## TheHo norable Pasco M. Bowman became Chief Judge of the United State s 1 

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

FOR THE EIGHTH CIRCUIT

___________ No. 97-3360

___________ 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

*

*

*

___________ Submitted: April 13, 1998 Filed: May 22, 1998

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

___________ MURPHY, Circuit Judge. Johnso npled guilty to robbery affecting interstate commerce, 1 8 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 we ll 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. -2- because the distri ct 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 basi s 2 that Joh nson’s conduct during the armed robbery in raping a femal e restaurant employee was unusually cruel and degrading, U.S.S.G. § 5K2.8, and that the victim had suffered severe psycholog ical 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 i nsufficient evidence of sexual assault, that the district court erred in applying the sentencin g guidelines, and that his constitutional rights were violated by receivin g a more severe sentence on remand. We affirm. At the outset we note that Johnson’s challenge to the sufficiency of the evid ence of the sexual assault is foreclosed because that issue wa s already decided ag ainst him in our prior decision (121 F.3d at 1145). See U.S. v. Bowers , 21 F.3d 843, 844 (8th Cir. 1994). Joh nsonargues that the district court improperly imposed an upwar d departure based on extreme conduct and injury . The decision to depart from the sent encing 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 threatenedher and a male co-worker with a sawed off shotgun and forced them to disrobe. After unsuccessfull y attempting to penetrate her, he repeatedly forced her to perform oral sex and penetrated her digitally and with his penis, left her lying naked onthe floor, and threatened to return and kill her if she called the police. She testif iedthat from the time of the attack she has required ongoin g psychological coun seling and treatment with anti-depressant drugs and that her sexual relations with her husband

## -3-

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 pol ice, instal l a home security system, and stay inside at night except for a n emergency. At the second sentencing proceeding additional evidence wa s receivedabout her physical injuries and the continuing effects of th e assault. Based onthe record there was sufficient evidence to support the district court’s findings that Johnson’s conduct was unusually cruel an d degrad ing and that the victim suffered severe psychological injury. Th e district court did not abuse its discretion by departing upward on thi s basis. Johnson objects to the court’s reference in sentencing to th e criminal sexual abuse guideline, § 2A3.1. He does not argue that this led to a n 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 th e district court merely considered it in deciding an appropriate period for the upward departure for conduct which involved sexual violence and which justified departur e under § 5K2.3 and § 5K2.8. This was permissible under the sentencing guidelines. See generallyU.S.S.G. § 1B1.2 commentary .
Johnso n also argues that the district court violated his due process rights byimposing a longer sentence on remand. Imposition of a mor e str ingent sentence upon resentencing is not improper when it is based o n newly obtained information rather than vindictiveness. Texas v. McCullo ugh , 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 anti

depressant drugs had failed, her behavioral patterns continued to b e disrupted, and dis cussion of the event still upset her severely. There is no showing of vindictiveness or that the dist rict court erred by relying on the new informatio n, and Johnson’s due process rights were not violated by the sentence imposed. For these reasons the sentence is affirmed.

## -4- A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.