1 United States Court of Appeals

Fifth Circuit



## FILED

April 26, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-10427

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL SHANE PHIPPS;

DEAN RAYBURN GILLEY,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Texas

Before JOLLY, DUHÉ, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

In this criminal appeal, Michael Shane Phipps and Dean Rayburn Gilley challenge their

sentences imposed on rema nd, arguing that the district court impermissibly upwardly departed at

resentencing by ordering that their kidnaping and carjacking sentences run consecutively. For the

following reasons, we hold that the district court was free to reconsider an upward departure through

consecutive sentencing on remand and that, on the facts presented, such upward departure was both

warranted by the existence of aggravating factors and reasonable in degree. We therefore affirm the1 The superseding indictment also charged the defendants’ accomplice, Julian Medina, for his

role in the offenses. Medina does not appeal his sentence here.

2 district court’s judgment sentencing Phipps and Gilley each to a term of imprisonment of 789

months, five years of supervised release, restitution in the amount of $ 7, 785.69, and a $ 400 special

assessment.

FACTUAL AND PROCEDURAL BACKGROUND

On May 16, 2001, a grand jury charged Phipps and Gilley in a multiple-count supersedi ng

indictment. 1 Count 1 of the indictment charged the defendants with conspiracy to commit kidnaping,

in violation of 18 U.S.C. §§ 1201 (a) (1) and (c). Count 2 charged Phipps and Gilley with kidnaping

and aiding and abetting, in violation of 18 U.S.C. §§ 1201 (a)(1) and 2. Count 3 charged Phipps and

Gilley with the use of a firearm during and in relation to the kidnaping and aiding and abet t ing, in

violation of 18 U .S.C. §§ 924 (c) (1) (A) (ii) and 2. Count 4 charged the two defendants with

carjacking and aiding and abetting, in violation of 18 U.S.C. §§ 2119 and 2. Finally, Count 5 charged

them with the use of a firearm during and in relation to the car jacking and aiding and abetting, in

violation of 18 U.S.C. §§ 924 (c) (1) (A) (ii) and (2). On September 25, 2001, after a two day trial,

the jury found Phipps and Gilley guilty on all five counts.

The Presentencing Reports (“PSRs” or “reports”) grouped together three of the five counts

of conviction against each defendant for the purposes of calculating their respective base offense

levels pursuant to Chapt er 3, Part D (Multiple Counts) of the November 1, 2001, United States

Sentencing Guidelines Manual (“Sentencing Guideli nes,” o r “Guidelines”). Counts 3 and 5, the

defendants’ firearms counts, by statute required mandatory terms of imprisonment of 7 years for the

first offense (Count 3) and 25 years for the subsequent offense (Count 5), each to run consecutively3

with any other sentence imposed, and were therefore excluded from the Guidelines’ mult iple grouping

rules. S ee USSG §§ 2K2.4; 3D1.1; 18 U.S.C. § 924 (c) (1) (C) (i ). Because the defendants’

conspiracy, kidnaping, and carjacking offenses (Counts 1, 2, and 4) were closely related and involved

s ubstantially the same harm, the PSR recommended that these counts of conviction be grouped

together and assigned a single offense level, see USSG §§ 3D1.1, 3D1.2 (2001), corresponding to

the most serious count in the group. S ee USSG § 3D1.3 (a); United States v. Davis

, 226 F.3d 346,

359 (5th Ci

r. 2000). These multiple grouping rules led to the use of the criminal sexual abuse

guidelines, USSG § 2A1.3, as the defendants forc ed t he victim to perform sexual acts during the

course of her kidnaping. See USSG § 2A4.1 (b) (7) (A). Section 2A1.3 produced a base offense

level of 27. The PSR additionally recommended a two-level enhancement for obstruction of justice,

USSG § 3C1.1, a 4-level enhancement for forcing the victim to engage in a sexual act by threatening

or placing her in fear of death, serious bodily injury, or kidnaping, USSG § 2A3.1 (b) (1), and a 4-

level enhancement for the defendants’ abduction of the vict im, USSG § 2A3.1 (b) (5). Based on

each defendant’s total offense level score of 37 and Criminal His tory Category of V, the PSR

recommended a guideline range of 324 to 405 months’ imprisonment fo r counts 1, 2, and 4. The

PSR concluded that “[a]t this time, there are no known mitigating or aggravating factors that would

warrant a departure from the prescribed guideline range.”

At sentencing on January 11, 2002, the district court adopted the findings and conclusions

of the PSR, stating its intent “to impose the maximum sentence that [could] be imposed” to “ensure”

that the defendants would be “imprisoned for the remainder of their lives

. . . because they are such

a menace to society they should never be free again

. . . .” The district court therefore sentenced

each defendant at the top of the guidelines range to 789 months’ (65 years, 9 months’) imprisonment,2 We also found that the district court’s imposition of a 405-month term of imprisonment as to

the carjacking count was plain error because the statutory maximum for that count was 300

months, but that the defendants were not prejudiced because the carjacking sentence ran

concurrently with the valid, longer sentences for conspiracy and kidnaping. Nonetheless, we

vacated all sentences and remanded for resentencing on all counts of conviction.

4 to be followed by a five-year term of sup ervised release. Specifically, the district court sentenced

them to 405 months’ imprisonment on each of the conspiracy, kidnaping, and carjacking counts, with

these sentences to run concu rrent ly. The district court further imposed a mandatory 7-year (84

month) term of imprisonment on Count 3 (use of a firearm during and in relation to a cri m

e of

violence) and a mandatory 25-year (300 month) prison term on Count 5 (subsequent conviction for

the use of a firearm during and in relation to a crime of violence), to run consecutively to each other

and to the 405-month sentence. The court also sentenced the defendants to restitution in the amount

of $ 7,785.69 and a $ 400 special assessment.

Phipps and Gilley appealed their convictions and sentences. On January 15, 2003, in U nited

States v. Phipps

, 319 F.3d 177 (5th Cir. 2003) (“ Phipps I ”), this Court affirmed their convictions on

all counts except one § 924 (c) count, reasoning that the rule of lenity compelled the conclusion that

§ 924 (c) “does not .

. . authorize mult iple convictions for a single use of a single firearm based on

mult iple predicate offenses.” 2 P hipps I

, 319 F.3d at 183. We then vacated their sentences, directed

that the district court dismiss o ne o f t he § 924 (c) counts, and remanded for resentencing on all

remaining counts “as a result of the § 924 (c) error.” I d. at 189. In reaching our decision, we noted

that the district co urt had expressed its desire at the initial sentencing to impose the maximum

sentences permitted by l aw and had assumed the validity of both § 924 (c) convictions when it

decided to run the carjacking sentence concurrently with the conspiracy and kidnaping sentences.

Id.5

Accordingly, we stated:

With only one valid § 924 (c) (1) conviction, the [district] co urt may wish to reconsider

whether the carjacking sentence should run concurrently or consecutively with the conspiracy

and kidnaping sentences. We therefore remand with instruction that the district court may

reconsider this question under our limited remand rule.

Id. at 192 (citing United States v. Marmolejo , 139 F.3d 528, 530 (5th Cir.1998)).

On remand, the district court issued an order directing the preparation of revised PSRs to

reflect this court’s op inio n in Phipps I . Prior to resentencing, the Government filed a motion to

upwardly depart, arguing that an upward departure was warranted under USSG § 5K2.3, p.s., for

the inflict ion of extreme psychological injury, citing the vict im’s suffering a nd noti ng that she

continues to suffer “substantial impairment” of an “extended or continuous duration” as a result of

the defendants’ offense conduct. The Government also asserted that the defendants’ extreme conduct

warranted an upward departure pursuant to USSG § 5K2.8, p.s., applicable where the offense

conduct was “unusually heinous, cruel, brutal, or degrading to the victim.” The Second Addendum

to each defendant’s PSR similarly recommended an upward departure pursuant to the generalized

authority of § 5K2.0, p.s., and the spe c ific provisions for extreme psychological injuries, § 5K2.3,

p.s., and criminal purpose, § 5K2.9, p.s., on the basis that, given the criminal purpose and totality of

the crime, the “actual seriousness” of the carjacking offense was not fully taken into account in the

kidnaping guideline. The probation officer cited as aggravating factors warranting departure the

defendants’ use of a knife to commit the carjacking, their intent to kill the vict im, and the long-term

emotional trauma suffered by the victim as a result of their offenses.

At resentencing, the district court dismissed one of the § 924 (c) firearms counts, Count 5,

in accordance with this Court’s opinion in Phipps I

. The district court then adopted the findings and6

conclusions of the Second Addendum to the PSR, agreeing that an upward departure was warranted

pursuant t o §§ 5K2.0, 5K2.3, and 5K2.8 for the reasons stated in the Government’s motion and

concluding “that the upward departure should be in the form of imposition of a consecutive sentence

as to the kidnaping and the carjacking counts.” The district court thus sentenced each defendant to

405 months’ imprisonment on Counts 1 and 2, ordering that these sentences run consecutively to

each othe r

. As to Count 4, the district court sentenced each defendant to 300 months, to run

consecutively to all other sentences imposed by the court (including those imposed by counts 1 and

2). Finally, the court imposed a mandatory sentence of 84 months as to Count 3, to run consecutively

to all other sentences imposed, producing an aggregate total sentence of 789 months. Phipps and

Gilley now appeal their sentences.

DISCUSSION

Phipps and G illey co ntend that the district court erred on remand by imposing an upward

departure through consecutiv e sentencing based on its finding that the otherwise applicable 489-

month term of imprisonment did not adequately reflect the extreme nature of the defendants’ conduct

or the resultant profound psychological injury sustained by the vict im. As a threshold matter, Phipps

and Gilley assert that the district court was precluded from revisiting whether there existed a factual

and legal basis supporting such an upward departure by the law of the case doctrine, this Co urt ’s

mandate in Phipps I

, the waiver rule, and 18 U.S.C. § 3742 of the Prosecutorial Remedies and Tool s

Against the Exploitation o f Children Today Act of 2003 (“Protect Act”), Pub.L. No. 108-21, 117

Stat. 650 (2003). The defendants assert in the alternative that there was no basis for an upward

departure because the factors relied upon by the district court in deciding to impo se consecutive

sentences we re already adequately taken into account by the applicable guideline range. The3 Rather than “a limit on judicial power,” however, the law of the case doctrine “is an exercise

of judicial discretion which merely expresses the practice of the courts generally to refuse to

reopen what has been decided.” Lee II , 358 F.3d at 320 (citing Messinger v. Anderson , 225 U.S.

7 defendants further contend that the extent of t he upward departure, which increased each of their

sentences by 25 years, was unreasonable. Our thorough review of the record and this Circuit ’s

precedent, however, convinces us that the district court commit t ed no reversible error at

resentencing.

I. Sentencing issues open for reconsideration on remand

We first address the defendants’ assertion that the law of the case doctrine and its corollary,

the mandate rule, foreclosed the district court’s imposition of a discretionary upward departure in the

form of consecutive sentencing. “Whether the law of the case doctrine foreclosed the district court’s

exercise of discreti on on remand and the interpretation of the scope of this court’s remand order

present questions of law that this court reviews de novo .” U nited States v. Lee

, 358 F.3d 315, 320

(5th Cir. 2004) (“ Lee II ”) (citing Sobley v. Southern Natural Gas Co ., 302 F.3d 325, 332 (5th Cir.

2002) (internal quotation omitted)).

Under the law of the case doctrine, ordinarily “‘an issue of fact or law decided on appeal may

not be reexamined either by the district court on remand o r by the appellate court on subsequent

appeal.’” L ee II

, 358 F.3d at 320 (citing United States v. Matthews , 312 F.3d 652, 657 (5th Cir.

2002) ( Matthews II ), cert. denied sub nom

, M atthews v. United States

, 123 S.Ct. 1604 (2003)

(citation omitted)). As we have clarified recently, this “proscription covers issues we have decided

expressly and by necessary implication, reflecting the ‘sound policy t hat when an issue is once

litigated and decided, that should be the end of the matter.’” I d. (citing U nited States v. United

States Smelting Ref. & Mining Co.

, 339 U.S. 186, 198 (1950) (internal citation omitted)). 3 These436, 444 (1912); Matthews II , 312 F.3d at 657).

8 tenets equally apply to the mandate rule, which, as a derivative of la w o f t he case, “compels

compliance on remand with the dictates of a superior court and forecloses relitigation of issues

expressly or impliedly decided by the appellate court.” L ee II

, 358 F.3d at 321 (citing U nited States

v. Bell

, 988 F.2d 247, 251 (1st Cir.1993)). The mandate rule thus posits that “‘[a]bsent exceptional

circumstances,

. . . a lower cour t o n remand must implement both the letter and the spirit of the

appellate court’s mandate and may not disregard the explicit directives of that court.’” I d. (quoting

Matthews II , 312 F.3d at 657).

Applying these principles in the instant case, we conclude that neither the law of the case

doctrine nor the mandate rule prevented the district court from revisiting the upward departure issue

o n remand. Phipps and Gilley correctly point out that at the initial sentencing, the district co urt

adopted the findings and conclusions of the PSRs, including the PSRs’ determination that, at the time

of the reports, there existed no aggravating or mitigating factors that would warrant a departure from

the prescribed guidelines range. Contrary to the defendants’ assertions, however, these findings and

conclusions did not become law of the case because they were not before this Court in Phipps I and

hence were not “decided” expressly or implicit ly by us on appeal. S ee

, e.g., Lee II

, 358 F.3d at 320.

United States v. Mendez , 102 F.3d 126, 131 (5th Cir. 1996), relied upon by the defendants for the

proposition that a decision by the district court cannot be revisited during later stages of t he same

case, does not compel a contrary conclusion. In M endez

, we held that the law of the case doctrine

foreclosed the district court’s reexamination of an issue that “was squarely de c ided by us” in the

prior appeal. Id. Nowhere in Mendez did we address whether a district court may depart from its9

unappealed findings and conclusions in a subsequent proceeding.

Nor did the mandate rule foreclose the district court’s reconsideration on remand of

consecutive sentencing resulting in an upward departure. Phipps and Gilley concede that this Court’s

mandate in Phipps I “did state that the district court could reconsider the question of whether to run

the sent ence fo r t he carjacking conviction concurrent with the sentences for conspiracy and

kidnaping.” S ee 319 F.3d at 192. Nonetheless, the defendants argue that the imposition of an

upward departure through consecutive sentencing was not available to the district court on remand,

contending that this Court did not authorize the district court to revisit the findings and conclusions

it made at the init

ial sentencing based on the PSRs. In support of this contention, the defendants

attempt to distinguish t his Court ’s decision in L ee II

, 358 F.3d at 324, in which we held that the

mandate at issue in that case did not foreclose the district court’s upward departure on remand.

While we agree that Lee II is distinguishable from the instant case, we find that the reasons

why that is so compel our conclusion that our Phipps I mandate did not preclude the district court

fro m upwardly departing through consecutive sentencing. In P hipps I

, we expressly invited the

district court to reconsider the imposition of consecutive sentencing, fully awa re that the di stri ct

court’s dismissal, in accordance with our opinion, of one of the § 924 (c) counts would lower each

defendant’s sentence by 25 years. S ee 319 F.3d at 192. As we have repeatedly stated, under our

limit ed mandate rule, generally “only those discrete, particular issues identified by the appeals court

for remand are properly before the resentencing court.” L ee II

, 358 F.3d at 321 (quoting United

States v. Marmolejo

, 139 F.3d 528, 530 (5th Cir. 1998) (“ Marmolejo II ”) ). Because we specifically

identified the issue of consecutive sentencing for remand, it is beyond cavil that that issue was open

for the district court’s reconside r ation. This case thus does not raise the more complex issues10

presented in Lee II

, in which the mandate before us was silent about an upward departure in any form,

requiring our consideration of whether that sentencing issue “arose out of t he correction of the

sentence ordered by this Court.” We do not even engage in that analysis in this case. Our P hipps I

mandate authorized the district court to reconsider consecutive sentencing, and it did just that.

The defendants’ waiver argument is similarly infirm. Phipps and Gilley contend that because

the Government did not challenge the district court’s finding that there was no basis for an upward

departure either at the original sentencing or in the prior appeal, the Government could not then urge

an upward departure on remand. This contention, however, is foreclosed by our decision in L ee II

,

in which we clarified that our waiver doctrine does not preclude raising an unappealed issue for the

first time on remand when that issue could not have been raised previously and became extant as a

con sequence of our appel l ate m andate. L ee II

, 358 F.3d at 324. As in L ee II

, in this case the

Government had no grounds to appeal the district court’s init ial decision not to upwardly depart. S ee

id. (qu o ting 18 U.S.C. § 3742 (b)(1)-(4)). Therefore, contrary to the defendants’ assertions, we

cannot say that the Governme nt had “ample incentive” to raise but chose to forego this issue at a

prior stage of the proceedings. S ee id. (distinguishing United States v. Hass

, 199 F.3d 749, 753 (5th

Cir. 1999), cert denied sub nom

. Hass v. United States , 531 U.S. 812 (2000)).

Finally, Phipps and Gilley argue that §§ 3553 (c) a nd 3742 (g) (2) of the Protect Act

prohibited the district court from upwardly departing on remand through consecutive resentencing.

Effective April 30, 2003, § 3553 (c) requires that the district court include in its written judgment the

specific reasons warranting a departure “ [i]f the court departs from the applicable guideline range.”

In turn, § 3742(g) provides that, upon resentencing after appeal, the district court may only depart

from the guidelines based on a ground that was both approved by the appellate court and “specifically4 We note that the defendants’ initial sentencing took place prior to April 30, 2003, the

effective date of the Protect Act. We need not decide, however, whether §§ 3553 (c) and 3742

(g) (2) apply retroactively, because even assuming that they do, we conclude that the provisions

do not bar the district court from upwardly departing for the first time on remand where such

departure was approved by the appellate court.

11 and affirmat ively included in the written statement of reasons” issued in connection with the original

sentencing. 4 According to the defendants, because the district court did not make a finding at the

init ial sentencing hearing that there was a basis for departure, it could not upwardly depart at

resentencing on remand. We disagree.

While this Court has yet to address whether these provisions of the Protect Act bar the district

court fro m impo sing a “new” departure on remand, we hold that they do not where, as here, the

district court did not depart at the original sentencing. In this case, the need for an upward departure

to satisfy the objectives of the Sentencing Guidelines arose out of our appellate mandate, which, by

directing the dismissal of one of the § 924 (c) counts, removed the basis upon which the district court

had relied in determining the appropriate sentencing package. A departure on grounds made newlygermane as a result of our correcti on of the sentence can arise only upon resentencing after appeal,

and thus could not have been included in the original statement of reasons. Such departures do not

fit within the purpose of § 3742 (g), to “prevent sentencing courts, upon remand, from imposing

the same illegal departure on a different theory.” H.R. Conf. Rep. 108-66, at 59 (2003), reprinted

in 2003 U.S.C.C.A.N. 683, 694. In this case, the district court did not upwardly depart at the initial

sentencing, and we authorized the reconsideration of consecutive sentencing on remand. Our view

is consistent with that of every other circuit that has considered the extent to which § 3742 (g) limit s

the authority of the district court to upwardly depart on remand. S ee United States v. Martin

, 200412

WL 626732, *8 (1st Cir. 2004) (holding “that § 3742 (g) does not prohibit departures necessary to

satisfy the double jeopardy crediting requirement” because such a departure “can arise, by its very

nat ure, o nly upon resentencing after appeal, and thus could not have been listed in the original

statement of reasons”); U nited States v. Lauersen

, 348 F.3d 329, 344 n. 16 (2d Cir. 2003) (allowing

a new departure on remand, despite the restrictive language of § 3742(g), because “the basis for

. .

. [the] departure did not exist at [the] initial sentencing” but rather arose out of the remand order);

United States v. Col e , 357 F.3d 780, 786 (8th Ci r. 2004) (hol di ng that § 3742 (g) (2) di d not

“require the district court to impose a sentence limit ed only to the grounds identified in a prior section

3553(c) written statement” because the court was not required to make a written statement in that

case, where the original sentencing occurred prior to the effective date of the Protect Act).

In sum, we therefore agree with the Government that on remand, the district court was free

to reconsider consecutive sentencing entailing an upward departure because the issue was not waived

in the initial appeal, was expressly left open by this court’s mandate in Phipps I for reconsideration

at resentencing, and became germane only as a result of the correcti on of the sentence ordered by this

court in the initial appeal.

II. The propriety of upwardly departing based on aggravating factors

P hipps and Gilley next assert that the district court’s upward departure from the crim inal

sexual abuse gu idelines range was not warranted and, alternatively, that the extent of the upward

departure was unreasonable. We affirm.

A. Standard of review

Section 3742 (e) of the Protect Act governs the scope of our review of sentencing appeals.

As we have previously stated, § 3742 (e) has decreased the level of deference we previously accorded5 At sentencing, the district court emphasized its intent “to impose the maximum sentence that

[could] be imposed” to “ensure” that the defendants would “imprisoned for the remainder of their

lives . . . .” Stating that the defendants “are such a menace to society they should never be free

again,” the district court decided to “sentenc[e the defendants] at the top of the guideline range

because a sentence at that level will most effectively serve the Court's sentencing objectives of

punishment and incapacitation of the defendant for the protection of the public.”

13 district courts’ sentencing determinations to require de novo review, “but only when courts of appeals

are considering determinations under subsections (3)(A) or (3)(B) of

. . . § 3742(e).” Lee II

, 358

F.3d at 326 (quoting U nited States v. Bell

, 351 F.3d 672, 675 (5th Cir. 2003)). Subsection (3) (A),

pertaining to a district court’s failure to include written reasons for the departure, does not apply in

this case. See id. Nor does subsection (3) (B) apply where, as here, the district court’s departure

was “based on a factor that does advance the objectives set forth in section 3553(a)(2), namely, those

pertaining to “the need for the sentence imposed

. . . (A) to reflect the seriousness of the offense, to

prom ote respect for the law, and to provide just punishment for the offense; (B) to afford adequate

deterrence to criminal conduct; and (C) to protect the public from further crimes of the defendant.”

See id. (quoting Bell

, 351 F.3d at 676) (emphasis added); 18 U.S.C. § 3742 (e) (3) (B) (i). 5 B ecause

this case involves a departure determination made neither under (3) (A) nor (3) (B), we review the

district court’s decision to upwardly depart for abuse of discretion, and, as in pre-Protect Act cases,

we will affirm “if (1) the court gives acceptable reasons for departing, and (2) the extent of the

departure is reasonable.” United States v. Tampic o , 297 F.3d 396, 401 (5th Ci r. 2002) (ci tati on

omitted); see Lee II

, 358 F.3d at 326.

B. The upward departure

At resentencing, the district court imposed a 25-year upward departure from the defendants’

§ 2A1.3 criminal sexual abuse guideline range of 324 to 405 months (f or the grouped conspi racy

,14

kidnaping, and carjacking counts) through consecutive sentencing on three grounds: the presence in

this case of aggravating factors not adequately taken into account by the guidelines, § 5K.0, p.s., the

extreme psychological injury sustained by the vict im, § 5K2.3, p.s., and the defendants’ ext reme

conduct, § 5K2.8, p.s. Because Phipps and Gilley each also faced a mandatory minimum consecutive

sentence of 84 months for the use and carry of a firearm, the departure increased their sentences from

489 to 789 months.

The defendants argue that the district court erred by upwardly departing because each of the

factors relied upon by the district court was already taken into acc o unt by the applicable criminal

sexual abuse guideline range, the guideline enhancements, and the mandatory minimum consecutive

sentence of 84 months for the use and carry of a firearm. Phipps and Gilley further argue that the

ex t ent o f t he upward departure, which added 25 years to each defendant’s sentence, was

unreasonable. We disagree.

An upward departure is justified when the case is atypical, and do es no t fall into the

“heartland” of cases embodied by the sentencing guidelines. U nited States v. Winters

, 174 F.3d 478,

482 (5th Cir.1999). A district court thus may depart upwardly from the defendant’s range if it “finds

that there exists an aggravating

. . . circumstance of a kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in formulating the guidelines and that should result in

a sentence different from that described.” 18 U.S.C. § 3553 (b). Where an encouraged factor has

been taken into account by the applicable guidelines and enhancements or is inherent in the offense,

the sentencing court may depart “only if the factor is present to a degree substantially in excess of

that which is ordinarily involved in the offense.” K oon v. United States

, 518 U.S. 81, 88 (1996)

(quoting USSG § 5K2.0).15

After thoroughly reviewing the record in this case, we cannot say that the district court

abused it s discretion by upwardly departing. The district court found that the victim sustained

profound psychological harm as a result of her ordeal. Pursuant to § 5K2.3, p.s., a district court may

impose an upward departure for extreme psychological injury that is “much more serious than that

normally resulting from the commission of the offense.” USSG § 5K2.3. Ordinarily, this adjustment

is warranted “only when there is a substantial impairment of the intellectual, psychological, emotional,

or behavioral functioning of the victim,” which “is l ikely t o be of an extended or continuous

duration,” and which “manifests itself by physical or psychological symptoms or changes in behavior

patterns.” The district court found that to be the case here.

The PSRs, which were available both to the defense and the district court, included a victim

impact statement, a letter from the victim, and a transcript of an officer’s interview with the victim

condu ct ed o ne day prior to resentencing. Taken together with the victim’s trial testimony, these

statements fully set forth the devastating impact t he victim suffered, and continues to suffer, as a

result of the carjacking, kidnaping, repeated sexual assaults, use of a gun and a knife, and threats of

death by Phipps and Gilley. In her impact statement, the victim, a 61-year-old grandmother, describes

how she cannot cope, cannot trust anyone, and lives in continuous fear of being sexually assaulted.

She states that her ordeal left her unable to have a loving relationship and has destroyed her marriage.

In the span of some two years since the abduction and sexual assaults, she has moved from Texas to

three different states. Thoughts of the kidnaping and rape continue to haunt the victim every single

day. In her letter to the court, the victim similarly details the emotional trauma she suffered at the

hands of the defendants, including her incessant fear of being robbed or raped, her fear of going out

alone at night, and her inabilit y to sleep without first ensuring that all windows and doors are locked.16

The victim stated, in short, “I have lost everything. I feel like I’m the one in jail, not free to live my

life, a life they took from me on December 13th.’”

Phipps and Gilley concede that the victim has suffered psycholog ical injury, but argue that

a departure based on this factor was not appropriate because her psychological injury was not “much

more serious than that normally resulting” from the litany of offenses unde rlying their

se n tences—conspiracy, kidnaping, carjacking, sexual assault, and the use and carry of a firearm

during the co mmission of a crime of violence. The defendants assert that the victim’s emotional

suffering, while serious, was to be expected given the serious nature of the listed offenses and

therefore is not a factor that takes this case out of the “heartland” of cases invo lving the same offense

conduct. Phipps and Gilley further protest that an upward departure was not warranted because the

applicable criminal sexual abuse guidelines and enhancements already took into account all of their

offense conduct.

While we acknowledge that measuring the relative severity of psychological injury suffered

by vict ims of the aforementioned offenses presents a difficult question, we are persuaded in this case

that the unrebutted statements by the victim esta blish t hat she has suffered extraordinary

psychological injury within the meaning of § 5K2.3. S ee United States v. Anderson

, 5 F.3d 795, 805

(5th Cir. 1993) (holding in part that a vict im’s unrebutted letter may suffice as evidence of extreme

psychological injury warranting a departure). We emphasize that in determining whether an upward

departure on this ground is appropriate, “we measure the psychological harm to [the vict im] against

that suffered by vict ims of ‘ordinary’ sexual a buse crimes; our standard is not what psychological

injury would be considered the normal result of extreme sexual abuse and related conduct such as that

exhibited by [the particular] defendants.” Id. at 805 n. 17. Adhering to this principle, we find that17

the district court’s additional ground for departure--the extreme nature of the defendants’ conduct--

further supports our conclusion that the victim sustained extraordinary psychological damage. S ee

id. at 805.

Pursuant to § 5K2.8, p.s., a district court may depart upward from the guidelines range “[i]f

the defendant’s conduct was unusually heinous, cruel, brutal, or degrading to the vict im.

. . . .” The

Po licy Statement provides as examples of “extreme conduct” the “torture of a victim, gratuitous

inflict ion of injury, or prolonging of pain or humiliation.’” The district court found, and we agree,

that the conduct by Phipps and Gilley was “unusually heinous” and “degrading to the victim,” and

involved circumstances not considered by the guidelines. First, we note that despite the seriousness

of any criminal sexual abuse offens e, the guidelines specifically contemplate that “an upward

departure may be warranted” where “the victim was sexually abused by more than one participant.”

USSG § 2A3.1, comment. (n.5). Both Phipps and Gilley sexually abused the victim in this case.

Over the course o f t he 24-hour abduction, from Texas to New Mexico, the victim was repeatedly

subjected to sexual abuse and the threat of sexual abuse. Gilley raped the victim and forced her to

perform oral sex in the presence of Phipps. Phipps, in turn, attempted to force her to perform oral

sex and repeatedly threatened to sexually abuse the victim. Upon arrival in Albuquerque, the

defendants held the victim captive in a motel room

, where they forced her to disrobe and shower in

front of them to ensu re that all traces of forensic evidence from Gilley’s sexual assault were

destroyed. Throughout the ordeal, Gilley continuously threatened the victim with a knife to keep

her under control, and both defendants led her to believe that they still had the gun that they had used

at the outset of the kidnaping but had in fact later handed of f t o an accomplice. These events

culminated in a dark street in Albuquerque, where the defendants, with the victim in tow, parked the6 Gilley got out of the car, threw a Sears bag in the dumpster and said to Phipps, “You got to

do what you got to do, man. If we are gonna go to prison for a federal offense--- kidnaping,

rape, robbery --- one more for murder won’t matter.” Phipps put his hand in his pocket.

Believing he was about to shoot her, the victim ran away screaming “They’ve got a gun. They’re

going to kill me.” She ran toward a man, who let her in his house.

18 car next to a dumpster, stepped out, and argued over whether murdering the victim would increase

the severity of the sentences they would face if apprehended for the “kidnaping, rape, [and] robbery”

they already had committed. 6 It was only happenstance that the victim managed to escape.

Under the circumstances presented, we find that these additional factors exceed those inherent

in the typical criminal sexual abuse case and amply justify the district court’s upward departure based

on the defendants’ extreme c o nduct under § 5K2.8. We also find, as indicated above, that the

heinousness of the defendants’ offense conduct substantiates the unrebutted testimony of the victim

as to her extreme psychological injury. S ee Anderson

, 5 F.3d at 805. Because the defendants’ sexual

abuse conduct was extreme, we cannot say that the district court abused its discretion in determining

that the severity of the resultant psychological injury likewise exceeded that “suffered by victims of

‘ordinary’ sexual abuse crimes.” Id. ; USSG § 5K2.3.

Finally, in light of the foregoing, we conclude that the extent of the district court’s upward

departure, which increased the defendants’ sentences by 25 years, was not unreasonable. S ee, e.g.

,

United States v. Lewis

, 115 F.3d 1531,1538 (11th Cir. 1997) (upholdin g departure to l i fe

imprisonment where defendant beat, abducted, raped, and sodomized the victim); United States v.

Johnson, 56 F.3d 947, 958 (8t h Cir. 1995) (upholding a departure from 65 years based on four

firearms counts to a 1,253-month prison term where the defendant carjacked, abducted, beat, raped,

and sodomized the victim).19 CONCLUSION

Because we find that the district court did not exceed the scope of our Phipps I mandate by

reconsidering the imposition of an upward departure, and that such departure was both warranted

by the existence of aggravating factors and reasonable in degree, we AFFIRM Phipps’ and Gilley’s

sentences.

AFFIRMED.