                        UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                            No. 03-4447
MARCUS J. LEWIS,
              Defendant-Appellant.
                                       
           Appeal from the United States District Court
      for the Eastern District of Virginia, at Newport News.
               Rebecca Beach Smith, District Judge.
                             (CR-03-7)

                  Submitted: November 26, 2003

                      Decided: March 9, 2004

     Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

Frank W. Dunham, Jr., Federal Public Defender, Larry M. Dash,
Assistant Federal Public Defender, Norfolk, Virginia, for Appellant.
Paul J. McNulty, United States Attorney, Ryan R. McKinstry, Special
Assistant United States Attorney, Norfolk, Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. LEWIS
                             OPINION

PER CURIAM:

   Marcus J. Lewis ("Lewis") pled guilty to assault resulting in seri-
ous bodily injury, 18 U.S.C.A. §§ 7, 113(a)(6) (West 2000 & Supp.
2003). The victim was his stepson, Marcus Lewis, Jr. ("Marcus"),
who was two years old. The district court sentenced Lewis to ninety
months imprisonment. Lewis appeals his sentence, arguing that the
district court abused its discretion in departing above the guideline
range based on extreme conduct, U.S. Sentencing Guidelines Manual
§ 5K2.8, p.s. (2002), and the similarity of his conduct to a prior
offense for which he had been court-martialed. We affirm.

   On January 2, 2003, while Lewis’s wife, Army Sgt. Lisa Lewis,
was at work, Marcus sustained first and second degree burns on his
face, torso, buttocks, and fingers caused by contact with the five-inch
long rectangular hot metal grate that covered the vent of a hair dryer.
Lewis later gave conflicting statements about how the burns occurred.
Marcus was in bed when Lisa came home that evening and left early
the next morning for temporary duty in Texas. A day later, Lewis told
Lisa during a telephone call that he had accidentially burned Marcus
with the dryer. At Lisa’s direction, Lewis took Marcus to the house
of a friend, who took Marcus to the hospital at Ft. Eustis, Virginia.
Marcus was later evaluated at the Portsmouth Naval Medical Center
burn unit. The doctor there determined that the burns were a day or
two old and beginning to scab over, except on Marcus’s buttocks,
possibly because those burns were kept more moist by his diaper.
Marcus was prescribed Motrin and apparently was released. The
assessment sheet categorized his condition as "semi-urgent." A search
of the Lewis’ quarters disclosed a sheet from Marcus’s bed and one
from a queen-sized bed, both stained with blood; a child’s shirt and
pants, both stained with blood; and an adult shirt and undershirt, both
stained with blood.

   Lewis had previously been convicted at a general court martial of
two counts of assaulting Marcus when he was less than three months
old. In that offense, Lewis twisted Marcus’s arms and legs, squeezed
Marcus’s chest, and struck his head on several occasions, causing
Marcus to suffer fourteen fractures. Lewis was confined for eighteen
                        UNITED STATES v. LEWIS                        3
months and given a dishonorable discharge from the Army. The dis-
charge was suspended pending Lewis’s appeal, which had not been
resolved at the time of the instant offense.

   Before sentencing, the government moved for an upward departure
based on extreme conduct, USSG § 5K2.8, and the fact that Lewis
received a relatively lenient sentence for a prior similar crime com-
mitted against the same victim. See USSG § 4A1.3, comment.
(backg’d). The district court agreed that an upward departure was
appropriate. First, the court found that Lewis’s conduct fit the defini-
tion of extreme conduct, i.e., it was cruel, brutal and degrading, and
included the gratuitous infliction of injury with prolonged pain and
humiliation. The court also found that the enhancement for serious
bodily injury provided in § 2A2.2, the guideline applicable to the
offense, did not account for this aspect of Lewis’s conduct because
it focused on the victim’s injury rather than the nature of the defen-
dant’s conduct. With respect to the second ground for departure urged
by the government, the court decided that Lewis’s criminal history
category was adequate to reflect his past criminal conduct. However,
the court found that the similarity between the instant offense and
Lewis’s prior conviction for abuse of the same victim warranted a
departure. The court departed to a sentence of ninety months impris-
onment, the equivalent of a three-level upward departure, or nineteen
months more than the maximum of seventy-one months permitted
under the applicable guideline range.

   A sentencing court may depart from the guideline range only if the
court finds an aggravating or mitigating factor of a kind, or to a
degree, not adequately considered by the Sentencing Commission. 18
U.S.C. § 3553(b) (2000); Koon v. United States, 518 U.S. 81, 98
(1996). As of April 30, 2003, the Prosecutorial Remedies and Tools
Against the Exploitation of Children Today Act of 2003 ("PROTECT
Act"), Pub. L. No. 108-21, 117 Stat. 650, requires a reviewing court
to conduct a de novo review of certain departure decisions. Id.
§ 401(d), 117 Stat. at 670. The appeals court must review de novo
whether the district court failed to provide a written statement of its
reasons for departing, 18 U.S.C.A. § 3742(e)(3)(A) (West Supp.
2003), and whether the departure was based on a factor that (1) does
not advance the objectives set forth in 18 U.S.C.A. § 3553(a)(2)
(West Supp. 2003), (2) is not authorized by § 3553(b), or (3) is not
4                       UNITED STATES v. LEWIS
justified by the facts of the case. Id. § 401(d), 117 Stat. at 670; 18
U.S.C.A. § 3742(e)(3)(B)(i)-(iii) (West Supp. 2003).

   A sentencing court is encouraged to depart upward to reflect the
nature of the conduct "[i]f the defendant’s conduct was unusually hei-
nous, cruel, brutal, or degrading to the victim . . ." and suggests as
examples of such conduct "torture of a victim, gratuitous infliction of
injury, or prolonging of pain or humiliation." USSG § 5K2.8. Lewis
acknowledges that extreme conduct is an encouraged factor for depar-
ture, but argues that his conduct was not as egregious as the conduct
of other defendants in cases where an upward departure for extreme
conduct has been upheld on appeal. See, e.g. United States v. Myers,
66 F.3d 1364, 1369 (4th Cir. 1995) (victim of carjacking and kidnap-
ping was raped repeatedly at gunpoint, choked, had her neck twisted
until her collarbone popped, was pistol whipped and dragged, and suf-
fered permanent damage to one eye).

   The district court emphasized the age of the victim in its explana-
tion of reasons for the departure. However, the fact that the victim
was a two-year old child was accounted for in the guideline calcula-
tion when Lewis received a two-level vulnerable victim adjustment
under USSG § 3A1.1(b)(1), and thus cannot be used to justify a
departure. We note that Lewis prolonged Marcus’s pain by repeatedly
burning him and not seeking treatment for his burns. The burns were
severe enough that at least some of the wounds bled. Lewis surely
observed a pain reaction from Marcus each time he touched the dryer
to Marcus’s skin. Yet he continued, burning Marcus all over his body.
Although the burns apparently healed quickly, we conclude that this
repeated infliction of pain qualifies as extreme conduct. Therefore, we
are satisfied that the district court’s decision to depart on this ground
advanced the objectives set out in § 3553(a)(2) and was justified by
the facts of this case. We further conclude that the extent of the depar-
ture was not unreasonable, see § 3742(e)(3)(C), and we affirm the
departure on this ground.

   The correctness of the court’s decision to depart because of the
similarity of Lewis’s conduct to his prior offense is less clear. Under
§ 4A1.3, an upward departure is encouraged if the defendant’s crimi-
nal history category does not adequately reflect the seriousness of his
past criminal conduct or the likelihood that he will commit further
                        UNITED STATES v. LEWIS                        5
crimes. The background commentary to guideline section 4A1.1 notes
that "§ 4A1.3 permits information about the significance or similarity
of past conduct underlying prior convictions to be used as a basis for
imposing a sentence outside the applicable guideline range." Such a
history may warrant a departure because it indicates a high likelihood
of recidivism. Section 4A1.3 also states that a departure may be war-
ranted when the defendant previously received a lenient sentence for
a serious offense.

   Lewis’s case is not like these examples because he was convicted
for his prior assault on Marcus and the sentence was counted in his
criminal history. The district court could have relied on either the
leniency of Lewis’s prior eighteen-month sentence of imprisonment
or the likelihood that he might commit such offenses in the future to
explain its departure, but it did not. While the inadequacy of the
defendant’s criminal history category is an encouraged factor for
departure, and the similarity of a prior offense to the instant offense
may be a factor in that determination, the similarity of a prior offense
—standing alone—is a factor that is unmentioned in the guidelines as
a basis for departure. Factors that are unmentioned in the guidelines
as possible grounds for departure may infrequently justify a departure
where the structure and the theory of both relevant individual guide-
lines and the Guidelines as a whole indicate that they take a case out
of the applicable guideline’s heartland. United States v. Rybicki, 96
F.3d 754, 758 (4th Cir. 1996) (internal quotation and citation omit-
ted).

  Here, employing a de novo standard of review, we conclude that
Lewis’s repeat assault on the same victim takes his case out of the
heartland of cases in which § 2A2.2 applies, and that the departure
does not conflict with the objectives of the Protect Act.

   We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

                                                           AFFIRMED
