## The Honora ble 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.
Marqu es D. Rodgers was convicted on two counts of distribution o f marijuana and one count of attempting to kill a witness to prevent hi s testimon y. Following the verdict, the district court sentenced Rodger s 1 to a total of 324 mon ths of imprisonment. He appeals his sentence, and we affirm.

## -2- I.
In December 1993, Marques D. Rodgers worked at the Humane Society in Joplin, Missouri, and lived in a house on the premises. He becam e acqua inted with an animal control officer named Eric Wright, who was a reserve police officer for Carterville, Missouri . Wright went to Rodgers’ hom e 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 t he FBI subsequently enlisted him to work undercover and to negotiate with Rodger s for drugs and guns. Wright succeeded in purchas ing a firearm and about 30 grams of marijuana. A search warrant was executed, and Rodgers wa s arrested. An SKS semiautomatic assault rifle, 16.2 grams of marijuana, .6 2 grams of cocaine base, and .36 grams of methamph etamine were seized, along with a variety of drug paraphernalia. Fo ur days later, Wright—who would be the primary witness for th e prosec ution—was assaulted by Marques Rodgers and his brother Marvin i n front of Wright’s house. Marques Rodgers attack ed Wright from behind with a gun. When Rodgers put the gun to Wright’s face, Wright grabbed it, and they st ruggled until Marvin Rodgers joined the fray and struck Wrigh t repeatedlyin the back of the head with a hard object. Wright then fell to his knees, and Ma rvin Rodgers placed a gun to his head. While Wright begged for his life, Marvin cocked the hammer an d pulled the trigger. For some reason, the gun failed to fire. The brothers then tried to force Wright into a van. Another st ruggle ensued, in which Wrig ht was able to pull out a concealed weapon and get a shot o ff. The two assailants turned and ran. Seconds later, Marvi n Rodgers stopped, turned, and raised his arm as if to shoot. Wright raise d his own gun, shooting and killing Marvin Rodgers. Marques Rodger s disappeared and remained at large for over a year. He was

## The offenses were grouped together for purposes of sentencing. The bas e 2 

## of fenselevel for attempting to kill a federal witness is 28. After adjustments, th e offense level rose to36. Rodgers had 20 criminal history points, which placed him in criminal h istory 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 (24 0 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. -3- eventually apprehended in London, England.

Ro dgers was extradited, tried, and found guilty on two counts o f distribution of marijuana and one count of attempting to kill a federa l witness. The court s entenced him to a total of 324 months, which was the bottom of the identified guideline range. 2

II.

Ro dgers challenges three adjustments made at sentencing and claim s that his counsel provided ineffective assistance . We address each issue in turn.
Obstruction of Justice
Rodgers first challenges the two-level upward adjustment he re ceived for ob struction 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 Iow a and changed his appearance. He then assumed a new identity , obta ined a fake identification and passport, and fled the country t o London, England, where he was subsequently arrested and placed in jai l while he resisted extradition. The government presented

## -4-

evide nce at sentencing that he had attempted to escape from custody i n Britain, and the district court found that he ha d 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 fir st examine the trial court’s finding of fact. We review th e district court’s findings of fact at sentencing under the standard set out byCongress in 18 U.S.C. § 3742(e) (1994), which provides that we mus t “give due regard to the opportunity of the district court to judge th e credibility of the witnesses, and shall accept t he findings of fact of the district court unless they are clearly erroneous . . . .” See United State s
v. Cornelius , 931 F.2d 490, 493 (8th Cir. 1991). In Anderson v. City of Besseme rCity , 470 U.S. 564, 573-74 (1985), the Supreme Court furthe r 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 o f appeals may not reverse it even though convinced that had i t been sit ting as the trier of fact, it would have weighed th e evidence differently. Where there are two permissi ble views of the ev idence, the factfinder’s choice between them cannot b e clearly erroneous. Evidence of the escape was limited to the testimony of Chris Mo rales, who testified at tria l 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 h e had recruited a guard to help him and that he would flee to South America. (Trial Tr. A t 314.) The government had the burden of proving the fact of the e scape 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 regardin g the escape attempt was certainly not overwhelming,
we find that the district court’s determination that the government had me t its burde n was not clearly erroneous. This finding was based, in larg e part, on credibility determinations. “[W]hen a trial judge’s

## -5-

finding is based on h is decision to credit the testimony of one of two or
more witnesses, each of whom has told a coherent and facially plausibl e story that is not contradicted by extrinsic evid ence, that finding, if not internallyinconsistent, can virtually never be clear error.” Anderson , 470 U.S. at 575. Such is the case here. There was no clear error.

We next a ddress the district court’s determination that these facts merited a section 3C1.1 adjustment. “We review de novo a sentencing court’ s determ ination that section 3C1.1 applies to specific conduct.” Unite d 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 conduc t to which a section 3C1.1 enhancement may be applied. USSG § 3C1. 1 comment. (n.3(e)). The trial court additionally considered Rodgers’ illega l emigra tion from the United States using false identification and hi s failure to appear for court appearances. All such behavior involves the will ful obstruction of justice. We conclude that the district cour t 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 grou ped 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 t he total punishment derived from the count with the highest offense level be the sentence that is imposed for all co unts, and it uses consecutive sentences to reach the total punishment level. In short, the whole of the statutory maximum on
eac hof the drug counts is available in order to effect the tota l punishment required on the attempt to murder charge.

## PTSD , a debilitating stress disorder, i s 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 o f such vic tims develop the disorder. Dean G. Kilpatrick and Heidi S. Resnick , “Posttraumatic Stress Disorder Associate d with Exposure to Criminal Victimization in Clinical and Community Populations,” in Po sttraumatic Stress Disorder: DSM IV and Beyond 113, 128 t.7-9 (Jonathan R. Davidson & Edna B. Foa, eds., 1993).
-6- Serious Bodily Injury
Rodgers next claims the district cou rt erred in imposing a two-level upward adjustment pursuant to USSG § 2A2.1(b)(1)(B), which provides fo r suchan 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 wer e not “serious” and that the district court clearly erred in finding tha t they were. We disagree.

The Sente ncing Guidelines define “serious bodily injury” as “injury involving extreme physical pain or the impairment of a function of a bodil y 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 severa l stitches to the resulting lacerations. He received bruises to both arms and the left shoulder. Additionally, Wright developed Posttraumatic Stres s Disorder (PTSD), for which he was subsequently hospitalized. 3 We review for clear error, United States v. Parker , 989 F.2d 94 8, 951 (8th Cir. 1993), and hold that the evidence addu ced 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 hi s mental faculties. See USSG § 1B1.1, comment. (n.1(j)). The

## -7-

therapist to whom he was referred stated as foll ows in a letter introduced as evidence at trial:

The result was significant trauma in which classic signs o f Post Traumatic Stress Disorder were exhibited. Irrational , debilitating fear, night terrors and nightmares, depression , anxietyattacks that generalized into all other areas of life man agement developed. As well, paranoia to the point o f agoraphobic-like tendencies began to develop . . . so much so tha t the couple eventually had to move from their hom e pe rmanentlyin order to feel safe enough to get well. Eri c began developing stress-related physical problems which h e continues to have. (Appellant’s App. At A13.)
While PTSD may not always rise to the level of serious bodily i njury, 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 PTS D constituted serious bodily injury); cf. Parker , 989 F.2d at 951-5 2 (including mental tra uma 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 ha d 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 o n Rodgers’ role in the offense. The Sentencing G uidelines provide for such
an adjustment where “the defendant was an organizer or leader of a crimina l activi tythat involved five or more participants or was otherwis e extensive.” USSG § 3B1.1(a). Rodgers claims that the district cour t erred in holding that he met this standard. This is a question of fac t which we review for c lear error. United States v. Skorniak , 59 F.3d 750, 757 (8th Cir.), cert. denied , 116 S. Ct. 487 (1995).

## -8- Rodgers concedes there were five or more persons involved, bu t argues that the adjustment was inappropriate because there was insufficien t 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 senten cing, 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 , 9 57 F.2d 577, 581 (8th Cir. 1992) (cit ing United States v. Malbrough , 922 F.2d 458, 464 (8th Cir

. 1990)). Factors the district court should consi der include “the nature of defendant’s role in the offense, the recruitment of accomplices, [and] the deg ree of participation in planning or organizing the offense.” Unite d States v Escobar , 50 F.3d 1414, 1425 (8th Cir. 1995) (internal quotations omitted). The government need only show that defendant played a leadershi p role in an organization of five or more persons. It need not show that hi s leadership role encompassed any particular numbe r 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 wit h evidence that Rodgers was the driving force behind the murder attempt, tha t he ha d the most to gain from it, that he recruited the others to assis t him, and that he orga nized and directed their every move as they executed the plan which he hadconceived. 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 tr ial court, and no adequate factual record on the issue exists. Ineffective assistance of counse l claims are rarely entertained by this court on

## -9-

direct ap peal 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, 8 40 (8th Cir. 1994); United States v. Kindle , 925 F.2d 272, 276 (8th Cir. 19 91). We therefore decline to address these clai ms at this time. Rodgers remains free to raise them in a proceeding under 28 U.S.C. § 2255.

III.

For t he foregoing reasons, we affirm the judgment of the distric t court.

A true copy.

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