United States v. Harvey

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-5128

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GEOFFREY HAROLD HARVEY,

Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
Chief District Judge. (2:07-cr-00033-1)

Argued: March 25, 2009 Decided: May 6, 2009

Before MICHAEL, KING, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: David Robert Bungard, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. Lisa Grimes
Johnston, OFFICE OF THE UNITED STATES ATTORNEY, Huntington, West
Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal
Public Defender, Jonathan D. Byrne, Appellate Counsel, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for
Appellant. Charles T. Miller, United States Attorney,
Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Geoffrey Harold Harvey (“Harvey”) appeals the judgment of

the United States District Court for the Southern District of

West Virginia at Charleston, which sentenced Harvey to a term of

309 months’ imprisonment for violation of 18 U.S.C. §

924(c)(1)(A)(iii) (2000). Harvey contends that the sentence is

greater than necessary to comply with the purposes set forth in

18 U.S.C. § 3553(a)(2), and that the district court abused its

discretion when imposing a substantial upward sentencing

variance. For the following reasons, we affirm the judgment of

the district court.

I.

A.

On November 13, 2006, Harvey broke into a residence near

his home in Logan County, West Virginia, and stole a sawed-off

shotgun and another firearm and ammunition. Later that day,

Harvey entered the Family Discount Pharmacy (“pharmacy”) armed

with the stolen firearms. Harvey pointed the sawed-off shotgun

at the cashier and fired into a cabinet next to her, but she was

not injured.

Although many of the customers and employees escaped,

Harvey took four employees and two customers hostage at gunpoint

in a small office of the pharmacy. He ordered one of the

2
hostages to obtain Lortab, Oxycontin, and Xanax pills from the

pharmacy for him. He proceeded to crush and snort the pills, by

all accounts intending to cause his own death.

Harvey then directed one of the hostages to call 911. He

ordered the hostage to tell the 911 operator that “[i]f the

police come he’s going to kill us all.” (JA 70). Harvey fired

the sawed-off shotgun a total of four times during the course of

a two-hour period while he held the hostages captive. Based on

the victims’ reports, he threatened the hostages with death if

they tried to escape. Throughout the ordeal, the hostages

believed that the defendant was going to kill them and prepared

themselves for impending death.

Eventually, the pills that Harvey took began to take

effect, and one of the hostages was able to grab the shotgun and

hit him over the head. Law enforcement officers entered the

pharmacy, rescued the hostages, and arrested Harvey.

B.

Harvey was charged in a two-count indictment in the

Southern District of West Virginia at Charleston. Count One

charged Harvey with armed robbery of a pharmacy in violation of

18 U.S.C. §§ 2118(a) and 2118(c)(1). Count Two charged Harvey

with “us[ing], carry[ing] and discharg[ing] a firearm . . .

during and in relation to a crime of violence . . . while

3
committing a pharmacy robbery . . . [i]n violation of 18 U.S.C.

§ 924(c)(1)(A)(iii).” (JA 10). Harvey pled guilty to both

charges without a plea agreement.

In preparing the Presentence Investigation Report (“PSIR”),

the probation officer concluded that, with regard to Count One,

Harvey had a total offense level of 22. Harvey’s base offense

level was 20 under U.S. Sentencing Guidelines Manual § 2B3.1

(2008), with a four-level increase under § 2B3.1(b)(4)(A)

because victims were abducted to facilitate the offense, a one-

level increase pursuant to § 2B3.1(b)(6) because Harvey stole

controlled substances, and a three-level decrease under § 3E1.1

for acceptance of responsibility, as evidenced by his guilty

plea. Factoring in Harvey’s Category I criminal history level,

his total offense level resulted in a sentencing range of 41 to

51 months as to Count One. With regard to Count Two, the

probation officer concluded that the Guideline sentence was the

minimum ten year sentence statutorily prescribed by 18 U.S.C. §

924(c)(1)(A)(iii) (2006).

According to the PSIR, Harvey had a long history of

substance abuse and mental health issues including a history of

suicidal and violent behavior. He admitted that he is hostile

with others, abusive to his girlfriend, and has raped her.

Harvey has been subjected to involuntary psychiatric

hospitalizations several times throughout the last decade.

4
During a 2006 hospitalization he was diagnosed with bipolar

disorder, polysubstance abuse, attention deficit hyperactivity

disorder, and antisocial personality disorder.

During the sentencing hearing, the district court heard

from four of the hostage victims. Each victim testified that

they feared for their lives throughout the standoff, and

believed that Harvey “would have killed us if we had not gotten

out.” (JA 212). Each victim testified that they had lasting

traumatic emotional effects from the event.

Dr. Ryan Finkenbine testified that Harvey suffered from

several mental health disorders at the time of the offense,

including polysubstance abuse, mood disorder, depression, and

anxiety disorder, and that he did intend to kill himself that

day. Dr. Finkenbine admitted that Harvey’s “severe depression

was self-induced” because “it was caused by the fact that he

chose to use drugs and was addicted to drugs.” (JA 281).

Further, Dr. Finkenbine testified that, according to Dr.

Rosemary Smith’s report, at the time of the offense, Harvey was

not suffering from a mental disease that would have prevented

him from appreciating the wrongfulness or nature of his acts,

and that he was capable of making decisions, forming intent, and

weighing alternatives. Dr. Finkenbine concluded that, although

there were factors that “make[] [Harvey] more dangerous than the

5
general person walking on the street, . . . some factors . . .

make him less dangerous.” (JA 271-72).

The district court sentenced Harvey to 51 months’

imprisonment on Count One, 309 months’ imprisonment on Count

Two, a five year term of supervised release, and ordered Harvey

to pay restitution in the amount of $4,914.24. Although the

district court noted that the sentence for Count Two constituted

a significant upward variance from the ten year statutory

minimum, it concluded that the sentence was appropriate under

the §3553(a) factors because Harvey is “dangerous to himself,”

“dangerous to others,” (JA 292) and because “the offense

demonstrates a complete and utter disregard for the value of

human life.” (JA 293). In arriving at a “just sentence” the

district court also “considered the long-lasting personal and

emotional injuries incurred by the victims,” (JA 295), what it

found was little remorse on the part of Harvey, and ultimately

determined that the sentence was “not greater than necessary to

achieve the sentencing goals as set out in 3553(a).” (JA 297).

The district court stated that “this sentence reflects the

seriousness of the offense, provides just punishment, and will

promote respect for the law. It reflects the nature and

circumstances of the offense . . . and the history and the

characteristics of the defendant . . . .” (JA 297-98).

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 II.

On appeal, Harvey argues that the imposition of a 309-month

sentence for Count Two was unreasonable in light of the purposes

of § 3553(a) because the district court failed to find that his

mental health conditions and the treatability of those

conditions necessitated a sentence on the lower end of the

Guideline range. 1

On appeal, this Court’s review of a district court’s

sentence is deferential and governed by the abuse of discretion

standard. Gall v. United States, ___ U.S. ___, 128 S. Ct. 586,

597 (2007). The Court “must give due deference to the district

court’s decision that the § 3553(a) factors, on a whole, justify

the extent of the variance. The fact that the appellate court

might reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal of the district

court.” Id.

1
Harvey did not appeal the 51-month sentence he received
for Count One, the term of supervised release, or the order of
restitution. Accordingly, none of these are before us in this
appeal and the district court’s judgment as to those matters is
final.

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 A.

The issue in this case is whether the 309-month sentence as

to Count Two is substantively reasonable, 2 or whether the

district court abused its discretion in deciding that the §

3553(a) factors supported an upward variance from the ten year

statutory minimum sentence. Id. For sentences outside of the

Guidelines range, a district court “must consider the extent of

the deviation and ensure that the justification is sufficiently

compelling to support the degree of the variance. . . . a major

departure should be supported by a more significant

justification than a minor one.” Gall, 128 S. Ct. at 597.

Although we may presume on appeal that a sentence imposed within

the properly calculated Guidelines range is reasonable, United

States v. Go, 517 F.3d 216, 218 (4th Cir. 2008), we may not

apply a presumption of unreasonableness to sentences outside the

Guideline range. Gall, 128 S. Ct. at 597. Instead, the Supreme

2
The initial matter for appellate review is to ensure that
the sentencing court did not commit procedural error in
calculation of the sentence, such as “failing to calculate (or
improperly calculating) the Guideline range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] §
3553(a) [(2006)] 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.” Gall, 128 S. Ct. at 597. Appellant does
not argue procedural error on brief, nor is the argument
encompassed in the issue for review; it is therefore waived. See
Cavallo v. Star Enterprise, 100 F.3d 1150, 1152 n.2 (4th Cir.
1996). Regardless, no procedural error appears in the record.

8
Court in Gall explained that the reviewing court should “take

into account the totality of the circumstances, including the

extent of any variance from the Guidelines range.” Id.

Harvey argues that “[t]he district court abused its

discretion by imposing a sentence 157% greater than that

recommended by the Guidelines . . . .” (Br. 14). He contends

that his sentence is substantively unreasonable because it is

greater than necessary to comply with the purposes of § 3553(a).

Specifically, it is greater than needed to “afford
adequate deterrence to criminal conduct,” . . .
“protect the public from further crimes of the
defendant,” where the mental health issues that
underlined Harvey’s behavior are treatable; and
“reflect the seriousness of the offense” and “to
provide just punishment for the offense,” where the
offense, while serious and dangerous, did not result
in any physical injury.

(Br. 19 (quoting § 3553(a)(2)) (internal citations omitted)).

Harvey contends that his “criminal conduct was the

culmination of a long history of self-destructive behavior

fueled by mental illness,” and “[t]hat mental illness, which

undisputed expert testimony showed was treatable, was not

adequately considered by the district court . . . .” (Br. 14).

Harvey asserts that the need to protect the public and deter

criminal conduct is diminished because of the treatable nature

of his mental illness. Relying on a Seventh Circuit opinion,

United States v. Miranda, 505 F.3d 785 (7th Cir. 2007), Harvey

claims that the district court failed to sufficiently examine

9
how Harvey’s mental health, and specifically his potential for

treatment, relate to the factors under § 3553(a).

B.

The record reflects that the district court considered the

§ 3553(a) factors, as well as the testimony of Dr. Finkenbine,

and made “an individualized assessment based on the facts

presented.” Gall, 128 S. Ct. at 597. The district court focused

on several main points in arriving at the sentence for Count

Two. First, the court emphasized the violent nature of the

offense. Second, the court stressed the impact on the victims

and the long-lasting emotional effects. Lastly, the court

sufficiently and comprehensively evaluated Harvey’s own

characteristics, including his lack of remorse, his capacity for

violence, and the factor of his mental health.

The district court described the factual details of the

offense, including that Harvey stole the weapons, purposefully

fired the shotgun to show that he “meant business,” and that he

“repeatedly threatened to kill the hostages if police were

summoned or a hostage attempted to escape . . . .” (JA 292-93).

Harvey fired four shots while “he held those six hostages in a

very small and cramped office.” (JA 293). The court concluded

that “Harvey’s crime, the nature of it, . . . demonstrates a

complete and utter disregard for the value of human life. The

10
offense was deliberate. It was malicious. Throughout the

ordeal, the hostages believed that the defendant was going to

kill them and prepared themselves for impending death.” (JA

293). The district court pointed out that the sentence imposed

was based on these considerations, and that the court

“considered the effects of the violent abduction” in determining

an appropriate sentence. (JA 293).

The district court also placed great weight on the

testimony of the victims of Harvey’s crime, stating that it

“considered the long-lasting personal and emotional injuries

incurred by the victims in arriving at a just sentence.” (JA

295). The court noted that “[w]ithout exception, each hostage

believed they would be murdered. Each victim continues . . . to

suffer from the trauma according to their own words in court.”

(JA 295-96). Specifically, the court indicated that one victim

could not return to work, another “continues to receive mental

health counseling and is prescribed both anti-depressants and

anxiety medication,” and all of the victims “report being afraid

of crowds, public places.” (JA 296). The pharmacist “reiterated

that Mr. Harvey not only changed the victims’ lives, but in the

end showed absolutely no remorse.” (JA 296).

Even though Harvey received a reduction of one level for

acceptance of responsibility because of his guilty plea, the

court found he did not show any meaningful level of remorse.

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During the hearing, Harvey was quoted as stating, in reference

to his crime, “[i]t wasn’t me. It was the other me.” (JA 296).

The district court also cited a victim’s testimony that Harvey

made the “unrepentant statement” that he “would have been meaner

so, so he could have controlled them more . . . given another

opportunity.” (JA 296).

The district court also properly took into account Harvey’s

characteristics, as related by Dr. Finkenbine and the medical

records. 3 The court noted Harvey’s “history of aggressive and

suicidal behaviors which have led to several involuntary

psychiatric hospitalizations” (JA 294) and Harvey’s “severe and

long-term polysubstance abuse.” (JA 294). In particular, the

court reviewed “the medical histories submitted as evidence” (JA

298) and Harvey’s own statements as to his mental health and

3
Harvey contends that the district court misconstrued at
least one of Dr. Finkenbine’s statements, and that “[t]o the
extent that the district court’s sentence was based on its
misunderstanding of Dr. Finkebine’s conclusion, it was an abuse
of discretion . . . .” (Br. 22). The district court concluded
that Dr. Finkenbine’s opinion was that Harvey “poses a greater
risk for the likelihood of dangerous behavior than a person in
the general population.” (JA 294). Dr. Finkenbine testified
that some factors “make[] [Harvey] more dangerous than the
general person walking in the street, and some factors . . .
make him less dangerous. That is, he does not fall in a group
of more dangerous people.” (JA 271-72). This statement is
confusing and open to interpretation. The district court did
not clearly err in concluding that Harvey poses a greater risk
of dangerous behavior than someone in the general population,
based on Dr. Finkenbine’s conclusion that “some factors” do make
him “more dangerous than the general person.”

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capacity for extreme violence. The court cited statements by

Harvey that he is “uncontrollable at times, bad temper, hurt

myself all the time [sic],” that he “has bad thoughts, wants to

hurt people, and also beat a man to death with a ball bat,” and

that he reported as far back as 1975 that he “had a very bad

temper, that he drinks all the time, and that he hits people.”

(JA 294-95). The district court also noted that the record

demonstrates a “history of raping his girlfriend and a history

of domestic violence.” (JA 294). Any contention that the

district court did not consider Harvey’s characteristics,

particularly his mental health and history of mental illness, is

without merit.

After engaging in appropriate fact-finding, the district

court referenced the § 3553(a) factors, their application to

Harvey, and noted that the court “carefully considered whether

the guideline sentence would be sufficient to meet the ends of

justice,” concluding that “this severe sentence is required to

meet the ends of justice.” (JA 297). The court “considered the

horrific nature of the crime, a lengthy period of being held

captive and subjected to threats of death . . ., [and] the

lasting effect of the criminal conduct upon the victims . . . .”

(JA 297). The court then concluded that the sentence given

promoted the relevant statutory goals because it “reflects the

seriousness of the offense, provides just punishment, and will

13
promote respect for the law. It reflects the nature and

circumstances of the offense . . . and the history and the

characteristics of the defendant . . . .” (JA 297).

C.

Harvey finally argues that “the district court in this case

did not sufficiently examine how Harvey’s mental illnesses and

their potential response to treatment interact with § 3553(a)’s

command to consider the issue of deterrence.” (Br. 20).

Consequently, Harvey contends the district court’s variant

sentence amounted to an abuse of discretion and cites to the

Seventh Circuit decision in Miranda, which held, under the facts

of that case, that “[i]f the mental illness is treatable . . .

the goal of incapacitation may not be advanced by a heavy

sentence.” Miranda, 505 F.3d at 793. Harvey posits that

Miranda is applicable to his case because Dr. Finkenbine

“testified that had Harvey not been suffering from mental

illness, it was unlikely that he would have committed the

offenses” and that he “testified that treatments were available

to address Harvey’s illnesses.” (Br. 20).

In Miranda, the defendant pled guilty to bank robbery and

argued for a below-guidelines sentence because he “suffered from

severe mental illness and that his mental illness was a

substantial factor in committing his crime.” Miranda, 505 F.3d

14
at 789-90. The psychiatric report introduced at sentencing

diagnosed Miranda with Schizoaffective Disorder and the

psychiatrist testified that Miranda suffered from auditory

hallucinations, which were not caused by drug use, and he was

hallucinating at the time of the crime. Id. at 788.

We find Harvey’s argument unpersuasive. Not only is

Miranda not persuasive authority in this Circuit, it is also

readily distinguishable from the case at bar.

First, Miranda argued specifically to the district court

for a below-Guidelines sentence based on his diminished capacity

under § 5K2.13. 4 The Seventh Circuit found that the district

court “did not directly address these non-frivolous arguments”

Miranda, 505 F.3d at 786, and concluded that “when a court gives

little or no attention to the defendant’s principal argument

when that argument ‘was not so weak as not to merit discussion,’

we cannot have confidence that the judge adequately considered

the section 3553(a) factors.” Id. at 792 (citations omitted).

By contrast, Harvey specifically disclaimed any diminished

4
Although “[t]he concept of departures has been rendered
obsolete in post-Booker sentencing . . . the district court may
apply those departure guidelines by way of analogy in analyzing
the section 3553(a) factors.” Miranda, 505 F.3d at 792 (citing
United States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005)).

15
capacity departure 5 under the Guidelines at the sentencing

hearing: “we aren’t asking for a departure on diminished

capacity or any other mental health issue.” Had Harvey asked

for such a departure, § 5K2.13 would not provide him any relief

because a diminished capacity departure does not apply if

reduced capacity “was caused by the voluntary use of drugs . . .

.” § 5K2.13. By all accounts Harvey was a drug addict, and the

uncontroverted testimony of his own expert stated that “the

major cause of his severe depression was his drug use.” (JA

275).

Miranda is also distinguishable from the instant case

because the defendant there established his crime was caused by

his diagnosed condition because he was hallucinating at the time

he committed it. Moreover, the hallucinations were not self

induced by the defendant’s intentional acts such as Harvey’s

intentional drug use. See Miranda, 505 F.3d at 789. By

contrast, there is no evidence Harvey’s crime was caused by any

diagnosed condition. To the contrary, the opinion of one

psychologist was that Harvey “had no mental disease or defect

which would have prevented him from appreciating the

5
In his Sentencing Memorandum, Harvey specifically stated
that he “would ask this Court to consider imposing a sentence at
the low end of his advisory guideline range for the robbery
offense (Count One) and the mandatory minimum sentence of ten
years for . . . Count Two . . . .” (JA 50).

16
wrongfulness of his acts.” (JA 276). Thus, not only is Miranda

distinguishable and inapplicable to the case at bar, the earlier

recital of the district court’s review of Harvey’s medical

history supports the conclusion that we can be “confident that

the court gave these arguments adequate consideration.” See

Miranda, 505 F.3d at 792-93.

Accordingly, we conclude the district court did not abuse

its discretion in rendering the 309-month sentence on Count Two.

III.

For the foregoing reasons, the district court’s judgment is

AFFIRMED.

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