                       United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                  ___________

                                 No. 97-3360
                                  ___________
United States of America,             *
                                      *
           Plaintiff-Appellee,        *   Appeal from the United States
                                      *   District Court for the
     v.                               *   Eastern District of Arkansas.
                                      *
John Edward Johnson,                  *
                                      *
           Defendant-Appellant.       *
                                      *

                                  ___________

                         Submitted: April 13, 1998
                           Filed:   May 22, 1998
                                ___________

Before BOWMAN, Chief Judge,1 McMILLIAN, and MURPHY, Circuit Judges.
                                ___________

MURPHY, Circuit Judge.

      Johnson pled guilty to robbery affecting interstate commerce, 18
U.S.C. § 1951, and use of a firearm during a violent crime, 18 U.S.C. §
924(c), reserving the right to appeal the denial of his motion to suppress
his confession. He was sentenced to 233 months, and raised issues on appeal
related to his statements to the police as well as sentencing. We affirmed
the judgment of conviction but remanded for resentencing




     1
       The Honorable Pasco M. Bowman became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on April 18, 1998.
because the district court had departed upward without prior notice. U.S.
v. Johnson, 121 F.3d 1141 (8th Cir. 1997). On remand additional evidence
was received, and the district court2 again departed upward on the basis
that Johnson’s conduct during the armed robbery in raping a female
restaurant employee was unusually cruel and degrading, U.S.S.G. § 5K2.8, and
that the victim had suffered severe psychological injury, U.S.S.G. § 5K2.3.
This time Johnson was sentenced to 135 months on the robbery count and a
mandatory consecutive 120 months on the firearm violation for a total of 255
months. On appeal he argues that there was insufficient evidence of sexual
assault, that the district court erred in applying the sentencing
guidelines, and that his constitutional rights were violated by receiving
a more severe sentence on remand. We affirm.

      At the outset we note that Johnson’s challenge to the sufficiency of
the evidence of the sexual assault is foreclosed because that issue was
already decided against him in our prior decision (121 F.3d at 1145). See
U.S. v. Bowers, 21 F.3d 843, 844 (8th Cir. 1994).

      Johnson argues that the district court improperly imposed an upward
departure based on extreme conduct and injury. The decision to depart from
the sentencing guidelines is reviewed for abuse of discretion. Koon v.
U.S., 116 S.Ct. 2035, 2047 (1996). At the initial sentencing hearing the
rape victim testified that Johnson threatened her and a male co-worker with
a sawed off shotgun and forced them to disrobe.        After unsuccessfully
attempting to penetrate her, he repeatedly forced her to perform oral sex
and penetrated her digitally and with his penis, left her lying naked on the
floor, and threatened to return and kill her if she called the police. She
testified that from the time of the attack she has required ongoing
psychological counseling and treatment with anti-depressant drugs and that
her sexual relations with her husband




      2
        The Honorable William R. Wilson, United States District Judge for the Eastern
District of Arkansas.

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have been damaged. She also testified that she was haunted by fear which
led her to carry a gun, move to an area more frequently patrolled by police,
install a home security system, and stay inside at night except for an
emergency.   At the second sentencing proceeding additional evidence was
received about her physical injuries and the continuing effects of the
assault. Based on the record there was sufficient evidence to support the
district court’s findings that Johnson’s conduct was unusually cruel and
degrading and that the victim suffered severe psychological injury. The
district court did not abuse its discretion by departing upward on this
basis.

      Johnson objects to the court’s reference in sentencing to the criminal
sexual abuse guideline, § 2A3.1. He does not argue that this led to an
improper sentence length, but that the guideline applicable to his offense
was that for robbery, § 2B3.1, rather than for sexual abuse. Johnson was
not sentenced under the sexual abuse guideline, however, because the
district court merely considered it in deciding an appropriate period for
the upward departure for conduct which involved sexual violence and which
justified departure under § 5K2.3 and § 5K2.8. This was permissible under
the sentencing guidelines.     See generally U.S.S.G. § 1B1.2 commentary.


      Johnson also argues that the district court violated his due process
rights by imposing a longer sentence on remand.       Imposition of a more
stringent sentence upon resentencing is not improper when it is based on
newly obtained information rather than vindictiveness. Texas v. McCullough,
106 S.Ct. 976, 979-80 (1986). At resentencing the district court received
reports from psychologists that the trauma Johnson caused was more severe
than initially thought.     Attempts to take Johnson’s victim off anti-
depressant drugs had failed, her behavioral patterns continued to be
disrupted, and discussion of the event still upset her severely. There is
no showing of vindictiveness or that the district court erred by relying on
the new information, and Johnson’s due process rights were not violated by
the sentence imposed.

     For these reasons the sentence is affirmed.




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A true copy.

     Attest:

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




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