UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4743

RANDY CLAYTON BARRY,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, Chief District Judge.

(CR-00-148-BO)

Argued: September 23, 2002

Decided: November 8, 2002

Before WILKINSON, Chief Judge, TRAXLER, Circuit Judge, and

Claude M. HILTON, Chief United States District Judge for the

Eastern District of Virginia, sitting by designation.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion. 

COUNSEL

ARGUED: Gregory John Ramage, LAW OFFICE OF GREGORY J.

RAMAGE, Raleigh, North Carolina, for Appellant. Thomas B. Murphy, Assistant United States Attorney, Raleigh, North Carolina, for

Appellee. ON BRIEF: John Stuart Bruce, United States Attorney,

Anne M. Hayes, Assistant United States Attorney, Raleigh, North

Carolina, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Randy Clayton Barry was convicted of carjacking resulting in serious bodily injury, see 18 U.S.C.A. §§ 2119(2)(West 2000), and of

aiding and abetting the brandishing of a firearm by a convicted felon

during a crime of violence, see 18 U.S.C.A. § 924(c)(1)(A)(ii) (West

2000). The district court sentenced Barry to 300 months for the carjacking conviction and 240 months for the firearm conviction to be

served consecutively. Barry now appeals his carjacking conviction,

arguing that the evidence was insufficient to establish "serious bodily

injury." He also appeals the court’s sua sponte upward departure on

his firearm sentence. We find that a reasonable jury could have determined that Barry’s victim suffered "serious bodily injury" and affirm

the carjacking conviction. However, because the district court

upwardly departed from the Sentencing Guidelines without giving

reasonable notice of its intention to do so, we vacate and remand for

resentencing on the firearm conviction. 

I.

On June 25, 2000, 63-year-old Johnny Bunton emerged from his

1985 Cadillac in the parking lot of a Burger King in Spring Lake,

North Carolina. Barry and an accomplice walked over to Bunton’s

car, where Barry’s accomplice pointed a shotgun at Bunton. Barry

shoved Bunton against the car, frisked him, and forced him into the

back seat. Barry’s accomplice then sat next to Bunton, holding the

shotgun to Bunton’s midsection while Barry drove Bunton’s car from

the restaurant’s parking lot. 

Fearing for his life, Bunton tried to wrestle the shotgun from

Barry’s accomplice. When this happened, Barry slammed on the

brakes, turned around in the front seat, and began to beat Bunton in

the face with his fists, breaking Bunton’s glasses and causing his face

2 UNITED STATES v. BARRY
to bleed. Barry then told his accomplice to "get this over with," J.A.

30, and ordered Bunton out of the car. Barry then repeated the admonition to "get rid of him." J.A. 31. Barry’s accomplice forced Bunton

to kneel, struck him on the back of the head four or five times with

the butt of the shotgun, and left him lying in the road. Barry and his

accomplice then fled the scene in Bunton’s car. 

Bunton was able to make his way to a nearby house, where the

occupants called an ambulance. The emergency medical technician

("EMT") who arrived treated Bunton for lacerations on his face and

hematomas to the side and back of his head and recorded that Bunton’s blood pressure was 190/100, which was "cause for alarm." J.A.

54. Despite repeated urging from the EMT, Bunton refused to go to

the hospital because his insurance card and money, as well as his

heart medication, had been taken along with the carjacked Cadillac.

Bunton’s head remained swollen for three weeks after the incident

and, since the carjacking, he "shakes" when he writes. J.A. 38. He has

sought help for the shaking problem at a Veterans Administration

hospital to no avail. 

Using a special verdict form, the jury convicted Barry of carjacking

and brandishing a firearm. At Barry’s sentencing hearing, the court

adopted without objection the factual findings and guideline applications in the Presentence Report ("PSR"). The PSR provided the correct range of imprisonment for carjacking, but failed to note that the

Guidelines sentence for the firearm offense was "the minimum term

of imprisonment required by statute." U.S.S.G. § 2K2.4(a)(2) (2000)

(emphasis added). In this case, the statutory minimum sentence was

84 months. The district judge sentenced Barry to 300 months for the

carjacking, which was within the Sentencing Guidelines range, and to

a consecutive 240 months for the firearm violation. No objection was

made at the time to the sentences. 

II.

A.

Barry first challenges the sufficiency of the evidence to support the

jury’s finding that he inflicted "serious bodily injury" on Bunton in

the course of the carjacking. In reviewing a sufficiency of the eviUNITED STATES v. BARRY 3
dence claim for a criminal conviction, the verdict of the jury must be

sustained if there is substantial evidence, taking the view most favorable to the government. See United States v. Brothers Constr. Co. of

Ohio, 219 F.3d 300, 312 (4th Cir.), cert. denied, 531 U.S. 1037

(2000). 

Barry asserts that there was insufficient evidence presented at trial

for the jury to find "serious bodily injury," and that at most the evidence showed only "bodily injury." We disagree. 

Under the carjacking statute, "serious bodily injury" is defined as

bodily injury which involves:

(A) a substantial risk of death; 

(B) extreme physical pain; 

(C) protracted and obvious disfigurement; or 

(D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty. . . . 

18 U.S.C.A. § 1365(g)(3) (West 2000). The statute distinguishes

"bodily injury" as —

(A) a cut, abrasion, bruise, burn, or disfigurement; 

(B) physical pain; 

(C) illness; 

(D) impairment of the function of a bodily member, organ,

or mental faculty; or 

(E) any other injury to the body, no matter how temporary.

18 U.S.C.A. § 1365(g)(4) (West 2000). 

We are satisfied that a reasonable jury could have found that the

injuries inflicted on Bunton were serious bodily injuries, because they

4 UNITED STATES v. BARRY
involved a substantial risk of death and protracted loss or impairment

of the function of a bodily member. The repeated, violent blows Bunton sustained to the back of his head from the butt of the shotgun,

accompanied by the abandonment of Bunton in the road after the brutal beating, presented a substantial risk of death, particularly when all

of this caused Bunton’s blood pressure to be elevated to a dangerously high level at a time when he was deprived of his heart medication. This constitutes persuasive evidence from which the jury could

reasonably find that Bunton’s injuries were life threatening. 

The government also supplied sufficient proof that Bunton suffered

a protracted impairment. The permanent shaking affecting his ability

to write demonstrates prolonged damage to the function of a bodily

member, organ, or mental faculty that the jury could rationally attribute to the injuries Bunton sustained during the carjacking. Given the

testimony from Bunton as to the commencement of the shaking, its

continued existence, and the lack of foreseeable termination, we

believe the evidence sufficient for the jury to conclude that this

impairment was, and would be, protracted. 

In sum, the evidence was sufficient for the jury to conclude that

Bunton’s injuries presented a substantial risk of death and that his

impairment was prolonged. A reasonable jury could, and did, find that

Bunton suffered serious bodily injury. 

B.

Barry also contends that the district court erred in departing upward

from the Sentencing Guidelines without prior notice. Apparently, the

court believed that there was no specific Guideline sentence for

Barry’s handgun conviction and that Barry could be sentenced anywhere within the statutory range of seven years to life. In fact, the

Guidelines state that "the guideline sentence is the minimum term of

imprisonment required by statute," U.S.S.G. § 2K2.4(a)(2), which in

this case would have meant a sentence of 84 months. See 18 U.S.C.A.

924(c). Thus, the court’s sentence of 240 months amounted to a substantial upward departure for which Barry had received no prior

notice. The PSR had stated that there was no basis to suggest that a

departure was warranted and the government had not requested a

UNITED STATES v. BARRY 5
departure, but simply had asked that Barry be sentenced at the "upper

end" of the Guidelines range. J.A. 114. 

In Burns v. United States, 501 U.S. 129 (1991), the Supreme Court

held that a sentencing court may not depart upward for a reason not

identified in the PSR or in a government departure motion without

first giving the defendant reasonable notice that it is considering

departure on a specific ground. See id. at 138; see also United States

v. Maddox, 48 F.3d 791, 799 (4th Cir. 1995); United States v. Maxton,

940 F.2d 103, 106 (4th Cir. 1991). Because Barry did not object to

the departure at the sentencing hearing, we review the court’s failure

to comply with Burns for plain error. See United States v. Olano, 507

U.S. 725, 731-32 (1993); United States v. Bellamy, 264 F.3d 448, 455

(4th Cir. 2001), cert. denied, 122 S.Ct. 1097 (2002). The necessary

conditions are fulfilled if the court below "(1) committed error; that

(2) was plain; and (3) affected the defendant’s substantial rights;

thereby implicating (4) the fairness, integrity, or public reputation of

judicial proceedings to the extent that we should exercise our discretion to correct the oversight." Bellamy, 264 F.3d at 455 (internal quotation marks omitted). We examine each element in turn. 

The court’s departure constitutes error that was plain because the

court failed to provide reasonable notice of its intent to depart and the

specific grounds on which the court contemplated the upward departure. See Burns, 501 U.S. at 138-39. To obtain relief, however, Barry

must show that the district court’s error "affected his substantial

rights, i.e., that it was prejudicial." United States v. Hastings, 134

F.3d 235, 240 (4th Cir. 1998). Here, the lack of notice denied Barry

the opportunity to prepare arguments to address the grounds for

departure offered by the court at the hearing. "When a dispute exists

about any factor important to the sentencing determination, the court

must ensure that the parties have an adequate opportunity to present

relevant information." U.S.S.G. § 6A1.3, p.s., comment.; see also

Burns, 501 U.S. at 133. An adequate opportunity to present relevant

information requires adequate notice to enable the defense — or the

government — to prepare arguments. Moreover, the departure in this

case clearly affected Barry’s substantial rights by nearly tripling his

sentence from the Guidelines prescription of 84 months to 240

months. Such an increase may be merited in cases where the defendant has a substantial history of violence or drug-related crimes. See

6 UNITED STATES v. BARRY
U.S.S.G. § 2K2.4, comment. (n.1). Under Burns, however, notice is

required before a court makes such a departure in order to afford the

defendant a chance to prepare for the reasons under consideration by

the court. 

The departure also implicates the fourth prong of the plain error

analysis — namely, the "fairness, integrity, or public reputation of

judicial proceedings." Bellamy, 264 F.3d at 455 (internal quotation

marks omitted). Before the implementation of the Guidelines, "factors

relevant to sentencing were often determined in an informal fashion."

U.S.S.G. § 6A1.3, p.s., comment. The Guidelines were conceived to

take the guesswork out of sentencing — both for the court and for the

parties. Here, the defendant was confronted with an upward departure

with no notice that the court intended to depart from the Guidelines

and with no effective opportunity to address the specific reasons

given for that departure. We therefore must vacate Barry’s sentence

and remand for resentencing. 

III.

In sum, we conclude that the evidence is sufficient to support

Barry’s carjacking conviction. The court’s sua sponte departure from

the Guidelines on Barry’s firearm conviction, however, compels us to

vacate that portion of the sentence and remand for resentencing. We

express no opinion on the merits of the departure. Should the district

court again wish to depart from the Guidelines sentence, the court

should give the parties reasonable advance notice and should describe

the grounds for the possible departure. 

AFFIRMED IN PART, VACATED

IN PART, AND REMANDED

UNITED STATES v. BARRY 7