
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1298                                    UNITED STATES,                                      Appellee,                                          v.                                JULIO RAMIREZ-BURGOS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Raymond L. Acosta, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Cyr, Stahl and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Julio Ramirez-Burgos on brief pro se.            ____________________            Guillermo  Gil,   United  States   Attorney,  Nelson   Perez-Sosa,            ______________                                ___________________        Assistant United States Attorney, and Jose A. Quilles-Espinosa, Senior                                              ________________________        Litigation Counsel, on brief for appellee.                                 ____________________                                     MAY 21, 1997                                 ____________________                      Per  Curiam.   Defendant  Julio  Ramirez-Burgos was                      ___________            convicted  by  a jury  of aiding  and  abetting in  two armed            carjackings in violation of 18 U.S.C.   2119, and 18 U.S.C.              2, and  of using a weapon during  the commission of a violent            crime in violation of 18 U.S.C.    924(c).  He was  sentenced            to a term of 35 years' imprisonment.                       On   appeal,  defendant   seeks  to   overturn  his            conviction on the grounds  that (1) the prosecution allegedly            presented  perjured  testimony,  to  wit,  the  testimony  of            defendant's  accomplice, (2)  the court  erred in  failing to            suppress the two  victims' identifications of  defendant, (3)            the  evidence   was  otherwise  insufficient  to  prove  that            defendant participated in the crimes, and (4) the court erred            in  admitting evidence of a  rape he committed  during one of            the carjackings.  He also asserts multiple challenges  to the            computation of his sentence.                      Background                       Background                      __________                      Viewed in the light  most favorable to the verdict,            the  evidence  at  trial   showed  that  by   prearrangement,            defendant   and   his   accomplice,    Daniel   Montanez-Rosa            ("Daniel"), were each carrying  a revolver when they accosted            their   first   carjacking   victim,  Nancy   Rosada-Santiago            ("Nancy").  Brandishing a weapon, one of the men forced Nancy            to cede control of her Pontiac Sunbird.                                         -2-                      The pair then drove around in Nancy's car searching            for  a second victim --  all the while  holding Nancy against            her will,  guns pressed against her.   She was forced  to lie            low in the front  passenger seat, facing the door,  while the            men questioned her about her  family and personal life, stole            her cash,  jewelry and  telephone beeper, and  threatened her            children and her life.                      Spying  a second  likely victim,  Kassandra Rivera-            Boujoven  ("Kassandra"),  the  men  rammed  Nancy's car  into            Kassandra's Mitsubishi.  Again brandishing a gun, Daniel took            over the  Mitsubishi, forcing  Kassandra to lie  down on  the            passenger seat of her car, face toward the door.                        Now in  control of two cars and  two women victims,            the carjackers continued on their journey toward a site where            they could sell the stolen jewelry and buy drugs.   Along the            way, defendant  stopped Nancy's  car, forced her  to undress,            and forcibly raped her.                      During the  rape the  car's interior light  was on,            allowing Nancy to see  the defendant's face.  She  also could            hear  Daniel yelling  from  a distance,  urging defendant  to            "hurry up."  With  a final instruction to Nancy  to remain at            the  site or her family would "pay" for it, "especially [her]            little girl,"  defendant exited the Pontiac  and climbed into            the back  seat of the  Mitsubishi --  leaving Nancy  kneeling                                         -3-            against the passenger seat of her car, traumatized, hurt, and            suffering from vaginal bleeding.                      Together again and driving about in the Mitsubishi,            the  two  men  now   turned  their  attention  to  Kassandra.            Pressing a gun  to her  ribs, they questioned  her about  her            personal life,  rifled through her purse,  stole her jewelry,            threatened her life, and  argued between themselves about how            to drug her and kill her.                       At one  point they  stopped the  car  at a  housing            project in order to buy drugs, and again at a  gas station to            get  water  with which  to  mix  the  drugs.   As  they  were            injecting themselves with the drugs, a police car approached,            lights  flashing.   In the light,  Kassandra clearly  saw the            defendant's face, and his  gun.  Threatening to shoot  her if            she did not turn away, defendant also ordered Daniel to "take            off."  A high speed chase ensued which ended with a crash.                        The  two  men  were  arrested at  the  crash  site.            Kassandra was  discovered in the wreckage  wedged beneath the            glove  compartment.    She  was  pried from  the  car,  semi-            conscious, hysterical, and unable to walk.                         Defendant  testified that  he was  not involved  in            either of  the carjackings, but had  unwittingly climbed into            the back seat of Kassandra's Mitsubishi, unarmed, just before            the police  chase.  By  "sheer happenstance," he  claims, the            real carjackers (Daniel and  an unidentified second man) must                                         -4-            have interrupted their crime spree at the same time and place            (the  housing project) where defendant had gone to buy drugs.            Allegedly  without  any  knowledge  of the  crimes,  nor  the            existence  of the  presumed real second  carjacker, defendant            must have  unwittingly switched  places with the  real second            carjacker --  joining Daniel in  the Mitsubishi for  the sole            purpose of shooting-up drugs.                        Defendant  theorizes that Daniel's  testimony was a            fabrication designed  to inculpate defendant in  a rape which            Daniel himself had perpetrated -- and that both Kassandra and            Nancy were mistaken in their identifications of defendant.                         (1)  Alleged Perjury                      (1)  Alleged Perjury                           _______________                      Defendant asks  this court  to infer  that Daniel's            testimony was perjured -- and that the prosecution knew it --            as shown by  inconsistencies between  Daniel's testimony  and            that  of  the  complaining  witnesses;  Daniel's   own  prior            inconsistent statements,  confessed lies in  other cases, and            prior  criminal  convictions.    A  knowing  presentation  of            perjured testimony  by the prosecution violates a defendant's            right to due process.  See United States  v. Tavares, 93 F.3d                                   ___ _____________     _______            10, 14 (1st Cir.)  (citations), cert. denied, 117 S.  Ct. 373                                            ____________            (1996).                       However,   "it   is  axiomatic   that  inconsistent            testimony  is not per se perjurious."  United States v. Gary,                                                   _____________    ____            74 F.3d  304, 314 (1st Cir.),  cert. denied, 116 S.  Ct. 2567                                           ____________                                         -5-            (1996); see  also United States  v. Lebon, 4  F.3d 1,  2 (1st                    _________ _____________     _____            Cir. 1993).  Nor is perjury conclusively shown here by adding            to  the  mix the  circumstantial  evidence  that Daniel  lied            before and engaged in other acts of dishonesty.                      Defendant did  not ask  the trial  court to  make a            finding of perjury.   "We decline his invitation that  we now            find wilful  intent to  provide false  testimony based on  no            more than  . .  . inconsistenc[ies]" and  character evidence.            Tavares, 93 F.3d at 14.             _______                      (2)  Motion to Suppress the Identifications                      (2)  Motion to Suppress the Identifications                           ______________________________________                      Defendant  challenges the  denial of his  motion to            suppress the complaining  witnesses' line-up  identifications            of him,  and presumably the admissibility of  their later in-            court  identifications, as  tainted  by a  prior show-up  and            suggestive conditions at the line-up. Identifications made in            circumstances that are so impermissibly suggestive as to give            rise  to  "a  very  substantial  likelihood  of   irreparable            misidentification" are  not admissible  in  keeping with  due            process.   Bouthot v. United States, 878 F.2d 1506, 1514 (1st                       _______    _____________            Cir. 1989) (quoting  Simmons v. United States, 390  U.S. 377,                                 _______    _____________            384 (1968)).                         Defendant    claims     that    (1)    Kassandra's            identification  was  impermissibly tainted  because Kassandra            saw the  defendant  being  taken  by his  keepers  through  a            hallway  at the police station  to the line-up  room; and (2)                                         -6-            both  of the  complaining witnesses'  line-up identifications            were  tainted  because  defendant  was  distinctively clothed            (allegedly in a  tee shirt and blue jeans), and  his face was            swollen, bruised and  bleeding.  His  version of the  line-up            was  supported   by  his   wife,  Sonia  Maria   Vazquez-Rosa            ("Sonia"),  who testified that she was  in the police station            hallway and there saw her husband being led past Kassandra on            his way to the line-up, tee shirted and battered.                       Other testimony about the line-up, however,  was to            the contrary.   Kassandra denied that  the alleged accidental            show-up  had   occurred,  as  did  the   police  officer  who            accompanied Kassandra  before and  during the line-up.   They            denied  seeing  any swelling,  bleeding  or  bruising on  the            defendant's face.  His clothing, they said, was substantially            the  same as  that  of the  other participants,  including an            identical  over-the-trousers collared  shirt supplied  to all            participants  by   the   police.     Contemporaneous   police            photographs corroborated this version of the line-up.                       The district judge found, as fact, that the alleged            accidental  show-up had  not occurred;  and that  defendant's            face  was   not  impermissibly  marked  nor   his  appearance            otherwise  suggestive.   The  findings reflect  a "reasonable            view   of   the   evidence,"   and   incorporate  credibility            determinations  which  are  necessarily entitled  to  special            deference  by an  appellate tribunal.   United  States  v. De                                                    ______________     __                                         -7-            Jesus-Rios,  990  F.2d 672,  676  (1st Cir.  1993);  see also            __________                                           ________            Bouthot, 878 F.2d at 1513-14 n.8.            _______                      Seeing no ground for disturbing the court's factual            determination  that  the  identification  procedure  was  not            impermissibly suggestive, we need  not reach the second prong            of   the  due   process  issue,   i.e.,  the   likelihood  of            misidentification.   See United States v.  Guzman-Rivera, 990                                 ___ _____________     _____________            F.2d 681, 682 (1st  Cir. 1993).  In  any event, as  discussed            below and  in the  margin, the victims'  identifications were            reliable in light of the relevant second-prong factors.1                                                                        1                      (3)  Sufficiency of the Evidence                      (3)  Sufficiency of the Evidence                           ___________________________                      Defendant  argues  that   there  was   insufficient            evidence to identify him  as a participant in the  crimes, at            least  in  the  absence   of  Daniel's  (allegedly  perjured)            testimony.  The argument is faulty for two reasons.                      First, Daniel's testimony,  though inconsistent  in            part  with the other  eyewitnesses, was not  incredible.  His            credibility was subjected  to sustained and  searching cross-            examination.  The jury  was instructed on the  possibility of                                            ____________________               1As  applied in  this case,  the second-prong  factors set               1            forth in  De Jesus-Rios, 990  F.2d at 677, show:  (1) Each of                      _____________            the complaining witnesses had an opportunity during the crime            to view the defendant at close range, (2) both testified that            their gazes were fixed on defendant during those moments, (3)            their descriptions  to the  police, while vague  and omitting            defendant's  moustache,  were  consistent   with  defendant's            appearance, (4) both identified the defendant with certainty,            and (5) the  line-up was  held within 24-36  hours after  the            crime.                                          -8-            problems with testimony of this type.  The choice was for the            jury,  not for  this  court.   See  United States  v.  Laboy-                                           ___  _____________      ______            Delgado, 84 F.3d 22, 27 (1st Cir. 1996).            _______                      Second,  and in any event, defendant was positively            identified in court  by both of the  complaining witnesses as            an armed and violent participant in the carjackings.  Despite            gaps  in each witness's ability  to see during the respective            crimes, each identification had a  substantial foundation and            was corroborated by other evidence.                         Nancy testified  that she first  saw the  defendant            only briefly, as he entered  her car.  She then saw  his face            clearly in the car light for several minutes as he raped her.            A  piece of paper found in Nancy's purse, which was retrieved            after  the   crime  from   her  car,  bore   the  defendant's            fingerprint.                      Nancy's    testimony    also    corroborated    the            identification  of defendant  as  the back-seat  carjacker of            Kassandra's vehicle.  As defendant drove away in another car,            Nancy testified, he reminded  her of his threats  against her            child, and told her to call him on the telephone beeper which            he  had stolen from her.   Substantially the  same words were            overheard by Kassandra,  shouted from her  car window by  the            second of her car's invaders (whom she could not yet see).                       Kassandra then heard  this second carjacker's voice            continuously, enabling her to  testify with certainty that it                                         -9-            was  he who had initially climbed over her crouched body into            the back seat  of her car, held  a gun to her  ribs, and then            exited  and reentered  the  vehicle at  the housing  project.            During  this stop,  she  said, too,  the back-seat  carjacker            stood right next  to the  car, his body  continuously in  her            line of sight.   True,  she first saw  defendant's face,  and            gun, only when the  police chase began.  But  defendant spoke            then, too, and she  saw the face connected  to this voice  at            close range, in good lighting, and with fixed attention.                        To be sure, cross-examination revealed that each of            the complaining witnesses was extremely frightened during the            crime, and  still upset at  the time of the  line-ups.  Their            respective  opportunities  to  see the  carjackers  had  been            limited by  darkness and the  twisted postures they  had been            forced to assume on the passenger seats of their automobiles.            In  addition, each  gave only  a general  description  of the            culprits when  first questioned, and each  testified that the            first  carjacker to approach her  car was partly  masked by a            tee shirt  pulled up  over his  mouth and  nose.  Nancy  even            admitted that she  never saw the first carjacker's  face, and            was not at all able to identify Daniel.                       These were  good arguments, offered to  the jury in            an attempt to cast  doubt on the credibility of  the victims'            identifications.    In  addition,  defendant  challenged  the            scientific  evidence,  pointing  out  that  much  of  it  was                                         -10-            inconclusive, and someone else might have wrongly transported            his  fingerprint to Nancy's car.  And he elicited substantial            testimony which tended to impeach Daniel's credibility.                       Having   heard  all   of  the   evidence,  however,            including defendant's own testimony,  the jury convicted  the            defendant.    Viewed  in  the  light  most  favorable to  the            verdict, there  was more  than ample  reliable identification            evidence  which "would  allow  a rational  jury to  determine            beyond a  reasonable doubt that the defendant [was] guilty as            charged."  United States  v. Sullivan, 85 F.3d 743,  747 (1st                       _____________     ________            Cir.  1996) (quoting  United  States v.  Mena-Robles, 4  F.3d                                  ______________     ___________            1026,  1031 (1st Cir. 1993)),  cert. denied, 114  S. Ct. 1550                                           ____________            (1994); see also Guzman-Rivera, 990 F.2d at 682-83.                     ________ _____________                      (4)  Evidence of the Rape                      (4)  Evidence of the Rape                           ____________________                      Defendant also assigns  as error  the rejection  of            his motion to exclude evidence of the rape; arguing that rape            is not an  "element" of  the offense, but  only a  sentencing            enhancement issue.  We  have travelled this road before,  and            rejected similar  arguments under  this statute.   See United                                                               ___ ______            States  v. Cruz-Kuilan,  75 F.3d  59,  60-61 (1st  Cir. 1996)            ______     ___________            (finding proof of victim's death  admissible to show a taking            by  force and  violence); United  States v.  Rivera-Gomez, 67                                      ______________     ____________            F.3d  993,  995  (1st  Cir. 1995)  (finding  proof  of  death            admissible to show use of force and violence,  although death            is  not an independent element  of offense); United States v.                                                         _____________                                         -11-            Rivera,  83   F.3d  542,  545  (1st   Cir.  1996)  (upholding            ______            admissibility of  evidence of rape which  provided a "crucial            chapter"  in  narrative  of  events  and  critical  proof  of            possession of a weapon).                      Of  course,  in and  of itself,  a  rape is  not an            essential element  of the crime  of carjacking as  defined in            the Anti  Car  Theft Act,  18  U.S.C.    2119  (1992).2   See                                                                  2   ___            Rivera-Gomez, 67 F.3d  at 996 (defining statutory  elements).            ____________            However, if a carjacker chooses rape as the means of "force,"            "violence," or "intimidation" by which to  seize control of a            vehicle, it amounts to the same thing.                       In this  case the  prosecution showed that  Nancy's            car was  first taken from her by intimidation with a gun, not                                            ____________________               2  The 1992 statute provides:               2                 Whoever, possessing a firearm as defined in section                 921  of this title, takes  a motor vehicle that has                 been . . . in interstate or foreign commerce from .                 .  .  the person  of .  .  . another  by  force and                 violence or by intimidation,  or attempts to do so,                 shall --                      (1) be fined . . . or imprisoned not more than                 15 years or both                      (2) if  serious bodily  injury (as defined  in                 section 1365 of this title) results, be fined under                 this title or imprisoned not more than 25 years, or                 both . . . .                  The statute  has since been amended.   In 1994, Congress            substituted  "with intent  to cause  death or  serious bodily            harm" for "possessing  a firearm as defined  in section 921."            In  October,  1996,  Congress  clarified  subsection  (2)  by            expressly  providing   that  "serious  bodily   injury"  also            includes  sexual assaults  violative  of 18  U.S.C.     2241,            2242.                                         -12-            by  rape.   The  later  rape, nonetheless,  accompanied  by a            veiled  threat to  do the  same  to her  daughter, terrorized            Nancy into complying with the carjackers' command that she --            with her  car -- remain stationery for  some time at the spot            where  the carjackers  left them.   Thus  the rape,  like the            earlier brandishing of the  gun, provided the intimidation by            which the carjackers extended their control of the victim and            her automobile.    Compare Rivera,  83 F.3d  at 545  (holding                               _______ ______            evidence  of  a  rape admissible  on  other  issues,  but not            essential to prove  a taking by  "force and violence,"  where            the  rape was not instrumental in the taking nor retention of                          ___            the car).                        Evidence of the rape  was of critical relevance, in            any   event,  to   the   jury's   understanding  of   Nancy's            identification of the defendant.  And it provided  a "crucial            chapter" in the  narrative that linked  the defendant to  the            second  carjacking.  Rivera-Gomez, 67 F.3d at 997.  Given the                                 ____________            value of  this evidence as directly probative of two elements            of  the offense, the court did not abuse its discretion under            Fed. R. Evid. 403 in admitting it, despite any risk of unfair            prejudice.   Id. at 996.   "Though lurid, it is  part of what                         ___            old-fashioned  lawyers might  call the res  gestae."   Id. at                                                                   ___            998.                       Sentencing                      Sentencing                      __________                                         -13-                      The   court  sentenced  defendant  to  420  months'            imprisonment:     360  months   (concurrent  terms)  for  the            carjackings charged  in Counts One  and Two, and  a mandatory            consecutive  60-month term for the firearms violation charged            in Count  Three.  The concurrent  carjacking sentences exceed            the statutory maximum.                      Under the guidelines, the carjacking sentences were            calculated  as follows.   The base offense  level, under USSG             2B3.1,  for each  carjacking  count was  20.   Six  sets  of            enhancements were  added to each count,  bringing the offense            level for Count  One to 35, and  for Count Two to  33.  Since            these were "non-groupable offenses," applying USSG  3D1.4(a),            the  court  added  two  levels,  bringing  defendant's  total            offense level for the two carjackings to 37.  With a Category            I  criminal history, this produced a  guideline range for the            carjackings  of  210-262 months.    The  court then  departed            upward under  USSG   5K2.3, and  Application note  2 to  USSG             2K2.4, arriving at the 360-month (concurrent) sentence.                         However, as  the government concedes on appeal, the            statutory maximum term for  the Count One carjacking (Nancy's            car) is  300 months.  See 18 U.S.C.   2119(2).  On Count Two,                                  ___            (Kassandra's  car), the maximum is 180 months.  See 18 U.S.C.                                                            ___              2119(1).  Concurrent terms for the carjackings were clearly            intended by the court,  and so specified.  Thus  the sentence            on  Counts One  and  Two  should  have  been  capped  at  the                                         -14-            statutory maximum for the highest count of conviction, or 300            months.    See  USSG    5G1.2(b)(c).    Adding  the  60-month                       ___            mandatory  consecutive sentence  under  18 U.S.C.    924(c)),            produces a total allowable term of imprisonment for all three            counts of 360 months.                        We reject defendant's other assignments of error at            sentencing for the following reasons.                       (1)  Two-level Enhancement for Perjury:   There was                      (1)  Two-level Enhancement for Perjury                           _________________________________            no  clear  error  in   the  court's  finding  that  defendant            intentionally   attempted  to  obstruct  justice  by  falsely            denying  any involvement in the two carjackings and the rape.            See USSG  3C1.1;  United States  v. Tracy, 36  F.3d 199,  201            ___               _____________     _____            (1st Cir.), cert. denied, 513 U.S. 1031 (1994).                         ____________                        Defendant  theorizes that  his testimony  may not            have  been deliberately false but, since he is a drug addict,            the   product  of  confusion,   mistake,  or  faulty  memory.            However,  at trial  he unequivocally  testified to  an alibi,            claiming  to remember  even  the television  programs he  was            watching  in  his  home at  the  time  of  the  crimes.    He            reiterated  the  alibi in  his  post-trial  statement to  the            probation  officer.    Given  the  several  eyewitnesses  who            instead  placed him  at  the crime  scenes,  as well  as  the            fingerprint evidence, there was ample factual support for the            district court's finding.  See United States v. Dunnigan, 507                                       ___ _____________    ________            U.S. 87, 95 (1993).                                          -15-                      (2) Two Level Enhancement for Reckless Endangerment                      (2) Two Level Enhancement for Reckless Endangerment                          _______________________________________________            During  Flight:   There  was no  clear  error in  the court's            During  Flight            ______________            finding  that  the high  speed  chase,  along crowded  roads,            created  a  substantial risk  of  death or  bodily  injury to            others, and actually resulted  in bodily injury to Kassandra.            See USSG  3C1.2.            ___                      Defendant argues  that as a back-seat  occupant, he            was not in control  of the vehicle.  However, there was ample            support for the court's finding that defendant ordered Daniel            to  "take  off,"  and  otherwise  aided  and  abetted  Daniel            throughout the chase.                      (3)  Loss Exceeding  $10,000:   There  is no  clear                      (3)  Loss Exceeding  $10,000                           _______________________            error in the court's  findings that the loss to  each victim,            including the value of their respective automobiles, exceeded            $10,000.    Defendant's   challenges  in   this  regard   are            frivolous.  See USSG  2B1.1, comment. (n.2).                         ___                      (4)   Serious   Bodily   Injury:      The   court's                      (4)   Serious   Bodily   Injury:                            _________________________            determination that Nancy suffered "serious bodily injury" due            to a protracted impairment  of her mental faculties triggered            the twenty-five  year maximum  term of imprisonment  on Count            One.  See 18  U.S.C.   2119(2).3  In  calculating defendant's                                           3                  ___                                            ____________________               3  The  statute incorporates  the  definition of  "serious               3            bodily injury," found in 18 U.S.C.   1365(g)(3), i.e., injury            involving "(A) a substantial risk of death; (B)       extreme            physical  pain; (C) protracted  and obvious disfigurement; or            (D) protracted loss or impairment of the function of a bodily            member, organ or mental faculty . . . ."                                         -16-            guideline   sentence,  the   court   imposed   a   four-level            enhancement   for   "serious   bodily   injury"   under  USSG             2B3.1(b)(3), and departed upward under USSG  5K2.3.                      The decision to  apply the statutory  penalty range            provided  in 18  U.S.C.    2119(2),  was  amply supported  by            evidence  adduced at  the  sentencing  hearing.   Psychiatric            reports  showed that  as  a result  of  the crime  Nancy  was            diagnosed  with  post-traumatic  stress  disorder  and  major            depression.  Due to the mental trauma inflicted by the crime,            she  attempted  suicide  at  least  twice,  suffered auditory            hallucinations,   and   was   hospitalized  for   psychiatric            treatment.  She was  forced to  discontinue her  career as  a            pharmacist, had become emotionally distant from her children,            and dependent on her  mother.  The medical prognosis  is that            she will require additional  psychotherapy, hospitalizations,            and medical intervention for the rest of her life.                      Defendant  misplaces reliance  on United  States v.                                                        ______________            Rivera, 83 F.3d 542 (1st Cir.  1996).  In Rivera there was no            ______                                    ______            finding of  protracted mental injury, and inadequate evidence            to  sustain a finding  that the victim  had suffered "extreme            physical pain," as  defined by the statute.  Id.  at 547.  By                                                         ___            contrast here, the court found that  as a result of the crime            Nancy  will  suffer  a  lifetime  impairment  of  her  mental                                            ____________________                                                                                   -17-            faculties.  See 18 U.S.C.   1365(g)(3)(D).  It should also be                        ___            noted that  subsequent to  the Rivera case,  Congress enacted                                           ______            the  Carjacking Correction  Act  of 1996,  which amended  the            definition  of "serious  bodily injury"  to include  rape and            sexual abuse.                      The court's factual finding  was amply supported by            evidence in the PSR and medical reports.  There was no  abuse            in  the  refusal  to  require live  testimony.    "Sentencing            hearings  are not meant to be mini-trials."  United States v.                                                         _____________            Robles-Torres,  109 F.3d  83,  86 (1st  Cir. 1997)  (citation            _____________            omitted).                        As to the guidelines calculation, the court did not            exhaust  its enhancement  power under   2B3.1, by  imposing a            four  level increase  for Nancy's  "serious bodily  injury."4                                                                        4            The  finding that  Nancy  will suffer  a  lifetime of  mental            illness  could have been factored into the sentence as a six-            level enhancement for   "permanent" bodily injury.5  Instead,                                                              5            factoring  in  the  permanency of  the  injury  as  an upward                                            ____________________               4"Serious bodily  injury"  is defined  in  the  sentencing               4            guidelines to  mean "extreme physical pain  or the impairment            of a function of a bodily member, organ or mental faculty; or            requiring    medical    intervention    such   as    surgery,            hospitalization,  or physical  rehabilitation."   USSG  1B1.1            comment. (n.1(j)).               5"Permanent  or  life-threatening bodily  injury" includes               5            "loss or substantial  impairment of the  function of a .  . .            mental  faculty that is likely  to be permanent."   USSG  1B1            comment. (n.1(h)).                                         -18-            departure under USSG  5K2.3, p.s., did  not amount to "double            counting."                        Defendant also fails to demonstrate that the  court            abused its  discretion in deciding that a  lifetime of mental            illness is a  "much more serious" injury  than that "normally            resulting  from commission  of the  offense" of  carjacking.6                                                                        6            USSG  5K2.3,  p.s.    The court  was not  required to  obtain            extrinsic  "proof"  of  a  comparatively  "normal"  level  of            carjacking  victims' injuries,  but was  entitled to  rely on            other  Guidelines cases  and  its superior  knowledge of  the            facts.  Koon v. United States,  116 S. Ct. 2035, 2038 (1996);                    ____    _____________            United States v. Rivera, 994 F.2d 942, 952 (1st Cir. 1993).            _____________    ______                      (5)  Upward Departure  Under USSG   2K2.4, comment.                      (5)  Upward Departure  Under USSG   2K2.4, comment.                           ______________________________________________            (n.2)            (n.2)            _____                      Defendant argues that  the court erred in  applying            Application note 2  to USSG  2K2.4,  which permits an  upward            departure to compensate for  the possible anomalous result of            an offender  receiving a  lighter guidelines sentence  for an            underlying offense (carjacking) when  he is also convicted of            a firearms offense under    924(c), than if he  was convicted            solely of the underlying offense.                                               ____________________               6Defendant mistakenly assumes  that the court  should have               6            compared  the  victim's  mental  trauma  to  that  "normally"            experienced  by victims  of rape.   The  offense charged  was            carjacking;  the  use  of rape  as  a  means  to control  and            terrorize  the victim  contributed to  the unusual  degree of            mental  injury inflicted  on the  victim as  a result  of the            charged offense.                                         -19-                      Defendant   misapprehends   the   guideline.     In            calculating the  sentencing  range for  the carjackings,  the            court  properly   refrained  from  assessing   a  five  level            enhancement  for  the brandishing  of  a  firearm during  the            offense.  See  United States  v. McCarthy, 77  F.3d 522,  536                      ___  _____________     ________            (1st  Cir. 1996), cert. denied,  117 S. Ct.  479, 771 (1997).                              ____________            This resulted  in a  guideline range  for the carjackings  of            210-262 months.   Adding the  mandatory 60-month  consecutive            sentence  for the violation of 18 U.S.C.   924(c), produced a            total  sentence of only 322  months.  By  contrast, had there            been  no  separate count  of  conviction  under  18 U.S.C.               924(c), the enhancement for brandishing the weapon would have            increased   the  guidelines  calculation  of  the  carjacking            sentence alone  to a level of 42, (360 months to life).  This            computational  anomaly  justified   an  upward  departure  --            subject,  of  course,  to  an adjustment  for  the  statutory            maximum.                      Defendant's opposite reading of Application note 2,            as  requiring  a  decrease in  the  maximum  penalty for  the            carjackings to  offset the 60-month consecutive  sentence for            the  firearms  offense,7  also   ignores  the  court's  broad                                   7                                            ____________________               7This   interpretation  may   be  rooted  in   a  mistaken               7            understanding of the double jeopardy clause.  While defendant            does  not directly argue the point here, in a previous appeal            he    argued that  the  firearms charge  should  be dismissed            before  trial because  it  violated  the prohibition  against            multiple  punishment.   The earlier  appeal was  dismissed on            jurisdictional grounds. United  States v. Ramirez-Burgos,  44                                    ______________    ______________                                         -20-            discretion.  That  a district court  may consider lowering  a                                                 ___            guidelines sentence to offset a consecutive statutory minimum            in some circumstances does not mean that it is required to do            so.  United States v. Webster, 54 F.3d 1, 4 (1st Cir. 1995).                 _____________    _______                      In sum, there was no abuse of discretion in the two            upward departures.  Both were well explained and  grounded in            record  facts.  See  United States v.  Twitty, 104 F.3d  1, 2                            ___  _____________     ______            (1st  Cir. 1997); United States v. Quinones, 26 F.3d 213 (1st                              _____________    ________            Cir. 1994).  While  the court did not separately  specify the            extent  of each,  the oversight  was harmless.   But  for the            statutory  maximum, a five-level increase was warranted under            the Application  note to   2K2.4 alone, bringing  the penalty            range to 360 months to life.                                             ____________________            F.3d 17 (1st Cir.  1995); see also United States  v. Stoller,                                      ________ _____________     _______            78   F.3d  710,  715  &   n.2  (1st  Cir.  1996)  (indicating            uncertainty   about    the   continued   vitality    of   the            jurisdictional  ruling),  cert.  dismissed, 117  S.  Ct.  378                                      ________________            (1996).                 Double    jeopardy's   prohibition    against   multiple            punishments,  however,  only  prevents  the imposition  of  a            stiffer  sentence than  the  legislature  intended.    United                                                                   ______            States v.  Page, 84 F.3d  38, 41  (1st Cir. 1996).   Congress            ______     ____            clearly intended that  a term of incarceration under   924(c)            should be in addition to the punishment provided in 18 U.S.C.              2119.  See United States v. Centeno-Torres, 50 F.3d 84,  85                     ___ _____________    ______________            n.2 (1st  Cir.) (citing additional cases),  cert. denied, 116                                                        ____________            S.  Ct. 208 (1995); cf.  United States v.  Gonzales, 513 U.S.                                ___  _____________     ________            132, --- (1997) (observing that  Congress "has made clear its            desire  to run     924(c) enhancements  consecutively to  all            other prison  terms, [even]  regardless of whether  they were            imposed  under firearms  enhancement  statutes similar  to               924(c).").                                          -21-                      However,   since  the  statutory  maximum  for  the            highest count of conviction on the carjackings is 300 months,            we must vacate  so much of the sentence as  reflects a higher            concurrent  term for  Counts  One  and  Two.   The  mandatory            consecutive 60-month sentence for the firearms offense brings            the permissible  total sentence for  all three counts  to 360            months.                       The  judgment  of  conviction  is  affirmed.    The                                                         ________            sentence on Counts One and Two is vacated and remanded to the                                              _______            district  court  with  directions  that  the  court  enter  a            sentence  in accordance  with this  decision.   In  all other            respects, the sentence is affirmed.                                      ________                                         -22-
