United States v. Hungerford , 465 F.3d 1113 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30500
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00074-RFC
MARION HUNGERFORD,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, District Judge, Presiding
Argued and Submitted
July 25, 2006—Portland, Oregon
Filed October 13, 2006
Before: Stephen Reinhardt and Susan P. Graber,
Circuit Judges, and Ronald S.W. Lew,* District Judge.
Opinion by Judge Graber;
Concurrence by Judge Reinhardt
*The Honorable Ronald S.W. Lew, District Judge for the United States
District Court for the Central District of California, sitting by designation.
17559
17562 UNITED STATES v. HUNGERFORD
COUNSEL
Palmer Hoovestal, Hoovestal Law Firm, PLLC, Helena, Mon-
tana, for the defendant-appellant.
James E. Seykora, Assistant United States Attorney, Billings,
Montana; and Anna S. Peckham, Assistant United States
Attorney, Great Falls, Montana, for the plaintiff-appellee.
OPINION
GRABER, Circuit Judge:
After a jury trial, Defendant Marion Hungerford was con-
victed of conspiracy, seven counts of robbery, and seven
counts of using a firearm in relation to a crime of violence,
in violation of the Hobbs Act, 18 U.S.C. §§ 1951 and 1952,
and 18 U.S.C. § 924(c)(1) and (c)(2). She appeals her convic-
tion of four of the counts of robbery and the four related
counts of using a firearm. She also appeals her sentence; she
received 57 months of imprisonment for the conspiracy and
robbery counts, to run concurrently, plus 60 months for the
first firearm charge and 300 months for each of the other fire-
arm charges, to run consecutively. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Defendant met Dana Canfield in September 2001. In 2002,
Canfield moved into her home. Neither was employed at the
time. In order to get money to pay rent, Canfield and Defen-
UNITED STATES v. HUNGERFORD 17563
dant decided to rob a convenience store. At trial, Canfield tes-
tified, “Marion said that she was going to have to go on a
crime spree. And since she has problems walking and stuff,
I decided that I would do it.” The pair drove around together
looking at potential places to rob. They decided on a conve-
nience store called 3-G’s. In March 2002, Defendant dropped
him off at the 3-G’s and drove to a nearby laundromat. Can-
field robbed the store at gunpoint, rendezvoused with Defen-
dant at the laundromat, and gave her the money. The jury
found Defendant not guilty of the 3-G’s robbery.
The 3-G’s robbery was the first in a series of Montana
armed robberies carried out by Canfield at Defendant’s insti-
gation, the proceeds of which she received and spent. Next,
Canfield testified to robbing a store called Bottles & Shots on
April 6, 2002. He drove himself to the location while Defen-
dant again waited for him at a laundromat. Again, he used a
gun and delivered the proceeds of the robbery to Defendant.
The jury found Defendant not guilty of the Bottles & Shots
robbery.
Canfield testified that, after he told Defendant about the
adrenaline rush that accompanied the robberies, “she wanted
to be more involved in the crimes, so she wanted to be—she
wanted to help participate.” On May 6, 2002, Canfield robbed
the Jackpot Casino, using a firearm. Defendant went into the
casino ahead of Canfield and called to tell him how many
people were inside and how many tills were operating. The
jury found Defendant guilty of the Jackpot Casino robbery, a
conviction that she does not challenge on appeal.
Canfield described similar involvement by Defendant in
both the Alpine Casino and Cenex AmPride robberies. The
two drove together to the Alpine Casino; Defendant entered,
counted the number of employees who were working there,
and returned to the car to report the information to Canfield.
He then went inside, robbed the casino at gunpoint, returned
to the car where Defendant was waiting, and gave her the
17564 UNITED STATES v. HUNGERFORD
money. Similarly, at the Cenex AmPride convenience store,
Defendant went into the store first and signaled to Canfield
that it was safe to proceed with the robbery. The jury con-
victed Defendant of both of those robberies, and she does not
challenge those convictions here.
After the Cenex AmPride robbery, Detective Ewalt tele-
phoned Defendant to ask questions about the Jackpot Casino
robbery. Defendant and Canfield discussed the false statement
that Defendant planned to give to the detective to impede his
investigation. Further, they agreed that Defendant should
establish an alibi during the next robbery. At the Jackpot
Casino and Cenex AmPride robberies, she had been seen by
employees when she entered the establishments just before
the robber came in. Consequently, Defendant planned to
remain at the home of the couple’s landlord while Canfield
committed the next robbery.
According to Canfield, Defendant did not help him “case
out” the next location; she left “most . . . everything” up to
him about where to go and what to do. Canfield robbed
Magoo’s at gunpoint on June 13, 2002. When he returned
home afterward, Defendant was there and he gave her the
money that he had stolen.
Canfield committed an armed robbery at the Second Shift
Bar on June 25, 2002. Defendant did not help him case that
establishment beforehand, nor did he tell her what business he
planned to rob. Afterward, though, he gave all the proceeds
to Defendant.
Canfield robbed the Winners Circle on July 2, 2002, using
a firearm. Again, Defendant did not scout the location, and
she stayed home during the robbery. She knew that Canfield
was going to commit another robbery but did not know spe-
cifically where. Canfield gave the proceeds of this robbery,
too, to Defendant.
UNITED STATES v. HUNGERFORD 17565
Although her direct participation in these later robberies
was minimal, Defendant did not ask Canfield to stop commit-
ting armed robberies. She accepted the proceeds, knowing
their source, and the proceeds from these periodic crimes pro-
vided the only means the couple had to meet their financial
needs.
After they had a chance meeting with Detective Ewalt,
Defendant and Canfield decided that they ought to end the
string of armed robberies. They mapped out a strategy to
“leave a trail out of town” and then stop. The plan was to rob
an establishment in Butte, Montana, then go to Missoula and
rob another place there “using the same mask and MO” as had
been used in the earlier robberies. They traveled to Butte,
rented a hotel room, and together they scouted possible tar-
gets. They selected an establishment called Gramma’s. When
Canfield went there on July 27, 2002, he decided against rob-
bing it and instead chose to rob Joker’s Wild. Defendant
remained in the hotel during this armed robbery. Afterward,
Canfield gave Defendant the proceeds, and both of them
together destroyed the checks, which they had obtained along
with the cash. The police arrested Canfield that night at the
hotel; Defendant was arrested later. Before being arrested,
Defendant contacted an acquaintance and coaxed her to make
a false statement to the Butte police concerning the identity of
the Joker’s Wild robber, to throw them off track.
STANDARDS OF REVIEW
We review de novo a district court’s denial of a motion for
judgment of acquittal under Federal Rule of Criminal Proce-
dure 29. United States v. Johnson, 357 F.3d 980, 983 (9th Cir.
2004). We review the evidence in the light most favorable to
the government to determine whether any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt. Id.
We review de novo whether a statute is void for vagueness.
United States v. Rodriguez, 360 F.3d 949, 953 (9th Cir.), cert.
17566 UNITED STATES v. HUNGERFORD
denied, 543 U.S. 867 (2004). Similarly, we review de novo
the constitutionality of a criminal sentence. United States v.
Barajas-Avalos, 377 F.3d 1040, 1060 (9th Cir. 2004), cert.
denied, 543 U.S. 1188 (2005).
DISCUSSION
A. Sufficient evidence supports the convictions of robbery
and using a firearm.
Defendant argues, first, that there was insufficient evidence
to support her convictions stemming from the armed robberies
of Magoo’s, Second Shift, Winner’s Circle, and Joker’s Wild
and thus that the district court erred when it denied her Rule
29 motion. We are not persuaded.
[1] The jury convicted Defendant of the conspiracy charge,
a conviction that she does not challenge on appeal. In Pinker-
ton v. United States, 328 U.S. 640, 646-47 (1946), the
Supreme Court addressed a factual situation similar to the one
at hand. In that case, the defendant brothers, Daniel and Wal-
ter, were convicted of conspiring to violate the Internal Reve-
nue Code and also of substantive violations of the Code.
There was no evidence that Daniel had participated directly in
the commission of the substantive offenses, yet the Court
upheld his convictions on those charges as well as on the con-
spiracy count. The Court did so because there was a “continu-
ous conspiracy” and “no evidence of the affirmative action on
the part of Daniel which is necessary to establish his with-
drawal from it.” Id. at 646. “And so long as the partnership
in crime continues, the partners act for each other in carrying
it forward.” Id.
[2] As noted, Defendant does not challenge the sufficiency
of the evidence underlying her conspiracy conviction. She
conspired with Canfield to commit the whole series of armed
robberies, in a continuous sequence. There is no evidence that
Defendant took any affirmative act to withdraw from the
UNITED STATES v. HUNGERFORD 17567
ongoing conspiracy before the four robberies in question
occurred. To the contrary, she continued to accept and spend
the proceeds of all the robberies and worked purposefully to
conceal the crimes. She helped actively to plan the Missoula
robbery. Accordingly, there is sufficient evidence to support
the challenged convictions under the conspiracy liability doc-
trine of Pinkerton.
[3] Alternatively, and additionally, the record contains suf-
ficient evidence to support Defendant’s convictions under an
aiding and abetting theory of liability in violation of 18
U.S.C. § 2(a). To aid and abet another to commit a crime, it
is necessary that a defendant “in some sort associate himself
with the venture, that he participate in it as in something that
he wishes to bring about, that he seek by his action to make
it succeed.” Nye & Nissen v. United States, 336 U.S. 613, 619
(1949) (internal quotation marks omitted). Defendant helped
to plan the robberies, she scouted potential targets, she had
knowledge that her co-conspirator was carrying out the rob-
beries, and she willingly accepted the proceeds of each of the
crimes. For this reason, too, sufficient evidence supports the
disputed convictions.
B. Title 18 U.S.C. § 924(c)(1) is not unconstitutionally
vague.
The jury convicted Defendant of seven counts of know-
ingly using or carrying a firearm in furtherance of a crime of
violence, in violation of 18 U.S.C. § 924(c)(1) and (c)(2). The
statute states, in pertinent part:
[A]ny person who, during and in relation to any
crime of violence . . . for which the person may be
prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such
crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence . . .
—
17568 UNITED STATES v. HUNGERFORD
(i) be sentenced to a term of imprisonment of not
less than 5 years[.]
Id. § 924(c)(1)(A)(i).
In the case of a second or subsequent conviction
under this subsection, the person shall—
(i) be sentenced to a term of imprisonment of not
less than 25 years[.]
Id. § 924(c)(1)(C)(i).
Notwithstanding any other provision of law—
...
(ii) no term of imprisonment imposed on a person
under this subsection shall run concurrently with any
other term of imprisonment imposed on the person,
including any term of imprisonment imposed for the
crime of violence or drug trafficking crime during
which the firearm was used, carried, or possessed.
Id. § 924(c)(1)(D)(ii). Pursuant to the statute, the district court
sentenced Defendant to five years for her first firearm convic-
tion and 25 years for each of the other six firearm convictions,
to run consecutively.
Defendant urges us to find that the statute is unconstitution-
ally vague. She argues that, because the statute specifies that
25-year terms are to be imposed for “second or subsequent”
convictions but not for “each” subsequent conviction, she
could not have known that she would be sentenced to multiple
25-year minimum sentences.
[4] A statute is void for vagueness when it fails to give “ad-
equate notice to people of ordinary intelligence of what con-
UNITED STATES v. HUNGERFORD 17569
duct is prohibited, or if it invites arbitrary and discriminatory
enforcement.” United States v. Tabacca, 924 F.2d 906, 912
(9th Cir. 1991) (emphasis added). Defendant does not argue
that she was unaware that the use of a firearm in relation to
robbery is prohibited by § 924. Rather, she claims only that
the statute failed to warn her of the potentially draconian pen-
alty for committing multiple armed robberies.1
[5] Even assuming that a vagueness argument focused
exclusively on sentencing, rather than on criminal conduct
giving rise to the sentence, is cognizable, the statute is not
vague. The Supreme Court has interpreted the meaning of
§ 924. Deal v. United States, 508 U.S. 129, 137 (1993). Its
terms are readily understandable. Its mandatory nature, what-
ever its merits or demerits as a policy matter, invites uniform
enforcement, rather than arbitrary or discriminatory enforce-
ment. See, e.g., id. (upholding multiple, consecutive, lengthy
sentences under § 924); United States v. Angelos, 433 F.3d
738, 754 (10th Cir. 2006) (same), petition for cert. filed, 75
U.S.L.W. 3034 (U.S. July 3, 2006) (No. 06-26); United States
v. Camps, 32 F.3d 102, 109 (4th Cir. 1994) (same). A plain
reading of the statute reveals no ambiguity, as this consistent
precedent recognizes.
C. The sentence violates neither the Fifth nor the Eighth
Amendment.
[6] Finally, Defendant brings two constitutional claims. She
argues that the mandatory minimum sentence established by
§ 924 violates the Fifth Amendment’s guarantee of due pro-
cess by removing discretion from the judiciary and placing it
in the hands of the prosecutor. We already have rejected the
argument that mandatory minimum sentences established by
statute violate due process. United States v. Wilkins, 911 F.2d
337, 339 (9th Cir. 1990). The Supreme Court’s decision in
1
Defendant challenges only four of the § 924 counts, so she does not
dispute 55 years of the mandatory sentence.
17570 UNITED STATES v. HUNGERFORD
United States v. Booker, 543 U.S. 220 (2005), does not
change that rule. United States v. Dare, 425 F.3d 634, 643
(9th Cir. 2005), cert. denied, 26 S. Ct. 2959 (2006).
[7] Finally, Defendant argues that the Eighth Amendment
precludes the lengthy consecutive mandatory minimum sen-
tences imposed here under § 924. This argument also is
directly precluded by our precedent. United States v. Parker.
241 F.3d 1114, 1117 (9th Cir. 2001).
AFFIRMED.
REINHARDT, Circuit Judge, concurring in the judgment:
Although precedent forecloses Marion Hungerford’s Eighth
Amendment challenge to 18 U.S.C. § 924(c) (2006),1 under
which she received almost all of her 159-year term of impris-
onment, it cannot be left unsaid how irrational, inhumane, and
absurd the sentence in this case is, and moreover, how this
particular sentence is a predictable by-product of the cruel and
unjust mandatory minimum sentencing scheme adopted by
Congress. This court, along with many individuals, has previ-
ously urged Congress to “reconsider its harsh scheme of man-
datory minimum sentences without the possibility of parole;”2
now, Hungerford’s case serves as yet another forceful
reminder that the scheme is severely broken and badly in need
of repair. Although we lack the authority either to reform
these statutes or to reconsider the Eighth Amendment princi-
ples adopted by the Supreme Court, those who have both the
power and the responsibility to do so should return our federal
sentencing scheme to a day in which the controlling principles
1
See United States v. Parker, 241 F.3d 1114, 1117 (9th Cir. 2001);
United States v. Harris, 154 F.3d 1082, 1084 (9th Cir. 1998).
2
Harris, 154 F.3d at 1085.
UNITED STATES v. HUNGERFORD 17571
are fairness, proportionality, prudence and informed discre-
tion.
When we urged Congress to reform § 924 and other unnec-
essarily harsh mandatory sentencing laws,3 each additional
conviction for use of a firearm in connection with a crime of
violence under § 924(c) provided for a 20-year mandatory
consecutive sentence. Months later, Congress amended
§ 924(c)(1) to mandate 25-year mandatory consecutive sen-
tences for such offenses. An Act to Throttle Criminal Use of
Guns, Pub. L. No. 105-386, § 1(a), 112 Stat. 3469 (1998). As
a result, § 924(c) now requires a 5-year sentence for a single
conviction of use of a firearm and mandatory consecutive sen-
tences of 25 years for each additional count. 18 U.S.C.
§ 924(c)(1).
Although she never touched a gun, Hungerford, was con-
victed of one count of conspiracy, seven counts of robbery,
and seven counts of use of a firearm in relation to a crime of
violence. The district judge sentenced her to 5 years on the
first count of use of a firearm and 25 years consecutively on
each of six additional counts. In addition, the district judge
sentenced her to serve 57 months for the conspiracy and 57
months for the robbery convictions, the sentences to run con-
currently with each other. Because § 924(c) gives the sentenc-
ing judge no choice or discretion, except to impose the
statutory mandatory sentences, the judge was forced to sen-
tence Hungerford, a 52 year-old mentally disturbed woman
with no prior criminal record, to over 159 years in prison.
What the judge was not permitted to take into account when
sentencing Hungerford should shock the conscience of any-
one who believes that reasonable proportionality between a
crime and the sentence is a necessary condition of fair sen-
tencing.
3
Id.
17572 UNITED STATES v. HUNGERFORD
The judge could not consider myriad potential mitigating
factors, including Hungerford’s severe form of Borderline
Personality Disorder, which can alter one’s perception of real-
ity in a manner similar to schizophrenia and has led to numer-
ous suicide attempts on Hungerford’s part. The judge could
not consider a psychiatrist’s testimony regarding Hunger-
ford’s very low capacity to assess reality, her low level of
intellectual functioning, and the fact that she is “very easily
victimized.” Especially important, the court was prohibited
from taking into account the fact that Hungerford was “a fol-
lower,” was “susceptib[le] to outside direction” and suffered
from “suggestivity.” Also out of bounds was Hungerford’s
vulnerable and chaotic state. Shortly before the robberies her
husband of 26 years, with whom she had four children, had
moved out of their home, largely as a result of her deteriorat-
ing mental condition, and, Hungerford, finding herself impe-
cunious and without a job or any prospects for employment,
had begun living with a new male companion, on whom she
became dependent, Dana Canfield, the principal in the rob-
beries. Nor could the judge consider that Hungerford, at the
age of 52, was a person with no criminal history prior to the
string of armed robberies committed by Canfield, and that she
had apparently led a spotless, law-abiding existence. The
judge could not even take into account the significant facts
that no one was physically injured in any of the robberies and
that the total loss resulting from them was less than $10,000.
Most important, under the law, Hungerford’s extremely
limited role in the crimes of which she was convicted was
also irrelevant to her sentencing. Although she conspired with
and aided and abetted her new-found male companion, Can-
field, in a string of armed robberies, her participation in the
robberies themselves was quite limited, particularly when
compared to Canfield’s dominant role. During most of the
robberies, Hungerford took no active part other than driving
Canfield to or from the scene of the crime or casing the stores
that Canfield later robbed. After a police detective contacted
Hungerford, she did not participate whatsoever in any of the
UNITED STATES v. HUNGERFORD 17573
subsequent robberies and merely received money from Can-
field following his commission of those robberies. It is worth
noting that Hungerford’s mental disorder likely impeded her
ability to affirmatively opt out of the conspiracy after contact
with the police, and even to accept the fact that she had been
engaged in criminal conduct. Finally, at no time did Hunger-
ford personally use or even carry a gun, or personally threaten
anyone; yet, under § 924(c), this fact, too, is deemed irrele-
vant. At the time of sentencing, Hungerford’s counsel pre-
sented substantial evidence of her severe mental illness.
Attached to this opinion is a summary of that troubling testi-
mony.
Under a fair and proportional sentencing scheme, a judge
would not just be allowed to consider these compelling miti-
gating circumstances, but rather he would be required to give
them substantial weight in determining the proper sentence.
Even if “severe, mandatory penalties . . . are not unusual in
the constitutional sense,” Harmelin v. Michigan, 501 U.S.
957, 994 (1991), they “may be cruel.” Id. Although Congress
may be permitted under the Constitution to adopt a cruel sen-
tencing scheme, though not a cruel and unusual one, surely
the people’s representatives should aim above this dismally
low mark. Here, it is difficult to escape the conclusion that the
current mandatory sentencing laws have imposed an
immensely cruel, if not barbaric, 159-year sentence on a
severely mentally disturbed person who played a limited and
fairly passive role in several robberies during which no one
was physically harmed.4
4
We are foreclosed from holding the sentence to be in violation of the
cruel and unusual punishment clause because of its severity by Harmelin
and Ewing v. California, 538 U.S. 11 (2003). Harmelin, 501 U.S. at 995,
1009 (rejecting a requirement that the court consider mitigation or individ-
ual circumstances, and holding that a defendant’s “sentence of life impris-
onment without parole” for his first felony, possession of cocaine, “does
not violate the Eighth Amendment”); Ewing, 538 U.S. at 30-31 (holding
that a defendant’s “sentence of 25 years to life in prison” for a third strike
consisting of the theft of three golf clubs “is not grossly disproportionate
and therefore does not violate the Eighth Amendment’s prohibition on
cruel and unusual punishments”).
17574 UNITED STATES v. HUNGERFORD
Not only is the sentence cruel, it is absurd. It imposes a
term of imprisonment of 159 years, under which Hungerford
would be incarcerated until she reached the age of 208. The
absurdity is best illustrated by the judge’s reading to Hunger-
ford the terms of supervised release which she would be
required to undergo when she emerged from prison toward
the end of the first decade of her third century. The judge told
Hungerford that “[w]ithin 72 hours of release from custody,”
— in the year 2162 — she must “report in person to the pro-
bation office,” and while on supervised release she must “par-
ticipate in substance abuse testing to include not more than
104 urinalysis tests.” He further ordered Hungerford to “par-
ticipate in a program for mental health,” and “pay part or all
of the cost of this treatment, as determined by the U.S. proba-
tion officer.” What Hungerford should do if she were too old
or feeble to attend the mental health program, the judge failed
to advise her. Certainly, requiring a defendant and a district
judge to engage in a charade of this nature cannot increase
respect for our system of justice.
The case at hand is precisely the type of case that should
make Congress question what worthy ends are served by a
cruel and inflexible sentencing scheme. In pondering this
question, Congress would benefit by observing how Justice
Kennedy, who can hardly be called soft-on-crime, let alone a
liberal jurist, has come to reject mandatory minimum sentenc-
ing. Fifteen years ago, “in asserting the constitutionality of a
mandatory [life] sentence,” for the possession of cocaine, Jus-
tice Kennedy “offer[ed] no judgment on its wisdom.” Har-
melin, 501 U.S. at 1007 (Kennedy, J., concurring). But three
years ago, he told the American Bar Association that “I can
accept neither the necessity nor the wisdom of federal manda-
tory minimum sentences. In too many cases, mandatory mini-
mum sentences are unwise and unjust.” Anthony M.
Kennedy, Associate Justice, Supreme Court of the United
States, Speech at the American Bar Association Annual Meet-
ing (Aug. 9, 2003). Among Justice Kennedy’s chief concerns
is that the “federal mandatory minimum statutes” transfer
UNITED STATES v. HUNGERFORD 17575
“sentencing discretion from a judge to an Assistant U.S.
Attorney, often not much older than the defendant.” Id. Both
this court in Harris,5 and I as a member of it, agree with Jus-
tice Kennedy that this transfer of discretion is “misguided,”
and that “[m]ost of the sentencing discretion should be with
the judge, not the prosecutors.” Id.
Hungerford’s case is a textbook example of how § 924(c)
permits a prosecutor, but never a judge, to determine the
appropriate sentence. Hungerford’s co-conspirator, Canfield,
was the principal in all of the robberies — he owned and
brandished the .22 pistol in each robbery, and testified that
Hungerford had nothing to do with the firearm — yet he
reached an agreement with the government and received a
sentence of 32 years. On the other hand, Hungerford, who
refused to plead guilty, in large part due to her mental illness,
was aggressively charged, convicted, and sentenced to 159
years in prison. The prosecutor used his discretion to send the
mentally-ill Hungerford to prison until she turns 208, while he
administered a far lesser punishment — only one-fifth as
great — to the principal who put the lives of others at risk. In
Hungerford’s case, only the prosecutor and not the district
judge had the authority to exercise discretion.
Hungerford received her 159-year sentence because she
refused to enter into a plea agreement with the government.
Had she been able and willing to do so, she undoubtedly
would have received a significantly lesser term than the prin-
cipal’s 32-year sentence. Hungerford tragically refused to
cooperate with the government and plead guilty, most likely
because her mental illness caused her to hold a fixed belief
that she was innocent. Even after the jury convicted her,
Hungerford repeatedly declared her innocence at sentencing,
stating that “I have not done anything illegal. I did not go
5
Harris, 154 F.3d at 1085 (“We feel a just system of punishment
demands that some level of discretion be vested in sentencing judges to
consider mitigating circumstances.”).
17576 UNITED STATES v. HUNGERFORD
about with any gun. I don’t like them. . . . I didn’t take any
money. . . . I honestly didn’t do it . . . So please don’t do
whatever you’re going to do to me for what you think I did,
because I didn’t do it.” Also in light of her mental illness,
Hungerford may not have even understood the nature of the
offenses for which she was convicted. Yet, incredibly, the
prosecutor believed that Hungerford received a fair sentence,
reflecting both her criminal acts and her refusal to cooperate
with the government. He told the judge that
counsel and the defendant can blame the prosecu-
tion, blame the Court, can blame the Congress. The
jury convicted her. Early on in this process, the
United States went to her attorney. We have some
credit on our side. We understood what the facts are.
We suggested that cooperation would be there and
that she cooperate against Mr. Canfield. She chose
not to do that, Your Honor. Mr. Canfield chose
another route. There is no one to blame here but
Marion Hungerford herself . . . .
But if Hungerford was in any way responsible for her absurd
sentence, it was that her Borderline Personality Disorder pre-
vented her from admitting her guilt and thus avoiding the
imposition of a sentence of 159 years in prison. Surely, one
cannot reasonably fault Hungerford for suffering from over-
whelming and severe mental illness. Hungerford, in layman’s
terms, may have explained her predicament as well as anyone
possibly could when she proclaimed her innocence at sentenc-
ing and explained that:
my crime is not robbing, my crime isn’t hurting any-
body, because I don’t do that, and my crime is not
using a weapon to get money. My crime is being stu-
pid. That’s my crime. And it looks like I’m going to
be faced with a lot of years for being stupid.
It is difficult to believe that anyone familiar with all of the
facts and circumstances relating to Marion Hungerford’s com-
UNITED STATES v. HUNGERFORD 17577
mission of the offenses of which she was convicted would
believe that an appropriate sentence is 159 years in prison. In
sum, the result in Hungerford’s case, as well as our prior deci-
sions applying the federal mandatory minimum sentencing
laws, confirms why this court, Justice Kennedy, and many
others have concluded that there is no wisdom or necessity in
preserving the current mandatory minimum sentencing
regime. The only question, then, is whether this and future
Congresses will choose to listen and take appropriate action
to return reason and rationality to our currently malfunction-
ing sentencing system.
Because I am required to do so, I concur in the judgment,
but nothing more.
This attachment summarizes the testimony of Dr. William
David Stratford, a forensic psychiatrist, who evaluated
Hungerford. He testified that
1. Having previously completed between 6,000
and 10,000 prior psychiatric evaluations, interview-
ing Hungerford was “one of the most arduous, pain-
ful experiences in my life.” During the evaluation
Hungerford was “very fragmented,” had “fixed pat-
terns,” and she “[w]ould at times look at the floor
and be unresponsive for periods of ten minutes or
so.”
2. Hungerford suffers from “severe borderline per-
sonality disorder,” described as “a line between psy-
chosis and other diagnoses. It is a varying diagnosis.
It is pervasive in stability of mood, actions. A person
can be delusional. They can have fixed ideas that are
incorrect. They can often be suicidal, moody, and
have difficulty integrating the big picture.”
3. The psychological impairment which affected
Hungerford is “one of the most severe psychological
17578 UNITED STATES v. HUNGERFORD
disorders. It’s probably more severe than suffering
from schizophrenia.”
4. Hungerford’s “mental state significantly dimin-
ishe[d] her capacity to appreciate criminality and
conformed conduct.”
5. Hungerford’s belief that she was not guilty is “a
product of her mental illness.”
6. At sentencing, Hungerford did not have “a ratio-
nal and factual understanding of what she’s doing
here” in the courtroom.
7. Hungerford is a “follower” whose behavior is
marked by “susceptibility to outside direction,” and
suggestivity.
8. Hungerford does not presently constitute a dan-
ger to society, based on her 52 years in which she
was not been hostile to others, and could benefit
from treatment.