United States of America v. Richard Cole, Iii (02-5839); Jonathan Johnson (02-5840)

*The Honorable Karl S. Forester, Chief United States District Judge
for the Eastern District of Kentucky, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0051P (6th Cir.)
File Name: 04a0051p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICHARD COLE, III (02-5839);
JONATHAN JOHNSON
(02-5840),
Defendants-Appellants.
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Nos. 02-5839/5840
Appeal from the United States District Court
for the Western District of Tennessee at Jackson.
No. 01-10023—James D. Todd, Chief District Judge.
Argued: October 30, 2003
Decided and Filed: February 19, 2004
Before: MOORE and ROGERS, Circuit Judges;
FORESTER, Chief District Judge.*
2 United States v. Cole, et al. Nos. 02-5839/5840
1The six-count indictment against the defendants consisted of the
following: Count 1, conspiring to kidnap and sexually assault a
Postmaster in violation of 18 U.S.C. § 1201(c); Count 2, kidnapping a
Postmaster in violation of 18 U.S.C. § 1201(a)(5); Count 3, car-jacking
a Postmaster’s vehicle in violation of 18 U.S.C. § 2119; C ount 4,
assaulting a Postmaster with a weapon in violation of 18 U.S.C. § 111;
Count 5, hindering and delaying a Postmaster’s communication with law
enforcement by threats of force and violence in vio lation of 18 U .S.C.
§ 1512(b )(3); Count 6, brandishing a firearm during a crime of violence
in violation of 18 U.S.C. § 924(c). Pursuant to plea negotiations, Johnson
and Cole pled guilty to Counts 2, 4, and 6 of the ind ictment. Counts 1, 3,
and 5 were dismissed. Johnson received a total sentence of 489 months;
_________________
COUNSEL
ARGUED: Jeff Mueller, LAW OFFICE OF JEFF
MUELLER, Jackson, Tennessee, Bruce I. Griffey, OFFICE
OF BRUCE IRWIN GRIFFEY, Memphis, Tennessee, for
Appellants. James W. Powell, ASSISTANT UNITED
STATES ATTORNEY, Jackson, Tennessee, for Appellee.
ON BRIEF: Jeff Mueller, LAW OFFICE OF JEFF
MUELLER, Jackson, Tennessee, Bruce I. Griffey, OFFICE
OF BRUCE IRWIN GRIFFEY, Memphis, Tennessee, for
Appellants. James W. Powell, ASSISTANT UNITED
STATES ATTORNEY, Jackson, Tennessee, for Appellee.
_________________
OPINION
_________________
FORESTER, District Judge. The Defendants, Richard
Cole, III (“Cole”) and Jonathan Johnson (“Johnson”) appeal
the sentences imposed on them by the U.S. District Court for
the Western District of Tennessee pursuant to the 2001 United
States Sentencing Guidelines (“U.S.S.G.”), resulting from
their convictions for kidnapping, assault, and the use of a
firearm during a crime of violence.1

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Nos. 02-5839/5840 United States v. Cole, et al. 3
Cole was sentenced to a total of 319 months.
On appeal, Cole presents the following arguments: (1) the
district court erred when it utilized U.S.S.G. § 2A3.1, instead
of U.S.S.G. § 2A4.1 for the kidnapping offense; (2) the
district court should not have granted a four-level sentence
enhancement for abduction on a conviction for a kidnapping
offense pursuant to U.S.S.G. § 2A3.1(b)(5); and (3) the
district court wrongly refused to grant a downward departure
for diminished capacity and aberrant behavior pursuant to
U.S.S.G. §§ 5K2.13 and 5K2.20. Johnson contends that the
district court erred when it increased his offense level by two
points for obstruction of justice under U.S.S.G. § 3C1.1. In
addition, both Cole and Johnson allege that the district court
erred when it granted a three-level upward departure for
extreme conduct in accordance with U.S.S.G. § 5K2.8. For
the following reasons, we AFFIRM.
I. JURISDICTION
The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231. This Court has jurisdiction pursuant to 28 U.S.C.
§ 1291.
II. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
At or around noon on May 1, 2001, the defendants entered
the Bells, Tennessee U.S. Post Office. Cole and Johnson,
who was armed with an unloaded .38 caliber pistol tucked
into the front waist-band of his pants, forced the victim (a
United States Postmaster) out of the building and into her
vehicle, in which Cole and Johnson, along with their victim,
fled the scene. For four hours, the defendants held the victim
captive, driving the back roads surrounding Jackson,
Tennessee, and taking turns sexually assaulting her. She was
released around 4 p.m., whereupon she reported the crime.
The defendants were arrested a short time later.
4 United States v. Cole, et al. Nos. 02-5839/5840
2Although later amended, U.S.S.G. § 2A4.1. (2001) provided:
Kidnapping, A bduction, U nlawful R estraint:
(a) Base Offense Level: 24
(b) Specific Offense Characteristics
(1) If a ransom demand or a demand upon government was made,
increase by 6 levels.
(2) (A) If the victim sustained perm anent or life-threatening bo dily
injury, increase by 4 levels; (B) if the victim sustained serious bod ily
injury, increase by 2 levels; or (C) if the degree of injury is between
that specified in subdivisions (A ) and (B ), increase by 3 levels.
(3) If a dangerous weapo n was used, increa se by 2 levels.
(4)(A) If the victim was not released before thirty days had elapsed,
increase by 2 levels.
(B) If the victim was not released before seven days had elapsed,
increase by 1 level.
(C) If the victim was released before twenty-four hours had elapsed,
decrease by 1 level.
(5) If the victim was sexually exp loited: increase by 3 levels.
(6) If the victim is a minor and, in exchange for money or other
consideration, was placed in the care or custody of another person
who had no legal right to such care or custody of the victim, increase
by 3 levels.
(7) If the victim was kidnapped, abducted, or unlawfully restrained
during the commission of, or in connection with, another offense or
escape therefrom; or if another offense was committed during the
kidnapping, abd uction, or unlawful restraint, increase to--
After her release, the victim gave two statements to Postal
Inspector Katrina Chalmers. The statements provided the
details of the defendants’ activities as later set forth in the
presentence investigation report. The victim stated that, prior
to her release, Johnson found an insurance card in the glove
box of her vehicle and told her that he had her address and
would “send someone to kill her” if she told anyone about the
incident. Johnson also repeatedly stated that he ought to kill
her because she had seen his and Cole’s faces.
The defendants pled guilty to kidnapping, assault, and the
use of a firearm during a crime of violence, and a sentencing
hearing was held for each defendant. With respect to Cole,
the district court began with the kidnapping charge and
proceeded to U.S.S.G. § 2A4.1.2 However, that guideline,

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Nos. 02-5839/5840 United States v. Cole, et al. 5
(A) the offense level from the Chapter Two offense guideline
app licable to that other offense if such offense guideline includes an
adjustment for kidnapping, abduction, or unlawful restraint, or
otherwise takes such conduct into account; or
(B) 4 plus the offense level from the o ffense guideline applicable to
that other offense, but in no event greater than level 43, in any other
case, if the resulting offense le vel is greater than that determined
above.
3U.S.S.G.§ 2A3.1. Criminal Sexual Abuse; Attempt to Co mmit
Criminal Sexual Abuse:
(a) Base Offense Level: 27
(b) Specific Offense Characteristics
(1) If the offense was committed by the means set forth in 18 U.S.C.
§ 2241(a) o r (b), increase by 4 levels.
(2) (A) If the victim had not attained the age of twelve years, increase
by 4 levels; or (B) if the victim had attained the age of twelve years
but had no t attained the age of sixteen years, increase by 2 levels.
(3) If the victim was (A ) in the custody, care, or supervisory control
of the defendant; or (B) a person held in the custody of a correctional
facility, increase by 2 leve ls.
(4) (A) If the victim sustained permanent or life-threatening b odily
injury, increase by 4 levels; (B) if the victim sustained serious bod ily
injury, increase by 2 levels; or (C) if the degree of injury is between
that specified in subdivisions (A ) and (B ), increase by 3 levels.
(5) If the victim was abduc ted, increase by 4 levels.
(6) If, to persuade, induce, entice, or coerce a minor to engage in
prohibited sexual cond uct, or if, to facilitate transportation o r travel,
by a minor or a participant, to engage in prohib ited sexual conduc t,
the offense involved (A) the knowing misrepresentation of a
pa rticipant's identity; or (B) the use of a computer or an Internet-
access device, increase by 2 levels.
under (b)(7)(A), directed the court to refer to U.S.S.G.
§ 2A3.13 and impose sentence under that section if it resulted
in a greater offense level. As a result, Cole received a higher
base offense level. Additionally, pursuant to specific offense
characteristic (b)(5) of U.S.S.G. § 2A3.1, the district court
granted a four level sentence enhancement because the victim
had been abducted. The district court also denied Cole’s
request for a downward departure for diminished capacity and
6 United States v. Cole, et al. Nos. 02-5839/5840
4U.S.S.G. § 5K 2.13 . Diminished Cap acity (Policy Statement)
A sentence below the applicable guideline range may be warranted
if the defendant committed the offense while suffering from a
significantly reduced mental capacity. However, the court may not
depart below the ap plicab le guideline range if (1) the significantly
reduced mental capacity was caused by the voluntary use of drugs or
other intoxicants; (2) the facts and circum sta nces of the defenda nt's
offense indicate a need to protect the public because the offense
involved actual violence or a serious threat of violence; or (3) the
de fendant's criminal history indicates a need to incarcerate the
defendant to protect the public if a departure is warranted, the extent
of the departure should reflect the extent to which the reduced mental
capacity contributed to the commission of the offense.
5U.S.S.G. § 5K 2.20 . Aberrant B ehavior (P olicy Statement)
A sentenc e belo w the applicable guideline range may be warranted
in an extraordinary case if the defendant's criminal conduct
constituted aberrant behavior. However, the court may not depart
below the guideline range on this basis if (1) the offense involved
serious bod ily injury or death; (2) the defendant discharged a firearm
or otherwise used a firearm or a dangerous weapon; (3) the instant
offense of conviction is a serious drug trafficking offense; (4) the
defendant has more than one criminal history point, as determined
under Chapter Four (Criminal History and Criminal Livelihood); or
(5) the defendant has a prior federal, or state, felony conviction,
regardless of whether the conviction is countable under Chapter Four.
6U.S.S.G. § 5K 2.8. E xtreme Co nduc t (Policy Statem ent)
If the defendant's conduct was unusually heinous, cruel, brutal, or
degrading to the victim, the court may increase the sentence above
the guideline range to reflect the nature of the conduct. Examples of
extreme conduct include torture of a victim, gratuitous infliction of
injury, or prolonging of pain or humiliation.
7The sentence breaks down in the following manner: 235 months on
Count 2, kidnapping; 120 months on Count 4, assault, to run concurrent
with Count 2; and 84 months on Count 6, the firearm charge, to run
aberrant behavior pursuant to U.S.S.G. §§ 5K2.134 and
5K2.205 because Cole’s acts fell outside the language
permitting such departure. Finally, the court departed upward
three levels for extreme conduct based on U.S.S.G. § 5K2.8.6
This resulted in a total sentence of 319 months.7

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Nos. 02-5839/5840 United States v. Cole, et al. 7
consecutive with Co unts 2 and 4.
8U.S.S.G. § 3C1.1. Obstructing or Impeding the Administration of
Justice
If (A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice during the course of
the investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to (i) the
defendant's offense of conviction and any relevant conduct; or (ii) a
closely related offense, increase the offense level by 2 levels.
9The sentence breaks down in the following manner: 405 months on
Count 2, kidnapping; 120 months on Count 4, assault, to run concurrent
with Count 2; and 84 months on Count 6, the firearm charge, to run
consecutive with Co unts 2 and 4.
With regard to Johnson, the district court increased his
offense level two points for obstruction of justice pursuant to
U.S.S.G. § 3C1.18 because of the threats he made to the
victim prior to releasing her. Additionally, as it had done
with regard to Cole, the court departed upward three levels for
extreme conduct based on U.S.S.G. § 5K2.8. Johnson was
ultimately sentenced to a term of 489 months.9
III. DEFENDANT COLE
A. Appropriateness of Sentencing Guideline Used
Defendant Cole was indicted and pled guilty to a violation
of 18 U.S.C. § 1201(a)(5), which proscribes the offense of
kidnapping. The U.S.S.G. Appendix A, Statutory Index,
specifies the offense guideline section in Chapter Two
applicable to the statute of conviction. The proper guideline
specified by the index for a violation of 18 U.S.C. § 1201 is
set out at § 2A4.1, and specifies a base offense level of 24.
This guideline provides in part that:
if the victim was kidnapped, abducted, or unlawfully
restrained during the commission of, or in connection
with, another offense . . . or if another offense was
8 United States v. Cole, et al. Nos. 02-5839/5840
committed during the kidnapping, abduction, or unlawful
restraint, increase to- (A) the offense level from the
Chapter Two offense guideline applicable to that other
offense if such offense guideline includes an adjustment
for kidnapping, abduction, or unlawful restraint . . . if the
resulting offense level is greater than that determined
above.
U.S.S.G. § 2A4.1(b)(7). The guideline also provides, at
U.S.S.G. § 2A4.1(b)(5)(A), for an increase of three points if
the victim was sexually exploited.
This Court utilizes a de novo review with respect to a
sentencing court’s interpretation of the United States
Sentencing Guidelines, and a clearly erroneous standard with
respect to factual findings. See United States v. Kimble, 305
F.3d 480, 485 (6th Cir. 2002); United States v. Denton, 246
F.3d 784, 789 (6th Cir. 2001); United States v. Scott, 74 F.3d
107, 111 (6th Cir. 1996).
The defendants’ victim, after being kidnapped, was forcibly
raped at gunpoint. The offense guideline for criminal sexual
assault is U.S.S.G. § 2A3.1, which specifies a base offense
level of 27 and includes an adjustment for kidnapping,
abduction, or unlawful restraint as a specific offense
characteristic. The district court, applying the specific
offense characteristics of U.S.S.G. § 2A3.1(b)(1) and
2A3.1(b)(5), determined the resulting offense level to be 35.
The court concluded that because the offense level under
U.S.S.G. § 2A3.1 was greater than the base offense level
under § 2A4.1, § 2A4.1(b)(7) required the use of § 2A3.1 and
prohibited the application of § 2A4.1. Cole argues that this
conclusion was erroneous.
While this Court has not yet addressed this issue, each and
every one of the courts of appeals that has done so has
determined the use of U.S.S.G. § 2A3.1 to enhance a sentence
for kidnapping to be appropriate. We are inclined to agree
with the circuits that have heretofore so held, and thus the

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Nos. 02-5839/5840 United States v. Cole, et al. 9
10See United States v. M ichaud, 268 F.3d 728, 738 -39 (9th Cir.
2001)(upholding actions of district court identical to those here at issue:
“Section 2A4.1(b)(7) states unambiguously that the offense level
calculation from the other offense committed during a kidnapp ing is to
app ly ‘if the resulting offense level is greater than that determined’ using
§ 2A4 .1"); Un ited States v. R ice, No. 00-45 94, 2001 W L 1087 68 (4th Cir.
Feb. 8, 2001); United States v. C ree, 166 F.3d 1270 (8th Cir.
1999)(upho lding district court’s application o f § 2A 3.1 base offense level
for criminal sexual abuse, rather than the lower b ase offense level of
2A4.1 for kidnapping, even though sexual assault was committed outside
of federal territorial jurisdiction); United States v. Lew is, 115 F.3d 1531
(11th Cir. 19 97); United States v. Po llard, 986 F.2d 44, 46 (3rd Cir. 1993)
(upholding conviction and ruling of district court that applied sentencing
guideline for criminal sexual abuse to a defendant convicted of conspiracy
to kidnap even though he was not charged with an assault offense, stating:
“There is no statuto ry or co nstitutional requirement that a defendant be
convicted of cond uct before the cond uct may be co nsidered in
sentencing.”); Un ited States v. An derso n, 5 F.3d 795 (5th Cir.
1993)(though this court had not previously applied U.S.S.G.
§ 2A4.1(b)(7) in the criminal sexual abuse context, it had approved the
section-switching provision of the guideline and cited as authority cases
of the Third and T enth Circuits listed herein); United States v. Galloway,
963 F.2d 1388, 1391 (10th Cir. 1992)(“The Sentencing Co mmission’s
intent to apply the higher of the two guidelines is unmistakable. . . . The
fact that a defendant may have committed a second additional offense
cannot relieve him from responsibility for the more serious of the
offenses. If that were the case, a defendant would receive a benefit from
the fact that he chose to commit an additional offense”).
district court was correct in proceeding from U.S.S.G.
§ 2A4.1(b)(7)(A) to U.S.S.G. § 2A3.1.10 As the Court in U.S.
v. Galloway, 963 F.2d 1388 (10th Cir.1992), reasoned:
We find that § 2A4.1(b)(5) is not ambiguous. When a
victim is kidnapped in order to facilitate the commission
of another offense, § 2A4.1(b)(5) directs the sentencing
court to apply the guideline with the higher offense as
between the kidnapping guideline and the guideline for
the other offense. The background notes to § 2A4.1
explain:
10 United States v. Cole, et al. Nos. 02-5839/5840
An enhancement is provided when the offense is
committed for ransom or to facilitate the commission of
another offense. Should the application of this guideline
result in a penalty less than the result achieved by
applying the guideline for the underlying offense, apply
the guideline for the underlying offense (e.g. § 2A3.1,
Criminal Sexual Abuse).
The Sentencing Commission’s intent to apply the higher
of the two guidelines is unmistakable.
Id. at 1391.
It could be argued that U.S.S.G. §§ 2A4.1 and 2A3.1
overlap to such an extent that a feasible alternative means of
sentencing would be to use § 2A4.1 and then add three levels
for sexual exploitation under specific offense characteristic
(b)(5) of that guideline. However, the general application
principles of the U.S.S.G. in the section titled, “Application
Instructions,” require that, “[w]here two or more guideline
provisions appear equally applicable, but the guidelines
authorize the application of only one such provision, use the
provision that results in the greater offense level.” U.S.S.G.
§ 1B1.1, Application Note 5. This statement dispels with any
need to determine which allegedly conflicting section
controls. Clearly, the provision resulting in the greater
offense level is U.S.S.G. § 2A3.1. As a result, the correct
guideline was used.
B. The Four-Level Sentence Enhancement for
Abduction under U.S.S.G. § 2A3.1(b)(5)
The district court sentenced Cole for the crime of
kidnapping. However, in so doing, it correctly employed
U.S.S.G. § 2A3.1 as the offense guideline, thereby ultimately
sentencing him for criminal sexual assault and abduction.
Cole asserts that the district court’s use of the specific offense
characteristic (b)(5) of U.S.S.G. § 2A3.1, which calls for an
increase of four from the base offense level when the victim

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Nos. 02-5839/5840 United States v. Cole, et al. 11
11This Court is also guided by the Fifth Circuit decision in United
States v. Anderso n, 5 F.3d 795 (5th Cir. 1993), in finding that the district
court herein properly applied the complained-of four level enhancement
unde r U.S .S.G. § 2A3.1(b)(5). Anderson presented facts similar to those
in the instant matter, where the defendant likewise argued that the district
court engaged in “impermissible double counting” when, after beginning
with U.S.S.G. § 2A4 .1, and turning to U.S.S.G. § 2A3.1, the district court
was abducted, is an impermissible double counting because
an essential element of kidnapping is abduction. Cole argues
that the four level enhancement “would enhance for the very
action which defines the crime itself.” Appellant’s Br. at 10.
As noted above, this Court reviews a district court’s
application of the sentencing guideline de novo, while factual
findings are upheld unless they are clearly erroneous. See
United States v. Weekly, 130 F.3d 747, 750 (6th Cir. 1997).
This Court has held, albeit on different facts, that
“impermissible ‘double counting’ occurs when precisely the
same aspect of a defendant’s conduct factors into his sentence
in separate ways.” United States v. Farrow, 198 F.3d 179,
193 (6th Cir.1999) (citing United States v. Perkins, 89 F.3d
303, 310 (6th Cir.1996)). Applying this established tenet to
the instant case, it is clear that no impermissible double
counting has occurred. Cole was convicted of kidnapping.
Appropriately, the district court proceeded to U.S.S.G.
§ 2A4.1 as the applicable sentencing guideline with respect to
kidnapping. That section required the court to proceed to
U.S.S.G. § 2A3.1. The district court sentenced Cole for
criminal sexual assault and increased the base offense level by
four pursuant to U.S.S.G. § 2A3.1(b)(1) because the offense
involved the use of force, and again by four pursuant to
U.S.S.G. § 2A3.1(b)(5) because he had abducted his victim.
It cannot be said that the district court took into account
Cole’s act of kidnapping when it turned to U.S.S.G. § 2A3.1.
Clearly, kidnapping and sexual assault are two independent
and separate crimes, and should be considered separately at
sentencing.11
12 United States v. Cole, et al. Nos. 02-5839/5840
enhanced the sexual abuse base offense level for the abduction of the
victim. Id. at 799. The defendant argued that “the court already took the
kidnapping offense into consideration when it began its calculations with
section 2A4.1, the kidnapping guideline.” Id.
The Fifth Circuit summarily rejected this argument. It stressed that
the Sentencing Guidelines “expressly pro vide that an entire guideline shall
be applied upon reference from another guideline.” Id. The court cited
U.S.S.G. § 1B1.5(a), which states that “[a] cross reference ( an instruction
to apply another guideline) refers to the entire offense guideline (i.e., the
base offense level, specific offense characteristics, cross references, and
special instructions.)” U .S.S.G . § 1B 1.5(a). As a result of this language,
the court concluded that the district court had not erred in its application
of the Sentencing Guidelines and hence, there was no impermissible
double co unting. Anderson, 5 F.3d at 799.
C. Diminished Capacity and Aberrant Behavior
Although “a district court’s discretionary decision not to
depart downward from the Guidelines range ordinarily is not
appealable,” an appeal is allowed “when the district court
believed that it lacked any authority to depart downward as a
matter of law.” United States v. Burke, 237 F.3d 741, 743
(6th Cir. 2001).
1. Diminished Capacity
At Cole’s sentencing hearing, the district court concluded
that, based on expert trial testimony, Cole suffered from
diminished capacity. However, the district court denied a
downward departure from the applicable sentencing
guideline, finding that the guideline limitations prohibited
such a departure.
U.S.S.G. § 5K2.13, titled “Diminished Capacity,” states
that the district courts have the discretion to grant a
downward departure from the applicable sentencing
guidelines “if the defendant committed the offense while
suffering from a significantly reduced mental capacity.”
U.S.S.G. § 5K2.13. However, this policy statement is
limited, in that the district court has no such discretion if “the

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Nos. 02-5839/5840 United States v. Cole, et al. 13
12This Court has held that the definition of “crime of violence”
within U.S.S.G. § 4B 1.2 “can be read in concert with § 5K2.13,” thereby
providing guidance as to what does and does not constitute a violent
offense. United States v. C lements, 144 F.3d 981, 982 (6th Cir. 1998).
facts and circumstances of the defendant’s offense indicate a
need to protect the public because the offense involved actual
violence or a serious threat of violence.” U.S.S.G. § 5K2.13.
A crime of violence includes any offense that “(1) has as an
element the use, attempted use, or threatened use of physical
force against the person of another, or (2) . . . otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” U.S.S.G. § 4B1.2(a).12 Cole was
convicted of kidnapping under 18 U.S.C. § 1201, assault
under 18 U.S.C. § 111, and use of a firearm during a crime of
violence pursuant to 18 U.S.C. § 924(c).
Although the crime of kidnapping lacks the element of use
or threat of use of physical force against another, it falls under
that language of U.S.S.G. § 4B1.2(a)(2), as it involves
“conduct that presents a serious potential risk of physical
injury to another.” U.S.S.G. § 4B1.2. The use of force is
integral to a conviction for assault, as 18 U.S.C. § 111 is
violated when one “forcibly assaults . . . any person . . .”
18 U.S.C. § 111. Vis a vis the firearm charge, Cole pled
guilty to a violation of 18 U.S.C. § 924(c). That section states
that “[a]ny person who, during and in relation to any crime of
violence . . . uses or carries a firearm” will, in addition to
being punished for the underlying crime, be punished for
incorporating a firearm into the commission of the crime.
18 U.S.C. § 924(c)(emphasis added). Because 18 U.S.C.
§ 924(c) is only violated if a gun is used in connection with
a “crime of violence,” it is inherent that a conviction
thereunder “involves” a crime of violence. It is thus clear that
each of the offenses for which Cole was convicted meets the
definition of a “crime of violence” under U.S.S.G.
§ 4B1.2(a), and the district court was correct in concluding
14 United States v. Cole, et al. Nos. 02-5839/5840
13Cole argues that the prohibition of downward departures in relation
to violent crimes results in cruel and unusua l punishment with respect to
defendants such as himself who possess limited functioning. Cole states
in his brief that “[t]he very dim inished capa city that he p ossesses limits
his ability to comprehend and ap preciate the differences between the
commission of a violent and non-vio lent offense and the relative effects
of sentencing as well.” A ppe llant’s Br. at 12. However, Cole neglects to
cite even o ne authority supporting his constitutional argument, and thus
this argum ent is deemed waived. See, e.g., Mc Pherson v. Kelse y, 125
F.3d 989, 995-96 (6th Cir. 1997)(“issues adverted to in a perfunctory
manner, unacc omp anied by som e effort at developed augmentation, are
deemed waived. It is not sufficient for a party to mention a possible
argument in the mo st skeletal way, leaving the court to . . . put flesh on
its bones.”)(quoting Citizens Awareness Network, Inc. v. U.S. Nuclear
Regulatory Comm ’n, 59 F.3d 284, 293-94 (1st Cir. 1995)). Furthermore,
a majo rity of the courts of appeals have denied downward departures
under U.S.S.G. § 5K2.13 in cases involving violent crimes, see, e.g.,U.S.
v. Mo rin, 124 F.3d 649 (4th Cir. 19 97), U.S. v. Th ames, 214 F.3d 608 (5th
Cir. 200 0); U.S. v. Maddelena , 893 F.2d 815 (6th C ir. 198 9); U.S. v.
Mayotte, 76 F.3d 887 (8th C ir. 199 6); U.S. v. Petitta, 899 F.2d 122 6 (9th
Cir. 1990), whether the defendant suffered from diminished capacity or
not. See, e.g., U.S. v. Sullivan, 75 F.3d 29 7 (7th Cir. 1996)(defendant
unsuccessfully arguing that the denial of a downward departure on
diminished capacity grounds violated his D ue Pro cess and Equal
Protection rights).
14“[A] district court’s determination that it lacked authority to depart
downward is a matter of Guidelines interpretation that we review de
nov o.” U nited States v. Bu rke, 237 F.3d 74, 7 43 (6th Cir. 200 1).
that it lacked the discretion to grant a downward departure
from the Sentencing Guideline.13
2. Aberrant Behavior
Cole advances the further argument that the district court
erred in concluding that it lacked the authority to grant a
downward departure in light of Cole’s aberrant behavior.
Based on the following review, this Court holds that the
district court was correct in so concluding.14 U.S.S.G.
§ 5K2.20 gives district courts the leeway to depart downward
“in an extraordinary case if the defendant’s criminal conduct

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Nos. 02-5839/5840 United States v. Cole, et al. 15
constituted aberrant behavior.” U.S.S.G. § 5K2.20.
However, this policy statement is limited in that no departure
is permitted if “(1) the offense involved serious bodily injury
or death; [or] (2) the defendant . . . used a firearm or a
dangerous weapon.” U.S.S.G. § 5K2.20.
The district court denied a downward departure with
respect to the assault charge because the victim was raped -
clearly a crime involving serious bodily injury. The district
court apparently failed to specifically address the crimes of
kidnapping and use of a firearm at sentencing, but again, no
downward departure would be permitted for these crimes
because Cole and his accomplice used a .38 caliber gun
during the offense.
D. Three-Level Upward Departure for Extreme
Conduct
The district court deviated from the applicable sentencing
guideline, and granted an upward departure of three levels
based on U.S.S.G. § 5K2.8, titled “Extreme Conduct.” Cole
argues that his conduct did not constitute “extreme behavior,”
and asserts that none of the examples cited in U.S.S.G.
§ 5K2.8 (torture of a victim, gratuitous infliction of injury, or
prolonging of pain or humiliation) apply to this case.
This Court reviews a district court’s departure from the
recommended Guidelines sentence under an abuse of
discretion standard. See, e.g., United States v. Baker, 339
F.3d 400, 403 (6th Cir. 2003). Congress permits district
courts to depart from the relevant guideline range if “there
exists an aggravating or mitigating circumstance of a kind, or
to a degree, not adequately taken into consideration by the
Sentencing Commission.” Koon v. United States, 518 U.S.
81, 92 (1996)(quoting 18 U.S.C. § 3553(b)).
The policy statement in U.S.S.G. § 5K2.8, upon which the
district court based its decision regarding the upward
departure, provides district courts with discretion to increase
16 United States v. Cole, et al. Nos. 02-5839/5840
a sentence above the guideline range “[i]f the defendant’s
conduct was unusually heinous, cruel, brutal, or degrading to
the victim,” so as to “reflect the nature of the conduct.”
U.S.S.G. § 5K2.8. Examples of actions constituting “extreme
conduct” include “torture of a victim, gratuitous infliction of
injury, or prolonging of pain or humiliation.” Id. In
characterizing Cole’s actions as involving extreme conduct,
the district court noted the following aspects of the crime as
relevant: (1) the victim was raped by more than one
participant; (2) the sexual assaults were repeated over a four-
hour period at gunpoint; (3) the victim’s life was threatened;
and (4) the “obvious terror” the victim must have felt. In
sum, the district court characterized the crime as “an
afternoon of terror” for the victim, finding that this was “more
than the average rape victim has to deal with.” J.A. at 215.
This Court has consistently affirmed district court decisions
granting upward departures pursuant to U.S.S.G. § 5K2.8.
See, e.g., United States v. Sizemore, No. 99-6321, 238 F.3d
425, 2000 WL 1871723, at * 1 (6th Cir., Dec. 12,
2000)(affirming four-level upward departure where drug
conspirators tortured co-conspirator); United States v. Davis,
170 F.3d 617, 624 (6th Cir. 1999)(affirming eight-level
upward departure where wire-fraud defendant intentionally
inflicted psychological harm on elderly, sick telemarketing
victims by being “loud, rude, obnoxious, [and] controlling”);
United States v. Harris, 943 F.2d 53, 1991 WL 165586, at *3
(6th Cir. Aug. 27, 1991) (affirming ten and twelve-level
departures where witness-tamperers abducted witness and
raped witness’s wife). It would appear from this line of cases
that repeated sexual assaults by multiple participants over a
four-hour period at gun point could be characterized as
heinous, brutal, cruel and degrading to the victim.
Furthermore, such assaults could be said to have included

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Nos. 02-5839/5840 United States v. Cole, et al. 17
15Because U.S.S.G. § 2A 4.1(b)(4)(C) reduces the offense level if the
victim is released in less than 24 hours, Cole argues that the four hours
involved here should be viewed as “abnorm ally short.” However, Cole
was not sentenced und er U.S.S.G. § 2A4.1, and therefore that particular
offense characteristic bears no application in this case. Furthermore,
Application Note 5 of U .S.S.G. § 2A3.1, the relevant sentencing
guideline, states that an upward departure may be warranted “[i]f a victim
was sexually abused by more than one participant,” and goes on to
reference U.S.S.G. § 5K 2.8. Therefore, it would appear that the fact of
multiple particip ants, stand ing alone, warrants an upward d eparture.
“prolonging of pain or humiliation” under U.S.S.G.
§ 5K2.8.15
IV. DEFENDANT/APPELLANT JOHNSON
A. Two-Point Offense Level Increase for Obstruction
of Justice
Defendant Johnson argues that the district court erred in
increasing his offense level by two points for obstruction of
justice under U.S.S.G. § 3C1.1. The district court found that
when Johnson wilfully threatened the victim at a time when
an investigation had commenced, he was in fact guilty of
obstruction of justice under U.S.S.G. § 3C1.1.
This Court acknowledges that it has utilized two differing
standards of review when examining a district court’s
application of U.S.S.G. § 3C1.1. The confusion on this issue
proliferated following the Supreme Court’s decision in
Buford v. United States, 532 U.S. 59 (2001), in which the
Court called for greater deference when reviewing a district
court’s “fact-bound” application of a sentencing guideline.
Id. at 66. Thereafter, we have applied both a tri-partite
standard of review and a more deferential clear-error standard.
In United States v. Middleton, 246 F.3d 825, 845-46 (6th Cir.
2001), and United States v. Camejo, 333 F.3d 669 (6th Cir.
2003), we applied the three-part standard: “First we review
the factual determinations made by the district court for clear
error. Second, a district court’s conclusion that a given set of
18 United States v. Cole, et al. Nos. 02-5839/5840
16U.S.S.G. § 3C1.1, titled, “Obstructing or Impeding the
Administration of Justice,” provides that “[i]f (A) the defendant wilfully
obstructed or impeded, or attempted to obstruct or impede, the
administration of justice during the course of the investigation,
prosecution, or sentencing of the instant offense of conviction, and (B) the
obstructive conduct related to (i) the defendant’s offense of conviction
and any relevant conduct; or (ii) a closely related offense, increase the
offense level by 2 levels.” Among the examples given of the cond uct to
which the adjustment applies is “threatening, intimidating, or otherwise
unlawfully influencing a co-defendant, witness, or juror, directly or
indirectly, or attem pting to do so .” U.S .S.G. § 3C 1.1, A pplication N ote
4(a).
17The Court also found that the threats fell within the language of
Application Note 4(i), wh ich says that the obstruction of justice
enhancement applies also to “other conduct prohibited by obstruction of
justice provisions under Title 18, United States Code.” U.S.S.G. § 3C1.1,
Application Note 4(i). The Court found that 18 U.S.C. § 1512(b) was
violated by Johnson’s cond uct. 18 U .S.C. § 1512(b ) is violated when one
“knowingly uses intimidation or physical force, threatens, or co rruptly
persuades another person, o r attemp ts to do so . . . with intent to
(3) hinder, delay, or prevent the communication to a law enforcement
facts constitutes obstruction of justice is a mixed question of
law and fact that we review de novo. Finally, once a district
court has determined that a defendant obstructed justice, then
application of a two-level enhancement at that point is
mandatory, and we review the enhancement de novo.”
Middleton, 246 F.3d at 846. However, in United States v.
Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002), we held
that, in light of Buford, a clear error standard of review was
“appropriate for reviewing sentencing decisions under
§ 3C1.1, where the sole issue before the district court is a
fact-bound application of the guideline provisions,” Id. at
390. We decline at this time to endorse a particular approach,
as the district court’s decision here is correct under either.16
The district court found that the threats made by Johnson to
the victim fell squarely into the examples given in
Application Note 4(a) of U.S.S.G. § 3C1.1; specifically that
the defendant threatened the witness directly.17 The district

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Nos. 02-5839/5840 United States v. Cole, et al. 19
officer . . . of information relating to the commission . . . of a Federal
offense . . .” 18 U .S.C. § 151 2(b). This Court has previously recognized
that conduct prohibited by 18 U.S.C. § 1512 is an appropriate ground for
a two-level increase for obstruction of justice under U.S.S.G. § 3C1.1.
See, United States v. R aha l, 191 F.3d 642, 647 (6th Cir. 1999).
court did not err in finding that Johnson’s threats to the victim
were made in the hope that the victim would not report the
crime to police, and thus constituted an obstruction of justice.
See United States v. Brown, 237 F.3d 625 (6th Cir.
2001)(threats made by defendant to potential witness
“substantively amount to obstruction of justice.”) Johnson’s
victim reported that, toward the end of her captivity, Johnson
found an insurance card in the glove box of her vehicle and
told her that he had her address and would “send someone to
kill her” if she told anyone about the incident. Johnson also
repeatedly stated that he ought to kill her because she had
seen his and Cole’s faces.
As to whether Johnson wilfully obstructed justice, this
Court concludes that he intentionally threatened the victim at
a time when he knew or should have known that an
investigation had probably commenced. When the victim
was abducted she was the only employee at the post office.
It seems implausible that Johnson did not consider that when
the other employees returned from lunch, they would see that
the post office was left abandoned, no note was left to explain
the victim’s absence, and all of the victim’s belongings
remained there except for her car keys. This conclusion is
further bolstered by the fact that Johnson knew the victim was
the only employee on duty at the time he and Cole were
present at the post office, and went to the trouble of hiding the
gun used in the crime. Finally, when Postal Inspector
Chalmers asked Cole how he found out that the police were
looking for him and Johnson, Cole stated that Johnson’s sister
had stopped them in the road and told them. This occurred
before the victim was released. Therefore, because Johnson
made threats constituting an obstruction of justice, and did so
20 United States v. Cole, et al. Nos. 02-5839/5840
wilfully, this Court will affirm the district court’s decision to
enhance his sentence upward pursuant to U.S.S.G. § 3C1.1.
B. Three-Level Sentence Enhancement for Extreme
Conduct
The district court deviated from the applicable sentencing
guideline and granted an upward departure of three levels
based on U.S.S.G. § 5K2.8, titled “Extreme Conduct,” when
calculating the total offense level with respect to Defendant
Johnson.
The policy statement in U.S.S.G. § 5K2.8, upon which the
district court based its decision regarding the upward
departure, provides district courts with discretion to increase
a sentence above the guideline range “[i]f the defendant’s
conduct was unusually heinous, cruel, brutal, or degrading to
the victim,” so as to “reflect the nature of the conduct.”
U.S.S.G. § 5K2.8. Examples of actions constituting “extreme
conduct” include “torture of a victim, gratuitous infliction of
injury, or prolonging of pain or humiliation.” Id.
As it had done with respect to Defendant Cole, in
characterizing Defendant Johnson’s actions as involving
extreme conduct, the district court noted the following aspects
of the crime as relevant: (1) the victim was raped by more
than one participant; (2) the sexual assaults were repeated
over a four-hour period at gunpoint; (3) the victim’s life was
threatened; and (4) the “obvious terror” the victim must have
felt. Johnson argues that to impose an upward departure
based on the fact that the victim was sexually assaulted by
more than one participant results in punishing Johnson for the
actions of Cole. However, Johnson fails to cite a single case
to further develop this argument, and thus it is deemed
waived. See United States v. Corrado, 304 F.3d 593, 611

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Nos. 02-5839/5840 United States v. Cole, et al. 21
18That aside, Johnson’s argument still fails. It is a clear tenet of
American law that one can be held accountable for the acts of another
conspirator. See, e.g., Pinkerton v. U.S., 328 U .S. 640(1946)(overt acts
of one co-conspirator in a conspiracy are in law the acts of all). The Third
Circuit has also had no hesitation in granting an upward departure under
U.S.S.G. § 2A3.1, Application Note 5, with its reference to § 5K2.8,
based on sexual abuse by more than one participant. United States v.
Qu eensborough, 227 F.3d 149 (3rd Cir. 20 00).
n.12 (6th Cir. 2002).18 Thus, this Court finds that the district
court correctly granted an upward departure pursuant to
U.S.S.G. § 5K2.8 and § 2A3.1.
V. CONCLUSION
Accordingly, we AFFIRM the judgment of the district
court.

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