1The Honorable Howard F. Sachs, United States District Judge

for the Western District of Missouri, sitting by designation.

 

2The Honorable E. Richard Webber, United States District Judge

for the Eastern District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-3851

___________

United States of America, *

*

 Plaintiff-Appellee, *

* Appeal from the United States

* District Court for the 

v. * Eastern District of Missouri.

*

Michael J. Sickinger, *

*

*

 Defendant-Appellant. *

___________

 Submitted: March 9, 1999

 Filed: June 14, 1999

___________

Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges and

SACHS,1 District Judge.

___________

SACHS, District Judge.

Michael J. Sickinger was charged with and found guilty of

kidnapping in violation of 18 U.S.C. § 1201(a) and of interstate

domestic violence in violation of 18 U.S.C. § 2261(a). The

district court2 sentenced Sickinger to 78 months in prison on each
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count, to run concurrently. Sickinger appeals, claiming a

violation of the Fifth Amendment double jeopardy clause and two

errors in applying the United States Sentencing Guidelines

("U.S.S.G."). We reject several of these contentions, but because

we find one sentencing error we vacate the judgment and remand for

resentencing.

I.

On January 24, 1998, Judith Walker, Sickinger's girlfriend at

the time, and her friend, Tammy Wilson, were cleaning a business in

Clayton, Missouri. Sickinger arrived at the business shortly

before noon and confronted Wilson and Walker through a window at

the business. Shortly thereafter Sickinger gained access to the

building, seized Walker by the hair, punched her in the stomach and

pushed her into a bathroom. Wilson screamed at Sickinger to stop

and threatened to call 911. Sickinger turned and called out

"Bitch, I'll kill you if you call 911." Sickinger then seized

Wilson's hair, threw her to the ground and kicked her in the face

twice, shattering bones in her eye socket and breaking her nose and

sinuses.

Sickinger then started choking Walker and dragged her by the

hair to his Corvette. Once in the Corvette, Sickinger hit Walker

in the nose and told her to keep her head down. When she raised

her head, Sickinger struck her in the face and back of her head.

When she tried to get out of the car, he used his hand and the

power locks to keep the door shut.

After crossing into Illinois Sickinger stopped for shopping at

a convenience store and a fast food drive-through. Walker later

stated that she did not attempt to run because she had nowhere to

go and was afraid of being beaten by Sickinger. Sickinger warned

Walker not to attempt to run. They rented a hotel room and

Sickinger placed two chairs in front of the door. Sickinger did
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not at that time threaten or physically restrain Walker. Walker

did not attempt to escape because she "lost so much blood . . .

[and] I'm not going to get hit no more."

The next morning, Sickinger drove Walker to a gasoline station

where she entered alone and purchased a drink and sunglasses to

hide her black eyes. She made no attempt to escape or to alert

authorities. That afternoon, Sickinger and Walker were stopped by

an Illinois police officer and Sickinger was arrested. 

II.

A. Double Jeopardy.

Sickinger argues that conviction and sentencing on both

interstate domestic violence and kidnapping constitutes double

jeopardy in violation of the Fifth Amendment. Sickinger failed to

raise this argument in the district court and thus it has not been

preserved. United States v. Santana, 150 F.3d 860, 863-64 (8th

Cir. 1998); United States v. Garrett, 961 F.2d 743, 748 (8th Cir.

1992). We will, however, review the contention for plain error.

United States v. Uder, 98 F.3d 1039, 1045 (8th Cir. 1996); United

States v. Merritt, 982 F.2d 305, 306-07 (8th Cir.1992). Under the

Court's plain error review we must affirm unless (1) the district

court erred; (2) the error was plain under current law, i.e., clear

and obvious; and (3) the error was prejudicial. United States v.

Jackson, 155 F.3d 942, 947-48 (8th Cir.), cert. denied, 119 S.Ct.

627 (1998).

Under this standard, we cannot find that plain error has been

committed by the district court. The only cases examining the

contention raised by Sickinger, that interstate domestic violence

is simply a more specific type of kidnapping, have rejected the

argument. See United States v. Bailey, 112 F.3d 758, 766-67 (4th

Cir.) cert. denied, 118 S.Ct. 240 (1997); United States v. Frank,

8 F. Supp.2d 253, 282 n. 26 (S.D.N.Y. 1998). Applying Blockburger
 

3Because of the standard of review we use here, we do not

reach the ultimate question of whether we necessarily agree with

Bailey and Frank.

 

4Sickinger argues in his reply brief that the error of trial

counsel caused him not to raise the double jeopardy argument in the

district court. Such an ineffective assistance claim could be

pursued under 28 U.S.C. § 2255.

 

5Section 2A4.1(b)(4)(C) provides that "[i]f the victim was

released before twenty-four hours had elapsed, decrease by one

level." The Commentary states that "For the purposes of subsection

(b)(4)(C), 'released' includes allowing the victim to escape or

turning him over to law enforcement authorities without resistance."

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v. United States, 284 U.S. 299 (1932), the courts in Bailey and

Frank held that each statute -- kidnapping and domestic violence --

requires proof of a fact that the other statute does not require.

For example, kidnapping requires proof of "holding," while the

domestic violence statute does not, and the domestic violence

statute requires proof of an "intimate partner," a fact not

required for a kidnapping conviction. See Bailey, 112 F.3d at 766-

67; Frank, 8 F. Supp.2d at 282 n. 26. In light of these cases, we

cannot say that any district court error was "clear and obvious."

Jackson, 155 F.3d at 947.3 We are thus unable to conclude that the

district court plainly erred and we reject Sickinger's double

jeopardy challenge.4

B. Sentencing Guidelines.

1.

Sickinger argues that the district court erred in failing to

grant a one-level reduction for release within 24 hours under

U.S.S.G. § 2A4.1(b)(4)(C) and the Commentary thereto.5 Sickinger

claims that Walker was constructively released prior to 24 hours

because Walker was left alone at a convenience store on two

occasions and could have escaped. In the circumstances here, we

conclude that the district court did not err in failing to grant a
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one-level reduction. United States v. Frieberger, 28 F.3d 916, 918

(8th Cir. 1994) (district court's application of the Guidelines

reviewed de novo; factual findings reviewed for clear error). The

district court could reasonably have determined that in light of

the extraordinarily severe nature of Sickinger's abusive behavior

towards Walker and Wilson, Walker was not in a position - physically, mentally or emotionally - to flee. Although Sickinger's

control had slackened, he did not release or abandon his prisoner.

2.

Sickinger argues finally that the district court erred when it

increased the sentencing offense level by four points for permanent

or life-threatening injury to Wilson, the friend who was most

severely injured. We agree that the Sentencing Guidelines do not

specifically cover this aspect of the criminal affair and remand

for resentencing.

Sentencing Guideline § 2A4.1 specifies a base offense level of

24 for kidnapping, abduction and unlawful restraint. Subsection

(b)(2) states that the base offense level should be increased four

levels if "the victim sustained permanent or life-threatening

bodily injury," and two levels if "the victim sustained serious

bodily injury." It further specifies that a three level increase

is appropriate if the degree of the victim's injury falls between

serious and permanent or life-threatening. The district court

found Wilson's injuries permanent and increased the base offense

level by four, resulting in an offense level of 28 and a sentencing

range of 78 to 97 months.

As that term is used in § 2A4.1, "the victim" rather plainly

refers solely to the victim of the kidnapping, and not to persons

suffering collateral injury during the kidnapping who are not
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themselves abducted. In addition to the plain language of

subsection (b)(2), we find support for this conclusion in the other

subsections of § 2A4.1. See, e.g., § 2A4.1(b)(4)(A) and (B) ("If

the victim was not released before . . . days. . . .");

§ 2A4.1(b)(5) ("If the victim was sexually exploited. . . .");

§ 2A4.1(b)(6) ("If the victim is a minor. . . ."); § 2A4.1(c)(1)

("If the victim was killed. . . ."). Quite obviously the references are to persons who have been abducted. Moreover, courts

addressing use of "the victim" in similar Guidelines provisions

have held that "increases based on injury to 'the victim' are

predicated upon the risk to a single intended victim, and do not

account for injuries and risks of injury to bystanders. . . ."

United States v. Malpeso, 115 F.3d 155, 169 (2d Cir. 1997)

(collecting cases from the Third, Fifth, Sixth and Ninth Circuits),

cert. denied, 118 S.Ct. 2366 (1998). While Wilson was certainly a

victim of Sickinger's criminal activities, she was not the

kidnapping victim.

The Government relies on the robbery Guidelines provision,

U.S.S.G. § 2B3.1, in support of its argument that injuries to third

parties may result in an increase in the offense level. This

reliance is misplaced. Unlike § 2A4.1, § 2B3.1 refers to injuries

sustained by "any victim." We have no trouble with those cases

that have interpreted "any victim" in § 2B3.1 to encompass, for

example, bystanders, customers, tellers and security guards injured

during the course of a bank robbery even though the bank and not

the individuals is robbed. See, e.g., United States v. Molina, 106

F.3d 1118 (2d Cir.), cert. denied, 520 U.S. 1247 (1997); United

States v. Muhammad, 948 F.3d 1449 (6th Cir. 1991). But we join

those courts that have found a meaningful distinction between the

"any victim" language in § 2B3.1 and the "the victim" language

found in other Guidelines provisions. See, e.g., Malpeso, 115 F.3d
 

6We have considered the desirability of limiting further

proceedings to matters germane to the issue on which a reversal is

based, in order to avoid unjustified reconsideration of wholly

unrelated matters. See United States v. Cornelius, 968 F.2d 703

(8th Cir. 1992). Where one basis for an enhanced sentence is ruled

legally impermissible, however, this occasionally allows use of

another ground for enhancement. See, e.g., United States v. Jacobs,

136 F.3d 1187 (8th Cir. 1998) (Guideline enhancement allowed after

statutory firearm enhancement fails). In a case like this one we

see no principled basis for blinding the sentencing judge to issues

that are intimately related to those requiring a new sentence.

Even though we have ruled that Wilson's injuries were not the

injuries to a kidnapping victim that are dealt with in the

kidnapping Guideline, we are satisfied that sound procedure under

Guideline Sentencing would permit the resentencing judge to

reconsider the injuries occurring during the course of the crime

and to determine whether they should be taken into account in some

manner in reimposing sentence.

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at 169-70; United States v. Graves, 908 F.2d 528, 530-31 (9th Cir.

1990).

Notwithstanding our conclusion that § 2A4.1 does not specify

an upward adjustment for injuries to the bystander, Wilson, it is

our view the district court may, on resentencing, consider whether

an upward departure is appropriate under authority found in

U.S.S.G. § 5K2.0 based on Wilson's injuries.6 See, e.g., Malpeso,

115 F.3d at 170; United States v. Moore, 997 F.2d 30, 35-36 (5th

Cir. 1993).

Presumably, if it departs upward, the district court will make

a careful reevaluation of the physical injury that occurred and

will attempt to harmonize any departure with other provisions of

the Guidelines.

For the reasons stated, the judgment is vacated and the case

remanded to the district court for resentencing consistent with

this opinion.
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A true copy.

 Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.