United States v. Hargrove

• Decision Date: 12 December 2012
• Docket Number: No. 11–4818.,11–4818.
• Citation: 701 F.3d 156
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Harry Louis HARGROVE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

701 F.3d 156

UNITED STATES of America, Plaintiff–Appellee,

v.Harry Louis HARGROVE, Defendant–Appellant.

No. 11–4818.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 24, 2012.

Decided: Dec. 12, 2012.

ARGUED:James Edward Todd, Jr., Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Kristine L. Fritz, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF:Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, Office of the Federal Public Defender, Raleigh, North Carolina, for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May–Parker, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee.

Before NIEMEYER, SHEDD, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge SHEDD wrote the opinion, in which Judge NIEMEYER and Judge AGEE joined.

OPINION

SHEDD, Circuit Judge:

Based on his involvement in dogfighting activity, Harry Louis Hargrove was convicted of violating one provision of the Animal Welfare Act, 7 U.S.C. § 2156. He now appeals his 60–month sentence. Finding no reversible error, we affirm.

I

The government describes Hargrove as being a “legend” in the dogfighting community. By Hargrove's own admission, he has been involved in dogfighting activity for over four decades, and at one time he had approximately 250 fighting dogs on his property. Information in the record shows that offspring from one of Hargrove's fighting dogs, Midnight Cowboy, sold for large sums of money across the country because of its aggressiveness and propensity for fighting. Hargrove advertised his dogs in various dogfighting-related publications, and he is famous in the dogfighting industry for his dogfighting, his breeding activities, his training regimen, and his ability to produce aggressive fighting dogs. His prior criminal history includes a 1983 Georgia felony dogfighting conviction, a 1993 North Carolina animal fighting misdemeanor conviction, and a 2001 North Carolina animal cruelty misdemeanor conviction.

The investigation underlying this case began with complaints that Hargrove was involved in dogfighting on his property in Duplin County, North Carolina. During the investigation Hargrove sold an American Pit Bull Terrier to an undercover informant. The sale was consummated after Hargrove demonstrated the dog's prowess by fighting it with another dog on his property. Pursuant to a search warrant, law enforcement officers seized 34 additional dogs which were eventually euthanized because of poor health, aggressive tendencies, or both. Additionally, the officers found multiple tools and indicia of the dogfighting trade throughout Hargrove's property, including: a fighting pit that was covered in a significant amount of blood; “break sticks” which are used to break the bite hold of a dog during a fight; modified jumper cables that were used to electrocute dogs; a large debris pit that contained, among other things, dog carcasses; a blood-covered treadmill with wooden sides; a springpole, which is used to build up a dog's leg and jaw muscles; an old “jenny,” which is used to increase a dog's stamina by having the dog run continuously for extended periods of time while chasing a bait; large quantities of animal medicines; and hundreds of canine pedigrees.

The government charged Hargrove in one count with violating § 2156(b), which makes it unlawful “for any person to knowingly sell, buy, possess, train, transport, deliver, or receive any animal for purposes of having the animal participate in an animal fighting venture.” The statutory maximum for this offense is 60 months. See18 U.S.C. § 49. Without a plea agreement, Hargrove pled guilty to the charge. Before sentencing, a probation officer calculated Hargrove's advisory guideline range to be 10–16 months. Objecting to this calculation, Hargrove argued that the range should be 0–6 months.

While not taking issue with the probation officer's calculation, the government filed a motion for an upward departure and/or a variance. As grounds for the upward departure, the government listed extraordinary cruelty to animals, extreme conduct, and inadequacy of Hargrove's criminal history category. As grounds for the upward variance, the government noted the violent nature of dogfighting, Hargrove's longstanding involvement in dogfighting activities, the need for deterrence, the need to protect the public, and the need to avoid sentencing disparities. In support of the motion, the government submitted a memorandum that included documentary and photo exhibits which detailed the condition of the dogs seized from Hargrove's property, a video clip of the demonstration fight Hargrove arranged for the undercover informant, and photos taken during the execution of the search warrant on Hargrove's property.

At the beginning of the sentencing hearing, the district court noted the probation officer's recommended advisory guideline range of 10–16 months and then heard Hargrove's objections. Again, Hargrove contended that the range should be 0–6 months. After hearing from Hargrove, the court discussed with the probation officer the possibility of additional increases to the offense level calculation for more than minimal planning, vulnerable victims, and role in the offense. The court then informed the parties that it intended to rely on these enhancements to increase the recommended offense level.

The district court then invited the government to present evidence in support of its motion for an upward departure or a variance. Among other things, the government presented the testimony of Special Agent Mark Barnhart, who described the tools of the dogfighting trade that trainers use to increase a dog's aggressiveness and stamina, recounted the results from the search of Hargrove's property, and described the injuries that dogs often sustain during fights. The government then repeated its request for an upward departure or, alternatively, for an upward variance pursuant to 18 U.S.C. § 3553(a). Regarding the variance request, the government pointed to the violent nature of dogfighting and Hargrove's long-standing involvement in breeding and training dogs for fighting. The government also noted that Hargrove had not been deterred by his prior dogfighting-related convictions, and it stated that he deserved a longer sentence than other federal dogfighting convicts. The government requested a departure or variance up to the statutory maximum term of 60 months.

The district court announced that it was prepared to sentence Hargrove both under the guidelines and with an upward departure and upward variance. The court expressed its dissatisfaction with the “irrationality” of the dogfighting guideline provision, noting with respect to the guideline calculation of 0–6 months that Hargrove advocated: “I would say that other than the criminal dog fighters in America, every other person in America would be shocked beyond belief that you could do what [Hargrove] did and come out with a federal sentence of zero to six months.... No one could defend that. No judges. No legislators. No president.” J.A. 135.

The court then heard from Hargrove's counsel, who emphasized that Hargrove was a highly decorated military veteran who had been changed by his experience in Vietnam. Counsel also noted that in cases cited by the government involving similar activities, the defendants received imprisonment sentences of between 12 and 24 months. Finally, counsel emphasized that Hargrove had been fully compliant with his release conditions following his arrest. Hargrove then addressed the court, stating that he thought his involvement in dogfighting was wrong and that he had been backing away from it for years.

The court then announced that its guidelines calculations led to a sentencing range of 41–51 months, and it stated that it would sentence Hargrove to 51 months if imposing sentence under that range. However, the court further stated that an upward departure and an upward variance to 60 months were appropriate. In response to a query from the government, the court stated: “If I had sustained the Defendant's objections and come up with a Guideline range that the Defendant did not object to, I would still have imposed both the upward departure to 60 months and an upward variance to 60 months.” J.A. at 147.¹

In a written statement setting forth the reasons for imposing a sentence outside the guideline range, the court explained:

[T]he court found under [18 U.S.C. § ] 3553 that the nature of the offense was extreme cruelty, the [history] and characteristics of the defendant were such that he lack[ed] any remorse or sympathy for his actions and that he had been engaged undeterred in this behavior for over 40 years showing also a lack of respect for the law. The sentence is a [deterrence] for future crimes and diminishes unwarranted sentencing [disparities] among similarly situated defendants.

J.A. 176.

II

“Federal sentencing law requires the district judge in every case to impose ‘a sentence sufficient, but not greater than necessary, to comply with’ the purposes of federal sentencing, in light of the Guidelines and other § 3553(a) factors.” Freeman v. United States, ––– U.S. ––––, 131 S.Ct. 2685, 2692, 180 L.Ed.2d 519 (2011) (quoting 18 U.S.C. § 3553(a)). Under the current sentencing regime, “district courts may impose sentences within statutory limits based on appropriate consideration of all of the factors listed in § 3553(a), subject to appellate review for ‘reasonableness.’ ” Pepper v. United States, ––– U.S. ––––, 131 S.Ct. 1229, 1241, 179 L.Ed.2d 196 (2011). “Reasonableness review has procedural and substantive components.” United States v. Mendoza–Mendoza, 597 F.3d 212, 216 (4th Cir.2010). “Procedural reasonableness evaluates the method used to determine a defendant's sentence.... Substantive reasonableness examines the...