United States v. Harvey

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5128
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEOFFREY HAROLD HARVEY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin,
Chief District Judge. (2:07-cr-00033-1)
Argued: March 25, 2009 Decided: May 6, 2009
Before MICHAEL, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: David Robert Bungard, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. Lisa Grimes
Johnston, OFFICE OF THE UNITED STATES ATTORNEY, Huntington, West
Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal
Public Defender, Jonathan D. Byrne, Appellate Counsel, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for
Appellant. Charles T. Miller, United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Geoffrey Harold Harvey (“Harvey”) appeals the judgment of
the United States District Court for the Southern District of
West Virginia at Charleston, which sentenced Harvey to a term of
309 months’ imprisonment for violation of 18 U.S.C. §
924(c)(1)(A)(iii) (2000). Harvey contends that the sentence is
greater than necessary to comply with the purposes set forth in
18 U.S.C. § 3553(a)(2), and that the district court abused its
discretion when imposing a substantial upward sentencing
variance. For the following reasons, we affirm the judgment of
the district court.
I.
A.
On November 13, 2006, Harvey broke into a residence near
his home in Logan County, West Virginia, and stole a sawed-off
shotgun and another firearm and ammunition. Later that day,
Harvey entered the Family Discount Pharmacy (“pharmacy”) armed
with the stolen firearms. Harvey pointed the sawed-off shotgun
at the cashier and fired into a cabinet next to her, but she was
not injured.
Although many of the customers and employees escaped,
Harvey took four employees and two customers hostage at gunpoint
in a small office of the pharmacy. He ordered one of the
2
hostages to obtain Lortab, Oxycontin, and Xanax pills from the
pharmacy for him. He proceeded to crush and snort the pills, by
all accounts intending to cause his own death.
Harvey then directed one of the hostages to call 911. He
ordered the hostage to tell the 911 operator that “[i]f the
police come he’s going to kill us all.” (JA 70). Harvey fired
the sawed-off shotgun a total of four times during the course of
a two-hour period while he held the hostages captive. Based on
the victims’ reports, he threatened the hostages with death if
they tried to escape. Throughout the ordeal, the hostages
believed that the defendant was going to kill them and prepared
themselves for impending death.
Eventually, the pills that Harvey took began to take
effect, and one of the hostages was able to grab the shotgun and
hit him over the head. Law enforcement officers entered the
pharmacy, rescued the hostages, and arrested Harvey.
B.
Harvey was charged in a two-count indictment in the
Southern District of West Virginia at Charleston. Count One
charged Harvey with armed robbery of a pharmacy in violation of
18 U.S.C. §§ 2118(a) and 2118(c)(1). Count Two charged Harvey
with “us[ing], carry[ing] and discharg[ing] a firearm . . .
during and in relation to a crime of violence . . . while
3
committing a pharmacy robbery . . . [i]n violation of 18 U.S.C.
§ 924(c)(1)(A)(iii).” (JA 10). Harvey pled guilty to both
charges without a plea agreement.
In preparing the Presentence Investigation Report (“PSIR”),
the probation officer concluded that, with regard to Count One,
Harvey had a total offense level of 22. Harvey’s base offense
level was 20 under U.S. Sentencing Guidelines Manual § 2B3.1
(2008), with a four-level increase under § 2B3.1(b)(4)(A)
because victims were abducted to facilitate the offense, a one-
level increase pursuant to § 2B3.1(b)(6) because Harvey stole
controlled substances, and a three-level decrease under § 3E1.1
for acceptance of responsibility, as evidenced by his guilty
plea. Factoring in Harvey’s Category I criminal history level,
his total offense level resulted in a sentencing range of 41 to
51 months as to Count One. With regard to Count Two, the
probation officer concluded that the Guideline sentence was the
minimum ten year sentence statutorily prescribed by 18 U.S.C. §
924(c)(1)(A)(iii) (2006).
According to the PSIR, Harvey had a long history of
substance abuse and mental health issues including a history of
suicidal and violent behavior. He admitted that he is hostile
with others, abusive to his girlfriend, and has raped her.
Harvey has been subjected to involuntary psychiatric
hospitalizations several times throughout the last decade.
4
During a 2006 hospitalization he was diagnosed with bipolar
disorder, polysubstance abuse, attention deficit hyperactivity
disorder, and antisocial personality disorder.
During the sentencing hearing, the district court heard
from four of the hostage victims. Each victim testified that
they feared for their lives throughout the standoff, and
believed that Harvey “would have killed us if we had not gotten
out.” (JA 212). Each victim testified that they had lasting
traumatic emotional effects from the event.
Dr. Ryan Finkenbine testified that Harvey suffered from
several mental health disorders at the time of the offense,
including polysubstance abuse, mood disorder, depression, and
anxiety disorder, and that he did intend to kill himself that
day. Dr. Finkenbine admitted that Harvey’s “severe depression
was self-induced” because “it was caused by the fact that he
chose to use drugs and was addicted to drugs.” (JA 281).
Further, Dr. Finkenbine testified that, according to Dr.
Rosemary Smith’s report, at the time of the offense, Harvey was
not suffering from a mental disease that would have prevented
him from appreciating the wrongfulness or nature of his acts,
and that he was capable of making decisions, forming intent, and
weighing alternatives. Dr. Finkenbine concluded that, although
there were factors that “make[] [Harvey] more dangerous than the
5
general person walking on the street, . . . some factors . . .
make him less dangerous.” (JA 271-72).
The district court sentenced Harvey to 51 months’
imprisonment on Count One, 309 months’ imprisonment on Count
Two, a five year term of supervised release, and ordered Harvey
to pay restitution in the amount of $4,914.24. Although the
district court noted that the sentence for Count Two constituted
a significant upward variance from the ten year statutory
minimum, it concluded that the sentence was appropriate under
the §3553(a) factors because Harvey is “dangerous to himself,”
“dangerous to others,” (JA 292) and because “the offense
demonstrates a complete and utter disregard for the value of
human life.” (JA 293). In arriving at a “just sentence” the
district court also “considered the long-lasting personal and
emotional injuries incurred by the victims,” (JA 295), what it
found was little remorse on the part of Harvey, and ultimately
determined that the sentence was “not greater than necessary to
achieve the sentencing goals as set out in 3553(a).” (JA 297).
The district court stated that “this sentence reflects the
seriousness of the offense, provides just punishment, and will
promote respect for the law. It reflects the nature and
circumstances of the offense . . . and the history and the
characteristics of the defendant . . . .” (JA 297-98).
6
II.
On appeal, Harvey argues that the imposition of a 309-month
sentence for Count Two was unreasonable in light of the purposes
of § 3553(a) because the district court failed to find that his
mental health conditions and the treatability of those
conditions necessitated a sentence on the lower end of the
Guideline range. 1
On appeal, this Court’s review of a district court’s
sentence is deferential and governed by the abuse of discretion
standard. Gall v. United States, ___ U.S. ___, 128 S. Ct. 586,
597 (2007). The Court “must give due deference to the district
court’s decision that the § 3553(a) factors, on a whole, justify
the extent of the variance. The fact that the appellate court
might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district
court.” Id.
1
Harvey did not appeal the 51-month sentence he received
for Count One, the term of supervised release, or the order of
restitution. Accordingly, none of these are before us in this
appeal and the district court’s judgment as to those matters is
final.
7
A.
The issue in this case is whether the 309-month sentence as
to Count Two is substantively reasonable, 2 or whether the
district court abused its discretion in deciding that the §
3553(a) factors supported an upward variance from the ten year
statutory minimum sentence. Id. For sentences outside of the
Guidelines range, a district court “must consider the extent of
the deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance. . . . a major
departure should be supported by a more significant
justification than a minor one.” Gall, 128 S. Ct. at 597.
Although we may presume on appeal that a sentence imposed within
the properly calculated Guidelines range is reasonable, United
States v. Go, 517 F.3d 216, 218 (4th Cir. 2008), we may not
apply a presumption of unreasonableness to sentences outside the
Guideline range. Gall, 128 S. Ct. at 597. Instead, the Supreme
2
The initial matter for appellate review is to ensure that
the sentencing court did not commit procedural error in
calculation of the sentence, such as “failing to calculate (or
improperly calculating) the Guideline range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] §
3553(a) [(2006)] factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence—including an explanation for any deviation from the
Guidelines range.” Gall, 128 S. Ct. at 597. Appellant does
not argue procedural error on brief, nor is the argument
encompassed in the issue for review; it is therefore waived. See
Cavallo v. Star Enterprise, 100 F.3d 1150, 1152 n.2 (4th Cir.
1996). Regardless, no procedural error appears in the record.
8
Court in Gall explained that the reviewing court should “take
into account the totality of the circumstances, including the
extent of any variance from the Guidelines range.” Id.Harvey argues that “[t]he district court abused its
discretion by imposing a sentence 157% greater than that
recommended by the Guidelines . . . .” (Br. 14). He contends
that his sentence is substantively unreasonable because it is
greater than necessary to comply with the purposes of § 3553(a).
Specifically, it is greater than needed to “afford
adequate deterrence to criminal conduct,” . . .
“protect the public from further crimes of the
defendant,” where the mental health issues that
underlined Harvey’s behavior are treatable; and
“reflect the seriousness of the offense” and “to
provide just punishment for the offense,” where the
offense, while serious and dangerous, did not result
in any physical injury.
(Br. 19 (quoting § 3553(a)(2)) (internal citations omitted)).
Harvey contends that his “criminal conduct was the
culmination of a long history of self-destructive behavior
fueled by mental illness,” and “[t]hat mental illness, which
undisputed expert testimony showed was treatable, was not
adequately considered by the district court . . . .” (Br. 14).
Harvey asserts that the need to protect the public and deter
criminal conduct is diminished because of the treatable nature
of his mental illness. Relying on a Seventh Circuit opinion,
United States v. Miranda, 505 F.3d 785 (7th Cir. 2007), Harvey
claims that the district court failed to sufficiently examine
9
how Harvey’s mental health, and specifically his potential for
treatment, relate to the factors under § 3553(a).
B.
The record reflects that the district court considered the
§ 3553(a) factors, as well as the testimony of Dr. Finkenbine,
and made “an individualized assessment based on the facts
presented.” Gall, 128 S. Ct. at 597. The district court focused
on several main points in arriving at the sentence for Count
Two. First, the court emphasized the violent nature of the
offense. Second, the court stressed the impact on the victims
and the long-lasting emotional effects. Lastly, the court
sufficiently and comprehensively evaluated Harvey’s own
characteristics, including his lack of remorse, his capacity for
violence, and the factor of his mental health.
The district court described the factual details of the
offense, including that Harvey stole the weapons, purposefully
fired the shotgun to show that he “meant business,” and that he
“repeatedly threatened to kill the hostages if police were
summoned or a hostage attempted to escape . . . .” (JA 292-93).
Harvey fired four shots while “he held those six hostages in a
very small and cramped office.” (JA 293). The court concluded
that “Harvey’s crime, the nature of it, . . . demonstrates a
complete and utter disregard for the value of human life. The
10
offense was deliberate. It was malicious. Throughout the
ordeal, the hostages believed that the defendant was going to
kill them and prepared themselves for impending death.” (JA
293). The district court pointed out that the sentence imposed
was based on these considerations, and that the court
“considered the effects of the violent abduction” in determining
an appropriate sentence. (JA 293).
The district court also placed great weight on the
testimony of the victims of Harvey’s crime, stating that it
“considered the long-lasting personal and emotional injuries
incurred by the victims in arriving at a just sentence.” (JA
295). The court noted that “[w]ithout exception, each hostage
believed they would be murdered. Each victim continues . . . to
suffer from the trauma according to their own words in court.”
(JA 295-96). Specifically, the court indicated that one victim
could not return to work, another “continues to receive mental
health counseling and is prescribed both anti-depressants and
anxiety medication,” and all of the victims “report being afraid
of crowds, public places.” (JA 296). The pharmacist “reiterated
that Mr. Harvey not only changed the victims’ lives, but in the
end showed absolutely no remorse.” (JA 296).
Even though Harvey received a reduction of one level for
acceptance of responsibility because of his guilty plea, the
court found he did not show any meaningful level of remorse.
11
During the hearing, Harvey was quoted as stating, in reference
to his crime, “[i]t wasn’t me. It was the other me.” (JA 296).
The district court also cited a victim’s testimony that Harvey
made the “unrepentant statement” that he “would have been meaner
so, so he could have controlled them more . . . given another
opportunity.” (JA 296).
The district court also properly took into account Harvey’s
characteristics, as related by Dr. Finkenbine and the medical
records. 3 The court noted Harvey’s “history of aggressive and
suicidal behaviors which have led to several involuntary
psychiatric hospitalizations” (JA 294) and Harvey’s “severe and
long-term polysubstance abuse.” (JA 294). In particular, the
court reviewed “the medical histories submitted as evidence” (JA
298) and Harvey’s own statements as to his mental health and
3
Harvey contends that the district court misconstrued at
least one of Dr. Finkenbine’s statements, and that “[t]o the
extent that the district court’s sentence was based on its
misunderstanding of Dr. Finkebine’s conclusion, it was an abuse
of discretion . . . .” (Br. 22). The district court concluded
that Dr. Finkenbine’s opinion was that Harvey “poses a greater
risk for the likelihood of dangerous behavior than a person in
the general population.” (JA 294). Dr. Finkenbine testified
that some factors “make[] [Harvey] more dangerous than the
general person walking in the street, and some factors . . .
make him less dangerous. That is, he does not fall in a group
of more dangerous people.” (JA 271-72). This statement is
confusing and open to interpretation. The district court did
not clearly err in concluding that Harvey poses a greater risk
of dangerous behavior than someone in the general population,
based on Dr. Finkenbine’s conclusion that “some factors” do make
him “more dangerous than the general person.”
12
capacity for extreme violence. The court cited statements by
Harvey that he is “uncontrollable at times, bad temper, hurt
myself all the time [sic],” that he “has bad thoughts, wants to
hurt people, and also beat a man to death with a ball bat,” and
that he reported as far back as 1975 that he “had a very bad
temper, that he drinks all the time, and that he hits people.”
(JA 294-95). The district court also noted that the record
demonstrates a “history of raping his girlfriend and a history
of domestic violence.” (JA 294). Any contention that the
district court did not consider Harvey’s characteristics,
particularly his mental health and history of mental illness, is
without merit.
After engaging in appropriate fact-finding, the district
court referenced the § 3553(a) factors, their application to
Harvey, and noted that the court “carefully considered whether
the guideline sentence would be sufficient to meet the ends of
justice,” concluding that “this severe sentence is required to
meet the ends of justice.” (JA 297). The court “considered the
horrific nature of the crime, a lengthy period of being held
captive and subjected to threats of death . . ., [and] the
lasting effect of the criminal conduct upon the victims . . . .”
(JA 297). The court then concluded that the sentence given
promoted the relevant statutory goals because it “reflects the
seriousness of the offense, provides just punishment, and will
13
promote respect for the law. It reflects the nature and
circumstances of the offense . . . and the history and the
characteristics of the defendant . . . .” (JA 297).
C.
Harvey finally argues that “the district court in this case
did not sufficiently examine how Harvey’s mental illnesses and
their potential response to treatment interact with § 3553(a)’s
command to consider the issue of deterrence.” (Br. 20).
Consequently, Harvey contends the district court’s variant
sentence amounted to an abuse of discretion and cites to the
Seventh Circuit decision in Miranda, which held, under the facts
of that case, that “[i]f the mental illness is treatable . . .
the goal of incapacitation may not be advanced by a heavy
sentence.” Miranda, 505 F.3d at 793. Harvey posits that
Miranda is applicable to his case because Dr. Finkenbine
“testified that had Harvey not been suffering from mental
illness, it was unlikely that he would have committed the
offenses” and that he “testified that treatments were available
to address Harvey’s illnesses.” (Br. 20).
In Miranda, the defendant pled guilty to bank robbery and
argued for a below-guidelines sentence because he “suffered from
severe mental illness and that his mental illness was a
substantial factor in committing his crime.” Miranda, 505 F.3d
14at 789-90. The psychiatric report introduced at sentencing
diagnosed Miranda with Schizoaffective Disorder and the
psychiatrist testified that Miranda suffered from auditory
hallucinations, which were not caused by drug use, and he was
hallucinating at the time of the crime. Id. at 788.
We find Harvey’s argument unpersuasive. Not only is
Miranda not persuasive authority in this Circuit, it is also
readily distinguishable from the case at bar.
First, Miranda argued specifically to the district court
for a below-Guidelines sentence based on his diminished capacity
under § 5K2.13. 4 The Seventh Circuit found that the district
court “did not directly address these non-frivolous arguments”
Miranda, 505 F.3d at 786, and concluded that “when a court gives
little or no attention to the defendant’s principal argument
when that argument ‘was not so weak as not to merit discussion,’
we cannot have confidence that the judge adequately considered
the section 3553(a) factors.” Id. at 792 (citations omitted).
By contrast, Harvey specifically disclaimed any diminished
4
Although “[t]he concept of departures has been rendered
obsolete in post-Booker sentencing . . . the district court may
apply those departure guidelines by way of analogy in analyzing
the section 3553(a) factors.” Miranda, 505 F.3d at 792 (citing
United States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005)).
15
capacity departure 5 under the Guidelines at the sentencing
hearing: “we aren’t asking for a departure on diminished
capacity or any other mental health issue.” Had Harvey asked
for such a departure, § 5K2.13 would not provide him any relief
because a diminished capacity departure does not apply if
reduced capacity “was caused by the voluntary use of drugs . . .
.” § 5K2.13. By all accounts Harvey was a drug addict, and the
uncontroverted testimony of his own expert stated that “the
major cause of his severe depression was his drug use.” (JA
275).
Miranda is also distinguishable from the instant case
because the defendant there established his crime was caused by
his diagnosed condition because he was hallucinating at the time
he committed it. Moreover, the hallucinations were not self
induced by the defendant’s intentional acts such as Harvey’s
intentional drug use. See Miranda, 505 F.3d at 789. By
contrast, there is no evidence Harvey’s crime was caused by any
diagnosed condition. To the contrary, the opinion of one
psychologist was that Harvey “had no mental disease or defect
which would have prevented him from appreciating the
5
In his Sentencing Memorandum, Harvey specifically stated
that he “would ask this Court to consider imposing a sentence at
the low end of his advisory guideline range for the robbery
offense (Count One) and the mandatory minimum sentence of ten
years for . . . Count Two . . . .” (JA 50).
16
wrongfulness of his acts.” (JA 276). Thus, not only is Miranda
distinguishable and inapplicable to the case at bar, the earlier
recital of the district court’s review of Harvey’s medical
history supports the conclusion that we can be “confident that
the court gave these arguments adequate consideration.” See
Miranda, 505 F.3d at 792-93.
Accordingly, we conclude the district court did not abuse
its discretion in rendering the 309-month sentence on Count Two.
III.
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
17