filed: November 2, 1990; As Corrected November 13, 1990. As Corrected December 5, 1990. As Corrected January 28, 1991.
On Appeal From the United States District Court for the District of New Jersey; D.C. Crim. No. 88-166.
Becker, Cowen and Rosenn, Circuit Judges. Rosenn, Circuit Judge, concurring with opinion.
Appellant Yu Kikumura was convicted of several explosives and passport offenses, for which the federal sentencing guidelines prescribed a sentencing range of between 27 and 33 months in prison. Evidence produced at the sentencing hearing indicated that Kikumura had manufactured three lethal home-made firebombs from scratch in preparation for a major terrorist bombing on American soil -- conduct far more serious than is evident from the face of the charged offenses. The district court imposed a sentence of 30 years' imprisonment -- apparently the largest departure from an applicable guideline range, in absolute or percentage terms, since the sentencing guidelines became effective. Kikumura appeals that sentence.
We must decide a number of difficult issues: (1) the appropriate standard of proof with respect to fact-finding bearing on departures when the magnitude of a proposed departure dwarfs the guideline range applicable to the substantive offenses of conviction; (2) the admissibility for sentencing purposes of hearsay statements by a confidential informant; (3) whether the circumstances of Kikumura's offense were adequately taken into consideration by the Sentencing Commission in fashioning the guideline range from which the district court departed; (4) how to determine the reasonableness of departures; and (5) whether the sentence imposed in this case was reasonable under the appropriate methodology.
We conclude that: (1) under the circumstances, a clear and convincing standard of proof is required (and was met); (2) in view of extensive corroboration from independent sources, the statements of the confidential informant were sufficiently reliable to be considered; (3) the circumstances of Kikumura's offense were not adequately contemplated by the Sentencing Commission, and hence an upward departure was permitted; (4) a useful methodology for making an offense-related departure from the guidelines (and the one we apply here) is to determine what offense level a defendant's conduct most closely approximates by analogizing to other guidelines; and (5) under the circumstances, an upward departure to 360 months was unreasonable, but an upward departure to at most 262 months would not be unreasonable. We therefore will vacate the judgment of sentence and remand for resentencing.
II. THE SEARCH AND SEIZURE ISSUES
Before we consider the sentencing issues, we must address Kikumura's contention that the district court erred in failing to suppress evidence which, according to Kikumura, was obtained in violation of the fourth amendment. We find no fourth amendment violation and therefore reject this argument.
The relevant facts, as found by the district court, are as follows.*fn1 On the morning of April 12, 1988, New Jersey State Trooper Robert Cieplensky entered the Vince Lombardi service area at the northern end of the New Jersey Turnpike. Cieplensky noticed a man, later identified as Kikumura, twice begin to walk from his car to the service area, only to return to his car abruptly upon establishing eye contact with the trooper. As Cieplensky drove past, Kikumura "milled around" his car for a time. He later walked back toward the service area restaurants, but when he saw Cieplensky turn down a different traffic lane and head toward the restaurants, he quickly turned around, returned to his car, and once more began "milling around." When Cieplensky passed him again, however, Kikumura entered his car and began to drive away in what Cieplensky considered to be a reckless fashion -- cutting across two parking lanes within five feet of parked vehicles at a rate of between 25 and 30 miles per hour. Cieplensky ordered Kikumura to stop. Kikumura did so, exited the car, and met Cieplensky outside.
Cieplensky observed fresh burn marks on Kikumura's neck, as well as bandages on his neck and hands. Also, Cieplensky noticed a large black bag and its contents in plain view inside the car. The bag contained seven empty "Hercules" brand gunpowder canisters and a pouch of lead shot. When full, the canisters would have contained several times the amount of gunpowder Cieplensky's father, a regular hunter, would use during an entire season. Concluding that Kikumura could not have been using that amount of gunpowder simply for recreational purposes, Cieplensky conducted a pat-down search of Kikumura, but found no weapon.
Cieplensky then noticed, also in plain view inside Kikumura's car, a cardboard box containing three red cylindrical objects with black tape and wires. He asked Kikumura what was in the box, and Kikumura replied: "Souvenirs. Go ahead, check it out." When Cieplensky did so, he discovered the bombs, handcuffed Kikumura, and placed him under arrest inside the patrol car. Cieplensky then searched the rest of Kikumura's car, including the trunk.
Kikumura, however, insists that he had carefully hidden his bombs, gunpowder canisters, and lead shot inside a suitcase in the trunk of his car. In other words, Kikumura challenges as clearly erroneous the district court's finding that these items were discovered in the passenger compartment. Kikumura faces an uphill battle on this score, for he must overcome a standard of review under which reversal is permitted only if we are "left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746, 68 S. Ct. 525 (1948). If the district court's finding is "plausible in light of the record viewed in its entirety," we must accept it, even if we would have evaluated the evidence differently in the first instance. See Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 84 L. Ed. 2d 518, 105 S. Ct. 1504 (1985).
At the suppression hearing, Kikumura told a story entirely different from Cieplensky's. According to Kikumura, Cieplensky, after finishing the pat-down search outside the car, removed the keys from the ignition without Kikumura's permission and proceeded to open the trunk of the car and the suitcase inside the trunk, only then finding the bag containing the gunpowder canisters and lead shot and the box containing the bombs. Deciding which of these irreconcilable stories to believe involved resolving a swearing contest between live witnesses, which the district court was far better situated to do than are we. We must defer, for example, to the district court's evaluation of the "demeanor, tone of voice, [and] manner of response" of the witnesses, 698 F. Supp. at 552, each of which is essentially unreviewable.
Kikumura, however, relies heavily on the testimony of John Crowley, a gas station attendant who observed part of the encounter between Cieplensky and Kikumura. Crowley testified that he saw Cieplensky looking into the trunk of Kikumura's car while Kikumura stood outside beside the car. Crowley did not observe where Kikumura's bombs were located. However, as Kikumura points out, Crowley's testimony is inconsistent with Cieplensky's to the extent Cieplensky testified that he had placed Kikumura inside the patrol car before searching the trunk.*fn2
Kikumura contends that it was clear error for the district court not to credit the testimony of Crowley, "the one eyewitness with absolutely no motivation to lie." Reply Br. at 21. We disagree. A witness's testimonial capacity depends not only on his truthfulness, but also on his perception and memory: in order to give an accurate account of some past event to a factfinder, the witness must accurately (1) perceive the event when it occurred, (2) remember what he perceived between the time of the event and the time of his testimony, and (3) relate what he remembers at the time of his testimony. Although Crowley surely had the least incentive to lie, he just as surely had the least opportunity to perceive the relevant events and the least reason to remember them accurately.
It is probable that the encounter between Cieplensky and Kikumura failed to make any deep impression on Crowley when he observed it. Crowley testified that he had previously observed "quite a few" cars pulled over and searched by troopers at the service station. When Crowley observed Cieplensky and Kikumura, he was driving at an unusually high rate of speed, hurrying to get to work because he was late. He only managed to "glance" at them "for about two or three seconds." Later in the day, however, Crowley observed a bevy of troopers and bomb specialists ransacking the passenger compartment and open trunk of Kikumura's car, which "made quite an impression" on him. Also, he later observed several pictures of the open trunk in the newspapers and on television. Although there is every reason to believe that Crowley testified truthfully, under these circumstances it is quite possible that Crowley simply misremembered seeing the trunk open when he briefly glanced at Kikumura while driving hurriedly to work. The district court's failure to credit Crowley's testimony on this point is not enough to render its subsequent findings clearly erroneous.
As between Cieplensky and Kikumura, the district court was amply justified in concluding that it was Kikumura who was lying. Kikumura himself admitted to lying repeatedly while entering the country illegally and preparing for his bombing. Moreover, Kikumura had a great incentive to lie -- his presumed desire to avoid a long prison term -- and he had testified inconsistently about some of the relatively minor details of his story, see, e.g., 698 F. Supp. at 548 n.4. Also, Kikumura's testimony itself contains no small degree of implausibility -- for example, that Cieplensky, following a routine traffic stop and unremarkable pat-down frisk, without permission removed the keys from the ignition, opened the trunk, opened the suitcase, opened the box, and only then found evidence of serious wrongdoing.
As Kikumura demonstrates, countervailing arguments can be marshalled. For example, Cieplensky, as well as Kikumura, might have had an incentive to lie, assuming that the searches were illegal, and one might not expect a trained terrorist to leave his bombs where they could be discovered so easily. Although not frivolous, these contentions hardly leave us "with the definite and firm conviction that a mistake has been committed." United States Gypsum Co., 333 U.S. at 395. The district court's findings are simply not clearly erroneous.*fn3
Kikumura next contends that Cieplensky committed several fourth amendment violations even assuming the correctness of the district court's fact-finding.
First, he asserts that the original stop was unjustified because interpreting New Jersey's careless driving statute so as to encompass Kikumura's driving would render the statute void for vagueness. We disagree. The statute prohibits "driving a vehicle on a highway carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property." N.J. Stat. Ann. § 39:4-97 (West 1973). The district court found that Kikumura "cut across two parking lanes at twenty five to thirty miles per hour within five feet of parked vehicles." 698 F. Supp. at 558. Whatever the ambiguity at the margins of the statute, Kikumura's argument can succeed only if the statute is vague as applied to his specific conduct, see, e.g., New York v. Ferber, 458 U.S. 747, 767-69, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982), and we have no doubt that the statute encompasses his conduct.*fn4 Because Cieplensky, who observed Kikumura's driving, had reasonable suspicion that Kikumura was violating the law, the initial stop was justified. See, e.g., United States v. Sokolow, 490 U.S. 1, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989).
Second, Kikumura contends that Cieplensky was unjustified in conducting the pat-down search for weapons. We disagree. A police officer may search a detained individual for weapons if he has reasonable suspicion that the individual could be armed and dangerous to the officer or others. See Terry v. Ohio, 392 U.S. 1, 27, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The reasonable suspicion standard of justification, developed in Terry as a more lenient exception to the usual probable cause standard, requires that the officer, at the time of the search, must know of "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant th[e] intrusion." Id. at 21. The "specific and articulable facts" asserted to justify the pat-down search in this case include Kikumura's possession of lead shot and containers that once held an extremely large quantity of gunpowder, coupled with Kikumura's fresh burn marks and with conduct at least suggesting a fear of detection.
We believe that the chain of inference from the known facts to the perceived danger here is no more attenuated than in other cases in which the Supreme Court has upheld protective searches under the reasonable suspicion standard. For example, officers can infer that suspects might be armed and dangerous from conduct suggesting that they are contemplating a daytime robbery, see Terry, 392 U.S. at 28, and can infer that a car containing a large hunting knife might also contain other dangerous weapons accessible to its occupants, see Michigan v. Long, 463 U.S. 1032, 1051, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983). In such cases, although the specific facts observed do not in any rigorous sense constitute proof that the officer or others are in danger, the standard necessary to establish reasonable suspicion "is considerably less than proof . . . by a preponderance of the evidence." Sokolow, 109 S. Ct. at 1585. Because we believe that Cieplensky had reasonable suspicion to fear that Kikumura could be armed and dangerous, we conclude that the pat-down search for weapons was constitutional.
Finally, Kikumura contends that the search of the passenger compartment of his car, during which Cieplensky discovered the bombs, was unconstitutional. A search undertaken pursuant to voluntary consent is not unconstitutional, however, and the district court concluded that Kikumura's consent was voluntary. That determination is a finding of fact, see Schneckloth v. Bustamonte, 412 U.S. 218, 227, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973), and, as such, is subject only to clearly erroneous review. See, e.g., United States v. Kelly, 708 F.2d 121, 126 (3d Cir.), cert. denied, 464 U.S. 916, 78 L. Ed. 2d 258, 104 S. Ct. 279 (1983); see also id. at 127 (Gibbons, J., dissenting). We cannot conclude that the finding of voluntariness was clearly erroneous.
In Schneckloth, the Court instructed that the voluntariness of a consent to search must be determined by reference to "the totality of all the surrounding circumstances -- both the characteristics of the accused and the details of the interrogation." 412 U.S. at 226. In reviewing the circumstances here, we are struck by one fact of almost overwhelming significance: Kikumura did not merely assent to a search that was first requested by Cieplensky; he suggested it. When Cieplensky asked Kikumura what the box in his car contained, Kikumura responded, "Souvenirs. Go ahead, check it out."
None of the surrounding circumstances vitiate the obvious inference that Kikumura, hoping that Cieplensky would not call his bluff, volunteered to have his car searched. To be sure, Kikumura had been stopped and frisked. However, this stop and frisk, like the stop described in Berkemer v. McCarty, 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984), was effected "by only one . . . policeman," occurred outdoors in "public view" and in broad daylight. It thus cannot plausibly be characterized as a "'police dominated'" encounter, id. at 438-39, so as to trigger significantly stricter scrutiny of the consent. Kikumura also notes that he was never informed of his right to refuse consent. That fact is relevant in considering the totality of the circumstances, but is hardly dispositive, as Schneckloth's rejection of the Ninth Circuit's attempt to Mirandize fourth amendment consents makes clear. See 412 U.S. at 227. Finally, Kikumura argues that the consent was tainted by Cieplensky's earlier unlawful conduct. Having found neither the stop nor the weapons frisk unconstitutional, however, we may reject this argument summarily.
Because we cannot say that a totality of the circumstances indicates that the district court's finding of a voluntary consent to search was clearly erroneous, we hold that Cieplensky's search of the passenger compartment of Kikumura's car was constitutional.*fn5
III. THE SENTENCING ISSUES
Kikumura was charged with twelve passport and weapons offenses, by far the most serious of which was violation of 18 U.S.C. § 844(d), which prohibits transporting any explosive in interstate commerce "with the knowledge or intent that it will be used to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or real or personal property."*fn6 After the district court denied Kikumura's motion to suppress the evidence discovered in his car, Kikumura stipulated to all essential facts of all the charged offenses and waived his right to a jury trial. However, Kikumura denied that he intended to use his bombs in order "to kill, injure, or intimidate any individual," 18 U.S.C. § 844(d) (emphasis added), conceding only his intent "unlawfully to damage or destroy any building, vehicle, or real or personal property," id. (emphasis added). Following a pro forma bench trial on the stipulated facts, Kikumura was convicted of all counts.
Because Kikumura's offenses were committed after November 1, 1987, his sentencing was governed by the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (1984), and the sentencing guidelines promulgated thereunder. The parties do not dispute the application of the guidelines outlined in the presentence report. The offense level for Kikumura's violation of 18 U.S.C. § 844(d) was calculated under § 2K1.6 of the guidelines and determined to be 18.*fn7 Because Kikumura's other weapons offenses involved substantially the same harm as his § 844(d) offense, and because his passport and visa offenses were all significantly less serious than his § 844(d) offense, Kikumura's combined offense level was also determined to be 18.*fn8 With no prior convictions, Kikumura was classified as having a criminal history category I, which resulted in a sentencing range of between 27 and 33 months.*fn9 The government's sentencing memorandum put Kikumura on notice that it would seek a substantial upward departure based on Kikumura's alleged terroristic activities.
The district court conducted a sentencing hearing on February 7, 1989. Despite the opportunity to do so, Kikumura declined to testify, to call live witnesses, or to introduce affidavits or other evidence on his behalf. He did, however, vigorously cross-examine both witnesses who testified for the government, and he objected to the introduction of an affidavit relied upon by the government to link Kikumura to the Japanese Red Army (JRA), a notorious international terrorist organization.
Detective Joseph Fuentes, a New Jersey police officer assigned to investigate Kikumura after his arrest, chronicled Kikumura's escapades in entering the United States and preparing for his bombing. On appeal, Kikumura does not seriously contest the details of that testimony.
On February 29, 1988, Kikumura visited the American embassy in Paris and presented a Japanese passport in the name of one Masatoshi Kishizono. The passport had originally been issued to Kishizono, was stolen from him, and was skillfully altered so as to replace Kishizono's picture with Kikumura's. Using Kishizono's passport, Kikumura obtained an entry visa to the United States.
On March 8, 1988, Kikumura entered the United States. Soon thereafter, he rented a Manhattan apartment, purchased a used car, and began a four-week odyssey during which he travelled some 7000 miles through at least seventeen different states. During his voyage, Kikumura gradually accumulated the various components he would use to assemble his bombs -- for example, tape and wire in Lexington, Kentucky on March 31; switches and jacks in Huntington, West Virginia on April 1; flashbulbs, batteries, and fire extinguishers in Cheltenham, Pennsylvania on April 10; and so on. On April 11, Kikumura unsuccessfully attempted to sell his car and to rent a different car in Philadelphia. The next day, he was arrested at the Vince Lombardi service area while en route to New York, his three bombs by then fully assembled.
In addition to the bombs and bomb paraphernalia, investigators also found in Kikumura's car a map of New York City. Marked on the map was West 24th Street, between 7th and 8th Avenues, about one-half block from a navy and marine recruiting office located at the corner of 7th Avenue and 24th Street. Investigators also found an American Airlines timetable with the handwritten notation, "Friday morning, 330.00, 4/15." Detective Fuentes speculated that Kikumura intended to detonate his bombs at the recruiting office and to board a flight costing $330 on the morning of April 15.
Kikumura's bombs were described in detail by FBI Special Agent James Thurman, one of the country's leading experts on that subject. In order to construct each of his three bombs, Kikumura had sawed the top off of a fire extinguisher, hollowed out its contents, and filled the extinguisher with about three pounds of gunpowder, some wadding, about three pounds of lead shot, and a flashbulb connected to some wire running out of the top of the extinguisher. The bombs would detonate when an electric current passing down the wire caused the bulb to flash. The heat from the flash would then burn the gunpowder, producing a build-up of pressure in the extinguisher and resulting in an explosion that would spray lead shot and metal fragments from the fire extinguisher in all directions. For one of his three bombs, Kikumura had assembled a fusing system out of a timer, a toggle switch, some batteries, and two jack connectors. The system was capable of detonating the bomb up to one hour after Kikumura had started it. Kikumura's car contained materials from which similar fusing systems for each of his other two bombs could have been constructed.
The FBI laboratory report described the gunpowder in Kikumura's bombs as capable of producing a "low explosive main charge" and the lead shot as "enhancing the fragmentation effect of these devices." According to the report, the lead shot would "produce additional personal injuries and property damage when the devices exploded."
Thurman testified that in a large room with a ten-foot ceiling, Kikumura's three bombs would be capable of producing a fireball extending out to the ceiling and walls. He then explained, however, that the bombs' main destructive force stemmed from Kikumura's use of lead shot as shrapnel:
The real damage from something like this is not from the fireball but the shrapnel that's contained inside the device and the device itself. Here we have two sources of fragmentation. One is from the [the fire extinguisher] itself, [which] would fragment in the explosion. Secondly, the lead shot that is contained within [the fire extinguisher] would be spread around the room, travelling at a very high velocity . . . [so as] to injure and possibly kill people within the room. It's impossible to say that everyone in here would be injured or killed. But certainly there would be numerous casualties within the room, as well as . . . significant property damage.
On direct examination, Thurman offered his expert opinion that Kikumura placed lead shot in the bombs in order "to injure or kill people." On cross-examination, he conceded that "one of the purposes for this shrapnel could have been to destroy property." On redirect, however, Thurman reiterated that "when lead shot is placed into a device, it's there primarily to injure people, and in the process it will damage property." Furthermore, he agreed that "the reason that it is primarily intended to injure people is [that] it's going to disperse in all different directions, and if anyone is in the room, [the shot will] likely penetrate their [sic] skin." On recross, Thurman agreed that "the spray pattern of the fragments would cause damage to, say, nearby vehicles if that was your intention, or windows, or something like that." Finally, in response to a question from the court, Thurman likened Kikumura's bombs in certain respects to Claymore mines, military devices that project a number of small metal balls in a spray pattern. Like Claymore mines, Thurman opined, Kikumura's bombs were capable of destroying property, but were "meant as anti-personnel devices." Thurman also explained the significance of three other chemicals found in Kikumura's car when he was arrested -- aluminum powder, ammonium nitrate, and mercury. Kikumura possessed about two pounds of aluminum powder, which he had purchased in Nashville, Tennessee on March 30. That powder, combined with the proper amount of ammonium nitrate, could have produced a 50-pound bomb capable of blowing out the doors and bringing down the ceiling of the room in which it was exploded, producing "mass casualties and destruction" in the process. Although Kikumura's car contained only traces of ammonium nitrate, not enough to assemble such a bomb, ammonium nitrate is ordinarily sold in large quantities, so that "if you find traces of ammonium nitrate . . . in someone's automobile, that's an indication that the person . . . likely had a much larger quantity." Kikumura obtained his mercury by breaking and emptying eleven thermometers he had purchased in Fairmont, West Virginia during or about the first week in April. Thurman testified that he could imagine only two uses for that mercury. First, it might be converted into mercury fulminate, a very powerful explosive often used as a detonator, although Kikumura was not found to possess all of the chemicals required to effect the necessary chemical reaction. Second, the mercury itself might be used as a booby trap for a bomb, so that anyone who tried to move the bomb would set it off.
Thurman testified that the construction of Kikumura's bombs and fusing system indicates a "resourceful individual" with "considerable knowledge" of explosives and "a very high level of expertise."
The government also introduced evidence regarding Kikumura's prior terrorist activities. Jacob Van Mastright, a Dutch police officer, submitted an affidavit stating that he had arrested Kikumura on May 1, 1986, at Schiphol Airport in Amsterdam. The Dutch authorities discovered that Kikumura was attempting to smuggle over two pounds of TNT flakes into the Netherlands inside a cardboard orange drink container hidden in his luggage. Agent Thurman testified that that amount of TNT was capable of producing "mass casualties and fragmentation injuries within [a] room, with the likely possibility of blowing out the doors and the ceiling falling down." Moreover, the Dutch police discovered six detonators hidden inside a transistor radio that Kikumura was carrying. The detonators were concealed so skillfully that the police could not "identify anything particularly wrong with the contents of the radio" even after carefully examining an x-ray of it. Kikumura was detained for about four months. When the airport search was determined to be illegal under Dutch law and no further evidence against Kikumura was discovered, he was deported.
Finally, the district court admitted into evidence, over Kikumura's objection, an affidavit by FBI agent Michael Hartman, who oversees the Bureau's investigation of the JRA. In his affidavit, Hartman detailed at some length his conversations with a confidential informant who had reported to the FBI details of activities inside a terrorist training camp in the Bekaa Valley in Lebanon.
The informant recounted that three members of the JRA arrived at the camp for training sometime during 1984. In January of 1985, two of the three returned for follow-up training, which included, among other things, practice in manufacturing explosives from ammonium nitrate and aluminum powder, and in setting off mercury fulminate detonators with flashbulbs.
During the spring of 1985, a JRA member later identified as Junzo Okudaira spent a week at the camp conducting research on remote control devices. Soon thereafter, the JRA arranged to move into the camp permanently. According to the informant, among the members of the JRA who took up residence there were Okudaira and, in the fall of 1986, Kikumura. While in the camp, Kikumura trained other JRA members. Kikumura admitted to the informant that he had travelled widely and had been arrested once previously.
The JRA leader in the camp, Mariam Shigenobu, told the informant that the JRA's primary enemy was the United States and that the JRA planned to strike within the United States. In June 1987, Shigenobu accepted an invitation to train in Libya.
In his affidavit, Agent Hartman stated that Okudaira is the prime suspect in the bombing of an American U.S.O. club in Naples, Italy, which killed five people and wounded eighteen. That bombing occurred on April 14, 1988, two days after Kikumura was arrested in New Jersey and exactly two years after the United States bombed targets in Libya in retaliation for a previous terrorist bombing in West Berlin. Italian authorities have photographic and fingerprint identifications of Okudaira.
3. The District Court's Findings and Conclusions
The district court made extensive fact-finding, describing in often graphic terms the heinous crimes it concluded Kikumura was about to commit. The gist of the district court's findings are summarized in the following introductory paragraph:
In summary, Kikumura is a member of the Japanese Red Army ("JRA"), a violent terrorist organization; he has trained other members of the JRA and received training from the JRA; he has engaged in a course of terrorist conduct in Holland concerning explosives which caused his arrest; he meticulously planned, schemed and attempted to execute a terrorist mission in this country with remarkable skill and deliberation; and he planned to kill and seriously injure scores of people. But for the alert and professional conduct of Trooper Cieplensky, Kikumura would have succeeded in murdering and maiming countless numbers of people -- for no reason other than they are Americans.
United States v. Kikumura, 706 F. Supp. 331, 335 (D.N.J. 1989).*fn10 In particular, the district court found that Kikumura's bombs "were intended and designed for flesh and blood, not bricks and mortar." Id. at 338.
On the basis of this record and these findings, the district court determined that an upward departure was appropriate. The court relied upon the following factors to justify its substantial departure: intent to cause multiple deaths and serious injuries (see Guidelines §§ 5K2.1 and 5K2.2); planned detonation of unusually dangerous explosives (see id. § 5K2.6); intent to disrupt a governmental function (see id. § 5K2.7); extreme conduct (see id. § 5K2.8); endangerment of public health/safety and national security (see id. § 5K2.14); and inadequacy of criminal history category (see id. § 4A1.3). 706 F. Supp. at 340-42. In view of these factors, which it did not quantify, and the four purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2)(A)-(D), the court concluded that a sentence of 30 years' imprisonment was reasonable and imposed it. Id. at 346. Kikumura appealed. We have jurisdiction pursuant to 18 U.S.C. § 3742(a)(3).
B. Guideline Departures -- General Principles and the Applicable Standard of Proof
The general framework for reviewing departures from the sentencing guidelines is by now settled. A district court must sentence within the applicable guideline range "unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b).*fn11 "This provision is mandatory." United States v. Uca, 867 F.2d 783, 786 (3d Cir. 1989). Thus, if the circumstances relied upon by the district court to justify the departure were adequately considered by the Sentencing Commission, then its decision to depart must be reversed. See 18 U.S.C. § 3742(f)(1). Our scope of review of this question is plenary. See United States v. Ryan, 866 F.2d 604, 610 (3d Cir. 1989). ...