United States District Court, M.D. Alabama, Northern Division
OPINION AND ORDER
H. THOMPSON UNITED STATES DISTRICT JUDGE.
Darrell Gamble is before the court for sentencing in two
cases. In the first case (2:07cr219-MHT), he pled or was
found guilty of three charges in a revocation petition:
testing positive for cocaine and crack cocaine on two
occasions and otherwise engaging in new criminal conduct,
namely, being a felon in possession of a firearm, all in
early 2018. In the second (2:18cr275-MHT), he pled guilty to
an indictment charging him with being a felon in possession
of a firearm, which charge was based on the same facts
alleged in the revocation petition.
court is now faced with the question of sentencing a
defendant whom all parties recognize is a drug addict, who
appears potentially to possess an underlying or co-occurring
mental disorder as well as potential cognitive deficits, and
who has received little to no prior mental-health and
court has held that where there is a reasonable basis to
believe that a defendant's mental disease or
defect--including a substance-abuse disorder--contributed to
the conduct underlying his or her conviction, the court
should order a mental-health evaluation. See United
States v. Kimbrough, No. 2:07cr260, 2018 WL 989541 (M.D.
Ala. Feb. 20, 2018); see also United States v.
Mosley, 277 F.Supp.3d 1294 (M.D. Ala. 2017) (discussing
the issue of substance-abuse disorders in further detail).
Such an evaluation is necessary to aid the court in
fashioning an appropriate sentence, by helping to determine
(1) how a defendant's mental disease or defect may
mitigate his or her culpability for the offense
conduct; and (2) what type of treatment, if any, the
defendant should receive during supervised
release. The mental-health recommendation should,
therefore, focus on these dual, overlapping issues of
culpability and treatment: the role, if any, defendant's
mental illness played in his or her charged conduct, and what
treatment is recommended for defendant's illness in light
of his or her individual characteristics and history.
there is strong reason to believe that Gamble's severe
addiction to cocaine (and possibly other substances), and
potentially other underlying or co-occurring mental disorders
and cognitive deficits, contributed to the revocation
violations and related offense. Gamble has an extremely
lengthy and prolific history of drug use. By his own
admission, he first used marijuana at age 11, and was using
it daily up until the time of his arrest. When Gamble was age
13 his brother was murdered, after which he descended into
heavier substance abuse with regular use of alcohol and
Lortab (hydrocodone, an opiate). To add to the situation,
both of his parents were alcoholics. Gamble began using
cocaine at age 17 and developed a daily habit, followed by
crack cocaine. From 2006 until his arrest and incarceration
in 2007 he regularly used ecstasy and Tussinex (an opiate).
In addition, Gamble was expelled from junior high school at
the extraordinarily early level of sixth grade, prior to
which he had been struggling in special education classes.
has an extensive criminal history, consisting primarily of 10
separate drug-related convictions between 1991 and 2008. In
the 2008 Presentence Investigation Report for his underlying
conviction, he reported that he sold drugs to support his own
drug habit. Here, there is a clear potential connection
between the two substance-use violations of supervised
release and Gamble's apparent addiction to cocaine and
crack cocaine. Moreover, the evidence put on in the
revocation-petition hearing regarding the gun possession
violation, for which he also pled guilty to a new criminal
charge, demonstrated that, during the incident in which he
possessed the gun, he had traveled to a different
neighborhood in order to buy drugs.
Gamble has had little to no substance-abuse or mental-health
treatment in the past. He attended a substance-abuse program
in prison, but he reports that he did not complete the
program, and in any case the program did not involve
intensive treatment or ‘dual-diagnosis' treatment
for any underlying or co-occurring mental illness. Other than
a brief local evaluation arranged by defense counsel, Gamble
has had no previous mental-health evaluations or treatment.
U.S.C. § 3552(b) authorizes the court to order that the
study be done by the Bureau of Prisons (BOP) upon the finding
of a “compelling reason” or where there are no
adequate professional resources available in the local
community to perform the study. In this case, the court
seeks, with the agreement of the parties, a comprehensive,
longitudinal evaluation of Gamble's mental health,
including whether he suffers from substance-abuse disorder
and any co-occurring mental disorders or cognitive deficits,
and the development of a specialized treatment plan that will
help to ensure that he does not continue to violate the law.
It is undisputed that there are no locally available
resources that could provide such an evaluation. Because
there are no adequate professional resources available in the
local community, the court need not reach the issue of
whether there is a “compelling reason” for the
because Gamble does not oppose being transported, and
committed, to a BOP facility for the mental-health
evaluation, no due-process concerns are raised. See
Mosley, 277 F.Supp.3d at 1300.
its continuance of the revocation hearing, the court ordered
the parties to submit briefs indicating whether Gamble should
be evaluated at a BOP facility or locally, and proposing
issues to be included as subjects of the evaluation.
See 2:07cr219-MHT, Order (doc. no. 79). Gamble
agrees with the court that a longitudinal evaluation would be
appropriate, and the government does not object. In addition,
the parties in a joint filing consented to Gamble being
simultaneously evaluated by the BOP for sentencing in the
separate, related indictment. See No. 2:18cr275-MHT,
Jt. Position of Parties, (doc. no. 14). However, defense
counsel objects to two of the government's proposed
assessments to be included in the evaluation. See
2:07cr219-MHT, Def.'s Reply to the Government's
Response (doc. no. 81). Gamble first objects to
administration of the Psychopathy Checklist-Revised (PCL-R),
which he argues is flawed and also inapplicable here because
there is no basis to suspect that he is a
‘psychopath.' Second, he objects to use of the
Violence Risk Appraisal Guide-Revised (VRAG-R) as similarly
inapplicable, because Gamble has no prior violent
reaching the issue of whether the PCL-R is scientifically
flawed, the court agrees that these two tests are
inappropriate in Gamble's circumstances. Based on the
evidence presented in this case, including the 2008 PSR and
Gamble's comportment and testimony at the revocation
hearing, the court does not have a ‘reasonable
basis' to believe that he is a ‘psychopath,' or
that such an evaluation would be helpful in fashioning a
sentence. Similarly, because Gamble does not have a history
of violent crime, the VRAG-R is inapposite. See In re
Detention of Belcher, 189 Wash.2d 280, 294 (2017)
(“The VRAG-R is an actuarial instrument based on a
cross section of released violent offenders ....”).
Because they are inapplicable here, these assessments would
likely be, at best, an unnecessary expenditure of BOP's
finite resources, and, at worst, affirmatively misleading.
Moreover, the court declines to include in the evaluation
“Whether Mr. Gamble's mental health, mental
capability, and/or possible drug addiction impacts his
ability to refrain from future dangerousness, ”
2:07cr219-MHT, Government's Response to Court Order (Doc.
no. 78) at 1, independent from his possible risk of future
recidivism, because that question is better suited for a
dangerousness evaluation pursuant to 18 U.S.C. § 4246.
With these modifications, the parties' proposed questions
are incorporated in the order below.
faces punishment for his non-compliance with the terms of his
supervised release and for his conviction on a separate
federal indictment, and there is reason to believe that the
offense conduct in both cases was driven at least in
significant part by the mental disorder that is his drug
addiction, as well as potentially any underlying or
co-occurring mental disorder(s) and/or cognitive
deficiencies. In order to ensure that he is not
inappropriately punished for having a disease, to assess
accurately his culpability for the offense, and to mete out
any necessary rehabilitative treatment, it is ORDERED as
(1) Pursuant to the provisions of 18 U.S.C. § 3552(b),
the United States Marshal for this district shall immediately
remove defendant Darrell Gamble to the custody of the warden
of an appropriate institution as may be designated by the
Attorney General, where he is to be committed for the purpose
of being observed, examined, and treated by one or more
qualified psychiatrists or psychologists at the institution.
The statutory time period for the examination shall commence
on the day defendant Gamble arrives at the designated
institution. The examination shall be conducted in the
suitable facility closest to the court, unless impracticable.
(2) Pursuant to 18 U.S.C. § 3552(b), the examining
psychiatrists or psychologists shall evaluate defendant
Gamble's psychological condition for the purposes of
sentencing and shall include their ...