                                             FILED: December 2, 2008

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                             No. 98-4260
                            (CR-97-435-A)


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

RICHARD D. DOBSON,


               Defendant - Appellant.




                              O R D E R


     At the request of the crime victim in this case, the Court

modifies the opinion filed February 17, 1999, as follows:

     On page 2, lines 15, 19, and 24, the crime victim’s name is

replaced with initials.     On page 3, lines 11 and 37, the crime

victim’s name is replaced with initials.      On page 4, lines 2, 4,

and 6, the crime victim’s name is replaced with initials.



                                     For the Court


                                            /s/ Patricia S. Connor

                                                   Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4260

RICHARD D. DOBSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-97-435-A)

Submitted: December 30, 1998

Decided: February 17, 1999

Before WILKINS and LUTTIG, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Joseph N. Bowman, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Patricia M. Haynes, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Richard D. Dobson pled guilty to two counts of aggravated sexual
abuse, see 18 U.S.C.A. § 2241 (West Supp. 1998), and one count of
using a firearm in a crime of violence, see 18 U.S.C.A. § 924(c)
(West Supp. 1998). Departing above the recommended guideline
range of 151-188 months, the district court imposed a sentence of 235
months for the aggravated sexual abuse conviction. The court also
imposed a consecutive 60-month sentence for the§ 924(c) conviction.
Dobson appeals his sentence, contending that the district court abused
its discretion in departing for multiple acts of abuse, see U.S. Sentenc-
ing Guidelines Manual § 2A3.1, comment. (n.4) (1997), and for
extreme psychological injury, see USSG § 5K2.3, p.s. For the reasons
explained below, we vacate the sentence and remand for resentencing.

The counts of conviction involved two occasions in February and
March of 1990 when Dobson forced his fourteen-year-old step-
daughter, J.N., to have sexual intercourse with him, the first
time by threatening her with a knife and the second time by threaten-
ing her with a gun. Seven years later, when she became suspicious
that Dobson might be sexually abusing his eight-year-old daughter,
J.N. contacted the Federal Bureau of Investigation (FBI). J.N. told
the FBI that Dobson began sexually abusing her when she was eight
years old, forcing her to perform oral sex on him, and that the abuse
continued until she graduated from high school. She said he ensured
her silence by telling her that, if she told anyone, she would get both
him and her mother in trouble, and tear the family apart. J.N. gave
the FBI details of numerous encounters with Dobson, including other
instances of forced intercourse, and recorded a telephone call with
him in which he acknowledged using the gun and the knife to coerce
her on the specific occasions charged and generally admitted sexually
abusing her on other occasions as well.

After Dobson's guilty plea, the probation officer calculated his
guideline range at 151-188 months and recommended that a departure
might be appropriate under Application Note 4 to USSG § 2A3.1,
which encourages an upward departure if the defendant was convicted
of multiple acts of criminal sexual abuse and the counts are grouped

                    2
under § 3D1.2 (Groups of Closely Related Counts). However, Dob-
son's two counts of sexual abuse were not grouped together into a sin-
gle group under § 3D1.2. Nonetheless, the government recommended
a departure pursuant to Application Note 4 of § 2A3.1, and also
argued that a departure would be appropriate under§ 5K2.0, p.s., and
§ 5K2.3 (Extreme Psychological Injury). Dobson did not dispute
whether Application Note 4 applied in his case, but argued that no
departure should be made because the assaults resulted from his drug
and alcohol abuse, which had since been cured, and that there was no
danger that he could commit similar offenses. He also disputed
whether J.N. had suffered extreme psychological injury.

At sentencing, the district court found that the probation officer's
recommendation for a departure under § 2A3.1 was "the appropriate
basis upon which to grant an upward departure. . . ." The court
departed upward by two levels "because of the length of time of the
multiple acts of sexual abuse, the presence of the weapons on at least
two occasions, [and] the psychic force as well as the physical force
that was used against the victim." The new guideline range for the
sexual abuse counts was 188-235 months. The court imposed a sen-
tence of 235 months, with a consecutive sentence of five years for the
firearms offense. On appeal, Dobson challenges the departure as an
abuse of discretion, making the same arguments he used in the district
court.

Departures are reviewed for abuse of discretion under the test set
out in Koon v. United States, 518 U.S. 81, 96-100 (1996). A sentenc-
ing court may depart on the basis of an "encouraged" factor if that
factor is not already adequately accounted for in the applicable guide-
line. See Koon, 518 U.S. at 94-95; United States v. Rybicki, 96 F.3d
754, 757-58 (4th Cir. 1996) (following Koon). Here, we find that the
district court's rationale for departure was flawed because Application
Note 4 encourages a departure only if the defendant's multiple counts
are grouped together for sentencing under § 3D1.2. Dobson's were
not grouped together. Rather, they were placed in separate groups and
he received an increase of two levels under the multiple count rules.
See USSG § 3D1.4.

Although Dobson contends that the district court also based the
departure on the extreme psychological injury suffered by J.N., the

                    3
record reflects that the court did not make any findings concerning
J.N.'s psychological injury and did not rely on this factor in depart-
ing. The court's reference to "psychic force" appears to refer to the
threats of harm to the family which Dobson used to prevent J.N.
from revealing his abuse, rather than to psychic harm suffered by
J.N. as a result of the abuse.

Consequently, we vacate the sentence and remand for resentencing
to allow the district court to reconsider whether to impose sentence
within the guideline range or whether a departure on alternative
grounds might be warranted. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.

VACATED AND REMANDED

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