United States v. Fleming

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-60508
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PHILLIP DEAN FLEMING,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
(3:94-CR-110)
July 22, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Phillip Dean Fleming appeals from the judgment of the district
court sentencing him to 465 months imprisonment. Fleming pled
guilty to a three-count indictment charging him with knowingly
kidnapping and holding in interstate commerce for sexual
exploitation a 8-year-old girl in violation of 18 U.S.C. § 1201; 2)
using and carrying a firearm during and in relation to a crime of
violence in violation of 18 U.S.C. § 924(c)(1); and, 3) knowingly
possessing a firearm as a convicted felon in violation of 18 U.S.C.
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
§ 922(g)(1). Over Fleming's objection, the district court applied
the two-level sentencing enhancement from U.S.S.G. § 2A3.1(b)(4)(B)
for where the victim sustained a "serious bodily injury."
On appeal, Fleming argues that the district court's finding
that the girl sustained a serious bodily injury--psychological
trauma--is clearly erroneous. According to Fleming, the district
court improperly based its finding on the Pre-Sentence Report's
description of interviews with the girl conducted by FBI Special
Agent Margaret Carmichael and Department of Human Services worker
June Chandler. Relying on United States v. Fawbush, 946 F.2d 584
(8th Cir. 1991), Fleming contends that Carmichael's and Chandler's
opinions regarding the girl's psychological well-being are
insufficient to support the district court's finding without a
corroborating opinion by a qualified psychologist or psychiatrist.
We disagree.
United States v. Anderson, 5 F.3d 795, 804-05 (5th Cir. 1993),
cert. denied, 114 S. Ct. 1118 (1994), disposes of Fleming's
argument. In that case, the defendant claimed that the victim's
own statement of her condition was insufficient to justify the
district court's finding of extreme psychological trauma for
purposes of an upward departure under U.S.S.G. § 5K2.3. Like
Fleming, the defendant relied upon Fawbush to claim that the
government's failure to produce testimony from a counselor or
psychologist barred the upward departure. We disagreed, holding
that the victim's own description of her psychological well-being
sufficed. We explained:
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In our case, however, unlike either Fawbush or Lara,
the district court had before it a detailed letter from
the victim describing the events in question and their
significant effects on her life. This letter
demonstrates substantial changes in [the victim's]
psychological and behavioral functioning. None of this
was rebutted. While some testimony by a counselor or
other expert in psychology would certainly be of value in
determining this issue, such evidence is not always a
prerequisite for a section 5K2.3, p.s. departure.
Id. at 805 (citation omitted). A fortiori, the district court need
not rely on expert testimony in order to apply § 2A3.1(b)(4)(B),
which only requires evidence of a "serious bodily injury" and not
"extreme" psychological injury.
We are persuaded that the record supports the district court's
finding that the girl suffered a serious bodily injury. Both
Carmichael and Chandler concluded that the girl sustained and
continues to suffer severe psychological after-effects as a result
of her ordeal. The gruesome facts of this heinous crime confirm
their conclusions. No expert testimony is necessary to corroborate
the obvious: that a 8-year-old girl abducted from her school,
transported hundreds of miles away, and forced to perform sexual
acts upon the defendant would suffer serious psychological injury.
AFFIRMED.
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