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United States v. Herriman

United States Court of Appeals, Tenth Circuit

January 14, 2014

UNITED STATES of America, Plaintiff-Appellee,
Daniel Wells HERRIMAN, Defendant-Appellant.

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[Copyrighted Material Omitted]

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Carl Folsom, III (Robert Ridenour, Assistant Federal Public Defender, and Julia L. O'Connell, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Muskogee, OK, for Defendant-Appellant.

Gregory Dean Burris (Linda A. Epperley, Assistant United States Attorney, Mark F. Green, United States Attorney, and Christopher J. Wilson, Assistant United States Attorney, on the brief), Office of the United States Attorney, Muskogee, OK, for Plaintiff-Appellee.

Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.

HOLMES, Circuit Judge.

After planting a bomb near a gas pipeline, Daniel Herriman voluntarily turned himself in to the authorities and confessed. When he was criminally charged for his conduct, he pleaded not guilty and presented a defense to the jury based on his mental illness. Unpersuaded, the jury voted to convict him. Mr. Herriman then sought a downward adjustment to his sentence under § 3E1.1 of the U.S. Sentencing Guidelines (" U.S.S.G." or " Guidelines" ) on the ground that he had accepted responsibility for his actions. The district court declined to make the adjustment. Mr. Herriman now appeals from that decision, which we review under the jurisdiction conferred by 28 U.S.C. § 1291. The district court did not abuse its discretion in denying the requested adjustment, and we consequently affirm the court's sentence.


On August 10, 2011, an explosive device was discovered near a gas pipeline in Okemah, Oklahoma. When Mr. Herriman saw the bomb reported on the news, he called the police and informed them that he was responsible. Law enforcement interviewed Mr. Herriman, and he offered details relating to the bomb, including what materials he had used and where they could be located in his home.

Based on this information and the ensuing investigation, the government charged Mr. Herriman with attempting to destroy or damage property by means of an explosive, in violation of 18 U.S.C. § 844(i), and illegally making a destructive device, in violation of 26 U.S.C. §§ 5861(f), 5822, and 5871. The district court became concerned at the preliminary and detention hearings that Mr. Herriman was potentially incompetent to stand trial. As a result, it ordered a mental evaluation to determine " whether he [was] suffering from a mental disease or defect rendering him mentally incompetent." R., Vol. I, at 20 (Order, filed Aug. 18, 2011). Pursuant to that order, Jeremiah Dwyer, Ph.D., a forensic psychologist employed by the Bureau of Prisons, examined Mr. Herriman and found no objective evidence that his mental-health condition " would impair his present ability to understand the nature and consequences of the court proceedings against him, or his ability to properly assist counsel in his defense." Id., Vol. III, at 36 (Forensic Evaluation, dated Oct. 11, 2011). The court accepted Dr. Dwyer's conclusion and ruled that Mr. Herriman was fit to stand trial. A jury trial was scheduled, and Mr. Herriman gave notice that he would be asserting an insanity defense.

During trial, in its case-in-chief, the government naturally elicited testimony to prove that Mr. Herriman had engaged in the charged conduct, i.e., that he had constructed and placed the explosive device.

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Defense counsel almost entirely declined to contest the description of Mr. Herriman's actions offered by the government's witnesses.

When the government rested its case, Mr. Herriman cursorily and unsuccessfully moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. The defense then called a series of witnesses to testify to Mr. Herriman's psychological problems and his mental condition at the time of the incident. Their accounts overlap in large measure, and there is no need to recite each individual's remarks in detail. It suffices for our purposes to describe the overall narrative conveyed by the defense's witnesses. According to that narrative, Mr. Herriman had several mental-health problems— specifically, manic depression, schizoaffective disorder, and post-traumatic stress disorder; the last of these was caused by sexual abuse Mr. Herriman suffered as a minor. Mr. Herriman's symptoms included a tendency to hallucinate voices inside his head. Some of those voices were " command hallucinations," i.e., " voices [that] actually instruct [one] to do things." Id., Vol. II, at 819 (Trial Tr., dated May 9-14, 2012).

When he was thirteen years old, Mr. Herriman attempted to take his own life, and he has been hospitalized repeatedly for psychotic episodes. Mr. Herriman was deeply shaken by the suicide of his mother and by the death of his sister, which may also have been a suicide. Mr. Herriman's mental condition worsened after he moved into his sister's home, where he had seen her dead body. Psychiatrists had prescribed medications for Mr. Herriman's mental issues, but the medications did not always work. More specifically, the medications did not always subdue the voices in Mr. Herriman's head. At the time of the incident leading to his charged crimes, Mr. Herriman was taking antipsychotic medications for his manic depression and for his psychosis and was seeing a psychiatrist regularly.

Under the narrative Mr. Herriman advanced at trial, his mental condition was exacerbated in August 2011 due to the anniversary of his mother's death, which had taken place that same month. In his unstable state, Mr. Herriman planted the bomb at the behest of the imaginary voices that spoke to him. The voices, which " identified themselves as al Qaeda," id. at 830, threatened to hand Mr. Herriman over to the individuals who had sexually abused him in his youth if he disobeyed. At the time he built and planted the bomb, Mr. Herriman was affected by his delusions to such an extent that he was not aware of what he was doing and could not distinguish between right and wrong. When he heard a story on the news about the bombing, he " became lucid," id. at 655, and, realizing what he had done, immediately called the police and took responsibility for his actions. Without any solicitation from law enforcement, Mr. Herriman volunteered every detail relating to the bomb, including what materials he had used and where they were located in his residence. In so doing, he effectively solved the crime and saved the authorities from having to conduct any investigation.

Rejecting Mr. Herriman's defense, the jury convicted him of both charged offenses. The Presentence Investigation Report (" PSR" ) that followed stated that Mr. Herriman " maintained his innocence by reason of insanity throughout these proceedings. Therefore, he is not entitled to an adjustment [for acceptance of responsibility] under the provisions of [U.S.S.G. § ] 3E1.1." [1] Id., Vol. III, at 67

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(PSR, filed Nov. 5, 2012).[2]

Mr. Herriman objected to the recommendation, arguing at the sentencing hearing " that it was an irresistible impulse that caused [the crime] to happen." Id., Vol. II, at 317 (Sentencing Tr., dated Dec. 5, 2012). In elaboration, defense counsel explained that " under the law it would have been improper for Mr. Herriman to stand in front of a court and plead guilty because there was a true question of whether he possessed the necessary intent." Id. at 317-18. Thus, the fact that Mr. Herriman pleaded not guilty and went to trial did not, in defense counsel's eyes, overshadow the fact that he called law enforcement " out of the blue" and " solved their crime for them." Id. at 318. The government responded that by " contesting the issue of intent by raising the defense of insanity [Mr. Herriman] [was] contesting a factual issue [,] ... requiring the government to go to trial," and he had thereby lost any rightful claim to the acceptance-of-responsibility reduction. Id. at 319.

Having heard the parties' respective positions, the district court overruled Mr. Herriman's objection and declined to apply the acceptance-of-responsibility adjustment. It reasoned as follows:

One of the elements that the government was required to prove at trial was that the defendant committed the offenses knowingly and intentionally. By raising insanity as an affirmative defense, the defendant's denial of his intentionality and knowingly committing the offenses directly challenges one of the elements of guilt. Therefore, the defendant is not eligible for reduction [for] acceptance of responsibility in this case.

Id. at 322-23. In light of its ruling, the district court sentenced Mr. Herriman to sixty-three months in prison on each of the two counts of the indictment, to be served concurrently, followed by three years of supervised release. Mr. Herriman timely appealed his sentence to our court.


On appeal, Mr. Herriman attacks the district court's refusal to apply the acceptance-of-responsibility adjustment in two related respects: (1) the district court committed reversible error by denying the adjustment; and (2) the district court committed reversible error by failing to offer any factual findings to supports its decision. As explained below, both arguments are foreclosed by our binding ...

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