United States v. Pinson

FILED
United States Court of Appeals
Tenth Circuit

September 17, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff–Appellee,
v. Nos. 07-6013; 07-6079; 07-6081
JEREMY VAUGHN PINSON,

Defendant–Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NOS. CR-06-114-1-R; CR-07-023-1-R)

Julia C. Summers, Assistant Federal Public Defender, Oklahoma City, Oklahoma,
for Defendant–Appellant, in No. 07-6013 & 07-6079.

Joseph L. Wells, Oklahoma City, Oklahoma, for Defendant–Appellant, in No. 07-
6081.

James F. Robinson, Assistant U.S. Attorney (John C. Richter, United States
Attorney, with him on the briefs), Oklahoma City, Oklahoma, for Plaintiff-
Appellee.

Before BRISCOE, McKAY and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.
 Mr. Jeremy Vaughn Pinson, a mentally-ill inmate with a propensity for

making grandiose threats, was convicted of one count of threatening to harm the

President of the United States in violation of 18 U.S.C. § 871. Following his

conviction, but prior to sentencing, he falsely told the district court that another

inmate intended to kill his sentencing judge. Shortly after this, in a letter to the

Chief Judge for the Western District of Oklahoma, he threatened to injure a juror

who had served on his trial. He was charged with, and pleaded guilty to, one

count of knowingly and willfully making a materially false, fictitious, and

fraudulent statement to a United States Marshal in violation of 18 U.S.C. §

1001(a)(2), and one count of mailing threatening communications in violation of

18 U.S.C. § 876(c). At sentencing, the district court expressed concern over the

danger Mr. Pinson posed to the public. The court varied upward and imposed the

statutory maximum on each of the three counts, to be served consecutively, for a

sentence of 240 months imprisonment. He now appeals his conviction for

threatening the President of the United States, as well as his above-Guidelines

sentence given for the three different convictions. We affirm both his conviction

and sentence, though not without some qualms about the latter.

I. Facts

On August 17, 2005, while incarcerated at the Lawton Correctional Facility

in Lawton Oklahoma, Mr. Pinson sent President George W. Bush a letter through

the United States Mail stating “YOU WILL DIE SOON! DIE BUSH DIE.”

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Indictment at 1. On May 17, 2006, following an investigation by the United

States Secret Service, Mr. Pinson was indicted for “knowingly and willfully

threaten[ing] the President of the United States by depositing in the United States

Mail a letter threatening to kill and inflict bodily harm upon the President.”

Indictment, at 1; see also 18 U.S.C. § 871(a). A Federal Public Defender was

appointed to the case; Mr. Pinson filed a motion for hybrid representation, which

the court denied.

Because Mr. Pinson had previously exhibited signs of severe psychiatric

and other mental health problems, his competency to stand trial was in doubt. He

was evaluated in Fort Worth, Texas; during this time, he attempted suicide several

times and was placed on suicide watch. The Forensic Staff determined that “Mr.

Pinson had not experienced any significant period of effective psychological

functioning since early childhood,” Dist. Dkt. Doc. 27, at 9, but nonetheless

determined that he was competent to stand trial, id. at 1. On September 28, 2006,

the district court held a fifteen-minute hearing and found Mr. Pinson competent;

the court set the case for the November trial calendar and subsequently granted

his motion for self-representation.

The jury trial lasted from November 13 to 14. Mr. Pinson did not deny

sending the letter, but testified that the letter was not a threat but rather a warning

about a code he had cracked predicting that the President would be killed by some

third party. The jury apparently did not agree, and it found Mr. Pinson guilty.

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 Mr. Pinson’s confinement between his conviction and sentencing did not go

smoothly. He had many mental breakdowns and committed several disciplinary

infractions. He also falsely informed a Deputy United States Marshal that an

inmate at the jail intended to kill his sentencing judge and mailed another district

judge a letter threatening to injure a juror from his trial. On February 6, 2007, he

was charged in a two-count indictment with making materially false statements in

violation of 18 U.S.C. § 1001(a)(2) and making a threat to injure through the

United States’ mail in violation of 18 U.S.C. § 876(c). He pleaded guilty to both

counts on March 16, 2007.

Prior to a consolidated sentencing on all the convictions, the court gave the

parties notice of its intention to consider an upward variance based on 18 U.S.C.

§ 3553(a)(2)(C)—the need to protect the public from Mr. Pinson’s further crimes.

Mr. Pinson’s sentencing was held on April 2, 2007. For Mr. Pinson’s violation of

18 U.S.C. § 871(a) (Pinson I), the Presentence Investigation Report (PSR)

calculated a base offense level of 12; after a two level enhancement for

threatening the juror pursuant to U.S.S.G. § 3C1.1, the total offense level was 14.

Mr. Pinson’s prior criminal history placed him in Category VI, giving him a

guideline range of 37–46 months. For Mr. Pinson’s other violations, (Pinson II),

the PSR found a total offense level of 23 and a criminal history level of IV,

giving him a guidelines range of 70–87 months. At sentencing, based on his

sentence in Pinson I, the district court added two additional criminal history

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points pursuant to U.S.S.G. § 4A1.1(b). This placed Mr. Pinson within a

guidelines range of 84–105 months.

Several witnesses testified at the sentencing hearing. First, United States

Secret Service Agent Lori Bynum, the investigating officer, testified for the

government in support of the upward variance. She testified about a letter Mr.

Pinson had sent to his Aunt Renee, where he described violent acts he had

committed against animals and people. She also described additional threats Mr.

Pinson made in letters, including a threat to “drive an ammonium nitrate-filled

garbage truck into 210 Park Avenue,” and a threat to “terroriz[e] the nation with

roadside bombs, then place them in schools, elementary schools.” R. Vol. V at

30, 33. Agent Bynum agreed with the prosecutor that a “theme of violence”

appeared throughout Mr. Pinson’s letters. Id. On cross-examination, Agent

Bynum admitted that she could not corroborate that Mr. Pinson had actually

carried out any of these threats, nor could she confirm whether Mr. Pinson had

committed the crimes about which he had bragged. She also admitted that she

had not reviewed Mr. Pinson’s mental health history and treatment beyond her

discussion with Mr. Pinson. Id. at 37, 39–40.

After the government presented its evidence, psychologist Dr. Melvin

Gerald Preisz testified for the defense. Prior to sentencing, Dr. Preisz examined

Mr. Pinson and reviewed psychological reports from various mental facilities

where Mr. Pinson had previously received treatment and evaluations. He also

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reviewed Mr. Pinson’s letters. Dr. Preisz concluded that Mr. Pinson suffered

from severe and chronic posttraumatic stress disorder (PTSD) stemming from

long years of abuse history, not having any real home, not having any
furniture, moving endlessly from one place to another . . . having a
grandfather that was so abusive and so tortuously cruel and
schizophrenic himself and an alcoholic himself, that he—that he left
Mr. Pinson, at times, locked out of his own house in the middle of
the winter to freeze, almost to death . . . and to [sic] beat him in ways
that were unmerciful.

Id. at 57–58. He also found that Mr. Pinson exhibited some signs of malingering,

anti-social personality disorder with severe borderline characteristics, and an

inability to relax, which Dr. Preisz believed led to the letter-writing and threat-

making. Id. at 48–51. He confirmed that Mr. Pinson had suicidal tendencies and

ideation, id. at 52, and expressed his surprise that Mr. Pinson hadn’t done any

worse harm, because “he’s been so damaged in some many different ways,” id. at

53. Dr. Preisz continued:

Although I certainly don’t condone any of what he’s done and
certainly [am] not trying to rationalize the way—the very scary
letters that he’s written in the past and a very scary history that could
have been so much more worse, because the damage that was done to
him is beyond most people’s comprehension. And they would never
realize that the kind of deprivation he had in childhood was so severe
that even I find it hard to believe and I’ve had 40 years of experience
and I’ve seen cases that are extremely severe and extremely
dangerous, and very violent.

Id. at 53–54. He also stated that Mr. Pinson’s condition was treatable, but that

being in a jail without activities for [Mr. Pinson] is a cruelty, because
he actually relaxes when he has work. He’s one of those paradoxical
types that he needs to be worked a lot, because standing in jail, he

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 paces and goes over and over all of the people that he feels have been
unfair to him and abusive, including his early maternal grandfather,
who beat him in ways and treated him in ways that even
you don’t see in movies . . . .

Id. at 55. “[W]ith the reservation that they find the right kind of treatment

program, . . . and with the provision that he can find it in himself to take the

medication that he does need and that a competent psychiatrist with lots of

experience can provide . . . I do see him as being able to learn to deal with his

intense emotions, his need for revenge, and his need to address people who are

abusive to himself and others.” Id. at 55–56. Dr. Preisz recommended at least

four to eight years of intensive, structured therapy. Id. at 59. On cross-

examination he stated that without medication, treatment, and incarceration, Mr.

Pinson had the “potential to be dangerous,” and that the danger was “moderately

high.” Id. at 73.

Finally, several witnesses addressed the court on Mr. Pinson’s behalf. His

mother described the long history of schizophrenia in her family and some of the

delusions that he experienced. She explained that “when he was hospitalized and

on medication . . . he has thrived and done so much better. Unfortunately, my job

transferred me and I had to take him away from the situations where it really were

[sic] more positive for him.” Id. at 77–78. She also informed the court of several

of his prior diagnoses, including bipolar disorder, schizophrenia, ADD, and

ADHD. Id. at 80.

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 Defense counsel encouraged the district court to “consider from the record

that Mr. Pinson has [had] a very troubled history from the time he was a young

child,” id. at 82, and counsel also reminded the court that Mr. Pinson’s last

confirmed violent act occurred when he was 13—over seven years before. Id. at

83. Mr. Pinson also addressed the court and expressed his remorse at the poor

judgment he had exhibited. Id. at 86.

After considering all of the testimony and evidence, the district court stated

that it found the case very difficult: “I’m very sympathetic to you for your

unfortunate background and apparently it was a very unfortunate background.

And I recognize your intelligence . . . . You’re very intelligent, you’re very

capable, you’re very articulate, and it’s a shame to see that wasted like this.” Id.

at 87. The court found that while “some of those letters [Mr. Pinson] sent could

be merely hyperbole, I would think that, but for your history of violence. I think

the public needs to be protected from you, unfortunately.” Id. at 88. The district

court sentenced him to the statutory maximum in Pinson I, a term of

imprisonment of 60 months. For largely the same reasons, the court sentenced

Mr. Pinson to the statutory maximum on both counts in Pinson II, to be run

consecutively, resulting in a term of imprisonment of 180 months. The district

court again varied upward and ran the sentences in Pinson I and II consecutively,

for a total sentence of 240 months’ imprisonment.

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 Mr. Pinson appeals the district court’s sentence. Additionally, he brings

two trial-related complaints: first, that the court violated his right to compulsory

process when, the day of trial, it reversed its prior ruling and allowed the

introduction of evidence about Mr. Pinson’s intent without granting a

continuance; and second, but relatedly, that the jury instructions impermissibly

focused on his intent. We deny all three claims and affirm the district court’s

decision.

II. Trial Claims

Prior to trial, both the government and Mr. Pinson sought to introduce

evidence about his intent when he wrote the letter to President Bush. According

to Mr. Pinson, his proffered evidence would demonstrate that he intended the

letter as a warning against a third party’s planned attack; the government’s

evidence would show that not only did Mr. Pinson intend that the letter be

understood as a threat, but that he intended to actually carry out that threat. At a

November 1 pre-trial motions hearing, the district court held that the test for

whether a statement qualified as a “true threat,” a requirement for conviction

under 18 U.S.C. § 871, was an objective one, based solely on a reasonable

recipient’s perception upon reading the letter. Because both the government’s

and Mr. Pinson’s proffered evidence was irrelevant to this reasonable recipient

test, the district court excluded it. See R. Vol. III. at 48–49.

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 On November 9, 2006, the government filed a “Motion to Reconsider

Testimony,” citing the Tenth Circuit’s uniform jury instructions. These

instructions require the jury to find that “the defendant understood and meant the

words . . . as a threat,” and that “the defendant . . . wrote . . . the words

knowingly and willfully.” Tenth Circuit Criminal Pattern Jury Instruction 2.36

(2006 ed.). After examining these instructions, the district court reversed its prior

ruling the morning of trial and admitted the government’s evidence. See R. Vol.

IV at 3–4.

A. The District Court’s Failure to Grant a Continuance

Mr. Pinson first argues that the court’s reversal of its own ruling

immediately before trial, combined with its failure to grant a continuance, made it

impossible to subpoena witnesses who would testify favorably about his lack of

intent. He therefore claims that his right to compulsory process was violated.

The first question we must face is whether this error, if it was error, was

preserved. Immediately after changing its ruling, the trial judge asked Mr. Pinson

if he wished to call the witness he had previously identified as relevant to his

intent: “Now, Mr. Pinson, you had requested an inmate witness that you thought

was relevant on this issue. Is that somebody that’s necessary?” Id. at 3. In

response, Mr. Pinson informed the court that “I think at this point it’s too late.

And this person’s testimony just would not be substantial enough to allow the

jury to decide whether a person thought the letter was a threat or not.” Id. at 4.

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 Appellate counsel, at oral argument, asked that we treat Mr. Pinson’s

response to the court—“at this point it’s too late”—as a request for a continuance.

While we construe a pro se defendant’s submissions liberally, Ledbetter v. City of

Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003), this proffered reading is

beyond plausibility. Had Mr. Pinson said nothing else in addition to “it’s too

late,” counsel’s argument might have some merit, as this statement could be

interpreted as an attempt to inform the court that, given the close proximity to

trial, subpoenaing the witness was impossible without a continuance. Mr. Pinson,

however, did not only reply that it was “too late.” He also stated that “this

person’s testimony just would not be substantial enough to allow the jury to

decide whether a person thought the letter was a threat or not.” R. Vol. IV at 4.

This was an affirmative reassurance to the court that there was no testimony

available that could assist him on the intent element. In no way can these

statements, taken in totality, be construed as a request for the court to continue

the trial.

The question then becomes whether it was plain error for the district court

not to grant a continuance sua sponte, and despite Mr. Pinson’s assurance that the

witness could not be substantial enough to help the jury. We think not. To be

plain error, a district court’s decision must have plainly been in error based on the

evidence before it. See United States v. Redcorn, No. 06-5206, 2008 WL

2332005, *13 (10th Cir. June 9, 2008). Even assuming Mr. Pinson would have

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been entitled to a continuance if he had asserted that a potential witness was

important and that he needed time to obtain his presence, it was not error for the

court to proceed with the trial when it had no reason to think a potential witness

could affect the outcome.

Nor has Mr. Pinson shown that the testimony he would have presented was

“material and favorable” to his case. United States v. Valenzuela-Bernal, 458

U.S. 858, 867 (1982). While his brief lists several witnesses that he wished to

call, Aplt.’s Br. 15, he has not provided us with any information regarding what

their testimony would have entailed or how their testimony would have improved

his case. Counsel at oral argument also shed no light on this matter. “Though we

do not require detailed descriptions of what has been lost,” Mr. Pinson must still

make a “‘plausible showing’ that the lost testimony was material and favorable.”

United States v. Caballero, 277 F.3d 1235, 1242 (10th Cir. 2002) (quoting

Valenzuela-Bernal, 458 U.S. at 873). Mr. Pinson has fallen short of this burden,

and we therefore deny his claim that his Sixth Amendment rights were violated.

B. The Jury Instructions

Mr. Pinson next argues that the district court erred in instructing the jury

that it must find that “the defendant understood and meant the words [mailed]

[written] [said or uttered] as a threat.” Tenth Circuit Pattern Criminal Jury

Instruction 2.36. According to Mr. Pinson, this instruction required the jury to

consider his state of mind when he wrote the letter, which is not relevant under

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the Tenth Circuit’s interpretation of 18 U.S.C. § 871. Appellant argues that this

erroneous instruction was problematic, as it allowed the government to introduce

extremely prejudicial testimony against him. Mr. Pinson lodged a timely

objection to the instruction in district court. R. Vol. IV at 141–42. We review

the instructions as a whole de novo to determine whether they accurately

informed the jury of the governing law. United States v. McClatchey, 217 F.3d

823, 834 (10th Cir. 2000). We then review any instructions offered by the

defendant and rejected by the court. A defendant is entitled to an instruction on

his theory of the case if the instruction is a correct statement of the law, and if he

has offered sufficient evidence for the jury to find in his favor. We review a

district judge’s refusal to issue a requested instruction under this standard for

abuse of discretion. United States v. Crockett, 435 F.3d 1305, 1314 (10th Cir.

2006).

Section 871 states that

whoever knowingly and willfully deposits for conveyance in the mail
or for a delivery from any post office or by any letter carrier any
letter, paper, writing, print, missive, or document containing any
threat to take the life of, to kidnap, or to inflict bodily harm upon the
President of the United States, . . . or knowingly and willfully
otherwise makes any such threat against the President, . . . . shall be
fined under this title or imprisoned not more than five years, or both.

18 U.S.C. § 871 (emphasis added).

Our Court, like most others, employs an objective standard to evaluate

whether a defendant “willfully” made a threat, holding that the “willfulness”

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requirement is satisfied when “those who hear or read the threat reasonably

consider that an actual threat has been made. It is the making of the threat, not

the intention to carry it out, that violates the law.” United States v. Dysart, 705

F.2d 1247, 1256 (10th Cir. 1983); see also United States v. Hart, 457 F.2d 1087,

1090 (10th Cir. 1972); Rothering v. United States, 384 F.2d 385 (10th Cir. 1967).

Mr. Pinson argues that the jury instructions violated the objective standard

and instead mirrored the minority, subjective intent standard, which requires the

government to demonstrate that the threat was actually “made with a present

intention to do injury to the President.” United States v. Patillo, 438 F.2d 13,

15–16 (4th Cir. 1971). The jury instructions read:

To find the defendant guilty of this crime you must be convinced that
the Government has proved each of the following beyond a
reasonable doubt:

First: The Defendant mailed or wrote the words alleged to be the
threat against the President of the United States as charged in the
Indictment;

Second: The Defendant understood and meant the words mailed as a
threat; and

Third: The Defendant mailed or wrote the words
knowingly and willfully.

Dist. Dkt. Doc. 65, at 16. The second element, according to Mr. Pinson, delves

into his subjective intent in a manner that is impermissible under Dysart.

We do not agree. The burden is on the prosecution to show that the

defendant understood and meant his words as a threat, and not as a joke, warning,

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or hyperbolic political argument. But a threat violates the law even if the

defendant had no actual intention, or even ability, to carry it out. If the school

bully tells his victim to give him his lunch money or he will give him a black eye,

these words are a threat even if the bully is bluffing. By contrast, if one actor

tells another, “break a leg,” that is not likely to be meant as a threat. The proper

question for the jury is whether the defendant meant his words as a threat and

whether a reasonable person would so regard them. The instruction here

conveyed at least the first element of that meaning. 1 It does not imply that the

defendant must be shown to have intended to carry out the threat, but it does

require that the defendant understood and meant his words to be a threat.

Even if the instruction were erroneous, however, Mr. Pinson’s claim still

must fail. Even if the instructions did delve into his subjective intent to carry out

the threat, this was an added burden placed on the government. It required the

1
Appellant does not complain that the instruction fails to direct the jury to
consider whether a reasonable person would regard the words as a threat. The
pattern instructions used by the Ninth Circuit emphasize the probable perception
of the person who receives the threat rather than the meaning or understanding of
the defendant:
First, the defendant intentionally threatened, either in writing or
orally, to [kill] [injure] [kidnap] the President of the United States;
and
Second, under the circumstances in which the threat was made, a
reasonable person would foresee that it would be understood by
persons hearing or reading it as a serious expression of an intention
to [kill] [injure] [kidnap] the President of the United States.
Ninth Circuit Model Jury Instructions 8.39. We are inclined to think that both
pattern instructions, that of the Ninth and that of the Tenth, contain valuable
elements not contained in the other.

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government to prove an additional element, namely, Mr. Pinson’s actual intention

when he made the threats. An incorrect instruction that is beneficial to the

defendant is generally not considered prejudicial. See Killian v. United States,

368 U.S. 231, 258 (1961).

In some rare circumstances, a jury instruction that erroneously places an

additional burden on the prosecution may be challenged by the defendant on

appeal on the ground that “the jury instructions impermissibly confused the jury

as to the issue before it.” See United States v. Romero, 136 F.3d 1268, 1273

(10th Cir. 1998), citing Michaud v. United States, 350 F.2d 131, 133–34 (10th

Cir. 1965). In this case, there no evidence of jury confusion. There was

sufficient evidence to support every element of the crime charged, even if the

instructions directed the jury to consider Mr. Pinson’s subjective intent. Mr.

Pinson admitted to writing, and understanding the meaning of, the words “YOU

WILL DIE SOON! DIE BUSH DIE!” Indictment, at 1. The jury could easily

have found willfulness under an objective standard—a reasonable recipient

certainly might interpret this statement as a threat on his life. See Dysart, 705

F.2d at 1256 (reasonable recipient standard). Additionally, there was sufficient

evidence to satisfy the (erroneous) subjective standard, as Agent Bynum testified

to Mr. Pinson’s statements that he intended to carry out the threats he made. R.

Vol. IV at 59–60. However the jury instructions might have been understood,

there was evidence to support a conviction. Cf. Michaud 350 F.2d at 133–34

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(overturning a conviction where the jury was instructed that the maker of threats

“intended to carry them out,” but there was no evidence in the record to support

such a finding).

III. Sentencing Claims

Mr. Pinson also claims that his above-Guidelines sentence was

unreasonable. In Pinson I, his Guidelines range was 27–33 months; the district

court sentenced him to the statutory maximum of 60 months. In Pinson II, his

Guidelines range for both counts was 84–105 months. The district court

sentenced him to the statutory maximum for each count: 60 months for Count 1

and 120 months for Count 2. Moreover, contrary to the Guidelines’

recommendation that the sentences run concurrently, see U.S.S.G. § 5G1.2, the

district court determined that all three sentences must run consecutively, for a

total of 240 months. This 240-month sentence is thus a 135-month increase from

the high end of the recommended Guidelines range.

Under 18 U.S.C. § 3553(c), the court must state, “in open court the reasons

for its imposition of the particular sentence, and, if the sentence—is . . . outside

the [guidelines ] range, . . . the specific reason for the imposition of a sentence

different from that described, which reasons must also be stated with specificity

in the written order of judgment and commitment.” See United States v. Angel-

Guzman, 506 F.3d 1007, 1016–17 (10th Cir. 2007). The court must also address,

in its statement of reasons, the material, non-frivolous arguments made by the

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defendant. Id.; United States v. Hall, 473 F.3d 1295, 1314 (10th Cir. 2007);

United States v. Sanchez-Juarez, 446 F.3d 1109, 1115–16 (10th Cir. 2006). The

district court is not required to recite “any magic words” to demonstrate that it

has considered all of the relevant arguments, but we will not “presume the district

court weighed a party’s arguments in light of the § 3553(a) factors where the

record provides no indication that it did so.” Sanchez-Juarez, 446 F.3d at 1116.

Mr. Pinson argues that the district court failed to provide specific reasons

for its imposition of a sentence so substantially higher than the Guidelines

recommended. In particular, he argues that the district judge relied too heavily on

conduct he engaged in while a juvenile in concluding that his threats of violence

were more than hyperbole and that the judge failed to explain why he rejected the

recommendation of the mental health expert that he be given four to eight years of

“intensive, structured therapy” rather than 20 years of mere imprisonment. In his

briefs, Mr. Pinson characterizes these arguments as going to the issue of

substantive unreasonableness. In Gall v. United States, 128 S. Ct. 586, 597

(2007), the Supreme Court clarified what constitutes procedural error and what

falls under substantive unreasonableness review. Procedural review includes

“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.” Id. Gall was

decided after Mr. Pinson filed his brief; we therefore give him the benefit of the

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doubt and construe these claims as procedural unreasonableness arguments. We

also consider Mr. Pinson’s argument that his sentence was substantively

unreasonable.

A. Adequacy of the Court’s Explanation

Insofar as Appellant claims that the district court’s explanation for his

above-Guidelines sentence was generally insufficient under 18 U.S.C. § 3553(c),

we cannot agree. The district court thoroughly explained that the upward

variance was needed to protect the public from Mr. Pinson, and it more than

adequately articulated the factors that drove it to this conclusion:

at the age of 13 . . . you chased your mother in her bathroom and
struck the door with an axe; at age 13, you sent your mother a
threatening letter; at age 13, you sent a letter to the President
threatening the President at that time; at age 13, you were convicted
of assault and battery against an employee of a juvenile facility; at
age 16, you were convicted of break [sic] and entering. This
involved breaking into a congressional candidate’s office and writing
such words as “whore, slut” and “nigger lover” on the walls and stole
[sic] equipment. You have attempted suicide on at least four
occasions. In 1996, you were hospitalized for psychiatric care and
you had to be secluded from making threats to the staff. While
currently incarcerated, you have had at least 22 misconduct write-
ups, including grabbing feces out of a toilet and smearing it and
blood on yourself and on the walls. We know about the letters that
were testified to by the witness. From the psychiatric report, the
following information: “Mr. Pinson reported that his mother was
afraid of him because he tried to stab her and put ipecac”—whatever
that is—“in her food.” In an e-mail of August 30, 2005, Mr.
Pinson’s mother wrote, “I would not be surprised if someday he
either kills me or does significant harm to me.” You’ve reported
having significant problems in the sixth grade when you attempted
to—or threatened to blow up the school. You were suspended from
school for being disruptive at the age of 10. At age 13, you stabbed

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 a schoolmate 15 times with a pen. Mr. Pinson reported he always
liked to play with fire and began making bombs around age 15. He
stated he enjoyed killing and torturing animals, like dogs, cats, birds
and insects, because he thought it was funny. And he also added, “I
always felt I would upgrade to people one of these days.”

In an e-mail, Debra Pinson wrote, “Mr. Pinson has a history of doing
things to people and animals. He beat one of my dogs to death once
because he got mad at me. He kicked another in the head and killed
it.” Mental health records from 1996 indicate that Mr. Pinson has
hurt others with objects, such as knives, and also has hurt the family
dog.

I think with this kind of a background, I’m afraid for other people, and I
think it’s my duty to protect the public against further crimes of this
defendant and potential crimes in the future.

R. Vol. V at 88–90. There is no ambiguity in the district court’s reasoning for

varying upward. The plethora of bizarre events dating back to Mr. Pinson’s early

youth convinced the court that Mr. Pinson presented a risk to the public. A more

thorough explanation than this one is not required.

Appellant’s more specific complaints about the court’s statement of reasons

carry more weight, but ultimately do not require reversal of the sentence. First,

he argues that the district court’s conclusion that he poses a danger to the public

was based on impermissible considerations and was inadequately explained. It

should be noted that the crimes for which Mr. Pinson was convicted were based

on making threats and false statements, not on acts of violence. The district court

explained the need for incarceration far beyond the Guidelines recommendation

on the ground that while “some of those letters [Mr. Pinson] sent could be merely

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hyperbole, I would think that, but for your history of violence. I think the public

needs to be protected from you, unfortunately.” R. Vol. V at 88. As Appellant

points out, however, no evidence was presented in court of any acts of violence

against people after the age of 13. (Mr. Pinson is now 21 years old.)

We regard the district court’s conclusion that Mr. Pinson’s threats were

more than “hyperbole” and actually present a danger to the public as factual in

nature, and entitled to deference on appellate review unless clearly erroneous.

And while it may be true that the documented cases of violence in Mr. Pinson’s

past date to his early teen years, there is evidence in the record that he continues

to present an actual danger. Mr. Pinson’s own expert, Dr. Priesz, testified that

Mr. Pinson had a “moderately high . . . potential to be dangerous,” R. Vol. V at

73, though he believed Mr. Pinson had “a chance” to overcome his personality

disorders given appropriate treatment and therapy, id. at 57. Indeed, Dr. Priesz

commented that he was “surprise[d] . . . [Mr. Pinson had not] done so much harm

to himself that either it’s resulted in his death or in harming others.” Id. at 62.

Even Mr. Pinson’s mother, who testified in his favor at the sentencing hearing,

acknowledged in an e-mail that she “would not be surprised if someday he either

kills me or does significant harm to me.” Id. at 89. Moreover, the evidence in

the record seems to show that Mr. Pinson brutally killed a family dog, and told

his aunt that he would “upgrade” to people. Id. In light of this evidence, we

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cannot agree that the district court’s explanation for the sentence was without

evidentiary support.

To the extent that Mr. Pinson complains that the district court improperly

relied on his juvenile conduct, the argument has no merit. Mr. Pinson does not

object to the district court’s sentencing guidelines calculation, which took into

account his juvenile conviction for breaking and entering. His objection,

therefore, must be to the district court’s use of his juvenile activities to justify the

upward variance. While the weight the district court places on certain factors is

reviewed for substantive unreasonableness, use of an improper factor is reviewed

for procedural unreasonableness. See, e.g., Smart, 518 F.3d at 803–04 (it is

procedural sentencing error to give significant weight to an irrelevant or improper

factor). There are likely some boundaries on what factors sentencing courts can

permissibly consider at sentencing—for example, it would surely be

impermissible for a court to consider the defendant’s race in support of an upward

variance—but aside from these few exceptions, we have repeatedly stated that

“[n]o limitation shall be placed on the information concerning the background,

character, and conduct of a person convicted of an offense which a court of the

United States may receive and consider for the purpose of imposing an

appropriate sentence.” United States v. Magallanez, 408 F.3d 672, 684 (10th Cir.

2005) (citing 18 U.S.C. § 3661); see also Williams v. New York, 337 U.S. 241,

246 (1949).

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 Under the circumstances of this case, Mr. Pinson’s behavior as a juvenile is

not irrelevant to evaluating his threat to the public under § 3553(a)(2)(C).

Because Mr. Pinson was only 21 at the time of sentencing, to disregard his

behavior as a teenager could lead to an inaccurate assessment of his

dangerousness, as there would be insufficient out-of-custody behavior for the

court to evaluate. See United States v. Davis, 48 F.3d 277, 280 (7th Cir. 1995)

(“These pubescent transgressions, when considered along with adult offenses,

help the sentencing judge to determine whether the defendant has simply taken

one wrong turn from the straight and narrow or is a criminal recidivist.”). The

district court committed no procedural unreasonableness in examining Mr.

Pinson’s juvenile conduct.

Appellant also complains that the district court did not provide a specific

reason for its decision not to adopt Dr. Preisz’s recommendation that he be given

four to eight years of extended therapy. The record reveals, however, that the

district court considered Dr. Priesz’s testimony and took it into account. The

district judge stated that he considered “Dr. Preisz’s excellent statement,” R. Vol.

V at 87, and that the court was “very sympathetic to [Mr. Pinson] for [his]

unfortunate background.” Id. The judge explained why he believed that

protection of the public required a far more extended sentence of incarceration.

This was sufficient explanation.

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 B. Substantive Unreasonableness

Mr. Pinson was sentenced to 240 months’ imprisonment—135 months

above what he would have received had he been sentenced within the applicable

guidelines range. In light of the § 3553(a) factors and recognizing the discretion

vested in the district court over sentencing, we find this sentence reasonable,

though not without some qualms.

In Gall and in Kimbrough v. United States, 128 S. Ct. 558 (2007), the

Supreme Court clarified what “abuse of discretion” entails, holding that

sentencing review may not be based on “a rigid mathematical formula that uses

the percentage of a departure as the standard for determining the strength of the

justifications required for a specific sentence.” Gall, 128 S. Ct. at 595; see also

United States v. Smart, 518 F.3d 800, 807 (10th Cir. 2008).

At the same time, however—until the Supreme Court tells us

otherwise—appellate review continues to have an important role to play and must

not be regarded as a rubber stamp. See Rita, 127 S. Ct. at 2466–67 (“In

sentencing, as in other areas, district judges at times make mistakes that are

substantive. At times, they will impose sentences that are unreasonable. Circuit

courts exist to correct such mistakes when they occur.”). The degree of variance

from the recommended Guidelines range thus continues to be significant. As the

Supreme Court explained in Gall, 128 S. Ct. at 597, it is “uncontroversial that a

major departure should be supported by a more significant justification than a

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minor one.” A reviewing court therefore must determine if the district court’s

proffered rationale, on aggregate, justifies the magnitude of the sentence.

The upward variance here was unusually large, even by post-Gall

standards. Nonetheless, we cannot regard the sentence as outside the range of

reasonableness. The sentence was the product of the district court’s belief that

Mr. Pinson posed a danger to the public. 18 U.S.C. § 3553(a)(2)(C). Despite our

own suspicion that Mr. Pinson’s grandiose threats and often incredible claims of

past violent acts are symptoms of his diagnosed mental illness and might better be

treated as such, we have already explained why the district court’s determination

that Mr. Pinson presents an actual danger to the public is not clearly erroneous.

We cannot disagree with the district court’s decision that Mr. Pinson’s inability to

control his anger, as well as his prior breaking and entering and very serious

threats, suggest that he might actually harm someone if given the chance. This

conclusion seems eminently reasonable given Dr. Preisz’s own testimony that he

was “surprise[d] . . . [Mr. Pinson had not] done so much harm to himself that

either it’s resulted in his death or in harming others,” R. Vol. V at 62, as well as

his mother’s similar assertion in an e-mail. See United States v. Hines, 26 F.3d

1469, 1473 (9th Cir. 1994) (departure warranted not to treat defendant but

because he “posed an ‘extraordinary danger to the community because of his

serious emotional and psychiatric disorders.’”); United States v. Gillmore, 497

F.3d 853, 857 (8th Cir. 2007) (“[defendant’s] history of sexual abuse, chemical

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dependency, and mental illness . . . made [her] a danger to herself and the public,

warranting a significantly longer sentence than the Guidelines range.”); United

States v. Cousins, No. 05-04-CR-169, 2007 WL 1454275 (N.D. Ohio May 17,

2007) (imposing statutory maximum because “[t]he defendant’s history of violent

conduct, coupled with his obvious unstable mental condition . . . strongly suggest

that [he] should never again be pardon [sic], paroled, or released into society.”).

In sum, we cannot find that the district court abused its discretion.

Mr. Pinson relies on United States v. Allen, 488 F.3d 1244 (10th Cir. 2007),

to support his substantive unreasonableness argument. To the extent that he is

arguing that we must find “compelling reasons” to support so large a variance, see

Aplt’s Br. 23, this approach is no longer permissible after Gall v. United States,

128 S. Ct. 586, 595 (2007), and United States v. Smart, 518 F.3d 800, 808 (10th

Cir. 2008). Allen, moreover, is distinguishable from the present case. Mr. Allen

was convicted of a single count of possession of methamphetamine with the intent

to distribute. Based on allegations that Mr. Allen had committed attempted

sexual abuse of a child or solicitation of murder, the district court varied upward

from a guidelines range of 120-135 months’ to 360 months’ imprisonment. Id. at

1260. We held this sentence substantively unreasonable because the district court

effectively sentenced Mr. Allen based on “an entirely different, and far more

serious, crime.” Id. “[W]hatever latitude a sentencing court may have to adjust a

defendant’s sentence in an exercise of Booker discretion, it may not discard the

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advisory Guideline range and impose sentence, instead, on the basis of evidence

of the defendant’s uncharged, unrelated misconduct, whether actually committed

or contemplated for the future.” Id. at 1262 (emphasis added). Mr. Pinson’s case

is different. Much of the conduct on which the district court based its variance

was not unrelated to the conduct of his conviction: when a defendant is convicted

of making threats of violence it is not unrelated to consider whether his threats

pose an actual danger to the public. Because Mr. Pinson was not sentenced as if

he had committed a totally different and “far more serious, crime,” id. at 1260,

we find no support in Allen.

Nonetheless, we take a moment to express our concern that courts use

upward variances to increase the incarceration time for those who might pose a

risk to the public because of their mental health problems. When a prisoner, soon

to be released, may pose a substantial risk to himself or to others, the federal civil

commitment statute provides a mechanism by which the facility director can

further detain the inmate until this risk is ameliorated. 18 U.S.C. § 4246

(providing for further commitment of a “person in the custody of the Bureau of

Prisons whose sentence is about to expire” who “is presently suffering from a

mental disease or defect as a result of which his release would create a substantial

risk of bodily injury to another person or serious damage to property of another”);

see also United States v. Moses, 106 F.3d 1273, 1280 (6th Cir. 1997) (§ 4246 is

“directly designed to forestall such danger [to the community] through continued

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commitment after completion of the sentence. Otherwise, virtually every criminal

defendant who, at the time of sentencing, met the dangerousness criteria of §

4246 would also be subject to an upward departure.”). In order to impose such

long-term commitment, the government must demonstrate at a hearing, by clear

and convincing evidence, that the defendant poses a risk to the public because of

a mental abnormality or personality disorder that is beyond his control. 18 U.S.C.

§ 4246(d); see also Kansas v. Crane, 534 U.S. 407 (2002) (government must

prove that the defendant cannot control his dangerous behavior before court can

impose civil commitment). When a district court enhances a sentence because the

defendant’s mental illness prevents him from controlling his actions, thereby

increasing the risk he poses to the public, the district court in effect circumvents

the civil commitment procedure and the procedural and substantive protections

that go along with it: specifically, the clear and convincing evidence standard is

replaced by the lower, preponderance of the evidence standard. This is

particularly troubling given that the use of § 4246 provides for evaluation of the

defendant’s risk after he has received treatment during incarceration; the

prediction of the risk the defendant will pose to the public upon release, made

before treatment, is far more imprecise. See Note, Booker, The Federal

Sentencing Guidelines, And Violent Mentally Ill Offenders, 121 Harv. L. Rev.

1133, 1144 (2008) (“To impose post-prison civil commitment, the state is

required to prove an offender’s continuing dangerousness by clear and convincing

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evidence, whereas an above-Guidelines prison sentence relies on a possibly

unreliable prediction of what the offender’s mental health will be at the end of the

Guidelines sentence.”).

The Supreme Court has reaffirmed that district courts have wide discretion

in choosing the factors it considers during sentencing. See Gall, 128 S. Ct. at

601–02. This is even true when, as here, the factor is a discouraged one under the

guidelines. See U.S.S.G. § 5H1.3 (“[m]ental and emotional conditions are not

ordinarily relevant in determining whether a departure is warranted.”); Gall, 128

S.Ct. at 601–02 (age). We stop short of prohibiting courts from considering

whether a defendant’s mental illness justifies an upward variance because it

causes him to pose a risk to the public. But we encourage sentencing courts to

consider that civil commitment procedures will be available if the defendant

continues to pose a considerable risk to the public after confinement, mitigating

the need for a prophylactic upward variance.

We AFFIRM Mr. Pinson’s conviction and the sentence imposed by the

United States District Court for the Western District of Oklahoma.

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