Sherwood

concurring:

I am pleased to concur in the thoughtful and carefully written majority opinion.

The dissent contests the notion that Kevin Wynn was a “victim” of the defendants’ conduct. Ms. Wynn, seventeen years old at the time, was forcibly removed from her home at gunpoint and held captive by the defendants while they extorted money from her father. While she was held, the defendants subjected her to conduct that all three members of this panel agree was extreme and unusually degrading.

The contention that Ms. Wynn was not a victim seems to center around the nature of the charges, that kidnapping was not charged. That the actual charges employed involved conspiracy to “interfere with interstate commerce by threats or violence” does not change the nature of the basic criminal *416 activity involved and certainly does not diminish Kevin Wynn’s status as a victim. The Sentencing Guidelines, especially after Koon v. United States, — U.S. -, 116 S.Ct. 2035 , 135 L.Ed.2d 392 (1996), do not cabin discretion so tightly. To the contrary, the Guidelines teach that sentences should be fashioned to reflect the actual nature of the offense involved.

Although the purpose of the threats…

Opinion by Judge SILVER; Concurrence by Judge HAWKINS; Dissent by Judge KOZINSKI.

BACKGROUND

On July 26, 1993, Kevin Wynn, the daughter of Steven Wynn, the Chief Executive Officer of Mirage Resorts, Inc., was confronted by two kidnappers in her Las Vegas townhouse. Ms. Wynn’s kidnappers taped her eyes shut, put sunglasses on her, and made her remove her clothes, except her underwear. Ms. Wynn was then forced to pose for pictures, which her kidnappers stated would be publicly disseminated should she or her father go to the police. Ms. Wynn *407 was then allowed to get dressed, was put in her car, and was driven to the airport, where she was left tied up. The kidnappers called Mr. Wynn and demanded $1.45 million for Ms. Wynn’s return. The ransom was paid with money from the Mirage Hotel & Casino. Upon payment of the ransom, Ms. Wynn was recovered.

On December 8, 1998, a second superseding indictment was filed charging Jacob Harold Sherwood, Ray Marion Cuddy, and Anthony Watkins with (1) Conspiracy in violation of 18 U.S.C. § 1951 ; (2) Interference with Commerce by Threats or Violence in violation of 18 U.S.C. § 1951 ; (3) Use of a Firearm During a Crime of Violence in violation…

dissenting in part:

The majority errs in holding that Kevin Wynn was a “victim” of defendants’ conduct under U.S.S.G. § 5K2.8. It’s true that Wynn was victimized by the kidnapping, but defendants were not convicted of kidnapping. Instead, they were convicted of conspiracy to interfere with, and interference with, interstate commerce through threats or violence. See 18 U.S.C. § 1951 . The victim of these crimes was either Steven Wynn or the Mirage Hotel. Both defendants were also convicted of using a firearm in a crime of violence. See 18 U.S.C. § 924 (c). In addition, Cuddy was convicted of laundering money and Sherwood was convicted of conspiring to launder money. See 18 U.S.C. § 1956 . However, the firearm convictions resulted in five-year mandatory consecutive sentences; no judicial discretion was involved. And it cannot be seriously argued that Wynn was a victim of money laundering.

In United States v. Hoyungowa, 930 F.2d 744 (9th Cir.1991), we vacated a sentence because the district judge interpreted “victim” in an overbroad manner in imposing an upward departure for extreme psychological injury under U.S.S.G. § 5K2.3. We held that “this Guideline applies by its plain terms…