NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 10

- 1710

____________ UNITED STATES OF AMERICA,

v. DAVID B. KI LKEARY,

Appellant.

___________ On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 2

- 09

- cr - 00 363

- 001 ) District Judge: Honorable Peter G. Sheridan

___________ Submitted Under Third Circuit LAR 34.1(a)

January 13, 2011 Before: SCIRICA , BARRY , and VANASKIE, Circuit Judges

.

(Filed : February 1, 2011 )

___________ OPINION OF THE COURT

___________2

VANASKIE, Circuit Judge

. Appellant David B. Kilkeary (“Kilkeary”) appeals a twenty

- five

- year sentence imposed on him following his guilty plea to criminal charges stemming from his attempt to extort $3 million from an Atlantic City casin o by holding hostages on a casino shuttle bus. Kilkeary claims that the District Court violated his Fifth Amendment right to due process of law, and committed both procedural and substantive error in sentencing him. Because we find that the District Cour t did not err, we will affirm.
I. On November 1 3, 2007, Kilkeary implemented a complicated scheme to extort $3 million from the Showboat Hotel & Casino (the “Showboat”) in Atlantic City, New Jersey. 1 Kilkeary decided to take hostages on a casino shuttle bus by threatening them with a fake handgun and a hoax bomb , and to plant a fake bomb in the hotel, with the design to trade the hostages and defuse the bombs for cash. After receiving the cash, he planned to escape by diverting the police by throwing a M olotov cocktail from the shuttle bu s and driving the shuttle bus into an inlet. There, he would escape by using a self

-

1 Kilkeary had previously engaged in illicit schemes to acquire cash. On the night of March 27, 1998, Kilk eary cut a hole in the roof of a bank in Annapolis, Maryland, laying in wait until employees arrived in the morning; he surprised them with a pellet gun, ordered them to sit in a safety deposit booth area and directed two employees to the vault, where he g rabbed over $23,500 before fleeing. Then, in July of 1998, Kilkeary attempted to rob another Maryland bank in the same manner. He set off an alarm, however, and left without taking any money. The day after this robbery attempt, Kilkeary returned to the Annapolis bank and used the same scheme to steal $32,000. Because of an alert bystander, however, Kilkeary was apprehended as he fled in his truck into a wooded area. For these offenses, Kilkeary was sentenced to 51 months‟ imprisonment and three years‟ supervised release. He completed his term of supervised release on December 19, 2005.3

propelled scuba s c ooter to transport himself across the inlet to a nearby beach in Brigantine, New Jersey, retrieve a towel and dry clot hing, and complete his escape by taxi to his waiting truck. In pursuit of his plan, Kilkeary rented a scuba tank, regulator, suit, and ma sk, and purchased a scuba motor. To avoid suspicion, he simultaneously signed up for scuba classes. He also purcha sed a pellet gun, wig and ski mask, and constructed a hoax bomb, suicide bomb vest, and detonation device, as well as a Molotov cocktail. Kilkeary lied to his wife and family, telling them that he was meeting a potential bu yer of his construction busines s for a sale that would net $150,000

. On November 13, 2007, Kilkeary first stopped at his escape destination on the beach in Brigantine, where he secreted a garbage bag containing towels, a change of clothes, and a $20 bill for transportation back to his truck. At about 8:30 p.m., he departed for the casino . Along the way, however, he stopped his truck for about ten minutes and contemplated the gravity of what he was about to do. Although he knew that what he was about to do was “wrong , ” he determined t o press on. Kilkeary arrived at the Showboat at approximately 9:45 p.m. and p lace d the hoax bomb in a second

- floor bathroom next to the casino‟s poker room. He proceeded to the shuttle bus area. Having determined that the first bus was too crowded, he again stopped for several minutes awaiting the arrival of the second shuttle, and consider ed whether to proceed . Again , he resolved to act. When Kilkeary, now disguised, attempted to board the bus, Lee Speller, the bus driver , informed him that he coul d not do so with large bags. Kilkeary then produced the4

fake gun and essentially stated, “You are going to drive this bus

– I got a bomb.” ( Presentence Report (“ PSR ”) ¶ 18. ) Spell er refused the command

. In an ensuing physical struggle, Kilkeary and Spe ller fell out of the bus onto the street. Kilkeary re

entered the bus; the driver, who had sprained both ankles and a wrist, fled to safety. During the melee, p assenger William Haley had exite d the bus to assist the driver.
F inding this fruitless, he offered to re

- enter the bus if Kilkeary would release Haley‟s wife , Christine. When Kilkeary refused , Haley boarded the bus. Kilkeary threatened his four hostages with the gun, bomb, and detonator, pointing the gun at them and telling them that he would “kill” them and “blow everyone up.” ( Id. ¶ 19

- 21 ; A. 356

- 57

. ) Kilkeary attempted to driv e the bus, but was unsuccessful because he did not know how to release the air brake. Ten minutes later, after holding the gun to her head , Kilkeary released Christi ne Haley with instructions to inform Showboat security that he had hostages on the bus. A search of the hotel revealed the planted fake bomb. As a result of this discovery, the casino evacuated some 1500 to 2000 guests

. Kilkeary then attempted to rel ocate himself and his hostages to a second bus . In the process, William Haley offered to carry Kilkeary‟s bags if the two remaining
passengers were released

. Kilkeary agreed, and the two passengers were released. After assisting Kilkeary in transferring the bags to a second bus , Haley managed to escape. Kilkeary , now alone, attempted to drive away in the second bus, but there were no keys. Law enforcement robotically delivered a cell phone to him, throu gh which he negotiated for five and a half hours, pretending to be a former General from the Republic5

of Georgia and speaking with a Russian accent. After an aborted SWAT raid, Kilkeary surrendered to law enforc ement at approximately 4:18 a.m

. On May 18, 2009, a grand jury sitting in and for the Distric t of New Jersey returned a three

- count indictment , charging Kilkeary with willfully threatening to cause harm to persons and property by conveying false information that bombs he intended to detonate were genuine explosives, in violation of 18 U.S.C. § § 84 4(e) and 2; kidnapping through an instrumentality of interstate commerce, in violation of 18 U.S.C. § § 1201(a) and 2; and extortion, in violation of 18 U.S.C. § § 1951(a) and 2

. Kilkeary pleaded guilty to all counts on August 19, 2009. The District Cour t held a sentencing hearing on March 4 and 5, 2010. A fter considering extensive oral, written, and taped evidence, the court determined that Kilkeary‟s total offense level was 35, his criminal history category was II, and the applicable advisory G uideline s range was 188 to 235 months ‟ incarceration. Next, there being no departure motions, the court considered Kilkeary‟s request for a downward variance based on the evidence concerning his mental health , and rejected it. The court considered the Government ‟s request for an upward variance, and granted it in part. T he
court entered judgment on March 12, 2010, imposing a sentence of 300 months‟ incarceration and five years‟ supervised release.
II. The District Court had jurisdiction pursuant to 1 8 U.S.C. § 3231 . We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742

.6

“Our appellate review proceeds in two stages.” United States v. Tomko , 562 F.3d 558, 567 (3d Cir. 2009) (en banc) . First, we ensure “„ that the district court committed no signifi cant procedural error, 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 adeq uately explain the chosen sentence

– including an explanation for any deviation from the Guidelines range. ‟ ” Id

. (quoting Gall v. United States , 552 U.S. 38, 51 (2007) ). If the district court‟s procedure is satisfactory, we move to stage two, considerin g the substantive reasonableness of the sentence. Id. (citing United States v. Levinson , 543 F.3d 190, 195 (3d Cir. 2008) ). The substantive review mandates that we consider the totality of the circumstances, rather than one or two factors. Id. Our revi ew for both procedural and substantive error proceeds under an abuse of discretion standard. Id. “We afford deference to the District Court because it is in the best position to determine the appropriate sentence in light of the particular circumstances of the case.” United States v. Dragon , 471 F.3d 501, 506 (3d Cir. 2006) ( internal quotation marks omitted ). Kilkeary argues that the District Court committed procedural error in failing to adequately explain its sentence and in failing to adequately ad dress his argument that his mental illness was such a significant factor in the commission of the crime as to warrant a below

- Guidelines range sentence . As to substantive err or, Kilkeary argues, first, that the
65

- month upward variance was unreasonable be cause the Guideline s calculation already reflected the nature of his crime, any enhancement based on the number of victims is unclear, and that his criminal history was adequately reflected in his Guideline s range ;7

and second, that his sentence was unreaso nable in light of the psychological reports and testimony presented at the sentencing hearing regarding his mental illness. He also argues that the lack of clarity in the District Court‟s explanation violated his Fifth Amendment due process rights. We wi ll consider each of his contentions in turn.
A. Our review of the record reveals that the District Court did not commit procedural

error. It properly calculated the advisory Guidelines range, addressed all pertinent § 3553(a) factors, acknowledged its au thority to impose a below

- Guidelines range sentence based upon Kilkeary‟s mental health arguments, and adequately explained the reasons for
its chosen sentence.
T he District C ourt indicated that its upward variance was based on the “need to protect and respect the law as we know it[,] . . . [and] to afford adequate deterrence against future criminal conduct of Mr. Kilkeary.” (A. 393 .) The District Court noted that, because there were five hostages on the bus, “it could have been five counts of each
cha rge.” ( Id. ) Finally, the District C ourt sta ted that “this crime is just very heinous. And . . . it caused a lot of harm to both the victims, and to the people at the Showboat Casino Hotel at that time.” ( Id. ) In imposing the sentence, the District Cou rt noted that “we need to protect the public from further crimes of Mr. Kilkeary

. . . . [H] e‟s had three prior bank robberies, then he had this hostage situation in Atlantic City.” ( Id. at 398 .) Further, the District Court observed that “ when you take f ive hostages, when you tell these hostages that you have a gun pointed at their head, and that you planted a bomb in the Showboat Hotel, and you have a Molotov cocktail with you, there needs to be just8

punishment for that offense.” ( Id. ) The Statement of Reasons accompanying the Judgment explicitly mentions the number of victims and Kilkeary‟s criminal history as
bases for the upward variance . The written judgment rider , docketed four days after the sentencing proceeding, is entirely consistent with this reasoning. It cites the “egregious” nature of the crime, including Defendant‟s threats to kill his hostages, his possession of a “realistic looking pistol,” and his use of a fake bomb. ( Id. at 7 .) The r ider cites Kilkeary‟s prior criminal history of th ree bank robberies also involving hostages, and the need for public protection. ( Id. ) Finally, it notes that his criminal history is not adequately reflected in his Guideline s calculation. ( Id. ) Accordingly, the District Court went beyond mere formalis m, relied on the information presented to it , and adequately explained its reasons for imposing a sentence that represented an upward variance of 65 months. Second, the District Court adequately addressed Kilkeary‟s argument that his mental illness was a mitigating factor. Essentially, Kilkeary argued that his mental illness impaired his ability to control his actions. Although the District Court referenced the elements of U.S.S.G. § 5K2.13 , which govern a formal departure from the Guidelines on grounds of diminished mental capacity , rather than a § 3553(a) variance, it pointed out that it was considering a variance, not a departure, and that a failure to satisfy § 5K2.13 did not bar a variance in this case. T he District Court considered the various ment al health evaluations presented to it, w hich ranged from a diagnosis of bipolar disorder, 2 to

2 Bipolar disorder, also known as manic

- depressive illness, is a brain disorder that causes unusual shifts in mood, energy, activity levels, and the ability to carry out9

cyclothymic disorder, 3 to concern that his symptoms were feigned. After considering extensive argument from both parties on the issue, the court concluded : [ H ] av ing considered the mental and emotional condition of the defendant, and in weighing it against the other factors under 3553, to reflect the seriousness of the offense, to make sure that the public is not victimized anymore by Mr. Kilkeary, and that we prom ote adequate justice, it seems to me that a downward departure for Mr. Kilkeary is unwarranted . . . . (A. 392.) It is evident from this and other statements made by the District Court in pronouncing the sentence that the District Court gave very careful consideration of all the evidence, including evidence pertaining to Kilkeary‟s mental health. Thus, Kilkeary‟s claims of procedural error lack merit.
B. Our review of the record further reveals that the District Court did not commit substanti ve error. In this respect, Kilkeary advances two arguments. First, he claims that

day

- to

- day tasks. Symptoms of bipolar disorder are severe. They are different from the normal ups and downs that everyone goes through from time to time. Bipolar disorder symptoms can result in damaged relationships, poor job or school performance, and ev en suicide. Bipolar disorder is not easy to spot when it starts.

.

. . The symptoms may seem like separate problems, not recognized as parts of a larger problem. Some people suffer for years before they are properly diagnosed and treated. National Instit ute of Mental Health, Introduction: Bipolar Disorder, http://www.nimh.nih.gov/health/publications/bipolar

- disorder/complete

index.shtml#pub1 (last visited Jan. 24, 2011).

3 “ Cyclothymic Disorder, or Cyclothymia, is a mild form of bipolar disorder. People w ho have cyclothymia have episodes of hypomania that shift back and forth with mild depression for at least two years. However, the symptoms do not meet the diagnostic requirements for any other type of bipolar disorder. ” National Institute of Mental Healt h, Introduction: Bipolar Disorder, http://www.nimh.nih.gov/health/publications/bipolar

disorder/complete

- index.shtml#pub1 (last visited Jan. 24, 2011).10

the 65

- month upward variance was substantively unreasonable . He bases this claim on numerous factors, including that his Guidelines calculation already adequately reflected the nature of his crime. Kilkeary also contends that the District Court‟s calculation of the number of victims is unclear, and that it is not certain whether the District Court was referring merely to the five hostages or to the 1500

- 2000 individuals who were impact ed by the casino evacuation. As to the five hostages, Kilkeary contends that these victims were adequately reflected in his Guidelines calc ulation. As to the casino patrons , Kilkeary contends that there was insufficient evidence to demonstrate how many p eople were impacted by his actions

. Finally, Kilkeary contends that his criminal history was adequately reflected in the Guidelines and should not have been grounds for a variance

. If anything, he argues, his criminal history demonstrates his mental illn ess and should have resulted in a reduced sentence

. These argumen ts are without merit. Although the court considered the physical injury to Speller and the abduction of Haley in its Guidelines calculation , it was not error for the court to vary upward fro m the Guidelines on the basis of multiple victims. See United States v. Greenidge , 495 F.3d 85, 103 (3d Cir. 2007) (“ We emphasize that a sentencing court is not prohibited from considering the factual basis underlying a defendant's sentence enhancements, and indeed, should consider those facts in order to tailor the sentence to the defend ant's individual circumstances.”). Furthermore, it was appropriate for the court to consider the impact of Kilkeary‟s conduct on the Showboat Casino patrons, who were ind isputably evacuated for a n extended period in the November night. The court noted that this impact was not adequately reflected in the11

Guidelines assessment of victims. T he District Court, moreover, was statutorily empowered to consider Kilkeary‟s crimin al history in the context of the § 3553(a) factors in determining to impose an upward variance, as well as in the G uidelines calculation.
See 18 U.S.C. § 3553(a)(1) (requiring the court to consider “the nature and circumstances
of the offense and the hist ory and characteristics of the defendant”). It was certainly not
error for it to do so. Second, Kilkeary argues that his sentence was substantively unreasonable in light of the expert psychological reports and testimony presented at the sentencing hearin g regarding his mental health

. These reports and testimony were by no means consistent on all issues, however. See , e.g., United States Department of Justice, Federal Bureau of Prisons, Federal Medical Center Forensic Report, June 23, 2008, A. 163 (“Mr. Kilkeary‟s report and presentation during the current evaluation is strongly suggestive of exaggeration and, in some cases, outright feigning of mental health symptoms .”)

. Moreover, the District Court had an ample evidentiary foundation for the sentence
i mposed in this case

. In summary, we cannot say that “no reasonable sentencing court would have imposed the same sentence on [ Kilkeary ] for the reasons the district court provided

. ” Tomko , 562 F.3d at 568 . Accordingly, Kilkeary has failed to show that his sentence is substantively unreasonable.
C. Kilkeary also asserts that the District Court deprived him of due process by failing to articulate a clear rationale for the sentence that was imposed. He also contends that the12

judgmen t rider is so inconsistent with the District Court‟s statements at the time of sentencing as to deprive Kilkeary of the requisite unambiguous explanation for the sentence imposed. Our review is plenary. United States v. Dees , 467 F.3d 847, 854 (3d Cir. 2 006)

. As explained above , we find that the District Court articulated a clear rationale for the sentence imposed , and the judgment rider is entirely consistent with the explanation given at the time of sentencing. Accordingly, there is no violation of
Ki lkeary‟s Fifth Amendment due process rights.
III. For the foregoing reasons, we will affirm the District Court‟s judgment.