U.S. v. Moses

• Decision Date: 13 February 1997
• Docket Number: No. 95-6066,95-6066
• Citation: 106 F.3d 1273
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dewain MOSES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1273

106 F.3d 1273

UNITED STATES of America, Plaintiff-Appellee, v. Dewain MOSES, Defendant-Appellant.

No. 95-6066.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 10, 1996.

Decided Feb. 13, 1997.

Kenneth R. Taylor, Asst. U.S. Attorney (argued and briefed), Lexington, KY, for Plaintiff-Appellee.

Andrew M. Stephens (argued and briefed), Lexington, KY, for Defendant-Appellant.

Before BOGGS, NORRIS, and GIBSON, ^* Circuit Judges.

BOGGS, Circuit Judge.

A criminal whose sentencing had been postponed because he was dangerously deranged finally faced sentencing. He had already been confined, as a committed patient, far longer than the normal guidelines range of twelve to eighteen months. A sentence in that range would mean his imminent freedom. To delay the apparent hazard of this man's liberty, the district judge instead sentenced him to ten years in prison, by means of an "upward departure" pursuant to USSG §§ 5K2.0 and 5K2.14. We are asked to determine whether that exercise of judgment was correct. We hold that it was not, because 18 U.S.C. § 4246 instead provided the proper assurance of public safety. Therefore, we vacate and remand.

I

Dewain Moses suffers from chronic paranoid schizophrenia. We will respect his medical privacy as much as possible. It is enough to say that strange, violent fancies have inhabited him for years; he is preoccupied with weapons, has overtly threatened the killings of several people, and fantasized the slaughter of still more. In 1989, a Kentucky state court twice found him to be dangerous, and ordered his involuntary commitment to a state mental hospital.

After his release, Moses purchased and received two rifles from Bacon Creek Gun Shop, including a Chinese assault rifle. In filling out the required purchase forms, Moses falsely stated that he had never been committed to a mental institution. When this was discovered by federal authorities, he was indicted for making false statements in connection with the purchase of the firearms (two counts), and for receiving firearms after having been adjudicated as a mental defective or committed to a mental institution (two counts). See 18 U.S.C. § 922(a)(6) and (g); § 924(a)(1)(B) and (a)(2). He was found competent to stand trial, and a federal jury convicted him on all four counts in February 1991.

After Moses' conviction, the government moved for a hearing to determine his mental condition, pursuant to 18 U.S.C. § 4244. Subsection (d) of that section provides:

If, after the hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect and that he should, in lieu of being sentenced to imprisonment, be committed to a suitable facility for care or treatment, the court shall commit the defendant to the custody of the Attorney General. The Attorney General shall hospitalize the defendant for care or treatment in a suitable facility. Such a commitment constitutes a provisional sentence of imprisonment to the maximum term authorized by law for the offense for which the defendant was found guilty.

18 U.S.C. § 4244(d). After conducting such a hearing, the fairness and legality of which neither party now disputes, Judge Siler, then of the district court, committed Moses in keeping with this statute. ¹

Moses then began treatment at the Federal Correctional Institution at Butner, North Carolina ("FCI-Butner"). The authorities at FCI-Butner periodically submitted "Forensic Reports" to the district court regarding Moses' condition.

The psychiatrist responsible for Moses, Dr. Thomas Owens, treated him with various anti-psychotic medications without success. In 1993, Dr. Owens began administering a new drug, Clozaril. Moses cooperated with the treatment, which partly succeeded in controlling his delusions. In the words of Dr. Owens:

[H]e still has residual delusional beliefs. Untreated, these delusions affect him to such a degree that he can't discern what's appropriate behavior. With treatment, with the medication, he can hold onto some of his beliefs, he can be somewhat confused about--about--he's not clear that some of these things are not true, but the difference is, he knows not to act on these--on these beliefs, these residual delusions. And that comes from his compliance and continued treatment with the medicine Clozaril.

18 U.S.C. § 4244(e) provides that "[w]hen the director of the facility in which the defendant is hospitalized ... determines that the defendant has recovered from his mental disease or defect to such an extent that he is no longer in need of custody for care or treatment in such a facility, he shall promptly file a certificate to that effect with the clerk of the court that ordered the commitment."

In keeping with that statute, Moses' improvement on Clozaril led FCI-Butner to issue a "Certificate of Recovery and Request for Court to Proceed with Final Sentencing" on April 18, 1995. The certificate stated in part: "While not totally in remission, we find Mr. Moses has recovered from his mental disease or defect to such an extent that he is ready to be returned to Court for final sentencing...."

Dr. Owens, who authorized the certificate, realized that application of the Sentencing Guidelines to Moses' case could result in Moses' immediate release, because he had already served more time since conviction than the Guidelines term of twelve to eighteen months. Without some mechanism in place at the time of Moses' release to assure his continuation on Clozaril, Dr. Owens feared a lapse in the effective administration of the drug; if that happened, it would be "very likely that those intense delusional beliefs that he has, that I think do create risk of harm to others, would return." Dr. Owens did believe, however, that it was possible that a successful regimen could be established for Moses outside the federal prison system, either on an outpatient basis or in "an intermediate type of facility, a hospital, something like that, to help him make adjustments back to the community." Therefore, the certificate also stated:

It is nonetheless our opinion that should Mr. Moses be released from confinement to the community, his release would create a substantial risk of bodily injury to another person or serious damage to property of another due to a mental disease. It is our recommendation that upon final sentencing, Mr. Moses be returned to the hospital at FCI-Butner. Prior to the end date of his sentence, proceedings should be initiated under the provisions of Title 18, United States Code, Section 4246, such that suitable arrangement for State custody and care can be arranged.

Section 4246 authorizes the director of a mental health facility in which a criminal is hospitalized and whose sentence is about to expire to certify to the clerk of the court of the district in which the prisoner is confined that the inmate's mental condition creates a substantial risk to the public. The district court must then order a hearing. If the Government proves by clear and convincing evidence that "the person is presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another," the court is instructed to order the patient committed either until the appropriate official in the person's state of domicile or conviction agrees to assume responsibility for him, or until "the person's mental condition is such that his release, or his conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment" would no longer create the predicate risks. 18 U.S.C. § 4246(d). It was Dr. Owens's intention, prior to the expiration of Moses' criminal sentence, to develop a satisfactory conditional-release regimen under § 4246. As Dr. Owens testified, "I feel very comfortable about looking at a conditional release ... where it would be clear that if he weren't to take his medication ... it would be grounds to take him immediately back into custody."

II

Upon receipt of a § 4244(e) certificate, a federal district court is obligated to proceed to final sentencing. Accordingly, a presentence investigation report was prepared, and the district court held a sentencing hearing, at which Moses was present, on July 28, 1995. At the hearing, the government first argued that the FCI-Butner § 4244 certificate was too self-contradictory to be valid--its premise was that Moses was no longer in need of custody for care and treatment, yet it urged his commitment for further care and treatment. ² After hearing testimony from Dr. Owens that clarified his intent, the court disagreed. It held that the language in the certificate suggesting continued treatment was simply a "recommendation as to sentencing," and did not undermine the statutory certificate, or alter the court's duty to sentence Moses. ("[B]ased upon this certificate and the testimony of Doctor Owens, this Court has no choice but to sentence. It does so most reluctantly." See Sentencing Tr., J.A. at 198.) The government does not appeal this decision.

In computing the sentence, the court determined that normal application of the Sentencing Guidelines would result in a range of twelve to eighteen months. Neither party disputes this calculation. However, after hearing testimony from Moses that demonstrated the continuing vigor of his delusions, the court ruled that the danger Moses posed to the community warranted an upward departure to a sentence of 120 months "primarily on the basis of Section 5K 2.14, but alternatively on the ground of Section 5K 2.0...." The propriety of that upward departure is the sole issue before us on this appeal.

III

We review decisions to depart from the sentencing guidelines for abuse of discretion; an error of law in the interpretation or application of the guidelines constitutes an abuse of discretion, and the abuse of discretion...