                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                              14
at   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
