U.S. v. HUSKY

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.

DISCUSSION

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 court's finding that defendant lied to various officials in the course of an investigation was "not clearly erroneous"); United States v. Jordan, 890 F.2d 968, 973-74 (7th Cir.1989) (same).

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:

R3. 330.

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).

When a defendant is convicted of a crime for which restitution may be assessed, 18 U.S.C. § 3663(b)(2) permits courts to order a defendant to

See 18 U.S.C.A. § 3663(b)(2)(A), (B), (C)1 (1989 Supplemental Pamphlet). These provisions authorize restitution for the cost of medical treatment or other recognized forms of health care, for rehabilitative services, and for wages lost due to bodily injury. The list of compensable injuries does not include mental anguish or psychological disturbance.

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 13912 (parenthetical original). In United States v. Casamento, 887 F.2d 1141 (2d Cir.1989), the Second Circuit also concluded that the list of compensable injuries is exclusive.3 There, the Second Circuit wrote that "the court's otherwise broad discretion to determine the punishment to be imposed on a defendant is circumscribed by the sentencing limitations established by statute." Id. at 1177. The court also reasoned:

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.4 The language of the statute itself suggests that the list is exclusive. We conclude that the district court did not have the authority to order the defendant to pay restitution to compensate the victim for mental anguish and suffering.

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.

ORDER

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.