UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4253

ARLIN EDWARD RANEY,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert R. Merhige, Jr., Senior District Judge.

(CR-96-8)

Submitted: September 15, 1998

Decided: October 13, 1998

Before WILKINS, HAMILTON, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

W. Edward Riley, IV, BOONE, BEALE, COSBY & LONG, Richmond, Virginia, for Appellant. Helen F. Fahey, United States Attorney, N. George Metcalf, Assistant United States Attorney, Richmond,

Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Arlin Raney appeals from a district court judgment entered pursuant to a jury verdict finding him guilty of escape in violation of 18

U.S.C. § 751 (1994). On appeal, Raney's attorney has filed a brief in

accordance with Anders v. California, 386 U.S. 738 (1967), contending that the district court erred by refusing to permit Raney to submit

a duress defense to the escape charge, and further erred by departing

upward from the applicable guideline range established by the Sentencing Guidelines in sentencing Raney to a term of 48 months incarceration. Raney was informed of his right to file an informal brief,

and has filed a brief raising additional arguments relating to these

issues, as well arguments concerning his rights to counsel and the

competency of the trial judge.

Whether the affirmative defense of duress is established is a factual

issue which is usually determined by a jury. See United States v.

Sarno, 24 F.3d 618, 621 (4th Cir. 1994). Where, however, there is

insufficient evidence as a matter of law to support an element of the

defense, the trial judge may refuse to permit the defendant to present

the defense to the jury. Id. To establish duress, the defendant must

show that he acted under a reasonable fear of an imminent threat of

bodily harm and that he had no reasonable choice but to commit the

illegal act. See United States v. King, 879 F.2d 137, 139 (4th Cir.

1989).

In this case, Raney maintained that he walked off of the grounds

of the Federal Correctional Institute in Petersburg, Virginia, because

he was under a "state of mind" which caused him to believe that he

needed to protect his children from his wife. He did not allege that

his children were in any danger of physical harm, but that his wife

was harming his children through her handling of the family finances.

He did not allege that he personally was in any danger of harm, much

less imminent harm, or that he had no alternative means of resolving

his problems with his wife. Under these circumstances, we hold that

the district court properly found that Raney could not establish duress

as a matter of law, and properly refused to permit Raney to present

this defense to the jury.

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Raney also challenges his sentence on appeal. He was sentenced

pursuant to the applicable guideline for a violation of § 751. See

United States Sentencing Guidelines Manual § 2P1.1 (1995). His

applicable base offense level was 13. Taken together with his criminal

history category of III, Raney's guideline range was 18-24 months.

See U.S.S.G. Ch.5, Pt.A. The trial judge, however, was very concerned about Raney's psychological state; specifically, about the danger Raney posed to his wife, based on evidence that Raney escaped

in order to harm his wife. The presentence report advised that the

court might wish to consider departing upward from the guideline

range in view of the purpose of Raney's escape.

Only days prior to his escape, Raney wrote a letter to one of his

children apologizing in advance for anything he might have to do to

the child's mother that might hurt the child. Prior to sentencing, the

court ordered a psychological study of Raney pursuant to 18 U.S.C.A.

§ 3552(c) (West 1994 & Supp. 1998), and 18 U.S.C. § 4244 (West

1994 & Supp. 1998). The reports that followed Raney's examination

convinced the trial judge that Raney escaped to harm his wife, and

was still obsessed with thoughts of harming his wife. The court therefore departed upward from the guideline range of 18 to 24 months and

sentenced Raney to 48 months incarceration.

We review decisions to depart for abuse of discretion. See Koon v.

United States, 116 S. Ct. 2035, 2043 (1996). If a factor is one upon

which the Sentencing Commission encourages departure, and that

factor is not taken into account by the applicable guideline, a court

may exercise its discretion and depart on that basis. Id. at 2045. The

guidelines encourage departure where an offense is committed in

order to facilitate the commission of another offense. See U.S.S.G.

§ 5K2.9. Examination of the escape guideline does not reflect that this

factor has already been taken into account by the guideline. See

U.S.S.G. § 2P1.1. Accordingly, we find that the court did not err in

departing upward on this basis.

While Raney's counsel contends that the district court erred by

ordering the psychological evaluation which provided a partial basis

for the court's decision to depart upward without giving Raney appropriate notice of the evaluation, he cites no authority requiring such

notice. Sections 3552 and 4244 permit the court to order psychologi-

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cal exams on the court's own motion. In any event, however, the

court informed Raney at his initial sentencing hearing that the court

was going to order the examination. The court also explained the reasons for the examination and stated that after the examination, the

court would pronounce Raney's final sentence. Hence, we conclude

that Raney received adequate notice of the examination and its purpose.

We decline to address the specific arguments raised in Raney's

supplemental brief because they are patently without merit. In accordance with the requirements of Anders, we have examined the entire

record and find no meritorious issues for appeal. Accordingly, we

affirm Raney's conviction and sentence. Hence, the Government's

motion for "summary disposition" is moot. This court requires that

counsel inform his client, in writing, of his right to petition the

Supreme Court of the United States for further review. If the client

requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave

to withdraw from representation. Counsel's motion must state that a

copy thereof was served on the client.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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