           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2       United States v. Cole, et al.             Nos. 02-5839/5840
        ELECTRONIC CITATION: 2004 FED App. 0051P (6th Cir.)
                    File Name: 04a0051p.06                                                         _________________
                                                                                                        COUNSEL
UNITED STATES COURT OF APPEALS
                                                                           ARGUED:      Jeff Mueller, LAW OFFICE OF JEFF
                  FOR THE SIXTH CIRCUIT                                    MUELLER, Jackson, Tennessee, Bruce I. Griffey, OFFICE
                    _________________                                      OF BRUCE IRWIN GRIFFEY, Memphis, Tennessee, for
                                                                           Appellants. James W. Powell, ASSISTANT UNITED
 UNITED STATES OF AMERICA , X                                              STATES ATTORNEY, Jackson, Tennessee, for Appellee.
             Plaintiff-Appellee, -                                         ON BRIEF: Jeff Mueller, LAW OFFICE OF JEFF
                                  -                                        MUELLER, Jackson, Tennessee, Bruce I. Griffey, OFFICE
                                  -            Nos. 02-5839/5840           OF BRUCE IRWIN GRIFFEY, Memphis, Tennessee, for
            v.                    -                                        Appellants. James W. Powell, ASSISTANT UNITED
                                   >                                       STATES ATTORNEY, Jackson, Tennessee, for Appellee.
                                  ,
 RICHARD COLE , III (02-5839); -
 JONATHAN JOHNSON                                                                                  _________________
                                  -
 (02-5840),                       -                                                                    OPINION
       Defendants-Appellants. -                                                                    _________________
                                 N
                                                                              FORESTER, District Judge. The Defendants, Richard
       Appeal from the United States District Court                        Cole, III (“Cole”) and Jonathan Johnson (“Johnson”) appeal
    for the Western District of Tennessee at Jackson.                      the sentences imposed on them by the U.S. District Court for
   No. 01-10023—James D. Todd, Chief District Judge.                       the Western District of Tennessee pursuant to the 2001 United
                                                                           States Sentencing Guidelines (“U.S.S.G.”), resulting from
                   Argued: October 30, 2003                                their convictions for kidnapping, assault, and the use of a
                                                                           firearm during a crime of violence.1
             Decided and Filed: February 19, 2004

        Before: MOORE and ROGERS, Circuit Judges;                              1
              FORESTER, Chief District Judge.*                                   The six-count indictment against the defendants consisted of the
                                                                           following: Count 1, conspiring to kidnap and sexually assault a
                                                                           Postmaster in violation of 18 U.S.C. § 1201(c); Count 2, kidnapping a
                                                                           Postmaster in violation of 18 U.S.C. § 1201(a)(5); Count 3, car-jacking
                                                                           a Postmaster’s vehicle in violation of 18 U.S.C. § 2119; C ount 4,
                                                                           assaulting a Postmaster with a weapon in violation of 18 U.S.C. § 111;
                                                                           Count 5, hindering and delaying a Postmaster’s communication with law
                                                                           enforcement by threa ts of force and violence in vio lation of 18 U .S.C.
                                                                           § 1512(b )(3); Count 6, brandishing a firearm during a crime of violence
    *
                                                                           in violation of 18 U.S.C. § 924(c). Pursuant to plea negotiations, Johnson
      The Honorable Karl S. Forester, Chief United States District Judge   and Cole pled guilty to Counts 2, 4, and 6 of the ind ictment. Counts 1, 3,
for the Eastern District of Kentucky, sitting by designation.              and 5 were dism issed. Johnson received a total sentence of 489 months;

                                   1
Nos. 02-5839/5840               United States v. Cole, et al.   3   4       United States v. Cole, et al.               Nos. 02-5839/5840

  On appeal, Cole presents the following arguments: (1) the           After her release, the victim gave two statements to Postal
district court erred when it utilized U.S.S.G. § 2A3.1, instead     Inspector Katrina Chalmers. The statements provided the
of U.S.S.G. § 2A4.1 for the kidnapping offense; (2) the             details of the defendants’ activities as later set forth in the
district court should not have granted a four-level sentence        presentence investigation report. The victim stated that, prior
enhancement for abduction on a conviction for a kidnapping          to her release, Johnson found an insurance card in the glove
offense pursuant to U.S.S.G. § 2A3.1(b)(5); and (3) the             box of her vehicle and told her that he had her address and
district court wrongly refused to grant a downward departure        would “send someone to kill her” if she told anyone about the
for diminished capacity and aberrant behavior pursuant to           incident. Johnson also repeatedly stated that he ought to kill
U.S.S.G. §§ 5K2.13 and 5K2.20. Johnson contends that the            her because she had seen his and Cole’s faces.
district court erred when it increased his offense level by two
points for obstruction of justice under U.S.S.G. § 3C1.1. In          The defendants pled guilty to kidnapping, assault, and the
addition, both Cole and Johnson allege that the district court      use of a firearm during a crime of violence, and a sentencing
erred when it granted a three-level upward departure for            hearing was held for each defendant. With respect to Cole,
extreme conduct in accordance with U.S.S.G. § 5K2.8. For            the district court began with the kidnapping charge and
the following reasons, we AFFIRM.                                   proceeded to U.S.S.G. § 2A4.1.2 However, that guideline,

I.   JURISDICTION
                                                                        2
                                                                         Although later amended, U.S.S.G. § 2A4.1. (2001) provided:
  The district court had jurisdiction pursuant to 18 U.S.C.         Kidnapping, A bdu ction, U nlawful R estraint:
§ 3231. This Court has jurisdiction pursuant to 28 U.S.C.               (a) Base Offense Level: 24
§ 1291.                                                                 (b) Specific Offense Characteristics
                                                                        (1) If a ransom demand or a demand upon government was made,
II. FACTUAL BACKGROUND AND PROCEDURAL                                   increase by 6 levels.
    HISTORY                                                             (2) (A) If the victim sustained perm anent or life-threatening bo dily
                                                                        injury, increase by 4 levels; (B) if the victim sustained serious bod ily
                                                                        injury, increase by 2 levels; or (C) if the degree of injury is between
   At or around noon on May 1, 2001, the defendants entered             that specified in subdivisions (A ) and (B ), increase by 3 levels.
the Bells, Tennessee U.S. Post Office. Cole and Johnson,                (3) If a dangerous weapo n was used, increa se by 2 levels.
who was armed with an unloaded .38 caliber pistol tucked                (4)(A) If the victim was not released before thirty days had elapsed,
into the front waist-band of his pants, forced the victim (a            increase by 2 levels.
                                                                        (B) If the victim was not released before seven days had elapsed,
United States Postmaster) out of the building and into her              increase by 1 level.
vehicle, in which Cole and Johnson, along with their victim,            (C) If the victim was released before twenty-four hours had elapsed,
fled the scene. For four hours, the defendants held the victim          decrease by 1 lev el.
captive, driving the back roads surrounding Jackson,                    (5) If the victim was sexually exp loited: increase by 3 levels.
Tennessee, and taking turns sexually assaulting her. She was            (6) If the victim is a minor and, in exchange for money or other
released around 4 p.m., whereupon she reported the crime.               consideration, was placed in the care or custody of another person
                                                                        who had no legal right to such care or custody of the victim, increase
The defendants were arrested a short time later.                        by 3 levels.
                                                                        (7) If the victim was kidnapped, abducted, or unlawfully restrained
                                                                        during the commission of, or in connection with, another offense or
                                                                        escape therefrom; or if another offense was committed during the
Cole wa s sentenced to a total of 319 months.                           kidnapping, abd uction, or unlawful restraint, increase to--
Nos. 02-5839/5840                  United States v. Cole, et al.             5    6       United States v. Cole, et al.              Nos. 02-5839/5840

under (b)(7)(A), directed the court to refer to U.S.S.G.                          aberrant behavior pursuant to U.S.S.G. §§ 5K2.134 and
§ 2A3.13 and impose sentence under that section if it resulted                    5K2.205 because Cole’s acts fell outside the language
in a greater offense level. As a result, Cole received a higher                   permitting such departure. Finally, the court departed upward
base offense level. Additionally, pursuant to specific offense                    three levels for extreme conduct based on U.S.S.G. § 5K2.8.6
characteristic (b)(5) of U.S.S.G. § 2A3.1, the district court                     This resulted in a total sentence of 319 months.7
granted a four level sentence enhancement because the victim
had been abducted. The district court also denied Cole’s
request for a downward departure for diminished capacity and                          4
                                                                                        U.S.S.G. § 5K 2.13 . Diminished Cap acity (Policy Statement)
                                                                                      A sentence below the applicable guideline range may be warranted
                                                                                      if the defendant committed the offense while suffering from a
                                                                                      significantly reduced mental capacity. However, the court may not
                                                                                      depart below the ap plicab le guideline range if (1) the significa ntly
                                                                                      reduced mental capacity was caused by the voluntary use of drugs or
    (A) the offense level from the Chapter Two offense guideline                      other intoxicants; (2) the facts and circum sta nces of the defenda nt's
    app licable to that other offense if such offense guideline includes an           offense indicate a need to protect the public because the offense
    adjustment for kidnapping, abduction, or unlawful restraint, or                   involved actual violence or a serious threat of violence; or (3) the
    otherwise takes such conduct into account; or                                     de fendant's criminal history indicates a need to incarcerate the
    (B) 4 plus the offense level from the o ffense guideline applicable to            defendant to protect the public if a departure is warranted, the extent
    that other offense, but in no event greater than level 43, in any other           of the departure should reflect the extent to which the reduced mental
    case, if the resulting offense le vel is greater than that determined             capacity contributed to the commission of the offense.
    above.
                                                                                      5
    3                                                                                  U.S.S.G. § 5K 2.20 . Aberrant B ehavior (P olicy Statement)
     U.S.S.G.§ 2A3.1. Criminal Sexual Abuse; Attempt to Co mmit                       A sentenc e belo w the applicable guideline range may be warranted
Criminal Sexual Abuse:                                                                in an extraordinary case if the defendant's criminal conduct
    (a) Base Offense Level: 27                                                        constituted aberrant behavior. However, the court may not depart
    (b) Specific Offense Characteristics                                              below the guideline range on this basis if (1) the offense involved
    (1) If the offense was committed by the means set forth in 18 U.S.C.              serious bod ily injury or death; (2) the defendant discharged a firearm
    § 2241(a) o r (b), increase by 4 levels.                                          or otherwise used a firearm or a dangerous weapon; (3) the instant
    (2) (A) If the victim had not attained the age of twelve years, increa se         offense of conviction is a serious drug trafficking offense; (4) the
    by 4 levels; or (B) if the victim had attained the age of twelve years            defendant has more than one criminal history point, as determined
    but had no t attained the age of sixteen years, increase by 2 levels.             under Chapter Four (Criminal History and Criminal Livelihood); or
    (3) If the victim was (A ) in the custody, care, or supervisory control           (5) the defendant has a prior federal, or state, felony conviction,
    of the defendant; or (B) a person held in the custody of a correctional           regardless of whether the conviction is countable under Chapter Four.
    facility, increase by 2 leve ls.
    (4) (A) If the victim sustained permanent or life-threatening b odily             6
    injury, increase by 4 levels; (B) if the victim sustained serious bod ily          U.S.S.G. § 5K 2.8. E xtreme Co nduc t (Policy Statem ent)
    injury, increase by 2 levels; or (C ) if the degree of injury is between          If the defendant's conduct was unusually heinous, cruel, brutal, or
    that specified in subdivisions (A ) and (B ), increase by 3 levels.               degrading to the victim, the court may increase the sentence above
    (5) If the victim was abduc ted, increase by 4 levels.                            the guideline range to reflect the nature of the conduct. Examples of
    (6) If, to persuade, induce, entice, or coerce a minor to engage in               extreme conduct include torture of a victim, gratuitous infliction of
    prohibited sexual cond uct, or if, to facilitate transportation o r travel,       injury, or prolonging of pain or humiliation.
    by a minor or a participant, to engage in prohib ited sexual conduc t,            7
    the offense involved (A) the knowing misrepresentation of a                        The sentence breaks down in the following manner: 235 months on
    pa rticipant's identity; or (B) the use of a computer or an Internet-         Count 2, kidnapping; 120 months on Count 4, assault, to run concurrent
    access device, increase by 2 levels.                                          with Count 2; and 84 months on Count 6, the firearm charge, to run
Nos. 02-5839/5840                 United States v. Cole, et al.           7    8      United States v. Cole, et al.          Nos. 02-5839/5840

  With regard to Johnson, the district court increased his                         committed during the kidnapping, abduction, or unlawful
offense level two points for obstruction of justice pursuant to                    restraint, increase to- (A) the offense level from the
U.S.S.G. § 3C1.18 because of the threats he made to the                            Chapter Two offense guideline applicable to that other
victim prior to releasing her. Additionally, as it had done                        offense if such offense guideline includes an adjustment
with regard to Cole, the court departed upward three levels for                    for kidnapping, abduction, or unlawful restraint . . . if the
extreme conduct based on U.S.S.G. § 5K2.8. Johnson was                             resulting offense level is greater than that determined
ultimately sentenced to a term of 489 months.9                                     above.
III.       DEFENDANT COLE                                                      U.S.S.G. § 2A4.1(b)(7). The guideline also provides, at
                                                                               U.S.S.G. § 2A4.1(b)(5)(A), for an increase of three points if
  A. Appropriateness of Sentencing Guideline Used                              the victim was sexually exploited.
  Defendant Cole was indicted and pled guilty to a violation                     This Court utilizes a de novo review with respect to a
of 18 U.S.C. § 1201(a)(5), which proscribes the offense of                     sentencing court’s interpretation of the United States
kidnapping. The U.S.S.G. Appendix A, Statutory Index,                          Sentencing Guidelines, and a clearly erroneous standard with
specifies the offense guideline section in Chapter Two                         respect to factual findings. See United States v. Kimble, 305
applicable to the statute of conviction. The proper guideline                  F.3d 480, 485 (6th Cir. 2002); United States v. Denton, 246
specified by the index for a violation of 18 U.S.C. § 1201 is                  F.3d 784, 789 (6th Cir. 2001); United States v. Scott, 74 F.3d
set out at § 2A4.1, and specifies a base offense level of 24.                  107, 111 (6th Cir. 1996).
This guideline provides in part that:
                                                                                 The defendants’ victim, after being kidnapped, was forcibly
  if the victim was kidnapped, abducted, or unlawfully                         raped at gunpoint. The offense guideline for criminal sexual
  restrained during the commission of, or in connection                        assault is U.S.S.G. § 2A3.1, which specifies a base offense
  with, another offense . . . or if another offense was                        level of 27 and includes an adjustment for kidnapping,
                                                                               abduction, or unlawful restraint as a specific offense
                                                                               characteristic. The district court, applying the specific
consecutive with Co unts 2 and 4.                                              offense characteristics of U.S.S.G. § 2A3.1(b)(1) and
                                                                               2A3.1(b)(5), determined the resulting offense level to be 35.
       8                                                                       The court concluded that because the offense level under
      U.S.S.G. § 3C1.1. Obstructing or Impeding the Administration of
Justice                                                                        U.S.S.G. § 2A3.1 was greater than the base offense level
     If (A) the defendant willfully obstructed or impeded, or attempted to     under § 2A4.1, § 2A4.1(b)(7) required the use of § 2A3.1 and
     obstruct or impede, the administration of justice during the course of    prohibited the application of § 2A4.1. Cole argues that this
     the investigation, prosecution, or sentencing of the instant offense of
     conviction, and (B) the obstructive conduct related to (i) the
                                                                               conclusion was erroneous.
     defendant's offense of conviction an d any relevant conduct; or (ii) a
     closely related offense, increase the offense level by 2 levels.            While this Court has not yet addressed this issue, each and
                                                                               every one of the courts of appeals that has done so has
       9
     The sentence breaks down in the following manner: 405 months on           determined the use of U.S.S.G. § 2A3.1 to enhance a sentence
Count 2, kidnapping; 120 months on Count 4, assault, to run concurrent         for kidnapping to be appropriate. We are inclined to agree
with Count 2; and 84 months on Count 6, the firearm charge, to run             with the circuits that have heretofore so held, and thus the
consecutive with Co unts 2 and 4.
Nos. 02-5839/5840                  United States v. Cole, et al.            9    10    United States v. Cole, et al.         Nos. 02-5839/5840

district court was correct in proceeding from U.S.S.G.                               An enhancement is provided when the offense is
§ 2A4.1(b)(7)(A) to U.S.S.G. § 2A3.1.10 As the Court in U.S.                       committed for ransom or to facilitate the commission of
v. Galloway, 963 F.2d 1388 (10th Cir.1992), reasoned:                              another offense. Should the application of this guideline
                                                                                   result in a penalty less than the result achieved by
    We find that § 2A4.1(b)(5) is not ambiguous. When a                            applying the guideline for the underlying offense, apply
  victim is kidnapped in order to facilitate the commission                        the guideline for the underlying offense (e.g. § 2A3.1,
  of another offense, § 2A4.1(b)(5) directs the sentencing                         Criminal Sexual Abuse).
  court to apply the guideline with the higher offense as
  between the kidnapping guideline and the guideline for                           The Sentencing Commission’s intent to apply the higher
  the other offense. The background notes to § 2A4.1                               of the two guidelines is unmistakable.
  explain:
                                                                                 Id. at 1391.
                                                                                   It could be argued that U.S.S.G. §§ 2A4.1 and 2A3.1
                                                                                 overlap to such an extent that a feasible alternative means of
    10
                                                                                 sentencing would be to use § 2A4.1 and then add three levels
        See United States v. M ichaud, 268 F.3d 728, 738 -39 (9th Cir.           for sexual exploitation under specific offense characteristic
2001)(upholding actions of district court identical to those here at issue:      (b)(5) of that guideline. However, the general application
“Section 2A4 .1(b)(7) states unambiguously that the offense level                principles of the U.S.S.G. in the section titled, “Application
calculation from the other offense com mitted during a kidnapp ing is to
app ly ‘if the resulting offense level is greater than that determined’ using    Instructions,” require that, “[w]here two or more guideline
§ 2A4 .1"); Un ited States v. R ice, No. 00-45 94, 2001 W L 1087 68 (4th Cir.    provisions appear equally applicable, but the guidelines
Feb. 8, 2001); United States v. C ree, 166 F.3d 1270 (8th Cir.                   authorize the application of only one such provision, use the
1999)(upho lding district court’s application o f § 2A 3.1 base offense level    provision that results in the greater offense level.” U.S.S.G.
for criminal sexual abuse, rather than the lower b ase offense level of          § 1B1.1, Application Note 5. This statement dispels with any
2A4.1 for kidnapping, even though sexual assault was committed outside
of federal territorial jurisdiction); United States v. Lew is, 115 F.3d 1531     need to determine which allegedly conflicting section
(11th Cir. 19 97); United States v. Po llard, 986 F.2d 44, 46 (3rd Cir. 1993)    controls. Clearly, the provision resulting in the greater
(upholding conviction and ruling of district court that applied sentencing       offense level is U.S.S.G. § 2A3.1. As a result, the correct
guideline for criminal sexual abuse to a defendant convicted of conspiracy       guideline was used.
to kidnap even though he was not charged with an assault offense, stating:
“There is no statuto ry or co nstitutional requirement that a defendant be
convicted of cond uct before the cond uct may be co nsidered in
                                                                                   B. The Four-Level Sentence Enhancement for
sentencing.”); Un ited States v. An derso n, 5 F.3d 795 (5th Cir.                     Abduction under U.S.S.G. § 2A3.1(b)(5)
1993)(though this court had not previously applied U.S.S.G.
§ 2A4.1(b)(7) in the criminal sexual abuse context, it had approved the            The district court sentenced Cole for the crime of
section-switching provision of the guideline and cited as authority cases        kidnapping. However, in so doing, it correctly employed
of the T hird an d T enth C ircuits listed herein); United States v. Galloway,   U.S.S.G. § 2A3.1 as the offense guideline, thereby ultimately
963 F.2d 1388, 1391 (10th Cir. 1992)(“The Sentencing Co mmission’s
intent to apply the higher of the two guidelines is unmistakable. . . . The
                                                                                 sentencing him for criminal sexual assault and abduction.
fact that a defendant may have committed a second additional offense             Cole asserts that the district court’s use of the specific offense
cannot relieve him from responsibility for the more serious of the               characteristic (b)(5) of U.S.S.G. § 2A3.1, which calls for an
offenses. If that were the case, a defendant would receive a benefit from        increase of four from the base offense level when the victim
the fact that he chose to commit an additional offense”).
Nos. 02-5839/5840                  United States v. Cole, et al.          11     12     United States v. Cole, et al.                Nos. 02-5839/5840

was abducted, is an impermissible double counting because                          C. Diminished Capacity and Aberrant Behavior
an essential element of kidnapping is abduction. Cole argues
that the four level enhancement “would enhance for the very                        Although “a district court’s discretionary decision not to
action which defines the crime itself.” Appellant’s Br. at 10.                   depart downward from the Guidelines range ordinarily is not
                                                                                 appealable,” an appeal is allowed “when the district court
   As noted above, this Court reviews a district court’s                         believed that it lacked any authority to depart downward as a
application of the sentencing guideline de novo, while factual                   matter of law.” United States v. Burke, 237 F.3d 741, 743
findings are upheld unless they are clearly erroneous. See                       (6th Cir. 2001).
United States v. Weekly, 130 F.3d 747, 750 (6th Cir. 1997).
                                                                                      1.    Diminished Capacity
   This Court has held, albeit on different facts, that
“impermissible ‘double counting’ occurs when precisely the                         At Cole’s sentencing hearing, the district court concluded
same aspect of a defendant’s conduct factors into his sentence                   that, based on expert trial testimony, Cole suffered from
in separate ways.” United States v. Farrow, 198 F.3d 179,                        diminished capacity. However, the district court denied a
193 (6th Cir.1999) (citing United States v. Perkins, 89 F.3d                     downward departure from the applicable sentencing
303, 310 (6th Cir.1996)). Applying this established tenet to                     guideline, finding that the guideline limitations prohibited
the instant case, it is clear that no impermissible double                       such a departure.
counting has occurred. Cole was convicted of kidnapping.
Appropriately, the district court proceeded to U.S.S.G.                            U.S.S.G. § 5K2.13, titled “Diminished Capacity,” states
§ 2A4.1 as the applicable sentencing guideline with respect to                   that the district courts have the discretion to grant a
kidnapping. That section required the court to proceed to                        downward departure from the applicable sentencing
U.S.S.G. § 2A3.1. The district court sentenced Cole for                          guidelines “if the defendant committed the offense while
criminal sexual assault and increased the base offense level by                  suffering from a significantly reduced mental capacity.”
four pursuant to U.S.S.G. § 2A3.1(b)(1) because the offense                      U.S.S.G. § 5K2.13. However, this policy statement is
involved the use of force, and again by four pursuant to                         limited, in that the district court has no such discretion if “the
U.S.S.G. § 2A3.1(b)(5) because he had abducted his victim.
It cannot be said that the district court took into account
Cole’s act of kidnapping when it turned to U.S.S.G. § 2A3.1.
                                                                                 enhanced the sexual abuse base offense level for the abduction of the
Clearly, kidnapping and sexual assault are two independent                       victim. Id. at 799. The defendant argued that “the court already took the
and separate crimes, and should be considered separately at                      kidnapping offense into consideration when it began its calculations with
sentencing.11                                                                    section 2A4.1, the kidnapping guideline.” Id.
                                                                                      The Fifth Circuit summarily rejected this argument. It stressed that
                                                                                 the Sentencing Guidelines “expressly pro vide that an entire guideline shall
    11
                                                                                 be applied upon reference from another guideline.” Id. The court cited
        This Court is also guided by the Fifth Circuit decision in United        U.S.S.G. § 1B1.5(a), which states that “[a] cross reference ( an instruction
States v. An derso n, 5 F.3d 795 (5th Cir. 1993), in finding that the district   to apply another guideline) refers to the entire offense guideline (i.e., the
court herein properly applied the complained-of four level enhancement           base offense level, specific offense characteristics, cross references, and
unde r U.S .S.G. § 2A3.1(b)(5). Anderson presented facts similar to those        special instructions.)” U .S.S.G . § 1B 1.5(a). As a result of this language,
in the instant matter, where the defendant likewise argued that the district     the court concluded that the district court had not erred in its application
court engaged in “impermissible double counting” when, after beginning           of the Sentencing Guidelines and hence, there was no impermissible
with U.S.S.G. § 2A4 .1, and turning to U.S.S.G. § 2A3.1, the district court      double co unting. Anderson, 5 F.3d at 799.
Nos. 02-5839/5840               United States v. Cole, et al.       13     14     United States v. Cole, et al.                Nos. 02-5839/5840

facts and circumstances of the defendant’s offense indicate a              that it lacked the discretion to grant a downward departure
need to protect the public because the offense involved actual             from the Sentencing Guideline.13
violence or a serious threat of violence.” U.S.S.G. § 5K2.13.
                                                                                2.    Aberrant Behavior
  A crime of violence includes any offense that “(1) has as an
element the use, attempted use, or threatened use of physical                Cole advances the further argument that the district court
force against the person of another, or (2) . . . otherwise                erred in concluding that it lacked the authority to grant a
involves conduct that presents a serious potential risk of                 downward departure in light of Cole’s aberrant behavior.
physical injury to another.” U.S.S.G. § 4B1.2(a).12 Cole was               Based on the following review, this Court holds that the
convicted of kidnapping under 18 U.S.C. § 1201, assault                    district court was correct in so concluding.14 U.S.S.G.
under 18 U.S.C. § 111, and use of a firearm during a crime of              § 5K2.20 gives district courts the leeway to depart downward
violence pursuant to 18 U.S.C. § 924(c).                                   “in an extraordinary case if the defendant’s criminal conduct

  Although the crime of kidnapping lacks the element of use
or threat of use of physical force against another, it falls under              13
that language of U.S.S.G. § 4B1.2(a)(2), as it involves                            Cole argues that the prohibition of downward departures in relation
                                                                           to violent crimes results in cruel and unusua l punishment with respect to
“conduct that presents a serious potential risk of physical                defendants such as himself who possess limited functioning. Cole states
injury to another.” U.S.S.G. § 4B1.2. The use of force is                  in his brief that “[t]he very dim inished capa city that he p ossesses limits
integral to a conviction for assault, as 18 U.S.C. § 111 is                his ability to comprehend and ap preciate the differences between the
violated when one “forcibly assaults . . . any person . . .”               commission of a violent and non-vio lent offense and the relative effects
18 U.S.C. § 111. Vis a vis the firearm charge, Cole pled                   of sentencing as well.” A ppe llant’s Br. at 12. However, Cole neglec ts to
                                                                           cite even o ne authority supporting his constitutional argument, and thus
guilty to a violation of 18 U.S.C. § 924(c). That section states           this argum ent is deemed waived. See, e.g., Mc Pherson v. Kelse y, 125
that “[a]ny person who, during and in relation to any crime of             F.3d 989, 995-96 (6th Cir. 1997)(“issues adverted to in a perfunctory
violence . . . uses or carries a firearm” will, in addition to             manner, unacc omp anied by som e effort at developed augmentation, are
being punished for the underlying crime, be punished for                   deemed waived. It is not sufficient for a party to mention a possible
incorporating a firearm into the commission of the crime.                  argument in the mo st skeletal way, leaving the court to . . . put flesh on
                                                                           its bones.”)(quoting Citizens Awareness Network, Inc. v. U.S. Nuclear
18 U.S.C. § 924(c)(emphasis added). Because 18 U.S.C.                      Regulatory Comm ’n, 59 F.3d 284, 293-94 (1st Cir. 1995)). Furthermore,
§ 924(c) is only violated if a gun is used in connection with              a majo rity of the courts of appeals have denied downward departures
a “crime of violence,” it is inherent that a conviction                    under U.S.S.G. § 5K2.13 in cases involving violent crime s, see, e.g.,U.S.
thereunder “involves” a crime of violence. It is thus clear that           v. Mo rin, 124 F.3d 649 (4th Cir. 19 97), U.S. v. Th ames, 214 F.3d 608 (5th
each of the offenses for which Cole was convicted meets the                Cir. 200 0); U.S. v. Maddelena , 893 F.2d 815 (6th C ir. 198 9); U.S. v.
                                                                           Mayotte, 76 F.3d 887 (8th C ir. 199 6); U.S. v. Petitta, 899 F.2d 122 6 (9th
definition of a “crime of violence” under U.S.S.G.                         Cir. 1990), whether the defendant suffered from diminished capacity or
§ 4B1.2(a), and the district court was correct in concluding               not. See, e.g., U.S . v. Sullivan, 75 F.3d 29 7 (7th Cir. 1996)(defendant
                                                                           unsuccessfully arguing that the denial of a downward departure on
                                                                           diminished capacity groun ds violated his D ue Pro cess and Equal
                                                                           Protection rights).
    12
       This Court has held that the definition of “crime of violence”           14
within U.S.S.G. § 4B 1.2 “can be read in concert with § 5K2.13,” thereby          “[A] district court’s determination that it lacked authority to depart
providing guidance as to wha t does and does not constitute a violent      downward is a matter of Guidelines interpretation that we review de
offense. Un ited States v. C lements, 144 F.3d 981, 982 (6th Cir. 1998).   nov o.” U nited States v. Bu rke, 237 F.3d 74, 7 43 (6th Cir. 200 1).
Nos. 02-5839/5840            United States v. Cole, et al.    15    16   United States v. Cole, et al.         Nos. 02-5839/5840

constituted aberrant behavior.”         U.S.S.G. § 5K2.20.          a sentence above the guideline range “[i]f the defendant’s
However, this policy statement is limited in that no departure      conduct was unusually heinous, cruel, brutal, or degrading to
is permitted if “(1) the offense involved serious bodily injury     the victim,” so as to “reflect the nature of the conduct.”
or death; [or] (2) the defendant . . . used a firearm or a          U.S.S.G. § 5K2.8. Examples of actions constituting “extreme
dangerous weapon.” U.S.S.G. § 5K2.20.                               conduct” include “torture of a victim, gratuitous infliction of
                                                                    injury, or prolonging of pain or humiliation.” Id. In
  The district court denied a downward departure with               characterizing Cole’s actions as involving extreme conduct,
respect to the assault charge because the victim was raped -        the district court noted the following aspects of the crime as
clearly a crime involving serious bodily injury. The district       relevant: (1) the victim was raped by more than one
court apparently failed to specifically address the crimes of       participant; (2) the sexual assaults were repeated over a four-
kidnapping and use of a firearm at sentencing, but again, no        hour period at gunpoint; (3) the victim’s life was threatened;
downward departure would be permitted for these crimes              and (4) the “obvious terror” the victim must have felt. In
because Cole and his accomplice used a .38 caliber gun              sum, the district court characterized the crime as “an
during the offense.                                                 afternoon of terror” for the victim, finding that this was “more
                                                                    than the average rape victim has to deal with.” J.A. at 215.
  D. Three-Level Upward Departure for Extreme
     Conduct                                                          This Court has consistently affirmed district court decisions
                                                                    granting upward departures pursuant to U.S.S.G. § 5K2.8.
  The district court deviated from the applicable sentencing        See, e.g., United States v. Sizemore, No. 99-6321, 238 F.3d
guideline, and granted an upward departure of three levels          425, 2000 WL 1871723, at * 1 (6th Cir., Dec. 12,
based on U.S.S.G. § 5K2.8, titled “Extreme Conduct.” Cole           2000)(affirming four-level upward departure where drug
argues that his conduct did not constitute “extreme behavior,”      conspirators tortured co-conspirator); United States v. Davis,
and asserts that none of the examples cited in U.S.S.G.             170 F.3d 617, 624 (6th Cir. 1999)(affirming eight-level
§ 5K2.8 (torture of a victim, gratuitous infliction of injury, or   upward departure where wire-fraud defendant intentionally
prolonging of pain or humiliation) apply to this case.              inflicted psychological harm on elderly, sick telemarketing
                                                                    victims by being “loud, rude, obnoxious, [and] controlling”);
  This Court reviews a district court’s departure from the          United States v. Harris, 943 F.2d 53, 1991 WL 165586, at *3
recommended Guidelines sentence under an abuse of                   (6th Cir. Aug. 27, 1991) (affirming ten and twelve-level
discretion standard. See, e.g., United States v. Baker, 339         departures where witness-tamperers abducted witness and
F.3d 400, 403 (6th Cir. 2003). Congress permits district            raped witness’s wife). It would appear from this line of cases
courts to depart from the relevant guideline range if “there        that repeated sexual assaults by multiple participants over a
exists an aggravating or mitigating circumstance of a kind, or      four-hour period at gun point could be characterized as
to a degree, not adequately taken into consideration by the         heinous, brutal, cruel and degrading to the victim.
Sentencing Commission.” Koon v. United States, 518 U.S.             Furthermore, such assaults could be said to have included
81, 92 (1996)(quoting 18 U.S.C. § 3553(b)).
  The policy statement in U.S.S.G. § 5K2.8, upon which the
district court based its decision regarding the upward
departure, provides district courts with discretion to increase
Nos. 02-5839/5840                United States v. Cole, et al.         17     18     United States v. Cole, et al.                Nos. 02-5839/5840

“prolonging of pain or humiliation” under U.S.S.G.                            facts constitutes obstruction of justice is a mixed question of
§ 5K2.8.15                                                                    law and fact that we review de novo. Finally, once a district
                                                                              court has determined that a defendant obstructed justice, then
IV. DEFENDANT/APPELLANT JOHNSON                                               application of a two-level enhancement at that point is
                                                                              mandatory, and we review the enhancement de novo.”
  A. Two-Point Offense Level Increase for Obstruction                         Middleton, 246 F.3d at 846. However, in United States v.
     of Justice                                                               Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002), we held
                                                                              that, in light of Buford, a clear error standard of review was
  Defendant Johnson argues that the district court erred in                   “appropriate for reviewing sentencing decisions under
increasing his offense level by two points for obstruction of                 § 3C1.1, where the sole issue before the district court is a
justice under U.S.S.G. § 3C1.1. The district court found that                 fact-bound application of the guideline provisions,” Id. at
when Johnson wilfully threatened the victim at a time when                    390. We decline at this time to endorse a particular approach,
an investigation had commenced, he was in fact guilty of                      as the district court’s decision here is correct under either.16
obstruction of justice under U.S.S.G. § 3C1.1.
                                                                                The district court found that the threats made by Johnson to
   This Court acknowledges that it has utilized two differing                 the victim fell squarely into the examples given in
standards of review when examining a district court’s                         Application Note 4(a) of U.S.S.G. § 3C1.1; specifically that
application of U.S.S.G. § 3C1.1. The confusion on this issue                  the defendant threatened the witness directly. 17 The district
proliferated following the Supreme Court’s decision in
Buford v. United States, 532 U.S. 59 (2001), in which the
Court called for greater deference when reviewing a district                       16
court’s “fact-bound” application of a sentencing guideline.                          U.S.S.G. § 3C1.1, titled, “Obstructing or Impeding the
                                                                              Administration of Justice,” provides that “[i]f (A) the defendant wilfully
Id. at 66. Thereafter, we have applied both a tri-partite                     obstructed or impeded, or attempted to obstruct or impede, the
standard of review and a more deferential clear-error standard.               administration of justice during the course of the investigation,
In United States v. Middleton, 246 F.3d 825, 845-46 (6th Cir.                 prosecution, or sentencing of the instant offense of conviction, and (B) the
2001), and United States v. Camejo, 333 F.3d 669 (6th Cir.                    obstructive conduct related to (i) the defendant’s offense of conviction
2003), we applied the three-part standard: “First we review                   and any relevant conduct; or (ii) a closely related offense, increase the
the factual determinations made by the district court for clear               offense level by 2 levels.” Among the examples given of the cond uct to
                                                                              which the adjustment applies is “threatening, intimidating, or otherwise
error. Second, a district court’s conclusion that a given set of              unlawfully influencing a co-defendant, witness, or juror, directly or
                                                                              indirectly, or attem pting to do so .” U.S .S.G. § 3C 1.1, A pplication N ote
                                                                              4(a).
    15
       Because U.S.S.G. § 2A 4.1(b)(4 )(C) reduces the offense level if the        17
victim is released in less than 24 hours, Cole argues that the four hours             The Court also found that the threats fell within the language of
involved here should be viewed as “abnorm ally short.” However, Cole          Application No te 4(i), wh ich says tha t the obstruction of justice
was not sentenced und er U.S.S.G. § 2A4.1, and therefore that particular      enhancement applies also to “other conduct prohibited by obstruction of
offense characteristic bears no application in this case. Furthermore,        justice provisions under Title 18, United States Code.” U.S.S.G. § 3C1.1,
Application Note 5 of U .S.S.G. § 2A3.1, the relevant sentencing              Application Note 4(i). The Court found that 18 U.S.C. § 1512(b) was
guideline, states that an upward departure may be warranted “[i]f a victim    violated by Johnson’s cond uct. 18 U .S.C. § 1512(b ) is violated when one
was sexually abused by more than one participa nt,” and goes on to            “knowingly uses intimidation or physical force, threatens, or co rruptly
reference U.S.S.G. § 5K 2.8. Therefore, it would appear that the fact of      persuades another person, o r attemp ts to do so . . . with intent to
multiple particip ants, stand ing alone, warrants an upw ard d eparture.      (3) hinder, delay, or prevent the communication to a law enforcement
Nos. 02-5839/5840                United States v. Cole, et al.        19     20    United States v. Cole, et al.         Nos. 02-5839/5840

court did not err in finding that Johnson’s threats to the victim            wilfully, this Court will affirm the district court’s decision to
were made in the hope that the victim would not report the                   enhance his sentence upward pursuant to U.S.S.G. § 3C1.1.
crime to police, and thus constituted an obstruction of justice.
See United States v. Brown, 237 F.3d 625 (6th Cir.                             B. Three-Level Sentence Enhancement for Extreme
2001)(threats made by defendant to potential witness                              Conduct
“substantively amount to obstruction of justice.”) Johnson’s
victim reported that, toward the end of her captivity, Johnson                 The district court deviated from the applicable sentencing
found an insurance card in the glove box of her vehicle and                  guideline and granted an upward departure of three levels
told her that he had her address and would “send someone to                  based on U.S.S.G. § 5K2.8, titled “Extreme Conduct,” when
kill her” if she told anyone about the incident. Johnson also                calculating the total offense level with respect to Defendant
repeatedly stated that he ought to kill her because she had                  Johnson.
seen his and Cole’s faces.
                                                                               The policy statement in U.S.S.G. § 5K2.8, upon which the
   As to whether Johnson wilfully obstructed justice, this                   district court based its decision regarding the upward
Court concludes that he intentionally threatened the victim at               departure, provides district courts with discretion to increase
a time when he knew or should have known that an                             a sentence above the guideline range “[i]f the defendant’s
investigation had probably commenced. When the victim                        conduct was unusually heinous, cruel, brutal, or degrading to
was abducted she was the only employee at the post office.                   the victim,” so as to “reflect the nature of the conduct.”
It seems implausible that Johnson did not consider that when                 U.S.S.G. § 5K2.8. Examples of actions constituting “extreme
the other employees returned from lunch, they would see that                 conduct” include “torture of a victim, gratuitous infliction of
the post office was left abandoned, no note was left to explain              injury, or prolonging of pain or humiliation.” Id.
the victim’s absence, and all of the victim’s belongings
remained there except for her car keys. This conclusion is                     As it had done with respect to Defendant Cole, in
further bolstered by the fact that Johnson knew the victim was               characterizing Defendant Johnson’s actions as involving
the only employee on duty at the time he and Cole were                       extreme conduct, the district court noted the following aspects
present at the post office, and went to the trouble of hiding the            of the crime as relevant: (1) the victim was raped by more
gun used in the crime. Finally, when Postal Inspector                        than one participant; (2) the sexual assaults were repeated
Chalmers asked Cole how he found out that the police were                    over a four-hour period at gunpoint; (3) the victim’s life was
looking for him and Johnson, Cole stated that Johnson’s sister               threatened; and (4) the “obvious terror” the victim must have
had stopped them in the road and told them. This occurred                    felt. Johnson argues that to impose an upward departure
before the victim was released. Therefore, because Johnson                   based on the fact that the victim was sexually assaulted by
made threats constituting an obstruction of justice, and did so              more than one participant results in punishing Johnson for the
                                                                             actions of Cole. However, Johnson fails to cite a single case
                                                                             to further develop this argument, and thus it is deemed
                                                                             waived. See United States v. Corrado, 304 F.3d 593, 611
officer . . . of information relating to the commission . . . of a Federal
offense . . .” 18 U .S.C. § 151 2(b). This Court has previously recognized
that conduct prohibited by 18 U.S.C. § 1512 is an appropriate ground for
a two-level increase for obstruction of justice under U.S.S.G. § 3C1.1.
See, United States v. R aha l, 191 F.3d 642, 647 (6th Cir. 1999).
Nos. 02-5839/5840                 United States v. Cole, et al.         21

n.12 (6th Cir. 2002).18 Thus, this Court finds that the district
court correctly granted an upward departure pursuant to
U.S.S.G. § 5K2.8 and § 2A3.1.
V. CONCLUSION
  Accordingly, we AFFIRM the judgment of the district
court.




    18
       That aside, Johnson’s argument still fails. It is a clear tenet of
American law that one can be held accountable for the acts of another
conspirator. See, e.g., Pinkerton v. U.S., 328 U .S. 640(1946)(overt acts
of one co-conspirator in a conspiracy are in law the acts of all). The Third
Circuit has also had no hesitation in granting an upward departure under
U.S.S.G. § 2A3.1, Application Note 5, with its reference to § 5K2.8,
based on sexual abuse by more than one pa rticipant. United States v.
Qu eensborough, 227 F.3d 149 (3rd Cir. 20 00).
