UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4483

NARKEY KEVAL TERRY,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CR-96-270-A)

Argued: January 28, 1999

Decided: May 28, 1999

Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: David Benjamin Smith, ENGLISH & SMITH, Alexandria, Virginia, for Appellant. William Graham Otis, Senior Litigation

Counsel, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United

States Attorney, Randy I. Bellows, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Narkey Terry was convicted in the United States District Court for

the Eastern District of Virginia of, among other things, two counts of

involuntary manslaughter. The district court, after departing upward

fifteen levels, sentenced Terry to 120 months imprisonment. Terry

appealed, and this Court vacated the sentence imposed and remanded

for resentencing. See United States v. Terry, 142 F.3d 702 (4th Cir.

1998). On remand, the district court once again departed upward fifteen levels, this time after specifically finding that the danger created

by Terry's reckless driving was so extraordinary that it removed the

case from the heartland of the typical involuntary manslaughter case

involving reckless conduct and that Terry acted with malice in the

uncharged death of Billy Canipe. Finding no reversible error, we

affirm.

I.

The underlying facts were recited by this Court on direct appeal,

see United States v. Terry, 142 F.3d 702, 704-05 (4th Cir. 1998), and

need only be briefly restated here. In the early morning of April 17,

1996, Terry and Canipe engaged in a high-speed race along the

George Washington Memorial Parkway (G.W. Parkway). After racing

for approximately eight miles, Terry's Jeep Cherokee hit Canipe's

Chevrolet Beretta, causing the Beretta to spin across the median and

into the southbound lanes, where it struck a Ford Taurus driven by

George Smyth. The impact killed Mr. Smyth instantly. A section of

Canipe's car, weighing close to 500 pounds, flew into the air and

landed on the windshield of a Dodge Caravan driven by Nancy

McBrien. Mrs. McBrien died within moments of the crash. Canipe

was thrown from his car and sustained fatal injuries. Terry sustained

a broken ankle and cuts and bruises to his face and chest.

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The United States charged Terry with two counts of involuntary

manslaughter (Nancy McBrien and George Smyth) in violation of 18

U.S.C.A. § 1112 (West 1984 & Supp. 1999); with one count of reckless driving in violation of 18 U.S.C.A. § 13 (West Supp. 1999) and

Va. Code Ann. § 46.2-852 (Michie 1998); and with one count of carrying a concealed weapon in violation of 18 U.S.C.A.§ 13 and Va.

Code Ann. § 18.2-308 (Michie Supp. 1998). Terry pleaded guilty to

carrying a concealed weapon. Following a two-day jury trial, Terry

was convicted on the remaining three counts.

As recited by this Court on direct appeal, Terry was sentenced as

follows:

 Terry was sentenced pursuant to the involuntary manslaughter guideline. See U.S. Sentencing Guidelines Manual

§ 2A1.4 (1995). Due to his reckless driving, Terry's base

offense level was set at fourteen. See U.S.S.G.

§ 2A1.4(a)(2). Because Terry was convicted on two counts

of involuntary manslaughter, his base offense level was

increased an additional two levels pursuant to the Guidelines' grouping rules. See U.S.S.G. § 3D1.4. With an

adjusted offense level of 16 and a criminal history category

of I, Terry's guideline range was 21-27 months. See

U.S.S.G. Ch.5, Pt.A.

 Believing that [27] months would be "a wholly inadequate sentence given the severity of the defendant's conduct," (J.A. at 125), the district court determined that an

upward departure was warranted. First, the district court

departed upward eight levels to reflect the danger to the

public created by Terry's reckless driving. See U.S.S.G.

§ 5K2.14, p.s. Next, the district court departed upward four

levels to account for the additional death of Canipe. See

U.S.S.G. § 5K2.1, p.s. Finally, the district court departed

upward three levels to take into consideration the extreme

psychological impact to the family members of the victims.

See U.S.S.G. § 5K2.3, p.s. In total, the district court

departed upward fifteen levels. With a total offense level of

31 and a criminal history category of I, Terry's guideline

range was 108-135 months. See U.S.S.G. Ch.5, Pt.A. Terry

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was sentenced to 120 months imprisonment on the two

involuntary manslaughter counts, a concurrent term of 12

months on the reckless driving charge, and a consecutive 6

month term of imprisonment on the concealed weapon

charge.

Terry, 142 F.3d at 705 (footnote omitted).

On direct appeal, Terry argued only that the district court abused

its discretion in departing upward by fifteen levels. This Court agreed,

holding: (1) that the district court failed to determine whether the danger created by Terry's reckless driving was present to an exceptional

degree or otherwise removed the case from the heartland of the typical involuntary manslaughter case involving reckless conduct, see id.

at 706-07; (2) that if, on remand, the district court made such a determination, it must also determine the extent of its departure, see id. at

707; (3) that an upward departure based upon the death of Canipe was

not precluded by Canipe's partial responsibility for the conduct that

resulted in his death, see id. at 708; (4) that although the upward

departure based upon Canipe's death was not an abuse of discretion,

the extent of the departure was an abuse of discretion absent additional findings of fact, see id. at 708-09; (5) that the guideline authorizing an upward departure if a victim suffered psychological injury

much more serious than that normally resulting from the commission

of offense applied to both direct and indirect victims, see id. at 711-

12; but (6) that family members of those killed as result of Terry's

conduct were not victims of his offense, see id. at 712.

On remand, the district court once again sentenced Terry pursuant

to the involuntary manslaughter guideline. See U.S. Sentencing

Guidelines Manual § 2A1.4 (1995). Due to his reckless driving,

Terry's base offense level was set at fourteen. See U.S.S.G.

§ 2A1.4(a)(2). Because Terry was convicted on two counts of involuntary manslaughter, his base offense level was increased an additional two levels pursuant to the Guidelines' grouping rules. See

U.S.S.G. § 3D1.4. With an adjusted offense level of 16 and a criminal

history category of I, Terry's guideline range was 21-27 months. See

U.S.S.G. Ch.5, Pt.A.

Still believing that 27 months would be a wholly inadequate sentence given the severity of Terry's conduct, the Government argued

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that an upward departure was warranted. The district court agreed,

and departed upward on two bases: (1) § 5K2.14, p.s. (danger to the

public); and (2) § 5K2.1, p.s. (death). The district court justified its

departure under § 5K2.14, p.s. by specifically finding that Terry's

reckless driving was so extraordinary that it was outside the "heartland" of situations encompassed by the involuntary manslaughter

guideline. The district court justified its departure under § 5K2.1, p.s.

by finding that Terry acted with malice in the uncharged death of

Canipe. Based on the aforementioned grounds, the district court

departed upward fifteen levels.

With a total offense level of 31 and a criminal history category of

I, Terry's guideline range was 108-135 months. See U.S.S.G. Ch.5,

Pt.A. Terry was once again sentenced to 120 months imprisonment on

the two involuntary manslaughter counts. On appeal after remand,

Terry once again argues only that the district court abused its discretion in departing upward by fifteen levels.

II.

A sentencing court may depart from the applicable guideline range

where "the court 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." 18 U.S.C.A. § 3553(b)

(West Supp. 1999). As a result, if a factor has been forbidden by the

Commission, "the sentencing court cannot use it as a basis for departure." Koon v. United States, 116 S. Ct. 2035, 2045 (1996). If a factor

is one upon which the Commission encourages departure, and it is not

taken into account by the applicable guideline, a court may exercise

its discretion and depart on that basis. See id. If an encouraged factor

is taken into account in the applicable guideline, or if a factor is a discouraged one, the departure is permissible "only if the factor is present to an exceptional degree or in some other way makes the case

different from the ordinary case where the factor is present." Id.

Finally, "[i]f a factor is unmentioned in the Guidelines, the court

must, after considering the structure and theory of both relevant individual guidelines and the Guidelines taken as a whole, decide whether

it is sufficient to take the case out of the Guidelines' heartland." Id.

(internal quotation marks and citation omitted). Here, the district

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court relied upon two separate encouraged factors in departing

upward a total of fifteen levels. We address each departure in turn.

A.

Section 5K2.14 provides: "If national security, public health, or

safety was significantly endangered, the court may increase the sentence above the guideline range to reflect the nature and circumstances of the offense." U.S.S.G. § 5K2.14, p.s. Here, the district

court departed upward under § 5K2.14, finding that the public's welfare and safety were significantly endangered during Terry's protracted reckless driving.

Because Terry's reckless driving was taken into account by the

guideline under which he was sentenced, the district court may only

depart under § 5K2.14 if the conduct "is present to an exceptional

degree or in some other way makes the case different from the ordinary case where the factor is present." Koon , 116 S. Ct. at 2045. On

remand, the district court recognized that § 2A1.4 accounted for reckless driving, see United States v. Barber, 119 F.3d 276, 282 (4th Cir.)

(en banc), cert. denied, 118 S. Ct. 457 (1997), and specifically found

that Terry's reckless driving was so extraordinary that it was outside

the "heartland" of situations encompassed by the applicable guideline.1

We agree. As this Court noted on direct appeal:

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1 The district court's findings are, in part, as follows:

 [T]here was excessive speed in the 70-to-80-mile-an-hour

range, but more than speed, it's the combination of speed, the

nature of the driving, the cat-and-mouse type of driving . . . on

a scenic highway . . . where there is [no] room for error. There

are very narrow, if any, shoulders along the parkway.

 The medians are not the kind of medians that are able to adequately protect cars from problems on the opposite side of the

road. It's a road that twists a great deal. It's a road that has ups

and downs, and so it is a very dangerous place for this kind of

behavior.

 In addition, this was at the beginning of rush hour. . . .

 But the fact that is most unique about this case and, frankly,

is not present in . . . other cases is that this case involved intentional reckless driving. . . .

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Terry engaged in a road duel on a scenic parkway not

designed for high-speed driving. The high-speed duel was

variously described by eyewitnesses as a game of"cat-andmouse," "tag," and "chicken." We doubt that such conduct

is typical of reckless driving cases.

Terry, 142 F.3d at 706. Accordingly, the district court did not abuse

its discretion in departing pursuant to § 5K2.14, p.s.

Although the district court did not abuse its discretion in departing

pursuant to § 5K2.14, p.s., we note that it failed to state the extent of

its departure under § 5K2.14, p.s. In fact, when the district court

departed by fifteen levels, it failed to state how many levels were

attributable to § 5K2.14, p.s. and how many were attributable to

§ 5K2.1, p.s. At the original sentencing hearing, the district court

departed under § 5K2.14, p.s. by eight levels. On direct appeal, this

Court specifically held that "[i]f, on remand, the district court determines that an upward departure is warranted, it must also determine

the extent of its departure." Id. at 707 (emphasis added). Thus, the

district court's failure to determine the extent of its departure under

§ 5K2.14, p.s. was an abuse of discretion. Nevertheless, on direct

appeal we suggested (and now hold) that at least a two-level increase

would be appropriate under § 5K2.14, p.s. when, as the district court

correctly found here, such an upward departure is warranted. See

Terry, 142 F.3d at 707 & n.5. Because the remaining thirteen-level

increase may be supported for the reasons stated below, the district

court's failure to determine how many levels were attributable to each

departure was harmless.

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 [W]e now have this absolutely deadly situation running along

for at least 8 miles on the G.W. Parkway, creating a significant

threat to the safety of every other driver on that road, as well as

to the two drivers engaged in the conduct.

 If ever there were a factual situation that fell outside of the

heartland for involuntary manslaughter by use of a vehicle, this

is certainly the case.

(J.A. at 71-73.)

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B.

"If death resulted, the court may increase the sentence above the

authorized guideline range." U.S.S.G. § 5K2.1, p.s. Although the

deaths of Mr. Smyth and Mrs. McBrien were taken into account in the

applicable guideline, i.e., § 2A1.4(a)(2) (involuntary manslaughter),

the district court determined that an upward departure under § 5K2.1,

p.s. was appropriate in light of the additional death of Canipe. On

direct appeal, this Court agreed that, although Canipe was also

responsible for the aggressive driving behavior that led to his death,

his death warranted a departure from the authorized guideline range.

See Terry, 142 F.3d at 708. Nevertheless, this Court held that the district court abused its discretion in departing by four levels because it

failed to consider any of the factors set forth by the sentencing guidelines for determining the extent of a departure under § 5K2.1, p.s.2 See

id. at 708-09.

On remand, the district court made findings as to the factors set

forth in § 5K2.1, p.s. In particular, the district court found that Terry

acted with malice in the death of Canipe. As a result, the district court

concluded that Terry should be sentenced by analogy to the seconddegree murder guideline, which, the district court correctly noted,

provides for a base offense level of 33. See U.S.S.G. § 2A1.2. After

concluding that an offense level of 33 would be too high in this case,

the district court decided, as noted above, to set Terry's offense level

at 31.

On appeal, Terry faults the district court on four points: (1) that it

erred in finding that he acted with malice; (2) that it was improper to

base the extent of the departure on the guideline for second-degree

murder because he was not charged with or convicted of that offense;

(3) that malice must be established beyond a reasonable doubt; and

(4) that the district court failed to take into account Canipe's role in

the offense. We address each argument in turn.

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2 These factors include: (1) the defendant's state of mind, (2) whether

the danger posed by the defendant's misconduct was extreme, and (3)

whether the defendant knowingly risked the death or serious injury of

others.

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1.

Terry first contends that the district court erred in finding that he

acted with malice and, therefore, in determining the extent of the

upward departure by analogy to the second-degree murder guideline.

For the reasons that follow, we disagree. In United States v. Fleming,

739 F.2d 945 (4th Cir. 1984), we affirmed the jury's finding that the

defendant acted with malice in a case bearing a striking similarity to

the instant one. The defendant in Fleming, driving approximately 80

miles per hour on the G.W. Parkway, lost control of his car on a sharp

curve. The car slid across the median and into the southbound lanes,

where it struck a car driven by Margaret Haley. Mrs. Haley died

before she could be removed from her car. The defendant was subsequently convicted of second-degree murder. See id. at 947. In affirming the defendant's conviction, we noted the following:

Proof of the existence of malice does not require a showing

that the accused harbored hatred or ill will against the victim

or others. Neither does it require proof of an intent to kill or

injure. Malice may be established by evidence of conduct

which is reckless and wanton and a gross deviation from a

reasonable standard of care, of such a nature that a jury is

warranted in inferring that defendant was aware of a serious

risk of death or serious bodily harm. To support a conviction

for [second-degree] murder, the government need only have

proved that defendant intended to operate his car in the manner in which he did with a heart that was without regard for

the life and safety of others.

Id. at 947-48 (citations and internal quotation marks omitted). Here,

the evidence supports the district court's finding that Terry displayed

a wanton disregard for the life and safety of Canipe. As a result, we

do not believe that the district court erred in finding, by a preponderance of the evidence, that Terry acted with malice.

2.

Next, Terry argues that the district court erred in departing upward

because the district court, in effect, tried and sentenced him for

second-degree murder, a crime for which he has not been convicted.

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Again, we disagree. The death of Canipe was related to and resulted

from Terry's reckless driving. As the guidelines make clear, a defendant's sentence may be increased based upon relevant conduct, see

U.S.S.G. § 1B1.3, including conduct for which the defendant was not

convicted, see United States v. Barber, 119 F.3d 276, 283-84 (4th

Cir.) (en banc) (noting that "the court may consider, without limitation, any information concerning the . . . conduct of the defendant,"

including "dismissed, uncharged, or [even] acquitted conduct"), cert.

denied, 118 S. Ct. 457 (1997). Indeed, the sentencing guidelines

encourage departure above the authorized guideline range where an

uncharged death occurs as a result of the offense of conviction. See

U.S.S.G. § 5K2.1, p.s. In any event, this Court has already held -- on

direct appeal -- "that Canipe's death may provide the basis for an

upward departure." Terry, 142 F.3d at 708. Thus, the propriety of the

departure in question cannot be challenged on the ground that Terry

was not charged with or convicted of second-degree murder.

3.

Next, Terry argues that the departure was so substantial that the

facts supporting it had to be established beyond a reasonable doubt.

We disagree. This Court has never required that facts at sentencing

be established by more than a preponderance of the evidence. Indeed,

in United States v. Melton, 970 F.2d 1328 (4th Cir. 1992), this Court

specifically held that "proof beyond a reasonable doubt [is not

required]. A preponderance of the evidence will suffice for sentencing

purposes." Id. at 1331-32; see also United States v. Powell, 886 F.2d

81, 85 (4th Cir. 1989) (holding that, in order to satisfy due process,

findings made at sentencing need only be based upon a preponderance

of the evidence).

4.

Finally, Terry argues that the district court failed to take into

account Canipe's role in the offense as allowed by§ 5K2.10, p.s. A

discretionary refusal to depart, however, is not reviewable unless the

district court was unaware of or mistaken about its authority to depart.

See United States v. Burgos, 94 F.3d 849, 876 (4th Cir. 1996) (en

banc). There is no indication in the record that the district court was

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unaware that it could depart to reflect Canipe's role in his own death.3

Accordingly, we are without authority to review this claim.

III.

For the foregoing reasons, Terry's sentence is affirmed.

AFFIRMED

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3 As this Court noted on direct appeal, "[a]bsent the upward departure

pursuant to § 5K2.1, p.s., Terry's sentence would not have taken into

account the additional death of Canipe." United States v. Terry, 142 F.3d

702, 708 n.8 (4th Cir. 1998). Thus, the very potential for a downward

departure under § 5K2.10, p.s. in this case arose only as a result of the

upward departure under § 5K2.1, p.s. In such a case, rather than departing pursuant to both § 5K2.1, p.s. and § 5K2.10, p.s, the better approach

would be simply to reduce the extent of the departure under § 5K2.1, p.s.

in recognition of the victim's role in the offense. See Terry, 142 F.3d at

708 n.8 (noting that a victim's "role in the offense may limit the extent

of the upward departure"). To the extent Terry challenges the extent of

the district court's departure under § 5K2.1, p.s., rather than the district

court's failure to depart under § 5K2.10, p.s., we find no abuse of discretion. Canipe's role in the offense was taken into account by the district

court. As noted above, had Terry been convicted of Canipe's murder, his

base offense level would have been 33. See U.S.S.G. § 2A1.2. By departing upward thirteen levels under § 5K2.1, p.s., Terry's total offense level

was only 29. Thus, although the district court did not specifically cite

§ 5K2.10, p.s., Canipe's role in the offense was taken into account by the

district court when it limited the extent of its departure under § 5K2.1,

p.s.

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