United States v. Sampson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 06-4971

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

TIMOTHY FENNON SAMPSON,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (3:05-cr-00011-nkm)

Submitted: July 18, 2007 Decided: August 23, 2007

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

Affirmed by unpublished per curiam opinion.

John E. Davidson, DAVIDSON & KITZMANN, PLC, Charlottesville,
Virginia, for Appellant. John L. Brownlee, United States Attorney,
William F. Gould, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Timothy Fennon Sampson was convicted by a jury of

conspiracy to commit perjury, 18 U.S.C. § 371 (2000) (Count 1);

perjury and subornation of perjury, 18 U.S.C. § 1622 (2000) (Counts

2 and 4); and providing materially false statements to the

judiciary, 18 U.S.C.A. § 1001 (West 2000 & Supp. 2007) (Count 3).

The court imposed a variance sentence of twenty years of

imprisonment, going above the advisory guideline range of 108-135

months after first deciding that an upward departure pursuant to

U.S. Sentencing Guidelines Manual § 4A1.3, p.s. (2005), to a range

of 151-188 months would not adequately serve the factors set out in

18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007). Sampson appeals

his sentence, contending that the court incorrectly determined the

advisory guideline range in the first place and that the variance

sentence was unreasonable because the court based its decision to

vary on his supposed involvement with several murders and other

crimes for which he had not been convicted. We affirm.

Sampson’s conviction resulted from his attempt to portray

himself as a witness to the murders of Mary and Michael Short in

Henry County, Virginia, and the abduction of their daughter. The

daughter’s body was found a month later in Rockingham County, North

Carolina. A year after the murders, Sampson contacted the

Rockingham County Sheriff’s Department and claimed to have been

behind the Short house looking for items to steal when the murders

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occurred. Sampson said he had seen a person bring a weapon out of

the house and then a child, and that the person looked like Abraham

Lincoln. This was significant because, at the time, authorities

had identified a “person of interest,” who had a beard and had been

described as resembling Lincoln. On October 7, 2003, Sampson

testified before a grand jury in Charlottesville, Virginia, that he

had been traveling from Greensboro, North Carolina, to Roanoke,

Virginia, in a Ford van with a friend named “Bobby” on the night of

the murders, had stopped to urinate, went behind the Shorts’ house

looking for items to steal, and heard several shots. He said he

heard a child say “No, no,” and then saw a man come out of the

house, first with a weapon, then carrying a child.

On November 5, 2003, Sampson accompanied his daughter,

Beth Braxton, to Charlottesville, where she testified before the

grand jury that, when Sampson came home on the day of the murders,

he was “shaking and crying” and told her “he had just seen someone

get killed.” Beth Braxton had not met her father until she was

eighteen years old, in late 2000, when she moved in with Sampson

and his girlfriend, Dawn Phillips. A month later, Phillips

disappeared. During the following year, Sampson entered into an

incestuous relationship with Braxton, which she said began when he

raped her at knifepoint, and which produced a child in March 2003.

On the same day that Braxton testified before the grand

jury, Sampson was interviewed by Major Kimmi Nester of the Henry

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County Sheriff’s Office and other law enforcement officers. In the

course of the interview, Sampson volunteered that he had shot and

killed a man who had sex with Dawn Phillips, and burned the man’s

body. He also told the officers he had seen Phillips’ dead body

wrapped in a rug from his own residence, but he denied having

killed Phillips.

Shortly after this interview, Sampson persuaded a friend,

Jerry Mills, to say that he had driven Sampson to Virginia on the

night of the Short murders, using the name “Bob” while in Virginia.

Sampson suggested to Mills that it might be a way for him to obtain

lenient treatment on the habitual offender charge he was facing.

To prepare Mills, Sampson drove him to Henry County to show him the

murder site and rehearse his story. Mills’ interview with members

of the task force investigating the Short murders took place on

December 17, 2003, at Mills’ attorney’s office in Greensboro.

Mills testified before the grand jury in Charlottesville on April

28, 2004. At trial, Mills testified that his grand jury testimony

was untrue.

At Sampson’s request, Mills also asked a mutual friend,

Michael Holland, to tell Federal Bureau of Investigation (FBI)

investigators that he sold Mills a Ford van, then took the vehicle

back and had it crushed. Holland initially complied when he was

questioned on December 18, 2003, but when he learned that the FBI

was working on the Short case, he immediately called the

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investigators and told them he had been instructed to say what he

did. On December 21, 2003, Sampson called both Captain Bobby

Lawson, of the Rockingham County Sheriff’s Office, and Nester, and

complained that investigators had been in Greensboro. He told

Lawson he had received death threats and had a gun stuck down his

throat. He said, “[Y]ou come up here and I’ll stick a gun down

your ‘GD’ throat and blow your ‘M F’n’ head off.” To Nester, in a

cell phone call that was interrupted numerous times, Sampson said

he would “use a weapon to blow [their] Goddamn, motherfucking heads

off.”

On February 10, 2004, both Mills and Holland were

scheduled for separate interviews at the FBI office in Greensboro.

Sampson came with Mills, although he had not been invited to

appear. Mills’ interview lasted longer than expected, with the

result that, when Mills and Sampson were leaving, they encountered

Holland at the elevator. According to Holland, words were

exchanged and Sampson “punched and hit” him. Mills testified that

he left a few minutes before Sampson and, when Sampson came out of

the building, Sampson said he had met Holland and had hit him.

On July 20, 2004, Sampson was arrested and charged with

the murder of Dawn Phillips. On August 11, 2004, Beth Braxton

testified a second time before the grand jury and recanted the

testimony she gave previously. At trial, she testified that, in

her first grand jury testimony, she said what Sampson told her to

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say. She said that when Phillips disappeared, Sampson took her to

a hotel that night, engaged in an elaborate carpet cleaning at his

home the next day, and finally removed the carpet altogether. She

also testified that he later told her that he killed Dawn Phillips

and described in detail how he did it. Braxton also related that

Sampson told her that he had hit his former wife, Donna Slayton, in

the face with a hammer.

Braxton described how Sampson punched her in the face and

cut her arm in 2002 when she said she was sorry she had met him and

wanted to separate from him. She read from a letter she received

from Sampson after he was arrested in which he threatened to

disclose her incestuous relationship with him. She said it made

her feel that if she didn’t help him she would lose her freedom and

her child and “everything [she] had ever done wrong would be out in

the open for everyone to know.”

After Sampson’s conviction, the probation officer

recommended a base offense level of 14, U.S. Sentencing Guidelines

Manual § 2J1.3 (2005), with an 8-level enhancement for causing or

threatening to cause physical injury to a person to suborn perjury

under § 2J1.3(b)(1), and a 3-level enhancement for substantial

interference with the administration of justice under

§ 2J1.3(b)(2). The probation officer also recommended a 2-level

adjustment for having an aggravated role in a criminal activity

involving fewer than five persons under USSG § 3B1.1(c), and a 2-

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level adjustment for obstruction of justice under USSG § 3C1.1.

The recommended offense level was 29. Sampson was in criminal

history category III. His recommended advisory guideline range was

108-135 months. The probation officer suggested that an upward

departure might be warranted under USSG § 4A1.3, p.s. (Inadequate

Criminal History Category).

The government moved for an upward departure under

§ 4A1.3, requesting the statutory maximum sentence of twenty years

under 18 U.S.C.A. § 3553 (West 2000 & Supp. 2007), based in part on

Sampson‘s admissions during his discussions with law enforcement

officers. The government noted that charges were pending against

Sampson in North Carolina for the murder of Dawn Phillips and that

he also had larceny charges pending. The government argued that

Sampson would always be a danger to the community. Sampson

contested all the recommended enhancements and adjustments, and

opposed a departure.

At the sentencing hearing, the district court overruled

Sampson’s objections to the presentence report. With respect to

the requested upward departure, the government called Rockingham

County Sheriff’s Department Deputy Perry Brookshire, who testified

that, in an interview on November 5, 2003, Sampson volunteered that

he had seen Dawn Phillips’ body wrapped in a blanket that had come

from his residence, talked to the person who killed her, killed an

African-American male who was at the scene where Phillips was

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murdered, and burned the man’s body. Sampson also stated that he

had testified in the trial of John Malone, Jr., who was acquitted

of the 1991 murder of his stepmother, Colby Malone. Sampson

admitted he had been involved in a plan to rob Colby Malone, but

said he backed out of it, although he helped to hide the murder

weapon. Brookshire testified that Sampson’s DNA had recently been

discovered on a pair of gloves that were found at the crime scene.

Brookshire further testified that Sampson had been

convicted of insurance fraud after a house he owned burned. During

the investigation, the body of an Hispanic male was found about a

mile from Sampson’s residence. The man, who was never identified,

had been shot in the head and burned beyond recognition.

Brookshire testified that Sampson stated he married Donna Slayton

so that she could not testify against him concerning some staged

break-ins that occurred during this time.1 Finally, Brookshire

testified that, because of Sampson’s conduct during the

investigation of the Short case, approximately 1000 additional

hours of investigation were expended. The government asked the

court “to not only depart from the guideline range, but vary, based

1
Sampson was convicted of insurance fraud relating to the
staged break-ins in 1994.

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on Blakely[2] and Booker[3], up to the statutory maximum, which is

240 months.”

The district court agreed with the government and the

probation officer that Sampson’s criminal history was under-

represented by category III. The court concluded that, if all

Sampson’s criminal conduct were counted in his criminal history,

Sampson would be in category VI. However, the court decided that

a departure to category VI would not result in a sentence

sufficient to protect the public from future crimes by Sampson.

Therefore, the court imposed a variance sentence of 240 months by

imposing consecutive sentences on each of the four counts of

conviction.

Upward Variance

In this appeal, Sampson first challenges the district

court’s divergence from the guideline range. A sentence is

reviewed for reasonableness. Booker, 543 U.S. at 261; United

States v. Tucker, 473 F.3d 556, 560 (4th Cir. 2007). It is the

district court’s responsibility to impose a sentence sufficient,

but not greater than necessary, to comply with the purposes of

§ 3553(a). Tucker, 473 F.3d at 561. If the appeals court

concludes that the sentence achieves this goal, the sentence may be

affirmed as reasonable. Id. To this end, the sentencing court

2
Blakely v. Washington, 542 U.S. 296 (2004).
3
United States v. Booker, 543 U.S. 220 (2005).

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should correctly determine the advisory guideline range and decide

whether a sentence within the range serves the factors set out in

§ 3553(a). Id. If not, the court should first determine whether

a departure is warranted. Id. If the court finds that the

departure range is still inadequate, the court may impose a

variance sentence. Id. at 560-61. When reviewing a variance

sentence, the appeals court considers “whether the sentencing court

acted reasonably both with respect to its decision to impose such

a sentence and with respect to the extent of the divergence from

the sentencing range.” United States v. Hernandez-Villanueva, 473

F.3d 118, 123 (4th Cir. 2007) (citations omitted).

Here, the district court did not state whether it

intended the sentence to be a departure or a variance. However,

the court’s explanation for the sentence indicates that it believed

a criminal history departure could not produce a 240-month

sentence, which was the sentence it had determined was the only

appropriate sentence. Therefore, the sentence should be viewed as

a variance. In light of Sampson’s pending charge for the murder of

Dawn Phillips, a crime he had admitted to Braxton, his admission

that he had murdered an unidentified African-American man, and his

involvement with the murder of Colby Malone, we conclude that the

district court’s decision to impose a variance sentence, and to

impose the statutory maximum on each count, was reasonable.

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 Sampson argues that the court erred by giving excessive

weight to the goal of protecting the public from future crimes he

might commit. However, “[t]he district court need not discuss each

factor set forth in § 3553(a) ‘in checklist fashion;’ ‘it is enough

to calculate the range accurately and explain why (if the sentence

lies outside it) this defendant deserves more or less.’” United

States v. Moreland, 437 F.3d 424, 432 (4th Cir.) (quoting United

States v. Dean, 414 F.3d 725, 729 (7th Cir. 2005)), cert. denied,

126 S. Ct. 2054 (2006). The district court here clearly considered

the other § 3553(a) factors, as evidenced by its statement that

“none of the factors in § 3553(a) mitigate against anything but the

maximum sentence the Court could possibly impose.”

Relying on United States v. Curry, 461 F.3d 452, 461 (4th

Cir. 2006), Sampson also maintains that the increased sentence was

based on the court’s assessment of his “supposedly violent nature,”

and thus is contrary to the jury’s decision to acquit him of “the

threat charges, the only violent crimes with which Mr. Sampson was

charged in this case.” In Curry, this court held that a downward

variance of 70% from the advisory guideline range was unreasonable,

in part because the district court based its decision to vary

downward on its belief that the defendant had not initially planned

to defraud the victims, a conclusion that “contradicted the weight

of evidence and the verdict.” Id. at 460-61.

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 Sampson’s reliance on Curry is misplaced. First, the

district court concluded that Sampson was a dangerous person mainly

because of his involvement with several murders and his conduct

toward his daughter, rather than because of his threats to Nester

and Lawson. Long-standing authority permits the sentencing court

to consider any evidence at sentencing that “has sufficient indicia

of reliability,” see USSG § 6A1.3(a), including “conduct underlying

[an] acquitted charge, so long as that conduct has been proved by

a preponderance of the evidence.” United States v. Watts, 519 U.S.

148, 156-57 (1997) (per curiam); United States v. Montgomery, 262

F.3d 233, 249 (4th Cir. 2001). Here, in contrast to Curry, the

weight of the evidence supported the court’s conclusion that

Sampson was a dangerous person. To the extent that the court based

its decision on Sampson’s threats to the officers, the evidence

supported the court’s finding. Nester and Lawson testified that

Sampson threatened them. Sampson did not testify. In acquitting

Sampson of making threats to impede the administration of justice,

the jury did not necessarily decide that Sampson was innocent of

making the threats, but only that he did not do so with the intent

of obstructing justice. Therefore, we are satisfied that Sampson

has not shown that the court’s decision to vary upward to the

statutory maximum was procedurally or substantively unreasonable.

USSG § 2J1.3(b)(1) Enhancement

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 The district court did not explain its decision to apply

the 8-level enhancement under USSG § 2J1.3(b)(1) for an “offense

involved causing or threatening to cause physical injury, or

property damage, in order to suborn perjury.” The presentence

report and the government offered the following potential bases for

the enhancement: (1) Sampson’s threats to and intimidation of

Braxton, in particular, raping her, telling her what he did to his

former wife and girlfriend, threatening her after his arrest with

loss of her freedom and her child; (2) Sampson’s assault on Holland

in the FBI building; and (3) Sampson’s threats to Nester and

Lawson.

We agree with Sampson that there was no evidence he

explicitly threatened anyone with physical injury or property

damage to suborn their perjury. However, we are satisfied that the

enhancement was justified based on the implied threat to Braxton.

She testified that, during the time she lived with Sampson, “[i]t

was understood that he was in control. If my behavior was what he

wanted, everything was all right. But if I behaved in a way that

he did not like, then I would be punished for it.” She testified

that their sexual relationship began when he raped her at

knifepoint. He told her in detail how he killed Dawn Phillips and

how he hit his former wife, Donna Slayton, in the face with a

hammer. Braxton said these revelations “made me feel like he is in

control and if he’s not in control, he will get you in control.”

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Braxton also experienced violence from Sampson in addition to the

rape. She testified that, in October 2002, after she and Sampson

had both been drinking and using drugs at a bar, she told him that

she wished she had never met him, that her life had gone from bad

to worse after she met him, and that she didn’t want to see him

anymore. Sampson punched her in the face several times and, when

she put her arm up to protect herself, cut her on the arm. The cut

required sixteen stitches.

Braxton testified that, when Sampson told her about his

plan to claim to be a witness to the Short murders, she said she

wanted no part of it. She later testified before the grand jury

and “said what Timothy told me to say.” Although she was not

apparently induced to commit perjury by any overt threat, an

implied threat is enough to warrant the enhancement. See United

States v. Loudon, 385 F.3d 795, 799 (2d Cir. 2004) (affirming

similar 8-level enhancement under USSG § 2J1.2(b)(1) for implied

threat made with intent of obstructing justice). Because, during

the time-frame of the offense, Braxton was living in an atmosphere

of continual implied threats of physical violence from Sampson, we

conclude that the enhancement was correctly applied.

USSG § 2J1.3(b)(2) Enhancement

There was ample support for a 3-level enhancement under

§ 2J1.3(b)(2) for substantial interference with the administration

of justice, which includes “the unnecessary expenditure of

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substantial government or court resources.” Nester testified at

trial that as much as 1000 extra man hours were expended because of

Sampson’s actions and false claims.

USSG § 3B1.1(c) Adjustment

The evidence supported a finding that Sampson had an

aggravated role in the conspiracy to commit perjury. He originated

the scheme to claim falsely that he was a witness to the Short

murders, and recruited Mills and Braxton to assist him, as well as

Holland, for a brief time. Even though Mills was a willing

participant, Sampson was the leader and organizer of the

conspiracy. The adjustment was not clearly erroneous.

USSG § 3C1.1 Adjustment

Finally, the district court did not clearly err in

applying an adjustment for obstruction of justice, § 3C1.1, based

on Sampson’s threatening phone calls to Nester and Lawson. The

adjustment does not apply when the defendant has been convicted of

perjury unless “a significant further obstruction occurred during

the investigation, prosecution, or sentencing of the obstruction

offense itself . . . .” USSG § 3C1.1, comment. (n.7). Sampson

argues that the adjustment was impermissible double counting.

However, Sampson’s threats to the officers were not part of the

offense of conviction. The district court found by a preponderance

of the evidence that the threats were an attempt by Sampson,

however short-lived, to obstruct the investigation of his perjury

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and the related conspiracy. Thus, the adjustment did not

constitute impermissible double counting.

Sampson also contends that the adjustment was contrary to

the jury’s verdict, which acquitted him of making threats to the

officers with the intent of impeding the administration of justice.

As previously discussed, the sentencing court may consider “conduct

underlying [an] acquitted charge, so long as that conduct has been

proved by a preponderance of the evidence.” Watts, 519 U.S. at

156-57; Montgomery, 262 F.3d at 249. Sampson again relies on

Curry, but here again the weight of the evidence supports the

district court’s finding.

We therefore affirm the sentence imposed by the district

court. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED

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