*

The Honorable Karl S. Forester, Chief United States District Judge

for the Eastern District of Kentucky, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0051P (6th Cir.)

File Name: 04a0051p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RICHARD COLE, III (02-5839);

JONATHAN JOHNSON

(02-5840),

Defendants-Appellants.

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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 

Before: MOORE and ROGERS, Circuit Judges;

FORESTER, Chief District Judge.*

2 United States v. Cole, et al. Nos. 02-5839/5840

1

The six-count indictment against the defendants consisted of the

following: Count 1, conspiring to kidnap and sexually assault a

Postmaster in violation of 18 U.S.C. § 1201(c); Count 2, kidnapping a

Postmaster in violation of 18 U.S.C. § 1201(a)(5); Count 3, car-jacking

a Postmaster’s vehicle in violation of 18 U.S.C. § 2119; Count 4,

assaulting a Postmaster with a weapon in violation of 18 U.S.C. § 111;

Count 5, hindering and delaying a Postmaster’s communication with law

enforcement by threats of force and violence in violation of 18 U.S.C.

§ 1512(b)(3); Count 6, brandishing a firearm during a crime of violence

in violation of 18 U.S.C. § 924(c). Pursuant to plea negotiations, Johnson

and Cole pled guilty to Counts 2, 4, and 6 of the indictment. Counts 1, 3,

and 5 were dismissed. Johnson received a total sentence of 489 months;

_________________

COUNSEL

ARGUED: Jeff Mueller, LAW OFFICE OF JEFF

MUELLER, Jackson, Tennessee, Bruce I. Griffey, OFFICE

OF BRUCE IRWIN GRIFFEY, Memphis, Tennessee, for

Appellants. James W. Powell, ASSISTANT UNITED

STATES ATTORNEY, Jackson, Tennessee, for Appellee.

ON BRIEF: Jeff Mueller, LAW OFFICE OF JEFF

MUELLER, Jackson, Tennessee, Bruce I. Griffey, OFFICE

OF BRUCE IRWIN GRIFFEY, Memphis, Tennessee, for

Appellants. James W. Powell, ASSISTANT UNITED

STATES ATTORNEY, Jackson, Tennessee, for Appellee.

_________________

OPINION

_________________

FORESTER, District Judge. The Defendants, Richard

Cole, III (“Cole”) and Jonathan Johnson (“Johnson”) appeal

the sentences imposed on them by the U.S. District Court for

the Western District of Tennessee pursuant to the 2001 United

States Sentencing Guidelines (“U.S.S.G.”), resulting from

their convictions for kidnapping, assault, and the use of a

firearm during a crime of violence.

1
Nos. 02-5839/5840 United States v. Cole, et al. 3

Cole was sentenced to a total of 319 months.

On appeal, Cole presents the following arguments: (1) the

district court erred when it utilized U.S.S.G. § 2A3.1, instead

of U.S.S.G. § 2A4.1 for the kidnapping offense; (2) the

district court should not have granted a four-level sentence

enhancement for abduction on a conviction for a kidnapping

offense pursuant to U.S.S.G. § 2A3.1(b)(5); and (3) the

district court wrongly refused to grant a downward departure

for diminished capacity and aberrant behavior pursuant to

U.S.S.G. §§ 5K2.13 and 5K2.20. Johnson contends that the

district court erred when it increased his offense level by two

points for obstruction of justice under U.S.S.G. § 3C1.1. In

addition, both Cole and Johnson allege that the district court

erred when it granted a three-level upward departure for

extreme conduct in accordance with U.S.S.G. § 5K2.8. For

the following reasons, we AFFIRM. 

I. JURISDICTION

The district court had jurisdiction pursuant to 18 U.S.C.

§ 3231. This Court has jurisdiction pursuant to 28 U.S.C.

§ 1291.

II. FACTUAL BACKGROUND AND PROCEDURAL

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 caliber 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 which Cole and Johnson, along with their victim,

fled the scene. For four hours, the defendants held the victim

captive, driving the back roads surrounding Jackson,

Tennessee, and taking turns sexually assaulting her. She was

released around 4 p.m., whereupon she reported the crime.

The defendants were arrested a short time later. 

4 United States v. Cole, et al. Nos. 02-5839/5840

2

Although later amended, U.S.S.G. § 2A4.1. (2001) provided:

Kidnapping, Abduction, Unlawful Restraint:

(a) Base Offense Level: 24

(b) Specific Offense Characteristics

(1) If a ransom demand or a demand upon government was made,

increase by 6 levels.

(2) (A) If the victim sustained permanent or life-threatening bodily

injury, increase by 4 levels; (B) if the victim sustained serious bodily

injury, increase by 2 levels; or (C) if the degree of injury is between

that specified in subdivisions (A) and (B), increase by 3 levels.

(3) If a dangerous weapon was used, increase by 2 levels.

(4)(A) If the victim was not released before thirty days had elapsed,

increase by 2 levels.

(B) If the victim was not released before seven days had elapsed,

increase by 1 level.

(C) If the victim was released before twenty-four hours had elapsed,

decrease by 1 level.

(5) If the victim was sexually exploited: increase by 3 levels.

(6) If the victim is a minor and, in exchange for money or other

consideration, was placed in the care or custody of another person

who had no legal right to such care or custody of the victim, increase

by 3 levels.

(7) If the victim was kidnapped, abducted, or unlawfully restrained

during the commission of, or in connection with, another offense or

escape therefrom; or if another offense was committed during the

kidnapping, abduction, or unlawful restraint, increase to--

After her release, the victim gave two statements to Postal

Inspector Katrina Chalmers. The statements provided the

details of the defendants’ activities as later set forth in the

presentence investigation report. The victim stated that, prior

to her release, Johnson found an insurance card in the glove

box of her 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 repeatedly stated that he ought to kill

her because she had seen his and Cole’s faces. 

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 However, that guideline,
Nos. 02-5839/5840 United States v. Cole, et al. 5

(A) the offense level from the Chapter Two offense guideline

applicable to that other offense if such offense guideline includes an

adjustment for kidnapping, abduction, or unlawful restraint, or

otherwise takes such conduct into account; or

(B) 4 plus the offense level from the offense guideline applicable to

that other offense, but in no event greater than level 43, in any other

case, if the resulting offense level is greater than that determined

above.

3

U.S.S.G.§ 2A3.1. Criminal Sexual Abuse; Attempt to Commit

Criminal Sexual Abuse:

(a) Base Offense Level: 27

(b) Specific Offense Characteristics

(1) If the offense was committed by the means set forth in 18 U.S.C.

§ 2241(a) or (b), increase by 4 levels.

(2) (A) If the victim had not attained the age of twelve years, increase

by 4 levels; or (B) if the victim had attained the age of twelve years

but had not attained the age of sixteen years, increase by 2 levels.

(3) If the victim was (A) in the custody, care, or supervisory control

of the defendant; or (B) a person held in the custody of a correctional

facility, increase by 2 levels.

(4) (A) If the victim sustained permanent or life-threatening bodily

injury, increase by 4 levels; (B) if the victim sustained serious bodily

injury, increase by 2 levels; or (C) if the degree of injury is between

that specified in subdivisions (A) and (B), increase by 3 levels.

(5) If the victim was abducted, increase by 4 levels.

(6) If, to persuade, induce, entice, or coerce a minor to engage in

prohibited sexual conduct, or if, to facilitate transportation or travel,

by a minor or a participant, to engage in prohibited sexual conduct,

the offense involved (A) the knowing misrepresentation of a

participant's identity; or (B) the use of a computer or an Internetaccess device, increase by 2 levels.

under (b)(7)(A), directed the court to refer to U.S.S.G.

§ 2A3.13 and impose sentence under that section if it resulted

in a greater offense level. As a result, Cole received a higher

base offense level. Additionally, pursuant to specific offense

characteristic (b)(5) of U.S.S.G. § 2A3.1, the district court

granted a four level sentence enhancement because the victim

had been abducted. The district court also denied Cole’s

request for a downward departure for diminished capacity and

6 United States v. Cole, et al. Nos. 02-5839/5840

4

U.S.S.G. § 5K2.13. Diminished Capacity (Policy Statement)

A sentence below the applicable guideline range may be warranted

if the defendant committed the offense while suffering from a

significantly reduced mental capacity. However, the court may not

depart below the applicable guideline range if (1) the significantly

reduced mental capacity was caused by the voluntary use of drugs or

other intoxicants; (2) the facts and 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; or (3) the

defendant's criminal history indicates a need to incarcerate the

defendant to protect the public if a departure is warranted, the extent

of the departure should reflect the extent to which the reduced mental

capacity contributed to the commission of the offense.

5

U.S.S.G. § 5K2.20. Aberrant Behavior (Policy Statement)

A sentence below the applicable guideline range may be warranted

in an extraordinary case if the defendant's criminal conduct

constituted aberrant behavior. However, the court may not depart

below the guideline range on this basis if (1) the offense involved

serious bodily injury or death; (2) the defendant discharged a firearm

or otherwise used a firearm or a dangerous weapon; (3) the instant

offense of conviction is a serious drug trafficking offense; (4) the

defendant has more than one criminal history point, as determined

under Chapter Four (Criminal History and Criminal Livelihood); or

(5) the defendant has a prior federal, or state, felony conviction,

regardless of whether the conviction is countable under Chapter Four.

6

U.S.S.G. § 5K2.8. Extreme Conduct (Policy Statement)

If the defendant's conduct was unusually heinous, cruel, brutal, or

degrading to the victim, the court may increase the sentence above

the guideline range to reflect the nature of the conduct. Examples of

extreme conduct include torture of a victim, gratuitous infliction of

injury, or prolonging of pain or humiliation.

7

The sentence breaks down in the following manner: 235 months on

Count 2, kidnapping; 120 months on Count 4, assault, to run concurrent

with Count 2; and 84 months on Count 6, the firearm charge, to run

aberrant behavior pursuant to U.S.S.G. §§ 5K2.134 and

5K2.205 because Cole’s acts fell outside the language

permitting such departure. Finally, the court departed upward

three levels for extreme conduct based on U.S.S.G. § 5K2.8.6

This resulted in a total sentence of 319 months.7
Nos. 02-5839/5840 United States v. Cole, et al. 7

consecutive with Counts 2 and 4. 

8

U.S.S.G. § 3C1.1. Obstructing or Impeding the Administration of

Justice

If (A) the defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice during the course of

the investigation, prosecution, or sentencing of the instant offense of

conviction, and (B) the obstructive conduct related to (i) the

defendant's offense of conviction and any relevant conduct; or (ii) a

closely related offense, increase the offense level by 2 levels.

9

The sentence breaks down in the following manner: 405 months on

Count 2, kidnapping; 120 months on Count 4, assault, to run concurrent

with Count 2; and 84 months on Count 6, the firearm charge, to run

consecutive with Counts 2 and 4. 

With regard to Johnson, the district court increased his

offense level two points for obstruction of justice pursuant to

U.S.S.G. § 3C1.18 because of the threats he made to the

victim prior to releasing her. Additionally, as it had done

with regard to Cole, the court departed upward three levels for

extreme conduct based on U.S.S.G. § 5K2.8. Johnson was

ultimately sentenced to a term of 489 months.9

III. DEFENDANT COLE

A. Appropriateness of Sentencing Guideline Used

Defendant Cole was indicted and pled guilty to a violation

of 18 U.S.C. § 1201(a)(5), which proscribes the offense of

kidnapping. The U.S.S.G. Appendix A, Statutory Index,

specifies the offense guideline section in Chapter Two

applicable to the statute of conviction. The proper guideline

specified by the index for a violation of 18 U.S.C. § 1201 is

set out at § 2A4.1, and specifies a base offense level of 24.

This guideline provides in part that:

if the victim was kidnapped, abducted, or unlawfully

restrained during the commission of, or in connection

with, another offense . . . or if another offense was

8 United States v. Cole, et al. Nos. 02-5839/5840

committed during the kidnapping, abduction, or unlawful

restraint, increase to- (A) the offense level from the

Chapter Two offense guideline applicable to that other

offense if such offense guideline includes an adjustment

for kidnapping, abduction, or unlawful restraint . . . if the

resulting offense level is greater than that determined

above.

U.S.S.G. § 2A4.1(b)(7). The guideline also provides, at

U.S.S.G. § 2A4.1(b)(5)(A), for an increase of three points if

the victim was sexually exploited.

This Court utilizes a de novo review with respect to a

sentencing court’s interpretation of the United States

Sentencing Guidelines, and a clearly erroneous standard with

respect to factual findings. See United States v. Kimble, 305

F.3d 480, 485 (6th Cir. 2002); United States v. Denton, 246

F.3d 784, 789 (6th Cir. 2001); United States v. Scott, 74 F.3d

107, 111 (6th Cir. 1996).

The defendants’ victim, after being kidnapped, was forcibly

raped at gunpoint. The offense guideline for criminal sexual

assault is U.S.S.G. § 2A3.1, which specifies a base offense

level of 27 and includes an adjustment for kidnapping,

abduction, or unlawful restraint as a specific offense

characteristic. The district court, applying the specific

offense characteristics of U.S.S.G. § 2A3.1(b)(1) and

2A3.1(b)(5), determined the resulting offense level to be 35.

The court concluded that because the offense level under

U.S.S.G. § 2A3.1 was greater than the base offense level

under § 2A4.1, § 2A4.1(b)(7) required the use of § 2A3.1 and

prohibited the application of § 2A4.1. Cole argues that this

conclusion was erroneous. 

While this Court has not yet addressed this issue, each and

every one of the courts of appeals that 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 agree

with the circuits that have heretofore so held, and thus the
Nos. 02-5839/5840 United States v. Cole, et al. 9

10See United States v. Michaud, 268 F.3d 728, 738-39 (9th Cir.

2001)(upholding actions of district court identical to those here at issue:

“Section 2A4.1(b)(7) states unambiguously that the offense level

calculation from the other offense committed during a kidnapping is to

apply ‘if the resulting offense level is greater than that determined’ using

§ 2A4.1"); United States v. Rice, No. 00-4594, 2001 WL 108768 (4th Cir.

Feb. 8, 2001); United States v. Cree, 166 F.3d 1270 (8th Cir.

1999)(upholding district court’s application of § 2A3.1 base offense level

for criminal sexual abuse, rather than the lower base offense level of

2A4.1 for kidnapping, even though sexual assault was committed outside

of federal territorial jurisdiction); United States v. Lewis, 115 F.3d 1531

(11th Cir. 1997); United States v. Pollard, 986 F.2d 44, 46 (3rd Cir. 1993)

(upholding conviction and ruling of district court that applied sentencing

guideline for criminal sexual abuse to a defendant convicted of conspiracy

to kidnap even though he was not charged with an assault offense, stating:

“There is no statutory or constitutional requirement that a defendant be

convicted of conduct before the conduct may be considered in

sentencing.”); United States v. Anderson, 5 F.3d 795 (5th Cir.

1993)(though this court had not previously applied U.S.S.G.

§ 2A4.1(b)(7) in the criminal sexual abuse context, it had approved the

section-switching provision of the guideline and cited as authority cases

of the Third and Tenth Circuits listed herein); United States v. Galloway,

963 F.2d 1388, 1391 (10th Cir. 1992)(“The Sentencing Commission’s

intent to apply the higher of the two guidelines is unmistakable. . . . The

fact that a defendant may have committed a second additional offense

cannot relieve him from responsibility for the more serious of the

offenses. If that were the case, a defendant would receive a benefit from

the fact that he chose to commit an additional offense”).

district court was correct in proceeding from U.S.S.G.

§ 2A4.1(b)(7)(A) to U.S.S.G. § 2A3.1.10 As the Court in 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 another offense, § 2A4.1(b)(5) directs the sentencing

court to apply the guideline with the higher offense as

between the kidnapping guideline and the guideline for

the other offense. The background notes to § 2A4.1

explain: 

10 United States v. Cole, et al. Nos. 02-5839/5840

An enhancement is provided when the offense is

committed for ransom or to facilitate the commission of

another offense. Should the application of this guideline

result in a penalty less than the result achieved by

applying the guideline for the underlying offense, apply

the guideline for the underlying offense (e.g. § 2A3.1,

Criminal Sexual Abuse).

The Sentencing Commission’s intent to apply the higher

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 means of

sentencing would be to use § 2A4.1 and then add three levels

for sexual exploitation under specific offense characteristic

(b)(5) of that guideline. However, the general application

principles of the U.S.S.G. in the section titled, “Application

Instructions,” require that, “[w]here two or more guideline

provisions appear equally applicable, but the guidelines

authorize the application of only one such provision, use the

provision that results in the greater offense level.” U.S.S.G.

§ 1B1.1, Application Note 5. This statement dispels 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-Level Sentence Enhancement for

Abduction under U.S.S.G. § 2A3.1(b)(5)

The district court sentenced Cole for the crime of

kidnapping. However, in so doing, it correctly employed

U.S.S.G. § 2A3.1 as the offense guideline, thereby ultimately

sentencing him for criminal sexual assault and abduction.

Cole asserts that the district court’s use of the specific offense

characteristic (b)(5) of U.S.S.G. § 2A3.1, which calls for an

increase of four from the base offense level when the victim
Nos. 02-5839/5840 United States v. Cole, et al. 11

11This Court is also guided by the Fifth Circuit decision in United

States v. Anderson, 5 F.3d 795 (5th Cir. 1993), in finding that the district

court herein properly applied the complained-of four level enhancement

under U.S.S.G. § 2A3.1(b)(5). Anderson presented facts similar to those

in the instant matter, where the defendant likewise argued that the district

court engaged in “impermissible double counting” when, after beginning

with U.S.S.G. § 2A4.1, and turning to U.S.S.G. § 2A3.1, the district court

was abducted, is an impermissible double counting because

an essential element of kidnapping is abduction. Cole argues

that the four level enhancement “would enhance for the very

action which defines the crime itself.” Appellant’s Br. at 10.

As noted above, this Court reviews a district court’s

application of the sentencing guideline de novo, while factual

findings are upheld unless they are clearly erroneous. See

United States v. Weekly, 130 F.3d 747, 750 (6th Cir. 1997).

This Court has held, albeit on different facts, that

“impermissible ‘double counting’ occurs when precisely the

same aspect of a defendant’s conduct factors into his sentence

in separate ways.” United States v. Farrow, 198 F.3d 179,

193 (6th Cir.1999) (citing United States v. Perkins, 89 F.3d

303, 310 (6th Cir.1996)). Applying this established tenet to

the instant case, it is clear that no impermissible double

counting has occurred. Cole was convicted of kidnapping.

Appropriately, the district court proceeded to U.S.S.G.

§ 2A4.1 as the applicable sentencing guideline with respect to

kidnapping. That section required the court to proceed to

U.S.S.G. § 2A3.1. The district court sentenced Cole for

criminal sexual assault and increased the base offense level by

four pursuant to U.S.S.G. § 2A3.1(b)(1) because the offense

involved the use of force, and again by four pursuant to

U.S.S.G. § 2A3.1(b)(5) because he had abducted 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.

Clearly, kidnapping and sexual assault are two independent

and separate crimes, and should be considered separately at

sentencing.

11

12 United States v. Cole, et al. Nos. 02-5839/5840

enhanced the sexual abuse base offense level for the abduction of the

victim. Id. at 799. The defendant argued that “the court already took the

kidnapping offense into consideration when it began its calculations with

section 2A4.1, the kidnapping guideline.” Id. 

The Fifth Circuit summarily rejected this argument. It stressed that

the Sentencing Guidelines “expressly provide that an entire guideline shall

be applied upon reference from another guideline.” Id. The court cited

U.S.S.G. § 1B1.5(a), which states that “[a] cross reference ( an instruction

to apply another guideline) refers to the entire offense guideline (i.e., the

base offense level, specific offense characteristics, cross references, and

special instructions.)” U.S.S.G. § 1B1.5(a). As a result of this language,

the court concluded that the district court had not erred in its application

of the Sentencing Guidelines and hence, there was no impermissible

double counting. Anderson, 5 F.3d at 799.

C. Diminished Capacity and Aberrant Behavior

Although “a district court’s discretionary decision not to

depart downward from the Guidelines range ordinarily is not

appealable,” an appeal is allowed “when the district court

believed that it lacked any authority to depart downward as a

matter of law.” United States v. Burke, 237 F.3d 741, 743

(6th Cir. 2001). 

1. Diminished Capacity 

At Cole’s sentencing hearing, the district court concluded

that, based on expert trial testimony, Cole suffered from

diminished capacity. However, the district court denied a

downward departure from the applicable sentencing

guideline, finding that the guideline limitations prohibited

such a departure. 

U.S.S.G. § 5K2.13, titled “Diminished Capacity,” states

that the district courts have the discretion to grant a

downward departure from the applicable sentencing

guidelines “if the defendant committed the offense while

suffering from a significantly reduced mental capacity.”

U.S.S.G. § 5K2.13. However, this policy statement is

limited, in that the district court has no such discretion if “the
Nos. 02-5839/5840 United States v. Cole, et al. 13

12This Court has held that the definition of “crime of violence”

within U.S.S.G. § 4B1.2 “can be read in concert with § 5K2.13,” thereby

providing guidance as to what does and does not constitute a violent

offense. United States v. Clements, 144 F.3d 981, 982 (6th Cir. 1998).

facts and 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.

A crime of violence includes any offense that “(1) has as an

element the use, attempted use, or threatened use of physical

force against the person of another, or (2) . . . otherwise

involves conduct that presents a serious potential risk of

physical injury to another.” U.S.S.G. § 4B1.2(a).12 Cole was

convicted of kidnapping under 18 U.S.C. § 1201, assault

under 18 U.S.C. § 111, and use of a firearm during a crime of

violence pursuant to 18 U.S.C. § 924(c). 

Although the crime of kidnapping lacks the element of use

or threat of use of 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 potential risk of physical

injury to another.” U.S.S.G. § 4B1.2. The use of force is

integral to a conviction for assault, as 18 U.S.C. § 111 is

violated 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 carries a firearm” will, in addition to

being punished for the underlying crime, be punished for

incorporating a firearm into the commission of the crime.

18 U.S.C. § 924(c)(emphasis added). Because 18 U.S.C.

§ 924(c) is only violated if a gun is used in 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 offenses for which Cole was convicted meets the

definition of a “crime of violence” under U.S.S.G.

§ 4B1.2(a), and the district court was correct in concluding

14 United States v. Cole, et al. Nos. 02-5839/5840

13Cole argues that the prohibition of downward departures in relation

to violent crimes results in cruel and unusual punishment with respect to

defendants such as himself who possess limited functioning. Cole states

in his brief that “[t]he very diminished capacity that he possesses limits

his ability to comprehend and appreciate the differences between the

commission of a violent and non-violent offense and the relative effects

of sentencing as well.” Appellant’s Br. at 12. However, Cole neglects to

cite even one authority supporting his constitutional argument, and thus

this argument is deemed waived. See, e.g., McPherson v. Kelsey, 125

F.3d 989, 995-96 (6th Cir. 1997)(“issues adverted to in a perfunctory

manner, unaccompanied by some effort at developed augmentation, are

deemed waived. It is not sufficient for a party to mention a possible

argument in the most skeletal way, leaving the court to . . . put flesh on

its bones.”)(quoting Citizens Awareness Network, Inc. v. U.S. Nuclear

Regulatory Comm’n, 59 F.3d 284, 293-94 (1st Cir. 1995)). Furthermore,

a majority of the courts of appeals have denied downward departures

under U.S.S.G. § 5K2.13 in cases involving violent crimes, see, e.g.,U.S.

v. Morin, 124 F.3d 649(4th Cir. 1997), U.S. v. Thames, 214 F.3d 608 (5th

Cir. 2000); U.S. v. Maddelena , 893 F.2d 815 (6th Cir. 1989); U.S. v.

Mayotte, 76 F.3d 887 (8th Cir. 1996); U.S. v. Petitta, 899 F.2d 1226 (9th

Cir. 1990), whether the defendant suffered from diminished capacity or

not. See, e.g., U.S. v. Sullivan, 75 F.3d 297 (7th Cir. 1996)(defendant

unsuccessfully arguing that the denial of a downward departure on

diminished capacity grounds violated his Due Process and Equal

Protection rights).

14“[A] district court’s determination that it lacked authority to depart

downward is a matter of Guidelines interpretation that we review de

novo.” United States v. Burke, 237 F.3d 74, 743 (6th Cir. 2001). 

that it lacked the discretion to grant a downward departure

from the Sentencing Guideline.13

2. Aberrant Behavior

Cole advances the further argument that the district court

erred in concluding that it lacked the authority to grant a

downward departure in light of Cole’s aberrant behavior.

Based on the following review, this Court holds that the

district court was correct in so concluding.

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 States 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 death; [or] (2) the defendant . . . used a firearm or a

dangerous weapon.” U.S.S.G. § 5K2.20.

The district court denied a downward departure with

respect to the assault charge because the victim was raped -

clearly a crime involving serious bodily injury. The district

court apparently failed to specifically address the crimes of

kidnapping and use of a firearm at sentencing, but again, no

downward departure would be permitted for these crimes

because Cole and his accomplice used a .38 caliber gun

during the offense. 

D. Three-Level Upward Departure for Extreme

Conduct

The district court deviated from the applicable sentencing

guideline, and granted an upward departure of three levels

based on U.S.S.G. § 5K2.8, titled “Extreme Conduct.” Cole

argues that his conduct did not constitute “extreme behavior,”

and 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. 

This Court reviews a district court’s departure from the

recommended Guidelines sentence under an abuse of

discretion standard. See, e.g., United States v. Baker, 339

F.3d 400, 403 (6th Cir. 2003). Congress permits district

courts to depart from the relevant guideline range if “there

exists an aggravating or mitigating circumstance of a kind, or

to a degree, not adequately taken into consideration by the

Sentencing Commission.” Koon v. United States, 518 U.S.

81, 92 (1996)(quoting 18 U.S.C. § 3553(b)). 

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

district court based its decision regarding the upward

departure, provides district courts with discretion to increase

16 United States v. Cole, et al. Nos. 02-5839/5840

a sentence above the guideline range “[i]f the defendant’s

conduct was unusually heinous, cruel, brutal, or degrading to

the victim,” so as to “reflect the nature of the conduct.”

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. In

characterizing Cole’s actions as involving extreme conduct,

the district court noted the following aspects of the crime as

relevant: (1) the victim was raped by more than one

participant; (2) the sexual assaults were repeated over a fourhour period at gunpoint; (3) the victim’s life was threatened;

and (4) the “obvious terror” the victim must have felt. In

sum, the district court characterized the crime as “an

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 consistentlyaffirmed district court decisions

granting upward departures pursuant to U.S.S.G. § 5K2.8.

See, e.g., United States v. Sizemore, No. 99-6321, 238 F.3d

425, 2000 WL 1871723, at * 1 (6th Cir., Dec. 12,

2000)(affirming four-level upward departure where drug

conspirators tortured co-conspirator); United States v. Davis,

170 F.3d 617, 624 (6th Cir. 1999)(affirming eight-level

upward departure where wire-fraud defendant intentionally

inflicted psychological harm on elderly, sick telemarketing

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-level

departures where witness-tamperers abducted witness and

raped witness’s wife). It would appear from this line of cases

that repeated sexual assaults by multiple participants over a

four-hour period at gun point could be characterized as

heinous, brutal, cruel and degrading to the victim.

Furthermore, such assaults could be said to have included
Nos. 02-5839/5840 United States v. Cole, et al. 17

15Because U.S.S.G. § 2A4.1(b)(4)(C) reduces the offense level if the

victim is released in less than 24 hours, Cole argues that the four hours

involved here should be viewed as “abnormally short.” However, Cole

was not sentenced under U.S.S.G. § 2A4.1, and therefore that particular

offense characteristic bears no application in this case. Furthermore,

Application Note 5 of U.S.S.G. § 2A3.1, the relevant sentencing

guideline, states that an upward departure may be warranted “[i]f a victim

was sexually abused by more than one participant,” and goes on to

reference U.S.S.G. § 5K2.8. Therefore, it would appear that the fact of

multiple participants, standing alone, warrants an upward departure. 

“prolonging of pain or humiliation” under U.S.S.G.

§ 5K2.8.15

IV. DEFENDANT/APPELLANT JOHNSON

A. Two-Point Offense Level Increase for Obstruction

of Justice

Defendant Johnson argues that the district court erred in

increasing his offense level by two points for obstruction of

justice under U.S.S.G. § 3C1.1. The district court found that

when Johnson wilfully threatened the victim at a time when

an investigation 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 review when examining a district court’s

application of U.S.S.G. § 3C1.1. The confusion on this issue

proliferated following the Supreme Court’s decision in

Buford v. United States, 532 U.S. 59 (2001), in which the

Court called for greater deference when reviewing a district

court’s “fact-bound” application of a sentencing guideline.

Id. at 66. Thereafter, we have applied both a tri-partite

standard of review and a more deferential 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 669 (6th Cir.

2003), we applied the three-part standard: “First we review

the factual determinations made by the district court for clear

error. Second, a district court’s conclusion that a given set of

18 United States v. Cole, et al. Nos. 02-5839/5840

16U.S.S.G. § 3C1.1, titled, “Obstructing or Impeding the

Administration of Justice,” provides that “[i]f (A) the defendant wilfully

obstructed or impeded, or attempted to obstruct or impede, the

administration of justice during the course of the investigation,

prosecution, or sentencing of the instant offense of conviction, and (B) the

obstructive conduct related to (i) the defendant’s offense of conviction

and any relevant conduct; or (ii) a closely related offense, increase the

offense level by 2 levels.” Among the examples given of the conduct to

which the adjustment applies is “threatening, intimidating, or otherwise

unlawfully influencing a co-defendant, witness, or juror, directly or

indirectly, or attempting to do so.” U.S.S.G. § 3C1.1, Application Note

4(a).

17The Court also found that the threats fell within the language of

Application Note 4(i), which says that the obstruction of justice

enhancement applies also to “other conduct prohibited by obstruction of

justice provisions under Title 18, United States Code.” U.S.S.G. § 3C1.1,

Application Note 4(i). The Court found that 18 U.S.C. § 1512(b) was

violated by Johnson’s conduct. 18 U.S.C. § 1512(b) is violated when one

“knowingly uses intimidation or physical force, threatens, or corruptly

persuades another person, or attempts to do so . . . with intent to

(3) hinder, delay, or prevent the communication to a law enforcement

facts constitutes obstruction of justice 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

application of a two-level enhancement at that point is

mandatory, and we review the enhancement de novo.”

Middleton, 246 F.3d at 846. However, in United States v.

Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002), we held

that, in light of Buford, a clear error standard of review was

“appropriate for reviewing sentencing decisions under

§ 3C1.1, where the sole issue before the district court is a

fact-bound application of the guideline provisions,” Id. at

390. We decline at this time 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 squarely into the examples given in

Application Note 4(a) of U.S.S.G. § 3C1.1; specifically that

the defendant threatened the witness directly.17 The district
Nos. 02-5839/5840 United States v. Cole, et al. 19

officer . . . of information relating to the commission . . . of a Federal

offense . . .” 18 U.S.C. § 1512(b). This Court has previously recognized

that conduct prohibited by 18 U.S.C. § 1512 is an appropriate ground for

a two-level increase for obstruction of justice under U.S.S.G. § 3C1.1.

See, United States v. Rahal, 191 F.3d 642, 647 (6th Cir. 1999).

court did not err in finding that Johnson’s threats to the victim

were made in the hope that the victim would not report the

crime to police, and thus constituted an obstruction of justice.

See United States v. Brown, 237 F.3d 625 (6th Cir.

2001)(threats made by defendant to potential witness

“substantively amount to obstruction of justice.”) Johnson’s

victim reported that, toward the end of her captivity, Johnson

found an insurance card in the glove box of her 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

repeatedly stated that he ought to kill her because she had

seen his and Cole’s faces. 

As to whether Johnson wilfully obstructed justice, this

Court concludes that he intentionally threatened the victim at

a time when he knew or should have known that an

investigation had probably commenced. When the victim

was abducted she was the only employee at the post office.

It seems implausible that Johnson did not consider that when

the other employees returned from lunch, they would see that

the post office was left abandoned, no note was left to explain

the victim’s absence, and all of the victim’s belongings

remained there except for her car keys. This conclusion is

further bolstered by the fact that Johnson knew the victim was

the only employee on duty at the time he and Cole were

present at the post office, and went to the trouble of hiding the

gun used in the crime. Finally, when Postal Inspector

Chalmers asked Cole how he found out that the police were

looking for him and Johnson, Cole stated that Johnson’s sister

had stopped them in the road 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 States v. Cole, et al. Nos. 02-5839/5840

wilfully, this Court will affirm the district court’s decision to

enhance his sentence upward pursuant to U.S.S.G. § 3C1.1.

B. Three-Level Sentence Enhancement for Extreme

Conduct 

The district court deviated from the applicable sentencing

guideline and granted an upward departure of three levels

based on U.S.S.G. § 5K2.8, titled “Extreme Conduct,” when

calculating the total offense level with respect to Defendant

Johnson.

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

district court based its decision regarding the upward

departure, provides district courts with discretion to increase

a sentence above the guideline range “[i]f the defendant’s

conduct was unusually heinous, cruel, brutal, or degrading to

the victim,” so as to “reflect the nature of the conduct.”

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 Defendant Cole, in

characterizing Defendant Johnson’s actions as involving

extreme conduct, the district court noted the following aspects

of the crime as relevant: (1) the victim was raped by more

than one participant; (2) the sexual assaults were repeated

over a four-hour period at gunpoint; (3) the victim’s life was

threatened; and (4) the “obvious terror” the victim must have

felt. Johnson argues that to impose an upward departure

based on the fact that the victim was sexually assaulted by

more than one participant results in punishing Johnson for the

actions of Cole. However, Johnson fails to cite a single case

to further develop this argument, and thus it is deemed

waived. See United States v. Corrado, 304 F.3d 593, 611
Nos. 02-5839/5840 United States v. Cole, et al. 21

18That aside, Johnson’s argument still fails. It is a clear tenet of

American law that one can be held accountable for the acts of another

conspirator. See, e.g., Pinkerton v. U.S., 328 U.S. 640(1946)(overt acts

of one co-conspirator in a conspiracy are in law the acts of all). The Third

Circuit has also had no hesitation in granting an upward departure under

U.S.S.G. § 2A3.1, Application Note 5, with its reference to § 5K2.8,

based on sexual abuse by more than one participant. United States v.

Queensborough, 227 F.3d 149 (3rd Cir. 2000). 

n.12 (6th Cir. 2002).18 Thus, this Court finds that the district

court correctly granted an upward departure pursuant to

U.S.S.G. § 5K2.8 and § 2A3.1. 

V. CONCLUSION

Accordingly, we AFFIRM the judgment of the district

court.