USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1298

UNITED STATES,

Appellee,

v.

JULIO RAMIREZ-BURGOS,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Raymond L. Acosta, U.S. District Judge]

___________________

____________________

Before

Cyr, Stahl and Lynch,

Circuit Judges.
______________

____________________

Julio Ramirez-Burgos on brief pro se.

____________________
Guillermo Gil,
______________

United

States

Attorney,

Nelson
Perez-So
_________________

Assistant United States Attorney, and Jose A. Quilles-Espinosa, Sen

________________________
Litigation Counsel, on brief for appellee.

____________________

MAY 21, 1997

____________________

Per Curiam.
___________

Defendant

Julio

Ramirez-Burgos was

convicted

by

a jury

of aiding

and

abetting in

carjackings in violation of 18 U.S.C.

2, and

of using a weapon during

two armed

2119, and 18 U.S.C.

the commission of a violent

crime in violation of 18 U.S.C.

924(c).

He was

sentenced

to a term of 35 years' imprisonment.

On

appeal,

defendant

conviction on the grounds

presented

perjured

defendant's

the

evidence

to

testimony,

to

wit,

the court

the

otherwise

testimony

erred in

victims' identifications of

was

overturn

his

that (1) the prosecution allegedly

accomplice, (2)

suppress the two

seeks

insufficient

of

failing to

defendant, (3)

to

prove

that

defendant participated in the crimes, and (4) the court erred

in

admitting evidence of a

the carjackings.

rape he committed

during one of

He also asserts multiple challenges

to the

computation of his sentence.

Background
Background
__________

Viewed in the light

the

evidence

defendant

and

at

trial

his

most favorable to the verdict,

showed

accomplice,

("Daniel"), were each carrying

their

first

("Nancy").

that

carjacking

by

Daniel

prearrangement,

Montanez-Rosa

a revolver when they accosted

victim,

Nancy

Rosada-Santiago

Brandishing a weapon, one of the men forced Nancy

to cede control of her Pontiac Sunbird.

-2-

The pair then drove around in Nancy's car searching

for

a second victim --

her will,

all the while

guns pressed against her.

low in the front

She was forced

passenger seat, facing the door,

men questioned her about her

her cash,

holding Nancy against

jewelry and

to lie

while the

family and personal life, stole

telephone beeper, and

threatened her

children and her life.

Spying

a second

likely victim,

Kassandra Rivera-

Boujoven

("Kassandra"),

Kassandra's Mitsubishi.

over the

the

men

rammed

Nancy's car

into

Again brandishing a gun, Daniel took

Mitsubishi, forcing

Kassandra to lie

down on

the

passenger seat of her car, face toward the door.

Now in

control of two cars and

two women victims,

the carjackers continued on their journey toward a site where

they could sell the stolen jewelry and buy drugs.

way, defendant

stopped Nancy's

car, forced her

Along the

to undress,

and forcibly raped her.

During the

allowing Nancy to see

hear

Daniel yelling

"hurry up."

With

rape the

car's interior light

the defendant's face.

from

a distance,

She

was on,

also could

urging defendant

a final instruction to Nancy

to

to remain at

the

site or her family would "pay" for it, "especially [her]

little girl,"

the back

defendant exited the Pontiac

seat of the

Mitsubishi --

and climbed into

leaving Nancy

kneeling

-3-

against the passenger seat of her car, traumatized, hurt, and

suffering from vaginal bleeding.

Together again and driving about in the Mitsubishi,

the

two

men

now

turned

their

attention

Pressing a gun

to her

ribs, they questioned

personal life,

rifled through her purse,

threatened her life, and

to

Kassandra.

her about

her

stole her jewelry,

argued between themselves about how

to drug her and kill her.

At one

point they

stopped the

car

at a

housing

project in order to buy drugs, and again at a

gas station to

get

As

water

with which

to

mix

the

drugs.

they

were

injecting themselves with the drugs, a police car approached,

lights

flashing.

In the light,

defendant's face, and his

gun.

Kassandra clearly

saw the

Threatening to shoot

her if

she did not turn away, defendant also ordered Daniel to "take

off."

A high speed chase ensued which ended with a crash.

The

Kassandra was

glove

two

men

were

arrested at

discovered in the wreckage

compartment.

She

was

pried from

the

crash

site.

wedged beneath the

the

car,

semi-

conscious, hysterical, and unable to walk.

Defendant

either of

testified that

the carjackings, but had

he was

not involved

in

unwittingly climbed into

the back seat of Kassandra's Mitsubishi, unarmed, just before

the police

chase.

By

"sheer happenstance," he

real carjackers (Daniel and

claims, the

an unidentified second man) must

-4-

have interrupted their crime spree at the same time and place

(the

housing project) where defendant had gone to buy drugs.

Allegedly

without

existence

of the

must have

unwittingly switched

carjacker --

any

knowledge

of the

presumed real second

joining Daniel in

crimes,

nor

the

carjacker, defendant

places with the

real second

the Mitsubishi for

the sole

purpose of shooting-up drugs.

Defendant

theorizes that Daniel's

testimony was a

fabrication designed

to inculpate defendant in

a rape which

Daniel himself had perpetrated -- and that both Kassandra and

Nancy were mistaken in their identifications of defendant.

(1)
(1)

Alleged Perjury
Alleged Perjury
_______________

Defendant asks

this court

to infer

that Daniel's

testimony was perjured -- and that the prosecution knew it --

as shown by

that

of

inconsistencies between

the

complaining

inconsistent statements,

prior

criminal

Daniel's

confessed lies in

knowing

own

and

prior

other cases, and

presentation

of

by the prosecution violates a defendant's

right to due process.

10, 14 (1st Cir.)

witnesses;

convictions.

perjured testimony

Daniel's testimony

See United States

___ _____________

v. Tavares, 93 F.3d
_______

(citations), cert. denied, 117 S.

____________

Ct. 373

(1996).

However,

testimony

74 F.3d

"it

is

axiomatic

is not per se perjurious."

304, 314 (1st Cir.),

that

inconsistent

United States v. Gary,

_____________
____

cert. denied, 116 S.

____________

-5-

Ct. 2567

(1996); see also United States

_________ _____________

Cir. 1993).

to

the

v. Lebon, 4
_____

F.3d 1,

2 (1st

Nor is perjury conclusively shown here by adding

mix the

circumstantial

evidence

that Daniel

lied

before and engaged in other acts of dishonesty.

Defendant did

finding of perjury.

find wilful

more than

court to

make a

"We decline his invitation that

we now

intent to

. .

not ask

the trial

provide false

testimony based on

. inconsistenc[ies]" and

no

character evidence.

Tavares, 93 F.3d at 14.

_______

(2)
(2)

Motion to Suppress the Identifications

Motion to Suppress the Identifications
______________________________________

Defendant

challenges the

suppress the complaining

of him,

denial of his

motion to

witnesses' line-up

identifications

and presumably the admissibility of

their later in-

court

identifications, as

tainted

by a

prior show-up

and

suggestive conditions at the line-up. Identifications made in

circumstances that are so impermissibly suggestive as to give

rise

to

"a

very

substantial

misidentification" are

process.

likelihood

not admissible

in

of

irreparable

keeping with

due

Bouthot v. United States, 878 F.2d 1506, 1514 (1st

_______
_____________

Cir. 1989) (quoting

Simmons v. United States, 390

_______
_____________

U.S. 377,

384 (1968)).

Defendant

identification

was

claims

that

impermissibly tainted

saw the

defendant

being

taken

hallway

at the police station

by his

(1)

Kassandra's

because Kassandra

keepers

to the line-up

through

room; and (2)

-6-

both

of the

complaining witnesses'

were

tainted

(allegedly in a

because

supported

("Sonia"),

was

distinctively clothed

tee shirt and blue jeans), and

swollen, bruised and

was

defendant

line-up identifications

by

bleeding.

his

wife,

His

version of the

Sonia

who testified that she was

his face was

Maria

line-up

Vazquez-Rosa

in the police station

hallway and there saw her husband being led past Kassandra on

his way to the line-up, tee shirted and battered.

Other testimony about the line-up, however,

the contrary.

show-up

had

Kassandra denied that

occurred,

accompanied Kassandra

denied

seeing

same as

identical

did

before and

any swelling,

defendant's face.

the

as

that

by

the alleged accidental

the

police

officer

during the line-up.

bleeding

or

who

They

bruising on

the

His clothing, they said, was substantially

of the

other participants,

over-the-trousers collared

participants

was to

the

police.

including an

shirt supplied

Contemporaneous

to all

police

photographs corroborated this version of the line-up.

The district judge found, as fact, that the alleged

accidental

show-up had

face

not

was

otherwise

view

of

determinations

deference

impermissibly

suggestive.

the

by an

not occurred;

The

evidence,"

which

are

marked

and that

nor

his

findings reflect

and

incorporate

necessarily entitled

appellate tribunal.

-7-

defendant's

appearance

a "reasonable

credibility

to

United States
______________

special

v. De
__

Jesus-Rios,
__________

990

F.2d 672,

676

(1st Cir.

1993);

see also
________

Bouthot, 878 F.2d at 1513-14 n.8.

_______

Seeing no ground for disturbing the court's factual

determination

that

the

identification

impermissibly suggestive, we need

of

the

due

process

misidentification.

F.2d 681, 682 (1st

below and

in the

issue,

procedure

i.e.,

the

In

likelihood

any event, as

margin, the victims'

of

Guzman-Rivera, 990
_____________

discussed

identifications were

reliable in light of the relevant second-prong factors.1

1

(3)
(3)

not

not reach the second prong

See United States v.

___ _____________

Cir. 1993).

was

Sufficiency of the Evidence

Sufficiency of the Evidence
___________________________

Defendant

argues

that

there

was

insufficient

evidence to identify him

as a participant in the

least

of

in

the

testimony.

absence

Daniel's

(allegedly

perjured)

The argument is faulty for two reasons.

First, Daniel's testimony,

part

crimes, at

with the other

eyewitnesses, was not

credibility was subjected

examination.

though inconsistent

The jury

to sustained and

incredible.

in

His

searching cross-

was instructed on the

possibility of

____________________

1As
1
forth in

applied in

this case,

De Jesus-Rios, 990
_____________

the second-prong

factors set

F.2d at 677, show:

(1) Each of

the complaining witnesses had an opportunity during the crime

to view the defendant at close range, (2) both testified that
their gazes were fixed on defendant during those moments, (3)
their descriptions

to the

police, while vague

and omitting

defendant's

moustache,

were

consistent

with

defendant's

appearance, (4) both identified the defendant with certainty,

and (5) the

line-up was

held within 24-36

hours after

the

crime.

-8-

problems with testimony of this type.

jury,

not for

this

court.

See
___

The choice was for the

United States
_____________

Delgado, 84 F.3d 22, 27 (1st Cir. 1996).

_______

v.

Laboy______

Second,

identified in court

and in any event, defendant was positively

by both of the

complaining witnesses as

an armed and violent participant in the carjackings.

gaps

in each witness's ability

Despite

to see during the respective

crimes, each identification had a

substantial foundation and

was corroborated by other evidence.

Nancy testified

that she first

only briefly, as he entered

her car.

saw the

defendant

She then saw

his face

clearly in the car light for several minutes as he raped her.

piece of paper found in Nancy's purse, which was retrieved

after

the

crime

from

her

car,

bore

the

defendant's

fingerprint.

Nancy's

identification

testimony

of defendant

also

as

corroborated

the back-seat

the

carjacker of

Kassandra's vehicle.

As defendant drove away in another car,

Nancy testified, he reminded

her of his threats

against her

child, and told her to call him on the telephone beeper which

he

had stolen from her.

overheard by Kassandra,

Substantially the

shouted from her

same words were

car window by

the

second of her car's invaders (whom she could not yet see).

Kassandra then heard

continuously, enabling her to

this second carjacker's voice

testify with certainty that it

-9-

was

he who had initially climbed over her crouched body into

the back seat

of her car, held

exited

and reentered

During

this stop,

stood right next

line of sight.

the

she

to the

True,

a gun to her

vehicle at

said, too,

ribs, and then

the housing

the back-seat

car, his body

she first saw

project.

carjacker

continuously in

her

defendant's face,

and

gun, only when the

police chase began.

But

then, too, and she

saw the face connected

defendant spoke

to this voice

at

close range, in good lighting, and with fixed attention.

To be sure, cross-examination revealed that each of

the complaining witnesses was extremely frightened during the

crime, and

still upset at

the time of the

respective

opportunities

limited by

darkness and the

to

see the

line-ups.

carjackers

Their

had

twisted postures they

been

had been

forced to assume on the passenger seats of their automobiles.

In

addition, each

culprits when

first

gave only

a general

first questioned, and each

carjacker to approach her

tee shirt

pulled up

admitted that she

over his

description

testified that the

car was partly

mouth and

of the

masked by a

nose.

Nancy

never saw the first carjacker's

even

face, and

was not at all able to identify Daniel.

These were

good arguments, offered to

an attempt to cast

doubt on the credibility of

identifications.

In

addition,

defendant

the jury in

the victims'

challenged

the

scientific

evidence,

pointing

out

that

much

of

it

was

-10-

inconclusive, and someone else might have wrongly transported

his

fingerprint to Nancy's car.

And he elicited substantial

testimony which tended to impeach Daniel's credibility.

Having

heard

all

of

the

evidence,

however,

including defendant's own testimony,

the jury convicted

the

defendant.

most

the

Viewed

verdict, there

in

was more

the

light

than ample

reliable identification

evidence

which "would

beyond a

reasonable doubt that the defendant [was] guilty as

charged."

Cir.

1026,

allow

favorable to

United States
_____________

1996) (quoting

a rational

jury to

determine

v. Sullivan, 85 F.3d 743,

________

United States v.
______________

1031 (1st Cir. 1993)),

747 (1st

Mena-Robles, 4
___________

cert. denied, 114

____________

F.3d

S. Ct. 1550

(1994); see also Guzman-Rivera, 990 F.2d at 682-83.

________ _____________

(4)
(4)

Evidence of the Rape

Evidence of the Rape
____________________

Defendant also assigns

as error

the rejection

of

his motion to exclude evidence of the rape; arguing that rape

is not an

"element" of

enhancement issue.

rejected similar

States
______

We

the offense, but

75 F.3d

F.3d

force and

993,

995

this statute.

59,

(finding proof of victim's death

by

60-61 (1st

Cir. 1995)

(finding

admissible to show use of force and violence,

is

not an independent element

and

See United
___ ______

Cir. 1996)

admissible to show a taking

violence); United States v.

______________

(1st

sentencing

have travelled this road before,

arguments under

v. Cruz-Kuilan,
___________

only a

Rivera-Gomez, 67
____________

proof

of

death

although death

of offense); United States v.

_____________

-11-

Rivera,
______

83

F.3d

admissibility of

chapter"

in

542,

545

(1st

Cir.

evidence of rape which

narrative

of

events

and

1996)

(upholding

provided a "crucial

critical

proof

of

possession of a weapon).

Of

course,

essential element

the Anti

Car

in and

of the crime

Theft Act,

Rivera-Gomez, 67 F.3d
____________

18

of itself,

rape is

of carjacking as

U.S.C.

2119

defined in

(1992).2
2

at 996 (defining statutory

not an

See
___

elements).

However, if a carjacker chooses rape as the means of "force,"

"violence," or "intimidation" by which to

seize control of a

vehicle, it amounts to the same thing.

In this

car was

case the

prosecution showed that

Nancy's

first taken from her by intimidation with a gun, not

____________________

2
2

The 1992 statute provides:

Whoever, possessing a firearm as defined in section

921

of this title, takes

a motor vehicle that has

been . . . in interstate or foreign commerce from .

.

the person

of .

. another

violence or by intimidation,

by

force and

or attempts to do so,

shall -(1) be fined . . . or imprisoned not more than

15 years or both
(2) if

serious bodily

injury (as defined

in

section 1365 of this title) results, be fined under

this title or imprisoned not more than 25 years, or

both . . . .

The statute
substituted

has since been amended.

"with intent

harm" for "possessing

In

October,

expressly
includes

1996,

to cause

In 1994, Congress

death or

a firearm as defined
Congress

providing

that

sexual assaults

clarified
"serious

violative

serious bodily
in section 921."

subsection

bodily
of 18

(2)

injury"
U.S.C.

by
also

2241,

2242.

-12-

by

rape.

The

later

rape, nonetheless,

accompanied

by a

veiled

threat to

do the

same

to her

daughter, terrorized

Nancy into complying with the carjackers' command that she --

with her

where

car -- remain stationery for

the carjackers

left them.

earlier brandishing of the

some time at the spot

Thus

the rape,

like the

gun, provided the intimidation by

which the carjackers extended their control of the victim and

her automobile.

evidence

of

Compare Rivera,
_______ ______

rape admissible

essential to prove

the

a taking by

83 F.3d

on

other

at 545

(holding

issues,

but not

"force and violence,"

where

rape was not instrumental in the taking nor retention of

___

the car).

Evidence of the rape

any

event,

to

the

jury's

was of critical relevance, in

understanding

of

Nancy's

identification of the defendant.

chapter" in the

second

of

narrative that linked

carjacking.

value of

And it provided

a "crucial

the defendant to

Rivera-Gomez, 67 F.3d at 997.

____________

the

Given the

this evidence as directly probative of two elements

the offense, the court did not abuse its discretion under

Fed. R. Evid. 403 in admitting it, despite any risk of unfair

prejudice.

Id. at 996.
___

old-fashioned

"Though lurid, it is

lawyers might

998.

Sentencing
Sentencing
__________

call the res

part of what

gestae."

Id. at
___

-13-

The

court

imprisonment:

360

carjackings charged

consecutive

in Count

sentenced

months

defendant

(concurrent

in Counts One

to

420

terms)

and Two, and

months'

for

the

a mandatory

60-month term for the firearms violation charged

Three.

The concurrent

the statutory maximum.

carjacking sentences exceed

Under the guidelines, the carjacking sentences were

calculated

2B3.1,

as follows.

for each

carjacking

enhancements were

level for Count

The base offense

count was

added to each count,

One to 35, and

level, under USSG

20.

Six

court

added

two

levels,

for Count Two to

bringing

criminal history, this produced a

carjackings

upward under

of

210-262 months.

USSG

5K2.3, and

33.

Since

3D1.4(a),

defendant's

offense level for the two carjackings to 37.

of

bringing the offense

these were "non-groupable offenses," applying USSG

the

sets

total

With a Category

guideline range for the

The

court then

Application note

departed

2 to

USSG

2K2.4, arriving at the 360-month (concurrent) sentence.

However, as

the government concedes on appeal, the

statutory maximum term for

car) is

300 months.

(Kassandra's

2119(1).

See 18 U.S.C.
___

2119(2).

On Count Two,

car), the maximum is 180 months.

See 18 U.S.C.
___

Concurrent terms for the carjackings were clearly

intended by the court,

on

the Count One carjacking (Nancy's

Counts One

and

Two

and so specified.

should

-14-

have

Thus

been

the sentence

capped

at

the

statutory maximum for the highest count of conviction, or 300

months.

See
___

USSG

5G1.2(b)(c).

mandatory

consecutive sentence

Adding

under

the

18 U.S.C.

60-month

924(c)),

produces a total allowable term of imprisonment for all three

counts of 360 months.

We reject defendant's other assignments of error at

sentencing for the following reasons.

(1)
(1)

no

clear

Two-level Enhancement for Perjury:

Two-level Enhancement for Perjury
_________________________________

error

intentionally

denying

See USSG

in

the

attempted

court's

to

finding

obstruct

There was

that

justice

defendant

by

falsely

any involvement in the two carjackings and the rape.

3C1.1;

United States

v. Tracy, 36

F.3d 199,

201

___

_____________

_____

(1st Cir.), cert. denied, 513 U.S. 1031 (1994).

____________

Defendant

theorizes that

his testimony

may not

have

been deliberately false but, since he is a drug addict,

the

product

of

confusion,

However,

at trial

claiming

to remember

watching

in

reiterated

probation

instead

his

the

he unequivocally

even

alibi in

officer.

the

his

Given

at

or

time

of

post-trial

the

the crime

faulty

testified to

the television

home at

placed him

mistake,

several

scenes,

memory.

an alibi,

programs he

the

crimes.

was

He

statement to

the

eyewitnesses

who

as well

as

the

fingerprint evidence, there was ample factual support for the

district court's finding.

See United States v. Dunnigan, 507

___ _____________
________

U.S. 87, 95 (1993).

-15-

(2) Two Level Enhancement for Reckless Endangerment

(2) Two Level Enhancement for Reckless Endangerment
_______________________________________________

During Flight:
During Flight
______________

finding

that

There

the high

was no

clear

speed

chase,

error in

the court's

along crowded

roads,

created

substantial risk

of

others, and actually resulted

See USSG
___

death or

bodily

injury to

in bodily injury to Kassandra.

3C1.2.

Defendant argues

was not in control

that as a back-seat

of the vehicle.

occupant, he

However, there was ample

support for the court's finding that defendant ordered Daniel

to

"take

off,"

and

otherwise

aided

and

abetted

Daniel

throughout the chase.

(3)
(3)

Loss Exceeding $10,000:

Loss Exceeding $10,000
_______________________

error in the court's

There

findings that the loss to

is no

clear

each victim,

including the value of their respective automobiles, exceeded

$10,000.

Defendant's

frivolous.

See USSG
___

challenges

in

this

2B1.1, comment. (n.2).

regard

are

(4)
(4)

Serious
Bodily
Injury:
Serious
Bodily
Injury:
_________________________

The

court's

determination that Nancy suffered "serious bodily injury" due

to a protracted impairment

the twenty-five

One.

See 18

of her mental faculties triggered

year maximum

U.S.C.

term of imprisonment

2119(2).3
3

In

on Count

calculating defendant's

___

____________________

3
3

The

statute incorporates

the

bodily injury," found in 18 U.S.C.

definition of

1365(g)(3), i.e., injury

involving "(A) a substantial risk of death; (B)

physical

pain; (C) protracted

"serious

extreme

and obvious disfigurement; or

(D) protracted loss or impairment of the function of a bodily

member, organ or mental faculty . . . ."

-16-

guideline

sentence,

enhancement

for

the

court

"serious

imposed

bodily

The decision to

apply the statutory

provided

in 18

2119(2),

evidence

adduced at

the

reports

showed that

as

diagnosed

with

was

sentencing

a result

post-traumatic

four-level

injury"

2B3.1(b)(3), and departed upward under USSG

U.S.C.

of

stress

under

USSG

5K2.3.

penalty range

amply supported

hearing.

the crime

disorder

by

Psychiatric

Nancy

and

was

major

depression.

she

Due to the mental trauma inflicted by the crime,

attempted

suicide

at

and

was

hallucinations,

treatment.

She was

least

twice,

hospitalized

forced to

suffered auditory

for

discontinue her

psychiatric

career as

pharmacist, had become emotionally distant from her children,

and dependent on her

mother.

she will require additional

The medical prognosis

is that

psychotherapy, hospitalizations,

and medical intervention for the rest of her life.

Defendant

misplaces reliance

Rivera, 83 F.3d 542 (1st Cir.

______

finding of

to

1996).

on United States v.
______________

In Rivera there was no

______

protracted mental injury, and inadequate evidence

sustain a finding

physical pain," as

that the victim

had suffered "extreme

defined by the statute.

Id.
___

at 547.

By

contrast here, the court found that

Nancy

will

suffer

lifetime

____________________

-17-

as a result of the crime

impairment

of

her

mental

faculties.

See 18 U.S.C.
___

1365(g)(3)(D).

It should also be

noted that

subsequent to

the Rivera case,

______

Congress enacted

the

Carjacking Correction

definition

of "serious

Act

of 1996,

bodily injury"

which amended

to include

the

rape and

sexual abuse.

The court's factual finding

was amply supported by

evidence in the PSR and medical reports.

in

the

hearings

refusal

to

require live

There was no

testimony.

are not meant to be mini-trials."

Robles-Torres,
_____________

109 F.3d

83,

86 (1st

abuse

"Sentencing

United States v.
_____________

Cir. 1997)

(citation

omitted).

As to the guidelines calculation, the court did not

exhaust

its enhancement

power under

2B3.1, by

imposing a

four

The

level increase

finding that

illness

for Nancy's

Nancy

"serious bodily

will suffer

injury."4
4

lifetime of

mental

could have been factored into the sentence as a six-

level enhancement for

factoring

in

the

"permanent" bodily injury.5

5

permanency of

the

injury

as

Instead,

an upward

____________________

4"Serious bodily
4
guidelines to

injury"

is defined

in

mean "extreme physical pain

the

sentencing

or the impairment

of a function of a bodily member, organ or mental faculty; or

requiring

medical

hospitalization,

intervention

or physical

such

as

rehabilitation."

surgery,
USSG

1B1.1

comment. (n.1(j)).

5"Permanent
5

or

"loss or substantial
mental

life-threatening bodily
impairment of the

faculty that is likely

injury" includes

function of a .

to be permanent."

USSG

. .
1B1

comment. (n.1(h)).

-18-

departure under USSG

5K2.3, p.s., did

not amount to "double

counting."

Defendant also fails to demonstrate that the

abused its

illness is a

court

discretion in deciding that a

lifetime of mental

"much more serious" injury

than that "normally

resulting

USSG

5K2.3,

extrinsic

carjacking

other

facts.

from commission

p.s.

"proof"

of the

The court

of

was not

and

but was

"normal"

obtain

level

entitled to

its superior

Koon v. United States,

____
_____________

carjacking.6
6

required to

comparatively

victims' injuries,

Guidelines cases

offense" of

of

rely on

knowledge of

the

116 S. Ct. 2035, 2038 (1996);

United States v. Rivera, 994 F.2d 942, 952 (1st Cir. 1993).
_____________
______

(5)
(5)

Upward Departure Under USSG

2K2.4, comment.
Upward Departure Under USSG
2K2.4, comment.
______________________________________________

(n.2)
(n.2)
_____

Defendant argues that

Application note 2

to USSG

departure to compensate for

the court erred in

2K2.4,

which permits an

applying

upward

the possible anomalous result of

an offender

receiving a

lighter guidelines sentence

underlying offense (carjacking) when

a firearms offense under

for an

he is also convicted of

924(c), than if he

was convicted

solely of the underlying offense.

____________________

6Defendant mistakenly assumes

6
compared

the

victim's

experienced

by victims

carjacking;

the

terrorize
mental

use

the victim

that the court

mental

trauma

of rape.
of rape

as

The
a

contributed to

injury inflicted

on the

charged offense.

-19-

to

that

should have
"normally"

offense charged
means

to control

the unusual

victim as

was
and

degree of

a result

of the

Defendant

calculating the

court

offense.

(1st

sentencing

properly

enhancement

refrained

for

See
___

misapprehends

range for

from

the brandishing

United States
_____________

210-262 months.

sentence

in a

of

In

the carjackings,

assessing

five

the

level

firearm during

117 S. Ct.

guideline range

Adding the

guideline.

v. McCarthy, 77
________

Cir. 1996), cert. denied,

____________

This resulted

the

F.3d 522,

536

479, 771 (1997).

for the carjackings

mandatory 60-month

for the violation of 18 U.S.C.

the

of

consecutive

924(c), produced a

total

been

sentence of only 322

no

separate count

months.

of

By

conviction

contrast, had there

under

18 U.S.C.

924(c), the enhancement for brandishing the weapon would have

increased

the

guidelines

sentence alone

computational

subject,

of

calculation

of

the

carjacking

to a level of 42, (360 months to life).

anomaly

course,

justified

to

an

an adjustment

upward

for

This

departure

the

--

statutory

maximum.

Defendant's opposite reading of Application note 2,

as

requiring

carjackings to

the

firearms

decrease in

the

maximum

penalty for

offset the 60-month consecutive

offense,7
7

____________________

also

ignores

the

the

sentence for

court's

broad

7This
7

interpretation

may

be

rooted

understanding of the double jeopardy clause.

in

mistaken

While defendant

does

not directly argue the point here, in a previous appeal

he

argued that

before
multiple

the

trial because
punishment.

firearms charge
it

violated

The earlier

should

be dismissed

the prohibition
appeal was

against

dismissed on

jurisdictional grounds. United States v. Ramirez-Burgos,

______________
______________

44

-20-

discretion.

That

a district court

may consider lowering

___

guidelines sentence to offset a consecutive statutory minimum

in some circumstances does not mean that it is required to do

so.

United States v. Webster, 54 F.3d 1, 4 (1st Cir. 1995).

_____________
_______

In sum, there was no abuse of discretion in the two

upward departures.

record

(1st

facts.

See
___

United States v.
_____________

grounded in

Twitty, 104 F.3d

______

1, 2

Cir. 1997); United States v. Quinones, 26 F.3d 213 (1st

_____________
________

Cir. 1994).

extent

Both were well explained and

While

of each,

statutory

the court did not separately

the oversight

was harmless.

specify the

But

for the

maximum, a five-level increase was warranted under

the Application

note to

2K2.4 alone, bringing

range to 360 months to life.

the penalty

____________________

F.3d 17 (1st Cir.

78

F.3d

710,

uncertainty

1995); see also United States

________ _____________
715

&

about

jurisdictional

n.2
the

ruling),

(1st

Cir.

continued

v. Stoller,
_______

1996)

(indicating

vitality

cert. dismissed, 117

________________

S.

of

the

Ct.

378

(1996).

Double

jeopardy's

punishments,
stiffer

however,

sentence than

States v.
______

Page, 84 F.3d
____

clearly intended that

prohibition

against

only

prevents

the imposition

the

legislature

intended.

38, 41

(1st Cir. 1996).

multiple
of

United
______
Congress

a term of incarceration under

924(c)

should be in addition to the punishment provided in 18 U.S.C.

2119.

See United States v. Centeno-Torres, 50 F.3d 84,

___ _____________
______________

n.2 (1st
S.

Cir.) (citing additional cases),

Ct. 208 (1995); cf.

___

United States v.
_____________

132, --- (1997) (observing that

desire

to run

other prison
imposed

under firearms

924(c).").

cert. denied, 116

____________
Gonzales, 513 U.S.
________

Congress "has made clear its

924(c) enhancements
terms, [even]

85

consecutively to

regardless of whether

enhancement

all

they were

statutes similar

to

-21-

However,

since

the

statutory

maximum

for

the

highest count of conviction on the carjackings is 300 months,

we must vacate

concurrent

so much of the sentence as

term for

Counts

One

and

Two.

reflects a higher

The

mandatory

consecutive 60-month sentence for the firearms offense brings

the permissible

total sentence for

all three counts

to 360

months.

The

judgment

of

conviction

is

affirmed.
________

The

sentence on Counts One and Two is vacated and remanded to the

_______

district

court

with

sentence

in accordance

directions

with this

respects, the sentence is affirmed.

________

that

the

decision.

court

In

enter

all other

-22-