                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-8-1999

USA v. Jacobs
Precedential or Non-Precedential:

Docket 97-5786




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Filed February 8, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-5786

UNITED STATES OF AMERICA

v.

FLOYD JACOBS,

       Appellant

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Crim. Action No. 97-cr-00343)
District Judge: Honorable Joseph A. Greenaway, Jr.

Argued September 18, 1998

BEFORE: STAPLETON and ROTH, Circuit Judges,
and HOEVELER,* Senior District Judge

(Opinion Filed February 8, 1999)

Lorraine Gauli-Rufo (Argued)
Assistant Federal Public Defender
Office of Federal Public Defender
972 Broad Street
Newark, NJ 07102

 Attorney for Appellant



_________________________________________________________________

* Honorable William M. Hoeveler, Senior United States District Judge for
the Southern District of Florida, sitting by designation.
       Faith S. Hochberg
       United States Attorney
       George S. Leone (Argued)
       Assistant United States Attorney
       970 Broad Street
       Newark, NJ 07102

       Norman J. Gross
       Assistant United States Attorney
       4th and Cooper Streets
       Mitchell H. Cohen Courthouse
       One John F. Gerry Plaza
       Camden, NJ 08101

        Attorneys for Appellee

OPINION OF THE COURT

HOEVELER, Senior District Judge:

Floyd Jacobs appeals from a final judgment of conviction
and sentence requesting that his sentence be vacated and
remanded to the District Court for re-sentencing on three
separate grounds. We affirm the District Court's conclusion
that Jacobs is to pay full restitution to the victim under the
Mandatory Victims Restitution Act, 18 U.S.C.A. S3663A. We
also affirm the District Court's application of a six level
enhancement pursuant to U.S.S.G. S2A2.2(b)(3)(C),
Infliction of Permanent or Life-Threatening Bodily Injury.
We vacate Jacobs' sentence and remand for a more detailed
explanation in accordance with Third Circuit precedent as
to the basis of the sentencing court's five-level upward
departure pursuant to S5K2.3, Extreme Psychological
Injury.

I.

Appellant was charged with aggravated assault on his
former girlfriend, Rebecca West, on federal property in
violation of 18 U.S.C. S113(a)(3). Jacobs pled guilty to the
charge on June 17, 1997.

                                 2
The written plea agreement contained the following
stipulations: (1) the applicable Sentencing Guideline was
U.S.S.G. S2A2.2, which provides a base offense level of 15;
(2) a dangerous weapon was used during the assault
requiring an upward adjustment of 4 points appropriate
pursuant to U.S.S.G. S2A2.2(b)(2)(B); and (3) since Jacobs
pled guilty on a timely basis and therefore accepted
responsibility for his crime, he was entitled to a downward
adjustment of 3 points, pursuant to U.S.S.G. S3E1.1(a) and
(b)(2). After an evidentiary hearing on the degree of injury
Jacobs inflicted upon the victim for the specific offense
characteristic under S2A2.2, the Court found that the
victim had sustained "permanent or life-threatening bodily
injury" and applied the six level upward adjustment under
U.S.S.G. S2A2.2(b)(3)(C). Therefore, based upon an Offense
Level of 22 and a Criminal History Category of II, the
Guidelines range was 46-57 months. The Court then
informed the parties before the sentencing that it would
entertain a motion for an upward departure pursuant to
U.S.S.G. S5K2.3 regarding infliction of "extreme
psychological injury" upon the victim. After a review of
treatment and examination records by various mental
health professionals, the Court found that Jacobs had
inflicted extreme psychological injury upon the victim, and
thus departed five levels above the adjusted offense level.
Thus, the total offense level became 27 with a Guidelines
range of 78-97 months. Jacobs was sentenced to a 96
month term of imprisonment. Appellant's Appendix at 57-
69. An evidentiary hearing was held regarding restitution
wherein Jacobs was ordered to pay the full amount of
monetary damages suffered by the victim and her health
insurance carrier in the amount of $27,470.17. Appellant's
Appendix at 74-123. Jacobs filed this appeal on November
26, 1997, and on September 18, 1998 this Court heard oral
argument.

In his appeal, Jacobs makes three arguments. First, he
contends that the District Court erred in imposing a six
level enhancement pursuant to U.S.S.G. S2A2.2(b)(3)(C),
infliction of permanent or life-threatening injury. Second,
he asserts that the Court erred in upwardly departing five
levels and that the Court also erred on the degree of the
departure due to insufficient findings that Jacobs had

                               3
inflicted "extreme psychological injury" upon the victim.
Third, he argues that the Court should not have ordered
him to pay full restitution pursuant to the Mandatory
Victims Restitution Act, 18 U.S.C. S3663A.

The government responds that the court properly
concluded that a six level enhancement was warranted on
the basis of findings that Jacobs had indeed inflicted
permanent bodily injury and life threatening injury, the
prerequisites for imposing an enhanced penalty under
S2A2.2(b)(3)(C). The government also argues that there was
more than enough evidence on record that Jacobs' assault
had caused the victim extreme psychological injury. Finally,
the government asserts that the District Court committed
no error in awarding restitution, as the statute clearly
mandates full restitution.

II.

A.

The first questions with which this Court is faced are
Jacobs' contentions that an award of full restitution to the
victim was not warranted in his case, and his argument
that the amount of restitution that represented lost wages
was awarded in error because West had been fully paid by
her employer for time off from work. There can be little said
about these arguments since the statute at issue is clear
and straightforward. Plenary review is the standard for the
determination that the restitution award is permitted, while
the amount of the particular award is reviewed for clear
error, as it rests on the facts of the particular case. United
States v. Hunter, 52 F.3d 489, 493 (3d Cir. 1995). Upon
consideration of the record and with the benefit of oral
argument, we affirm the judgment of the District Court that
Jacobs pay full restitution to the victim in the amount of
$27,470.17.

On the first point, Jacobs argues that the Mandatory
Victims Restitution Act, 18 U.S.C.A. S3663A (MVRA), is
susceptible to an interpretation which would have
permitted the trial court in his case to consider awarding
partial restitution instead of the full restitution that was

                               4
awarded against him.1 Jacobs represented at a restitution
hearing that this partial restitution argument was one of
first impression, but the trial court apparently did not
consider it and awarded full restitution. We find that the
District Court did not abuse its discretion in determining
that this case was appropriate for a restitution remedy, and
also correctly interpreted the statute as mandating full
restitution, an interpretation that is in line with the plain
language of the statute and also with several opinions on
the subject by other courts. United States v. Duncan, 1998
WL 558756 at *1 (4th Cir. 1998); United States v. Juvenile
G.Z., 144 F.3d 1148 (8th Cir. 1998); United States v.
Baggett, 125 F.3d 1319, 1322 (9th Cir. 1997); United States
v. Siegel, 153 F.3d 1256, 1260 (11th Cir. 1998).

Section 3663A(a)(1) states in relevant part,
"[n]otwithstanding any other provision of law, when
sentencing a defendant convicted of an offense described in
subsection (c), the court shall order ... that the defendant
make restitution to the victim of the offense or, if the victim
is deceased, to the victim's estate." Jacobs' offense clearly
falls within subsection (c)(1)(B); an identifiable victim or
victims has suffered a physical injury or pecuniary loss.
Most importantly, companion S3664 -- Procedure for
issuance and enforcement of order of restitution-- clearly
mandates full restitution in subsection (f)(1)(A):"[i]n each
order of restitution, the court shall order restitution to each
victim in the full amount of each victim's losses as
determined by the court and without consideration of the
economic circumstances of the defendant." Emphasis added.
These two sections were 1996 amendments to the MVRA
and most telling, subsection (f)(1)(A) replaced deleted
subsection (a), which had required the sentencing court to
consider the financial resources and needs of the
defendant.

Although Jacobs makes some interesting statutory
construction arguments, they simply cannot override the
_________________________________________________________________

1. Jacobs' argument, that since S3664(a) requires the defendant to
provide the probation department with an affidavit identifying his
resources his financial circumstances must be taken into consideration,
is without merit given the clear language in the MVRA to the contrary.

                               5
clear and unambiguous mandatory language of the MVRA,
especially in light of the fact that the recent amendments to
the MVRA squarely defeat his arguments. Moreover, at least
four other circuits have also found that the MVRA is a
mandate requiring full restitution for certain crimes (see
cases listed above). The Court finds that the District Court
did not abuse it discretion in awarding full restitution to
the victim.

B.

Jacobs' second argument is that the District Court erred
in finding that lost "annual leave" and "restored leave"
which West had to expend when her sick leave was
exhausted were "lost wages" under the MVRA. This
argument is based on the fact that West was paid by her
employer during her leave. However, the District Court
accepted evidence that had West not been forced to expend
annual and restored leave, she would have been entitled to
a lump-sum cash payment for any unused leave in the
event of resignation or retirement as a federal employee
pursuant to 5 U.S.C. S5551.

Whether or not the economic loss occasioned by the loss
of annual and restored leave is properly termed"lost wages"
as it was occasionally referred to at both hearings on
restitution is not important to this Court's conclusion that
the District Court was correct in concluding that such loss
was a proper component of the restitution award. The
applicable section of the MVRA is S3663A(b)(2)(C) which
states in relevant part that "[t]he order of restitution shall
require that such defendant, in the case of an offense
resulting in bodily injury to the victim, reimburse the victim
for income lost by such victim as a result of such offense."
Since the District Court concluded that West would have
been entitled to a lump sum payment had she not had to
use her annual and restored leave, the District Court made
sufficient findings that the income in the form of a future
lump sum payment to be made was lost as a result of
Jacobs' offense.

Finally, Jacobs argues that even if the annual and
restored leave are properly part of the restitution

                                6
calculation, the dollar value per day of this leave
attributable to his crime was not proven by a
preponderance of the evidence. We will not disturb the
District Court's findings that the dollar value of these two
types of leave, along with all other types of pecuniary losses
for which restitution was ordered, were caused by Jacobs'
assault. The District Court had before it numerous records
from treating physicians, the victim's insurer, the victim's
employer, and the Department of the Army, establishing the
number of months the victim was unable to work, the
dollar amount of medical services for the victim, and the
amount of annual, unpaid, and restored leave that the
victim lost while recuperating from her injuries. From this
evidence, the District Court made findings that the
amounts were accurate and found as a fact that the
government had sustained its burden under the MVRA of
proving by a preponderance of the evidence that Jacobs'
assault upon the victim was the cause of these losses.
Appellant's Appendix at 88, 108-111. Moreover, the
government correctly points out that no contrary evidence
regarding the amounts or the items considered in the
restitution calculation was presented. The District Court's
conclusions as to amount and causation of loss were a
proper exercise of discretion.

III.

The second question we must address is Jacobs'
contention that the sentencing court erred in applying a six
level enhancement pursuant to U.S.S.G. S2A2.2(b)(3)(C),
which provides for a six level enhancement if a victim
suffers permanent or life threatening injury from an
aggravated assault. The standard of review for the District
Court's interpretation and application of the Guidelines is
plenary. United States v. Felton, 55 F.3d 861, 864 (3d Cir.
1995). The victim here clearly suffered bodily injury as a
result of stab wounds, and thus the application of
S2A2.2(b)(3) was appropriate. However, we must determine
whether the District Court made sufficient factualfindings
to support a specific offense characteristic enhancement of
six levels, the highest increase available underS2A2.2(b)(3).
See United States v. Fiorelli, 133 F.3d 218, 220 (3d Cir.

                               7
1998) (citing with approval District Court's specific findings
justifying increase). Factual findings in relation to
sentencing issues are reviewed for clear error. Felton, 55
F.3d at 864.

Application Note 1(h) of U.S.S.G. S1B1.1 defines
"permanent or life-threatening bodily injury" as "injury
involving a substantial risk of death; loss or substantial
impairment of the function of a bodily member, organ, or
mental faculty that is likely to be permanent; or an obvious
disfigurement that is likely to be permanent." While Jacobs
in fact admits that some increase for bodily injury was
warranted in this case, he asserts that S2A2.2(b)(C)(3)
contemplates more serious injures than West suffered when
referring to "permanent bodily injury" and that West's
injuries were less serious than the District Court
determined. He also argues that there was insufficient
evidence to find that the assault involved a "substantial
risk of death." This is simply not the case.

After accepting evidence, conducting hearings, and
hearing argument, the District Court adopted express
findings (1) that the elevated and prominent scar on the
victim's face was an obvious disfigurement that is likely to
be permanent, Appellant's Appendix at 23; (2) that Jacobs
had inflicted injuries that left permanent scars all over the
victim's body, Appellant's Appendix at 68; and (3) that the
stabbing to the victim's face, mouth, chest, back and
abdomen involved a substantial risk of death, Appellant's
Appendix at 23-24.2 Moreover, the District Court also found
at the later hearing on the restitution issue that Jacobs'
assault upon the victim had caused an intestinal
obstruction requiring emergency surgery (a colostomy), in
accordance with the operating physician's conclusions.3
_________________________________________________________________

2. Jacobs argues that the District Court "specifically decided not to
consider the medical reports regarding Ms. West" which categorized her
injuries as "superficial" and "non-penetrating." This Court finds that the
record does not support this allegation, and in any event, the point is
meritless since the sentencing court made findings of fact for the six
level increase on two separate grounds, i.e., that the injuries were
permanent and life-threatening.

3. The sentencing court did not commit error in refraining from crediting
Jacobs' speculative efforts, without any expert support, to present other
possible causes for the intestinal obstruction.

                               8
Appellant's Appendix at 77-81. These findings comport with
the definition of "permanent or life-threatening bodily
injury" found in Application Note 1(h) of U.S.S.G. S1B1.1.
Moreover, since S2A2.2(b)(3)(C) is phrased in the
disjunctive, a finding of either permanent bodily injury or
life-threatening injury would have sufficed to bring Jacobs'
conduct within the guidelines section. The district judge
thus found that the facts supported both alternatives for
applicability of the section, when facts supporting either
one would have been adequate. The fact that there are
cases that have found other, arguably more severe, injuries
as permanent or life threatening bodily injuries under
S2A2.2(b)(3)(C) is of no moment given the District Court's
findings in this case and this Court's independent review of
the record.

Having already concluded that application of S2A2.2(b)(3)
was appropriate, we find that the District Court sufficiently
and adequately stated a factual basis for the finding of
permanent or life-threatening injury justifying a six level
enhancement. There was no clear error that would justify
disturbing the sentencing court's conclusions.

IV.

The final issue Jacobs argues on appeal is that the
District Court improperly departed five levels pursuant to
U.S.S.G. S5K2.3, based on a finding that Jacobs inflicted
"extreme psychological injury" upon the victim.4 We review
_________________________________________________________________

4. Section 5K2.3, "Extreme Psychological Injury (Policy Statement)" states
in relevant part that:

       If a victim or victims suffered psychological injury much more
       serious than that normally resulting from commission of the
offense,
       the court may increase the sentence above the authorized guideline
       range. The extent of the increase ordinarily should depend on the
       severity of the psychological injury and the extent to which the
       injury was intended or knowingly risked.

       Normally, psychological injury would be sufficiently severe to
       warrant application of this adjustment only when there is a
       substantial impairment of the intellectual, psychological,
emotional,
       or behavioral functioning of a victim, when the impairment is
likely

                               9
a District Court's decision to depart from the guidelines for
abuse of discretion. United States v. Baird, 109 F.3d 856,
862 (3d Cir. 1997).5 We find that the sentencing judge did
not make the specific factual findings required for an
appropriate departure based on "extreme psychological
injury" resulting to the victim from Jacobs' assault. We also
find Jacobs' argument that the district judge should have
specifically articulated the reasons for the degree of the
departure convincing. Under this Circuit's precedent of
United States v. Kikumura, 918 F.2d 1084 (3d Cir. 1990),
we must conclude that the district judge did not engage in
the analogic reasoning that is required in arriving at a five
level departure, as opposed to some other numerical level of
departure. We therefore vacate the sentence on these two
separate but related grounds and remand for re-sentencing
in accordance with the discussion of Third Circuit
precedent below.

As we stated in Baird, S5K2.0, Grounds for Departure,
provides a roadmap for a decision to depart from the
applicable Guidelines range. Baird, 109 F.3d at 870-71. A
court may depart from the range if it finds "that there exists
an aggravating or mitigating circumstance of a kind, or to
a degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines." 18
U.S.C. S3553(b); 1997 U.S.S.G. S5K2.0. "Sentencing courts
are not left adrift, however." United States v. Koon, 518 U.S.
81, 94 (1996). Factors that are encouraged as bases for
departures are found in SS 5K2.1-5K2.18. One such
encouraged factor is an upward departure based on a
finding of "extreme psychological injury" to the victim.
U.S.S.G. S5K2.3.
_________________________________________________________________

       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.

5. We note that facts relevant to the departure in this case generally
need be proven only by a preponderance of the evidence. Baird, 109 F.3d
at 865 n.8 (five-level departure is not extreme enough to require proof by
the clear and convincing standard).

                               10
Section 5K2.3 is entitled "Extreme Psychological Injury."
It provides the following authority:

       If a victim or victims suffered psychological injury
       much more serious than that normally resulting from
       commission of the offense, the court may increase the
       sentence above the authorized guideline range.

Thus, a court invoking the authority of S5K2.3 must find
that a victim suffered psychological injury "much more
serious than that normally resulting from the commission
of the [particular] offense" for which the defendant is being
sentenced. United States v. Neadle, 72 F.3d 1104, 1111-12
(3d Cir. 1996) (the record must support a finding that "the
victims suffered psychological . . . harm, which exceeded
that occurring in the heartland of fraud offenses, to such a
degree as to justify an upward departure."); United States v.
Astorri, 923 F.2d 1052, 1059 (3d Cir. 1991) ("The evidence
supports the District Court's findings that [the defendant's]
victims suffered much more psychological injury than that
normally resulting from the commission of a wire fraud
offense."). See also, United States v. Zamarripa, 905 F.2d
337, 340 (10th Cir. 1990) (holding that the record did not
support departure because the state's therapist was unable
to say that the eight-year-old sexual abuse victim suffered
greater than normal psychological harm); United States v.
Luscier, 983 F.2d 1507, 1513 (9th Cir. 1993) (evidence did
not support departure in light of expert's testimony that the
victim suffered a normal psychological reaction to
attempted stabbing, and to the fatal stabbing of the victim's
aunt); United States v. Fawbush, 946 F.2d 584, 586 (8th
Cir. 1991) (despite the Presentence Report's assertion of
greater than normal psychological harm to a sexual abuse
victim of tender age, the evidence did not show that"either
victim suffered psychological harm greater than that
normally resulting from sexual abuse"); and United States
v. Bond, 22 F.3d 662, 671-72 (6th Cir. 1994) (upward
departure unwarranted because the bank tellers' anxiety
after robbery was not sufficiently unusual).

The District Court in this case found that the victim was
suffering from "posttraumatic stress disorder, from mood
disorders, from depression, anxiety, sleeplessness."
Appellant's Appendix at 57-8. It further concluded that her

                               11
condition constituted "a substantial impairment of her
psychological emotional function," that this"impairment
will be of an extended and continuous duration," and that
this "impairment manifests itself by physical or
psychological symptoms or changes in behavioral pattern"
(i.e., anxiety, depression, sleeplessness). Appellant's
Appendix at 58. The District Court did not , however, find
that the victim's psychological injury was "much more
serious than that normally resulting from the commission"
of the crime of aggravated assault. Nor is such afinding
compelled by the current record.6 Such a finding is a
prerequisite for a departure under SK2.3.

Apparently, the District Court focused its attention on
the following portion of S5K2.3 that explains the types of
situations in which the authority provided in the initial,
above-quoted sentence of S5K2.3 may be found to exist:

       Normally, psychological injury would be sufficiently
       severe to warrant application of this adjustment 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 District Court may have viewed this sentence as
providing a definition of, and thus a substitute for, the
requirement that there be "psychological injury much more
serious than that normally resulting from commission of
the offense." This view is inconsistent with the text. It is
apparent from the phrase "only when" that this explanatory
sentence is intended to provide a presumptive floor for the
operation of S5K2.3. The situation normally should at least
involve a substantial impairment, an extended or
_________________________________________________________________

6. The District Court stated that it found "nothing ordinary about this
particular assault" and that the "psychological injury suffered is
extreme." Appellant's Appendix at 59. However, these statements alone
do not allow for the conclusion that the harm suffered is above the level
of, or more serious than that normally experienced by a victim of an
aggravated assault.

                                12
continuous duration, and a manifestation of symptoms
before the court should consider applying S5K2.3.
Conversely, the "only when" of this explanatory sentence
also implies that there will be cases in which these three
factors will be present and the court will nonetheless be
unable to find that the psychological injuries are"much
more serious than those normally resulting from the
commission of the offense." Because the explanatory
sentence relied upon by the District Court is not a
surrogate for a finding of injury beyond the heartland of
injuries from the same offense, the findings of the
sentencing court do not support its upward departure.

In addition, we must be satisfied that the extent of the
departure was reasonable, judged against the objective
standards of the Guidelines themselves. Kikumura, 918
F.2d at 1110; Baird, 109 F.3d at 872. Having first
determined the appropriateness of a S5K2.3 departure by
engaging in the required factual analysis, the Guidelines
must then be examined to determine the extent of the
departure. The District Court must undertake the"analogic
reasoning" that Kikumura often requires. Baird, 109 F.3d at
872. This analogic reasoning consists of fixing the extent of
the departure by reference to an applicable counterpart in
the Guidelines. United States v. Lieberman, 971 F.2d 989,
999 (3d Cir. 1992). When departure by analogy is
appropriate, the District Court should "ordinarily do so only
to the extent of the most nearly analogous Guideline."
United States v. Bierley, 922 F.2d 1061, 1069 (3d Cir. 1990).7
We note however, that analogies to the Guidelines, as
opposed to applications of the Guidelines, are "necessarily
more open-textured." Kikumura, 918 F.2d at 1113.

The District Court on remand may find helpful guidance
in S2.2A2(b) of the aggravated assault guideline. That
section provides in part:

       (b) Specific Offense Characteristics

       ***
_________________________________________________________________

7. We note our statement in Kikumura that the development of vehicles
by the district courts other than analogy to a Guidelines section is not
foreclosed. Kikumura, 918 F.2d at 1113.

                                13
       (2) (A) If a firearm was discharged, increase by 5
           levels; (B) if a dangerous weapon (including a
           firearm) was otherwise used, increase by 4 levels;
           (C) if a dangerous weapon (including a firearm)
           was brandished or its use was threatened,
           increase by 3 levels.

       (3) If the victim sustained bodily injury, increase the
           offense level according to the seriousness of the
           injury:

         Degree of Bodily Injury           Increase in Level

       (A) Bodily Injury                          add 2
       (B) Serious Bodily Injury                  add 4
       (C) Permanent or Life-threatening
       Bodily Injury                              add 6

       (D) If the degree of injury is between that specified
           in subdivisions (A) and (B), add 3 levels; or

       (E) If the degree of injury is between that specified
           in subdivision (B) and (C), add 5 levels.

       Provided, however, that the cumulative adjustments
       from (2) and (3) shall not exceed 9 levels.8

Under S1B1.1(j), "serious bodily injury" includes the
"protracted impairment of . . . [a] mental faculty." Under
S1B1.1(h), "permanent or life-threatening bodily injury"
includes a "substantial impairment of [a] mental faculty
that is likely to be permanent." These definitions do not, as
Jacobs argues, mean that in an aggravated assault context,
S2A2.2(b) takes into account all of the extraordinary
_________________________________________________________________

8. While the discussion above relates to the analogic reasoning required
for a finding of extreme psychological injury and because this cause is
being remanded for findings consistent with our views, we note in
passing an apparent problem that exists with the sentence imposed
pursuant to the aggravated assault guideline. The district court imposed
a four level enhancement under (b)(2) based on the use of a knife and a
six level enhancement under (b)(3) based on the physical injury to the
victim. This would appear to be inconsistent with the nine level cap
imposed in the concluding sentence of (b)(3). No one raised this issue on
appeal, but in view of the remand, we felt this observation was
appropriate.

                               14
psychological injuries covered by S5K2.3.9 They may,
however, provide a basis for inferring that the guidelines in
an aggravated assault situation treat physical and non-
physical injuries to a victim as being of substantially
similar seriousness. If one draws such an inference, one
may further conclude that it would be inconsistent with the
approach of the Guidelines to depart upward four levels or
more under S5K2.3 without finding that the extreme
psychological injury was likely to be protracted. Conversely,
one may conclude that it would be consistent with the
approach of the Guidelines to depart upwards four levels if
there is "extreme psychological injury," as defined in
S5K2.3, that can be expected to be "protracted" but not
"permanent."

While we share these observations about a possible
application of Kikumura in the context of this case, we
would not, of course, confine the District Court to this
approach.

V.

Upon consideration of the record and with the benefit of
oral argument, we vacate the sentence to the extent
described above. The matter shall be remanded to the
District Court for re-sentencing in accordance with the
discussion of Third Circuit precedent referred to herein.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

9. Even if it did, there would be no double counting here as Jacobs
suggests, because the six level enhancement invoked by the District
Court under S2A2.2(b)(3)(C) was based solely on the physical injuries of
the victim.

                               15
