Unpublished Disposition, 908 F.2d 978 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Dartell Lamont WRIGHT, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Gill Quinton McDONALD, Defendant-Appellant.

Nos. 89-30181, 89-30182.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 1990.Decided July 26, 1990.

Before EUGENE A. WRIGHT and WALLACE, Circuit Judges, and ROBERT E. JONES,^*  District Judge.

MEMORANDUM^** 

Wright and McDonald appeal their sentences imposed for armed bank robbery and unlawful use of a firearm in violation of 18 U.S.C. §§ 2113(a), (d) and 924(c). McDonald was also sentenced for conspiracy to commit bank robbery in violation of 18 U.S.C. § 371.¹ 

Under the Sentencing Guidelines, Wright's offense level was 22 and his criminal history category was I, resulting in a sentencing range of 41 to 51 months for the robbery count. The district court departed upward, and imposed a 120 month sentence, plus 60 months for the firearm count.

McDonald's offense level was 24 and his criminal history category was IV, resulting in a sentencing range of 77 to 96 months for the robbery and conspiracy counts. The court again departed upward and imposed a 150 month sentence, plus 60 months for the firearm count.

Both defendants challenge the upward departures in their sentences.² 

The court departed upward for at least two reasons: (1) acts of physical violence committed during the robbery; and (2) psychological injury inflicted upon bank tellers caused by the defendants' death threats.³  [Wright ER 7 at 20; McDonald ER 36] We analyze upward departures under the Sentencing Guidelines by a five-step process. United States v. Lira-Barraza, 897 F.2d 981, 983-86 (9th Cir. 1986).

At step one, we determine whether the district court adequately identified the aggravating circumstances. Id. at 983. This court's findings of "physical violence" and "psychological injury" were not sufficient.

First, it did not explain how it relied on each factor in departing upward. See id. at 984 ("When the sentencing court states several reasons, but we are unable to tell the extent to which it relied on each, we will vacate and remand, unless such a clarification is unnecessary to our review.").

Second, we are unable to determine based on the court's findings whether the "physical violence" to which it referred was adequately considered by the Sentencing Commission. If the violence resulted in bodily injury to the victims, this circumstance was taken into consideration by the Commission. Guideline Sec. 2B3.1(b) (3) (providing for adjustments to the offense level based on varying degrees of bodily injury suffered by victims of a robbery).⁴  If the violence involved physical restraint, this circumstance was also taken into account. Guideline Sec. 2B3.1(b) (4) (providing for an adjustment to the offense level on this basis). If there is some other basis for departure due to "physical violence" uncovered by the guidelines, the district judge should provide the necessary analysis and findings.

Third, the court made insufficient findings as to "psychological injury." Although the guidelines authorize departures based on extreme psychological injury of victims, those are normally allowed

only when there is a substantial impairment of the intellectual, psychological, emotional, or behavioral functioning of a victim, when the impairment is likely to be of an extended or continuous duration, and when the impairment manifests itself by physical or psychological symptoms or by changes in behavior patterns.

Guideline Sec. 5K2.3. Moreover, the extent of the departures "should depend on the severity of the psychological injury and the extent to which the injury was intended or knowingly risked." Id. It was not enough for the court to say merely that there was psychological injury.⁵ 

We reverse and remand for resentencing.⁶ 

VACATED AND REMANDED.