United States v. Andrew Warren , 700 F.3d 528 ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 15, 2012 Decided November 30, 2012
No. 11-3030
UNITED STATES OF AMERICA,
APPELLEE
v.
ANDREW WARREN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cr-00158-1)
Brian W. Shaughnessy argued the cause for the appellant.
Peter S. Smith, Assistant United States Attorney, argued
the cause for the appellee. Ronald C. Machen Jr., United
States Attorney, and Roy W. McLeese III, Elizabeth Trosman
and Julieanne Himelstein, Assistant United States Attorneys,
were on brief.
Before: SENTELLE, Chief Judge, HENDERSON and
GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
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KAREN LECRAFT HENDERSON, Circuit Judge: Appellant
Andrew Warren (Warren) appeals his 65-month sentence of
imprisonment, arguing that it is both procedurally and
substantively defective. Among other arguments, Warren
contends that his Post-Traumatic Stress Disorder (PTSD),
depression and substance abuse issues made it substantively
unreasonable to sentence him to more than a brief period of
incarceration, followed by treatment at a private facility. We
disagree and affirm the district court.
I.
Warren was once a rising star in the Central Intelligence
Agency (CIA). In 2007 and 2008, the CIA assigned Warren to
work as a high-level official for the United States Embassy in
Algeria, where he lived in government housing. Sometime in
2007, Warren met Person A, a Muslim woman and Algerian
national. On February 17, 2008, Warren invited Person A to
his home where he served her adulterated alcoholic drinks
that caused her to pass in and out of consciousness. While she
was semi-conscious, Warren moved her to his bed, removed
all of her clothing and had sexual contact (but not intercourse)
with her. Person A later wrote a text message to Warren
accusing him of abuse, to which Warren replied that he was
sorry.
Due to her religion and Algerian culture, Person A did
not report Warren to law enforcement or mention his conduct
to her family. Eventually, in September 2008, she reported
Warren to an official at the United States Embassy in Algeria.
In investigating the allegations, special agents from the
United States Department of State’s Bureau of Diplomatic
Security executed a search warrant on Warren’s Algerian
residence and found child pornography, Valium, Xanax and a
handbook on the investigation of sexual assaults. As an expert
3
witness explained, Valium and Xanax mixed with alcohol
could have caused the symptoms Person A experienced at
Warren’s residence. The government also discovered that in
September 2007, before his assault on Person A, Warren had
allegedly drugged and sexually abused Person B, another
Algerian Muslim woman. Person B, like Person A, was afraid
to report Warren’s conduct due to her religion and culture.
In March 2009, the CIA terminated Warren. In June
2009, Warren was indicted on one count of sexual abuse
committed in the special maritime and territorial jurisdiction
of the United States, see 18 U.S.C. § 2242(2).
In April 2010, Warren failed to appear for a status
hearing and the district court issued a bench warrant for his
arrest. In its search for Warren, the government discovered
that Warren’s neighbor in Norfolk, Virginia had recently filed
a complaint against Warren for exposing himself to her.
Several days later, the police found Warren at a Norfolk
motel. He appeared to be under the influence of drugs and
was carrying a “fully loaded 9 millimeter semi-automatic
Glock pistol in the front pocket of his shorts.” Supplemental
Appendix (SA), Tab F at 7. Upon being confronted by the
police, Warren made several motions toward the gun,
physically resisted arrest and had to be subdued with a taser.
On June 7, 2010, Warren pleaded guilty to a superseding
information on two counts: (1) abusive sexual contact (18
U.S.C. § 2244(a)(1)); and (2) possession of a firearm by an
unlawful user of a controlled substance (18 U.S.C.
§ 922(g)(3)). The district court accepted the plea agreement
and Warren’s guilty plea. In the plea agreement, the parties
agreed that the proper range under the United States
Sentencing Guidelines, see United States Sentencing
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Guidelines Manual (Guidelines), was between 27 and 33
months’ imprisonment.
Warren filed a sentencing memorandum arguing for a
below-Guidelines sentence because he suffered from PTSD,
depression and substance abuse problems. At a January 31,
2011 pre-sentencing hearing held to hear from Warren’s
psychiatrist, the psychiatrist testified that the United States
Bureau of Prisons had only one facility—in Lexington, KY—
that could treat Warren’s so-called “dual diagnos[e]s” of
substance abuse and mental problems. SA, Tab I at 54-55.
Because the program had limited space and thus a long
waiting period, however, he recommended that Warren be
treated at a private facility called Behavioral Health of the
Palm Beaches, located in Lake Park, Florida.
At the March 3, 2011 sentencing, the court rejected
Warren’s argument that his “dual diagnos[e]s” entitled him to
a shorter sentence. Instead, while the court agreed that the
Guidelines range was 27 to 33 months’ imprisonment, it
imposed an upward variance and sentenced Warren to 65
months in prison. The court explained its reasons for the
sentence. On the one hand, it noted, Warren had an excellent
career, the loss of his job was painful, he suffered from
mental and substance abuse problems and he had “served this
country well.” Appendix (A) 8-9, 11. On the other hand, the
court explained, an above-Guideline variance was appropriate
because, inter alia, (1) Warren was a high-level United States
officer with diplomatic immunity; (2) he took a “calculated
risk” in victimizing Person A, a married Muslim woman, who
he believed would not complain to authorities (for religious
reasons) and could not seek legal recourse because of
Warren’s diplomatic immunity; (3) Person A’s victim impact
statement was “overwhelming to read” because of the harm
Warren caused to her life; (4) “there has to be a clear message
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that people should not abuse others in other cultures who may
not be in a position to come forward and speak for
themselves” and (5) if released, Warren would pose a danger
to himself and the community based on his conduct on arrest.
See A 13-15.
The district court also recommended to the Bureau of
Prisons that Warren be placed in the Lexington program but,
on the recommendation of Warren’s counsel, changed its
recommendation to a facility in Butner, NC. Warren timely
appealed his sentence pursuant to 18 U.S.C. § 3742(a).
II.
We review a sentencing challenge under a two-step
analysis. United States v. Locke, 664 F.3d 353, 356 (D.C. Cir.
2011). First, we determine whether the district court
committed significant procedural error. Id. (quoting United
States v. Akhigbe, 642 F.3d 1078, 1085 (D.C. Cir. 2011)).
Second, “we review the overall reasonableness of the
sentence to ensure that it is objectively reasonable in light of
the sentencing factors in [18 U.S.C. § 3553(a)].” Id. at 356 n.3
(citing United States v. Wilson, 605 F.3d 985, 1033-34 (D.C.
Cir. 2010) (per curiam); United States v. Olivares, 473 F.3d
1224, 1226 (D.C. Cir. 2006)).
A.
Warren makes several procedural error arguments
regarding the district court’s explanation of his sentence.
Because Warren failed to make the objections at sentencing,
we review for plain error. See United States v. Mahdi, 598
F.3d 883, 888 (D.C. Cir. 2010). To establish plain error,
Warren must show “(1) there is in fact an error to correct; (2)
the error is plain; (3) it affects substantial rights; and (4) it
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seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (quotation marks omitted).
Warren first argues that the court failed to adequately
explain its reasons for imposing an upward variance. We
disagree. The Sentencing Reform Act of 1984, 18 U.S.C.
§§ 3551 et seq., requires the district court to explain, at the
time of sentencing and in open court, its reasons for the
defendant’s sentence. See Locke, 664 F.3d at 357 (quoting 18
U.S.C. § 3553(c)). Additionally, if a sentence “is not of the
kind, or is outside the range, described in [the Guidelines],”
the court must state “the specific reason for the imposition of
a sentence different from that described.” 18 U.S.C. §
3553(c)(2). This requirement has two purposes: to “‘develop
an adequate record so that appellate courts can perform
substantive review’” and to “guarantee that sentencing judges
continue to consider every convicted person as an individual.”
Locke, 664 F.3d at 357 (quotation marks omitted). Here, the
district court gave a detailed explanation for its above-
Guidelines sentence, referencing, among other facts, that
Warren was a high-level representative with diplomatic
immunity, that he took advantage of Person A’s religion in
sexually abusing her, that Person A’s victim impact statement
was “overwhelming to read” and that Warren’s conduct in
resisting arrest showed that he posed a danger to himself and
others. See A 13-15. Contrary to Warren’s assertion, his case
is in no way like our Akhigbe decision, in which we found
that the district court committed plain error in imposing an
above-Guidelines sentence when it gave virtually “no
individualized reasoning as to why [it] believed a sentence 12
months above the Guidelines range was appropriate for this
particular defendant.” 642 F.3d at 1086. By contrast, the
district court’s explanation of its upward variance was
extensive and individualized.
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Warren next complains that the court’s written
explanation of the sentence was insufficient. 18 U.S.C.
§ 3553(c)(2) provides that, in imposing an upward variance,
in addition to explaining its reasons for doing so in open
court, the court must state its reasons “with specificity in a
statement of reasons form issued under [28 U.S.C. §
994(w)(1)(B)].” “Written statements offering only vague
generalities that fail to discuss meaningfully the particular
defendant and his particular crime do not” satisfy section
3553(c)(2). Akhigbe, 642 F.3d at 1087. But here, the
statement of reasons form—attached to an annotated partial
transcript of Warren’s March 3 sentencing—offered more
than “vague generalities.” First, the form (which was attached
to the judgment) explained that the upward variance was
based on four factors included in section 3553(a).1 Second,
the transcript, which was incorporated by reference into the
statement of reasons form, contained the district court’s entire
oral explanation of the sentence, including the upward
variance, along with the court’s annotations. This court has
previously approved a written statement of reasons in which
the district court incorporated the sentencing transcript by
reference. See United States v. Wilson, 605 F.3d at 1035(finding written statement adequate because the district
court’s written statement of reasons “referenc[ed] its findings
at the sentencing hearing”).
1
The factors are: (1) “the nature and circumstances of the offense
and the history and characteristics of the defendant” (18 U.S.C. §
3553(a)(1)); (2) “the seriousness of the offense, . . . respect for the
law, and . . . just punishment for the offense” (18 U.S.C. §
3553(a)(2)(A)); (3) “adequate deterrence to criminal conduct” (18
U.S.C. § 3553(a)(2)(B)); (4) “protect[ing] the public from further
crimes of the defendant” (18 U.S.C. § 3553(a)(7)). A 3.
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Warren also claims that the district court improperly
varied upward based in part on Warren’s sexual abuse of
Person B despite the court’s statement that it “was not in a
position to determine what had happened” to Person B. SA,
Tab I at 49. Warren misunderstands the record. While the
court mentioned Warren’s abuse of Person B during
sentencing, it did not rely on that incident as a reason for the
upward variance. Instead, the court’s variance explanation
plainly relied on the assault of only one woman, Person A.
See, e.g., A 13-14 (“[t]he victim here is a married Muslim
woman . . . . [s]he could not seek legal recourse . . . . by
picking a victim such as this woman . . . . she would not
complain . . . . [h]er victim impact statement2”) (emphases
added).
Warren’s final procedural error argument is that the
sentencing court considered only two of the section 3553(a)
factors. Appellant Reply Br. 1. Although Warren’s briefs are
difficult to understand on this point, his argument appears to
be that the court erred by failing to explicitly refer to each
section 3553(a) factor. This argument also fails. “[W]e
ordinarily presume a district court imposing an alternative
non-guidelines sentence took into account all the factors listed
in § 3553(a) and accorded them the appropriate significance.”
United States v. Ayers, 428 F.3d 312, 315 (D.C. Cir. 2005);
see also United States v. Simpson, 430 F.3d 1177, 1186 (D.C.
Cir. 2005) (“It is true that the district court did not specifically
refer to each factor listed in § 3553(a). But we have not
required courts to do so.”) (emphasis in original). Here,
Warren “has proffered nothing to rebut that presumption,”
Locke, 664 F.3d at 358. Warren’s argument is particularly
2
Only Person A filed a victim impact statement. A 10 (“They could
not locate [Person B] to file a victim impact statement.”).
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wanting because the court gave a nine-page oral explanation
of the sentence on the record, after a 44-page colloquy
between the parties and the court and after the court had
reviewed the parties’ sentencing memoranda.
In sum, Warren fails to show any, much less plain,
procedural error.
B.
Warren also argues that his sentence is substantively
invalid. His argument, reviewed for abuse of discretion, see
United States v. Gardellini, 545 F.3d 1089, 1092 (D.C. Cir.
2008), fails.
Specifically, Warren complains “the most reasonable
sentence would have been to provide Mr. Warren with
treatment for his PTSD and depression at a facility like
Behavioral Health of the Palm Beaches in Florida” after a
short term of imprisonment. Appellant Opening Br. (App. Br.)
27 (footnote omitted). In support, Warren cites his mental
health and substance abuse diagnoses and his psychiatrist’s
opinion that the only Bureau of Prisons facility that could
adequately treat Warren’s diagnoses had a long waiting list,
with the result that Warren would have to spend a lengthy
period in a traditional Bureau of Prisons facility that could not
adequately treat him. Warren also complains generally about
his sentence, arguing that the court did not give enough
weight to the fact that he led an “otherwise impeccable life,
one characterized by devotion and service to his country,”
App. Br. 3. Warren’s mental health and substance abuse
problems are, of course, relevant to sentencing. While a PTSD
diagnosis may mitigate criminal conduct that occurs
spontaneously or unexpectedly—for example, Warren’s
resisting arrest—his conviction resulted from conduct,
especially drugging his victim, that was planned and
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deliberate. Granted, 18 U.S.C. § 3553(a)(2) requires the
district court to consider “the need for the sentence imposed”
and sets forth as one of the considerations thereunder “to
provide the defendant with needed . . . medical care.” 18
U.S.C. § 3553(a)(2)(D). But the district court considered that
factor. Because of Warren’s diagnoses, the court
recommended that he be placed at the Lexington, KY facility
recommended by Warren’s psychiatrist and then agreed to
change the recommendation to a facility in Butner, NC, at the
request of Warren’s counsel.
For the foregoing reasons, we affirm the district court’s
judgment.
So ordered.