* The Honorable Karl S. Forester , Chief United St ates District

Judge for the Eastern Dist

rict of Kentucky, sitting by designati on.



## 1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0051P (6th C ir.) File Name: 04a00 51p.06



# UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

U NITED 

## S TAT ES OF 

## A MERICA 

## ,

Plaintiff-Appellee,

v.

R ICHA RD 

## C OLE 

## , III (02-5839); J ONATHAN 

## J OHNSON 

## (02-5840), Defenda nts-Appe llants. X - - - -

> , - - - - N Nos. 02-5839/5840

Appeal from the United States District Court for the Western District of Tennessee at Jackson. No. 01-10023—James D. Todd, Chief District Judge.

Argued: October 30, 2003
Decided and Filed: February 19, 2004

Befor e: MOORE a

nd ROGERS, C ircuit Judg es; FORESTER, Chief District Judge. * 

## 2 United Sta tes v. Cole , et al. Nos. 02-5839/5840

1 The six-count indictment against the defendants consis ted of the following: Count1, con spir ing to ki dnap and s exual ly assault a Postmaste r in v iol ati on of 18 U .S.C. § 1201(c); Count 2, kidnapping a Postmaste r in vi ola ti on of 18 U.S. C. § 1201( a)(5); Count 3, car-jacki ng

a Postmas ter ’s vehi cle in v iol ati on of 18 U.S.C. § 21 19; C ount4, assaulti ng a Postmast er wit h a we apo n inviol ati on of 18 U.S.C. § 111; Count 5, hindering and delayi ng a Postmast er’s communicati on with law enf orcement by threa ts of forc e and violen ce in vio lation o f 1 8 U .S.C

. § 1512(b )(3); Count 6, brandishi ng a fi rearm duri ng a cri me of viol ence in viol ati on of 18 U.S .C. § 924(c). Pursu ant to pl ea neg oti ati ons, Johns on and Cole pl ed gui lty t o Counts 2, 4, and 6 of the ind ictmen t. Cou nts 1, 3, and 5 wer e dism issed. Johnson rece ived a t otal s entence of 489 months;



## _________________ COUNSEL

ARGUED: Jeff Muell er, LAW OFFICE OF JEFF MUELLER, Jackson, T en nessee, Bruce I. Gr iffey, OFFICE OF BRUCE I

RWIN G RIFF EY, Me m phis, Tennessee, for Appel la nts. James W. Powell, ASSISTANT UNITED STAT ES ATTORNEY, Jackson, Tennessee, for Appellee. ON BRIE F: Jeff M

uelle r, L AW O FFIC E OF JEFF MUELLER, Jackson, Tennessee, Bruce I . Griffey
, OF FICE OF BRU CE IRW IN GRIFFEY, Memphis, Tenne ssee, for Appe ll ants. James W. Powell, ASSISTANT UNITED STATES ATTORNEY, Jackson, Tennessee, for Appellee.

_________________ OPINION

_________________ FORESTER, District Judge. The Defe n dants, Richard Cole, III (“Cole”)and Jonathan Johnson (“Johnson”) appeal the sentences imposed on them by the U.S. District Court for the Western D istr ict o f Tennessee pursuant to the 2001 United States Sentenci

ng Guide lines (“U .S.S.G.”) , result in g from their convictions for kidnap p ing, assault, and the use of a firearm during a crime of violenc e. 1

## Nos. 02-5839/5840 United Sta tes v. Cole , et al. 3

Cole wa s sentenced to a total of 319 months. 

## On appea l, Cole presents the followingarguments: (1) the districtcourt er

red whe n it utilizedU.S.S.G. § 2A3.1, instead of U.S.S.G. § 2A4.1 for the kidnapping offen se; (2) the districtcourt should not have granted a four-le vel sentence enhancement

for abduction on a conviction for a kidnapping offense pursuant to U.S .S.G. § 2A3.1(b)(5); and (3) the districtcourt wrongly

refused to grant a downward

departure for diminished capacity and a berrant behavi or pursuant to U.S.S.G. §§ 5K2.13 and 5K2.20. Johnson contends that the districtcourt erred

when it inc

reased his offense level by

two points for obstr

uction of justi ce unde r U. S. S. G. § 3C 1.1 . In addition, both Cole and Johnson allege that the district court erred when it granted

a th ree-level upward departure for extreme conduct in accordance with U.S.S.G. § 5K2.8. For the following reasons, we AFFI RM.

I. JURISDIC TION

The district c ourt had j urisdicti on pursua nt to 18 U.S. C. § 3231. This Court has jurisdiction purs uant to 28 U.S.C. § 1291.

II. FACTUAL BACKGROUND AND PR OCEDURAL HISTORY

At or around noon on May

1, 2001, the defendants entered the Bells, Tennessee U.S. Post Office. Cole and Johnson, who was armed with an unloaded .38 cal iber pistol tucked into the front waist-band of his pants, forced the victim (a United States Postmaster) out of the building and into her vehicle, in whichCole and Johnson , along with their

victim, fled the scene. For four

hours, the

defenda nts held the victim captive, driving the back roads surrounding Jackson, Tennessee, and taking turns sexually assa ulting her. She was released around 4 p.m., whe

reupon she repor

ted th e crim e. The defendants were arre sted a short time later. 4 United Sta tes v. Cole , et al. Nos. 02-5839/5840

2 Although lat e r amen ded, U. S.S. G. § 2A4.1. (2001) pr ovided: Kid nap ping, A bdu ction, U nlawful R estraint: (a) Base Off

ense Level : 24 (b) Specifi c Offens e Characterist ics (1) I f a ransom demand or a demand upon gove rnment wa s made, increase by 6 levels. (2) (A) If the victim sus tained perm anen t or life -threaten ing bo dily injury, inc reas e by 4 leve ls; (B) if the victim sustained seriou s bod ily injury, increase by 2 levels ; or (C) if t he degree of injury is bet ween that specified in subdivisions (A ) and (B ), increase by 3 levels. (3) If a dangero us weapo n was used, increa se by 2 levels. (4 )( A) If the vic ti m was n ot re leas ed bef ore thir tydays had el apsed, increase by 2 levels. (B) If t he victim was not rel eased befor e sev en day s had e laps ed, increa se by 1 level. (C) If the vict im was r elease d befor e twe nty -f our hours h ad el apsed, dec rease by 1 lev el. (5) If the victim was sex ually exp loited: in creas e by 3 levels

. (6) If the victi m i s a minor and, in exchange f

or money or other consideration, was placed in the care or c ust ody of another pe rson who had no legal right to such care or c ustody of the victim, increase by 3 levels. (7) If the vi ctim was kidnapped, abducted, or unlawfull y restra i ned during the commis sion of, or i n conne cti on wi th, another of fen se or escape therefrom; or if another offense was committ ed during the kidna ppin g, abd uction , or unla wful restra int, increa se to-- 

## After her release, thevictim ga ve two sta

tements to

Postal Inspector Katrina Chalmers . T he statements provided the detailsof the defendants’ activities as later set forth in the presentenceinvestig ation re port. The victim stated that, prior t o he r release, Johnson found an insurance card in the glove box of her ve hicle and told her that he had her address and would “send someone to ki ll her” if she told anyone a bout the incident

. Johnson also

repeat edly stated tha

t he oug ht to kill her because she had seen his and Cole’s fa ces.

The defendants pled

guilty to kidnapping, assault, and the

use of a firearm during

a crime of

violence, and a sentencing hearing was held for each defendant. With respect to Cole
, the district court began with the kidnapping charge and proceeded

to U.S.S.G. § 2A4.1. 2 

## Howev er, th at gu idel ine,

## Nos. 02-5839/5840 United Sta tes v. Cole , et al. 5

(A) the offense level from the Chapter Two offense guideline
app licable to that other offense if such offen se gui deline incl udes an adjustment for kid nap ping, a bdu ction, o r unl awfu l re str aint , or other wis e ta kes s uch con duct int o accoun t; or (B) 4 plus the offense level fro m the o ffense gu ideline app licable to that other offense, but in no event greater t han level 43, in any

other
case, if the resulting off ense le vel i s great er than that determi ned above.

3 U.S .S.G .§ 2A3.1. Criminal Sexu al Ab use; A ttemp t to Co mm it Criminal Sexual Abuse : (a) Base Off

ense Level : 27 (b) Specifi c Offens e Characterist ics (1) If t he off ense was committ ed by the means set for th in 18 U.S. C. § 22 41(a) o r (b), increase by 4 levels. (2) (A) If the victim had no t attained the age of twelve years, increa se by 4 lev els ; or (B) if

the vic ti m had at

tai ned the age of

twelve years but had no t attained the age of sixteen years, increase by 2 levels. (3) If the victim was (A ) in the custody, care, or su pervi sory

cont rol of th e de fe ndant ; o r ( B) a person hel d in the cust ody of a corr ecti onal facility, increase by 2 leve ls. (4) (A) I f t

he vi cti m sus tai ned p ermanen t or life-threa tening b odily injury, increa se by 4 level s; ( B) if t he victim sus tain ed seriou s bod ily injury, increase by 2 levels; or (C ) if the degr ee of i njuryis bet ween that specified in subdivisions (A ) and (B ), increase by 3 levels. (5) If the victim was abduc ted, increase by 4 levels. (6) If, to per suad e, indu ce, entic e, or c oerc e a min or to e ngag e in prohibit ed sexua l cond uct, or if, to facilitate tran spo rtation o r travel, by a minor o r a par ticipan t, to enga ge in p rohib ited sex ual co nduc t, the offen se inv olved (A) t he knowing misrepr es en tation o f a
pa rt ic ip an t's ident ity ; or (B) t he use of

a c omputer o r an Inte rnetaccess de vice, increase by 2 levels. 

## under (b)(7)(A), directed the court to re fer to U.S.S.G. § 2A3.1 3 

## and impose

sentenc e under t

hat sect ion if it resulted ina greater

offense level. As a result, Cole received a highe r baseoffense

level. Additiona

lly, pursuant

to specif ic offe nse charac teristic (b)(5) of U.S.S.G. § 2A3.1, the district court granted a four le vel sente nce enhanceme

nt becau se the victim hadb een abducted. The district court also denied Cole’ s request for a downward

departure for diminished capacity and 6 United Sta tes v. Cole , et al. Nos. 02-5839/5840

4 U.S .S.G . § 5K 2.13 . Dim inished Cap acity (P olicy Sta teme nt) A sente nce below th e applicabl e guidel ine range may be war ranted if the defend ant commi tt ed the of fe nse whi le suf

fe ri ng f rom a significan tly redu ced menta l capa city. How ever, the court may not depart belo w the ap plicab le guid eline ra nge if (1 ) the significa ntly reduced mental capacity was caused by the volu ntar y us e of drugs or otherin to xi ca nt s; ( 2) th e fac ts a nd ci rc um sta nc es of th e d efen da nt 's offens e indic ate a need to protect the pu blic becau se the offense invol ved actual viol ence or a serious threat of violence; or (3) t

he de fe nd an t's criminal hi story indi cates a need to incarcerate t he defendant to protect the public if a departure is warranted, the extent of the depart

ure shoul d refl ect t

he extent to wh ich t

he reduced mental capacit y contr ibuted t o the commis sion of the of fense

.

5 U.S .S.G . § 5K 2.20 . Abe rrant B ehav ior (P olicy Sta teme nt) A sentenc e belo w the appli cable gui deline range maybe warrant ed in an extr aordinary

case i f th e defendant 's crimi nal conduct consti tut ed aberrant

behavior. Howev er, the court may not depart below the gui deli ne ra nge on thi s bas is if (1) the off ense i nvolved serious bod ily injury or death; (2) the defendant discharged a firearm

or othe rwi se us ed a f

ire arm or a

danger ous we apon; (3) the instant offense of convi ction is a s erious drug tr aff icki ng off

ense; (4) t he defendant has more t

han one cri minal h ist ory point , as det ermined under Chapter

Four (Criminal History and Criminal Livelihood); or (5) the defendant has a p rior federal, or state, felony convict ion, regardless of whet

her the co nviction is countable under Chapter Four.

6 U.S .S.G

. § 5K 2.8. E xtrem e Co nduc t (Po licy Statem ent) If the defendant' s conduct was unus u all y heinous, crue l, brut al, or degrading to th e vict im, t he court may inc rease t

he s en tence above the guideline range t o reflect t he nat ure of the conduct . Exampl es of
ext reme con duct incl

ude t orture of

a vi cti m, gr atuitous inf li cti on of injury, or prolonging of pain or humiliation.

7 The sentence breaks down in the fol lowi ng mann er: 235 month s on Count 2, kidnapping; 120 months on Count 4, assault , to run concurrent wit h Count 2; an d 84 month s on Coun t 6, the fi rearm char ge, to ru n 

## aberrant beh avi or pursuant to U.S.S.G. §§ 5K2.13 4 

## and 5K2.20 5 

## bec ause C ole’s acts f ell ou tsid e the l anguage permitting suchdeparture. Finally , the court departed upward three levels for extreme conduct based onU.S.S.G. § 5K2.8. 6 

## This resu lted in a total sente

nce of 31 9 months. 7

## Nos. 02-5839/5840 United Sta tes v. Cole , et al. 7

con secutive with Co unts 2 a nd 4

.

8 U.S. S. G. § 3C1.1. Obstr ucting or I mpeding the Admini str ati on of Justi ce If (A) the defen dan t willfully obstruct ed or impeded, or at tempted to obstruct or impede, the administrat ion of justi ce during the course of the inv est igation, prose cuti on, or sent enci ng of

the ins tant

off ense of conviction, an d ( B) the obstructi ve conduct related to (i) the defen dant' s of

fen se of conv iction an d any r eleva nt con duc t; or (ii) a closely related offense, increase the offense level by 2 levels.

9 The sent ence br eaks down i n th e fol lowi ng mann er: 405 month s on Count 2, ki dnapp ing; 120 months on Count 4, assault, to run concurrent with Count 2; an d 84 months on Count 6, the f irea rm charge, to run

con secutive with Co unts 2 a nd 4

. 

## Withregard to Johnson, the district cour t incr eased hi s offense level two points for

obstruction of justice pursuant to U.S.S.G. § 3C1.1 8 

## because of the threats he made to the victim prior to r

ele asing her. Additionally, as it had done with regard to Cole, the court departed upward three levels for extreme conduct b ase d on U.S.S.G. § 5K2.8. Johnson was ultimately

sentenc ed to a te

rm of 489 m

onths. 9



## III. DEFENDA

NT COLE

A. Appropriateness of Sentencing Guideline Used

Defendant

Cole was indicted

and pled guilty to a violation of 1 8 U.S. C. § 1201(a)(5), which proscribes the offense of kidn appin g. The U .S.S. G. Ap pend ix A, Statutory

In dex, specif ies the offense guideline section in Chapter Two applica ble to the statute of conviction. The proper guideline specified by t he index for a viola

tion of 18 U .S.C. § 1201 is set out at § 2 A4.1, and specifies a base offense level of 24. This guid eline pr ovides in p art that:

if the victim

was kidna

pped, ab ducted, or unlawf ully restrained during t he commiss ion of, or

inc onnection with, another offense . . . or if ano ther offe nse was 8 United Sta tes v. Cole , et al. Nos. 02-5839/5840

c ommittedduring the kidnapping, abduction
, or unlawfu l restrai nt, increase to- (A) the offense le vel from the Cha pter Two offense guideline applicable to that other offense if such of fense guideline includes an adjustment for kidn appin g, abduction, or unlawful restraint . . . if the

res ulting offense

level is g

reater than that determi ne d above.

U.S.S.G. § 2A4.1(b )(7). The guide line also p rovid es , at U.S.S.G. § 2A4.1(b)(5)(A), for an increase of three po ints if the victim was sexually exploited.

This Court utilizes a de novo review w ith respe ct to a sentencingcourt’s

interpre tati on of the United States SentencingGuideline s, and a clear ly e rroneou s standar

d with respect to factual findings. See United States v. Kimble, 305 F.3d 480, 485 ( 6th Cir. 200 2); Unit e d States v. Denton , 246 F.3d 784, 789 (6th Cir. 2001); United Sta tes v. Scott , 74 F.3d 107, 111 (6th Cir. 1996).

The defendants’ victim, a fter be ing kidna pped, wa s forcib ly raped at gunpoint. The offense guideline for criminal sexual assault is U.S.S.G. § 2A3.1, which speci fies a base off ense leve l of 27 and in clude s an ad just ment f

or kid nappi ng,
abduction, or unlawful restraint as a specific offe ns e characteristic. The district court, applying the spec ific offense c harac teristics of U.S.S.G. § 2A3.1(b)(1) and 2A3.1(b)(5), determined the resulting offense level to be 35. The court conclud ed t hat because the offense level under U.S.S.G. § 2A3.1 was g reater than the base offense level under § 2A4.1, § 2A4.1(b)(7) required the use of § 2A3.1 and prohibited

the appli cation of

§ 2A4.1. Co le arg

ues that this conclusion was erroneous.

While this Court has not yet addressed this issue, each

and every one of the

courts of

appeals th at has done so has determined

the use of U.S.S.G. § 2A3.1 to enhance a sentence for kidnapping to be appropriate. We are inclined to ag ree with the circuits that have heretofore so held, and thus the

## Nos. 02-5839/5840 United Sta tes v. Cole , et al. 9

10 See Un it ed S tates v. M icha ud, 268 F.3d 728, 738 -39 (9th Cir. 2001)(upholding acti ons of di stri ct court i dentic al t o those her e at i ssue: “Section 2A4 .1(b)(7) st a tes un ambiguousl y that th e offe nse le vel calc ulation from th e othe r offense com mitt ed during a kidn app ing is to
app ly ‘if the resu lting offens e level is greater than t hat determined’ usi ng § 2A4 .1") ; Un ited S tates v. R ice, No. 00-45 94, 2001 W L 1087 68 (4th Cir. Feb. 8, 200 1); Un ited S tates v. C ree, 166 F.3d 1270 (8th Cir. 1999)(upho lding dist

rict cour t’s app lication o f § 2A 3.1 base off ense l evel forcrimi nal se xual abus e, rat her th an the l ower b ase off ense lev el of 2A 4.1 for

kidn apping , ev en though sexu al a ssau lt was c ommit ted ou tsi de of federal ter

ritorial jurisdict ion); United States v. Lew is, 115 F.3d 1531 (11 th Cir. 19 97) ; United State s v. Po llard, 986 F.2d 44, 46 (3rd Ci r. 1993) (upholding convi cti on and ruling of di stri ct court that appli ed sentencing guideline for cr iminal

sexual abuse to a

defendant

convict ed of conspi racy to kidn ap eventhou gh he was n ot charged wi th an assault of fense, st ating: “There is no statuto ry or co nstitu ti on al r equir ement tha t a de fen dant be convict ed of

cond uct be fore the cond uct ma y be co nside red in sentencing.”) ; Un it ed State s v. An derso n, 5 F.3d 795 (5th Cir. 1993)(though th is cou rt ha d n otpr ev io us ly app li ed U .S .S .G. § 2A4.1(b)( 7) in the cri minal sexual abuse context , it had approved the section-swi tching provisi on of th e gui de lin e and cit ed as aut horit y cases of the T hird an d T enth C ircuits listed he rein); United States v. Galloway, 963 F.2d 1388, 1391 (10th Cir. 1992)(“The Sentenc ing Co mm ission’s intent to ap ply t h e higher of the t wo guidelines is unmistakable. . . . The factthat a defendant

may have commit

ted a sec ond additi onal off en s e cannot reli eve him f

rom res po nsibili ty for t he more serious of the offen ses. If t

hat were the case, a def endant woul d receive a ben efi t f rom the fact t hat he chose to commit an additional off ense”). 

## districtcourt wa s corre ct in pr oceeding from U.S.S.G. § 2A4.1(b)(7)(A) to U.S.S.G. § 2A3.1. 10 

## As the Courtin U.S. v. Galloway , 963 F.2d 1388 (10th Cir.1992), reasoned:

We find that § 2A4.1(b)(5) is not ambiguous. When a victim is kidnapped in order to facilitate the commission of anothe r offen se, § 2A4. 1(b)(5)

directs the sentencing court to apply the guid eline w ith the higher offense as bet ween the kidnapping guideline and the guide line f o r the other of

fens e. The background notes to § 2A4.1 explain: 10 United Sta tes v. Cole , et al. Nos. 02-5839/5840

Anenhanc ementis provide d when the offense is committed

for ran som or tofacilita

te the commission of another offense. Should the a

pplication of thisguideline result in a penalty less than the r esult achieved by applying the guideline for the underly ing offense, apply th e guideline for the underly ing offense ( e.g. § 2A3 .1
, Criminal Sexual Abuse).

The SentencingCommission’s intent to apply thehigher of the two guidelines is unmistakable.

Id. at 1391.

It could be argued that U.S.S.G. §§ 2A4.1 and 2A3.1 overlap to such an extent that a feasible alternative meansof sentencingwould be to use § 2A4.1 and then a dd three levels f orsexual explo itation und er spec ific off

ense cha racter istic (b)(5) of that guideline. However, the ge neral application principles of the U.S.S.G. in the sectiontitled , “Application Instructions,”requ

ire t hat, “[w ]h ere two or more guideline provision s appear equally applicable, but the guidelines authorize the application of only one suc hprovision, use the provision that resu lts inthe greater offense le vel.” U.S.S.G. § 1B1.1, A

pplication Note5. This sta tement dis

pels with any need to determine which allegedly conflicting section controls

. Clearly, the provision resulting in the greater offense level is U.S.S.G. § 2A3 .1. As a result, the correct guideline was used.

B. The Four-L evel S enten ce Enh anceme nt for Abduction under U.S.S.G. § 2A3.1(b)(5)

The district c ourt sent enced Co le for the

crim e o f kidn appin g. However , in so doing, it correctly employed U.S.S.G. § 2A3.1 as the of fense g uideline , thereby ul

timately sentencinghim for crimi nal sexual assault and abduction. Cole asserts that the district c ourt’s us e of the s pecific offense charac teristic (b)(5) of U. S.S.G . § 2A3.1, which calls for an increase of four

fromthe base

offense level whe

n the vict im

## Nos. 02-5839/5840 United Sta tes v. Cole , et al. 11

11 Th is Court is a lso guided by the Fift h Circuit decisi on in United States v. An derso n, 5 F.3d 795 (5th Cir. 1993), in f indin g that

the di stri ct court herein properly applied the complained-of f our level enhancement unde r U.S .S.G . § 2A3.1(b) (5) . Ander son present ed facts similar to those in the i nstan t matt er, whe re the defendant lik ewise argued th at the dist rict
court engaged in “impermissible double counting” when, after beginni ng with U.S.S.G. § 2A4 .1, and tur nin g to U. S.S. G. § 2A3.1, the distr ict court 

## was abducte d, is an imp ermissibl e double c ounting b ecause
anessential element of kidnapping is abduction. Cole argue s that the four levelenhancement “would enhance for the very actionwhichdefines the crime itself.” Appellant’s Br. at 10.

As noted above, this Court reviews a district court’s applicationof the sentencing guideline de novo, while factual findi ngs are upheld unles s they are clearly e rroneous. See United States v. Weekly

, 130 F.3d 747, 750 (6th Cir. 1997).

This Court has held, a lb eit on different facts, that “impermissible ‘double counting’ occurswhen precisely the

sameaspect of a defendant’s conduct factors into his sentence inseparate ways.” United States v. Farrow, 198 F.3d 179, 193 (6th C ir.19 99) (ci ting Uni t ed States v. Perk ins, 89 F.3d 303, 310 (6th Cir.1996)). A pply ing this e stablishe d tenet to the instant case, it is clea r tha t no imperm

issible dou

ble countinghas oc curred . Col e was co nvict ed of k idnap ping. Ap pr op ri at el y, the district court proceeded to U .S.S.G. § 2A4.1 as t

he applic able sen

tencing guideli ne with re spect to kidn appin g. That section required the co urt to pro ceed to U.S.S.G. § 2A 3.1. Th e district court sentenced Cole for criminal sexual ass ault and i ncreas ed the ba se offense

level by four pursuant to U.S.S.G. § 2A3.1(b)(1) because theoffense involved the use of

force, and ag ain

by four pursuant

to U.S.S.G. § 2A3.1(b)(5) because he had abducte d his victim

. It cannot be said that the district court took into account Cole’s act of kidnapping

when it turned to U.S.S.G. § 2A3.1. Cl ea rl y, kidnapping an dsexual assault are two independent

a nd separa te crime s, and sho

uld be con sidered

separa te ly a t sentencing

. 11 

## 12 United Sta tes v. Cole , et al. Nos. 02-5839/5840

enhanced the s exual abus e base off en se lev el for the abduction of t he vi ctim. Id. at 799. The defendant argued that “the court alr eady took the kidnapping offense into cons idera tion wh en it be gan its calcula tions with secti on 2A4.1, the kidnappin g guidel ine. ” Id. The Fift h Circui t summari ly r ejected t his ar gument. It s tres sed that the Sentenci ng Guideli nes “expr essly pro vide th at an en tire guid eline sha ll be applied upon r eferen ce from anot her gui deline

. ” Id. The court ci ted U.S .S .G. § 1B1.5(a), whi ch states t hat “[a] c ross re ferenc e ( an inst ruct ion
to apply another guideli ne) refers to the entire of fense guidel ine ( i.e., the base offense leve l , specifi c offense characteri stics, cross references, and specialinstructio ns.)” U .S.S.G . § 1B 1.5( a). As a result of thi s lang uage, the court concl uded that the distr ict courthad not erre d in i ts appli cati on of the Sentencing Guidelines and hence, there w as no impe rmissib le dou ble co unting. Anderson , 5 F. 3d at 799. 

## C. Diminished Capacity and Aberrant Behavior

Alth ough “ a district c ourt’s dis cretion ary decision not to depart downward

fromthe Guidelines range ordinarily is not appealable,”an appeal is allowed “when the d istrict court believed that it lacked any a

uthority to depart downwa rd as a matter o f law.” U

nited States v. Burke, 237 F.3d 741, 743 (6th Cir. 2001).

1. Diminished Capacity

At Cole’s sentencing hearing , t he district court concluded that, based on expert trial testimony, Cole suffer ed f r om diminishedcapacity . However, the district court denied a downward

departure f

rom the applicable sentencing guide line, finding that the guideline limitations prohibited such a departure.

U.S.S.G. § 5K2.13, titled “Diminished Capacity,” states that the distri ct court s have the discreti on to gra

nt a downward

departure from the applicable sentencing guidelines “if the defendant committed the o ffen se while suffering from a significantly

re duce d mental capacity .” U.S.S.G. § 5K2.13. Howeve r, this poli cy

statemen

t is limited, inthat

the district court has no such discretion if “the

## Nos. 02-5839/5840 United Sta tes v. Cole , et al. 13

12 Th is Court has he ld that th e defi nit ion of “ crime of viole nce” within U.S .S.G . § 4B 1.2 “can be re ad in c oncert wit h § 5K2.13, ” th ereby providing guida nce a s to wha t d o es and does not constitute a vi olent offense

. Un ited S tates v. C lem ents, 144 F.3d 981, 982 (6th Cir. 1998). 

## factsand circumstances of the defendant’s offense indicate a need to protect the public

because the offense involved actual violence or a

serious threat of violence.” U.S.S.G. § 5K2.13.

Acrime of violence includes any offe nse that “(1) has as an element the use, attempted use, or threatened use of phy sical force against the person of another, or (2 ) . . . otherwise invol ves conduct that presents a serious potential risk o f physical injury to another.” U.S.S.G. § 4B1.2(a). 12 

## Cole was convicted of kidnap

ping und er 18 U.S. C. § 1201, a ssault under 18 U.S.C. § 1 11, and us e of a fire arm durin g a cri me of violence pursuant to 18 U.S.C. § 924(c).

Alth ough the crime of

kidnapping lacks the element of use

or threat o f useof physical

force against another, it falls under that language of U.S.S.G. § 4B1.2(a)(2), as it involves “conduct that presents a serious potent ial risk of physical injury to ano ther.” U.S.S.G. § 4 B1.2. The use of f orce is integ r al to a convi ction for assault, as 18 U.S.C . § 111 is

v iolated when one “forcibly

assaults . . . any person .

. . ” 18 U.S.C. § 111. Vis a vis the firearm charge, Cole pled guilty to a violation of 18 U.S.C. § 924(c). That section states that “[a]ny person who, during and in relation to any crime of violence

. . . uses or c arries a firear m” will, in add ition to beingpunished for the underly ing crime, be punished for incorporatinga fir earm into the commission of the crime. 18 U.S.C. § 924(c)(emphasis added). Becau se 18 U.S.C. § 924(c) is only vi olat ed if a g un is used i

n connection with

a “ crime of violence, ” it is inherent that a conviction thereunder

“involves” a crime of

violence. It is thus clear that each of the offense s for whic

h Colewas convicted meets the definitionof a “crime of violence” under U.S.S .G. § 4B1.2(a ), and the district c ourt was c orrect i n c oncluding 14 United Sta tes v. Cole , et al. Nos. 02-5839/5840

13 Co le argues that

the prohibiti on of downward depart ures in r elation
to violentcrimes result s in cruel and unusua l punish men t with resp ect to defendant s such a s himself who possess limi ted functi oning. Cole st ates in his brief that “[ t]he v ery dim inished capa city that he p osses ses limits hi s abilit

y to comprehend and ap preciate the dif ferences between th e commission of a violentand non-vio lent offen se and the relativ e effects of sentencing as well.” A ppe llant’s B r. at 12 . Ho weve r, Co le neglec ts to cite even o ne auth orit y suppor ting hi s constit utional argument, and thus this argum ent is de eme d wa ived. Se e, e.g., Mc Ph erson v. Kelse y, 125 F.3d 989, 995- 96 (6th Cir. 1997)(“ iss ues a dvert ed to in a perfunctory
manner, unacc omp anied by som e effort a t deve lope d aug men tatio n, ar e deemed waiv ed. I t i s not suf fi cient f or a par tyto mention a po ssible argument in the mo st s kelet al way , l eavi ng the cour t t o . . . put

fl esh on its bon es.”

) (quoting Citi

zens Awareness Net

wor k, I nc. v. U.S. Nucl

ear Reg ulatory Co mm ’n, 59 F.3d 284, 293-94 (1st Ci r. 1995)). Furthe rmore,

a majo rity of the cour ts of appeals have denied downwar d departures under U.S .S.G . § 5K2.13 in cases involvin g viole nt crime s, see, e.g. ,U.S.

v. Mo rin, 124 F.3d 649 (4th Cir. 19 97)
, U.S. v. Th am es, 214 F.3d 608 (5th Cir. 200 0); U.S. v . Madd elena

, 893 F.2d 815 (6th C ir. 198 9); U.S. v. Mayotte, 76 F.3d 887 (8th C ir. 199 6); U.S. v. Petit ta, 899 F.2d 122 6 (9 th Cir. 1990), whether t

he def endant suf fer ed fro m dimi nis hed capa cit y or not. See, e .g., U.S . v. Su llivan, 75 F.3d 29 7 (7th Cir. 1996)(defendant

unsuc cessfully arguing that the d enial o f a down ward departure on dimini shed capacity groun ds violated his D ue Pro cess an d Equal Protection rights ).

14 “[ A] dis tri ct c ourt ’s deter mination that

it lacked authority

to depart downward is a mat

ter of Guideli nes interpret ation that we revi ew de

nov o.” U nited State s v. Bu rke, 237 F.3d 74, 7 43 ( 6th C ir. 200 1). 

## that it lacked the discretion to grant a downward departure from the Sentencing Guideline. 13



## 2. Aberrant Behavior

Cole advances the further arg ument that the district court erred in conclu

ding tha t it lac ked the a

uthority to gran t a downward

departure in light of Cole’s aberrant be havior

. Based on the following review, this Cour t holds that the districtcourt wa s corre ct in so con cludi ng. 14 

## U.S.S.G. § 5K2.20 gives district courts the leeway to depart downward “in an extraordinary

case if the defendant’s criminal conduct

## Nos. 02-5839/5840 United Sta tes v. Cole , et al. 15

constituted

aberrant behavior.” U.S.S.G. § 5K2 .20. However, this policy statement is limited in that no departure is permitted if “(1) the offense involved serious bodily injury

or deat h; [o r] (2) the defendant . . . used a firearm or a dangerous weapon.” U.S.S.G. § 5K2.20.

The district court denied a d ownward

departu re with respect to the assault charge because the victim was raped - clearly a crime involving seri ous b odily injury . The district court ap pa re nt ly f

ai le d t o s pe ci fi ca ll y a ddres s the crimes of kidnappingand use o f a fire arm at se ntencing , but ag ain , n o downward

departure would be permitted for these cri mes because Cole and his accomplice used a .38 cal iber gun during the offense.

D. Three-Level

Upwar d Depa rtur e fo r E xtreme Conduct

The district court deviated from the applicable sentencing guideline, and granted an upwa rd dep arture

of three levels based onU.S.S.G. § 5K2.8, titled “Extreme Conduct.” Cole argues that

his conduct did not constitute “extreme behavior,”

a nd asserts that none of the examples cited in U.S.S .G

. § 5K2.8 (torture of

a victim, gratuitous infliction of injury, or prolonging of pain or humiliation) apply to this case.

T his Court reviews a district court’s departure f rom th e recommended

Guidelines sentence u nder an abuse of discretionstandard. See, e. g., Unite d Sta tes v. Baker, 339 F.3d 400, 403 (6th Cir. 2003). Congress permits district courtsto depart from the relevant guideline ra nge if “there exists an aggravating

or mitigatingcircumstance of a kind, or to a degree, not adequately taken into co nsider ation by the SentencingCommission.” Koo n v. Un ited States, 518 U.S. 81, 92 (1996)(quoting 18 U.S.C. § 3553(b)).

The policy

statemen t inU.S.S.G. § 5K2.8, uponwhich the districtcourt based its decision regardi ng the upward departure, provides district c ourts with discreti on to incr

ease 16 United Sta tes v. Cole , et al. Nos. 02-5839/5840

a sentence above the guideline ra nge “[i]f the defe ndant’ s conduct was unusu

ally heinous, cruel, brutal, or

degra ding to the victim,” s o as to “re flect the nature of the conduct.” U.S.S.G. § 5K2.8. Examples of actions c onstituting

“extreme conduct” include “torture of a victim, gratuitous infliction of in ju ry, or prolon g ing of pain or humiliation.” Id. In characterizing

Cole’s actions as involving extrem e conduct, the district court noted the following aspects of the crime as releva nt: (1) the vi cti m was raped by more than one particip ant; (2) the sexual assaults were repeated over afourhour period at gunpoint; (3) the victim’s life was threatened; and (4) the “ obvious te

rror” the v ict im mu st hav e fe lt . In sum, the di strict court characterized the crime as “a n afternoon of terror” for the victim, finding that this was “more than the average rape

victim has to deal with.” J.A. at 215.

This Court has c onsist ently af firmed district court decisions granti n g upward departures pursuant to U.S.S.G. § 5K2.8. See, e.g., U

nited States v. Sizemore, No. 99-6321, 238 F.3d 425, 2000 WL 1871723, at * 1 (6th Cir., D ec. 1 2, 2000)(affirming

four-level upward departure whe re drug conspirators tortured co-conspirator); United States v. Davis, 170 F.3d 617, 624 (6th C ir. 1999)(affirming eight-leve l upward departu re wher e wire- fraud de fendant

in t entional ly inflicted psychologic al har

m on elderly, sick tele

marketing victims by being

“loud, rude, obnoxious, [and] controlling”); United States v. Harris, 943 F.2d 53, 1991 WL 165586, at *3 (6th Cir. Aug . 27, 1991) (affirming ten and twelve-leve l departures where wi tn ess-tamperers abducted witness and raped witness’s wife). It would appear fr om this line of

cases that re pe at ed se xu al as sa ul ts by mult iple participants over a four-hour period a t gun poin

t could be

charac te rized as heinous, bruta l, cru el and degradi ng to t he victim. Furthermore, such assaults could be said to have included

## Nos. 02-5839/5840 United Sta tes v. Cole , et al. 17

15 Bec ause U.S .S.G . § 2A 4.1( b)(4 )(C) r edu ces the offense level if the victim is release d in le ss t han 24 hours, Cole argues that the four hours inv olved here sh ould be vie wed as “ab norm ally short.” Ho weve r, Co le

was not sen tence d und er U .S.S .G. § 2A4.1, and th erefore that parti cular offense chara cteristic b ears no app licatio n in t his ca se. Fur thermore, Appli cati on Note 5 of U .S .S. G. § 2A3.1, the relevant sent encing guidel ine, stat es that

an upward depart

ure may be war

ranted“[i]f a victim

was sexually

abused by more than one p articipa nt,” and goes on to refer ence U.S.S. G. § 5K 2.8

. Ther efor e, i t wou ld appe ar that the fact of multiple particip ants, stand ing alo ne, wa rrants a n upw ard d epa rture. 

## “prolonging

of pain or humiliation” under U.S.S.G. § 5K2.8. 15



## IV. DEFENDA

NT/APPELLANT JOHNSO N

A. Two-Point

OffenseLevel Inc rease

for Obstruction of Justice

Defen dant

Johnson argues that the district court erred i n increasing

his offen se level by two points for obstruction of justice under U.S.S.G. § 3C1.1. The district court found that when Johnson wilfully threatened t he v ictim at a time when

aninvestigation had commenced, he was in fact guilty of obstruction of justice under U.S.S.G. § 3C1.1.
This Court acknowledges that it has utilized two differing standards of revi ew when exam inin g a dis trict court’s applicationof U.S.S.G. § 3C1.1. The confusion on this issue proliferated

follo wing the S upreme Co urt’s de cision in Buford v. United

Sta tes, 532 U.S. 59 (2001), in which the Courtcalled fo r gre ater deference when r eviewing a district court’s “fact-bound” application of a sentencing guideline. Id. at 66. Thereafter, we have a pplied bo th a tri-p artite standard of review and a more def

erential clear -error standard. In United States v. Middleton, 246 F.3d 825, 845-46 (6th Cir. 2001), and United States v. Camejo, 333 F.3d 6 69 (6th Cir. 2003), we applied the thr ee- part standard: “First we review the factual determinations made by the district court for

clear

error. Second, a

district c ourt’s c onclusion that a given set of 18 United Sta tes v. Cole , et al. Nos. 02-5839/5840

16 U.S .S .G. § 3C1.1, titled, “ Obstructing or Impeding the Admini str ati on of Justice, ” provides that “[ i]f (A) t he defendant wilfully obstruct ed or impeded, or attempt ed to obstr uct or im pede, the adm inis tra ti on of justi ce during the course of t he investi gation, prosecution, or sentencing of t he ins tant

off ense of conviction, and (B) the obstructive c onduc t re lat ed to ( i) t he def endant ’s off

ense of conviction and a ny relevant conduct; or (ii) a cl osely relat ed offense, incr ease the offense level b y 2 levels. ” Among the examples given of the cond uct to which the adju stment

ap pli es is “threatening, intimidating, or otherwise unlaw fully inf

luen cing a co- defen dant, wit ness , or juror , di rect lyor ind i rectly, or attem pting to do so .” U.S .S.G . § 3C 1.1, A pplic ation N ote 4(a).

17 The Court al so found t hat t he thr eats f

ell with in t

he lang uage o f Appli cati on No te 4(i), wh ich says tha t the ob structio n of jus tice enhancement applies als o to “ other conduct prohi bit ed by obstruct ion of just ice pro visions u nde r Title 18, United St ates Code.” U.S.S. G. § 3C1.1, Appli cati on Note 4 ( i). The Court found t hat 18 U.S.C. § 1512(b) was violat ed by Jo hnso n’s cond uct. 18 U .S.C. § 1512(b ) is vi olated when one “kno wingly uses i nti midati on or physi cal f orce , thr eaten s, or co rruptly persuades anoth er pe rson, o r attemp ts to do so . . . with inten t to (3) hinde r, dela y, or prevent the communication to a law enf orcement 

## facts constitute s obstruction of just ice is a mixed question of law and fact that we review de novo . Finally, once a district court has determined that a defendant obstructed justice, then applicationof a two-level enhancem ent at that point i s
ma nd at or y, and we rev ie w the enhanceme nt de novo. ” Middle ton, 246 F.3d at 846. However, in United States v. Jackson- Rand olph, 282 F.3d 3 69 (6th Cir . 2002), we held that, in light o f Bu

ford, a clear error standard of r eview was “approp riatefor reviewin g s entencing decisions under § 3C1.1, whe

re the so le is su e befor

e the distr

ict cour t is a fact-bound

application of the guideline pr ovisions,” Id. at 390. We decline at this ti

me to endorse a particular approach, as the district court’s decision here is correct under either. 16



## The district court found that the threats made by Johnson to the victim

fell squa

rely into the examples g iven in ApplicationNote 4(a) of U.S.S.G. § 3C1.1; specifically that the defendant threatene d th e w it ne ss di re ct ly. 17 

## The district

## Nos. 02-5839/5840 United Sta tes v. Cole , et al. 19

offi ce r

. . . of informat ion rel atin g to the commissi on . . . of a Federal offense . . .” 18 U .S.C. § 151 2(b ). Th is Court has previous ly r ecognized that conduct prohi bit ed by 18 U.S.C. § 1512 is an appr opria te g round f or

a two-level increase for obs tru cti on of j ust ice under U.S.S. G. § 3C1.1. See , Un ited S tates v. R aha l, 191 F.3d 642, 647 (6th Cir. 1999). 

## court did not er r in finding that Johnson’s threats t o the vict im

were made in the hope that the victim woul dnot report the crimeto police, and thus constituted an obstruction of justice. SeeUnited States v. B rown, 237 F.3d 625 (6th Cir. 2001)(thr ea ts made by

defenda nt to poten

tial witne ss “substan tively amount to obstruction of justice.”) Johnson’s victim reporte d that, toward the end of her captivity, Johnson found an insurance card in the glove box of h er vehicle and told her that he had her

address and would

“send someone to kill her” if she told anyone about the incident

. Johnson also repeat edly stated that he ought to kill her bec ause she had seen his and Cole’s faces.

As to whethe

r Johnson wil fully

obstruct ed ju st ice, this Courtconcludes that he intentiona lly threatened the victim at

a time when he knew or should hav e known that an investigation had p robably commenc ed. When the victim

was abducte d she was

th e o nl y employee a

t the post office. It seems implausible that Johnson did not considerthat when the other employee s returned from lunch, they would see that the post office was left aba ndoned, n o note wa s left to explain the victim’s absence, a

nd a ll of t he vic tim’ s belo ngings remainedthere except for her car key s. This con

clusion is further bolstered by

the fact that Johnson

knew the victim was the only employ

ee on duty at the time he and Cole were present at the post office, and went to the trouble of hiding the gunused in the crime. Finally , when Postal Inspecto r Chalm ers asked Cole how he found out that the police were looking for him

and Johnson , Colestated that Johnson’s sister had stopped them in the ro ad and told them. This occurred before the victim was released. Therefore, because Johnson made threats constituting an obstruction of justice, and did so 20 United Sta tes v. Cole , et al. Nos. 02-5839/5840

wi lf ul ly, this Courtwill affirm the district court’s decision to enhance his sentence upward pursuant to U.S.S.G. § 3C1.1.

B. Three-Level

Sente nce En hanc ement f or Ext reme Conduct

The district court deviated from the applicable sentencing guideline and gr anted an upward departu re of thr ee leve ls based on U.S.S.G. § 5K2.8, titled “Extreme Conduct,” when calculatingthe total o ffense level with res pect to Defendant Johnson.

The policy statement in U.S.S.G. § 5K2.8, upon which the districtcourt based

its d ecision regarding the upwa rd departure, provides district courts with discretion

to incre ase
a sentence above the guide line r ange “[i]f the defendant’s conduct was unusu

ally heinous, c

ruel, br utal, or degra ding to t he victim,” so as to “reflect the nature of the condu ct. ” U.S.S.G. § 5K2.8. Examples of actions constituting “extreme conduct” include “torture of a

victim, gratuitous infliction of injury, or prolonging of pain or humiliation.” Id.

As it had done with respect to De fe ndant Cole , in characterizing

Defendant Johnson’ s actions as involving extreme conduct, the district co urt noted the follow

ing aspe cts of the crime

as rele vant: (1)the vic tim was raped by more thanone part

icipant; (2) t he sexual assaults were repeated

over a four-hour

period at gunpoint; (3) the victim’s lifewas threatened; and (4) the “obvious terror” the victim must have felt. Johns on argue s that to impose an upward departure based on the factthat the victim was sexually assaulted by

more thanone participant results in punishing Johnson for the actions of Cole. H owever , Johnson fa ils to cite a sin

gle ca se to further develop this argument, and thus it is deem e d waived. See United States v. Corrado, 304 F.3d 593, 611

## Nos. 02-5839/5840 United Sta tes v. Cole , et al. 21

18 That asi de, Johnson’ s ar gument st il l f ail s. It i s a cl ear t enet of American law that o ne c an be held account able f or the ac ts of

another conspirator. See , e.g., P inker ton v . U.S

., 328 U .S. 640(1 9 46) (ove rt acts of one co- conspi rat or in a conspiracy are in l aw the acts of al l). The Third Circui t has also had no h esit ation in granti ng an upward departure under U.S .S .G. § 2A3. 1, Applica ti on Note 5, wit h it s re fer ence t o § 5K2.8, based on s exu al abus e by mo re t han o ne pa rticipan t. United States v. Qu een sbo rou gh, 227 F.3d 149 (3rd Cir. 20 00)

. 

## n.12 (6th Cir. 2002). 18 

## Thus, this Courtfinds that the district

courtcorrectly g

ranted a n upward departu re pursu ant t o U.S.S.G. § 5K2.8 and § 2A3.1.

V. CONCLUSION

Ac co rd in gl y, we A F FIRM the judgment of the district court.