United States v. Friend

2 F.4th 369

UNITED STATES of America, Plaintiff – Appellee,

v.Philip Bernard FRIEND, Defendant - Appellant.

No. 20-4129

United States Court of Appeals, Fourth Circuit.

Argued: March 11, 2021

Decided: June 28, 2021

ARGUED: Robert James Wagner, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Alexandria, Virginia, Joseph S. Camden, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Brian R. Hood, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Before WILKINSON, FLOYD, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Richardson joined. Judge Floyd wrote a dissenting opinion.

WILKINSON, Circuit Judge:

Appellant Philip Friend, who actively participated as a fifteen-year-old juvenile in a series of violent carjackings, challenges the fifty-two-year sentence imposed by the district court after a remand in this case. Our remand instructed the district court to give a more thorough explanation for its sentence, with the prospect that a more tempered sentence might also result. United States v. Friend , 755 F. App'x 234 (4th Cir. 2018). These things have now both come to pass. The offenses in question occurred long ago, but their consequences have been long lasting. Because the district court acted within its discretion in imposing the present sentence, we affirm.

I.

A.

The relevant facts are undisputed. In 1999, at the age of fifteen, Philip Friend and several other associates and family members perpetrated a series of carjackings, beatings, and murders in Virginia. Philip worked primarily with his mother, his older brother Travis (then-age nineteen), and his older brother Eugene (then-age twenty-seven). The crime spree began as Eugene's brainchild; the family plotted to steal a long-haul truck and use it to ship marijuana from Texas. The family members specifically chose to target "older, independent truckers because they perceived them as more vulnerable and less likely to have their disappearances generate immediate attention." J.A. 238–39.

The family murdered its first victim, Soren Cornforth, in Richmond, Virginia, on March 1, 1999. Cornforth had just promised his wife that he would retire from long-haul trucking when the Friend family attacked him. J.A. 527. Philip and Eugene entered Cornforth's truck and beat him while the driver was waiting overnight to deliver his cargo. J.A. 370–71. Cornforth fought back more vigorously than expected, so Travis, at Eugene's direction, shot Cornforth dead. J.A. 371, 407. The group fled without taking Cornforth's truck, fearing the gunshots would soon attract the police, but it took several of his personal possessions. J.A. 371. When Philip exited Cornforth's truck, he had blood on his hands, jeans, and shirt. J.A. 402.

The family attacked its second victim, John Wesley Cummings, forty days later on April 10, 1999. J.A. 232. Posing as prostitutes, Philip's mother and Eugene's girlfriend attempted to lure Cummings to a van where Eugene and Philip lay in wait. After Cummings rejected the women's offer, Eugene and Philip assaulted Cummings in his truck. For several hours, Eugene and Philip (with the rest of the family following behind in the van) used Cummings’ truck to sell stolen goods while holding Cummings captive. Eugene drove the truck, and Philip bound Cummings’ arms, legs, mouth, and nose with duct tape. Philip then beat Cummings with his fists and a BB gun and kicked him. He "threatened to kill Cummings by freezing him to death in [the] refrigerator unit in his trailer," and told him, "This is the end of your journey." Id . Eugene pulled the truck over to stop Philip's beating of Cummings at one point. J.A. 204, 214.

The family used the truck to sell a stolen trailer of logs and also took several of Cummings’ personal items. Philip specifically demanded Cummings’ money and the rings he wore. J.A. 232–33, 662. The family then abandoned the truck with Cummings inside, although they slightly loosened his bindings. J.A. 273. As they fled, Philip "threatened to spray the truck with gunfire if Cummings tried to look out of the truck to see his assailants." J.A. 662. Philip later wore the rings he stole from Cummings. Id .

The original trial judge determined that "it was fortuitous ... that Eugene Friend intervened or perhaps Mr. Cummings would [have died]" from Philip's attack. J.A. 204. The beating caused Cummings to suffer from "frequent dizziness, headaches, constant pain," "partial loss of sight in his left eye," and "total loss of hearing in his right ear." J.A. 662. Subsequently, Cummings was forced to retire early. He declared bankruptcy, and lost his livelihood, his home, and the companionship of his spouse. J.A. 568, 662.

Finally, about two weeks later, on April 25, 1999, the family attacked and killed Samuel Lam. J.A. 273–74. In preparation, Philip recruited an additional associate who had a 10mm Smith and Wesson handgun. J.A. 663. Eugene and Travis supplied ski masks and gloves. Id . Philip's mother and Eugene's girlfriend enticed Lam to pull over at a rest stop. The three then agreed to travel to a nearby hotel for sex. When Lam arrived and approached the van, Philip "attempted to grab him and pull him into the van, but Mr. Lam was able to break away." J.A. 274. Philip and three others exited to attack Lam, and Eugene knocked him unconscious. Id .

Philip bound Lam's feet and arms with duct tape and covered his head with a pillowcase. J.A. 664. He then beat and kicked Lam so severely that the pillowcase and truck cabin were covered in blood. Id . The brothers drove the truck about an hour to a secluded pond as Philip beat Lam. They arrived at a swampy area, and Lam begged for his life as Philip helped his brothers drag him to the water. Travis shot Lam seven times. However, these shots did not immediately kill Lam, so Eugene attempted to choke and drown him. Lam then escaped Eugene's grasp, but he "was only able to move to another part of the swamp, where the group heard him moaning." Id . The brothers then left him to die. His remains were not discovered until almost a year later, on April 13, 2000. J.A. 665.

The family later sold the goods from Lam's truck. Defendant and his two brothers drove to Texas but failed to locate any marijuana to sell. Eventually they settled on a load of carrots but were stopped in Georgia on their return trip home due to various traffic violations. J.A. 275.

After his brothers’ arrests but before his own indictment, Philip attempted to intimidate a potential witness who had bought one of the stolen items from Lam's truck. He "cornered" the woman in a grocery store and "attempted to hit her because he believed she was talking with federal authorities regarding the arrest of his brothers." J.A. 44. He told her, "you and your son are going to die for snitching," and followed her out of the store as he continued to harass her. Id . The potential witness had to return to the store for safety; only once her brother arrived to help did Philip leave. Id .

B.

On May 3, 2000, defendant pleaded guilty to one count of carjacking, in violation of 18 U.S.C. § 2119(1), and one count of carjacking resulting in death, in violation of 18 U.S.C. § 2119(3). On October 24, 2000, the Honorable Robert E. Payne sentenced defendant to 180-months’ imprisonment for his § 2119(1) conviction and life imprisonment without parole for his § 2119(3) conviction pursuant to the then-mandatory sentencing Guidelines. J.A. 218–19.

After multiple attempts at postconviction relief, this court granted defendant's petition challenging the imposition of a life sentence under Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which held that mandatory life-without-parole sentences for juvenile offenders violated the Eighth Amendment, and Montgomery v. Louisiana , 577 U.S. 190, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), which made Miller retroactively applicable to cases on collateral review. See In re Friend , No. 13–292 (4th Cir. July 1, 2014) (unpublished order); United States v. Friend , 667 F. App'x 826 (4th Cir. 2016) (per curiam).

Upon remand, Philip appeared before the Honorable Henry E. Hudson in 2017 for resentencing. The sentencing proceeding was a thorough one. Defendant's aunt and Dr. Gillian Blair—a "clinical[,] forensic, and developmental psychologist," J.A. 443—testified to Philip's challenging childhood. He suffered physical abuse at the hands of his father and older brothers. At age nine, Philip lost his father to cancer. His father's death exacerbated the family's financial troubles and his mother's ongoing struggles with depression and bipolar disorder. J.A. 461–63. Following his father's death, Philip's older brothers became the de facto heads of the household and continued to abuse Philip, including by choking and beating him. Dr. Blair concluded that this "environment of child abuse and neglect ... would impact every aspect of [Philip's] being." J.A. 464.

Dr. Blair also explained how the human brain is not fully developed before the age of twenty-five—in particular, the frontal and prefrontal cortex are "not yet fully mature," leading adolescents to be "impulsive" and to inaccurately "assess risk." J.A. 452–53. She noted that the counseling session to which his mother took Philip would not have been enough to truly combat the struggles he faced. J.A. 460–61. Finally, she detailed her evaluation of Philip, which considered his "11 or 12" juvenile arrests, J.A. 465, and several IQ, executive functioning, and psychological tests, but did not include a risk assessment of future violence or criminality. J.A. 468–71, 569. She found Philip did not...