistent, can virtually never be clear error.” Anderson,

470 U.S. at 575. Such is the case here. There was no clear error.

We next address the district court’s determination that these facts

merited a section 3C1.1 adjustment. “We review de novo a sentencing court’s

determination that section 3C1.1 applies to specific conduct.” United

States v. McCoy, 36 F.3d 740, 742 (8th Cir. 1994). Escaping or attempting

to escape from custody before trial constitutes one of the types of conduct

to which a section 3C1.1 enhancement may be applied. USSG § 3C1.1

comment. (n.3(e)). The trial court additionally considered Rodgers’ illegal

emigration from the United States using false identification and his

failure to appear for court appearances. All such behavior involves the

willful obstruction of justice. We conclude that the district court

correctly applied the obstruction-of-justice enhancement to Rodgers.

Rodgers also argues that this adjustment is unfairly counted twice, since a similar enhancement was

applied to his drug charges which were grouped with the charge of attempted murder for purposes of sentencing.

This claim is without merit. The sentencing range determined by the adjusted offense level of the drug count,

even though it includes the two-level upward adjustment for obstruction of justice, is, under the guidelines,

irrelevant to the actual sentence imposed. Section 5G1.2 directs that the total punishment

derived from the count with the highest offense level be the sentence that

is imposed for all counts, and it uses consecutive sentences to reach the

total punishment level. In short, the whole of the statutory maximum on

each of the drug counts is available in order to effect the total

punishment required on the attempt to murder charge.
PTSD , a debilitating stress disorder, is very common among crime victims like 3

Wright who perceive that their lives are threatened and who also receive injury during

the commission of the crime. Empirical studies have found that nearly two-thirds of

such victims develop the disorder. Dean G. Kilpatrick and Heidi S. Resnick,

“Posttraumatic Stress Disorder Associated with Exposure to Criminal Victimization in

Clinical and Community Populations,” in Posttraumatic Stress Disorder: DSM IV and

Beyond 113, 128 t.7-9 (Jonathan R. Davidson & Edna B. Foa, eds., 1993). 

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Serious Bodily Injury

Rodgers next claims the district court erred in imposing a two-level

upward adjustment pursuant to USSG § 2A2.1(b)(1)(B), which provides for

such an adjustment in cases of attempted murder where the victim suffers

“serious bodily injury” as a result of the attempt. Rodgers claims that

the injuries suffered by Wright as a result of the attempt on his life were

not “serious” and that the district court clearly erred in finding that

they were. We disagree.

The Sentencing Guidelines define “serious bodily injury” as “injury

involving extreme physical pain or the impairment of a function of a bodily

member, organ, or mental faculty; or requiring medical intervention such

as surgery, hospitalization, or physical rehabilitation.” USSG § 1B1.1,

comment. (n.1(j)). Mr. Wright suffered a wide array of injuries in the

attack. He was struck on the head multiple times and received several

stitches to the resulting lacerations. He received bruises to both arms

and the left shoulder. Additionally, Wright developed Posttraumatic Stress

Disorder (PTSD), for which he was subsequently hospitalized.3

We review for clear error, United States v. Parker, 989 F.2d 948, 951

(8th Cir. 1993), and hold that the evidence adduced at trial was more than

sufficient to support the trial court’s finding that Mr. Wright suffered

serious bodily injury. Not only did his injuries lead to hospitalization

and require mental rehabilitation, they also involved the impairment of his

mental faculties. See USSG § 1B1.1, comment. (n.1(j)). The 
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therapist to whom he was referred stated as follows in a letter introduced

as evidence at trial:

The result was significant trauma in which classic signs of

Post Traumatic Stress Disorder were exhibited. Irrational,

debilitating fear, night terrors and nightmares, depression,

anxiety attacks that generalized into all other areas of life

management developed. As well, paranoia to the point of

agoraphobic-like tendencies began to develop . . . so much so

that the couple eventually had to move from their home

permanently in order to feel safe enough to get well. Eric

began developing stress-related physical problems which he

continues to have.

(Appellant’s App. At A13.)

While PTSD may not always rise to the level of serious bodily injury,

it certainly can. See United States v. Reed, 26 F.3d 523, 530-31 (5th Cir.

1994) (upholding section 1B1.1 adjustment based on finding that victim’s

PTSD constituted serious bodily injury); cf. Parker, 989 F.2d at 951-52

(including mental trauma among indicia of serious bodily injury). We hold

that in this case, in combination with the other injuries suffered, it did.

The district court did not clearly err in finding that Mr. Wright had

suffered serious bodily injury as a result of the murder attempt.

Leader or Organizer of Criminal Activity

The trial judge imposed a four-level upward adjustment based on

Rodgers’ role in the offense. The Sentencing Guidelines provide for such

an adjustment where “the defendant was an organizer or leader of a criminal

activity that involved five or more participants or was otherwise

extensive.” USSG § 3B1.1(a). Rodgers claims that the district court

erred in holding that he met this standard. This is a question of fact

which we review for clear error. United States v. Skorniak, 59 F.3d 750,

757 (8th Cir.), cert. denied, 116 S. Ct. 487 (1995).
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Rodgers concedes there were five or more persons involved, but

argues that the adjustment was inappropriate because there was insufficient

evidence that he acted as a “leader or organizer.” He claims that those

who aided and abetted him were friends who did so sua sponte and without

coordination. We disagree.

At sentencing, the government bears the burden of proving, by a

preponderance of the evidence, facts necessary to establish a defendant’s

role in the offense. United States v. Morton, 957 F.2d 577, 581 (8th Cir.

1992) (citing United States v. Malbrough, 922 F.2d 458, 464 (8th Cir.

1990)). Factors the district court should consider include “the nature of

defendant’s role in the offense, the recruitment of accomplices, [and] the

degree of participation in planning or organizing the offense.” United

States v Escobar, 50 F.3d 1414, 1425 (8th Cir. 1995) (internal quotations

omitted). The government need only show that defendant played a leadership

role in an organization of five or more persons. It need not show that his

leadership role encompassed any particular number of participants. United

States v. Payne, Nos. 95-4136/4195, 1997 WL 377988, at *10 (8th Cir. July

10, 1997).

 

The government easily met its burden. The record is replete with

evidence that Rodgers was the driving force behind the murder attempt, that

he had the most to gain from it, that he recruited the others to assist

him, and that he organized and directed their every move as they executed

the plan which he had conceived. Accordingly, we hold that the district

court did not clearly err in finding Rodgers to be an organizer or leader,

and we affirm the four-level enhancement applied pursuant to USSG §

3B1.1(a).

Ineffective Assistance of Counsel

Rodgers argues that trial counsel was ineffective in several ways.

Rodgers failed to raise this issue before the trial court, and no adequate

factual record on the issue exists. Ineffective assistance of counsel

claims are rarely entertained by this court on 
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direct appeal because the record is seldom sufficient for us to reach a

conclusion. See, e.g., United States v. Logan, 49 F.3d 352, 361 (8th Cir.

1995); United States v. Jennings, 12 F.3d 836, 840 (8th Cir. 1994); United

States v. Kindle, 925 F.2d 272, 276 (8th Cir. 1991). We therefore decline

to address these claims at this time. Rodgers remains free to raise them

in a proceeding under 28 U.S.C. § 2255.

III.

For the foregoing reasons, we affirm the judgment of the district

court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.