U.S. v. Anderson
| Decision Date | 14 October 1993 |
| Docket Number | 92-7733,Nos. 92-7646,s. 92-7646 |
| Citation | 5 F.3d 795 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Duane Albert ANDERSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mark Charles BARNETT, a/k/a Neil Thomas Hanley, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Hugh W. Tedder, Jr., Jackson, MS (court-appointed), for Anderson.
Albert D. Malone, Brantley & Malone, Jackson, MS (court-appointed), for Barnett.
Jack B. Lacy, Asst. U.S. Atty., George Phillips, U.S. Atty., Jackson, MS, for U.S.
Appeals from the United States District Court for the Southern District of Mississippi.
Before GARWOOD, DAVIS and SMITH, Circuit Judges.
These appeals, consolidated for purposes of oral argument, arise from the kidnapping and subsequent sexual abuse of Deanna Marie Caveny (Caveny). Defendants-appellants Duane Albert Anderson (Anderson) and Mark Charles Barnett, a/k/a Neil Thomas Hanley (Barnett), challenge the sentences imposed following the entry of their pleas of guilty to the federal kidnapping offense. Anderson contends that the district court erred in calculating his base offense level for kidnapping by allegedly counting the kidnapping offense twice, first by relying on the kidnapping guideline, and second by referring to the sexual abuse guideline and enhancing that base offense level for abduction of the sexual abuse victim. Barnett also challenges the reference to the sexual abuse guideline in calculating his kidnapping offense level, arguing, inter alia, that the sexual abuse committed was a state, and not federal, offense and therefore could not be "another offense" under the federal sentencing guidelines. Finally, defendants assert that the district court abused its discretion in departing upward from the resulting guideline range on the grounds that Caveny suffered extreme psychological injury and that the defendants' actions were unusually heinous and cruel. Finding no reversible error and no abuse of discretion, we affirm.
On April 7, 1992, Anderson and Barnett forcibly abducted Caveny, a 29-year-old mathematics professor, from the parking lot of a laundromat near her apartment in Charleston, South Carolina. Anderson seized her and attempted to force her into her automobile, a maroon 1981 Chevrolet Citation; Barnett assisted him by opening the door of the vehicle. Following a brief struggle, Caveny surrendered her car keys to Anderson. After the defendants subdued Caveny and got into the car with her, Barnett drove to a nearby shopping center parking lot where he used Caveny's automatic teller card to obtain approximately $200 from an automatic teller machine.
With Barnett driving and Anderson in the back seat with Caveny, the trio traveled toward Alabama. Several hours after the abduction, Anderson raped Caveny in the rear seat of her car. During the drive to Alabama, Anderson raped her two or three additional times. Anderson also subjected Caveny to anal sex and demanded that she perform oral sex upon him. Over the course of the kidnapping ordeal, Anderson and Barnett threatened to kill Caveny and told her about other people they had killed or planned to kill; they proposed getting rid of any evidence against them by burning her body and her car.
During the night, the defendants stopped at a motel in Bessemer, Alabama. Barnett registered in the name of Neil Hanley. The manager of the hotel remembered that Barnett did not know the license number of the vehicle he was driving and that he went outside to the car to obtain that information. Barnett told the manager there would be two persons in the room, but the manager saw only Barnett. In the motel room, Anderson raped Caveny at least twice. Caveny attempted to get help by leaving messages torn from soap wrappers in the motel room. 1
On the morning of April 8, the defendants drove Caveny to Meridian, Mississippi. When Barnett stopped at a convenience store to buy food, Caveny was able to get out of the car and obtain help at a nearby store. According to a presentence investigation report (PSI) prepared by the United States Probation Office, Anderson "followed" her from the car and was subsequently arrested. 2 Barnett drove off in Caveny's car and was not apprehended until April 10, 1992, when he was arrested for trespassing by the Orlando, Florida Police Department, and a background check revealed that Barnett was wanted by federal authorities in connection with the Caveny kidnapping.
A grand jury indicted Anderson and Barnett in a two-count indictment charging that defendants (1) kidnapped Caveny and intentionally transported her in interstate commerce from Charleston, South Carolina, to Meridian, Mississippi, in violation of 18 U.S.C. Sec. 1201(a)(1); and (2) unlawfully transported a stolen motor vehicle in interstate commerce, in violation of 18 U.S.C. Sec. 2312. Anderson and Barnett were also charged with aiding and abetting each other in the commission of both charged offenses, in violation of 18 U.S.C. Sec. 2. Both defendants pleaded guilty to the kidnapping count in return for dismissal of the motor vehicle charge.
PSIs were prepared for Anderson and Barnett, using the 1991 edition of the Sentencing Guidelines. The PSIs began calculations of the defendants' offense levels with the kidnapping guideline, U.S.S.G. Sec. 2A4.1, which carries a base offense level of 24. U.S.S.G. Sec. 2A4.1(a). The Sentencing Commission recognized the possibility that a kidnapping victim might be sexually exploited during the kidnapping offense and provided a 3-level increase, to level 27, in such an event. U.S.S.G. Sec. 2A4.1(b)(5). The kidnapping guideline goes on to further provide, however, that if "another offense" (unspecified by the guidelines) was committed during the kidnapping, the sentencing court should increase the offense level to the level applicable to the other offense if the resulting offense level is higher. U.S.S.G. Sec. 2A4.1(b)(7). 3 The PSIs then referred to section 2A3.1, the guideline for criminal sexual abuse. This section establishes a base offense level of 27 and allows an enhancement of 4 levels, to level 31, if the victim of the sexual abuse was abducted. U.S.S.G. Sec. 2A3.1(b)(5). The PSIs calculated the defendants' offense levels to be 31, the level reached by reference to the sexual abuse guideline, because that level was greater than the level 27 resulting under the kidnapping guideline. The PSIs credited both defendants with acceptance of responsibility, pursuant to U.S.S.G. Sec. 3E1.1(a), and bestowed on them a 2-level reduction, yielding net total offense levels for each of 29. Finally, the PSIs noted that ample justification existed for the district court to make an upward departure, based on circumstances not otherwise taken into account by the guidelines, such as the psychological injury to Caveny and the defendants' extreme conduct. U.S.S.G. Secs. 5K2.0, p.s., 5K2.3, p.s., and 5K2.8, p.s.
Anderson and Barnett both objected to their PSIs on the ground that the enhancement of the sexual abuse guideline for abduction, when they were convicted of abduction, was essentially a double counting of the kidnapping offense and therefore violated the prohibition against double jeopardy.
The district court denied defendants' objections and sentenced them according to the recommendations of the PSIs, using the offense levels of 29 reached by reference to the sexual abuse guideline, with a credit for acceptance of responsibility. The court departed upward by 4 levels, for total offense levels of 33, on the bases of the extreme psychological harm sustained by Caveny and the extreme conduct exhibited by Anderson and Barnett.
Anderson's criminal history category of III, with an offense level of 33, yielded a sentencing range of 168 to 210 months. The district court sentenced him to 200 months imprisonment, followed by 5 years supervised release. Barnett, with a criminal history category of V and an offense level of 33, faced a sentencing range of 210 to 262 months. He received a term of 240 months imprisonment and 5 years supervised release.
On appeal, Anderson and Barnett challenge the calculation of their offense levels and the district court's upward departure.
We will uphold a sentence imposed pursuant to the guidelines unless it is imposed in violation of law, is the result of incorrect application of the guidelines, or is an unreasonable departure from the applicable guideline range. 18 U.S.C. Sec. 3742(e); United States v. Buenrostro, 868 F.2d 135, 139 (5th Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990). We review determinations of legal principles de novo and factual findings for clear error. United States v. Mourning, 914 F.2d 699, 704 (5th Cir.1990).
In sentencing the defendants, the district court began with the kidnapping guideline, section 2A4.1, with its base offense level of 24. Next, as directed by section 2A4.1(b)(7), the court referred to the criminal sexual abuse guideline, section 2A3.1, which carries a base offense level of 27. Finally, the court enhanced the sexual abuse offense level for abduction of the victim, reaching an offense level (before any departure) of 31.
Anderson does not argue that the district court improperly turned to section 2A3.1 from section 2A4.1(b)(7). Instead, he complains that it was error for the district court to enhance the sexual abuse base offense level for the abduction of the victim, reasoning that the court already took the kidnapping offense into consideration when it began its calculations with section 2A4.1, the kidnapping guideline. Of the 3 offense levels considered, 4 he claims that the original level 24 and the final level 31 were each punishment for the kidnapping offense. This, he contends, constitutes impermissible double counting. Anderson maintains that...
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