                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-2715
                                   ___________

United States of America,             *
                                      *
           Appellee,                  *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * District of South Dakota
Randolph Valentino Kills in Water,    *
                                      *
           Appellant.                 *
                                 ___________

                             Submitted: December 14, 2001

                                  Filed: June 7, 2002
                                   ___________

Before McMILLIAN, JOHN R. GIBSON and MAGILL, Circuit Judges.
                            ___________

McMILLIAN, Circuit Judge.

       Randolph Valentino Kills in Water, Jr. (“defendant”) appeals from a final
judgment entered in the United States District Court1 for the District of South Dakota
sentencing him to 188 months of imprisonment after pleading guilty to aggravated
sexual abuse in violation of 18 U.S.C. §§ 2241(a)(1) and 2246(2). See United States
v. Kills In Water, No. 3:00CR30072-001 (D.S.D. June 25, 2001). For reversal,
defendant argues that the district court erred in (1) imposing a two-level sentencing

      1
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
enhancement for serious bodily injury pursuant to U.S.S.G. § 2A3.1(b)(4)(B) and (2)
imposing a four-level sentencing enhancement for abduction of the victim pursuant
to U.S.S.G. § 2A3.1(b)(5). For the reasons discussed below, we affirm.

                                    Jurisdiction

       Jurisdiction in the district court was proper based upon 18 U.S.C. §§ 1153.2
Jurisdiction in this court is proper based upon 28 U.S.C. § 1291. The notice of appeal
was timely filed pursuant to Fed. R. App. P. 4(b).

                                    Background

       On May 25, 2000, defendant was drinking alcohol with a group of people in
the Soldier Creek Community on the Rosebud Indian Reservation. The group
included, among others, Damon Has Horns (“co-defendant”), the thirteen-year-old
victim, and the victim’s mother. When the group ran out of alcohol, the victim and
her mother accompanied defendant and co-defendant on a trip to a house on the
reservation where they bought bootleg liquor. Afterwards, the group separated and
the victim and her mother went home.

       Defendant, co-defendant, and a juvenile went to the victim’s home. The victim
left her house to walk around with them. As they were walking, defendant repeatedly
put his arm around the victim, and would not allow her to move away. When she did
move away, he forced her to walk in front of him. Eventually they arrived at some
basketball courts where they drank more alcohol and smoked marijuana. The victim
claims that she was not smoking or drinking at that time, although she had been
drinking earlier.


      2
       18 U.S.C. § 1153 provides federal jurisdiction for offenses committed by
Indians in Indian country, including violations of 18 U.S.C. § 2241(a)(1) and 2246(2).

                                         -2-
        The group left the basketball courts and went to a nearby abandoned trailer.
The victim claims that she indicated that she wanted to go home and started to walk
away, but that defendant ran in front of her, picked her up by her waist, dragged her
to the trailer, and lifted her up stairs and inside the trailer while she tried to jump out.
Defendant and co-defendant claim that the victim accompanied them into the trailer
voluntarily. The United States Probation/Pretrial Services Officer, Sandra McKee,
after reviewing the FBI and police reports and interviewing the victim, defendant, and
co-defendant, concluded that the victim was forced inside the trailer.

       Defendant admits that inside the trailer, he and co-defendant forcibly raped the
victim both vaginally and anally. During the course of the rape, as defendant held her
down, co-defendant bit the victim on her neck, arm and stomach. The victim finally
was able to escape. Shortly after the victim returned home, the Rosebud Tribal Police
arrested defendant.

       A physical examination of the thirteen-year-old victim on June 5, 2000,
revealed abrasions and irritation of the vagina, multiple areas of acute disruption of
the hymen, and damage to the perianal area, all consistent with a penetrating injury.
In 2001, the victim attempted suicide by taking an overdose of pills, and was treated
at a psychiatric care facility. She continues to experience recurring nightmares and
takes medication for them. She also receives ongoing psychological counseling.

      On March 26, 2001, defendant agreed to plead guilty to aggravated sexual
abuse in violation of 18 U.S.C. §§ 2241(a)(1) and 2246(2).3 A Presentence
Investigation Report (“PSIR”) was ordered. The government objected that the PSIR’s
sentencing recommendation did not include (1) a two-level enhancement for serious


       3
       The indictment defined aggravated sexual abuse as “knowingly caus[ing] and
attempting to cause [victim] to engage in a sexual act by using force against her
person.”

                                            -3-
bodily injury pursuant to U.S.S.G. § 2A3.1(b)(4)(B) or (2) a four-level enhancement
for the victim’s abduction pursuant to U.S.S.G. § 2A3.1(b)(5).

       At the sentencing hearing on June 28, 2001, the district court considered the
enhancements proposed by the government. The parties also discussed whether the
serious bodily injury enhancement automatically applied to all defendants who
commit violations of 18 U.S.C. §§ 2241(a)(1) and 2246(2). Relying on the
Sentencing Commission’s advice,4 the district court concluded that, while the serious
bodily injury enhancement did not automatically apply in this case, it was nonetheless
warranted as a result of the biting, the victim’s injuries to the vaginal and perianal
area, and the victim’s ongoing psychological problems and need for counseling. The
district court categorized the victim’s abuse as “torture” and commented that the
injuries sustained by the victim were “in addition to what anyone would sustain from
a forcible rape. This is one of the more outrageous sexual assaults that I have seen.”
Additionally, the district court decided to apply the abduction enhancement,
reasoning that the victim had been moved by force into the trailer where the rape
occurred, thus justifying the application of § 2A3.1(b)(5).

      The district court sentenced defendant to 188 months of incarceration, a $100
special assessment, $2,500 in restitution to the victim, and five years of supervised
release. This appeal followed.




      4
       In a phone conversation during Probation/Pretrial Services Officer McKee’s
preparation of the PSIR, the Sentencing Commission clarified that the enhancement
should not apply automatically to all cases of aggravated sexual abuse.

                                         -4-
                                      Discussion

I. The Serious Bodily Injury Enhancement

       We review the district court’s factual findings in a sentencing decision for clear
error and its application of the guidelines de novo. See United States v. Petersen, 276
F.3d 432, 436 (8th Cir. 2002).

       Defendant argues that the district court erred in imposing a two-level
enhancement for serious bodily injury under U.S.S.G. § 2A3.1(b)(4)(B) because
(1) the act of rape, as an offense of criminal sexual abuse, was not sufficient to
warrant an additional enhancement and (2) the injuries sustained by the victim were
not sufficient to constitute additional injuries exceeding the usual injuries sustained
by any rape victim.

      Section 2A3.1(b)(4)(B) increases a defendant’s base offense level by two levels
“if the victim sustained serious bodily injury” during a crime categorized as
aggravated sexual abuse pursuant to 18 U.S.C. § 2241(a) or (b). Guideline
Application Note 1(j) to U.S.S.G. § 1B1.1 defines serious bodily injury as:

      [i]njury involving extreme physical pain or the protracted impairment of
      a function of a bodily member, organ, or mental faculty; or requiring
      medical intervention such as surgery, hospitalization, or physical
      rehabilitation. In addition, “serious bodily injury” is deemed to have
      occurred if the offense involved conduct constituting criminal sexual
      abuse under 18 U.S.C. § 2241 or § 2242 or any similar offense under
      state law.

       In addition, the commentary to § 2A3.1(b) provides that serious bodily injury
“means conduct other than criminal sexual abuse, which already is taken into account
in the base offense lever under subsection (a).” U.S.S.G. § 2A3.1, comment. (n.1).


                                          -5-
This court’s recent opinion in United States v. Guy, 282 F.3d 991, 996 (8th Cir. 2002),
prohibited using the serious bodily injury enhancement to enhance a sentence for
criminal sexual abuse in the absence of other factors warranting the enhancement.
As a result, defendant correctly maintains that the enhancement may not be applied
on the basis of his conviction for aggravated sexual abuse alone.

       However, the court in United States v. Guy also determined that the
enhancement may be applied if the district court specifically finds that the victim
suffered long lasting bodily or mental impairment. See id. at 996-97. In the present
appeal, the district court did not automatically apply the serious bodily injury
enhancement. Instead, the district court specifically relied on the victim’s bite
marks,5 her physical trauma to the vaginal and perianal areas, her continued
psychological problems such as recurring nightmares and attempted suicide, and her
ongoing need for psychological counseling, as the basis for concluding that the victim
suffered serious bodily injury. See id. at 994 n.1 (noting that “courts ha[ve] applied
the serious bodily injury enhancement under U.S.S.G. § 2A3.1(b)(4) in rape cases
where the victim suffered mental impairment and psychological trauma”) (citing
United States v. Scott, 985 F.2d 576 (9th Cir. 1993) (unpublished opinion)
(interpreting serious bodily injury to include psychological harm alone)”; United
States v. Wallace, 976 F.2d 734 (6th Cir. 1992) (unpublished opinion) (same)); United
States v. Yankton, 986 F.2d 1225, 1229 (8th Cir. 1993) (‘[a]s defined in the

      5
        Defendant argues that the bite marks should not be considered in assessing his
sentence because the co-defendant, not he, actually bit the victim during the rape.
However, we agree with the district court’s conclusion that defendant’s participation
in the biting by holding the victim down while his co-defendant bit her is sufficient
to render defendant liable for the resultant bite marks during sentencing. See United
States v. Baca-Valenzuela, 118 F.3d 1223, 1232 (8th Cir. 1997) (determining that
“aiding and abetting a crime of violence is the same as commission of the crime as
a principal for purposes of enhanced sentence”) (citing United States v. Simpson, 979
F.2d 1282, 1285 (8th Cir. 1992)). In any event, the bite marks constitute only one of
many traumatic injuries sustained by the victim.

                                         -6-
guidelines, serious bodily injury easily includes any immediate serious physical
trauma resulting from a rape”); see, e.g., United States v. Bruguier, 161 F.3d 1145,
1148 (8th Cir. 1999) (deeming injuries to a baby’s thigh bone, leg and perineum to
constitute serious bodily injury under U.S.S.G. § 2A3.1(b)(4)); United States v.
Rodgers, 122 F.3d 1129, 1133 (8th Cir. 1997) (considering injuries leading to
hospitalization or mental rehabilitation, as well as mental trauma including
nightmares, to be serious bodily injuries according to U.S.S.G. § 1B1.1 comment.
(n.1(j))).

       Defendant also contends that the enhancement should not apply because the
victim only received injuries that are “normal” for rape victims, and therefore do not
constitute serious bodily injury in excess of the aggravated sexual abuse charge. In
considering whether the injuries sustained by the victim were the type of injuries
normally experienced by rape victims, the district court concluded that “these injuries
are in addition to what anyone would sustain from a forcible rape. This is one of the
more outrageous sexual assaults that I have seen.” Because we defer to the district
court’s factual findings when reviewing its application of the guidelines, we conclude
that the injuries as defined are sufficient to constitute serious bodily injury. See
United States v. Guy, 282 F.3d at 995 (“[t]he district court’s factual findings under
the guidelines are reviewed with appropriate deference because of its greater
familiarity with the factual record”) (citing Buford v. United States, 532 U.S. 59,
65-66 (2001)). Further, we agree with the district court’s legal conclusion that such
injuries justify application of the § 2A3.1(b)(4)(B) enhancement for serious bodily
injury. See United States v. Yankton, 986 F.2d at 1229 (categorizing physical trauma
resulting from rape as serious bodily injury).

II.   The Abduction Enhancement

       Section 2A3.1(b)(5) authorizes a four-level sentencing enhancement for
violations of 18 U.S.C. § 2241(a) or (b) if the victim was abducted. Guideline

                                         -7-
Application Note 1(a) to U.S.S.G. § 1B1.1 explains that abduction “means that a
victim was forced to accompany an offender to a different location.” The
commentary illustrates this definition by providing an example: “[f]or example, a
bank robber’s forcing a bank teller from the bank into a getaway car would constitute
an abduction.” Id.

       Defendant argues that the district court erred in imposing the abduction
enhancement because the victim voluntarily accompanied defendants to the trailer.
Defendant asserts that, because the rape took place at the trailer, no force was used
to take the victim to “a different location” as required by the guidelines. However,
the district court made a specific factual finding that, although the victim was not
forced to accompany defendant to the trailer, defendant forced her inside the trailer
where the rape occurred. Moreover, the district court found that the force used by
defendant to get the victim inside the trailer included chasing her, picking her up by
the waist, dragging her to the trailer, and lifting her up stairs and inside the trailer,
despite her resistance. In drawing this conclusion, the district court reasonably relied
on the testimony of Sandra McKee, the Probation/Pretrial Services Officer, who
reviewed the FBI and police investigation reports and interviewed the victim,
defendant, and co-defendant in this case. The district court did not clearly err in
determining that defendant forced the victim into the trailer just prior to the rape.

       Further, we agree with the district court’s legal conclusion that defendant’s
behavior during the rape constitutes an abduction within the meaning of the
guidelines. See U.S.S.G. § 1B1.1 comment. (n.1(a)). We find the commentary’s
getaway car example to be instructive: In that example, abduction occurs when a bank
robber forces a victim of the robbery to another, physically close location, where the
victim’s ability to escape is impaired. Likewise, the victim in the present appeal was
physically forced to another, physically close location where her ability to escape was
greatly impaired.



                                          -8-
       The fact that defendant was successful in subduing the victim’s attempts to
escape by dragging her to the inside of the trailer further justifies this conclusion. We
will uphold a § 2A3.1(b)(5) enhancement for an abduction in situations where “the
perpetrator’s ability to isolate the victim increases the likelihood that the victim will
be harmed.” United States v. Saknikent, 30 F.3d 1012, 1013 (8th Cir. 1994). In this
case, defendant’s ability to isolate the victim inside the trailer certainly increased the
likelihood of harm to the victim, as the victim’s escape was impeded and she was
brutally raped once inside the trailer.

      As a result, we hold that the district court did not err in applying the four-level
sentencing enhancement for abduction of the victim authorized by § 2A3.1(b)(5).

                                      Conclusion

      Accordingly, the judgment of the district court is affirmed.

      A true copy.

             Attest:

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




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