Appeal from the United States District Court for the Western District of Washington. D.C. No. CR88-91T. Jack E. Tanner, District Judge, Presiding.
Before: Wright, Alarcon, Circuit Judges, and Fong,*fn** District Judge
The defendant/appellant, Jerry Lynn Dry, and the victim, Marcell Lynn Fisk, were neighbors. At approximately 5:00 p.m., on August 31, 1988, Dry went to Fisk's home, showed her a false arrest warrant and handcuffed her. Fisk resisted, and during the struggle, Dry told her that he would kill her 14 month old daughter if she didn't cooperate. Dry ultimately dragged Fisk across the yard and into his car. He then directed his wife to go into Fisk's house and get the baby. Mrs. Dry did so and the baby, along with a diaper bag were placed in the car. This struggle and abduction was witnessed by several people.
Dry drove south from Washington into Oregon. When Fisk asked why Dry was doing this, he said "because of money." Fisk was apparently handcuffed in the front, but was allowed to hold her child. She continued to struggle throughout the trip and Dry repeatedly struck both Fisk and the child to keep them under control. Dry also continued to threaten to kill the baby if Fisk did not stop struggling.
Approximately 1 1/2 hours later, a truck driver called the Oregon State Patrol, identified Dry's car and reported that he had observed a woman who appeared to be tied up, with an infant in her lap, fighting with a male driver. Shortly thereafter, an Oregon State Patrol Officer spotted the car. The woman passenger was in the front seat with her face against the side window, her hands were bound, her face was streaked with tears, and she was screaming for help. As the trooper's car approached, she rolled down the window and pushed her arms outside so that the trooper could see she was handcuffed. When the trooper pulled the car over, Fisk immediately jumped out with the baby in her arms and ran to the trooper yelling "get me away from him . . . don't let him get me."
As the trooper approached, Dry handed him the false San Francisco County arrest warrant and told him that he had lawfully arrested Fisk. Dry stated that he was taking Fisk to San Francisco for $2,000 in bond money. The trooper frisked Dry and retrieved from his boot, a squirt gun, which resembled a real gun. The trooper also retrieved an operable rifle from the back of Dry's car. The San Francisco authorities and Dry's wife confirmed to the Oregon State Patrol that the warrant was a forgery.
Fisk and her baby were taken to a hospital where they were treated for injuries. At the hospital, FBI Agents Ron Stankye and Douglas Sanders interviewed her. These agents observed severe bruises on Fisk's wrists, arms and face as well as bruises on the baby's back and chin, all of which, Fisk claimed, were the result of being struck by Dry. Fisk believes that Dry intended to murder her and return home with the baby, whom Dry's wife apparently adored.
Dry was charged in a two count indictment with kidnapping Marcelle Lynn Fisk and her daughter, Robin Nichole Fisk.
On November 16, 1988, Dry pled guilty to both counts pursuant to a plea agreement. The district court, however, rejected this plea agreement because it placed a "lid" on the sentence. Dry subsequently entered into a new plea agreement on March 3, 1989, this time pleading guilty only to Count I. Sentencing was set for March 17, 1989.
Prior to sentencing, a Presentence Investigation Report ("PSI") recommended a final guideline level of 34, which calls for the range of 188 to 235 months of incarceration. The court departed upward from the guidelines and sentenced Dry to 376 months on his plea of guilty to kidnapping Marcelle Fisk and transporting her from Washington to Oregon in violation of 18 U.S.C. § 1201(a)(1).
This sentence was appealed and on August 21, 1990, this court vacated the sentence and remanded for resentencing. This court essentially found that it was improper for the district court to have adopted the PSI without responding to the defense objections.
At resentencing, the district court held an evidentiary hearing and again departed from the guidelines. This time the district court sentenced Dry to 293 months. He now appeals several of the grounds upon which the sentencing Judge relied for adjusting his offense level and for departing from the guideline range.
The method of calculating a guideline sentence is reviewed de novo. United States v. Garren, 893 F.2d 208, 211 (9th Cir. 1989). However, where a sentencing inquiry is factually based, the trial court's findings of fact are to be reviewed under the "clearly erroneous" standard. United States v. Anderson, 895 F.2d 641, 644 (9th Cir. 1990). This court must "determine what degree of factual inquiry is involved and . . . apply the corresponding standard." Id. See United States v. McConney, 728 F.2d 1195, 1199-1204 (9th Cir. 1984) (en banc), cert. denied 469 U.S. 824 (1984) (instructing how the appellate court is to determine which standard of review should be applied when reviewing mixed questions of fact and law).
Dry appeals two general categories of findings made by the district court: (1) findings regarding adjustments to the base offense score; and (2) findings relating to the district court's decision to depart from the guideline range.
I. ADJUSTED OFFENSE LEVEL.
It is not disputed that Dry's base offense level under § 2A4.1 of the Sentencing Guidelines is 24. The sentencing Judge, however, elected to make two upward adjustments which Dry now appeals: a two level increase because the offense involved a "vulnerable victim," and a two level increase because the victim was "physically restrained." In addition, Dry appeals the decision of the trial Judge not to invoke the following two downward adjustments: a one level decrease ...