US v. Larry Johnson, No. 13-4542 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4542 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LARRY RAY JOHNSON, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, District Judge. (2:12-cr-00015-JPJ-PMS-1) Submitted: August 28, 2014 Decided: September 3, 2014 Before WILKINSON, KING, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Charles M. Henter, HENTERLAW, PLC, Charlottesville, for Appellant. Timothy J. Heaphy, United States Zachary T. Lee, Assistant United States Attorney, Virginia, for Appellee. Virginia, Attorney, Abingdon, Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Larry Ray Johnson was convicted by a jury of eight counts of mailing threatening communications, 18 U.S.C. § 876(c) (2012), and was sentenced to an above-Guidelines sentence of 240 months imprisonment. He appeals, claiming that the district court erred in denying his request for a second mental health evaluation and in imposing a sentence substantially above the Guidelines range of 78-97 months imprisonment. Finding no error, we affirm. Johnson, graphically a Virginia violent, inmate threatening officials between 2007 and 2010. jury returned letters. a nine-count since 1973, letters to mailed various nine public In April 2012, a federal grand indictment based on each of the At his initial appearance before a magistrate judge, Johnson requested and was granted a psychiatric evaluation to determine his competency to stand trial. Johnson was then sent to the Federal Medical Center in Lexington, Kentucky, where he underwent a mental health evaluation. The forensic report included an analysis of Johnson s responses to questions posed to him, a review of his mental health and prison record, investigative material involving the nine threatening letters, and his behavior with other inmates and staff during the period of evaluation. The report concluded that Johnson was diagnosed with malingering as well as antisocial personality disorder. 2 At Johnson s competency hearing, the magistrate judge reviewed the forensic report and determined that Johnson was competent to stand trial. On A January 2013 trial date was set. December 19, 2012, withdrew from representation. Johnson requested a Johnson s attorney moved to At the hearing the following day, second psychiatric examination. A new attorney was appointed to represent Johnson and, on February 14, 2013, after counsel meeting filed a with motion Johnson, to withdraw additional psychiatric evaluation. pro se motion to proceed pro se. pro se, and competency. psychological remove his Johnson s newly-appointed Johnson s motion for an On March 1, Johnson filed a court-appointed attorney and to The court denied Johnson s motion to proceed convened another hearing to determine Johnson s Johnson then filed another a motion for a second evaluation. At a hearing held the day before Johnson s scheduled trial date, the district court denied his motion and found him fully competent to stand trial. The jury found Johnson guilty of Counts One and Three through Nine; he was acquitted on Count Two. Based on a total offense level of 26, and a criminal history category of III, Johnson s advisory Guidelines range was 78-97 months. However, the to Government filed a Motion and Notice of Intent Seek Upward Departure and Upward Variance, in which it requested a sentence of 300 months, arguing that Johnson s criminal history 3 category substantially underrepresented the seriousness of his criminal history and the likelihood that he would commit other crimes. months The district court imposed a 240-month sentence (120 on each count, to run partly concurrently). Johnson noted a timely appeal. Johnson first argues that the district court erred in denying his request for a second mental health evaluation. district court must hold a competency hearing if there A is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. 18 U.S.C. § 4241(a) (2012). Whether reasonable cause has been demonstrated is left to the discretion of the district court. F.3d 1286, 1289 (4th Cir. 1995). United States v. Mason, 52 In determining whether there is reasonable cause to order a competency hearing, a trial court must consider evidence of irrational behavior, the defendant s demeanor at trial, and defendant s competence. usually persuasive medical opinions Id. at 1290. evidence on the concerning Medical opinions are question of whether sufficient doubt exists as to the defendant s competence. (internal quotation marks omitted). 4 the a Id. Applying these standards, we find that the district court did not abuse its discretion in refusing Johnson s request for a second competency evaluation. a thorough evaluation beginning in First, Johnson was granted July 2012 and offers no evidence nor does he suggest that his condition somehow deteriorated between the time of the first evaluation and his motion for a second one. Second, the record amply supported the district court s conclusion that there was no reasonable cause to order another competency hearing. The initial examination, along with other supporting evidence, established that Johnson did not suffer from a mental disease or defect rendering him unable to assist in his defense and was, therefore, competent to stand trial. Johnson also challenges his 240-month sentence, arguing that the district court did not adequately explain its reasons for applicable imposing Guidelines reasonableness, a sentence range. applying We an substantially review a above the sentence for abuse-of-discretion Gall v. United States, 552 U.S. 38, 51 (2007). standard. This court must first review for significant procedural error[s], including, among other things, improperly calculating the Guidelines range. Id. Only if we find a sentence procedurally reasonable may we consider its substantive reasonableness. Id. Regardless of whether a district court varies or departs, this court reviews 5 the substantive reasonableness of an above-Guidelines sentence with regard to whether the District Judge abused his discretion in determining that the [18 U.S.C.] § 3553(a) [(2012)] factors supported [the] sentence . . . and justified [the] deviation from the Guidelines range. we take into account Gall, 552 U.S. at 56. the totality of the In doing so, circumstances, including the extent of any variance from the Guidelines range. Id. at 51. Johnson reasonableness does of his not challenge sentence. Rather, the he procedural argues that his sentence was 250% above the top of the Guidelines range and, therefore, required more explanation from the district court in order to sustain the extent of the variance. We find that the district court clearly and adequately explained its reasoning for the higher sentence. § 3553(a) factors reasoning for range. a The underlying sentence court its identified decision significantly and above the relevant explained the the Guidelines Johnson cannot show that his sentence is substantively unreasonable. Accordingly, sentence. We deny we affirm Johnson s Johnson s motion to conviction file a pro and se supplemental brief and we dispense with oral argument because the facts and legal contentions are adequately presented in the 6 materials before this court and argument would not aid the decisional process. AFFIRMED 7

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