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. e du/thir dc ir c uit_1999/33Filed February 8, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 97-5786

UNITED STATES OF AMERICA

v.

FLOYD JACOBS,

Appellant

On Appeal From the United States District Court For the District of New Jersey (D.C. Crim. Action No. 97-cr-00343) District Judge: Honorable Joseph A. Greenaway, Jr.

Argued September 18, 1998

BEFORE: STAPLETON and ROTH, Circuit Judges, and HOEVELER,* Senior District Judge

(Opinion Filed February 8, 1999)

Lorraine Gauli-Rufo (Argued)
Assistant Federal Public Defender
Office of Federal Public Defender

972 Broad Street Newark, NJ 07102

Attorney for Appellant

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* Honorable William M. Hoeveler, Senior United Stat es District Judge for the Southern District of Florida, sitting by design ation.Faith S. Hochberg

United States Attorney George S. Leone (Argued) Assistant United States Attorney

970 Broad Street Newark, NJ 07102

Norman J. Gross Assistant United States Attorney 4th and Cooper Streets
Mitchell H. Cohen Courthouse One John F. Gerry Plaza Camden, NJ 08101

Attorneys for Appellee

OPINION OF THE COURT

HOEVELER, Senior District Judge:

Floyd Jacobs appeals from a final judgment of convi ction and sentence requesting that his sentence be vacate d and remanded to the District Court for re-sentencing on three separate grounds. We affirm the District Court's co nclusion that Jacobs is to pay full restitution to the victi m under the Mandatory Victims Restitution Act, 18 U.S.C.A. S366 3A. We also affirm the District Court's application of a s ix level enhancement pursuant to U.S.S.G. S2A2.2(b)(3)(C), Infliction of Permanent or Life-Threatening Bodily Injury.

We vacate Jacobs' sentence and remand for a more de tailed explanation in accordance with Third Circuit preced ent as to the basis of the sentencing court's five-level u pward departure pursuant to S5K2.3, Extreme Psychological Injury.

I.

Appellant was charged with aggravated assault on hi s former girlfriend, Rebecca West, on federal propert y in violation of 18 U.S.C. S113(a)(3). Jacobs pled guil ty to the charge on June 17, 1997.

2The written plea agreement contained the following

stipulations: (1) the applicable Sentencing Guideli ne was U.S.S.G. S2A2.2, which provides a base offense leve l of 15; (2) a dangerous weapon was used during the assault requiring an upward adjustment of 4 points appropri ate pursuant to U.S.S.G. S2A2.2(b)(2)(B); and (3) since Jacobs pled guilty on a timely basis and therefore accepte d responsibility for his crime, he was entitled to a downward adjustment of 3 points, pursuant to U.S.S.G. S3E1.1 (a) and (b)(2). After an evidentiary hearing on the degree of injury Jacobs inflicted upon the victim for the specific o ffense characteristic under S2A2.2, the Court found that t he victim had sustained "permanent or life-threatening bodily injury" and applied the six level upward adjustment under U.S.S.G. S2A2.2(b)(3)(C). Therefore, based upon an Offense Level of 22 and a Criminal History Category of II, the Guidelines range was 46-57 months. The Court then informed the parties before the sentencing that it would entertain a motion for an upward departure pursuant to U.S.S.G. S5K2.3 regarding infliction of "extreme psychological injury" upon the victim. After a revi ew of treatment and examination records by various mental health professionals, the Court found that Jacobs h ad inflicted extreme psychological injury upon the vic tim, and thus departed five levels above the adjusted offens e level. Thus, the total offense level became 27 with a Guid elines range of 78-97 months. Jacobs was sentenced to a 96 month term of imprisonment. Appellant's Appendix at 57- 69. An evidentiary hearing was held regarding resti tution wherein Jacobs was ordered to pay the full amount o f monetary damages suffered by the victim and her hea lth insurance carrier in the amount of $27,470.17. Appe llant's Appendix at 74-123. Jacobs filed this appeal on Nov ember 26, 1997, and on September 18, 1998 this Court hear d oral argument.

In his appeal, Jacobs makes three arguments. First, he contends that the District Court erred in imposing a six level enhancement pursuant to U.S.S.G. S2A2.2(b)(3) (C), infliction of permanent or life-threatening injury. Second, he asserts that the Court erred in upwardly departi ng five levels and that the Court also erred on the degree of the departure due to insufficient findings that Jacobs had

3inflicted "extreme psychological injury" upon the v ictim.

Third, he argues that the Court should not have ord ered him to pay full restitution pursuant to the Mandato ry Victims Restitution Act, 18 U.S.C. S3663A.

The government responds that the court properly
concluded that a six level enhancement was warrante d on the basis of findings that Jacobs had indeed inflic ted permanent bodily injury and life threatening injury , the prerequisites for imposing an enhanced penalty unde r S2A2.2(b)(3)(C). The government also argues that th ere was more than enough evidence on record that Jacobs' as sault had caused the victim extreme psychological injury. Finally, the government asserts that the District Court comm itted no error in awarding restitution, as the statute cl early
mandates full restitution.

II.

A.

The first questions with which this Court is faced are Jacobs' contentions that an award of full restituti on to the victim was not warranted in his case, and his argum ent that the amount of restitution that represented los t wages was awarded in error because West had been fully pa id by her employer for time off from work. There can be l ittle said about these arguments since the statute at issue is clear and straightforward. Plenary review is the standard for the determination that the restitution award is permitt ed, while the amount of the particular award is reviewed for clear error, as it rests on the facts of the particular c ase. United States v. Hunter, 52 F.3d 489, 493 (3d Cir. 1995). Upon
consideration of the record and with the benefit of oral argument, we affirm the judgment of the District Co urt that Jacobs pay full restitution to the victim in the am ount of $27,470.17.

On the first point, Jacobs argues that the Mandator y Victims Restitution Act, 18 U.S.C.A. S3663A (MVRA), is susceptible to an interpretation which would have permitted the trial court in his case to consider a warding partial restitution instead of the full restitution that was

4awarded against him.1 Jacobs represented at a resti tution

hearing that this partial restitution argument was one of first impression, but the trial court apparently di d not
consider it and awarded full restitution. We find t hat the
District Court did not abuse its discretion in dete rmining that this case was appropriate for a restitution re medy, and also correctly interpreted the statute as mandating full restitution, an interpretation that is in line with the plain language of the statute and also with several opini ons on the subject by other courts. United States v. Dunca n, 1998 WL 558756 at *1 (4th Cir. 1998); United States v. J uvenile G.Z., 144 F.3d 1148 (8th Cir. 1998); United States v. Baggett, 125 F.3d 1319, 1322 (9th Cir. 1997); Unite d States v. Siegel, 153 F.3d 1256, 1260 (11th Cir. 1998).

Section 3663A(a)(1) states in relevant part, "[n]otwithstanding any other provision of law, when sentencing a defendant convicted of an offense desc ribed in subsection (c), the court shall order ... that the defendant make restitution to the victim of the offense or, i f the victim is deceased, to the victim's estate." Jacobs' offen se clearly falls within subsection (c)(1)(B); an identifiable victim or victims has suffered a physical injury or pecuniary loss. Most importantly, companion S3664 -- Procedure for
issuance and enforcement of order of restitution-- clearly mandates full restitution in subsection (f)(1)(A):" [i]n each order of restitution, the court shall order restitu tion to each
victim in the full amount of each victim's losses a s determined by the court and without consideration o f the economic circumstances of the defendant." Emphasis added.
These two sections were 1996 amendments to the MVRA and most telling, subsection (f)(1)(A) replaced del eted subsection (a), which had required the sentencing c ourt to
consider the financial resources and needs of the

defendant.

Although Jacobs makes some interesting statutory construction arguments, they simply cannot override the

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1. Jacobs' argument, that since S3664(a) requires t he defendant to provide the probation department with an affidavit identifying his
resources his financial circumstances must be taken into consideration, is without merit given the clear language in the MV RA to the contrary.

5clear and unambiguous mandatory language of the MVR A,

especially in light of the fact that the recent ame ndments to the MVRA squarely defeat his arguments. Moreover, a t least
four other circuits have also found that the MVRA i s a mandate requiring full restitution for certain crim es (see cases listed above). The Court finds that the Distr ict Court did not abuse it discretion in awarding full restit ution to
the victim.

B.

Jacobs' second argument is that the District Court erred in finding that lost "annual leave" and "restored l eave" which West had to expend when her sick leave was exhausted were "lost wages" under the MVRA. This argument is based on the fact that West was paid by her employer during her leave. However, the District Co urt accepted evidence that had West not been forced to expend annual and restored leave, she would have been enti tled to a lump-sum cash payment for any unused leave in the event of resignation or retirement as a federal emp loyee pursuant to 5 U.S.C. S5551.

Whether or not the economic loss occasioned by the loss of annual and restored leave is properly termed"los t wages" as it was occasionally referred to at both hearings on restitution is not important to this Court's conclu sion that the District Court was correct in concluding that s uch loss was a proper component of the restitution award. Th e applicable section of the MVRA is S3663A(b)(2)(C) w hich states in relevant part that "[t]he order of restit ution shall require that such defendant, in the case of an offe nse resulting in bodily injury to the victim, reimburse the victim for income lost by such victim as a result of such offense."
Since the District Court concluded that West would have been entitled to a lump sum payment had she not had to use her annual and restored leave, the District Cou rt made sufficient findings that the income in the form of a future lump sum payment to be made was lost as a result of

Jacobs' offense.

Finally, Jacobs argues that even if the annual and restored leave are properly part of the restitution

6calculation, the dollar value per day of this leave

attributable to his crime was not proven by a preponderance of the evidence. We will not disturb the District Court's findings that the dollar value of these two types of leave, along with all other types of pecun iary losses for which restitution was ordered, were caused by J acobs'
assault. The District Court had before it numerous records from treating physicians, the victim's insurer, the victim's employer, and the Department of the Army, establish ing the number of months the victim was unable to work, the dollar amount of medical services for the victim, a nd the amount of annual, unpaid, and restored leave that t he victim lost while recuperating from her injuries. F rom this evidence, the District Court made findings that the

amounts were accurate and found as a fact that the government had sustained its burden under the MVRA of proving by a preponderance of the evidence that Jac obs' assault upon the victim was the cause of these loss es. Appellant's Appendix at 88, 108-111. Moreover, the government correctly points out that no contrary ev idence regarding the amounts or the items considered in th e restitution calculation was presented. The District Court's
conclusions as to amount and causation of loss were a proper exercise of discretion.

III.

The second question we must address is Jacobs' contention that the sentencing court erred in apply ing a six level enhancement pursuant to U.S.S.G. S2A2.2(b)(3) (C), which provides for a six level enhancement if a vic tim suffers permanent or life threatening injury from a n aggravated assault. The standard of review for the District Court's interpretation and application of the Guide lines is plenary. United States v. Felton, 55 F.3d 861, 864 (3d Cir. 1995). The victim here clearly suffered bodily inju ry as a result of stab wounds, and thus the application of S2A2.2(b)(3) was appropriate. However, we must dete rmine
whether the District Court made sufficient factualf indings to support a specific offense characteristic enhanc ement of six levels, the highest increase available underS2A 2.2(b)(3). See United States v. Fiorelli, 133 F.3d 218, 220 (3 d Cir.

71998) (citing with approval District Court's specif ic findings

justifying increase). Factual findings in relation to sentencing issues are reviewed for clear error. Fel ton, 55

F.3d at 864.

Application Note 1(h) of U.S.S.G. S1B1.1 defines "permanent or life-threatening bodily injury" as "i njury involving a substantial risk of death; loss or subs tantial impairment of the function of a bodily member, orga n, or mental faculty that is likely to be permanent; or a n obvious disfigurement that is likely to be permanent." Whil e Jacobs in fact admits that some increase for bodily injury was warranted in this case, he asserts that S2A2.2(b)(C )(3) contemplates more serious injures than West suffere d when referring to "permanent bodily injury" and that Wes t's injuries were less serious than the District Court determined. He also argues that there was insuffici ent
evidence to find that the assault involved a "subst antial risk of death." This is simply not the case.

After accepting evidence, conducting hearings, and hearing argument, the District Court adopted expres s findings (1) that the elevated and prominent scar o n the victim's face was an obvious disfigurement that is likely to be permanent, Appellant's Appendix at 23; (2) that Jacobs had inflicted injuries that left permanent scars al l over the victim's body, Appellant's Appendix at 68; and (3) that the stabbing to the victim's face, mouth, chest, back a nd abdomen involved a substantial risk of death, Appel lant's Appendix at 23-24.2 Moreover, the District Court al so found at the later hearing on the restitution issue that Jacobs' assault upon the victim had caused an intestinal obstruction requiring emergency surgery (a colostom y), in accordance with the operating physician's conclusio ns.3

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2. Jacobs argues that the District Court "specifica lly decided not to consider the medical reports regarding Ms. West" wh ich categorized her injuries as "superficial" and "non-penetrating." Th is Court finds that the record does not support this allegation, and in any event, the point is meritless since the sentencing court made findings of fact for the six level increase on two separate grounds, i.e., that the injuries were permanent and life-threatening.

3. The sentencing court did not commit error in ref raining from crediting Jacobs' speculative efforts, without any expert sup port, to present other possible causes for the intestinal obstruction.

8Appellant's Appendix at 77-81. These findings compo rt with

the definition of "permanent or life-threatening bo dily injury" found in Application Note 1(h) of U.S.S.G. S1B1.1. Moreover, since S2A2.2(b)(3)(C) is phrased in the disjunctive, a finding of either permanent bodily i njury or life-threatening injury would have sufficed to brin g Jacobs' conduct within the guidelines section. The district judge thus found that the facts supported both alternativ es for applicability of the section, when facts supporting either one would have been adequate. The fact that there a re cases that have found other, arguably more severe, injuries as permanent or life threatening bodily injuries un der S2A2.2(b)(3)(C) is of no moment given the District Court's findings in this case and this Court's independent review of

the record.

Having already concluded that application of S2A2.2 (b)(3) was appropriate, we find that the District Court su fficiently and adequately stated a factual basis for the findi ng of permanent or life-threatening injury justifying a s ix level enhancement. There was no clear error that would ju stify disturbing the sentencing court's conclusions.

IV.

The final issue Jacobs argues on appeal is that the District Court improperly departed five levels purs uant to U.S.S.G. S5K2.3, based on a finding that Jacobs inf licted "extreme psychological injury" upon the victim.4 We review

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4. Section 5K2.3, "Extreme Psychological Injury (Po licy Statement)" states in relevant part that:

If a victim or victims suffered psychologica l injury much more serious than that normally resulting from co mmission of the offense, the court may increase the sentence above th e authorized guideline range. The extent of the increase ordinarily should depend on the severity of the psychological injury and the extent to which the injury was intended or knowingly risked.

Normally, psychological injury would be suff iciently severe to warrant application of this adjustment only when there is a substantial impairment of the intellectual, psychological, emotional, or behavioral functioning of a victim, when the impairment is likely

9a District Court's decision to depart from the guid elines for

abuse of discretion. United States v. Baird, 109 F. 3d 856, 862 (3d Cir. 1997).5 We find that the sentencing ju dge did not make the specific factual findings required for an appropriate departure based on "extreme psychologic al injury" resulting to the victim from Jacobs' assaul t. We also find Jacobs' argument that the district judge shoul d have specifically articulated the reasons for the degree of the departure convincing. Under this Circuit's preceden t of United States v. Kikumura, 918 F.2d 1084 (3d Cir. 1 990), we must conclude that the district judge did not en gage in the analogic reasoning that is required in arriving at a five level departure, as opposed to some other numerical level of departure. We therefore vacate the sentence on thes e two separate but related grounds and remand for re-sent encing
in accordance with the discussion of Third Circuit precedent below.

As we stated in Baird, S5K2.0, Grounds for Departur e, provides a roadmap for a decision to depart from th e applicable Guidelines range. Baird, 109 F.3d at 870 -71. A court may depart from the range if it finds "that t here exists an aggravating or mitigating circumstance of a kind , or to a degree, not adequately taken into consideration b y the Sentencing Commission in formulating the guidelines ." 18 U.S.C. S3553(b); 1997 U.S.S.G. S5K2.0. "Sentencing courts are not left adrift, however." United States v. Koo n, 518 U.S. 81, 94 (1996). Factors that are encouraged as bases for departures are found in SS 5K2.1-5K2.18. One such encouraged factor is an upward departure based on a finding of "extreme psychological injury" to the vi ctim.

U.S.S.G. S5K2.3.

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to be of an extended or continuous duration, and when the impairment manifests itself by physical or p sychological symptoms or by changes in behavior patterns. The cour t should consider the extent to which such harm was likely, given the nature of the

defendant's conduct.

5. We note that facts relevant to the departure in this case generally need be proven only by a preponderance of the evide nce. Baird, 109 F.3d at 865 n.8 (five-level departure is not extreme eno ugh to require proof by the clear and convincing standard).

10Section 5K2.3 is entitled "Extreme Psychological In jury."

It provides the following authority:

If a victim or victims suffered psychologica l injury much more serious than that normally resulti ng from commission of the offense, the court may inc rease the sentence above the authorized guideline rang e.

Thus, a court invoking the authority of S5K2.3 must find that a victim suffered psychological injury "much m ore serious than that normally resulting from the commi ssion of the [particular] offense" for which the defendan t is being sentenced. United States v. Neadle, 72 F.3d 1104, 1 111-12 (3d Cir. 1996) (the record must support a finding t hat "the victims suffered psychological . . . harm, which ex ceeded that occurring in the heartland of fraud offenses, to such a degree as to justify an upward departure."); United States v. Astorri, 923 F.2d 1052, 1059 (3d Cir. 1991) ("The e vidence supports the District Court's findings that [the de fendant's] victims suffered much more psychological injury tha n that normally resulting from the commission of a wire fr aud offense."). See also, United States v. Zamarripa, 9 05 F.2d 337, 340 (10th Cir. 1990) (holding that the record did not support departure because the state's therapist was unable to say that the eight-year-old sexual abuse victim suffered greater than normal psychological harm); United Sta tes v. Luscier, 983 F.2d 1507, 1513 (9th Cir. 1993) (evide nce did not support departure in light of expert's testimon y that the victim suffered a normal psychological reaction to attempted stabbing, and to the fatal stabbing of th e victim's aunt); United States v. Fawbush, 946 F.2d 584, 586 (8th Cir. 1991) (despite the Presentence Report's assert ion of greater than normal psychological harm to a sexual abuse victim of tender age, the evidence did not show tha t"either victim suffered psychological harm greater than tha t normally resulting from sexual abuse"); and United States v. Bond, 22 F.3d 662, 671-72 (6th Cir. 1994) (upwar d departure unwarranted because the bank tellers' anx iety after robbery was not sufficiently unusual).

The District Court in this case found that the vict im was suffering from "posttraumatic stress disorder, from mood disorders, from depression, anxiety, sleeplessness. " Appellant's Appendix at 57-8. It further concluded that her

11condition constituted "a substantial impairment of her

psychological emotional function," that this"impair ment will be of an extended and continuous duration," an d that this "impairment manifests itself by physical or psychological symptoms or changes in behavioral pat tern" (i.e., anxiety, depression, sleeplessness). Appella nt's Appendix at 58. The District Court did not , howeve r, find that the victim's psychological injury was "much mo re serious than that normally resulting from the commi ssion" of the crime of aggravated assault. Nor is such afi nding compelled by the current record.6 Such a finding is a prerequisite for a departure under SK2.3.

Apparently, the District Court focused its attentio n on the following portion of S5K2.3 that explains the t ypes of situations in which the authority provided in the i nitial, above-quoted sentence of S5K2.3 may be found to exi st:

Normally, psychological injury would be suff iciently severe to warrant application of this adjust ment only when there is a substantial impairment of th e intellectual, psychological, emotional, or b ehavioral functioning of a victim, when the impairment is likely to be of an extended or continuous duration, and when the impairment manifests itself by physical or psychological symptoms or by changes in beha vior
patterns.

The District Court may have viewed this sentence as providing a definition of, and thus a substitute fo r, the requirement that there be "psychological injury muc h more serious than that normally resulting from commissio n of
the offense." This view is inconsistent with the te xt. It is apparent from the phrase "only when" that this expl anatory sentence is intended to provide a presumptive floor for the operation of S5K2.3. The situation normally should at least involve a substantial impairment, an extended or

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6. The District Court stated that it found "nothing ordinary about this particular assault" and that the "psychological inj ury suffered is extreme." Appellant's Appendix at 59. However, thes e statements alone
do not allow for the conclusion that the harm suffe red is above the level of, or more serious than that normally experienced by a victim of an aggravated assault.

12continuous duration, and a manifestation of symptom s

before the court should consider applying S5K2.3. Conversely, the "only when" of this explanatory sen tence also implies that there will be cases in which thes e three factors will be present and the court will nonethel ess be unable to find that the psychological injuries are" much more serious than those normally resulting from the commission of the offense." Because the explanatory sentence relied upon by the District Court is not a surrogate for a finding of injury beyond the heartl and of injuries from the same offense, the findings of the sentencing court do not support its upward departur e.

In addition, we must be satisfied that the extent o f the departure was reasonable, judged against the object ive standards of the Guidelines themselves. Kikumura, 9 18 F.2d at 1110; Baird, 109 F.3d at 872. Having first determined the appropriateness of a S5K2.3 departur e by engaging in the required factual analysis, the Guid elines
must then be examined to determine the extent of th e departure. The District Court must undertake the"an alogic reasoning" that Kikumura often requires. Baird, 109 F.3d at 872. This analogic reasoning consists of fixing the extent of the departure by reference to an applicable counter part in the Guidelines. United States v. Lieberman, 971 F.2 d 989, 999 (3d Cir. 1992). When departure by analogy is appropriate, the District Court should "ordinarily do so only to the extent of the most nearly analogous Guidelin e." United States v. Bierley, 922 F.2d 1061, 1069 (3d C ir. 1990).7 We note however, that analogies to the Guidelines, as opposed to applications of the Guidelines, are "nec essarily more open-textured." Kikumura, 918 F.2d at 1113.

The District Court on remand may find helpful guida nce in S2.2A2(b) of the aggravated assault guideline. T hat section provides in part:

(b) Specific Offense Characteristics

***

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7. We note our statement in Kikumura that the devel opment of vehicles by the district courts other than analogy to a Guid elines section is not foreclosed. Kikumura, 918 F.2d at 1113.

13(2) (A) If a firearm was discharged, increas e by 5

levels; (B) if a dangerous weapon (inclu ding a firearm) was otherwise used, increase by 4 levels; (C) if a dangerous weapon (including a f irearm)
was brandished or its use was threatened
, increase by 3 levels.

(3) If the victim sustained bodily injury, i ncrease the offense level according to the seriousne ss of the injury:

Degree of Bodily Injury Increase in Level

(A) Bodily Injury add 2 (B) Serious Bodily Injury add 4 (C) Permanent or Life-threatening Bodily Injury add 6

(D) If the degree of injury is between that specified in subdivisions (A) and (B), add 3 level s; or

(E) If the degree of injury is between that specified in subdivision (B) and (C), add 5 levels

.

Provided, however, that the cumulative adjus tments from (2) and (3) shall not exceed 9 levels.8

Under S1B1.1(j), "serious bodily injury" includes t he "protracted impairment of . . . [a] mental faculty. " Under S1B1.1(h), "permanent or life-threatening bodily in jury" includes a "substantial impairment of [a] mental fa culty that is likely to be permanent." These definitions do not, as Jacobs argues, mean that in an aggravated assault c ontext, S2A2.2(b) takes into account all of the extraordina ry

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8. While the discussion above relates to the analog ic reasoning required for a finding of extreme psychological injury and b ecause this cause is being remanded for findings consistent with our vie ws, we note in passing an apparent problem that exists with the se ntence imposed pursuant to the aggravated assault guideline. The d istrict court imposed a four level enhancement under (b)(2) based on the use of a knife and a six level enhancement under (b)(3) based on the phy sical injury to the victim. This would appear to be inconsistent with t he nine level cap imposed in the concluding sentence of (b)(3). No on e raised this issue on appeal, but in view of the remand, we felt this obs ervation was appropriate.

14psychological injuries covered by S5K2.3.9 They may
,

however, provide a basis for inferring that the gui delines in an aggravated assault situation treat physical and nonphysical injuries to a victim as being of substanti ally
similar seriousness. If one draws such an inference , one may further conclude that it would be inconsistent with the approach of the Guidelines to depart upward four le vels or more under S5K2.3 without finding that the extreme psychological injury was likely to be protracted. C onversely, one may conclude that it would be consistent with t he approach of the Guidelines to depart upwards four l evels if there is "extreme psychological injury," as defined in S5K2.3, that can be expected to be "protracted" but not "permanent."

While we share these observations about a possible application of Kikumura in the context of this case , we would not, of course, confine the District Court to this approach.

V.

Upon consideration of the record and with the benef it of oral argument, we vacate the sentence to the extent
described above. The matter shall be remanded to th e District Court for re-sentencing in accordance with the discussion of Third Circuit precedent referred to h erein.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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9. Even if it did, there would be no double countin g here as Jacobs suggests, because the six level enhancement invoked by the District Court under S2A2.2(b)(3)(C) was based solely on the physical injuries of
the victim.

15