UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4253

ARLIN EDWARD RANEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CR-96-8)

Submitted: September 15, 1998

Decided: October 13, 1998

Before WILKINS, HAMILTON, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

W. Edward Riley, IV, BOONE, BEALE, COSBY & LONG, Rich-
mond, Virginia, for Appellant. Helen F. Fahey, United States Attor-
ney, N. George Metcalf, Assistant United States Attorney, Richmond,
Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Arlin Raney appeals from a district court judgment entered pursu-
ant to a jury verdict finding him guilty of escape in violation of 18
U.S.C. § 751 (1994). On appeal, Raney's attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), contend-
ing that the district court erred by refusing to permit Raney to submit
a duress defense to the escape charge, and further erred by departing
upward from the applicable guideline range established by the Sen-
tencing Guidelines in sentencing Raney to a term of 48 months incar-
ceration. Raney was informed of his right to file an informal brief,
and has filed a brief raising additional arguments relating to these
issues, as well arguments concerning his rights to counsel and the
competency of the trial judge.

Whether the affirmative defense of duress is established is a factual
issue which is usually determined by a jury. See United States v.
Sarno, 24 F.3d 618, 621 (4th Cir. 1994). Where, however, there is
insufficient evidence as a matter of law to support an element of the
defense, the trial judge may refuse to permit the defendant to present
the defense to the jury. Id. To establish duress, the defendant must
show that he acted under a reasonable fear of an imminent threat of
bodily harm and that he had no reasonable choice but to commit the
illegal act. See United States v. King, 879 F.2d 137, 139 (4th Cir.
1989).

In this case, Raney maintained that he walked off of the grounds
of the Federal Correctional Institute in Petersburg, Virginia, because
he was under a "state of mind" which caused him to believe that he
needed to protect his children from his wife. He did not allege that
his children were in any danger of physical harm, but that his wife
was harming his children through her handling of the family finances.
He did not allege that he personally was in any danger of harm, much
less imminent harm, or that he had no alternative means of resolving
his problems with his wife. Under these circumstances, we hold that
the district court properly found that Raney could not establish duress
as a matter of law, and properly refused to permit Raney to present
this defense to the jury.

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Raney also challenges his sentence on appeal. He was sentenced
pursuant to the applicable guideline for a violation of § 751. See
United States Sentencing Guidelines Manual § 2P1.1 (1995). His
applicable base offense level was 13. Taken together with his criminal
history category of III, Raney's guideline range was 18-24 months.
See U.S.S.G. Ch.5, Pt.A. The trial judge, however, was very con-
cerned about Raney's psychological state; specifically, about the dan-
ger Raney posed to his wife, based on evidence that Raney escaped
in order to harm his wife. The presentence report advised that the
court might wish to consider departing upward from the guideline
range in view of the purpose of Raney's escape.

Only days prior to his escape, Raney wrote a letter to one of his
children apologizing in advance for anything he might have to do to
the child's mother that might hurt the child. Prior to sentencing, the
court ordered a psychological study of Raney pursuant to 18 U.S.C.A.
§ 3552(c) (West 1994 & Supp. 1998), and 18 U.S.C. § 4244 (West
1994 & Supp. 1998). The reports that followed Raney's examination
convinced the trial judge that Raney escaped to harm his wife, and
was still obsessed with thoughts of harming his wife. The court there-
fore departed upward from the guideline range of 18 to 24 months and
sentenced Raney to 48 months incarceration.

We review decisions to depart for abuse of discretion. See Koon v.
United States, 116 S. Ct. 2035, 2043 (1996). If a factor is one upon
which the Sentencing Commission encourages departure, and that
factor is not taken into account by the applicable guideline, a court
may exercise its discretion and depart on that basis. Id. at 2045. The
guidelines encourage departure where an offense is committed in
order to facilitate the commission of another offense. See U.S.S.G.
§ 5K2.9. Examination of the escape guideline does not reflect that this
factor has already been taken into account by the guideline. See
U.S.S.G. § 2P1.1. Accordingly, we find that the court did not err in
departing upward on this basis.

While Raney's counsel contends that the district court erred by
ordering the psychological evaluation which provided a partial basis
for the court's decision to depart upward without giving Raney appro-
priate notice of the evaluation, he cites no authority requiring such
notice. Sections 3552 and 4244 permit the court to order psychologi-

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cal exams on the court's own motion. In any event, however, the
court informed Raney at his initial sentencing hearing that the court
was going to order the examination. The court also explained the rea-
sons for the examination and stated that after the examination, the
court would pronounce Raney's final sentence. Hence, we conclude
that Raney received adequate notice of the examination and its pur-
pose.

We decline to address the specific arguments raised in Raney's
supplemental brief because they are patently without merit. In accor-
dance with the requirements of Anders, we have examined the entire
record and find no meritorious issues for appeal. Accordingly, we
affirm Raney's conviction and sentence. Hence, the Government's
motion for "summary disposition" is moot. This court requires that
counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If the client
requests that a petition be filed, but counsel believes that such a peti-
tion would be frivolous, then counsel may move in this court for leave
to withdraw from representation. Counsel's motion must state that a
copy thereof was served on the client.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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