UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4483

NARKEY KEVAL TERRY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-96-270-A)

Argued: January 28, 1999

Decided: May 28, 1999

Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: David Benjamin Smith, ENGLISH & SMITH, Alexan-
dria, Virginia, for Appellant. William Graham Otis, Senior Litigation
Counsel, OFFICE OF THE UNITED STATES ATTORNEY, Alex-
andria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United
States Attorney, Randy I. Bellows, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Narkey Terry was convicted in the United States District Court for
the Eastern District of Virginia of, among other things, two counts of
involuntary manslaughter. The district court, after departing upward
fifteen levels, sentenced Terry to 120 months imprisonment. Terry
appealed, and this Court vacated the sentence imposed and remanded
for resentencing. See United States v. Terry, 142 F.3d 702 (4th Cir.
1998). On remand, the district court once again departed upward fif-
teen levels, this time after specifically finding that the danger created
by Terry's reckless driving was so extraordinary that it removed the
case from the heartland of the typical involuntary manslaughter case
involving reckless conduct and that Terry acted with malice in the
uncharged death of Billy Canipe. Finding no reversible error, we
affirm.

I.

The underlying facts were recited by this Court on direct appeal,
see United States v. Terry, 142 F.3d 702, 704-05 (4th Cir. 1998), and
need only be briefly restated here. In the early morning of April 17,
1996, Terry and Canipe engaged in a high-speed race along the
George Washington Memorial Parkway (G.W. Parkway). After racing
for approximately eight miles, Terry's Jeep Cherokee hit Canipe's
Chevrolet Beretta, causing the Beretta to spin across the median and
into the southbound lanes, where it struck a Ford Taurus driven by
George Smyth. The impact killed Mr. Smyth instantly. A section of
Canipe's car, weighing close to 500 pounds, flew into the air and
landed on the windshield of a Dodge Caravan driven by Nancy
McBrien. Mrs. McBrien died within moments of the crash. Canipe
was thrown from his car and sustained fatal injuries. Terry sustained
a broken ankle and cuts and bruises to his face and chest.

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The United States charged Terry with two counts of involuntary
manslaughter (Nancy McBrien and George Smyth) in violation of 18
U.S.C.A. § 1112 (West 1984 & Supp. 1999); with one count of reck-
less driving in violation of 18 U.S.C.A. § 13 (West Supp. 1999) and
Va. Code Ann. § 46.2-852 (Michie 1998); and with one count of car-
rying a concealed weapon in violation of 18 U.S.C.A.§ 13 and Va.
Code Ann. § 18.2-308 (Michie Supp. 1998). Terry pleaded guilty to
carrying a concealed weapon. Following a two-day jury trial, Terry
was convicted on the remaining three counts.

As recited by this Court on direct appeal, Terry was sentenced as
follows:

           Terry was sentenced pursuant to the involuntary man-
          slaughter guideline. See U.S. Sentencing Guidelines Manual
          § 2A1.4 (1995). Due to his reckless driving, Terry's base
          offense level was set at fourteen. See U.S.S.G.
          § 2A1.4(a)(2). Because Terry was convicted on two counts
          of involuntary manslaughter, his base offense level was
          increased an additional two levels pursuant to the Guide-
          lines' grouping rules. See U.S.S.G. § 3D1.4. With an
          adjusted offense level of 16 and a criminal history category
          of I, Terry's guideline range was 21-27 months. See
          U.S.S.G. Ch.5, Pt.A.

           Believing that [27] months would be "a wholly inade-
          quate sentence given the severity of the defendant's con-
          duct," (J.A. at 125), the district court determined that an
          upward departure was warranted. First, the district court
          departed upward eight levels to reflect the danger to the
          public created by Terry's reckless driving. See U.S.S.G.
          § 5K2.14, p.s. Next, the district court departed upward four
          levels to account for the additional death of Canipe. See
          U.S.S.G. § 5K2.1, p.s. Finally, the district court departed
          upward three levels to take into consideration the extreme
          psychological impact to the family members of the victims.
          See U.S.S.G. § 5K2.3, p.s. In total, the district court
          departed upward fifteen levels. With a total offense level of
          31 and a criminal history category of I, Terry's guideline
          range was 108-135 months. See U.S.S.G. Ch.5, Pt.A. Terry

                    3
          was sentenced to 120 months imprisonment on the two
          involuntary manslaughter counts, a concurrent term of 12
          months on the reckless driving charge, and a consecutive 6
          month term of imprisonment on the concealed weapon
          charge.

Terry, 142 F.3d at 705 (footnote omitted).

On direct appeal, Terry argued only that the district court abused
its discretion in departing upward by fifteen levels. This Court agreed,
holding: (1) that the district court failed to determine whether the dan-
ger created by Terry's reckless driving was present to an exceptional
degree or otherwise removed the case from the heartland of the typi-
cal involuntary manslaughter case involving reckless conduct, see id.
at 706-07; (2) that if, on remand, the district court made such a deter-
mination, it must also determine the extent of its departure, see id. at
707; (3) that an upward departure based upon the death of Canipe was
not precluded by Canipe's partial responsibility for the conduct that
resulted in his death, see id. at 708; (4) that although the upward
departure based upon Canipe's death was not an abuse of discretion,
the extent of the departure was an abuse of discretion absent addi-
tional findings of fact, see id. at 708-09; (5) that the guideline autho-
rizing an upward departure if a victim suffered psychological injury
much more serious than that normally resulting from the commission
of offense applied to both direct and indirect victims, see id. at 711-
12; but (6) that family members of those killed as result of Terry's
conduct were not victims of his offense, see id. at 712.

On remand, the district court once again sentenced Terry pursuant
to the involuntary manslaughter guideline. See U.S. Sentencing
Guidelines Manual § 2A1.4 (1995). Due to his reckless driving,
Terry's base offense level was set at fourteen. See U.S.S.G.
§ 2A1.4(a)(2). Because Terry was convicted on two counts of invol-
untary manslaughter, his base offense level was increased an addi-
tional two levels pursuant to the Guidelines' grouping rules. See
U.S.S.G. § 3D1.4. With an adjusted offense level of 16 and a criminal
history category of I, Terry's guideline range was 21-27 months. See
U.S.S.G. Ch.5, Pt.A.

Still believing that 27 months would be a wholly inadequate sen-
tence given the severity of Terry's conduct, the Government argued

                    4
that an upward departure was warranted. The district court agreed,
and departed upward on two bases: (1) § 5K2.14, p.s. (danger to the
public); and (2) § 5K2.1, p.s. (death). The district court justified its
departure under § 5K2.14, p.s. by specifically finding that Terry's
reckless driving was so extraordinary that it was outside the "heart-
land" of situations encompassed by the involuntary manslaughter
guideline. The district court justified its departure under § 5K2.1, p.s.
by finding that Terry acted with malice in the uncharged death of
Canipe. Based on the aforementioned grounds, the district court
departed upward fifteen levels.

With a total offense level of 31 and a criminal history category of
I, Terry's guideline range was 108-135 months. See U.S.S.G. Ch.5,
Pt.A. Terry was once again sentenced to 120 months imprisonment on
the two involuntary manslaughter counts. On appeal after remand,
Terry once again argues only that the district court abused its discre-
tion in departing upward by fifteen levels.

II.

A sentencing court may depart from the applicable guideline range
where "the court finds that there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken into con-
sideration by the Sentencing Commission." 18 U.S.C.A. § 3553(b)
(West Supp. 1999). As a result, if a factor has been forbidden by the
Commission, "the sentencing court cannot use it as a basis for depar-
ture." Koon v. United States, 116 S. Ct. 2035, 2045 (1996). If a factor
is one upon which the Commission encourages departure, and it is not
taken into account by the applicable guideline, a court may exercise
its discretion and depart on that basis. See id. If an encouraged factor
is taken into account in the applicable guideline, or if a factor is a dis-
couraged one, the departure is permissible "only if the factor is pres-
ent to an exceptional degree or in some other way makes the case
different from the ordinary case where the factor is present." Id.
Finally, "[i]f a factor is unmentioned in the Guidelines, the court
must, after considering the structure and theory of both relevant indi-
vidual guidelines and the Guidelines taken as a whole, decide whether
it is sufficient to take the case out of the Guidelines' heartland." Id.
(internal quotation marks and citation omitted). Here, the district

                     5
court relied upon two separate encouraged factors in departing
upward a total of fifteen levels. We address each departure in turn.

A.

Section 5K2.14 provides: "If national security, public health, or
safety was significantly endangered, the court may increase the sen-
tence above the guideline range to reflect the nature and circum-
stances of the offense." U.S.S.G. § 5K2.14, p.s. Here, the district
court departed upward under § 5K2.14, finding that the public's wel-
fare and safety were significantly endangered during Terry's pro-
tracted reckless driving.

Because Terry's reckless driving was taken into account by the
guideline under which he was sentenced, the district court may only
depart under § 5K2.14 if the conduct "is present to an exceptional
degree or in some other way makes the case different from the ordi-
nary case where the factor is present." Koon , 116 S. Ct. at 2045. On
remand, the district court recognized that § 2A1.4 accounted for reck-
less driving, see United States v. Barber, 119 F.3d 276, 282 (4th Cir.)
(en banc), cert. denied, 118 S. Ct. 457 (1997), and specifically found
that Terry's reckless driving was so extraordinary that it was outside
the "heartland" of situations encompassed by the applicable guideline.1
We agree. As this Court noted on direct appeal:
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1 The district court's findings are, in part, as follows:

           [T]here was excessive speed in the 70-to-80-mile-an-hour
          range, but more than speed, it's the combination of speed, the
          nature of the driving, the cat-and-mouse type of driving . . . on
          a scenic highway . . . where there is [no] room for error. There
          are very narrow, if any, shoulders along the parkway.

           The medians are not the kind of medians that are able to ade-
          quately protect cars from problems on the opposite side of the
          road. It's a road that twists a great deal. It's a road that has ups
          and downs, and so it is a very dangerous place for this kind of
          behavior.

          In addition, this was at the beginning of rush hour. . . .

           But the fact that is most unique about this case and, frankly,
          is not present in . . . other cases is that this case involved inten-
          tional reckless driving. . . .

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          Terry engaged in a road duel on a scenic parkway not
          designed for high-speed driving. The high-speed duel was
          variously described by eyewitnesses as a game of"cat-and-
          mouse," "tag," and "chicken." We doubt that such conduct
          is typical of reckless driving cases.

Terry, 142 F.3d at 706. Accordingly, the district court did not abuse
its discretion in departing pursuant to § 5K2.14, p.s.

Although the district court did not abuse its discretion in departing
pursuant to § 5K2.14, p.s., we note that it failed to state the extent of
its departure under § 5K2.14, p.s. In fact, when the district court
departed by fifteen levels, it failed to state how many levels were
attributable to § 5K2.14, p.s. and how many were attributable to
§ 5K2.1, p.s. At the original sentencing hearing, the district court
departed under § 5K2.14, p.s. by eight levels. On direct appeal, this
Court specifically held that "[i]f, on remand, the district court deter-
mines that an upward departure is warranted, it must also determine
the extent of its departure." Id. at 707 (emphasis added). Thus, the
district court's failure to determine the extent of its departure under
§ 5K2.14, p.s. was an abuse of discretion. Nevertheless, on direct
appeal we suggested (and now hold) that at least a two-level increase
would be appropriate under § 5K2.14, p.s. when, as the district court
correctly found here, such an upward departure is warranted. See
Terry, 142 F.3d at 707 & n.5. Because the remaining thirteen-level
increase may be supported for the reasons stated below, the district
court's failure to determine how many levels were attributable to each
departure was harmless.
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            [W]e now have this absolutely deadly situation running along
           for at least 8 miles on the G.W. Parkway, creating a significant
           threat to the safety of every other driver on that road, as well as
           to the two drivers engaged in the conduct.

           If ever there were a factual situation that fell outside of the
          heartland for involuntary manslaughter by use of a vehicle, this
          is certainly the case.

(J.A. at 71-73.)

                    7
B.

"If death resulted, the court may increase the sentence above the
authorized guideline range." U.S.S.G. § 5K2.1, p.s. Although the
deaths of Mr. Smyth and Mrs. McBrien were taken into account in the
applicable guideline, i.e., § 2A1.4(a)(2) (involuntary manslaughter),
the district court determined that an upward departure under § 5K2.1,
p.s. was appropriate in light of the additional death of Canipe. On
direct appeal, this Court agreed that, although Canipe was also
responsible for the aggressive driving behavior that led to his death,
his death warranted a departure from the authorized guideline range.
See Terry, 142 F.3d at 708. Nevertheless, this Court held that the dis-
trict court abused its discretion in departing by four levels because it
failed to consider any of the factors set forth by the sentencing guide-
lines for determining the extent of a departure under § 5K2.1, p.s.2 See
id. at 708-09.

On remand, the district court made findings as to the factors set
forth in § 5K2.1, p.s. In particular, the district court found that Terry
acted with malice in the death of Canipe. As a result, the district court
concluded that Terry should be sentenced by analogy to the second-
degree murder guideline, which, the district court correctly noted,
provides for a base offense level of 33. See U.S.S.G. § 2A1.2. After
concluding that an offense level of 33 would be too high in this case,
the district court decided, as noted above, to set Terry's offense level
at 31.

On appeal, Terry faults the district court on four points: (1) that it
erred in finding that he acted with malice; (2) that it was improper to
base the extent of the departure on the guideline for second-degree
murder because he was not charged with or convicted of that offense;
(3) that malice must be established beyond a reasonable doubt; and
(4) that the district court failed to take into account Canipe's role in
the offense. We address each argument in turn.
_________________________________________________________________
2 These factors include: (1) the defendant's state of mind, (2) whether
the danger posed by the defendant's misconduct was extreme, and (3)
whether the defendant knowingly risked the death or serious injury of
others.

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1.

Terry first contends that the district court erred in finding that he
acted with malice and, therefore, in determining the extent of the
upward departure by analogy to the second-degree murder guideline.
For the reasons that follow, we disagree. In United States v. Fleming,
739 F.2d 945 (4th Cir. 1984), we affirmed the jury's finding that the
defendant acted with malice in a case bearing a striking similarity to
the instant one. The defendant in Fleming, driving approximately 80
miles per hour on the G.W. Parkway, lost control of his car on a sharp
curve. The car slid across the median and into the southbound lanes,
where it struck a car driven by Margaret Haley. Mrs. Haley died
before she could be removed from her car. The defendant was subse-
quently convicted of second-degree murder. See id. at 947. In affirm-
ing the defendant's conviction, we noted the following:

          Proof of the existence of malice does not require a showing
          that the accused harbored hatred or ill will against the victim
          or others. Neither does it require proof of an intent to kill or
          injure. Malice may be established by evidence of conduct
          which is reckless and wanton and a gross deviation from a
          reasonable standard of care, of such a nature that a jury is
          warranted in inferring that defendant was aware of a serious
          risk of death or serious bodily harm. To support a conviction
          for [second-degree] murder, the government need only have
          proved that defendant intended to operate his car in the man-
          ner in which he did with a heart that was without regard for
          the life and safety of others.

Id. at 947-48 (citations and internal quotation marks omitted). Here,
the evidence supports the district court's finding that Terry displayed
a wanton disregard for the life and safety of Canipe. As a result, we
do not believe that the district court erred in finding, by a preponder-
ance of the evidence, that Terry acted with malice.

2.

Next, Terry argues that the district court erred in departing upward
because the district court, in effect, tried and sentenced him for
second-degree murder, a crime for which he has not been convicted.

                     9
Again, we disagree. The death of Canipe was related to and resulted
from Terry's reckless driving. As the guidelines make clear, a defen-
dant's sentence may be increased based upon relevant conduct, see
U.S.S.G. § 1B1.3, including conduct for which the defendant was not
convicted, see United States v. Barber, 119 F.3d 276, 283-84 (4th
Cir.) (en banc) (noting that "the court may consider, without limita-
tion, any information concerning the . . . conduct of the defendant,"
including "dismissed, uncharged, or [even] acquitted conduct"), cert.
denied, 118 S. Ct. 457 (1997). Indeed, the sentencing guidelines
encourage departure above the authorized guideline range where an
uncharged death occurs as a result of the offense of conviction. See
U.S.S.G. § 5K2.1, p.s. In any event, this Court has already held -- on
direct appeal -- "that Canipe's death may provide the basis for an
upward departure." Terry, 142 F.3d at 708. Thus, the propriety of the
departure in question cannot be challenged on the ground that Terry
was not charged with or convicted of second-degree murder.

3.

Next, Terry argues that the departure was so substantial that the
facts supporting it had to be established beyond a reasonable doubt.
We disagree. This Court has never required that facts at sentencing
be established by more than a preponderance of the evidence. Indeed,
in United States v. Melton, 970 F.2d 1328 (4th Cir. 1992), this Court
specifically held that "proof beyond a reasonable doubt [is not
required]. A preponderance of the evidence will suffice for sentencing
purposes." Id. at 1331-32; see also United States v. Powell, 886 F.2d
81, 85 (4th Cir. 1989) (holding that, in order to satisfy due process,
findings made at sentencing need only be based upon a preponderance
of the evidence).

4.

Finally, Terry argues that the district court failed to take into
account Canipe's role in the offense as allowed by§ 5K2.10, p.s. A
discretionary refusal to depart, however, is not reviewable unless the
district court was unaware of or mistaken about its authority to depart.
See United States v. Burgos, 94 F.3d 849, 876 (4th Cir. 1996) (en
banc). There is no indication in the record that the district court was

                    10
unaware that it could depart to reflect Canipe's role in his own death.3
Accordingly, we are without authority to review this claim.

III.

For the foregoing reasons, Terry's sentence is affirmed.

AFFIRMED




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3 As this Court noted on direct appeal, "[a]bsent the upward departure
pursuant to § 5K2.1, p.s., Terry's sentence would not have taken into
account the additional death of Canipe." United States v. Terry, 142 F.3d
702, 708 n.8 (4th Cir. 1998). Thus, the very potential for a downward
departure under § 5K2.10, p.s. in this case arose only as a result of the
upward departure under § 5K2.1, p.s. In such a case, rather than depart-
ing pursuant to both § 5K2.1, p.s. and § 5K2.10, p.s, the better approach
would be simply to reduce the extent of the departure under § 5K2.1, p.s.
in recognition of the victim's role in the offense. See Terry, 142 F.3d at
708 n.8 (noting that a victim's "role in the offense may limit the extent
of the upward departure"). To the extent Terry challenges the extent of
the district court's departure under § 5K2.1, p.s., rather than the district
court's failure to depart under § 5K2.10, p.s., we find no abuse of discre-
tion. Canipe's role in the offense was taken into account by the district
court. As noted above, had Terry been convicted of Canipe's murder, his
base offense level would have been 33. See U.S.S.G. § 2A1.2. By depart-
ing upward thirteen levels under § 5K2.1, p.s., Terry's total offense level
was only 29. Thus, although the district court did not specifically cite
§ 5K2.10, p.s., Canipe's role in the offense was taken into account by the
district court when it limited the extent of its departure under § 5K2.1,
p.s.




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