United States v. David B. Kilkeary ( 2011 )


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  •                                                     NOT PRECEDENTIAL
    
    
                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ____________
    
                               No. 10-1710
                              ____________
    
                    UNITED STATES OF AMERICA,
    
    
                                    v.
    
                         DAVID B. KILKEARY,
                                         Appellant.
                            ___________
    
              On Appeal from the United States District Court
                       for the District of New Jersey
                 (D.C. Criminal No. 2-09-cr-00363-001)
               District Judge: Honorable Peter G. Sheridan
                               ___________
    
                Submitted Under Third Circuit LAR 34.1(a)
                            January 13, 2011
    
    Before:     SCIRICA, BARRY, and VANASKIE, Circuit Judges.
    
                         (Filed: February 1, 2011)
                               ___________
    
                       OPINION OF THE COURT
                            ___________
    VANASKIE, Circuit Judge.
    
           Appellant David B. Kilkeary (“Kilkeary”) appeals a twenty-five-year sentence
    
    imposed on him following his guilty plea to criminal charges stemming from his attempt
    
    to extort $3 million from an Atlantic City casino by holding hostages on a casino shuttle
    
    bus. Kilkeary claims that the District Court violated his Fifth Amendment right to due
    
    process of law, and committed both procedural and substantive error in sentencing him.
    
    Because we find that the District Court did not err, we will affirm.
    
                                                 I.
    
           On November 13, 2007, Kilkeary implemented a complicated scheme to extort $3
    
    million from the Showboat Hotel & Casino (the “Showboat”) in Atlantic City, New
    
    Jersey.1 Kilkeary decided to take hostages on a casino shuttle bus by threatening them
    
    with a fake handgun and a hoax bomb, and to plant a fake bomb in the hotel, with the
    
    design to trade the hostages and defuse the bombs for cash. After receiving the cash, he
    
    planned to escape by diverting the police by throwing a Molotov cocktail from the shuttle
    
    bus and driving the shuttle bus into an inlet. There, he would escape by using a self-
    
    
    1
     Kilkeary had previously engaged in illicit schemes to acquire cash. On the night of
    March 27, 1998, Kilkeary cut a hole in the roof of a bank in Annapolis, Maryland, laying
    in wait until employees arrived in the morning; he surprised them with a pellet gun,
    ordered them to sit in a safety deposit booth area and directed two employees to the vault,
    where he grabbed over $23,500 before fleeing. Then, in July of 1998, Kilkeary attempted
    to rob another Maryland bank in the same manner. He set off an alarm, however, and left
    without taking any money. The day after this robbery attempt, Kilkeary returned to the
    Annapolis bank and used the same scheme to steal $32,000. Because of an alert
    bystander, however, Kilkeary was apprehended as he fled in his truck into a wooded area.
    For these offenses, Kilkeary was sentenced to 51 months‟ imprisonment and three years‟
    supervised release. He completed his term of supervised release on December 19, 2005.
    
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    propelled scuba scooter to transport himself across the inlet to a nearby beach in
    
    Brigantine, New Jersey, retrieve a towel and dry clothing, and complete his escape by
    
    taxi to his waiting truck.
    
           In pursuit of his plan, Kilkeary rented a scuba tank, regulator, suit, and mask, and
    
    purchased a scuba motor. To avoid suspicion, he simultaneously signed up for scuba
    
    classes. He also purchased a pellet gun, wig and ski mask, and constructed a hoax bomb,
    
    suicide bomb vest, and detonation device, as well as a Molotov cocktail. Kilkeary lied to
    
    his wife and family, telling them that he was meeting a potential buyer of his construction
    
    business for a sale that would net $150,000.
    
           On November 13, 2007, Kilkeary first stopped at his escape destination on the
    
    beach in Brigantine, where he secreted a garbage bag containing towels, a change of
    
    clothes, and a $20 bill for transportation back to his truck. At about 8:30 p.m., he
    
    departed for the casino. Along the way, however, he stopped his truck for about ten
    
    minutes and contemplated the gravity of what he was about to do. Although he knew that
    
    what he was about to do was “wrong,” he determined to press on.
    
           Kilkeary arrived at the Showboat at approximately 9:45 p.m. and placed the hoax
    
    bomb in a second-floor bathroom next to the casino‟s poker room. He proceeded to the
    
    shuttle bus area. Having determined that the first bus was too crowded, he again stopped
    
    for several minutes awaiting the arrival of the second shuttle, and considered whether to
    
    proceed. Again, he resolved to act.
    
           When Kilkeary, now disguised, attempted to board the bus, Lee Speller, the bus
    
    driver, informed him that he could not do so with large bags. Kilkeary then produced the
    
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    fake gun and essentially stated, “You are going to drive this bus – I got a bomb.”
    
    (Presentence Report (“PSR”) ¶ 18.) Speller refused the command. In an ensuing
    
    physical struggle, Kilkeary and Speller fell out of the bus onto the street. Kilkeary re-
    
    entered the bus; the driver, who had sprained both ankles and a wrist, fled to safety.
    
           During the melee, passenger William Haley had exited the bus to assist the driver.
    
    Finding this fruitless, he offered to re-enter the bus if Kilkeary would release Haley‟s
    
    wife, Christine. When Kilkeary refused, Haley boarded the bus. Kilkeary threatened his
    
    four hostages with the gun, bomb, and detonator, pointing the gun at them and telling
    
    them that he would “kill” them and “blow everyone up.” (Id. ¶ 19-21; A. 356-57.)
    
    Kilkeary attempted to drive the bus, but was unsuccessful because he did not know how
    
    to release the air brake. Ten minutes later, after holding the gun to her head, Kilkeary
    
    released Christine Haley with instructions to inform Showboat security that he had
    
    hostages on the bus.
    
           A search of the hotel revealed the planted fake bomb. As a result of this
    
    discovery, the casino evacuated some 1500 to 2000 guests.
    
           Kilkeary then attempted to relocate himself and his hostages to a second bus. In
    
    the process, William Haley offered to carry Kilkeary‟s bags if the two remaining
    
    passengers were released. Kilkeary agreed, and the two passengers were released. After
    
    assisting Kilkeary in transferring the bags to a second bus, Haley managed to escape.
    
           Kilkeary, now alone, attempted to drive away in the second bus, but there were no
    
    keys. Law enforcement robotically delivered a cell phone to him, through which he
    
    negotiated for five and a half hours, pretending to be a former General from the Republic
    
                                                 4
    of Georgia and speaking with a Russian accent. After an aborted SWAT raid, Kilkeary
    
    surrendered to law enforcement at approximately 4:18 a.m.
    
           On May 18, 2009, a grand jury sitting in and for the District of New Jersey
    
    returned a three-count indictment, charging Kilkeary with willfully threatening to cause
    
    harm to persons and property by conveying false information that bombs he intended to
    
    detonate were genuine explosives, in violation of 18 U.S.C. §§ 844(e) and 2; kidnapping
    
    through an instrumentality of interstate commerce, in violation of 18 U.S.C. §§ 1201(a)
    
    and 2; and extortion, in violation of 18 U.S.C. §§ 1951(a) and 2. Kilkeary pleaded guilty
    
    to all counts on August 19, 2009.
    
           The District Court held a sentencing hearing on March 4 and 5, 2010. After
    
    considering extensive oral, written, and taped evidence, the court determined that
    
    Kilkeary‟s total offense level was 35, his criminal history category was II, and the
    
    applicable advisory Guidelines range was 188 to 235 months‟ incarceration. Next, there
    
    being no departure motions, the court considered Kilkeary‟s request for a downward
    
    variance based on the evidence concerning his mental health, and rejected it. The court
    
    considered the Government‟s request for an upward variance, and granted it in part. The
    
    court entered judgment on March 12, 2010, imposing a sentence of 300 months‟
    
    incarceration and five years‟ supervised release.
    
                                                II.
    
           The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
    
    jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
    
    
    
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           “Our appellate review proceeds in two stages.” United States v. Tomko, 
    562 F.3d 558
    , 567 (3d Cir. 2009) (en banc). First, we ensure “„that the district court committed no
    
    significant procedural error, such as failing to calculate (or improperly calculating) the
    
    Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a)
    
    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.‟” Id. (quoting Gall v. United States, 
    552 U.S. 38
    , 51 (2007)). If the
    
    district court‟s procedure is satisfactory, we move to stage two, considering the
    
    substantive reasonableness of the sentence. Id. (citing United States v. Levinson, 
    543 F.3d 190
    , 195 (3d Cir. 2008)). The substantive review mandates that we consider the
    
    totality of the circumstances, rather than one or two factors. Id. Our review for both
    
    procedural and substantive error proceeds under an abuse of discretion standard. Id.
    
    “We afford deference to the District Court because it is in the best position to determine
    
    the appropriate sentence in light of the particular circumstances of the case.” United
    
    States v. Dragon, 
    471 F.3d 501
    , 506 (3d Cir. 2006) (internal quotation marks omitted).
    
           Kilkeary argues that the District Court committed procedural error in failing to
    
    adequately explain its sentence and in failing to adequately address his argument that his
    
    mental illness was such a significant factor in the commission of the crime as to warrant a
    
    below-Guidelines range sentence. As to substantive error, Kilkeary argues, first, that the
    
    65-month upward variance was unreasonable because the Guidelines calculation already
    
    reflected the nature of his crime, any enhancement based on the number of victims is
    
    unclear, and that his criminal history was adequately reflected in his Guidelines range;
    
                                                  6
    and second, that his sentence was unreasonable in light of the psychological reports and
    
    testimony presented at the sentencing hearing regarding his mental illness. He also
    
    argues that the lack of clarity in the District Court‟s explanation violated his Fifth
    
    Amendment due process rights. We will consider each of his contentions in turn.
    
                                                  A.
    
           Our review of the record reveals that the District Court did not commit procedural
    
    error. It properly calculated the advisory Guidelines range, addressed all pertinent §
    
    3553(a) factors, acknowledged its authority to impose a below-Guidelines range sentence
    
    based upon Kilkeary‟s mental health arguments, and adequately explained the reasons for
    
    its chosen sentence.
    
           The District Court indicated that its upward variance was based on the “need to
    
    protect and respect the law as we know it[,] . . . [and] to afford adequate deterrence
    
    against future criminal conduct of Mr. Kilkeary.” (A. 393.) The District Court noted
    
    that, because there were five hostages on the bus, “it could have been five counts of each
    
    charge.” (Id.) Finally, the District Court stated that “this crime is just very heinous. And
    
    . . . it caused a lot of harm to both the victims, and to the people at the Showboat Casino
    
    Hotel at that time.” (Id.) In imposing the sentence, the District Court noted that “we
    
    need to protect the public from further crimes of Mr. Kilkeary. . . . [H]e‟s had three prior
    
    bank robberies, then he had this hostage situation in Atlantic City.” (Id. at 398.) Further,
    
    the District Court observed that “when you take five hostages, when you tell these
    
    hostages that you have a gun pointed at their head, and that you planted a bomb in the
    
    Showboat Hotel, and you have a Molotov cocktail with you, there needs to be just
    
                                                  7
    punishment for that offense.” (Id.) The Statement of Reasons accompanying the
    
    Judgment explicitly mentions the number of victims and Kilkeary‟s criminal history as
    
    bases for the upward variance. The written judgment rider, docketed four days after the
    
    sentencing proceeding, is entirely consistent with this reasoning. It cites the “egregious”
    
    nature of the crime, including Defendant‟s threats to kill his hostages, his possession of a
    
    “realistic looking pistol,” and his use of a fake bomb. (Id. at 7.) The rider cites
    
    Kilkeary‟s prior criminal history of three bank robberies also involving hostages, and the
    
    need for public protection. (Id.) Finally, it notes that his criminal history is not
    
    adequately reflected in his Guidelines calculation. (Id.) Accordingly, the District Court
    
    went beyond mere formalism, relied on the information presented to it, and adequately
    
    explained its reasons for imposing a sentence that represented an upward variance of 65
    
    months.
    
           Second, the District Court adequately addressed Kilkeary‟s argument that his
    
    mental illness was a mitigating factor. Essentially, Kilkeary argued that his mental
    
    illness impaired his ability to control his actions. Although the District Court referenced
    
    the elements of U.S.S.G. § 5K2.13, which govern a formal departure from the Guidelines
    
    on grounds of diminished mental capacity, rather than a § 3553(a) variance, it pointed out
    
    that it was considering a variance, not a departure, and that a failure to satisfy § 5K2.13
    
    did not bar a variance in this case. The District Court considered the various mental
    
    health evaluations presented to it, which ranged from a diagnosis of bipolar disorder,2 to
    
    
    2
     Bipolar disorder, also known as manic-depressive illness, is a brain disorder that
    causes unusual shifts in mood, energy, activity levels, and the ability to carry out
                                                  8
    cyclothymic disorder,3 to concern that his symptoms were feigned. After considering
    
    extensive argument from both parties on the issue, the court concluded:
    
           [H]aving considered the mental and emotional condition of the defendant,
           and in weighing it against the other factors under 3553, to reflect the
           seriousness of the offense, to make sure that the public is not victimized
           anymore by Mr. Kilkeary, and that we promote adequate justice, it seems to
           me that a downward departure for Mr. Kilkeary is unwarranted . . . .
    
    (A. 392.) It is evident from this and other statements made by the District Court in
    
    pronouncing the sentence that the District Court gave very careful consideration of all the
    
    evidence, including evidence pertaining to Kilkeary‟s mental health. Thus, Kilkeary‟s
    
    claims of procedural error lack merit.
    
                                                 B.
    
           Our review of the record further reveals that the District Court did not commit
    
    substantive error. In this respect, Kilkeary advances two arguments. First, he claims that
    
    
    
    day-to-day tasks. Symptoms of bipolar disorder are severe. They are different
    from the normal ups and downs that everyone goes through from time to time.
    Bipolar disorder symptoms can result in damaged relationships, poor job or school
    performance, and even suicide. Bipolar disorder is not easy to spot when it starts. .
    . . The symptoms may seem like separate problems, not recognized as parts of a
    larger problem. Some people suffer for years before they are properly diagnosed
    and treated.
    National Institute of Mental Health, Introduction: Bipolar Disorder,
    http://www.nimh.nih.gov/health/publications/bipolar-disorder/complete-
    index.shtml#pub1 (last visited Jan. 24, 2011).
    3
     “Cyclothymic Disorder, or Cyclothymia, is a mild form of bipolar disorder. People who
    have cyclothymia have episodes of hypomania that shift back and forth with mild
    depression for at least two years. However, the symptoms do not meet the diagnostic
    requirements for any other type of bipolar disorder.” National Institute of Mental Health,
    Introduction: Bipolar Disorder, http://www.nimh.nih.gov/health/publications/bipolar-
    disorder/complete-index.shtml#pub1 (last visited Jan. 24, 2011).
    
                                                 9
    the 65-month upward variance was substantively unreasonable. He bases this claim on
    
    numerous factors, including that his Guidelines calculation already adequately reflected
    
    the nature of his crime. Kilkeary also contends that the District Court‟s calculation of the
    
    number of victims is unclear, and that it is not certain whether the District Court was
    
    referring merely to the five hostages or to the 1500-2000 individuals who were impacted
    
    by the casino evacuation. As to the five hostages, Kilkeary contends that these victims
    
    were adequately reflected in his Guidelines calculation. As to the casino patrons,
    
    Kilkeary contends that there was insufficient evidence to demonstrate how many people
    
    were impacted by his actions. Finally, Kilkeary contends that his criminal history was
    
    adequately reflected in the Guidelines and should not have been grounds for a variance.
    
    If anything, he argues, his criminal history demonstrates his mental illness and should
    
    have resulted in a reduced sentence.
    
           These arguments are without merit. Although the court considered the physical
    
    injury to Speller and the abduction of Haley in its Guidelines calculation, it was not error
    
    for the court to vary upward from the Guidelines on the basis of multiple victims. See
    
    United States v. Greenidge, 
    495 F.3d 85
    , 103 (3d Cir. 2007) (“We emphasize that a
    
    sentencing court is not prohibited from considering the factual basis underlying a
    
    defendant's sentence enhancements, and indeed, should consider those facts in order to
    
    tailor the sentence to the defendant's individual circumstances.”). Furthermore, it was
    
    appropriate for the court to consider the impact of Kilkeary‟s conduct on the Showboat
    
    Casino patrons, who were indisputably evacuated for an extended period in the
    
    November night. The court noted that this impact was not adequately reflected in the
    
                                                 10
    Guidelines assessment of victims. The District Court, moreover, was statutorily
    
    empowered to consider Kilkeary‟s criminal history in the context of the § 3553(a) factors
    
    in determining to impose an upward variance, as well as in the Guidelines calculation.
    
    See 18 U.S.C. § 3553(a)(1) (requiring the court to consider “the nature and circumstances
    
    of the offense and the history and characteristics of the defendant”). It was certainly not
    
    error for it to do so.
    
           Second, Kilkeary argues that his sentence was substantively unreasonable in light
    
    of the expert psychological reports and testimony presented at the sentencing hearing
    
    regarding his mental health. These reports and testimony were by no means consistent on
    
    all issues, however. See, e.g., United States Department of Justice, Federal Bureau of
    
    Prisons, Federal Medical Center Forensic Report, June 23, 2008, A. 163 (“Mr. Kilkeary‟s
    
    report and presentation during the current evaluation is strongly suggestive of
    
    exaggeration and, in some cases, outright feigning of mental health symptoms.”).
    
    Moreover, the District Court had an ample evidentiary foundation for the sentence
    
    imposed in this case.
    
           In summary, we cannot say that “no reasonable sentencing court would have
    
    imposed the same sentence on [Kilkeary] for the reasons the district court provided.”
    
    Tomko, 562 F.3d at 568. Accordingly, Kilkeary has failed to show that his sentence is
    
    substantively unreasonable.
    
                                                C.
    
           Kilkeary also asserts that the District Court deprived him of due process by failing
    
    to articulate a clear rationale for the sentence that was imposed. He also contends that the
    
                                                11
    judgment rider is so inconsistent with the District Court‟s statements at the time of
    
    sentencing as to deprive Kilkeary of the requisite unambiguous explanation for the
    
    sentence imposed. Our review is plenary. United States v. Dees, 
    467 F.3d 847
    , 854 (3d
    
    Cir. 2006). As explained above, we find that the District Court articulated a clear
    
    rationale for the sentence imposed, and the judgment rider is entirely consistent with the
    
    explanation given at the time of sentencing. Accordingly, there is no violation of
    
    Kilkeary‟s Fifth Amendment due process rights.
    
                                                III.
    
           For the foregoing reasons, we will affirm the District Court‟s judgment.
    
    
    
    
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