UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4995
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID H. HUMPHREY,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (2:04-cr-00025-REM)
Argued: December 7, 2007 Decided: April 15, 2008
Before DUNCAN, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Catherine C. BLAKE, United States District Judge for the District
of Maryland, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: L. Richard Walker, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia,
for Appellant. Stephen Donald Warner, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Elkins, West
Virginia, for Appellee. ON BRIEF: Sharon L. Potter, United States
Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Humphrey pled guilty to one count of being a felon in
possession of a firearm. At sentencing, the district court
determined that Humphrey’s advisory Sentencing Guidelines range was
46-57 months’ imprisonment. After considering this range together
with the factors set forth in 18 U.S.C. § 3553(a), however, the
district court sentenced Humphrey to 91 months in prison. For the
reasons articulated below we find no abuse of discretion under
applicable law and therefore affirm the sentence imposed by the
district court.
I
Humphrey, who had little income and no regular employment,
lived by himself in an improvised home in an isolated mountainous
area outside the small town of Parsons, West Virginia. His criminal
record included a 1985 felony conviction for growing marijuana,
which it appears he cultivated for his personal use and for self-
medication of his mental health problems. Humphrey also had
accumulated a number of convictions for marijuana possession,
assault, shoplifting, stalking, and driving on a suspended license.
On the other hand, he also had done such services as shoveling snow
and sweeping sidewalks in the town of Parsons, and on one occasion
had assisted in saving a woman from a flood. Despite the 1985
felony conviction, and perhaps not understanding he was prohibited
2
from doing so, Humphrey possessed rifles and a shotgun for hunting
in the woods where he lived.
Humphrey apparently had a difficult relationship with certain
local law enforcement officers who, he believed, were harassing
him. On May 7, 2004, Humphrey began to drive down the dirt road
from his home toward the road that led into town. Though his
license was suspended at the time, Humphrey apparently had been
told by a local prosecutor that he could drive on the dirt road so
long as he did not get on the main highway. While still on the
dirt road, however, he was confronted by a state trooper intending
to cite him for driving an improperly registered vehicle. Refusing
to obey the officer, Humphrey drove back toward his shack. When
the trooper followed, Humphrey retrieved a shotgun, which he
pointed at the trooper while threatening to kill him. Humphrey
subsequently obtained a second weapon and, when the trooper decided
to back his vehicle away from the shack, Humphrey got back in his
truck and, gun in hand, chased the trooper as he backed down the
road. The encounter lasted approximately 20 minutes and was
captured on the trooper’s in-car video camera. No actual shots
were fired by either Humphrey or the trooper, and Humphrey was
arrested when back-up arrived. He was prosecuted in state court
for wanton endangerment, pled guilty on July 28, 2005, and was
sentenced to a year in prison.
3
Humphrey also was prosecuted by federal authorities, based on
the 1985 felony. On October 19, 2004 he was charged in a two-count
indictment for violations of 18 U.S.C. § 922(g)(1), possession of
two rifles and a shotgun following a felony conviction, and 18
U.S.C. § 922(g)(3), possession of the same firearms by an unlawful
user of marijuana. On June 23, 2005, he pled guilty to count one
before Senior Judge Robert E. Maxwell, and a presentence report was
ordered. Counsel appointed to represent Humphrey, observing his
history of mental health problems, obtained an evaluation by
psychologist Dr. William Fremouw. At a sentencing hearing
scheduled for October 13, 2005, the court determined that an
additional evaluation should be done within the Bureau of Prisons
pursuant to 18 U.S.C. §§ 4241 and 4244. Based on the report
received from the Federal Medical Center at Butner, North Carolina,
the court determined without objection that Humphrey was competent
at the time of his guilty plea and could proceed with sentencing,
then scheduled for May 8, 2006. Prior to sentencing, however, the
court advised counsel of its intention to depart upward from the
Sentencing Guidelines range, in large part because of the report
4
from Butner.1 A continuance of the sentencing was granted until
September 11, 2006.
At sentencing the court calculated the Guidelines as reflected
in the presentence report, without objection, as follows: a base
offense of 14; an increase of 2 because three firearms were
possessed; an increase of 4 because a firearm was possessed in
connection with another felony offense (wanton endangerment); and
a decrease of three levels for acceptance of responsibility.
Together with Humphrey’s criminal history category of V, the
adjusted offense level of 17 resulted in a range of 46-57 months’
incarceration.
Humphrey’s counsel, arguing for a downward departure under
USSG § 5K2.13 for diminished capacity or for a variance below the
1
The court’s order identified the basis of the potential
upward “departure” as:
several of those factors set forth in 18 U.S.C. §
3553(a), namely the nature and circumstances of the
offense; the history and characteristics of the
Defendant; the need for the sentence imposed to reflect
the seriousness of the offense; the need for the sentence
imposed to promote respect for the law; the need for the
sentence imposed to provide just punishment for the
offense; the need for the sentence imposed to afford
adequate deterrence to criminal conduct; the need for the
sentence imposed to provide the Defendant with needed
educational or vocational training, medical care, or
other correctional treatment in the most effective
manner; and, perhaps most importantly in this case, the
need for the sentence imposed to protect the public from
further crimes of the Defendant.
J.A. 19.
5
Guidelines, presented the testimony of Dr. Fremouw concerning his
evaluation of Humphrey and his review of the Butner report.2 Like
Butner, Dr. Fremouw diagnosed Humphrey as having a major depressive
order, cannabis dependence, and schizo-typal personality. Like the
Butner report, Dr. Fremouw identified Humphrey as at-risk for
suicide, noting that in the course of the incident Humphrey not
only threatened the trooper but also told the trooper “go ahead and
shoot me.” J.A. 48. Dr. Fremouw described the May 7, 2004 incident
as the “one incident of violence” in Humphrey’s 53 years, stating
that Humphrey’s quick temper ordinarily was expressed verbally
rather than by violent behavior. J.A. 55. He agreed that whether
the violent behavior might happen again was a “very serious
question,” although “the likelihood [would] decrease substantially
if he is in treatment.” J.A. 57. While testifying on direct
examination that there were no “red flags” in the Butner report, on
cross-examination he agreed that the reference to monitoring for
possible future homicide risk, as well as suicide risk, was such a
red flag. J.A. 65.
The government, while challenging the request for a downward
departure or variance, nonetheless maintained the position taken in
2
In his sentencing memorandum, defense counsel also argued for
a departure under USSG § 4A1.3 on the ground that Category V
substantially overrepresented the seriousness of Humphrey’s
criminal history. J.A. 159-60.
6
its plea agreement that a sentence at the low end of the guideline
range would be sufficient.
The district judge rejected both of these recommendations,
stating thoroughly his reasons for concluding that several of the
factors stated in 18 U.S.C. § 3553(a) warranted a sentence above
the guideline range. While not explicitly departing upward under
USSG § 4A1.3, in rejecting Humphrey’s request for a downward
departure he noted that Humphrey’s criminal record reflected a “lot
of leniency over the years,” that Humphrey’s 12 points were the
maximum before being moved into Category VI, and that certain
points were not awarded because of Guidelines limitations. J.A.
91-92.3
Examining the § 3553(a) factors, the court relied most heavily
on the need to promote respect for the law and the need to protect
the public, noting that Humphrey’s record and his statements to
medical personnel at Butner made it clear he had no respect for the
law and would continue to break it upon release by, e.g., illegal
drug use. This made it inevitable, according to the court, that
Humphrey would have further confrontations with law enforcement
officials and therefore would be “essentially, a powder keg waiting
to explode.” J.A. 93. The court noted that, according to the
3
Ordinarily the propriety of a departure under the Guidelines
should be considered explicitly before a variance sentence is
imposed. See U.S. v. Fancher, 513 F.3d 424, 427 n.1 (4th Cir.
2008).
7
Butner report, it was likely that Humphrey would become depressed
and hostile in the future if not able to live as he chose, thus
becoming likely to threaten himself and others. Finally, the court
also expressed skepticism that Humphrey, if permitted to return to
Parsons, would cooperate with the mental health and substance abuse
treatment he clearly needed.
While the judge thus concluded that the maximum ten year
sentence was warranted, he alleviated that result by awarding
Humphrey credit for the 29 months he had been in state custody,
first on the wanton endangerment charge and then in error, because
the local jail had not timely notified the U.S. Marshal to transfer
Humphrey into federal custody. The final sentence, then, was 91
months in prison.4
II
On appeal, Humphrey challenges only the upward variance
sentence of 91 months, arguing that the district court misapplied
or failed to consider the statutory factors under 18 U.S.C. §
3553(a) and that the extent of the variance was excessive under the
facts of the case, resulting in an unreasonable sentence. We
disagree.
4
This is to be followed by three years of supervised release,
not challenged by the defendant. The fine was waived, and the $100
special assessment was imposed.
8
A
Shortly after oral argument was heard in this case, the
Supreme Court issued its opinions in Gall v. U.S., 128 S. Ct. 586
(2007)and Kimbrough v. U.S., 128 S. Ct. 558 (2007), which together
“explain in detail the mechanics of Booker’s5 remedial holding,”
U.S. v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). As further
explained by this court,
appellate review of the reasonableness of a sentence
focuses on whether the sentencing court abused its
discretion in imposing the chosen sentence. This abuse of
discretion standard of review involves two steps, the
first examines the sentence for significant procedural
errors, the second looks at the substance of the
sentence. The Court in Gall explained that “significant”
procedural errors include errors such as “failing to
calculate (or improperly calculating) the Guidelines
range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence
based on clearly erroneous facts, or failing to
adequately explain the chosen sentence-including an
explanation for any deviation from the Guidelines range.”
Substantive reasonableness review entails taking into
account the “totality of the circumstances, including the
extent of any variance from the Guidelines range.” If
the sentence is within the Guidelines range, we, as an
appellate court, may, but are not required to, presume
that the sentence is reasonable. However, if the
sentence is outside the Guidelines range, we are
prohibited from applying a presumption of
unreasonableness. To hold otherwise would fatally
undermine the Court’s holding in Booker. In reviewing
the substantive reasonableness of the sentence, we
may consider “the extent of the deviation,” but we “must
give due deference to the district court’s decision that
the § 3553(a) factors, on a whole, justify the extent of
the variance.” Even if we would have reached a different
sentencing result on our own, this fact alone is
5
U.S. v. Booker, 543 U.S. 220 (2005).
9
“insufficient to justify reversal of the district court.”
Id. at 473-74 (citations omitted). See also U.S. v. Go, F.3d
, (4th Cir. 2008).
B
In reviewing Humphrey’s sentence, we first note that we find
no procedural errors.6 The court gave notice of its intent to vary
upward. See U.S. v. Fancher, 513 F.3d 424, 430 (4th Cir. 2008). At
the sentencing hearing the court correctly calculated the
Guidelines range, allowed both defense counsel and the government
to argue for the sentence they believed appropriate, carefully
considered the § 3553(a) factors without presuming the Guideline
range was reasonable, and thoroughly explained its reasons for
varying upward. See Pauley, 511 F.3d at 473.
The second question then is whether the sentence is
substantively reasonable: under the totality of the circumstances,
did the 3553(a) factors support a 91-month sentence and justify a
34-month increase above the Guideline range. While this is a
closer issue, after careful consideration of all the factors the
court relied on, in their totality, we hold that the 34-month
upward variance was not unreasonable.
6
The only possible exception is the court’s failure to
consider explicitly the applicability of any upward departure under
the Guidelines before varying upward.
10
Specifically, the court was warranted in its reliance on
Humphrey’s criminal record, the circumstances of the present
offense, his statements to personnel at Butner, and even aspects of
the defense expert’s testimony to conclude, for the reasons the
court explained, that a shorter sentence would not promote respect
for the law or protect the public from the danger presented by
Humphrey’s behavior. The court appears to have focused on the
likelihood of recidivism based on Humphrey’s past conduct, his
statements, and the nature of the current offense, without relying
significantly on Humphrey’s mental illness or need for treatment in
itself as a grounds for variance. Finally, the court ameliorated
its initial variance upward to 120 months by awarding the 29-month
credit for all time served in state custody, even that which was
also credited toward the wanton endangerment sentence.7
III
Admittedly, the significant upward adjustment of a sentence
imposed on behavior at least in part resulting from acknowledged
mental illness is troubling.8 This concern must be balanced,
however, against the clear statutory purposes of sentencing relied
7
Had this reduction not occurred, the outcome of this appeal
might have been different.
8
One circumstance, not presented to the court at sentencing,
that might have supported a lower sentence is the availability of
civil commitment under 18 U.S.C. § 4246 at the end of a sentence if
the defendant continues to present a danger.
11
on by the judge in this case. As noted earlier, “[e]ven if we
would have reached a different sentencing result on our own, this
fact alone is ‘insufficient to justify reversal of the district
court.’” Pauley, 511 F.3d at 474 (quoting Gall, 128 S. Ct. at 597).
Accordingly, for all the reasons stated above, Humphrey’s sentence
is affirmed.
AFFIRMED
12