The Honorable Pasco M. Bowman became Chief Judge of the United States

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Court of Appeals for the Eighth Circuit on April 18, 1998.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-3360

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United States of America, *

Plaintiff-Appellee, * Appeal from the United States

 v. * Eastern District of Arkansas.

John Edward Johnson, *

Defendant-Appellant. *

*

* District Court for the

*

*

*

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Submitted: April 13, 1998

Filed: May 22, 1998

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Before BOWMAN, Chief Judge, McMILLIAN, and MURPHY, Circuit Judges. 1

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MURPHY, Circuit Judge.

Johnson pled guilty to robbery affecting interstate commerce, 18

U.S.C. § 1951, and use of a firearm during a violent crime, 18 U.S.C. §

924(c), reserving the right to appeal the denial of his motion to suppress

his confession. He was sentenced to 233 months, and raised issues on appeal

related to his statements to the police as well as sentencing. We affirmed

the judgment of conviction but remanded for resentencing
The Honorable William R. Wilson, United States District Judge for the Eastern 2

District of Arkansas.

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because the district court had departed upward without prior notice. U.S.

v. Johnson, 121 F.3d 1141 (8th Cir. 1997). On remand additional evidence

was received, and the district court again departed upward on the basis

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that Johnson’s conduct during the armed robbery in raping a female

restaurant employee was unusually cruel and degrading, U.S.S.G. § 5K2.8, and

that the victim had suffered severe psychological injury, U.S.S.G. § 5K2.3.

This time Johnson was sentenced to 135 months on the robbery count and a

mandatory consecutive 120 months on the firearm violation for a total of 255

months. On appeal he argues that there was insufficient evidence of sexual

assault, that the district court erred in applying the sentencing

guidelines, and that his constitutional rights were violated by receiving

a more severe sentence on remand. We affirm.

At the outset we note that Johnson’s challenge to the sufficiency of

the evidence of the sexual assault is foreclosed because that issue was

already decided against him in our prior decision (121 F.3d at 1145). See

U.S. v. Bowers, 21 F.3d 843, 844 (8th Cir. 1994).

Johnson argues that the district court improperly imposed an upward

departure based on extreme conduct and injury. The decision to depart from

the sentencing guidelines is reviewed for abuse of discretion. Koon v.

U.S., 116 S.Ct. 2035, 2047 (1996). At the initial sentencing hearing the

rape victim testified that Johnson threatened her and a male co-worker with

a sawed off shotgun and forced them to disrobe. After unsuccessfully

attempting to penetrate her, he repeatedly forced her to perform oral sex

and penetrated her digitally and with his penis, left her lying naked on the

floor, and threatened to return and kill her if she called the police. She

testified that from the time of the attack she has required ongoing

psychological counseling and treatment with anti-depressant drugs and that

her sexual relations with her husband
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have been damaged. She also testified that she was haunted by fear which

led her to carry a gun, move to an area more frequently patrolled by police,

install a home security system, and stay inside at night except for an

emergency. At the second sentencing proceeding additional evidence was

received about her physical injuries and the continuing effects of the

assault. Based on the record there was sufficient evidence to support the

district court’s findings that Johnson’s conduct was unusually cruel and

degrading and that the victim suffered severe psychological injury. The

district court did not abuse its discretion by departing upward on this

basis. 

Johnson objects to the court’s reference in sentencing to the criminal

sexual abuse guideline, § 2A3.1. He does not argue that this led to an

improper sentence length, but that the guideline applicable to his offense

was that for robbery, § 2B3.1, rather than for sexual abuse. Johnson was

not sentenced under the sexual abuse guideline, however, because the

district court merely considered it in deciding an appropriate period for

the upward departure for conduct which involved sexual violence and which

justified departure under § 5K2.3 and § 5K2.8. This was permissible under

the sentencing guidelines. See generally U.S.S.G. § 1B1.2 commentary.

Johnson also argues that the district court violated his due process

rights by imposing a longer sentence on remand. Imposition of a more

stringent sentence upon resentencing is not improper when it is based on

newly obtained information rather than vindictiveness. Texas v. McCullough,

106 S.Ct. 976, 979-80 (1986). At resentencing the district court received

reports from psychologists that the trauma Johnson caused was more severe

than initially thought. Attempts to take Johnson’s victim off antidepressant drugs had failed, her behavioral patterns continued to be

disrupted, and discussion of the event still upset her severely. There is

no showing of vindictiveness or that the district court erred by relying on

the new information, and Johnson’s due process rights were not violated by

the sentence imposed. 

For these reasons the sentence is affirmed.
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A true copy.

Attest:

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