U.S. v. May, 03-3108.

• Decision Date: 13 July 2005
• Docket Number: No. 03-3108.,03-3108.
• Citation: 413 F.3d 841
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerald Phillip MAY, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

413 F.3d 841

UNITED STATES of America, Plaintiff-Appellee, v. Gerald Phillip MAY, Jr., Defendant-Appellant.

No. 03-3108.

United States Court of Appeals, Eighth Circuit.

Submitted: October 22, 2004.

Filed: July 13, 2005.

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Manvir K. Atwal, argued, Asst. Federal Public Defender, Minneapolis, MN, for appellant.

Ann M. Anaya, argued, Asst. U.S. Atty., Minneapolis, MN, for appellee.

Before MORRIS SHEPPARD ARNOLD, JOHN R. GIBSON, and SMITH, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Gerald Phillip May, Jr., pleaded guilty to assault with intent to commit murder, in violation of 18 U.S.C. §§ 113(a)(1), 1151, and 1153(a). May was sentenced to ninety-seven months' imprisonment. He appeals his sentence and argues that the district court¹ erred in: (1) granting an upward departure, (2) ordering restitution in an amount not supported by the evidence, and (3) sentencing him in violation of his Sixth Amendment rights. We affirm.

May did not object to the following facts from the presentence report. On the morning of August 28, 2002, Colleen Johns awoke to find May, her husband, assaulting her. May slapped, punched, kicked, and choked her. He bit her all over her body, threatened to kill her, and burned her chest with a cigarette. The assault lasted approximately four hours. Eventually, Johns was able to reach a phone and call 911 for help. Johns was taken to Red Lake Indian Health Service Hospital, transferred to another hospital because of the seriousness of her injuries, and later airlifted to the Fargo Merit Care Hospital. She suffered a subdural bleed in two regions of her brain, a seizure, cuts to her mouth and face, numerous bite wounds and cigarette burns, and she required approximately forty-seven stitches to her lip.

The district court determined that the applicable guideline range was forty-six to fifty-seven months, after the court applied a four-level increase for permanent or life-threatening bodily injury and a three-level reduction for acceptance of responsibility. May had a criminal history category of I. The court upwardly departed five levels based upon U.S.S.G. § 5K2.3 for severe psychological injury and § 5K2.8 for extreme conduct. From the resulting range of seventy-eight to ninety-seven months, the court sentenced May to ninety-seven months' imprisonment and ordered him to pay $39,368.20 in restitution pursuant to the Mandatory Victims Restitution Act of 1996. See 18 U.S.C. § 3663A (2000).

I.

May argues that the district court erred in applying an upward departure to his sentence. The Supreme Court recently changed the way district courts are to apply the federal sentencing guidelines and courts of appeals are to review sentences imposed. United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The Court in Booker held that a defendant's Sixth Amendment right is violated by "the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant." Id. at 756. The Court recognized, however, "If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment." Id. at 750. In the remedial portion of the Booker opinion, the Supreme Court excised the mandatory provision of the Guidelines and the provision that sets forth the standard of review on appeal. Id. at 764.

Although the Guidelines are no longer mandatory, the district court must still consult the Guidelines and take them into account when sentencing. Id. at 767. In reviewing whether the district court correctly determined the applicable Guideline range, we continue to review the district court's findings of fact for clear error and its interpretation and application of the Guidelines de novo. United States v. Mashek, 406 F.3d 1012, 1016-17 (8th Cir. 2005). The resulting sentence is reviewed for reasonableness in light of the factors set forth in 18 U.S.C. § 3553(a). Booker, 125 S.Ct. at 765-66. Although our description of reasonableness review has differed slightly from case to case,² our cases have consistently agreed that Booker mandates a review for reasonableness with regard to the section 3553(a) factors. If any inconsistency exists among the standards articulated by this Court, we need not resolve it today, for May's sentence is reasonable and not an abuse of the court's discretion under any formulation.

We first address the district court's departure for severe psychological injury under U.S.S.G. § 5K2.3, which authorizes the court to increase the defendant's sentence above the guideline range if the victim "suffered psychological injury much more serious than that normally resulting from commission of the offense." The amount of the increase ordinarily depends on the severity of the injury as well as the extent to which the injury was intended or knowingly risked. U.S.S.G. § 5K2.3. The departure normally applies:

only when there is a substantial impairment of the intellectual, psychological, emotional, or behavioral functioning of a victim, when the impairment is likely to be of an extended or continuous duration, and when the impairment manifests itself by physical or psychological symptoms or by changes in behavior patterns. The court should consider the extent to which such harm was likely, given the nature of the defendant's conduct.

Id.

The district court found that Johns suffered a severe psychological injury, which was much more serious than would normally result from the commission of assault with intent to commit murder. The effects of her "extremely life-threatening" injury were likely to be permanent and could "easily be exacerbated in the future." The court also noted that the assault had caused "tremendous damage to Johns and to others."

These findings are well-supported by the record and are not clearly erroneous. At the sentencing hearing, Johns testified about the extent of her injuries. She explained that she has experienced headaches, lack of concentration, both short-term and long-term memory loss, and she has not been able to continue her career as a registered nurse. Johns's mother also testified that since the assault Johns has had headaches, memory loss, depression, and her personality has become more distant. Johns's doctors testified that Johns's head trauma was the likely cause of the headaches, memory loss, and increased depression Johns had been experiencing since the assault.

May claims that Johns's memory loss cannot provide a basis for the departure because memory loss was already taken into consideration by the four-level enhancement under U.S.S.G. § 2A2.1(b)(1)(A), which applies if the victim sustained either "permanent" or "life-threatening bodily injury." The district court found that Johns sustained both permanent and life-threatening injury. The record does not indicate that the district court based both the enhancement and the departure on memory loss. The enhancement is sufficiently supported by the district court's findings that (1) Johns's injuries were "extremely life-threatening," (2) the assault "could have resulted in death," and (3) the effects of her injury were "likely permanent." Testimony at the sentencing hearing addressed Johns's headaches, memory loss, depression, changed personality, and her inability to continue her career as a registered nurse. That testimony supports the district court's finding that Johns's sustained a "severe psychological injury," beyond the injury typical of the charged assault. In essence, the district court found that Johns's injuries fell outside the heartland of the charged offense.

Even if the district court had relied on the memory loss for both the enhancement and the departure, this form of "double-counting" is permissible under the Guidelines. See United States v. Thin Elk, 321 F.3d 704, 708 (8th Cir.2003). A departure is permitted where the Guidelines do not adequately take into consideration, either in kind or to a degree, an aggravating circumstance. See U.S.S.G. § 5K2.0(a)(1). The district court's finding that Johns's injuries were beyond those typical of the offense was not clearly erroneous and we cannot say that its departure was unreasonable.

Second, May claims that some degree of emotional damage, change in behavior, and impairment is always involved in cases of domestic assault and must have been inherent in May's guideline sentence. This is a variation of May's "double-counting" argument above. May's argument lacks merit. His convicted offense was assault with intent to commit murder, not domestic assault, and he provides no support for his assertion that assault with intent to commit murder inherently involves the severe psychological consequences that Johns experienced.

The district court's departure was also based, in part, on May's extreme conduct pursuant to U.S.S.G. § 5K2.8. That section permits an increased sentence if "the defendant's conduct was unusually heinous, cruel, brutal, or degrading to the victim." Id. Examples of extreme conduct include "torture of a victim, gratuitous infliction of injury, or prolonging of pain or humiliation." Id. May argues that his conduct was not sufficiently cruel or heinous to support a departure for extreme conduct.

In United States v. Lewis, 235 F.3d 394, 397 (8th Cir.2000), the defendant pleaded guilty to harboring an illegal alien, and the district court found that the Lewis family had forced the alien to turn over his outside wages as well as work as its household servant. Id. at 395. In support of its decision to depart, the district court found

[the alien] was repeatedly physically beaten, tormented, and sexually abused. He was degraded, humiliated, and psychologically...