On Appeal from the United States District Court For The District of New Jersey; D.C. Criminal No. 89-00418-02.
Sloviter, Chief Judge, and Nygaard, Circuit Judge, and Marvin Katz, District Judge*fn*
This appeal represents another in the continuing series of cases in which this court and other courts of appeals throughout the country have considered issues raised by the recently promulgated United States Sentencing Guidelines as part of the "evolutionary process" contemplated by the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (1984). See United States Sentencing Guidelines (U.S.S.G.), Ch.1, Pt. A, 3.
Appellant Darryl Johnson and codefendant James Price were named in a five-count indictment arising out of the armed robbery of three Assistant United States Attorneys that occurred outside the federal building in Newark, New Jersey. Count I of the indictment charged defendants with conspiracy to assault federal officers in violation of 18 U.S.C. § 111 and conspiracy to steal public property in violation of 18 U.S.C. § 641. Counts II through IV charged defendants with each separate assault. Count V charged Johnson and Price with stealing public property. Pursuant to a plea agreement with the government, Johnson pled guilty to Count IV of the indictment which charged the assault on Assistant U.S. Attorney Bonna Horovitz and the government dropped the remaining charges.
The presentence report relates that on the evening of November 1, 1989, as Assistant U.S. Attorneys Paul Brickfield, Bonna Horovitz and Gail Nichols were walking from the federal building to their cars, they were assaulted by Johnson, Price and two juveniles. Price approached Brickfield, pointed a gun at him, told him not to move, and demanded money. Johnson approached Nichols, warned her to "Stop or I'll shoot," and took her pocketbook. Johnson then confronted Horovitz as she approached her car. Johnson pointed his gun at Horovitz's head, instructed her not to start the car, and told her to hand over her purse. Johnson took her car keys and drove off in Horovitz's car.
At the sentencing hearing, Johnson stated that he had no objection to the description of the offense conduct contained in the presentence report except that he denied that he used a gun in assaulting the Assistant U.S. Attorneys. In response, the government called Horovitz as a witness, and she testified that Johnson employed a gun in the manner set forth in the presentence report.
The presentence report set Johnson's base offense level for aggravated assault at level 15 pursuant to U.S.S.G. § 2A2.2(a). Because Johnson used a gun in the commission of the assault, the specific offense characteristics applicable to section 2A2.2 authorized a three to five level increase in his base offense level depending on whether the gun was "brandished," "otherwise used," or "discharged." Id. § 2A2.2(b)(2)(A)-(C).
The probation officer, assuming that Johnson had "brandished" his gun, recommended a three level increase. The government argued that Johnson had "otherwise used" his gun within the meaning of the aggravated assault Guideline. The district court agreed and therefore increased the base offense level by four levels. Id. § 2A2.2(b)(2)(B). After reducing the resulting offense level of 19 by 2 levels for Johnson's acceptance of responsibility, the district court accepted the recommendation of the Probation Department and adopted a three-level structured upward departure because the incident involved the assault of three individuals. See 18 U.S.C. § 3553(b) (1988) and U.S.S.G. § 5K2.0, p.s. The court sentenced Johnson to fifty-one months, the maximum imprisonment available at offense level 20 for a defendant, like Johnson, with a criminal history category of III.
On appeal Johnson makes two arguments. First, he argues that the district court erred as a matter of law in increasing his base offense level by four levels because in pointing his gun at Horovitz's head he "brandished" rather than "otherwise used" a weapon. Second, Johnson contends that the district court committed error in departing upward because the circumstance of multiple victims was not a permissible basis on which to depart and, even if departure was permissible, the degree of departure was unreasonable.
The specific offense characteristics for aggravated ...