                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-4038
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
James Warren Sarff,                      *
                                         *     [UNPUBLISHED]
             Appellant.                  *
                                         *
                                    ___________

                              Submitted: June 12, 2001
                                  Filed: July 2, 2001
                                   ___________

Before BOWMAN and HEANEY, Circuit Judges, and KOPF,1 District Judge.
                          ___________

PER CURIAM.


      James Warren Sarff (Sarff) was convicted of one count of kidnaping in violation
of 18 U.S.C. § 1201(a)(1) and three counts of interstate domestic violence in violation
of 18 U.S.C. § 2261(a)(2). Sarff appeals and we affirm.



      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska, sitting by designation.
      Imposing a 72-month upward departure from the high end of the otherwise
applicable custodial range (108 months), the district court2 sentenced Sarff to 180
months in prison on Count 1. In addition, the judge sentenced Sarff to concurrent
sentences of 60 months in prison on Count 2, 120 months in prison on Count 3, and
180 months in prison on Count 4.

       Regarding Count 4 which charged Interstate Domestic Violence Causing Life-
Threatening Bodily Injury, Sarff claims that the evidence was insufficient to convict
him of causing life-threatening injury. He also claims that the district judge abused her
discretion by imposing a 72-month upward departure. Neither argument is persuasive.

       First, we must examine the evidence in the light most favorable to the
government. See, e.g., United States v. Easley, 70 F.3d 65, 67-68 (8th Cir. 1995) (“The
standard of review for a claim of insufficient evidence is very strict and the verdict of
the jury should not be overturned lightly. . . . [W]e must review the evidence in the light
most favorable to the government and accept all reasonable inferences supporting the
verdict.”) (citation omitted). Using that standard, the evidence was plainly sufficient
to convict Sarff of causing a life-threatening injury to the victim. Sarff choked his
former wife until she was unconscious. She suffered a stroke as a result. Indeed, for
a time, Sarff thought he had killed her. The fact that the victim is doing well now does
not disprove the life-threatening nature of the injury.

     Second, recognizing that we use an abuse of discretion standard when reviewing
upward departure decisions, see, e.g., United States v. Kingston, 249 F.3d 740, 742 (8th
Cir. 2001) (upward departure amounting to twice the Sentencing Guideline range was
not unreasonable when reviewed under the abuse of discretion standard), the district
judge did not abuse that discretion when the judge departed. The judge gave several


      2
        The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
                                            -2-
reasons for departure, and each was supported by the law and the facts. In addition,
and given the deference required by our standard of review, the extent of the departure
appears reasonably related to the purposes of the Guidelines. Id. at 743 (“[W]e give
great deference to a district court’s determination of the amount of departure, as that
court has the ‘superior feel for the case.’”) (quoting United States v. Otto, 64 F.3d 367,
371 (8th Cir. 1995)).

       The judge believed the criminal history category of I was understated and such
understatement warranted a departure. U.S.S.G. § 4A1.3 p.s. (adequacy of criminal
history category). There was sufficient evidence for the judge to come to this
conclusion. See, e.g., United States v. Cook, 972 F.2d 218, 221-22 (8th Cir. 1992) (in
making a § 4A1.3 departure, the district court properly considered the defendant’s
continuing pattern of assault).

      It is undisputed that Sarff had an assault conviction involving his father-in-law
plus an aggravated assault conviction involving the victim that were not counted for
criminal history purposes due to their age. Moreover, the judge thought that Sarff’s
kidnaping of his former wife was a part of a “violent and rageful” history of abuse that
he had visited upon her since about the time of the uncounted aggravated assault. A
videotaped interview of the victim conducted shortly after she was rescued supports the
judge’s view of the abusive history of the relationship.

      Relying upon U.S.S.G. § 5K2.0 p.s. (grounds for departure) and U.S.S.G. §
5K2.8 p.s. (extreme conduct), the judge also believed that Sarff prolonged the victim’s
pain and humiliation and that such inhumane treatment warranted a significant
departure. Once again, the record was sufficient to support the judge’s discretionary
decision on this point. See, e.g., United States v. Loud Hawk, 245 F.3d 667, 670 (8th
Cir. 2001) (“[T]he barbaric circumstances of this case warrant significant punishment”)
(collecting cases affirming substantial upward departures under § 5K2.8)).


                                           -3-
       Sarff forcibly removed his victim from Minnesota and fled with her to Mexico.
While there he pulled her hair and shook her head violently when he became upset with
her. He told her they would never return to their family. All of this took place while
the victim’s left arm hung limp at her side as a result of the stroke caused by the
defendant’s initial assault. The fact that the defendant was sometimes “kind” to the
victim does not excuse this beastly behavior for departure purposes.

      In short, there was no error. Accordingly, the conviction and sentence of the
defendant is affirmed.

      A true copy.

             Attest:

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




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