United States v. Barry ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4743
RANDY CLAYTON BARRY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-00-148-BO)
Argued: September 23, 2002
Decided: November 8, 2002
Before WILKINSON, Chief Judge, TRAXLER, Circuit Judge, and
Claude M. HILTON, Chief United States District Judge for the
Eastern District of Virginia, sitting by designation.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
ARGUED: Gregory John Ramage, LAW OFFICE OF GREGORY J.
RAMAGE, Raleigh, North Carolina, for Appellant. Thomas B. Mur-
phy, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee. ON BRIEF: John Stuart Bruce, United States Attorney,
Anne M. Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
2 UNITED STATES v. BARRY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Randy Clayton Barry was convicted of carjacking resulting in seri-
ous bodily injury, see 18 U.S.C.A. §§ 2119(2)(West 2000), and of
aiding and abetting the brandishing of a firearm by a convicted felon
during a crime of violence, see 18 U.S.C.A. § 924(c)(1)(A)(ii) (West
2000). The district court sentenced Barry to 300 months for the car-
jacking conviction and 240 months for the firearm conviction to be
served consecutively. Barry now appeals his carjacking conviction,
arguing that the evidence was insufficient to establish "serious bodily
injury." He also appeals the court’s sua sponte upward departure on
his firearm sentence. We find that a reasonable jury could have deter-
mined that Barry’s victim suffered "serious bodily injury" and affirm
the carjacking conviction. However, because the district court
upwardly departed from the Sentencing Guidelines without giving
reasonable notice of its intention to do so, we vacate and remand for
resentencing on the firearm conviction.
I.
On June 25, 2000, 63-year-old Johnny Bunton emerged from his
1985 Cadillac in the parking lot of a Burger King in Spring Lake,
North Carolina. Barry and an accomplice walked over to Bunton’s
car, where Barry’s accomplice pointed a shotgun at Bunton. Barry
shoved Bunton against the car, frisked him, and forced him into the
back seat. Barry’s accomplice then sat next to Bunton, holding the
shotgun to Bunton’s midsection while Barry drove Bunton’s car from
the restaurant’s parking lot.
Fearing for his life, Bunton tried to wrestle the shotgun from
Barry’s accomplice. When this happened, Barry slammed on the
brakes, turned around in the front seat, and began to beat Bunton in
the face with his fists, breaking Bunton’s glasses and causing his face
UNITED STATES v. BARRY 3
to bleed. Barry then told his accomplice to "get this over with," J.A.
30, and ordered Bunton out of the car. Barry then repeated the admo-
nition to "get rid of him." J.A. 31. Barry’s accomplice forced Bunton
to kneel, struck him on the back of the head four or five times with
the butt of the shotgun, and left him lying in the road. Barry and his
accomplice then fled the scene in Bunton’s car.
Bunton was able to make his way to a nearby house, where the
occupants called an ambulance. The emergency medical technician
("EMT") who arrived treated Bunton for lacerations on his face and
hematomas to the side and back of his head and recorded that Bun-
ton’s blood pressure was 190/100, which was "cause for alarm." J.A.
54. Despite repeated urging from the EMT, Bunton refused to go to
the hospital because his insurance card and money, as well as his
heart medication, had been taken along with the carjacked Cadillac.
Bunton’s head remained swollen for three weeks after the incident
and, since the carjacking, he "shakes" when he writes. J.A. 38. He has
sought help for the shaking problem at a Veterans Administration
hospital to no avail.
Using a special verdict form, the jury convicted Barry of carjacking
and brandishing a firearm. At Barry’s sentencing hearing, the court
adopted without objection the factual findings and guideline applica-
tions in the Presentence Report ("PSR"). The PSR provided the cor-
rect range of imprisonment for carjacking, but failed to note that the
Guidelines sentence for the firearm offense was "the minimum term
of imprisonment required by statute." U.S.S.G. § 2K2.4(a)(2) (2000)
(emphasis added). In this case, the statutory minimum sentence was
84 months. The district judge sentenced Barry to 300 months for the
carjacking, which was within the Sentencing Guidelines range, and to
a consecutive 240 months for the firearm violation. No objection was
made at the time to the sentences.
II.
A.
Barry first challenges the sufficiency of the evidence to support the
jury’s finding that he inflicted "serious bodily injury" on Bunton in
the course of the carjacking. In reviewing a sufficiency of the evi-
4 UNITED STATES v. BARRY
dence claim for a criminal conviction, the verdict of the jury must be
sustained if there is substantial evidence, taking the view most favor-
able to the government. See United States v. Brothers Constr. Co. of
Ohio, 219 F.3d 300, 312 (4th Cir.), cert. denied, 531 U.S. 1037(2000).
Barry asserts that there was insufficient evidence presented at trial
for the jury to find "serious bodily injury," and that at most the evi-
dence showed only "bodily injury." We disagree.
Under the carjacking statute, "serious bodily injury" is defined as
bodily injury which involves:
(A) a substantial risk of death;
(B) extreme physical pain;
(C) protracted and obvious disfigurement; or
(D) protracted loss or impairment of the function of a bod-
ily member, organ, or mental faculty. . . .
18 U.S.C.A. § 1365(g)(3) (West 2000). The statute distinguishes
"bodily injury" as —
(A) a cut, abrasion, bruise, burn, or disfigurement;
(B) physical pain;
(C) illness;
(D) impairment of the function of a bodily member, organ,
or mental faculty; or
(E) any other injury to the body, no matter how temporary.
18 U.S.C.A. § 1365(g)(4) (West 2000).
We are satisfied that a reasonable jury could have found that the
injuries inflicted on Bunton were serious bodily injuries, because they
UNITED STATES v. BARRY 5
involved a substantial risk of death and protracted loss or impairment
of the function of a bodily member. The repeated, violent blows Bun-
ton sustained to the back of his head from the butt of the shotgun,
accompanied by the abandonment of Bunton in the road after the bru-
tal beating, presented a substantial risk of death, particularly when all
of this caused Bunton’s blood pressure to be elevated to a danger-
ously high level at a time when he was deprived of his heart medica-
tion. This constitutes persuasive evidence from which the jury could
reasonably find that Bunton’s injuries were life threatening.
The government also supplied sufficient proof that Bunton suffered
a protracted impairment. The permanent shaking affecting his ability
to write demonstrates prolonged damage to the function of a bodily
member, organ, or mental faculty that the jury could rationally attri-
bute to the injuries Bunton sustained during the carjacking. Given the
testimony from Bunton as to the commencement of the shaking, its
continued existence, and the lack of foreseeable termination, we
believe the evidence sufficient for the jury to conclude that this
impairment was, and would be, protracted.
In sum, the evidence was sufficient for the jury to conclude that
Bunton’s injuries presented a substantial risk of death and that his
impairment was prolonged. A reasonable jury could, and did, find that
Bunton suffered serious bodily injury.
B.
Barry also contends that the district court erred in departing upward
from the Sentencing Guidelines without prior notice. Apparently, the
court believed that there was no specific Guideline sentence for
Barry’s handgun conviction and that Barry could be sentenced any-
where within the statutory range of seven years to life. In fact, the
Guidelines state that "the guideline sentence is the minimum term of
imprisonment required by statute," U.S.S.G. § 2K2.4(a)(2), which in
this case would have meant a sentence of 84 months. See 18 U.S.C.A.
924(c). Thus, the court’s sentence of 240 months amounted to a sub-
stantial upward departure for which Barry had received no prior
notice. The PSR had stated that there was no basis to suggest that a
departure was warranted and the government had not requested a
6 UNITED STATES v. BARRY
departure, but simply had asked that Barry be sentenced at the "upper
end" of the Guidelines range. J.A. 114.
In Burns v. United States, 501 U.S. 129 (1991), the Supreme Court
held that a sentencing court may not depart upward for a reason not
identified in the PSR or in a government departure motion without
first giving the defendant reasonable notice that it is considering
departure on a specific ground. See id. at 138; see also United States
v. Maddox, 48 F.3d 791, 799 (4th Cir. 1995); United States v. Maxton,
940 F.2d 103, 106 (4th Cir. 1991). Because Barry did not object to
the departure at the sentencing hearing, we review the court’s failure
to comply with Burns for plain error. See United States v. Olano, 507
U.S. 725, 731-32 (1993); United States v. Bellamy, 264 F.3d 448, 455
(4th Cir. 2001), cert. denied, 122 S.Ct. 1097 (2002). The necessary
conditions are fulfilled if the court below "(1) committed error; that
(2) was plain; and (3) affected the defendant’s substantial rights;
thereby implicating (4) the fairness, integrity, or public reputation of
judicial proceedings to the extent that we should exercise our discre-
tion to correct the oversight." Bellamy, 264 F.3d at 455 (internal quo-
tation marks omitted). We examine each element in turn.
The court’s departure constitutes error that was plain because the
court failed to provide reasonable notice of its intent to depart and the
specific grounds on which the court contemplated the upward depar-
ture. See Burns, 501 U.S. at 138-39. To obtain relief, however, Barry
must show that the district court’s error "affected his substantial
rights, i.e., that it was prejudicial." United States v. Hastings, 134
F.3d 235, 240 (4th Cir. 1998). Here, the lack of notice denied Barry
the opportunity to prepare arguments to address the grounds for
departure offered by the court at the hearing. "When a dispute exists
about any factor important to the sentencing determination, the court
must ensure that the parties have an adequate opportunity to present
relevant information." U.S.S.G. § 6A1.3, p.s., comment.; see also
Burns, 501 U.S. at 133. An adequate opportunity to present relevant
information requires adequate notice to enable the defense — or the
government — to prepare arguments. Moreover, the departure in this
case clearly affected Barry’s substantial rights by nearly tripling his
sentence from the Guidelines prescription of 84 months to 240
months. Such an increase may be merited in cases where the defen-
dant has a substantial history of violence or drug-related crimes. See
UNITED STATES v. BARRY 7
U.S.S.G. § 2K2.4, comment. (n.1). Under Burns, however, notice is
required before a court makes such a departure in order to afford the
defendant a chance to prepare for the reasons under consideration by
the court.
The departure also implicates the fourth prong of the plain error
analysis — namely, the "fairness, integrity, or public reputation of
judicial proceedings." Bellamy, 264 F.3d at 455 (internal quotation
marks omitted). Before the implementation of the Guidelines, "factors
relevant to sentencing were often determined in an informal fashion."
U.S.S.G. § 6A1.3, p.s., comment. The Guidelines were conceived to
take the guesswork out of sentencing — both for the court and for the
parties. Here, the defendant was confronted with an upward departure
with no notice that the court intended to depart from the Guidelines
and with no effective opportunity to address the specific reasons
given for that departure. We therefore must vacate Barry’s sentence
and remand for resentencing.
III.
In sum, we conclude that the evidence is sufficient to support
Barry’s carjacking conviction. The court’s sua sponte departure from
the Guidelines on Barry’s firearm conviction, however, compels us to
vacate that portion of the sentence and remand for resentencing. We
express no opinion on the merits of the departure. Should the district
court again wish to depart from the Guidelines sentence, the court
should give the parties reasonable advance notice and should describe
the grounds for the possible departure.
AFFIRMED IN PART, VACATED
IN PART, AND REMANDED