United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-2525

___________

United States of America, *

*

 Appellee, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota.

Barbara Lynn Lewis, *

* [TO BE PUBLISHED]

Appellant. *

___________

Submitted: December 12, 2000

Filed: December 15, 2000

___________

Before LOKEN, HEANEY, and FAGG, Circuit Judges.

___________

PER CURIAM.

Barbara Lynn Lewis appeals her sentence for conspiring to harbor an illegal

alien, in violation of 18 U.S.C. § 371 (2000) and 8 U.S.C. § 1324(a)(1)(A)(v)(I)

(2000), and for harboring an illegal alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii)

(2000). Lewis was charged in October 1998 after Robert Lee Warner, an illegal alien,

was found dead and buried in her backyard in Rowena, South Dakota; she pleaded

guilty in December 1998. Testimony at Lewis’s sentencing hearing established that

prior to Warner’s death, Lewis and members of her family had essentially held Warner

captive, forcing him both to work as a servant in the Lewis household and to turn over
1The probation officer who prepared the presentence report applied the 1995

Guidelines Manual pursuant to U.S. Sentencing Guidelines Manual § 1B1.11(b)(1)

(1999).

-2-

his wages from outside employment to Lewis. Further, Warner had been deprived of

adequate nourishment and medical care, and subjected to physical and psychological

humiliation and abuse. 

On appeal from Lewis’s original sentence of 120 months imprisonment, we

remanded for resentencing. See United States v. Lewis, 200 F.3d 1177 (2000). On

remand, the district court departed upward from Lewis’s adjusted offense level of 15

to an offense level of 29 based on circumstances distinguishing Lewis’s case from the

typical case under the U.S. Sentencing Guidelines.

The district court explained its decision to depart upward in a substantial

sentencing memorandum. First, the court determined that the two-level upward

adjustment for obstruction of justice under U.S. Sentencing Guidelines Manual § 3C1.1

(1995)1 did not adequately address Lewis’s obstructive conduct. The court cataloged

Lewis’s obstructive conduct–“the most pervasive this Court has seen” (Am. Sent.

Mem. & Order at 11)–as follows. While in jail, Lewis communicated with her sons

Steven and Tucker–a codefendant and a material witness, respectively, who were also

in jail–by having another inmate mail Lewis’s letters to a friend who would then remail

them to Tucker and Steven. Lewis tried to convince Steven to give authorities the same

untruthful story she had given. Lewis also made threats against fellow inmate Consuelo

Trotter, who had met with a government attorney prior to sentencing and provided

information about Lewis’s statements concerning her treatment of Warner. Further,

Lewis offered yet another fellow inmate $1,000 to testify that Tammy Robart, another

fellow inmate who had spoken to the government, was lying.
-3-

Next, the court concluded that U.S. Sentencing Guidelines Manual § 2L1.1

(1995) (“Smuggling, Transporting, or Harboring an Unlawful Alien”) did not

adequately account for Lewis’s aggravating conduct, and that an additional departure

was warranted on account of extreme psychological injury, see U.S.S.G. § 5K2.3;

unlawful restraint, see U.S.S.G. § 5K2.4; and extreme conduct, see U.S.S.G. § 5K2.8:

The evidence supports findings that Robert Warner was repeatedly

physically beaten, tormented, and sexually abused. He was degraded,

humiliated, and psychologically controlled, manipulated, and restrained

to the point where he could no longer think rationally about his own wellbeing. He was deprived of nourishment and medical care. Because of the

abuse he suffered, he lost all hope and was too afraid to leave the

environment in which he found himself. Instead, he remained with the

Lewis family until his death. The Court finds that an upward departure

of twelve levels for the defendant is warranted, based upon the evidence.

(Am. Sent. Mem. & Order at 18.)

Lewis appeals her sentence, arguing the extent of the district court’s departure

was unwarranted. We review a district court’s departure decisions under a unitary

abuse-of-discretion standard. See United States v. Sample, 213 F.3d 1029, 1032 (8th

Cir. 2000). A district court may depart based on a factor encouraged as a basis for

departure by the Sentencing Commission, provided that the applicable Guideline does

not already take the factor into account. See id. We defer to the district court (1) on

the issue of whether a given factor is present to a degree not adequately considered by

the Sentencing Commission; (2) on the question of whether the circumstances of a case

warrant departure, provided the record contains sufficient evidence to support such a

departure; and (3) on the reasonableness of the extent of the district court’s departure.

See id. Further, “the court may depart from the guidelines, even though the reason for

departure is taken into consideration in the guidelines (e.g., as a specific offense

characteristic or other adjustment), if the court determines that, in light of unusual
2Section 2L1.1 was amended in 1997 to encompass a much wider array of

immigration offenses. See U.S.S.G. § 2L1.1 (2000); U.S.S.G. App. C, Amend. 543.

-4-

circumstances, the weight attached to that factor under the guidelines is inadequate or

excessive.” U.S.S.G. § 5K2.0, p.s. (1995).

In light of the district court’s factual findings, which the defendant does not

challenge as clearly erroneous, it is apparent that it was not an abuse of the district

court’s discretion to depart upward based upon Lewis’s exceptional efforts at

obstruction of justice. We also conclude the district court did not err in its

determination that this case fell outside the heartland of immigration offenses covered

under § 2L1.1, and that extreme psychological injury, unlawful restraint, and extreme

conduct could thus form the bases for an additional upward departure. The 1995

Guidelines Manual makes plain that these factors were not taken into account in the

Sentencing Commission’s formulation of § 2L1.1: “If the offense involved dangerous

or inhumane treatment, death or bodily injury, . . . an upward departure may be

warranted.” U.S.S.G. § 2L1.1, comment. (n.5) (1995).2 Moreover, there is ample

evidence in the record to support the imposition of a departure on these grounds.

As for the reasonableness of the extent of the court’s departure, a 14-level

upward departure is, without question, exceptional. The result of the departure was an

increase in Lewis’s sentencing range from 18-24 months to 87-108 months. Lewis’s

96-month prison term is thus four times the maximum term of imprisonment authorized

in the absence of a departure. Nevertheless, “the district court’s decision on this matter

is quintessentially a judgment call and we respect the district court’s superior ‘feel’ for

the case.” United States v. Johnson, 56 F.3d 947, 958 (8th Cir. 1995) (internal

quotation omitted). With this in mind, we are unable to say the extent of the departure

here is unreasonable. A careful examination of the district court’s factual findings

convinces us that the district court’s extraordinary departure was not an abuse of its

discretion in this extraordinary case.
-5-

Accordingly, the judgment of the district court is affirmed.

A true copy.

Attest:

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