United States v. Larry Johnson , 583 F. App'x 62 ( 2014 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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, Virginia,
for Appellant. Timothy J. Heaphy, United States Attorney,
Zachary T. Lee, Assistant United States Attorney, Abingdon,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.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, a Virginia inmate since 1973, mailed nine
graphically violent, threatening letters to various public
officials between 2007 and 2010. In April 2012, a federal grand
jury returned a nine-count indictment based on each of the
letters. 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. At
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Johnson’s competency hearing, the magistrate judge reviewed the
forensic report and determined that Johnson was competent to
stand trial. A January 2013 trial date was set.
On December 19, 2012, Johnson’s attorney moved to
withdrew from representation. At the hearing the following day,
Johnson requested a second psychiatric examination. A new
attorney was appointed to represent Johnson and, on February 14,
2013, after meeting with Johnson, Johnson’s newly-appointed
counsel filed a motion to withdraw Johnson’s motion for an
additional psychiatric evaluation. On March 1, Johnson filed a
pro se motion to remove his court-appointed attorney and to
proceed pro se. The court denied Johnson’s motion to proceed
pro se, and convened another hearing to determine Johnson’s
competency. Johnson then filed another a motion for a second
psychological 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 Government filed a Motion and Notice of Intent to Seek
Upward Departure and Upward Variance, in which it requested a
sentence of 300 months, arguing that Johnson’s criminal history
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category substantially underrepresented the seriousness of his
criminal history and the likelihood that he would commit other
crimes. The district court imposed a 240-month sentence (120
months 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. A
district court must hold a competency hearing “if there 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. United States v. Mason, 52
F.3d 1286, 1289 (4th Cir. 1995). 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 medical opinions concerning the
defendant’s competence.” Id. at 1290. “Medical opinions are
usually persuasive evidence on the question of whether a
sufficient doubt exists as to the defendant’s competence.” Id.(internal quotation marks omitted).
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Applying these standards, we find that the district
court did not abuse its discretion in refusing Johnson’s request
for a second competency evaluation. First, Johnson was granted
a thorough evaluation beginning in 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 imposing a sentence substantially above the
applicable Guidelines range. We review a sentence for
reasonableness, applying “an abuse-of-discretion standard.”
Gall v. United States, 552 U.S. 38, 51 (2007). 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
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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.” Gall, 552 U.S. at 56. In doing so,
we “take into account the totality of the circumstances,
including the extent of any variance from the Guidelines range.”
Id. at 51.
Johnson does not challenge the procedural
reasonableness of his sentence. Rather, he 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. The court identified the relevant
§ 3553(a) factors underlying its decision and explained the
reasoning for a sentence significantly above the Guidelines
range. Johnson cannot show that his sentence is substantively
unreasonable.
Accordingly, we affirm Johnson’s conviction and
sentence. We deny Johnson’s motion to file a pro se
supplemental brief and we dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before this court and argument would not aid the
decisional process.
AFFIRMED
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