United States of America v. Booker, 543 U.S. 220 2005 . - 3 - the military to further the war effort in Iraq.…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4840
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALLEN VAN WILSON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, District
Judge. (1:05-cr-00258-WLO)
Submitted: January 29, 2007 Decided: March 5, 2007
Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Kearns Davis, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Allen Van Wilson pled guilty, pursuant to a plea
agreement, to one count of possession of a destructive device made
without authorization or approval in violation of 26 U.S.C.
§§ 5861(c) & 5871 (2000). On appeal, Wilson challenges his
sentence on three grounds. He contends that: (1) the district
court used the wrong standard in fashioning his sentence; (2) the
district court erred in declining to grant his motion for a
downward departure based on his intent to help the U.S. military;
and (3) his sentence is unreasonable because it is a custodial,
rather than a non-custodial, sentence. Because the district court
fully complied with its procedural obligations in imposing the
sentence and Wilson has not met his burden of demonstrating that
his sentence is unreasonable, we affirm.
Wilson’s guilty plea was based on his construction of hand
grenades at his home. Wilson had not registered his explosive
devices with the Secretary of the Treasury, paid tax on their
manufacture or obtained approval to register the explosives. See
26 U.S.C. § 5822 (2000) (approval, registration and tax
requirements). At sentencing, Wilson acknowledged that he knew it
was illegal to develop the devices without registration and
approval, but hoped that once he perfected the design, he would
still be able to secure a patent, produce and sell the weapons to

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1United States v. Booker, 543 U.S. 220 (2005).
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the military to further the war effort in Iraq. Wilson’s
Guidelines range was 37 to 46 months of imprisonment.
Wilson requested a downward departure and a non-custodial
sentence based on two factors identified in U.S. Sentencing
Guidelines Manual (“USSG”), lesser harms, § 5K2.11, and diminished
capacity, § 5K2.13. The court imposed a downward variance sentence
of 30 months’ imprisonment based on the nature and circumstances of
the offense and the history and characteristics of the defendant.
18 U.S.C.A. § 3553(a)(1) (West 2000 & Supp. 2006). The court
identified several factors that it concluded justified a sentence
outside the Guidelines range: (1) the likelihood of recidivism was
minimal; (2) the defendant’s family obligations and his wife’s
mental condition; (3) the defendant’s mental condition; and (4) a
30-month sentence would be sufficient deterrence.
In imposing a sentence after Booker,1 the district court
must first correctly determine, after making appropriate findings
of fact, the applicable Guidelines range. See United States v.
Hughes, 401 F.3d 540, 546 (4th Cir. 2005). Next, the court must
“determine whether a sentence within that range . . . serves the
factors set forth in § 3553(a) and, if not, select a sentence
[within statutory limits] that does serve those factors.” United
States v. Green, 436 F.3d 449, 456 (4th Cir.), cert. denied, 126 S.
Ct. 2309 (2006). The district court must articulate the reasons

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2Specifically the district court stated at sentencing that it
found a 30-month sentence to be a “reasonable sentence for the
public and for Mr. Wilson himself.”
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for the sentence imposed, particularly explaining any departure or
variance from the Guidelines range. See 18 U.S.C.A. § 3553(c)
(West Supp. 2006); Hughes, 401 F.3d at 546 & n.5. The explanation
of a variance sentence must be tied to the factors set forth in
§ 3553(a) and must be accompanied by findings of fact as necessary.
See Green, 436 F.3d at 455-56.
This court reviews the sentence for reasonableness,
considering “the extent to which the sentence . . . comports with
the various, and sometimes competing, goals of § 3553(a).” United
States v. Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 126
S. Ct. 2054 (2006). When we review a sentence outside the advisory
Guidelines range--whether as a product of a departure or a
variance--we consider whether the district court acted reasonably
both with respect to its decision to impose such a sentence and
with respect to the extent of the divergence from the Guidelines
range. See id. at 433-34 (variance sentence); United States v.
Hairston, 96 F.3d 102, 106 (4th Cir. 1996) (departure sentence).
Wilson contends that the district court used an incorrect
standard when it fashioned a sentence based on “reasonableness”
rather than a sentence “sufficient, but not greater than necessary”
to accomplish the goals of § 3553(a).2 He cites to United
States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006), in which

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3Wilson also argues that this court’s presumption of
reasonableness to sentences within the Guidelines range is
unconstitutional. In view of the fact that Wilson’s sentence is
below the Guidelines range, this argument affords him no benefit.
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this court recited the reasonableness standard. However, this
court did not suggest in Davenport that a district court may not
use the term “reasonable” in describing a defendant’s sentence.
Nor does Davenport stand for the proposition that in order to
withstand appellate review, a district court must specifically
articulate the language of the statute “sufficient, but not greater
than necessary.” Wilson’s argument is one of semantics and because
the district court followed the appropriate procedure in imposing
the sentence, considered the relevant factors, and adequately
explained its reasoning, we reject it. 3
Wilson also challenges the court’s decision denying his
motion for a downward departure based on USSG § 5K2.11 (lesser
harms). He claims the court’s refusal to depart was based on a
mistaken belief that it lacked authority to do so. While a
district court’s mistaken view that it lacked the authority to
depart may constitute reversible error, see United States v.
Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990), our review of the
sentencing proceeding confirms the integrity of the court’s
reasoning.
The district court fully considered Wilson’s motion for
a downward departure based on the argument that his patriotic

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motives warranted a reduced sentence, but determined that,
regardless of Wilson’s motives, the interest of the public in
punishing and deterring the type of dangerous illegal conduct
Wilson had committed was not diminished. This analysis is
consistent with USSG § 5K2.11. p.s., which explains that while a
departure on the basis of lesser harms may be appropriate where a
defendant commits a crime “in order to avoid a perceived greater
harm,” a sentencing reduction is inappropriate “[w]here the
interest in punishment or deterrence is not reduced.”
USSG § 5K2.11 p.s., also permits a reduced sentence if
the conduct does not “cause or threaten the harm or evil sought to
be prevented by the law proscribing the offense at issue.” The
policy statement cites, as an example, a case in which a war
veteran possesses a grenade as a “trophy.” Arguing for the
application of this exception, Wilson relies on United States v.
White Buffalo, 10 F.3d 575, 576-77 (8th Cir. 1993), in which the
defendant was convicted of possession of a sawed-off shotgun and a
downward departure was affirmed. In that case, the defendant lived
in a rural area and shortened a rifle to enable him to crawl under
a chicken shack to dispose of predators.
We conclude, however, that Wilson’s conduct did not
warrant application of the portion of USSG § 5K2.11 which the court
relied on in White Buffalo. Here, although Wilson may have hoped
to assist the government and military, his conduct still caused

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exactly the harm, the unregulated possession and manufacture of
explosives, that the statute seeks to prevent. As the district
court determined, Wilson’s motives do not diminish society’s
interest in punishment and deterrence of the conduct in which he
engaged.
Finally, Wilson argues that his sentence is unreasonable
because a non-custodial sentence would be sufficient to serve the
purposes of sentencing. He contends that the court failed to
properly consider the “circumstances of the offense and the history
and characteristics of the defendant” in accordance with
§ 3553(a)(1), and failed to accord sufficient weight to his mental
health history. However, this factor is the stated basis for the
court’s imposition of a non-Guidelines sentence, and one of the
factors listed as justification for the sentence is the
“defendant’s mental condition.” Thus, the court properly
considered and relied on the relevant factors under § 3553(a) in
imposing the sentence and Wilson has not established that the
sentence is unreasonable.
Accordingly, we affirm Wilson’s sentence. 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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