UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4165

DARICK DEE PITTMAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-94-143-F)

Submitted: December 30, 1997

Decided: January 30, 1998

Before HAMILTON and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Bridgett Britt Aguirre, Fuquay-Varina, North Carolina, for Appellant.
Janice McKenzie Cole, United States Attorney, Anne M. Hayes,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Darick Dee Pittman pled guilty to attempted armed bank robbery,
18 U.S.C.A. § 2113(a), (d) (West Supp. 1997), and use of a firearm
in a crime of violence, 18 U.S.C.A. § 924(c) (West Supp. 1997). Pur-
suant to his plea agreement, two counts of robbery affecting interstate
commerce and two additional § 924(c) counts were dismissed. In sen-
tencing Pittman, the district court departed upward from offense level
25 to offense level 34 and imposed the statutory maximum sentence
of 25 years (300 months) for the attempted robbery, with a consecu-
tive 60-month sentence for the § 924(c) conviction. The departure
was based on extreme psychological injury to the multiple victims of
Pittman's offenses. See U.S. Sentencing Guidelines Manual § 5K2.3,
p.s. (1995). Pittman challenges the departure as unwarranted and
unreasonably harsh.1 We affirm.

On August 31, 1994, Pittman robbed a McDonald's restaurant in
Rocky Mount, North Carolina, and sexually assaulted two female
employees during the robbery. On October 20, 1994, Pittman
attempted to rob a bank after business hours had ended. While he was
in the bank, Pittman raped one of the female employees twice, sexu-
ally assaulted three others, and threatened to assault the thirteen-year
old daughter of one of the employees. On October 21, 1994, Pittman
robbed three employees of another restaurant and attempted to sexu-
ally assault one of the female employees.2

The district court determined that Pittman's offense level was 25;
this included a 4-level enhancement for serious bodily injury to a vic-
_________________________________________________________________
1 Pittman has moved to withdraw the second argument presented in his
brief. We grant the motion.
2 Pittman was convicted in state court of two counts of first degree rape
and armed robbery in connection with these offenses.

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tim based on the psychological harm resulting from rape of a victim.
See USSG § 2B3.1(b)(3)(B). Pittman was in criminal history category
VI, giving him a guideline range of 110-137 months. However, the
probation officer had also recommended that the court consider an
upward departure for extreme psychological injury or extreme con-
duct. The district court decided that a departure was warranted
because Pittman had caused severe psychological injury to multiple
victims. To determine the extent of the departure, the court analogized
to USSG § 2A3.1 (Criminal Sexual Abuse) and suggested that, had
Pittman been convicted in federal court of the sexual crimes he com-
mitted during the bank robbery, his guideline range would be 168-210
months. That range would apply if Pittman had an offense level of 30.3
The court found that guideline range inadequate because it failed to
account for the psychological injury to multiple victims. The court
found that a departure to the statutory maximum of 300 months was
appropriate.

Departures are reviewed generally for abuse of discretion. See
Koon v. United States, ___ U.S. ___, 

(U.S. June
13, 1996) (Nos. 1664/8842). However, the district court must impose
a sentence within the guideline range unless it determines that indi-
vidual facts present in the case take the case outside the "heartland"
of typical cases embodied in the conduct covered by the applicable
guideline. Before departing, the sentencing court should determine
whether the factor on which it is considering a departure has been for-
bidden, encouraged, discouraged, or unmentioned as a possible basis
for departure by the Sentencing Commission. See United States v.
Wilson, 

, 433 (4th Cir. 1997) (following Koon). If the
factor being considered is an encouraged factor but the applicable
guideline takes it into account, then it may justify a departure only if
it "`is present to an exceptional degree or in some other way makes
the case different from the ordinary case where the factor is present.'"
See United States v. Brock, 

, 34-35 (4th Cir. 1997) (quot-
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3 Under USSG § 2A3.1, Pittman's base offense level would have been
27, increased by 4 levels for use of a weapon in the commission of the
offense. An additional increase of 2 levels for serious bodily injury (psy-
chological injury) would have resulted in an adjusted offense level of 33
and, with credit for acceptance of responsibility, a final offense level of
30.

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ing Koon). Here, extreme psychological injury is an encouraged fac-
tor for departure, see USSG § 5K2.3, and the victims' statements
describing the effects of Pittman's conduct established a factual basis
for the departure.

Pittman argues that USSG § 2B3.1 adequately accounted for the
victims' psychological injury because he received an enhancement for
"serious bodily injury," which includes impairment of a mental fac-
ulty. See USSG § 1B1.1, comment. (n.(1)(j)). However, we need not
decide whether the enhancement for "serious bodily injury" encom-
passes psychological harm, because the district court decided that
Pittman's sexual violence toward multiple victims took his conduct
out of the heartland of robbery cases. Cf. USSG § 5K2.0 (departure
warranted where robbery injured many victims). Here, even if the
enhancement for serious bodily harm reached psychological harms, it
might not account for the psychological injuries to all the victims who
were sexually assaulted. Consequently, the district court did not abuse
its discretion in deciding to depart.

For similar reasons, the extent of the departure was not unreason-
able. As the district court explained, Pittman's offense level would
have been 30 and his guideline range would have been 168-210
months had the sexual abuse been figured into his sentence calcula-
tion. But that calculation would not account for the fact that there
were multiple victims of sexual abuse or for the psychological injuries
to the multiple victims. Had Pittman been convicted of multiple
counts of sexual abuse, each would have constituted a separate group
under the multiple count rules. See USSG§ 3D1.2, comment. (n.5);
see also United States v. Big Medicine, 

, 997 (10th Cir.
1995) (multiple acts of criminal sexual abuse not grouped together).
In addition to the victim who was raped twice, six more victims were
sexually assaulted. A 5-level increase (the maximum) would have
applied if Pittman had been convicted of at least four more counts of
sexual abuse. The departure to offense level 34 was thus not unrea-
sonable.

We therefore affirm the sentence imposed. We dispense with oral
argument because the facts and legal contentions are adequately

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presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED

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