

                    [NOT FOR PUBLICATION]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  &amp;   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-
