ANDERSON, Circuit Judge:
Appellant Monroe Melvin Husky, Jr. was convicted of raping and sodomizing a female correctional officer in his cell at the Federal Correctional Institute in Talladega, Alabama ("FCI Talladega"). At sentencing, the court enhanced appellant's offense level by two points under the Federal Sentencing Guidelines for perjury and obstruction of justice and ordered appellant to pay $500,000 in restitution to the victim. See Order of Restitution, Record Excerpts at 17.
In this appeal, appellant argues that the jury's verdict was against the great weight of the evidence and that the district court abused its discretion by enhancing his offense level and ordering him to pay restitution.
We reject without further discussion appellant's contention that the verdict was against the great weight of the evidence; thus, we affirm the conviction. In this opinion, we address only the two sentencing issues:
1. Whether the district court erred in enhancing appellant's sentence for obstruction of justice and perjury.
2. Whether a convicted defendant may be ordered to pay restitution to his victim to compensate for psychological and mental suffering from post-traumatic stress syndrome.
1. The Federal Sentencing Guidelines Issue
Appellant argues that the district court abused its discretion in enhancing his sentence by two points under the Federal Sentencing Guidelines for perjury and obstruction of justice. Appellant asserts that the district court enhanced his sentence solely because the jury found against his version of the facts.
Under the Federal Sentencing Guidelines, a court may enhance a defendant's offense level by two points "[i]f the defendant willfully impeded or obstructed, or attempted to impede or obstruct the administration of justice during the investigation or prosecution of the instant case." Federal Sentencing Guidelines, § 3C1.1. A noninclusive list of examples of behavior that would warrant an adjustment includes "testifying untruthfully or suborning untruthful testimony concerning a material fact." Application Note 1(c), (e). The commentary to § 3C1.1 states that a defendant's sentence should be enhanced if the defendant "engages in conduct calculated to mislead or deceive authorities or those involved in a judicial proceeding...." Commentary to Section 3C1.1. A sentencing judge clearly has the authority to enhance a defendant's offense level if the judge makes an independent factual finding that the defendant willfully lied in trial testimony. See United States v. Velasquez-Mercado, 872 F.2d 632, 636 (5th Cir.1989) (affirming district court's enhancement of defendant's sentence on the basis of obstruction of justice because district
We find that the district court did not rely solely upon the jury's findings to enhance appellant's sentence, but made an independent factual determination that appellant repeatedly lied during his trial testimony. At the sentencing hearing, the court stated:
R3. 327-28 (emphasis added). Although the district court noted an "absolutely one hundred and eighty degree difference between virtually every single thing this defendant said under oath and what the jury concluded," other statements by the court clarify that the court made its own determination of perjury:
We find that the district court made an independent finding that appellant willfully obstructed the administration of justice by testifying falsely. In addition, our review of the trial record convinces us that this finding was not an abuse of discretion. Thus, the district court did not abuse its discretion by ordering a two point increase in appellant's offense level under § 3C1.1 of the Federal Sentencing Guidelines.
2. The Restitution Issue
Appellant next argues that the district court did not have the authority to order him to pay restitution to compensate the victim for mental anguish.
Appellant contends that the district court erroneously based its restitution order upon the victim's mental suffering. In support of that proposition, appellant refers to the district court's findings of fact and conclusions of law at the sentencing hearing:
Sentencing Hearing, Record Excerpts at 24. Appellant also points out that the government only requested restitution for the victim in the amount of $93.50, because the government had paid almost all of the victim's medical expenses. Appellant's brief at 26. Finally, appellant notes that the district court did not mention any additional expenses for which the victim would be entitled to restitution. Id. Thus, appellant concludes that the sole purpose of the vast majority of the restitution order was to compensate the victim for mental suffering and anguish. See id. at 26-27.
After a review of the sentencing hearing, we agree that the district court based the restitution order primarily upon an attempt to place a dollar value on the victim's suffering from post-traumatic stress disorder. Thus, the issue is whether the district court abused its discretion in ordering that relief. See United States v. Casamento, 887 F.2d 1141, 1177 (2d Cir.1989).
See 18 U.S.C.A. § 3663(b)(2)(A), (B), (C)
In United States v. Keith, 754 F.2d 1388 (9th Cir.1985), the Ninth Circuit held that the list of compensable injuries in 18 U.S.C.A. § 3663(b)(2) is exclusive:
See id. at 1391
Id. at 1178.
We agree with the Ninth Circuit in Keith and the Second Circuit in Casamento. Our research uncovered no cases, and the parties could cite none, which suggest that the list of compensable expenses in the restitution statute is anything other than exclusive.
For the foregoing reasons, we affirm appellant's conviction but vacate his sentence and remand this case to the district court for resentencing in accordance with this opinion.
AFFIRMED in part, VACATED in part, and REMANDED.
April 17, 1991.
BY THE COURT:
Appellee's motion to modify part of opinion is GRANTED, so as to affirm the sentence imposed except that portion imposed under the Victim and Witness Protection Act, 18 U.S.C. § 3663(b)(2), which portion is VACATED.
The broad analysis adopted in Keith does not affect our holding in the instant case, however, because we find that the district court's restitution order was intended solely to compensate the victim for her mental suffering and not to reimburse her for recognized forms of treatment for that injury.
The Commentary for § 5E1.1 also provides that "restitution may be appropriate in offenses not specifically referenced in 18 U.S.C. § 3663 where victims require relief more promptly than the civil justice system provides." This provision permits restitution to be ordered to compensate victims for the types of loss listed in § 3663 where the offense committed by the defendant was not referenced in the statute; it does not permit restitution for types of loss not listed in the statute where the offense committed by the defendant is expressly referenced in § 3663. Thus, this provision also fails to expand the exclusive list of reimbursable expenses under § 3663(d).