                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4995



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


DAVID H. HUMPHREY,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (2:04-cr-00025-REM)


Argued:   December 7, 2007                 Decided:   April 15, 2008


Before DUNCAN, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Catherine C. BLAKE, United States District Judge for the District
of Maryland, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: L. Richard Walker, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia,
for Appellant.   Stephen Donald Warner, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Elkins, West
Virginia, for Appellee. ON BRIEF: Sharon L. Potter, United States
Attorney, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     David Humphrey pled guilty to one count of being a felon in

possession    of   a   firearm.   At   sentencing,   the   district   court

determined that Humphrey’s advisory Sentencing Guidelines range was

46-57 months’ imprisonment.       After considering this range together

with the factors set forth in 18 U.S.C. § 3553(a), however, the

district court sentenced Humphrey to 91 months in prison.         For the

reasons articulated below we find no abuse of discretion under

applicable law and therefore affirm the sentence imposed by the

district court.



                                   I

     Humphrey, who had little income and no regular employment,

lived by himself in an improvised home in an isolated mountainous

area outside the small town of Parsons, West Virginia. His criminal

record included a 1985 felony conviction for growing marijuana,

which it appears he cultivated for his personal use and for self-

medication of his mental health problems.             Humphrey also had

accumulated a number of convictions for marijuana possession,

assault, shoplifting, stalking, and driving on a suspended license.

On the other hand, he also had done such services as shoveling snow

and sweeping sidewalks in the town of Parsons, and on one occasion

had assisted in saving a woman from a flood.           Despite the 1985

felony conviction, and perhaps not understanding he was prohibited


                                       2
from doing so, Humphrey possessed rifles and a shotgun for hunting

in the woods where he lived.

        Humphrey apparently had a difficult relationship with certain

local law enforcement officers who, he believed, were harassing

him.     On May 7, 2004, Humphrey began to drive down the dirt road

from his home toward the road that led into town.         Though his

license was suspended at the time, Humphrey apparently had been

told by a local prosecutor that he could drive on the dirt road so

long as he did not get on the main highway.       While still on the

dirt road, however, he was confronted by a state trooper intending

to cite him for driving an improperly registered vehicle. Refusing

to obey the officer, Humphrey drove back toward his shack.      When

the trooper followed, Humphrey retrieved a shotgun, which he

pointed at the trooper while threatening to kill him.       Humphrey

subsequently obtained a second weapon and, when the trooper decided

to back his vehicle away from the shack, Humphrey got back in his

truck and, gun in hand, chased the trooper as he backed down the

road.      The encounter lasted approximately 20 minutes and was

captured on the trooper’s in-car video camera.       No actual shots

were fired by either Humphrey or the trooper, and Humphrey was

arrested when back-up arrived.     He was prosecuted in state court

for wanton endangerment, pled guilty on July 28, 2005, and was

sentenced to a year in prison.




                                   3
     Humphrey also was prosecuted by federal authorities, based on

the 1985 felony.     On October 19, 2004 he was charged in a two-count

indictment for violations of 18 U.S.C. § 922(g)(1), possession of

two rifles and a shotgun following a felony conviction, and 18

U.S.C. § 922(g)(3), possession of the same firearms by an unlawful

user of marijuana.     On June 23, 2005, he pled guilty to count one

before Senior Judge Robert E. Maxwell, and a presentence report was

ordered.   Counsel appointed to represent Humphrey, observing his

history of mental health problems, obtained an evaluation by

psychologist   Dr.    William   Fremouw.   At   a    sentencing   hearing

scheduled for October 13, 2005, the court determined that an

additional evaluation should be done within the Bureau of Prisons

pursuant to 18 U.S.C. §§ 4241 and 4244.             Based on the report

received from the Federal Medical Center at Butner, North Carolina,

the court determined without objection that Humphrey was competent

at the time of his guilty plea and could proceed with sentencing,

then scheduled for May 8, 2006.     Prior to sentencing, however, the

court advised counsel of its intention to depart upward from the

Sentencing Guidelines range, in large part because of the report




                                    4
from Butner.1    A continuance of the sentencing was granted until

September 11, 2006.

     At sentencing the court calculated the Guidelines as reflected

in the presentence report, without objection, as follows: a base

offense of 14; an increase of 2 because three firearms were

possessed; an increase of 4 because a firearm was possessed in

connection with another felony offense (wanton endangerment); and

a decrease of three levels for acceptance of responsibility.

Together with Humphrey’s criminal history category of V, the

adjusted offense level of 17 resulted in a range of 46-57 months’

incarceration.

     Humphrey’s counsel, arguing for a downward departure under

USSG § 5K2.13 for diminished capacity or for a variance below the



     1
      The court’s order identified the basis of the potential
upward “departure” as:

     several of those factors set forth in 18 U.S.C. §
     3553(a), namely the nature and circumstances of the
     offense; the history and characteristics of the
     Defendant; the need for the sentence imposed to reflect
     the seriousness of the offense; the need for the sentence
     imposed to promote respect for the law; the need for the
     sentence imposed to provide just punishment for the
     offense; the need for the sentence imposed to afford
     adequate deterrence to criminal conduct; the need for the
     sentence imposed to provide the Defendant with needed
     educational or vocational training, medical care, or
     other correctional treatment in the most effective
     manner; and, perhaps most importantly in this case, the
     need for the sentence imposed to protect the public from
     further crimes of the Defendant.

J.A. 19.

                                 5
Guidelines, presented the testimony of Dr. Fremouw concerning his

evaluation of Humphrey and his review of the Butner report.2              Like

Butner, Dr. Fremouw diagnosed Humphrey as having a major depressive

order, cannabis dependence, and schizo-typal personality. Like the

Butner report, Dr. Fremouw identified Humphrey as at-risk for

suicide, noting that in the course of the incident Humphrey not

only threatened the trooper but also told the trooper “go ahead and

shoot me.” J.A. 48.    Dr. Fremouw described the May 7, 2004 incident

as the “one incident of violence” in Humphrey’s 53 years, stating

that Humphrey’s quick temper ordinarily was expressed verbally

rather than by violent behavior. J.A. 55.           He agreed that whether

the   violent   behavior   might   happen   again    was   a   “very   serious

question,” although “the likelihood [would] decrease substantially

if he is in treatment.” J.A. 57.            While testifying on direct

examination that there were no “red flags” in the Butner report, on

cross-examination he agreed that the reference to monitoring for

possible future homicide risk, as well as suicide risk, was such a

red flag.   J.A. 65.

      The government, while challenging the request for a downward

departure or variance, nonetheless maintained the position taken in




      2
      In his sentencing memorandum, defense counsel also argued for
a departure under USSG § 4A1.3 on the ground that Category V
substantially overrepresented the seriousness of Humphrey’s
criminal history. J.A. 159-60.

                                     6
its plea agreement that a sentence at the low end of the guideline

range would be sufficient.

     The district judge rejected both of these recommendations,

stating thoroughly his reasons for concluding that several of the

factors stated in 18 U.S.C. § 3553(a) warranted a sentence above

the guideline range.   While not explicitly departing upward under

USSG § 4A1.3, in rejecting Humphrey’s request for a downward

departure he noted that Humphrey’s criminal record reflected a “lot

of leniency over the years,” that Humphrey’s 12 points were the

maximum before being moved into Category VI, and that certain

points were not awarded because of Guidelines limitations.    J.A.

91-92.3

     Examining the § 3553(a) factors, the court relied most heavily

on the need to promote respect for the law and the need to protect

the public, noting that Humphrey’s record and his statements to

medical personnel at Butner made it clear he had no respect for the

law and would continue to break it upon release by, e.g., illegal

drug use.   This made it inevitable, according to the court, that

Humphrey would have further confrontations with law enforcement

officials and therefore would be “essentially, a powder keg waiting

to explode.”   J.A. 93.   The court noted that, according to the



     3
      Ordinarily the propriety of a departure under the Guidelines
should be considered explicitly before a variance sentence is
imposed.   See U.S. v. Fancher, 513 F.3d 424, 427 n.1 (4th Cir.
2008).

                                 7
Butner report, it was likely that Humphrey would become depressed

and hostile in the future if not able to live as he chose, thus

becoming likely to threaten himself and others. Finally, the court

also expressed skepticism that Humphrey, if permitted to return to

Parsons, would cooperate with the mental health and substance abuse

treatment he clearly needed.

     While the judge thus concluded that the maximum ten year

sentence was warranted, he alleviated that result by awarding

Humphrey credit for the 29 months he had been in state custody,

first on the wanton endangerment charge and then in error, because

the local jail had not timely notified the U.S. Marshal to transfer

Humphrey into federal custody.        The final sentence, then, was 91

months in prison.4



                                 II

     On   appeal,   Humphrey   challenges   only   the   upward   variance

sentence of 91 months, arguing that the district court misapplied

or failed to consider the statutory factors under 18 U.S.C. §

3553(a) and that the extent of the variance was excessive under the

facts of the case, resulting in an unreasonable sentence.               We

disagree.




     4
      This is to be followed by three years of supervised release,
not challenged by the defendant. The fine was waived, and the $100
special assessment was imposed.

                                   8
                              A

     Shortly after oral argument was heard in this case, the

Supreme Court issued its opinions in Gall v. U.S., 128 S. Ct. 586

(2007)and Kimbrough v. U.S., 128 S. Ct. 558 (2007), which together

“explain in detail the mechanics of Booker’s5 remedial holding,”

U.S. v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).      As further

explained by this court,

     appellate review of the reasonableness of a sentence
     focuses on whether the sentencing court abused its
     discretion in imposing the chosen sentence. This abuse of
     discretion standard of review involves two steps, the
     first examines the sentence for significant procedural
     errors, the second looks at the substance of the
     sentence. The Court in Gall explained that “significant”
     procedural errors include errors 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.”

     Substantive reasonableness review entails taking into
     account the “totality of the circumstances, including the
     extent of any variance from the Guidelines range.” If
     the sentence is within the Guidelines range, we, as an
     appellate court, may, but are not required to, presume
     that the sentence is reasonable.        However, if the
     sentence is outside the Guidelines range, we are
     prohibited    from     applying    a    presumption    of
     unreasonableness.     To hold otherwise would fatally
     undermine the Court’s holding in Booker. In reviewing
     the substantive      reasonableness of the sentence, we
     may consider “the extent of the deviation,” but we “must
     give due deference to the district court’s decision that
     the § 3553(a) factors, on a whole, justify the extent of
     the variance.” Even if we would have reached a different
     sentencing result on our own, this fact alone is


     5
      U.S. v. Booker, 543 U.S. 220 (2005).

                                  9
       “insufficient to justify reversal of the district court.”


Id. at 473-74 (citations omitted).                 See also U.S. v. Go,             F.3d

   ,          (4th Cir. 2008).

                                         B

       In reviewing Humphrey’s sentence, we first note that we find

no procedural errors.6       The court gave notice of its intent to vary

upward.      See U.S. v. Fancher, 513 F.3d 424, 430 (4th Cir. 2008). At

the    sentencing      hearing     the       court     correctly     calculated     the

Guidelines range, allowed both defense counsel and the government

to argue for the sentence they believed appropriate, carefully

considered the § 3553(a) factors without presuming the Guideline

range was reasonable, and thoroughly explained its reasons for

varying upward.        See Pauley, 511 F.3d at 473.

       The    second    question    then          is   whether     the   sentence    is

substantively reasonable: under the totality of the circumstances,

did the 3553(a) factors support a 91-month sentence and justify a

34-month increase above the Guideline range.                        While this is a

closer issue, after careful consideration of all the factors the

court relied on, in their totality, we hold that the 34-month

upward variance was not unreasonable.




       6
      The only possible exception is the court’s failure to
consider explicitly the applicability of any upward departure under
the Guidelines before varying upward.

                                             10
     Specifically, the court was warranted in its reliance on

Humphrey’s   criminal   record,   the   circumstances   of   the   present

offense, his statements to personnel at Butner, and even aspects of

the defense expert’s testimony to conclude, for the reasons the

court explained, that a shorter sentence would not promote respect

for the law or protect the public from the danger presented by

Humphrey’s behavior.     The court appears to have focused on the

likelihood of recidivism based on Humphrey’s past conduct, his

statements, and the nature of the current offense, without relying

significantly on Humphrey’s mental illness or need for treatment in

itself as a grounds for variance.       Finally, the court ameliorated

its initial variance upward to 120 months by awarding the 29-month

credit for all time served in state custody, even that which was

also credited toward the wanton endangerment sentence.7



                                  III

     Admittedly, the significant upward adjustment of a sentence

imposed on behavior at least in part resulting from acknowledged

mental illness is troubling.8       This concern must be balanced,

however, against the clear statutory purposes of sentencing relied


     7
      Had this reduction not occurred, the outcome of this appeal
might have been different.
     8
      One circumstance, not presented to the court at sentencing,
that might have supported a lower sentence is the availability of
civil commitment under 18 U.S.C. § 4246 at the end of a sentence if
the defendant continues to present a danger.

                                   11
on by the judge in this case.    As noted earlier, “[e]ven if we

would have reached a different sentencing result on our own, this

fact alone is ‘insufficient to justify reversal of the district

court.’” Pauley, 511 F.3d at 474 (quoting Gall, 128 S. Ct. at 597).

Accordingly, for all the reasons stated above, Humphrey’s sentence

is affirmed.

                                                          AFFIRMED




                                12
