The opinion of the court was delivered by: MALCOLM MUIR
On March 16, 1994, the Grand Jury for the Middle District of Pennsylvania, sitting in Williamsport, returned a one-count indictment charging Samuel Alexander Amerson, Jr. with possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g) and 924(e). On April 1, 1994, Amerson appeared before the Court and entered a plea of guilty. The Court accepted the plea, ordered a presentence investigation, and scheduled a presentence conference for June 30, 1994.
The presentence report with an addendum was prepared by Probation Officer Drew Thompson and submitted to the Court, the Defendant, defense counsel, and the Government.
We will summarize the offense conduct as set forth in the presentence report so as to illuminate the significance of certain of our findings of fact. Amerson was paroled from the Maryland Department of Public Safety and Correctional Services on March 11, 1993. Thereafter he lived a transient lifestyle, eventually travelling to Pennsylvania. On June 6, 1993, Amerson encountered three young children (two boys, aged 12, and a girl, aged 10) who were walking along a trail in a wooded area in Snyder County. Amerson lured the children from the trail by offering to show them a dead deer. Once off the main trail, Amerson brandished a .22 caliber revolver and led them to a secluded area. He ordered them to remove their pants and shoelaces, tied up each child with the shoelaces and made the children lie on their pants. With the two boys lying less than 6 feet away, Amerson vaginally and anally raped the young girl and put his penis in her mouth. During the assault he threatened to shoot her if she did not stop crying. After raping the girl, Amerson put the revolver to the little girl's head intending to murder her but could not pull the trigger because of the look in her eyes. Amerson then told the children to lie quietly for 10 minutes while he fled. The children untied themselves and ran to their homes where police were summoned.
Medical examination of the little girl showed that she suffered from vaginal bleeding, rope burns upon her wrist, and abrasions on her back and elbows. On June 7, 1993, Amerson was stopped by the Pennsylvania State Police on Route 11 near Ted's Landing, Selinsgrove. Amerson was walking along the highway and matched the description provided by the children. The Pennsylvania State Police determined that there was a warrant for Amerson issued by Maryland parole authorities. During the arrest, a loaded .22 caliber handgun was found on Amerson's person together with 32 rounds of ammunition. After Amerson was arrested, he waived his right to counsel and his right to remain silent and provided a detailed statement to the Pennsylvania State Police. Amerson admitted his involvement, stated that he pointed the firearm at each of the children several times during the incident and that he intended to use the handgun to kill the children. Amerson told authorities that if he has another chance to kill, he will do so. Amerson reported that he had stolen the firearm from a church in Melvern, Indiana. The weapon was test-fired and found to be fully operable. The Bureau of Alcohol, Tobacco, and Firearms determined that the weapon had travelled in interstate commerce. Amerson is prohibited from possessing such a firearm because of prior felony convictions. The foregoing facts set forth in the presentence report were not objected to by Amerson.
In calculating the total offense level, Mr. Thompson added 4 levels to the base offense level of 27 pursuant to U.S.S.G. § 2A3.1(b)(1) for displaying a firearm during the offense, 4 levels pursuant to U.S.S.G. § 2A3.1(b)(2)(A) because the victim had not attained the age of 12, 2 levels pursuant to § 2A3.1(b)(4)(B) because the victim sustained serious bodily injury and 4 levels pursuant to § 2A3.1(b)(5) because the victim was abducted. Mr. Thompson also accorded Amerson a 3-level reduction for acceptance of responsibility. Mr. Thompson originally found that Amerson had a criminal history category of VI, a total offense level of 38, and a guideline imprisonment range of 360 months to life.
At the presentence conference it was determined that there were no disputed issues of fact other than whether the 10 year old child suffered serious bodily injury and that it was necessary to hold a presentence hearing on that issue. At the presentence conference we also notified defense counsel that we were considering an upward departure in this case. By order of July 7, 1994, we also notified Amerson and defense counsel specifically that we were considering an upward departure pursuant to § 4A1.3 of the sentencing guidelines which allows an upward departure where criminal history category VI does not adequately reflect the seriousness of the defendant's criminal history. Furthermore, we advised Amerson that we are of the view that a 2-level increase in the offense level may be warranted under U.S.S.G. § 3A1.3, Restraint of Victim. Finally, we notified Amerson that we were of the view that an upward departure may be warranted based on facts that were not adequately taken into consideration by the sentencing commission in formulating the guidelines. In formulating § 2A3.1 of the guidelines, the Sentencing Commission did not take into consideration instances where a victim was penetrated repeatedly and where there was more than minimal planning. In the present case, arguably there was more than minimal planning because Amerson lured the children to a secluded spot with an initial intent to kill the children.
On July 8, 1994, Mr. Thompson filed a second addendum to the presentence report based upon his position that Amerson has not accepted responsibility for the instant federal offense because Amerson has continued to engage in criminal conduct pending sentencing by way of an attempted escape from the Snyder County Prison. By order of July 13, 1994, we notified Amerson that the issue of acceptance of responsibility would be addressed at the presentence hearing.
A presentence hearing was held on August 22, 1994. The following are the Court's findings of fact, discussion, and conclusions of law with regard to (1) whether one of the victims suffered serious bodily injury under § 2A3.1(b)(4)(B) of the sentencing guidelines, (2) whether a 2-level increase for physical restraint of the little girl applies under § 3A1.3, (3) whether the Defendant's recent escape attempt precludes a reduction in offense level for acceptance of responsibility, and (4) whether an upward departure is appropriate based upon the restraint of the victim, Amerson's criminal record, and factors not addressed by § 2A3.1 of the guidelines such as the repetitious nature of the sex acts and more than mimimal planning.
1. Amerson has been convicted for child molesting committed in Indiana in 1977 at the age of 22, and first degree sexual assault committed in Wisconsin in 1979 at the age of 24. (Undisputed, hereafter referred to as "U")
2. While serving a sentence of six years imprisonment in Wisconsin for assaulting the ten year old victim in 1977, Amerson escaped from custody in 1979, and while a fugitive, sexually assaulted another six year old girl in a wooded area in Fort Wayne, Indiana. (U)
4. Following his release from custody in 1983, Amerson continued his criminal activities, resulting in convictions for the burglaries of three residences and the theft of a car in Garrett County, Maryland. (U)
5. Amerson was sentenced in 1983 to an aggregate term of 27 years imprisonment in Garrett County, Maryland Circuit Court, and released on parole supervision in August 1992. (U)
6. While on parole, in September 1992, Amerson was arrested and convicted for the burglaries of a residence and business in Springfield, Tennessee, and sentenced to an aggregate five year sentence of imprisonment in 1993. (U)
7. Samuel Alexander Amerson, Jr. was reparoled via mandatory release from the Maryland Department of Public Safety and Correctional Services on March 11, 1993. (U)
8. Thereafter, he lived a transient lifestyle, eventually traveling to Pennsylvania. (U)
9. On June 6, 1993, Mr. Amerson encountered three young children (two boys, age twelve, and a girl, age ten) who were walking along railroad tracks in a wooded area in Snyder County. (U)
10. While on parole, Amerson sexually assaulted the ten year old female victim and kidnapped her twelve year old brother and another twelve year old boy in this case on June 6, 1993. (U)
11. The Defendant lured the children from the trail by offering to show them a dead deer. (U)
12. Once off the main trail, Amerson brandished a .22 caliber revolver and led them to a secluded area. (U)
13. He then ordered them to remove their pants and shoelaces. (U)
14. Amerson then tied each child up using the shoelaces and made the children lay on their pants. (U)
15. With the two boys lying less than six feet away, Amerson vaginally and anally raped the young girl and put his penis in her mouth. (U)
16. The Defendant engaged in anal and oral sex with the victim, and vaginal sex without full penetration, all involving one act. (U)
17. During the assault, he threatened to shoot her if she did not stop crying. (U)
18. During the course of the sexual assault the victim was not beaten. (U)
19. After raping the girl, Amerson told the children to lay quietly for ten minutes while he fled. (U)
20. The children untied themselves and ran to their homes where police were summoned. (U)
21. The 10-year-old girl was in shock shortly after the sexual assault.
22. On June 7, 1993, Mr. Amerson was stopped by the Pennsylvania State Police (PSP) on Route 11, near Ted's Landing, Selinsgrove. (U)
23. The Defendant was walking along the highway and matched the description provided by the children. (U)
24. The PSP troopers determined that there was an active warrant for Mr. Amerson issued by Maryland parole authorities. (U)
25. During the arrest, the loaded .22 caliber handgun was found in Mr. Amerson's waist area, in addition to thirty-two rounds of ammunition. (U)
26. After the defendant was arrested, he waived his right to counsel and his right to remain silent, and provided a detailed statement to the PSP. (U)
27. Amerson admitted his involvement and acknowledged that he intended to use the handgun to ...