1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-8-1999

USA v. Jacobs

Precedential or Non-Precedential:

Docket 97-5786

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Recommended Citation

"USA v. Jacobs" (1999). 1999 Decisions. Paper 33.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/33
Filed 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 

_________________________________________________________________ 

* Honorable William M. Hoeveler, Senior United States District Judge for 

the Southern District of Florida, sitting by designation. 
 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 conviction 

and sentence requesting that his sentence be vacated and 

remanded to the District Court for re-sentencing on three 

separate grounds. We affirm the District Court's conclusion 

that Jacobs is to pay full restitution to the victim under the 

Mandatory Victims Restitution Act, 18 U.S.C.A. S3663A. We 

also affirm the District Court's application of a six 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 detailed 

explanation in accordance with Third Circuit precedent as 

to the basis of the sentencing court's five-level upward 

departure pursuant to S5K2.3, Extreme Psychological

Injury. 

I. 

Appellant was charged with aggravated assault on his 

former girlfriend, Rebecca West, on federal property in 

violation of 18 U.S.C. S113(a)(3). Jacobs pled guilty to the 

charge on June 17, 1997. 

 2 
The written plea agreement contained the following 

stipulations: (1) the applicable Sentencing Guideline was 

U.S.S.G. S2A2.2, which provides a base offense level of 15; 

(2) a dangerous weapon was used during the assault 

requiring an upward adjustment of 4 points appropriate 

pursuant to U.S.S.G. S2A2.2(b)(2)(B); and (3) since Jacobs 

pled guilty on a timely basis and therefore accepted 

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 offense 

characteristic under S2A2.2, the Court found that the 

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 review of 

treatment and examination records by various mental

health professionals, the Court found that Jacobs had 

inflicted extreme psychological injury upon the victim, and 

thus departed five levels above the adjusted offense level. 

Thus, the total offense level became 27 with a Guidelines 

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 restitution 

wherein Jacobs was ordered to pay the full amount of 

monetary damages suffered by the victim and her health 

insurance carrier in the amount of $27,470.17. Appellant's 

Appendix at 74-123. Jacobs filed this appeal on November 

26, 1997, and on September 18, 1998 this Court heard 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 departing five 

levels and that the Court also erred on the degree of the 

departure due to insufficient findings that Jacobs had 

 3 
inflicted "extreme psychological injury" upon the victim. 

Third, he argues that the Court should not have ordered 

him to pay full restitution pursuant to the Mandatory 

Victims Restitution Act, 18 U.S.C. S3663A. 

The government responds that the court properly 

concluded that a six level enhancement was warranted on 

the basis of findings that Jacobs had indeed inflicted 

permanent bodily injury and life threatening injury, the 

prerequisites for imposing an enhanced penalty under 

S2A2.2(b)(3)(C). The government also argues that there was 

more than enough evidence on record that Jacobs' assault 

had caused the victim extreme psychological injury. Finally, 

the government asserts that the District Court committed 

no error in awarding restitution, as the statute clearly 

mandates full restitution. 

II. 

A. 

The first questions with which this Court is faced are 

Jacobs' contentions that an award of full restitution to the 

victim was not warranted in his case, and his argument 

that the amount of restitution that represented lost wages 

was awarded in error because West had been fully paid by 

her employer for time off from work. There can be little 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 permitted, while 

the amount of the particular award is reviewed for clear 

error, as it rests on the facts of the particular case. 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 Court that 

Jacobs pay full restitution to the victim in the amount of 

$27,470.17. 

On the first point, Jacobs argues that the Mandatory 

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 awarding 

partial restitution instead of the full restitution that was 

 4 
awarded against him.1 Jacobs represented at a restitution 

hearing that this partial restitution argument was one of 

first impression, but the trial court apparently did not 

consider it and awarded full restitution. We find that the 

District Court did not abuse its discretion in determining 

that this case was appropriate for a restitution remedy, 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 opinions on 

the subject by other courts. United States v. Duncan, 1998 

WL 558756 at *1 (4th Cir. 1998); United States v. Juvenile 

G.Z., 144 F.3d 1148 (8th Cir. 1998); United States v. 

Baggett, 125 F.3d 1319, 1322 (9th Cir. 1997); United 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 described in 

subsection (c), the court shall order ... that the defendant 

make restitution to the victim of the offense or, if the victim 

is deceased, to the victim's estate." Jacobs' offense 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 restitution to each 

victim in the full amount of each victim's losses as 

determined by the court and without consideration of 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 deleted 

subsection (a), which had required the sentencing court to 

consider the financial resources and needs of the 

defendant. 

Although Jacobs makes some interesting statutory 

construction arguments, they simply cannot override the 

_________________________________________________________________ 

1. Jacobs' argument, that since S3664(a) requires the 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 MVRA to the contrary. 

 5 
clear and unambiguous mandatory language of the MVRA, 

especially in light of the fact that the recent amendments to 

the MVRA squarely defeat his arguments. Moreover, at least 

four other circuits have also found that the MVRA is a 

mandate requiring full restitution for certain crimes (see 

cases listed above). The Court finds that the District Court 

did not abuse it discretion in awarding full restitution to 

the victim. 

B. 

Jacobs' second argument is that the District Court erred 

in finding that lost "annual leave" and "restored leave" 

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 Court 

accepted evidence that had West not been forced to expend 

annual and restored leave, she would have been entitled to 

a lump-sum cash payment for any unused leave in the

event of resignation or retirement as a federal employee 

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"lost wages" 

as it was occasionally referred to at both hearings on 

restitution is not important to this Court's conclusion that 

the District Court was correct in concluding that such loss 

was a proper component of the restitution award. The 

applicable section of the MVRA is S3663A(b)(2)(C) which 

states in relevant part that "[t]he order of restitution shall 

require that such defendant, in the case of an offense 

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 Court 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

 6 
calculation, 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 pecuniary losses 

for which restitution was ordered, were caused by Jacobs' 

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, establishing the 

number of months the victim was unable to work, the

dollar amount of medical services for the victim, and the 

amount of annual, unpaid, and restored leave that the 

victim lost while recuperating from her injuries. From 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 Jacobs' 

assault upon the victim was the cause of these losses. 

Appellant's Appendix at 88, 108-111. Moreover, the 

government correctly points out that no contrary evidence 

regarding the amounts or the items considered in the 

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 applying a six 

level enhancement pursuant to U.S.S.G. S2A2.2(b)(3)(C), 

which provides for a six level enhancement if a victim 

suffers permanent or life threatening injury from an 

aggravated assault. The standard of review for the District 

Court's interpretation and application of the Guidelines is 

plenary. United States v. Felton, 55 F.3d 861, 864 (3d Cir. 

1995). The victim here clearly suffered bodily injury as a 

result of stab wounds, and thus the application of 

S2A2.2(b)(3) was appropriate. However, we must determine 

whether the District Court made sufficient factualfindings 

to support a specific offense characteristic enhancement of 

six levels, the highest increase available underS2A2.2(b)(3). 

See United States v. Fiorelli, 133 F.3d 218, 220 (3d Cir. 

 7 
1998) (citing with approval District Court's specific findings 

justifying increase). Factual findings in relation to 

sentencing issues are reviewed for clear error. Felton, 55 

F.3d at 864. 

Application Note 1(h) of U.S.S.G. S1B1.1 defines 

"permanent or life-threatening bodily injury" as "injury 

involving a substantial risk of death; loss or substantial 

impairment of the function of a bodily member, organ, or 

mental faculty that is likely to be permanent; or an obvious 

disfigurement that is likely to be permanent." While 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 suffered when 

referring to "permanent bodily injury" and that West's 

injuries were less serious than the District Court 

determined. He also argues that there was insufficient 

evidence to find that the assault involved a "substantial 

risk of death." This is simply not the case. 

After accepting evidence, conducting hearings, and 

hearing argument, the District Court adopted express 

findings (1) that the elevated and prominent scar on 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 all over the 

victim's body, Appellant's Appendix at 68; and (3) that the 

stabbing to the victim's face, mouth, chest, back and 

abdomen involved a substantial risk of death, Appellant's 

Appendix at 23-24.2 Moreover, the District Court also found 

at the later hearing on the restitution issue that Jacobs' 

assault upon the victim had caused an intestinal 

obstruction requiring emergency surgery (a colostomy), in 

accordance with the operating physician's conclusions.3 

_________________________________________________________________ 

2. Jacobs argues that the District Court "specifically decided not to 

consider the medical reports regarding Ms. West" which categorized her 

injuries as "superficial" and "non-penetrating." This 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 refraining from crediting 

Jacobs' speculative efforts, without any expert support, to present other 

possible causes for the intestinal obstruction. 

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

the definition of "permanent or life-threatening bodily 

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 injury or 

life-threatening injury would have sufficed to bring Jacobs' 

conduct within the guidelines section. The district judge 

thus found that the facts supported both alternatives for 

applicability of the section, when facts supporting either 

one would have been adequate. The fact that there are 

cases that have found other, arguably more severe, injuries 

as permanent or life threatening bodily injuries under 

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 sufficiently 

and adequately stated a factual basis for the finding of 

permanent or life-threatening injury justifying a six level 

enhancement. There was no clear error that would justify 

disturbing the sentencing court's conclusions. 

IV. 

The final issue Jacobs argues on appeal is that the

District Court improperly departed five levels pursuant to 

U.S.S.G. S5K2.3, based on a finding that Jacobs inflicted 

"extreme psychological injury" upon the victim.4 We review 

_________________________________________________________________ 

4. Section 5K2.3, "Extreme Psychological Injury (Policy Statement)" states 

in relevant part that: 

 If a victim or victims suffered psychological injury much more 

 serious than that normally resulting from commission of the 

offense, 

 the court may increase the sentence above the 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 sufficiently 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 

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

abuse of discretion. United States v. Baird, 109 F.3d 856, 

862 (3d Cir. 1997).5 We find that the sentencing judge did 

not make the specific factual findings required for an 

appropriate departure based on "extreme psychological 

injury" resulting to the victim from Jacobs' assault. We also 

find Jacobs' argument that the district judge should have 

specifically articulated the reasons for the degree of the 

departure convincing. Under this Circuit's precedent of 

United States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990), 

we must conclude that the district judge did not engage 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 these two 

separate but related grounds and remand for re-sentencing 

in accordance with the discussion of Third Circuit 

precedent below. 

As we stated in Baird, S5K2.0, Grounds for Departure, 

provides a roadmap for a decision to depart from the 

applicable Guidelines range. Baird, 109 F.3d at 870-71. A 

court may depart from the range if it finds "that there exists 

an aggravating or mitigating circumstance of a kind, or to 

a degree, not adequately taken into consideration by 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. Koon, 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 victim. 

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

_________________________________________________________________ 

 to be of an extended or continuous duration, and when the 

 impairment manifests itself by physical or psychological symptoms 

 or by changes in behavior patterns. The court 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 evidence. Baird, 109 F.3d 

at 865 n.8 (five-level departure is not extreme enough to require proof by 

the clear and convincing standard). 

 10 
Section 5K2.3 is entitled "Extreme Psychological Injury." 

It provides the following authority: 

 If a victim or victims suffered psychological injury 

 much more serious than that normally resulting from 

 commission of the offense, the court may increase the 

 sentence above the authorized guideline range. 

Thus, a court invoking the authority of S5K2.3 must find 

that a victim suffered psychological injury "much more 

serious than that normally resulting from the commission 

of the [particular] offense" for which the defendant is being 

sentenced. United States v. Neadle, 72 F.3d 1104, 1111-12 

(3d Cir. 1996) (the record must support a finding that "the 

victims suffered psychological . . . harm, which exceeded 

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 evidence 

supports the District Court's findings that [the defendant's] 

victims suffered much more psychological injury than that 

normally resulting from the commission of a wire fraud 

offense."). See also, United States v. Zamarripa, 905 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 States v. 

Luscier, 983 F.2d 1507, 1513 (9th Cir. 1993) (evidence did 

not support departure in light of expert's testimony that the 

victim suffered a normal psychological reaction to 

attempted stabbing, and to the fatal stabbing of the victim's 

aunt); United States v. Fawbush, 946 F.2d 584, 586 (8th 

Cir. 1991) (despite the Presentence Report's assertion of 

greater than normal psychological harm to a sexual abuse 

victim of tender age, the evidence did not show that"either 

victim suffered psychological harm greater than that 

normally resulting from sexual abuse"); and United States 

v. Bond, 22 F.3d 662, 671-72 (6th Cir. 1994) (upward 

departure unwarranted because the bank tellers' anxiety 

after robbery was not sufficiently unusual). 

The District Court in this case found that the victim was 

suffering from "posttraumatic stress disorder, from mood 

disorders, from depression, anxiety, sleeplessness." 

Appellant's Appendix at 57-8. It further concluded that her 

 11 
condition constituted "a substantial impairment of her 

psychological emotional function," that this"impairment 

will be of an extended and continuous duration," and that 

this "impairment manifests itself by physical or 

psychological symptoms or changes in behavioral pattern" 

(i.e., anxiety, depression, sleeplessness). Appellant's 

Appendix at 58. The District Court did not , however, find 

that the victim's psychological injury was "much more 

serious than that normally resulting from the commission" 

of the crime of aggravated assault. Nor is such afinding 

compelled by the current record.6 Such a finding is a 

prerequisite for a departure under SK2.3. 

Apparently, the District Court focused its attention on 

the following portion of S5K2.3 that explains the types of 

situations in which the authority provided in the initial, 

above-quoted sentence of S5K2.3 may be found to exist: 

 Normally, psychological injury would be sufficiently 

 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 

 to be of an extended or continuous duration, and when 

 the impairment manifests itself by physical or 

 psychological symptoms or by changes in behavior 

 patterns. 

The District Court may have viewed this sentence as

providing a definition of, and thus a substitute for, the 

requirement that there be "psychological injury much more 

serious than that normally resulting from commission of 

the offense." This view is inconsistent with the text. It is 

apparent from the phrase "only when" that this explanatory 

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 

_________________________________________________________________ 

6. The District Court stated that it found "nothing ordinary about this 

particular assault" and that the "psychological injury suffered is 

extreme." Appellant's Appendix at 59. However, these statements alone 

do not allow for the conclusion that the harm suffered is above the level 

of, or more serious than that normally experienced by a victim of an 

aggravated assault. 

 12 
continuous duration, and a manifestation of symptoms 

before the court should consider applying S5K2.3. 

Conversely, the "only when" of this explanatory sentence 

also implies that there will be cases in which these three 

factors will be present and the court will nonetheless 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 heartland of 

injuries from the same offense, the findings of the

sentencing court do not support its upward departure. 

In addition, we must be satisfied that the extent of the 

departure was reasonable, judged against the objective 

standards of the Guidelines themselves. Kikumura, 918 

F.2d at 1110; Baird, 109 F.3d at 872. Having first 

determined the appropriateness of a S5K2.3 departure by 

engaging in the required factual analysis, the Guidelines 

must then be examined to determine the extent of the 

departure. The District Court must undertake the"analogic 

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 counterpart in 

the Guidelines. United States v. Lieberman, 971 F.2d 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 Guideline." 

United States v. Bierley, 922 F.2d 1061, 1069 (3d Cir. 1990).7 

We note however, that analogies to the Guidelines, as 

opposed to applications of the Guidelines, are "necessarily 

more open-textured." Kikumura, 918 F.2d at 1113. 

The District Court on remand may find helpful guidance 

in S2.2A2(b) of the aggravated assault guideline. That 

section provides in part: 

 (b) Specific Offense Characteristics 

 *** 

_________________________________________________________________ 

7. We note our statement in Kikumura that the development of vehicles 

by the district courts other than analogy to a Guidelines section is not 

foreclosed. Kikumura, 918 F.2d at 1113. 

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

 levels; (B) if a dangerous weapon (including a 

 firearm) was otherwise used, increase by 4 levels; 

 (C) if a dangerous weapon (including a firearm) 

 was brandished or its use was threatened, 

 increase by 3 levels. 

 (3) If the victim sustained bodily injury, increase the 

 offense level according to the seriousness 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 levels; or 

 (E) If the degree of injury is between that specified 

 in subdivision (B) and (C), add 5 levels. 

 Provided, however, that the cumulative adjustments 

 from (2) and (3) shall not exceed 9 levels.8

Under S1B1.1(j), "serious bodily injury" includes the 

"protracted impairment of . . . [a] mental faculty." Under 

S1B1.1(h), "permanent or life-threatening bodily injury" 

includes a "substantial impairment of [a] mental faculty 

that is likely to be permanent." These definitions do not, as 

Jacobs argues, mean that in an aggravated assault context, 

S2A2.2(b) takes into account all of the extraordinary 

_________________________________________________________________ 

8. While the discussion above relates to the analogic reasoning required 

for a finding of extreme psychological injury and because this cause is 

being remanded for findings consistent with our views, we note in 

passing an apparent problem that exists with the sentence imposed 

pursuant to the aggravated assault guideline. The district 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 physical injury to the 

victim. This would appear to be inconsistent with the nine level cap 

imposed in the concluding sentence of (b)(3). No one raised this issue on 

appeal, but in view of the remand, we felt this observation was 

appropriate. 

 14 
psychological injuries covered by S5K2.3.9 They may, 

however, provide a basis for inferring that the guidelines in 

an aggravated assault situation treat physical and nonphysical injuries to a victim as being of substantially 

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 levels or 

more under S5K2.3 without finding that the extreme 

psychological injury was likely to be protracted. Conversely, 

one may conclude that it would be consistent with the 

approach of the Guidelines to depart upwards four levels 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 benefit of 

oral argument, we vacate the sentence to the extent

described above. The matter shall be remanded to the 

District Court for re-sentencing in accordance with the 

discussion of Third Circuit precedent referred to herein. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

9. Even if it did, there would be no double counting 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