730 Self Defense, Necessity, Duress, Diminished Capacity (§5K2.10 -.13)

700 – Departures, Generally (§5K)

Back to main table of contents

§730 Departures: Self-Defense, Necessity, Duress, Diminished Capacity

(U.S.S.G. §§5K2.10 -.13)
Supreme Court
First Circuit
Second Circuit
Third Circuit
Fourth Circuit
Fifth Circuit
Sixth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
Eleventh Circuit
D.C. Circuit
Miscellaneous

9th Circuit upholds failure to depart for reduced mental capacity. (310)(730) Defendant was convicted of sex trafficking of minors, in violation of 18 U.S.C. §1591(a)(1). At sentencing, she sought a downward departure under §5K2.13 because she had a significantly reduced mental capacity. In support of this claim, defendant presented expert evidence. The district court declined to depart downward, finding that defendant had not shown that her reduced mental capacity contributed significantly to the commission of the offense. The Ninth Circuit affirmed, holding that the district court did not rely on clearly erroneous factual findings. U.S. v. Basa, __ F.3d __ (9th Cir. Mar. 28, 2016) No. 14-10557.

1st Circuit upholds denial of departure for coercion or duress. (730) Defendant was convicted of participating in a drug trafficking and a money laundering conspiracy. He argued that the district court erred in not granting his request for a downward departure under §5K2.12 for coercion or duress, claiming that the court erroneously required him to prove coercion and duress amounting to a complete defense. The First Circuit disagreed. The district court denied the departure because it found that defendant’s allegations lacked credibility and that the exorbitant amounts of cash paid to defendant belied his allegations of serious coercion. The court noted that after defendant’s last smuggling trip in January 2008, he did not participate in any other activity and was not even called by any co-conspirator to make any other trips. Despite defendant’s lack of participation, he did not suffer any retaliation whatsoever. Consequently, this argument went nowhere. U.S. v. Torres-Landrua, __ F.3d __ (1st Cir. Apr. 10, 2015) No. 13-1674.

Supreme Court allows departure in Rodney King beating case for victim misconduct. (730) In sentencing the police officers who were convicted of beating Rodney King, the district court departed downward for victim misconduct under U.S.S.G. § 5K2.10. The Supreme Court found no abuse of discretion, noting that victim misconduct is an encouraged basis for departure under 5K2.10. The departure was justified because the punishment prescribed by the civil rights guideline, 2A2.2 contemplates unprovoked assaults, not cases like the present one, where what began as legitimate force in response to provocation became excessive force. Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996).

1st Circuit upholds denial of funds for psychological evaluation. (730) Defendant argued that the district court erred in denying his request for $900 to obtain a presentencing psychological evaluation to determine if he had a diminished capacity. See U.S.S.G. § 5K2.13. He cited the fact that he was an alcoholic, suffered from sleep difficulties and racing thoughts, had mental health problems while incarcerated in the past, and had endured childhood abuse. The First Circuit found no abuse of discretion. The evidence of alcoholism did not help defendant because § 5K2.13 specifically prohibits a court from a departure if the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants. Moreover, current insomnia and racing thoughts, while indicative of some level of mental distress, are not probative as to defendant’s mental condition at the time he committed his crime. As to the child abuse, defendant presented the sentencing court with a letter that described his violent and abusive childhood. The sentencing court read the letter and considered defendant’s submission about the childhood abuse he suffered. As to prior mental health problems defendant told the judge he was not on any medication, and provided no corroborating evidence of any kind that he had a history of treatment for mental illness. U.S. v. Mastera, 435 F.3d 56 (1st Cir. 2006).

1st Circuit says government could not show that unpreserved error seriously impaired the fairness of judicial proceedings. (730) The district court departed below the statutory minimum for defendant’s weapons offense, based on her diminished mental capacity. See U.S.S.G. § 5K2.13. Defendant conceded that the government established three of the four prerequisites for an exercise of the court’s discretion to correct plain error under Rule 52(b). However, the First Circuit agreed with defendant that the government could not satisfy the fourth prong: that the error “seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” This was a highly unusual case. Defendant was afflicted with a “grave mental illness, except for which she probably never would have committed the crimes of which she stands convicted.” Section 5K2.13 prohibits a diminished capacity departure if the facts of the offense “indicate a need to protect the public because the offense involved violence or a serious threat of violence.” The district court interpreted the prohibition as applying only where the court finds an ongoing need to protect the public, and since there was no such need, the prohibition was not applicable. Although the panel tentatively agreed with this interpretation, it did not decide the issue, since in a post-Booker world the guidelines are only advisory. The panel remanded for resentencing under Booker, but without regard to the statutory minimum on the weapons count, application of which the government forfeited. U.S. v. Gorsuch, 404 F.3d 543 (1st Cir. 2005).

1st Circuit finds no plain error in failure to hold evidentiary hearing on diminished capacity claim. (730) Defendant argued that the district court erred by failing to hold a hearing on whether she was entitled to a downward departure based on diminished mental capacity. If the district court had denied a request from defendant for such a hearing, the appellate court would review for abuse of discretion. However, defendant did not make such a request, and the First Circuit found no plain error. The district court did err when it stated that both psychiatrists had the same opinion as to defendant’s entitlement to a departure based on mental capacity. However, the more critical consideration for plain-error review is whether the reports were so divergent that the court could not reasonably rely on them without holding an evidentiary hearing. They were not. U.S. v. Cheal, 389 F.3d 35 (1st Cir. 2004).

1st Circuit denies coercion departure where defendant’s perception of threats was unreasonable. (730) Defendant sought a downward departure under § 5K2.12, arguing that he committed the current bank larceny because he needed to repay a debt to Patel, and he believed he had been threatened with physical harm if he did not repay. The court refused to depart, finding that although both defendant and his father believed Patel was threatening physical harm, Patel was actually only threatening legal trouble. The First Circuit held that the district court correctly interpreted the guideline to require a threat of physical harm in order to depart downward based on coercion. Whether the threats are explicit or implicit, a defendant’s subjective believe that a threat has not been made, even if in good faith, is not alone a ground for departure. Here, the district court found that there were no actual threats and that Patel did not intend any such threats. Although the trial judge did not explicitly state that she found defendant’s perception to be unreasonable, she did hold that the threat was missing “an objective component.” This was essentially a finding that defendant’s belief that he was in physical danger was not reasonable. U.S. v. Sachdev, 279 F.3d 25 (1st Cir. 2002).

1st Circuit holds that court erred in refusing to hold ex parte hearing on indigent’s request for expert services. (730) Defendant’s counsel sought an evaluation of defendant by a licensed psychologist before sentencing. Because defendant was indigent, counsel used the procedure set forth in 18 U.S.C. § 3006A and filed an ex parte application for the funding of expert services. The court refused to consider the matter ex parte. The court then held a hearing at which the government was present. Because the government was present, defense counsel declined to place on the record certain confidential matters that formed part of the basis for the application. The court denied the request for services, and thus the defense did not argue for a § 5K2.13 diminished capacity departure. The First Circuit held that the district court erred in refusing to hold an ex parte hearing on defendant’s application for expert services. Section 3006A(e)(1) clearly states that “[c]ounsel for a person who is financially unable to obtain investigative, expert, or other services necessary for adequate representation may request them in an ex parte application.” The statute is not, as the district court found, ambiguous, and does not distinguish between sentencing and trial. U.S. v. Abreu, 202 F.3d 386 (1st Cir. 2000).

1st Circuit rules court aware of authority to depart. (730) Defendant, a federal inmate, was convicted of assaulting Santana, a fellow prisoner. Defendant had claimed at trial that Santana had threatened to “crack open” defendant’s head, and that he had received information that Santana planned to attack him. The district court rejected defendant’s request for a downward departure under §§ 5K2.10 (victim’s conduct) and 5K2.12 (coercion and duress). Defendant argued that the district court did not understand that it could invoke duress and coercion as grounds for departure even though it had rejected self-defense and duress as complete defenses to conviction. The First Circuit found nothing in the sentencing transcript that suggested that the court misunderstood its authority to depart. The sentencing transcript “betrays the incredulity of the trial judge at the claim being made.” The colloquy between the court and defense counsel turned entirely on the facts of the case. U.S. v. Bello, 194 F.3d 18 (1st Cir. 1999).

1st Circuit remands for clarification of refusal to make diminished capacity departure. (730) Defendant argued that the district court erred in refusing to grant him a downward departure based on numerous grounds, including a diminished mental capacity. The First Circuit remanded because several of the court’s remarks made it unclear whether it applied the proper standard for a § 5K2.13 departure. Several times, the judge stated that a diminished capacity departure was “discouraged” and certainly not “encouraged.” In addition, in its sentencing memorandum, the judge appeared to conflate two discouraged grounds for departure (physical and emotional condition) with a final, related ground (diminished mental capacity), which is not a “discouraged” ground for departure. Finally, the judge made additional statements which could be interpreted as requiring that the diminished capacity be the sole cause of the defendant’s crime. This would conflict with U.S. v. Lauzon, 938 F.3d 326 (1st Cir. 1991), which requires only that defendant’s significantly reduced mental capacity have “contributed to some extent to the commission of the offense.” On remand, if this clarification does not affect the outcome, the district judge is free to say so in a single sentence. U.S. v. Aker, 181 F.3d 167 (1st Cir. 1999).

1st Circuit has no jurisdiction if refusal to depart was based on facts, rather than law. (730) Defendant, a partner in a prostitution business, was herself a prostitute. She was convicted of transporting minors across state lines for prostitution purposes. She challenged the district court’s decision not to depart downward under § 5K2.13 (Diminished Capacity) and § 5K2.12 (Coercion and Duress). The First Circuit refused to review either claim. The court clearly lacked jurisdiction to review the diminished capacity claim. The judge based her decision on the results of a psychiatric evaluation, which she found did not demonstrate enough diminished capacity for a downward departure. The refusal to depart based on coercion and duress was more complicated. If the judge believed that a single past act of physical violence was insufficient as a matter of law to support a coercion/duress departure, the appellate court could review this legal determination. However, this did not appear to be the case. The judge did not imply that the past violence was legally insufficient for a departure. Instead, she found no evidence of the coercive effect of that violence during what she considered to be the relevant time period. The judge’s decision rested on the evidence’s lack of persuasive effect and did not encompass any legal error. U.S. v. Anderson, 139 F.3d 291 (1st Cir. 1998).

1st Circuit upholds refusal to depart for reduced mental capacity. (730) Defendant was involved in a carjacking in which a co‑conspirator shot and killed the driver. Defendant relied on a 1984 diagnosis of borderline mental retardation and paranoid schizophrenia to request a downward departure under § 5K2.13 (Diminished Capacity). Such a departure is available only if the offense is a “non‑violent offense.” Defendant argued that in denying the departure the court misinterpreted the phrase “non‑violent offense.” The First Circuit held that it lacked jurisdiction to review the claim. The district court did not base its refusal to depart on its interpretation of non-violent offense, but on its determination that defendant did not suffer from the required “significantly reduced mental capacity” at the time of the 1994 carjacking. Defendant did not contend that the court misunderstood the criteria for determining whether he suffered from a “significantly reduced mental capacity.” U.S. v. Nunez‑Rodriguez, 92 F.3d 14 (1st Cir. 1996).

1st Circuit rules that § 5H1.4 does not bar “lesser harm” departure for farmer who grew marijuana to combat depression. (730) Defendant was a farmer who grew marijuana for his own use to combat his depression and suicidal tendencies. The district court concluded that the prohibition in § 5H1.4 against considering a defendant’s drug dependency barred a § 5K2.11 “lesser harms” departure. The First Circuit ruled that assuming a proper factual predicate, the court had the authority to consider a § 5K2.11 departure, even if that predicate subsumed particular facts that would be precluded by § 5H1.4 from forming a basis for departure. The two sections do not necessarily conflict. The fact that a factor described in Part H as a discouraged or forbidden ground for departure is present does not itself negate departure based on a permitted ground listed in Part K. Here, where the alternative to defendant’s marijuana growing might well have been the taking of his own life, the interest in punishment or deterrence could reasonably be thought to be reduced. The risk of suicide was not a byproduct of defendant’s drug dependence. Rather, fear that he would take his own life led defendant to use drugs. The avoidance of suicide, not drug use, drives the lesser harms analysis. U.S. v. Carvell, 74 F.3d 8 (1st Cir. 1996).

1st Circuit holds that court exercised discretion in refusing to depart under § 5K2.11. (730) Defendant was convicted of being a felon in possession after he was involved in a shootout on a street corner. He claimed that he merely picked up the gun after one of the shooters “lost control” of the weapon. Defendant requested a § 5K2.11 departure because he committed the offense in order to avoid a perceived greater harm—injury to himself or others. The Second Circuit affirmed the denial of the departure, finding the district court was aware of its authority to depart. The district court’s refusal to depart was based on its belief that defendant possessed the gun before the shootout. This negated defendant’s claim that his possession was prompted by the need to protect himself. U.S. v. Powell, 50 F.3d 94 (1st Cir. 1995).

1st Circuit refuses to review district court’s refusal to depart based on duress. (730) The 1st Circuit held that it lacked jurisdiction to review the district court’s refusal to depart under section 5K2.12 based upon defendant’s duress. The court agreed with defendant that the jury’s rejection of a duress defense did not preclude a downward departure under section 5K2.12. The type and kind of evidence necessary to support a downward departure premised on duress is somewhat less than that necessary to support a duress defense at trial. However, defendant did not contend that the judge was unaware of his ability to depart or misunderstood the legal standard. Instead, defendant seemed to be arguing that the judge’s refusal to depart was wrong. However, an appellate court lacks jurisdiction to review a district court’s discretionary decision not to depart. U.S. v. Amparo, 961 F.2d 288 (1st Cir. 1992).

1st Circuit upholds failure of government witness to attend sentencing hearing. (730) Defendants contended that the district court erroneously refused to compel the government informant and chief witness to attend their sentencing hearings. Through the use of cross-examination, defendants argued they could demonstrate entrapment, and thereby establish a basis for a downward departure under guideline § 5K2.10, which permits a downward departure where the victim’s wrongful conduct contributed to provoking the offense behavior. The 1st Circuit rejected this argument, finding that defendants had the opportunity for lengthy cross examination of the informant at trial. Moreover, § 5K2.10 is ordinarily not relevant to non-violent offenses such as these drug offenses. U.S. v. Sanchez, 917 F.2d 607 (1st Cir. 1990).

2nd Circuit departs upward for defendant who pretended he was killed in September 11 attacks to avoid criminal prosecution. (730) Shortly after September 11, 2001, in order to avoid passport fraud charges, defendant pretended to be his own fictional brother, and falsely reported to his attorney that defendant had died in the September 11 attacks. He also posed as another fictional brother in an attempt to obtain a death certificate for himself from the city. Defendant’s “brother” reported to the New York City Law Department that defendant had worked at Cantor Fitzgerald in the World Trade Center and had died in the attacks. To support the claim, he produced a fabricated email from a deceased human resources manager from Cantor Fitzgerald purporting to show that defendant had begun working at Cantor Fitzgerald a week before the attacks. The district court departed upward under § 5K2.0 and § 5K2.7, finding defendant’s behavior “despicable” and “complete[ly] selfish.” In addition to committing a fraud on the court and the city, defendant diverted resources from the Marshals Service, the New York City Law Department and Cantor Fitzgerald at a time when their resources were desperately needed elsewhere. The Second Circuit held that the departure was not an abuse of discretion. The court did not depart merely because this case involved September 11 or resulted in an unnecessary additional expenditures, but “after careful consideration of the inter-relationship of a constellation of factors.” U.S. v. Leung, 360 F.3d 62 (2d Cir. 2004).

2nd Circuit rejects childhood abuse departure where district court found diminished capacity did not contribute to offense. (730) Defendant argued on appeal that the district court misunderstood its authority to grant him a downward departure based on “extreme childhood abuse.” However, at sentencing, defendant requested a departure based on diminished capacity, not childhood abuse, but the district court found that defendant’s reduced mental capacity did not contribute to the commission of the offense, and therefore, no departure was warranted. The Second Circuit found that this precluded a childhood abuse departure as well, because a finding “that extreme childhood abuse caused mental and emotion conditions that contributed to the defendant’s commission of the offense” is a factual prerequisite for the departure. See U.S. v. Rivera, 192 F.3d 81 (2d Cir. 1999). The argument that severe abuse automatically warrants a downward departure, regardless of the existence of a causal connection between the abuse and the offense conduct, is precluded by caselaw. U.S. v. Reinoso, 350 F.3d 51 (2d Cir. 2003).

2nd Circuit holds that generalized fear of third party was insufficient for duress departure. (730) Defendant pled guilty to conspiracy to engage in witness tampering and obstruction of justice. She had attempted to help her friend, Soler, to conceal his role in the murder of Garcia, another friend, by persuading another woman to identify her boyfriend as Garcia’s murderer. Defendant argued that a departure was warranted under § 5K2.12 because she had feared for her and her family’s safety had she refused to cooperate with Soler’s attempt to frame the other man as Garcia’s murderer. Defendant based her fear not on any explicit or implicit threat from Soler, but on her knowledge of Soler’s criminal conduct and her first-hand knowledge of Soler’s murder of Garcia. The Second Circuit held that the coercion occasioned by a defendant’s generalized fear of a third party, based solely on knowledge of that third party’s violent conduct towards others rather than on any explicit or implicit threat, is insufficient to constitute the unusual or exceptional circumstances warranting a departure under § 5K2.12. To hold otherwise would vitiate the guidelines’ requirement that the coercion be unusual or more severe than that implicit in ordinary criminal associations, and would reward defendants who associate freely with violent criminals. U.S. v. Cotto, 347 F.3d 441 (2d Cir. 2003).

2nd Circuit reverses downward departure based on lesser harm, family circumstances, and criminal history. (730) Defendant pled guilty to illegal reentry following deportation. The district court departed downward on three grounds: lesser harm, § 5K2.11, exceptional family circumstances, § 5K2.0, and overstated criminal history, § 4A1.3. The Second Circuit reversed. Defendant was not eligible for a lesser harm departure. This ground for departure was based on the judge’s finding that defendant had not illegally reentered the country for the purpose of committing another crime. However, the “harm” from the crime of illegal reentry is the illegal reentry itself. A deported alien reentering the country illegally, even without the intent to commit a crime, has done the essence of what the statute is intended to prohibit. The court made no findings that would support a departure for exceptional family circumstances, and the evidence provided no basis for such a finding. The illness of defendant’s father, residing in this country, also did not provide a basis for departure. Regardless of the length of defendant’s sentence, he would not be able to care for his father, because upon his release, defendant will be deported. Finally, although defendant fell within criminal history category III, he had only had one prior conviction. Exceptional circumstances would have to be shown to warrant a horizontal departures to reduce the criminal history for a defendant with only one prior conviction. U.S. v. Carrasco, 313 F.3d 750 (2d Cir. 2002).

2nd Circuit holds that diminished capacity of child pornography defendant may be ground for departure. (730) Defendant pled guilty to the receipt and possession of child pornography. He moved for a downward departure under § 5K2.13 based on his diminished mental capacity, a bipolar type II disorder. The court refused to depart, noting that “almost every [child pornography] defendant who comes before the court comes with documented psychological problems.” Such problems “were adequately considered by the Sentencing Commission” when it adopted the guideline for child pornography offenses. The Second Circuit held that diminished capacity of a defendant in a child pornography case may form the basis for a downward departure where the requirements of § 5K2.13 are satisfied. Moreover, from the record it appeared that the district court may have misunderstood his authority to depart on the basis of diminished capacity in this case. Therefore, the case was remanded for resentencing. U.S. v. Silleg, 311 F.3d 557 (2d Cir. 2002).

2nd Circuit rejects court’s reasons for refusing to grant diminished capacity departure. (730) Defendant presented evidence that prior to his offense, he had a stable history and no criminal record. He then underwent a change in personality, and discovered from a psychiatrist that he had a “large vascular lesion in the area of the internal capsule.” The psychiatrist concluded that the lesion caused defendant’s personality change and resulting “bizarre behavior.” The district court refused to depart, noting that despite § 5K2.13, “its my firm belief that that’s a misplaced qualification or differentiation. If any such is to come into play in my mind, it would have to enter into the mens rea as to whether the defendant had the intention to do what he did ….” Although normally a court’s decision not to depart is not reviewable on appeal, the Second Circuit found that the court’s remarks indicated a violation of law that permitted review under 18 U.S.C. § 3742(a)(1). The court’s remarks meant one of two things, both of which required reversal. First, the court stated that it had “trouble” with § 5K2.13 and believed that it was “misplaced.” Thus, it was possible that the court did not exercise its discretion not to depart, but decided not to depart simply because it did not like § 5K2.13. Second, it was possible that the court mistakenly believed that it did not have the authority to grant a downward departure based on diminished capacity. Its statement suggested that it thought diminished capacity was a question of mens rea for the jury to decide at trial. U.S. v. Ventrilla, 233 F.3d 166 (2d Cir. 2000).

2nd Circuit remands because court may have misunderstood authority to depart under § 5K2.11. (730) Defendant illegally purchased a firearm without disclosing that he was a convicted felon. He pled guilty to being a felon in possession of a firearm. Defendant argued at sentencing that he had purchased the gun as a Christmas gift for his brother and was therefore entitled to a “lesser harms” downward departure under § 5K2.11. He sought to introduce testimony from his wife, who accompanied him on the day of the gun purchase. The government argued that this testimony was irrelevant since the lesser harms departure applies only where a defendant commits a criminal act in order to avoid some greater harm. The district court denied defendant’s motion, adopting all the reasons given by the government. The Second Circuit remanded because the district judge may have misunderstood his departure authority under § 5K2.11. The first paragraph of § 5K2.11 permits a departure only where the crime is committed to avoid a perceived greater harm. But the second paragraph permits a departure where the defendant’s conduct may not cause the harm sought to be prevented by the law at issue. The court’s statements suggested that it agreed with the prosecutor’s contention that a departure was legally unavailable here. U.S. v. Clark, 128 F.3d 122 (2d Cir. 1997).

2nd Circuit rejects claim that defendant was coerced by mobster. (730) Defendant was convicted of RICO charges, wire fraud and money laundering in connection with illegal dumping at a landfill. He challenged a § 3B1.1(a) enhancement, claiming that the real manager of the criminal activity was a high-ranking member of a crime family, and that his own apparent authority derived from this mobster’s “duress, coercion and blackmail.” The Second Circuit agreed that defendant’s coercion claim was frivolous. Defendant had participated in robbing this mobster of money, which did not show fear. Also, he had initiated communications with another crime operation, which also showed his lack of fear of organized crime. The district court correctly disregarded defendant’s allegation that the mobster was the true leader of the scheme. However, it failed to make findings with respect to whether the scheme involved five or more participants or was otherwise extensive. Without such a finding, a § 3B1.1(c) enhancement was more appropriate. U.S. v. Zagari, 111 F.3d 307 (2d Cir. 1997).

2nd Circuit finds defendant did not prove pathological gambling disorder. (730) Defendant argued that the district court should have departed downward because he suffered from a diminished mental capacity due to a pathological gambling disorder. The Second Circuit affirmed the court’s finding that defendant did not prove by a preponderance of the evidence that he suffered from a pathological gambling disorder. Because defendant was unable to prove this, the court did not address whether a pathological gambling disorder constitutes diminished mental capacity under § 5K2.13. U.S. v. Harris, 79 F.3d 223 (2d Cir. 1996).

2nd Circuit concludes that judge was aware of authority to depart for coercion or duress. (730) Defendant argued that the district court should have departed under § 5K2.12 based on coercion or duress. The 2nd Circuit refused to review the matter, concluding that the district judge was aware of his authority to depart, but found no basis for doing so. The judge found that defendant was “well into” the offense before there was any coercion against him. U.S. v. Podlog, 35 F.3d 699 (2nd Cir. 1994).

2nd Circuit says alien held by defendants pending payment did not “provoke” her detention. (730) Defendants illegally smuggled a Guyanan woman into the United States. When the woman’s sister was unable to provide defendants with an agreed-upon fee, they refused to release the woman. For three days, defendants moved the woman from place to place, pressing her sister to produce the money. Defendants were convicted of participating in the smuggling scheme, and the district court departed upward under § 5K2.4 based on the restraint of the woman. Defendants argued that the court should have departed downward under § 5K2.10 based on the victim’s wrongful conduct in provoking the offense. The 2nd Circuit would not disturb the court’s decision not to depart, since the court was aware of its authority. Moreover, defendants would lose on the merits. Even if the woman did voluntarily enter a network of criminal operatives, and even if her sister expected, or feared, that the woman would be held pending payment, the woman did not “provoke” her own detention pending the COD payment for her person. U.S. v. Mussaleen, 35 F.3d 692 (2nd Cir. 1994).

2nd Circuit requires “causal nexus” between duress and offense to apply § 5K2.12 departure. (730) Defendant bought a shotgun and sawed off the barrel after his car was “shot up” and he received a threatening note. Defendant then threatened a co-worker after the co-worker notified police about the sawed-off rifle. The district court departed downward under § 5K2.12 based on duress. The government argued that the duress did not “cause” the retaliation offense, the most serious of defendant’s grouped offenses. The 2nd Circuit adopted a broader view of causation, requiring only a causal nexus between the duress and the offense. The district court’s finding that the retaliation was committed in part “because of” the duress was not erroneous. The relationship between the gun acquisition and the threats was close enough to conclude that there was a “causal nexus” between the original duress and the eventual threats of retaliation. U.S. v. Amor, 24 F.3d 432 (2nd Cir. 1994).

2nd Circuit rules judge correctly applied diminished capacity guideline. (730) Defendant argued that the district court incorrectly applied the diminished capacity guideline, § 5K2.13, by requiring that the diminished capacity be the sole cause of the offense in order to justify a downward departure. The judge said defense counsel was unable to show that there was some impairment of defendant’s mental functioning which caused him to be involved in the scheme. The 2nd Circuit held that the judge correctly applied the guideline. There are two requirements for a downward departure under § 5K2.13: reduced mental capacity and a causal link between that reduced capacity and the commission of the charged offense. The judge found the elements of causation were lacking. This conclusion was based on two experts’ psychological reports, letters from persons who knew defendant, and extensive argument of counsel. The judge was in the best position to evaluate this evidence. U.S. v. Piervinanzi, 23 F.3d 670 (2nd Cir. 1994).

3rd Circuit says court must consider departure motion separate from statutory sentencing factors. (730) Defendant moved for a downward departure under § 5K2.13 based on a diminished mental capacity. At sentencing, the district court denied the motion, stating in effect that it was not required to rule on the merits of departure motions. It noted that its general practice was to consider arguments for a Guidelines departure as part of its evaluation of the § 3553(a) sentencing factors. The Third Circuit remanded for resentencing, holding that the court erred in considering the departure motion as part of its consideration of the statutory sentencing factors. Post-Booker, there is a three-step process for incorporating consideration of the Guidelines into a court’s sentencing procedure. First, courts must calculate a defendant’s Guidelines sentence precisely as they would have before Booker. In so doing, they must formally rule on the motions for both parties and state on the record whether they are granting a departure. Finally, they are required to exercise their discretion by considering the relevant § 3553(a) factors. Here, the district court did not rule directly on the merits of defendant’s departure motion. U.S. v. Lofink, 564 F.3d 232 (3d Cir. 2009).

3rd Circuit holds that extortion conspiracy was not “provoked” by alleged frauds. (730) Defendant sought the help of undercover agents to extort money from two business associates who had allegedly defrauded defendant out of a large sum of money. Section 2K2.10 provides that departures may be made where “the victim’s wrongful conduct contributed significantly in provoking the offense behavior.” The Third Circuit agreed with the district court that a departure under § 5K2.10 would not have been proper. Defendant’s conspiracy to commit extortion was not provoked by the two acts of swindling in the way contemplated by the departure provision. There was a lack of immediacy and defendant’s response was not proportional. Any wrong done to defendant was economic in nature, and took place without the immediacy, or the highly-charged context of tension, emotional build-up or arousal, that typically exemplifies the provocative situation. Defendant’s response took place long after the alleged scams; he did not react within days, or even weeks, but many months, and in one case, nearly a year later. Further, defendant’s behavior was “grossly disproportionate to any provocation” by his victims. U.S. v. Mussayek, 338 F.3d 245 (3d Cir. 2003).

3rd Circuit rejects departure for victim’s wrongful conduct where no danger to defendant. (730) Defendant stabbed his wife to death as she emerged from the shower. Section 5K2.10 permits a downward departure if “the victim’s wrongful conduct contributed significantly to provoking the offense behavior.” Defendant argued that his wife’s revelation of past infidelity, made shortly before she took the shower, exposed wrongful conduct and was the sole provocation for the stabbing. The Third Circuit held that the district court properly denied a § 5K2.10 departure because there was no danger or reasonable perception of danger to defendant. The factors listed in the policy statement (e.g. size and strength of victim relative to defendant, danger to defendant) showed that the guidelines generally contemplate departures only where the victim’s conduct posed actual or reasonably perceived danger to the defendant. Here, the wife’s size and strength posed no threat to defendant, defendant himself initiated the fatal confrontation, and the wife had no reputation for violence. Given this, it was unnecessary to decide whether the revelation of past infidelities, or the infidelities themselves, can ever constitute “wrongful conduct” as to mitigate a sentence for murder. Moreover, even if the wife’s conduct were wrongful under § 5K2.10, defendant’s response was grossly disproportionate. U.S. v. Paster, 173 F.3d 206 (3d Cir. 1999).

3rd Circuit refuses to depart for compulsion to acquire antique clocks. (730) Defendant embezzled $12 million from his employer, and used the money to acquire and restore antique clocks. At sentencing, defendant’s doctor testified that defendant was not motivated by greed or accumulation of wealth; instead, he had an obsession with antique clocks that overpowered his sense of right and wrong. The Third Circuit upheld the district court’s refusal to depart under § 5K2.13 based on defendant’s compulsion to purchase antique clocks. Disorders such as gambling and intoxication do not ordinarily warrant a diminished capacity reduction. The district court also noted the length of time and sophistication of defendant’s scheme, and commented that defendant did not use his own money to feed his clock compulsion. The court reasonably concluded that compared with other cases, defendant’s compulsion did not rise to a level that warranted a downward departure. U.S. v. Vitale, 159 F.3d 810 (3d Cir. 1998).

3rd Circuit reconsiders en banc interpretation of “non-violent offense.” (730) In U.S. v. Askari, 140 F.3d 536 (3d Cir. 1998), the en banc Third Circuit interpreted “non-violent offenses,” as used in § 5K2.13, as offenses “which do not involve a reasonable perception that force against persons may be used in committing the offense.” The day before the opinion was filed, the Sentencing Commission proposed an amendment replacing the “non-violent offense” requirement with a statement that a § 5K2.13 departure is not available if “the facts and circumstances of the defendant’s offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence.” The court then stayed the mandate of the en banc opinion to see whether the amendment became effective. The amendment to § 5K2.13 became effective November 1, 1998. The Third Circuit, en banc, remanded the case to the district court for consideration of whether (1) defendant’s offense involved “actual violence or a serious threat of violence; and (2) defendant’s criminal history indicated a “need to incarcerate the defendant or protect the public.” The district court should rule on these issues in the first instance. U.S. v. Askari, 159 F.3d 774 (3d Cir. 1998) (en banc).

3rd Circuit says possessing child pornography is a “non-violent” offense. (730) Defendant downloaded child pornography from the Internet and stored the pictures on his home computer. He pled guilty to one count of possessing child pornography. Section 5K2.13 permits a downward departure for a significantly reduced mental capacity if the offense of conviction is a non-violent offense. The Third Circuit held that possession of child-pornography is a non-violent offense under § 5K2.13. The definition of a non-violent offense is currently being considered by the court en banc. However, under either test being considered, the offense is a non-violent offense. Under U.S. v. Rosen, 896 F.2d 789 (3rd Cir. 1997), the definition of crime of violence in § 4B1.2 governs the meaning of non-violent offense. Because the mere possession of child pornography does not have as an element the use, attempted use or threatened use of physical force, and is not the type of offense listed in § 4B1.2(a) or the application notes to § 4B1.2, it is not a crime of violence and therefore it is a non-violent offense. The alternative approach is to consider all the facts and circumstances surrounding the commission of the crime. There was no evidence that defendant’s conduct involved violence, either actual or threatened. U.S. v. McBroom, 124 F.3d 533 (3rd Cir. 1997).

3rd Circuit says inability to control conduct may show reduced mental capacity. (730) Defendant downloaded child pornography from the Internet and stored the pictures on his home computer. He requested a downward departure under § 5K2.13 based on a significantly reduced mental capacity. As a child, defendant suffered years of sexual abuse from his father. He submitted reports from several medical professionals explaining that he suffered from various psychological disorders caused by this abuse. Symptoms of these disorders included a compulsion to view pornography and an inability to control his impulses. The district court ruled defendant was ineligible for a § 5K2.13 departure because he was able to absorb information in the usual way and to exercise the power of reason. The Third Circuit reversed, holding that § 5K2.13 contains a volitional component—a defendant who is unable to control his conduct may also suffer from a significantly reduced mental capacity. The court here only considered defects in cognition, even though defendant was arguing that he was unable to exercise control over his own behavior. On remand, the district court should consider the merits of defendant’s volitional claim. U.S. v. McBroom, 124 F.3d 533 (3rd Cir. 1997).

3rd Circuit holds that threat of violence is sufficient to make mental capacity departure guidelines inapplicable. (730) Defendant pled guilty to mailing a threatening letter with the intent to extort money. He appealed the district court’s denial of a downward departure under § 5K2.13, sought on the grounds that he was a compulsive gambler. That section provides that a downward departure is permissible where the crime is non-violent and the defendant had a reduced mental capacity. The 3rd Circuit affirmed, holding that crimes of violence include situations where force is threatened but not used, as was the case here. Thus, since the crime was a violent offense, the district court correctly held that a departure was not authorized. The court did not address the question of whether being a compulsive gambler constitutes a reduced mental capacity. U.S. v. Rosen, 896 F.2d 789 (3rd Cir. 1990).

3rd Circuit holds that coercion and duress may be grounds for departure even though jury rejected this defense. (730) Defendant argued that she was entitled to a departure because she committed a bank robbery under coercion and duress. Section 5K2.12 allows for departure in cases of serious coercion or duress under circumstances not amounting to a complete defense. The 3rd Circuit held that the district court was legally incorrect in ruling that a jury verdict rejecting a coercion defense precluded the court from considering coercion as a mitigating factor in sentencing which may warrant a departure. The court noted that the commission’s definition of coercion for sentencing purposes is broader and substantively different than that which is required to obtain an acquittal. The sentence was vacated. U.S. v. Cheape, 889 F.2d 477 (3rd Cir. 1989).

4th Circuit says even after Booker, it lacks authority to review district court’s refusal to depart. (730) Defendant, convicted of drug charges, moved for a downward departure under § 5K2.13 based on his diminished mental capacity. The district court recognized that defendant’s mental retardation constituted a diminished mental capacity. The court found that defendant’s impaired ability to make social judgments and his reliance on others to make decisions made him a prime target for drug dealers. The court declined to depart, because it was “unwilling to find that [defendant] does not pose a danger to society, a necessary finding for utilizing § 5K2.13 as a vehicle for a downward departure.” The Fourth Circuit held that it lacked the authority to review the sentencing court’s denial of the downward departure. This legal principle has been settled for some time, and was not disturbed by the Supreme Court’s decision in Booker. U.S. v. Brewer, 520 F.3d 367 (4th Cir. 2008).

4th Circuit rejects downward departure that resulted in sentence below mandatory minimum sentence. (730) The government argued that the court erred by granting defendant a downward departure for diminished capacity because it led the district court to impose defendant’s sentences for violations of § 924(c) concurrently instead of consecutively, as statutorily required. The Fourth Circuit agreed and remanded for resentencing. Booker did nothing to alter the rule that judges cannot depart below a statutorily provided minimum sentence. U.S. v. Robinson, 404 F.3d 850 (4th Cir. 2005).

4th Circuit says cross burning was disproportionate response to victim’s alleged provocation. (730) Defendant was involved in burning a cross on property next to the house where an interracial couple lived. The district court departed downward in part under § 5K2.10 for victim conduct based on testimony that neighbors of the victims told defendant’s investigator that (1) Sanders, the male victim, would “gig” them (extend his middle finger to them) from his car; (2) a neighbor had a generator stolen, and had never had anything stolen before Sanders moved into the neighborhood; (3) defendant’s cousin “ran Sanders off” his property and Sanders made “lurid” gestures at him; (4) Sanders was a dope pusher and a felon and had been caught with concealed weapons; (5) Sanders had discharged a firearm; and (6) the neighborhood had changed in some unspecified way since Sanders arrived. The Fourth Circuit reversed. Several of defendant’s allegations did not rise to the level of wrongful conduct. As to the other conduct, there was no evidence that Sanders posed any danger to defendant at all. Moreover, even highly provocative behavior does not justify a downward departure if the defendant’s response is disproportionate. Cross burning was a “disproportionate and unreasonable response to the victim’s conduct.” Finally, Sanders was not the only victim of defendant’s crime. Williams, the Caucasian woman who shared the house with Sanders, was a victim and defendant did not allege that she provoked him in any way. U.S. v. May, 359 F.3d 683 (4th Cir. 2004).

4th Circuit rejects diminished capacity departure where defendant stabbed estranged wife. (730) The district court granted defendant a § 5K2.13 diminished capacity departure. The government contended that he was not entitled to the departure because the offense involved either “actual violence or a serious threat of violence.” Defendant, a professional boxer, forced his way into his estranged wife’s house by pushing aside her cousin. He then compelled her to leave by gesturing that he would hit her if she did not comply. Defendant displayed a buck knife, a flashlight, duct tape, pepper spray, and handcuffs to his wife as he transported her from North Carolina to Virginia. He told his wife that he had come prepared to kill her if he found her with another man. He stabbed his wife through a heavy leather jacket and slapped her. The Fourth Circuit found that these facts clearly demonstrated that defendant’s conduct involved a serious threat of violence, regardless of whether the stabbing was intentional or inadvertent. The district court committed clear error in finding that defendant’s conduct was not violent and did not involve a serious threat of violence. U.S. v. Bowe, 257 F.3d 336 (4th Cir. 2001).

4th Circuit finds no victim misconduct or extraordinary restitution in check kiting scheme. (730) Defendant and his brother concocted a massive check-kiting scheme that generated $64,000 in insufficient funds fees per year at one bank alone. The district court departed downward, finding the $3 million loss suffered by one bank overstated the seriousness of defendant’s conduct. The court cited four factors: (1) the bank delayed taking action; (2) the bank’s conduct led the family to believe that their actions were not unlawful; (3) the bank’s CEO mistakenly believed that the bank profited from the overdraft fees; and (4) the bank reached a settlement with the family. The Fourth Circuit reversed. Section 5K2.10 authorizes a departure if the victim’s wrongful conduct contributed significantly to provoking the offense. However, in non-violent cases, victim misconduct will warrant a reduction only in unusual cases. The victim’s conduct must not only be provocative, but “the victim must actually have done something wrong.” Provocation involves deliberate conduct that stirs a defendant to action. Such conduct was clearly absent here—the bank in no way goaded defendant into launching the check kiting scheme. Moreover, the overdraft fees were not profit, but a reimbursement for overhead that a bank must use to return checks. Defendant’s settlement agreement with the bank was not extraordinary. Defendant and his brother merely promised to make full restitution in four or five years. U.S. v. LeRose, 219 F.3d 335 (4th Cir. 2000).

4th Circuit upholds refusal to order psychiatric evaluation. (730) Defendant argued that the district court violated his due process rights by refusing to grant his request for a psychiatric evaluation before sentencing. He sought the evaluation so he could argue for a § 5K2.13 downward departure for a significantly reduced mental capacity. The Fourth Circuit held that the district court did not abuse its discretion by declining to order a psychiatric evaluation for defendant. The court rejected the government’s position that it can never be reversible error for a court to refuse to order a psychiatric exam before sentencing. It is important that judges make critical sentencing decisions with the benefit of all available information. However, defendant presented very little evidence to indicate that he in fact suffered from a mental impairment. The evidence he did submit was very old, and even if current, did not show that defendant suffered from mental incapacity. Moreover, the district court did listen to and consider defendant’s claim that he suffered brain damage and mental illness as a result of years of crack cocaine use. U.S. v. Cropp, 127 F.3d 354 (4th Cir. 1997).

4th Circuit holds mental problems did not make murder-for-hire non-violent under § 5K2.13. (730) Defendant was convicted of attempting to arrange a murder-for-hire. The district court departed under § 5K2.13 based on defendant’s diminished capacity. In so departing, the court ruled that defendant’s acts constituted a “non-violent offense” under § 5K2.13, given defendant’s “extremely serious delusional problems” that both motivated the crime and affected the manner in which he carried it out. The Fourth Circuit held that defendant’s mental problems did not make murder-for-hire a non-violent offense under § 5K2.13. The steps defendant took towards completing his plot precluded it from being labeled a non-violent offense. Defendant gave the supposed “hit man” a round trip plane ticket to the Philippines and $1400 cash, information on how to locate the victim in the Philippines, a photo of the victim. He also had sufficient financial resources to travel back and forth between California and Virginia. Defendant’s plot was typical of murder-for-hire cases. U.S. v. Morin, 124 F.3d 649 (4th Cir. 1997).

4th Circuit rejects § 5K2.13 departure where no evidence that depression affected ability to reason. (730) Defendant served as a courier in a conspiracy to import heroin into the U.S. from Thailand. The district court granted defendant a seven-level departure under § 5K2.13 for diminished capacity. The Fourth Circuit held that the circumstances did not support a § 5K2.13 departure. The only evidence that defendant suffered from depression was her own testimony and that of a friend. The only doctor that testified about defendant’s depression saw her only once after she had become intertwined in the conspiracy. Most importantly, there was no evidence that defendant’s depression affected her ability to reason or process information. Defendant suffered at most from emotional problems and not from any diminished mental capacity. U.S. v. Withers, 100 F.3d 1142 (4th Cir. 1996).

4th Circuit finds insufficient support for diminished capacity departure. (730) The district court made a downward departure under § 5K2.13 on the basis defendant’s diminished mental capacity. The court relied on a psychologist’s report that defendant suffered from an anxiety disorder and from some maladapted strategies that had never been addressed before. The Fourth Circuit reversed, since there was no evidence that defendant’ ability to process information or to reason was substantially impaired. All of the evidence showed that defendant “displayed considerable mental agility in his professional and personal affairs, both legal and illicit.” Defendant’s mental disorder did not impair the formation of reasoned judgments or prevent him from processing information. All of the information presented to the court indicated a high level of mental functioning. There was also no evidence that defendant’s disorder contributed to the commission of the offense. U.S. v. Goossens, 84 F.3d 697 (4th Cir. 1996).

4th Circuit says victim’s wrongdoing must be real to justify departure for victim conduct. (730) Defendant fell in love with the wife of his mentor. Defendant claimed that the wife seduced him and told him that she was being abused by her husband. Defendant decided to hire a hit man to kill the husband and was convicted of murder‑for‑hire. The Fourth Circuit reversed a downward departure under § 5K2.10 based on the victim’s alleged misconduct, holding that the guideline requires that the victim actually have done something wrong. The only evidence that the victim did anything wrong was defendant’s recollection of a statement by the wife. However, all of defendant’s recollections were suspect given his psychiatrist’s testimony of delusions and the wife’s denial of an affair. It appeared that the victim’s misbehavior was imagined rather than real. Moreover, even if the victim had abused his wife, defendant’s response was disproportionate. Defendant’s offense did not fall outside the heartland of murder‑for‑hire. It appeared that defendant’s motive, even if delusional, was simply the elimination of a perceived competitor. U.S. v. Morin, 80 F.3d 124 (4th Cir. 1996).

4th Circuit holds that factual finding underlying refusal to depart is not subject to review. (730) Defendant requested a downward departure based upon diminished capacity pursuant to section 5K2.13. The district court refused, concluding that any diminished capacity was the result of voluntary drug use. Based on U.S. v. McCrary, 887 F.2d 485 (4th Cir. 1989), defendant argued that the appellate court had jurisdiction to review a refusal to depart where that refusal is based upon a clearly erroneous finding of fact. The 4th Circuit rejected the argument, stating that it had no jurisdiction to review a refusal to depart downward. U.S. v. Bayerle, 898 F.2d 28 (4th Cir. 1989) makes it clear that the only circumstance in which review is available is when the district court mistakenly believes that it lacks the authority to depart. To the extent that McCrary stands for the proposition that the factual findings underlying a district court’s refusal to depart is subject to review, that case has been effectively overruled by Bayerle. U.S. v. Underwood, 970 F.2d 1336 (4th Cir. 1992).

4th Circuit affirms that defendant’s diminished capacity justified downward departure. (730) The 4th Circuit affirmed the district court’s decision to depart downward under guideline section 5K2.13 based upon defendant’s diminished capacity. The record contained the testimony and written report of a “highly credentialed psychiatrist” that indicated that defendant was suffering from a significantly diminished mental capacity. The government’s only evidence on the issue was a page from a textbook. There also was sufficient evidence that defendant’s diminished capacity was a contributing factor in the commission of the offense. The psychiatrist testified without contradiction that defendant “had no conscious control over the things that were going on inside of him to a certain limit,” and that the disease impaired his ability to cope with stress, which “led him to act out in this self destructive fashion.” U.S. v. Glick, 946 F.2d 335 (4th Cir. 1991).

4th Circuit rules lack of injury precluded departure on grounds of duress. (730) Drug defendant argued that the sentencing court should have granted him a downward departure on the grounds that he was coerced into or acted under duress when he committed the offense. The 4th Circuit disagreed, holding that it was “reasonable” for the lower court to deny the request for departure because § 5K2.12 provides that coercion will ordinarily warrant departure only when there is “ a threat of physical injury, substantial damage to property or similar injury . . .” Here, the defendant had failed to point to any evidence that his co-conspirators had voiced threats of this magnitude. Thus the trial court acted properly. U.S. v. McCrary, 887 F.2d 485 (4th Cir. 1989), overruling on other grounds recognized by U.S. v. Alvarez-Hernandez, 478 F.3d 1060 (9th Cir. 2007).

5th Circuit holds that court erred in categorically denying downward departure because bank robbery was crime of violence. (730) Section 5K2.13 says that a downward departure may be warranted if the defendant committed the offense while suffering from a significantly reduced mental capacity. However, such a departure may not be granted if “the facts and circumstances of the defendant’s offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence.” The district court found defendant was ineligible for a §5K2.13 departure as a matter of law because bank robbery, the offense of conviction, is a crime of violence. The Fifth Circuit held that district court erred in categorically denying the downward departure simply because bank robbery is a crime of violence. Section 5K2.13, in its current form, requires court to look at all facts and circumstances surrounding a defendant’s crime to determine whether it involved “actual violence or a serious threat of violence.” U.S. v. Sam, 467 F.3d 857 (5th Cir. 2006).

5th Circuit allows downward departure in civil rights case but reverses as to extent. (730) Defendant was a Mississippi police chief who was convicted of using excessive force during an arrest in violation of 18 U.S.C. §242. At sentencing, the district judge departed downward under § 5K2.10 because “the victim’s wrongful conduct contributed significantly to provoking the offense behavior.” The victim had kicked at the officer repeatedly after being handcuffed and placed in the patrol car. On appeal, the Fifth Circuit relied on Koon v. U.S., 518 U.S. 81 (1996) to hold that the victim’s conduct was a valid basis for departure here. The court noted that the victim had pleaded guilty to resisting arrest. Moreover, the Fifth Circuit held that the district court could properly consider the police chief’s “unblemished record” as a police officer even though, under § 5K1.5, a defendant’s employment record is not ordinarily relevant. Nevertheless, the panel voted 2-1 to remand the case for resentencing as to the extent of the downward departure because the sentence was only 15% of the guideline minimum. U.S. v. Harris, 293 F.3d 863 (5th Cir. 2002).

5th Circuit holds that fear of career loss was not type of duress contemplated by § 5K2.12. (730) Defendant, a public official, was involved in a conspiracy to commit bribery and misapply state funds. The district court departed downward under § 5K2.12 based on its finding that defendant committed the offense under duress. The court considered defendant’s age (60), his lack of an advanced education (some college), and his length of government service in concluding that defendant was economically and psychologically pressured by fear of career loss into following the orders he was given. The Fifth Circuit held that this was not the type of duress contemplated by § 5K2.12. The Sentencing Commission has determined that personal financial difficulties and economic pressures upon a trade or business do not warrant a decrease in sentence. U.S. v. Moeller, 80 F.3d 1053 (5th Cir. 1996).

5th Circuit affirms upward departure for extortionate immigration offense and use of firearm. (730) Defendant and her co-defendant threatened a smuggled alien with a revolver, insisting that she either pay the $400 fee or suffer forcible repatriation. They also attempted to force a 15-year old girl to work as a prostitute until she could pay her fee. When the girl ran away, they tracked her down and threatened her. At one point the co-defendant discharged the revolver in the air. Defendant’s conduct clearly fell outside the “heartland” described by section 2L1.1. The nine level departure, calculated by analogy to the extortion guideline, section 2B3.2, was reasonable. An additional five level departure based upon the use of the firearm was also reasonable. Section 5K2.0 expressly provides that if a weapon is a relevant factor in sentencing for an immigration violation, the court may depart. Section 5K2.6 notes that the discharge of a firearm might warrant a substantial sentence increase. U.S. v. Lara, 975 F.2d 1120 (5th Cir. 1992).

5th Circuit upholds district court’s authority to determine whether defendant’s mental condition was a contributing cause of crime. (730) Defendant argued that the district court erred in failing to depart downward under guideline section 5K2.13 based upon his depressed mental state at the time of the offense. He argued that the district court was bound by the definition of “significantly reduced mental capacity” provided by the testifying psychologist and psychiatrist, and was required to give deference to his experts’ evaluation of the effect of depression upon his judgment. The 5th Circuit declined to grant such deference, ruling that the sentencing court had the power and duty to determine whether defendant’s mental condition described by the witnesses was a contributing cause of the crime. Here the district court specifically found that the mental condition described by defendant’s witnesses did not contribute to the commission of his crime, and that he was not suffering from a significantly reduced mental capacity. U.S. v. Soliman, 954 F.2d 1012 (5th Cir. 1992).

5th Circuit finds insufficient facts to justify downward departure based upon coercion and duress. (730) The 5th Circuit upheld the district court’s determination that defendant did not satisfy the requirements for a downward departure under guideline § 5K2.12 based upon coercion, blackmail or duress. The district court found that § 5K2.12 did not apply because no threat of violence or injury was made. Although defendant’s mother may have improperly influenced defendant, it did not amount to coercion serious enough to justify a downward departure. U.S. v. Vela, 927 F.2d 197 (5th Cir. 1991).

6th Circuit finds no jurisdiction to review refusal to depart down based on argument that victim provoked offense. (730) Defendant, a federal prisoner, pled guilty to assaulting an inmate resulting in serious bodily harm, in violation of 18 U.S.C. § 113(a)(6). He moved for a downward departure under § 5K2.10, which applies when the victim’s conduct significantly contributed to provoking the defendant’s offending behavior. The district court denied defendant’s motion. The Sixth Circuit ruled that it lacked jurisdiction to review the refusal to depart. In this circuit, a district court’s decision not to depart downwards is considered unreviewable, except where there is clear evidence that “the lower court incorrectly believed that it lacked authority to grant such a departure.” Here, the district judge made it clear that the reason he was denying defendant’s motion was not because he believed he lacked the power to grant it, but because he believed doing so was inappropriate, given the circumstances of the case. The judge did not, as defendant argued, graft an additional duress requirement onto § 5K2.10. U.S. v. Church, 731 F.3d 530 (6th Cir. 2013).

6th Circuit holds sentence was reasonable where court considered and rejected diminished capacity departure. (730) Defendant argued that his 235-month felon-in-possession sentence was unreasonable because the court failed to account for mitigating factors, primarily that defendant suffered from a “substantial mental handicap.” The district court considered defendant’s motion for a downward departure based on his diminished mental capacity under § 5K2.13, but ultimately found that defendant’s “long history of violence” and “unwillingness to conform his conduct to the law” precluded a departure. The Sixth Circuit found the sentence reasonable, since defendant failed to identify any relevant factor that the court neglected to consider. The mere allegation that the sentence imposed was greater than necessary to achieve the goals of punishment in § 3553(a) is insufficient to rebut the presumption of reasonableness. The court took into account defendant’s mental capacity and the nature of his crime and found that a sentence at the bottom end of the guideline range would provide the optimal balance between defendant’s personal circumstance and the need to protect the public. Nothing in the record indicated the court erred in this assessment. U.S. v. Crowell, 493 F.3d 744 (6th Cir. 2007).

6th Circuit says defendant who kidnapped and raped victim was barred from diminished capacity departure. (730) Defendant and an accomplice kidnapped a postal worker, held her captive for four hours, and took turns sexually assaulting her. At sentencing, the district court concluded that, based on expert testimony, defendant suffered from diminished capacity. He was convicted of kidnapping, assault, and the use of a firearm during a crime of violence. Although U.S.S.G. § 5K2.13 authorizes diminished capacity departures, such a departure is not available if “the facts and circumstances of the defendant’s offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence.” The Sixth Circuit concluded that each of the offenses for which defendant was convicted met the definition of a “crime of violence” under § 4B1.2(a), and therefore, the district court correctly found that it lacked the discretion to depart downward under § 5K2.13. U.S. v. Cole, 359 F.3d 420 (6th Cir. 2004).

6th Circuit holds that court was aware of authority to grant diminished capacity departure. (730) Although a psychiatric examination revealed that defendant suffered from major depressive disorder and functioned at a borderline intellectual level, the evaluating team nonetheless concluded that defendant did not suffer from diminished capacity, as required by U.S.S.G. § 5K2.13. The transcript from the sentencing hearing showed that the district court considered defendant’s argument for a § 5K2.13 departure but concluded, based upon the test results, that a downward departure based upon diminished capacity was unwarranted. The Sixth Circuit concluded that the district court was aware of its discretion to grant a downward departure for diminished capacity, but determined that the facts of the case did not justify such a departure. Therefore, the refusal to depart was unreviewable. U.S. v. Cooper, 348 F.3d 493 (6th Cir. 2003).

6th Circuit upholds diminished capacity departure for defendant suffering from depression and thinking disorder. (730) Defendant was convicted of preparing 21 false federal tax returns for nine low-income women. The district court departed downward under § 5K2.13, finding that defendant had committed the offense while suffering from a significantly reduced mental capacity. The Sixth Circuit affirmed. There was enough evidence to support the conclusion that defendant suffered from a depressive disorder and a thinking disorder, which potentially impaired her power of reasoning. Both psychologists who examined defendant came to this conclusion independently, and their conclusions were supported by tests. Furthermore, the doctors explicitly linked the disorder to a diminished capacity to reason during the relevant time period. No contrary medical evaluations were offered. While the government laid out a convincing argument that defendant was intellectually sophisticated, and understood she was lying on the forms and violating the law, the psychologists contended that defendant was significantly impaired in her ability to understand what she was doing was wrong. She understood her actions as helping these women, and thus she rationalized the lies. The government’s vision of defendant as a sophisticated criminal was weakened by the fact that defendant had not managed to file her own tax returns over this period and her financial gain from the scheme was de minimis, since she collected nothing in the vast majority of cases. U.S. v. Cockett, 330 F.3d 706 (6th Cir. 2003).

6th Circuit upholds obstruction increase despite defendant’s claim of diminished capacity. (730) Defendant received an obstruction of justice increase based on lies he told the district court about his employment status and child support history in order to persuade the court to continue his pretrial release. Defendant argued that the court erred in failing to consider the evidence of his diminished psychological capacity, and that he did not have the mental capacity to engage in such willful conduct. He presented a report by a doctor who opined that defendant’s capacity to appreciate what he was doing in a responsible manner was diminished. However, the district court witnessed defendant’s testimony firsthand, and was in the best position to determine the “willfulness” of defendant lies, despite his claim of diminished capacity. The Sixth Circuit affirmed the application of the obstruction increase. U.S. v. Turner, 324 F.3d 456 (6th Cir. 2003).

6th Circuit agrees that defendant not eligible for departure based on victim’s wrongful conduct. (730) Defendant was convicted of extortion conspiracy charges for forcing bookmakers to pay him a “street tax.” He argued that the district court erred in declining to depart downward under § 5K2.10 based on the criminality of his victims. The Sixth Circuit upheld the district court’s finding that § 5K2.10 was inapplicable. The guideline is limited to situations where “the victim’s wrongful conduct contributed significantly to provoking the offense behavior.” It was “ridiculous” for defendant to argue that the unlawful bookmaking of his victims provoked him to engage in extortion. Indeed, on appeal he did not make this argument, instead claiming that the illegal activities were a but-for cause of his activity. There was no indication in the record that any of defendant’s extortion victims had defrauded him or provoked the extortion in any way. The same conclusion was true for conspiracies to murder Bowman and Morales. U.S. v. Corrado, 304 F.3d 593 (6th Cir. 2002).

6th Circuit has no jurisdiction to review refusal to depart under facts of the case. (730) Defendant was convicted of embezzling government funds. She argued that the victim itself committed some wrongdoing, and that the district court erred in not granting her a downward departure under § 5K2.10. The Sixth Circuit ruled that the matter was not reviewable. The district court expressly recognized that it had the authority to depart downward under § 5K2.10, but declined to do so because of its conclusion that under the facts of this case, a departure was not warranted. Accordingly, this issue was not properly before the appellate court. U.S. v. McGahee, 257 F.3d 520 (6th Cir. 2001), declined to follow by Regalado Cuellar v. U.S., 553 U.S. 550, 128 S.Ct. 1994 (2008).

6th Circuit holds that court could not make diminished capacity departure from mandatory minimum. (730) Defendant was convicted of armed bank robbery, 18 U.S.C. §§ 2113(a),(d) and carrying a firearm in relation to a crime of violence, 18 U.S.C. § 924(c). At sentencing, the lower court departed downward from the guidelines for armed robbery, based on a finding of diminished capacity. USSG § 5K2.13. However, it found itself without discretion to make a diminished capacity departure from the sentence for the § 924(c) offense, which carries a statutory minimum of 60 months. The Sixth Circuit agreed that the court could not make a diminished capacity departure from the minimum sentence mandated by § 924(c). Other than under the substantial assistance provisions, there is no authorization for a departure below a mandatory minimum sentence. See U.S. v. Smith, 966 F.2d 1045 (6th Cir. 1992). U.S. v. Burke, 237 F.3d 741 (6th Cir. 2001).

6th Circuit upholds downward departure based on defendant’s gambling addiction. (730) In U.S. v. Hamilton, 949 F.2d 190 (6th Cir. 1991), the Sixth Circuit held that a compulsive gambler who pled guilty to drug charges did not qualify for a § 5K2.13 diminished capacity departure because he “was able to absorb information in the usual way and to exercise the power or reason.” However, in 1998, the Sentencing Commission expanded the definition of a “significantly reduced mental capacity” to include both cognitive impairments (an inability to understand the wrongfulness of the conduct or exercise the power or reason) and volitional impairments (an inability to control behavior that the person knows is wrongful). See Note 1 to § 5K2.13. Thus, Hamilton is no longer good law. Based on the language of the amended note, the Sixth Circuit approved a downward departure based on defendant’s gambling addiction. The panel rejected the government’s claim that defendant’s gambling problem would only justify a downward departure if he had been arrested for gambling, rather than for fraud. Section 5K2.13 does not distinguish between conditions that cause the behavior that constituted the crime and conditions that cause the motivation for the crime. The court’s finding that defendant had a gambling addiction that qualified as a significantly reduced mental problem was not clearly erroneous. The court’s findings were based on testimony by defendant, his wife, and a lay witness from Gamblers Anonymous. U.S. v. Sadolsky, 234 F.3d 938 (6th Cir. 2000).

6th Circuit says defendant would not have qualified for diminished capacity departure. (730) Prior to sentencing, defendant moved for funds to obtain the services of a clinical psychologist so that he could obtain a § 5K2.13 diminished mental capacity departure. The Sixth Circuit ruled that defendant was not entitled to funds, since his proposed theory for departure did not qualify under § 5K2.13. Caselaw holds that a defendant who has the ability “to absorb information in the usual way and to exercise the power of reason” does not have a mental or emotional disorder sufficient to trigger a downward departure for diminished mental capacity.” U.S. v. Johnson, 979 F.2d 396 (6th Cir. 1992). In this case, defendant’s theory behind the proposed motion to depart did not indicate that he was unable to process information or to reason, or even that he was unable to appreciate the wrongfulness of his conduct. On the contrary, defendant’s theory was based upon cultural and psychological factors stemming from his background. The defense contended that these factors combined to reduce his ability to refuse to participate in the drug scheme when he was coerced into doing so as a prerequisite for obtaining a loan. However, these circumstances did not indicate a significant reduced mental capacity under circuit precedent. U.S. v. Osoba, 213 F.3d 913 (6th Cir. 2000).

6th Circuit upholds refusal to depart for diminished capacity. (730) Defendant argued that he should have received a § 5K2.13 downward departure based on his diminished mental capacity. The district court refused to depart, finding that defendant’s depression from his mother’s death a year earlier was not sufficient to qualify him for a diminished capacity departure. Moreover, his condition may have been caused by his voluntary use of drugs. The Sixth Circuit affirmed. The district court found insufficient evidence of diminished capacity. Defendant failed to point to any evidence or provide any argument that this finding was clearly erroneous. Moreover, even if the finding were clearly erroneous, the district court’s failure to depart still would not be appealable. U.S. v. Watkins, 179 F.3d 489 (6th Cir. 1999).

6th Circuit holds that crime of violence cannot be non-violent felony. (730) Defendant called a bank and threatened to detonate two explosive devices at different branches unless he received $100,000. He pled guilty to extortion charges. The district court denied his motion for a downward departure under § 5K2.13 based on diminished capacity, ruling defendant did not commit a “non-violent offense” and did not prove he was suffering from a significantly reduced mental capacity. The Sixth Circuit held that because extortion is a “crime of violence” under § 4B2.1(ii), it was not a “non-violent offense” under § 5K2.13. Numerous other circuits have similarly held that a “crime of violence” cannot be “non-violent” under § 5K2.13. Moreover, even if the court examined the facts of the offense, rather than the definition of “crime of violence,” defendant’s actual conduct was not non-violent. Defendant’s threats to detonate two explosive devices if his demands were not satisfied was not non-violent conduct. U.S. v. Clements, 144 F.3d 981 (6th Cir. 1998).

6th Circuit rules inability to speak English and lack of education did not justify §§ 5K2.13 departure. (730) Defendant illegally reentered the U.S. after deportation to assist his pregnant girlfriend and to “be responsible” for his children. The district court departed downward in part under § 5K2.13 (Diminished Capacity) since defendant had only one year of education and no ability to speak English, and under § 5K2.11 (Lesser Harms) because defendant believed that his girlfriend was in grave danger and needed medical care. The Sixth Circuit held that the court committed plain error by relying on improper factors as a basis for a § 5K2.13 departure. A lack of education and an inability to speak English cannot alone provide the basis for a diminished mental capacity departure under § 5K2.13. Neither of these factors affected defendant’s ability to process information or to reason. The lesser harms departure applies only in narrow, extreme circumstances, such as a mercy killing. With regard § 5K2.11, however, although the findings in this case probably did not support such a departure, the error was not plain, given the dearth of caselaw on the application of and the deference owed a district court. U.S. v. Barajas-Nunez, 91 F.3d 826 (6th Cir. 1996).

6th Circuit directs court to consider coercion as basis for downward departure. (730) Defendant and her husband committed bank fraud in several states. She argued that the district court failed to recognize its discretion to consider her extraordinary circumstances as a basis for a downward departure. The Sixth Circuit agreed, and directed the district court to consider whether a departure was justified under § 5K2.12 based on coercion. There was overwhelming evidence that defendant’s criminal actions resulted from the coercion and control exercised by her husband. She was not involved in any fraud before she met her husband, and continued her criminal activity only after he threatened to kill himself, kill her, hurt their friends and pets, and commit bank robbery using violent means. The failure of the probation department and the district court to take note of these circumstances or to discuss this issue showed it was not aware of the applicability of § 5K2.12 and of its discretion to depart downward. U.S. v. Hall, 71 F.3d 569 (6th Cir. 1995).

6th Circuit rejects departure for disparity, coercion and diminished mental capacity. (730) Although defendant had a guideline range of 18-24 months, the district court departed downward to a sentence of probation so that defendant would not serve a longer sentence than his co-defendant who masterminded the offense. The Sixth Circuit rejected sentencing disparity as a basis for a downward departure. In addition, the facts did not support a departure under § 5K2.12 for coercion or under § 5K2.13 for reduced mental capacity. U.S. v. Epley, 52 F.3d 571 (6th Cir. 1995).

6th Circuit says severe adjustment disorder did not justify departure for diminished capacity. (730) Defendant pled guilty to bank fraud. At sentencing, a psychologist testified that defendant suffered from Severe Adjustment Disorder, a mental condition brought on by an identifiable psycho-social stressor, e.g., defendant’s receipt of a registered letter advising him that he had been defrauded. The 6th Circuit reversed a downward departure under section 5K2.13 for diminished mental capacity, finding the situation was not sufficiently unusual. There was no indication that defendant was unable to process information or to reason. He displayed considerable mental agility in his professional and personal affairs. His behavior was easily explained by greed. Moreover, even if Severe Adjustment Disorder would satisfy section 5K2.13, defendant failed to establish the existence of such a condition. The letter was received in August 1990, while there was evidence that defendant’s fraud dated from September 1988. U.S. v. Johnson, 979 F.2d 396 (6th Cir. 1992).

6th Circuit refuses to review refusal to depart based upon defendant’s duress. (730) The district court rejected defendant’s request to depart downward under section 5K2.12 based upon coercion and duress. The 6th Circuit refused to review the refusal to depart, since (1) the district court properly computed the guideline range, (2) the district court was not unaware of its discretion to depart downward from the guideline range, and (3 the district court did not impose the sentence in violation of law or as a result of the incorrect application of the sentencing guidelines. U.S. v. Chalkias, 971 F.2d 1206 (6th Cir. 1992).

6th Circuit rules defendant’s gambling disorder did not cause diminished mental capacity. (730) Defendant, a doctor of osteopathy, became a compulsive gambler and incurred excessive debts to his bookmaker. After defendant received threats to himself and his family, he sold Tylenol with codeine to raise the money to pay his gambling debts. The 6th Circuit affirmed the district court’s conclusion that defendant did not qualify for a downward reduction under guideline section 5K2.13 based on diminished capacity or under section 5K2.12 for duress. The district court’s legal conclusion that the type of mental state and coercion claimed by the defendant did not fit within guidelines sections 5K2.13 and 5K2.12 was reviewable on appeal under 18 U.S.C. section 3742(a)(1). Defendant’s gambling disorder did not cause him to suffer a “significantly reduced mental capacity.” He was able to absorb information in the usual way and to exercise the power of reason. He began to sell drugs not because of an inability to understand his situation, but because he needed the money. Coercion to pay gambling debts does not represent the type of coercion that would warrant a downward departure. U.S. v. Hamilton, 949 F.2d 190 (6th Cir. 1991).

6th Circuit finds district court made required findings on disputed factual issues. (730) The 6th Circuit rejected defendant’s claim that the district court failed to make required findings of fact on disputed issues involved in sentencing. The district court had expressly adopted the presentence report as its finding of fact and law, and sufficient findings were made on the record to support the sentence. The report adequately explained why a downward departure for diminished capacity was not appropriate. For diminished capacity to justify a decrease, the offense must be nonviolent in nature. Defendant pled guilty to using an interstate facility to solicit a murder, which was not a non-violent offense. U.S. v. Wilson, 920 F.2d 1290 (6th Cir. 1990).

6th Circuit holds that robbery is a violent offense, precluding downward departure for diminished capacity. (730) Defendant argued that his robbery offense was non-violent and therefore his diminished capacity could be considered under § 5K2.13 which allows a downward departure for diminished capacity in non-violent offenses. The 6th Circuit disagreed, writing that defendant’s placing a knife on the counter and asking for money “threatened use of physical force,” thereby making the robbery a violent offense and precluding application of § 5K2.13. U.S. v. Maddalena, 893 F.2d 815 (6th Cir. 1989).

6th Circuit rules that § 5K2.0 allows court discretion to consider defendant’s mental health as a basis for departure. (730) The district court stated that it believed § 5K2.13 precluded a consideration of defendant’s mental capacity as a basis for departure from the guidelines. The 6th Circuit affirmed, but stated that § 5K2.0 allows a departure for “unusual circumstances” regardless of § 5K2.13. Since the circumstances in the case were not unusual, the failure by the district court to consider defendant’s mental capacity for departure purposes was not improper. U.S. v. Maddalena, 893 F.2d 815 (6th Cir. 1989).

7th Circuit allows court to treat diminished capacity as aggravating factor. (730) Defendant was convicted of child pornography charges, and sentenced to 480 months. He contended that the sentencing court impermissibly considered his diminished capacity an aggravating factor rather than a mitigating factor. He also argued that the court impermissibly used his need for treatment to support a longer sentence. The Seventh Circuit rejected both arguments, observing that the court acknowledged defendant’s mental disabilities, and noted that “in a moral sense” they might mitigate the offense. However, it also noted that his mental characteristics might make him less amenable to treatment and rehabilitation, which would leave him a continuing risk to children. The court considered its options and permissibly decided that treatment was unlikely to be effective. The court did not give defendant a longer prison sentence so that he could receive rehabilitative treatment. Rather, it determined that defendant could not be rehabilitated through treatment, so he needed to be incapacitated “until he reaches an age where it will be difficult for him to participate in child exploitation issues.” U.S. v. Annoreno, 713 F.3d 352 (7th Cir. 2013).

7th Circuit reverses for failure to adequately consider claim that defendant was coerced into participating in kidnapping. (730) Defendant was part of a large-scale drug trafficking organization, acting as a middleman between Hector and Rodriguez, a marijuana supplier. When Hector missed a large payment, men assaulted and kidnapped Hector’s brother Roberto in an effort to collect the drug debt. Defendant pled guilty to drug charges, resulting in a guideline range of 70-87 months. The district court departed upward to a sentence of 144 months. The Seventh Circuit held that the district court committed procedural error by failing to adequately address defendant’s argument that he was coerced into participating in the kidnapping. Defendant’s coercion argument was “more than a mere stock argument” that the court should have addressed at sentencing. In his sentencing memorandum, defendant offered evidence suggesting that he was also kidnapped or, at a minimum, subjected to significant pressure to collect Hector’s debt. For example, defendant claimed that Rodriguez threatened harm to defendant’s family if he did not help collect the debt. Also, during a recorded phone call with Roberto, defendant stated “[i]t’s not coming from me brother … you know what they did to me” – which could be evidence of coercion. There was also duct tape found on a second chair in the house where Roberto was held. Defendant’s argument was not frivolous, and should have been addressed by the court. U.S. v. Ramirez-Mendoza, 683 F.3d 771 (7th Cir. 2012).

7th Circuit finds no plain error in failing to consider defendant’s claim of diminished capacity. (730) Defendant pled guilty to child pornography offense, and was sentenced at the bottom of his guideline range of 360 months to life. He argued on appeal that the district court improperly failed to consider his “diminished capacity” argument under § 5K2.13. The Seventh Circuit held that the district court did not err. Ordinarily, a judge’s failure to address the defendant’s principal argument for lenience would be a reversible error. However, diminished capacity was not mentioned by defense counsel at sentencing, although counsel did discuss defendant’s cognitive and psychiatric deficiencies (ADHD, dyslexia, depression, anxiety and an IQ of 83). At sentencing, defense counsel’s main argument was that defendant was unlikely to commit further sex crimes if released after 180 months, when he would be almost 60 years old. However, the judge was not persuaded. Defendant was shy and his one “hands on” victim was a relative. The fact that he exhibited “good judgment” and “empathy” in his interview by the psychiatrist did not ensure that he would not find another “hands on” victim when he was released from prison. U.S. v. Garthus, 652 F.3d 715 (7th Cir. 2011).

7th Circuit says evidence would not have supported diminished capacity claim. (730) Defendant argued that the district court should have imposed a below-guidelines sentence because he suffered from a diminished capacity that substantially contributed to the commission of his offense. The Seventh Circuit held that the district court’s failure to explicitly discuss whether defendant had a significantly reduced mental capacity was harmless error, because based on the evidence, the court could not have found that any diminished capacity substantially contributed to defendant’s commission of his crimes. The doctor who testified for defendant did not analyze the specific charges defendant was convicted of committing, nor related defendant’s actions to his mental capacity. In fact, the doctor seemed unclear as to what crimes defendant committed. The doctor derived his understanding of the causal link between defendant’s diminished capacity and his crimes based only on information defendant provided. He did not confirm defendant’s account of his crimes and did not seem to fully understand the criminal charges. U.S. v. Portman, 599 F.3d 633 (7th Cir. 2010).

7th Circuit upholds court’s rejection of “lesser harms” departure. (730) Defendant lent his laptop computer to his mother. She gave police officers permission to search the computer and case, and they found a handgun inside an exterior pocket of the computer case. Defendant was convicted of being a felon in possession of a firearm. He argued that his 120-month sentence (60 months below the low-end of his advisory guideline range), was unreasonable because he was entitled to a reduced sentence under U.S.S.G. § 5K2.11. Although § 5K2.11 has been rendered obsolete in post-Booker sentencing, the district court may apply that departure guideline by way of analogy in applying the § 3553(a) factors. Section 5K2.11 authorizes a departure where the defendant’s conduct does not cause or threaten the harm or evil sought to be prevented by the statute. The Seventh Circuit held that the district court appropriately rejected defendant’s § 5K2.11 argument. Congress sought to prohibit even a brief possession of a firearm by a felon. Section 922’s plain language and legislative history demonstrated that Congress sought to prohibit defendant’s conduct here. U.S. v. Jackson, 598 F.3d 340 (7th Cir. 2010).

7th Circuit reverses where court failed to consider defendant’s mental disabilities. (730) Defendant and his younger brother were part of a group of men convicted of committing a series of robberies. Defendant had an estimated IQ of 72, and had been receiving disability benefits since the age of 10 because of “autistic disorders and other pervasive developmental disorders.” Defendant’s attorney argued for a sentence on the low end of the guideline range due to defendant’s mental state. The district court relied on a report by a court-appointed doctor who concluded that defendant was exaggerating his disability, and sentenced him to 552 months, the top of his 519-552 month range. The Seventh Circuit remanded. The district court focused solely on the doctor’s report that defendant was exaggerating his mental state, which was not dispositive on whether he was mentally disabled or whether his actual disability justified a lower sentence. The evidence was undisputed that defendant suffered from some form of mental disability and the doctor himself noted that defendant had an estimated IQ of 72. In addition, the doctor did not take into account the combination of defendant’s diminished capacity along with the fact that his brother was the ringleader, and the exacerbating effect that might have on defendant’s ability to think for himself. U.S. v. Williams, 553 F.3d 1073 (7th Cir. 2009).

7th Circuit holds that defendant failed to show mental health expert would have led to sentence reduction. (730) Before sentencing, defendant moved under 18 U.S.C. § 3006A for the appointment of a mental health expert to evaluate him for diminished mental capacity. The judge denied the motion. The Seventh Circuit held that defendant failed to make a showing that the appointment of a mental health expert would have some likelihood of reducing his sentence. Defendant’s motion stated that he was HIV-positive and suffered from severe depression, but did not indicate whether those conditions had existed at the time of the offense or what symptoms produced by them might make defendant more likely to rob a bank. In addition, defendant’s submissions did not indicate that he had any mental or other symptoms as a result of being HIV-positive. A judge is not required to appoint a mental health expert without a showing that the appointment would have some likelihood of resulting in a reduced sentence. 18 U.S.C. § 3006A(e). U.S. v. Anderson, 547 F.3d 831 (7th Cir. 2008).

7th Circuit says generalized fear of former drug partner did not justify duress departure. (730) Defendant pled guilty to being a felon in possession of a firearm. He requested a below-guideline sentence under § 5K2.12 (duress), claiming that he carried a gun because his former partner in the drug trade violently threatened defendant and his family. The Seventh Circuit upheld the district court’s refusal to grant the § 5K2.12 departure. Under U.S. v. Keller, 376 F.3d 713 (7th Cir. 2004), there are three things a felon who claims he possessed a firearm out of fear for his own safety can show to receive the § 5K2.12 departure: (1) if possible, the felon must try to remove himself completely from the danger; (2) if time permits, the felon must attempt to alert the police; and (3) the felon must demonstrate a reasonable belief that a specific threat was about to be carried out. Here, defendant had alternatives to carrying the gun, which he did not pursue. He admitted he did not contact the police after a shooting incident. In addition, although he asserted that he changed addresses, there was no evidence that defendant considered moving to a new area in which the danger would be significantly less severe. Finally, the threat was not imminent. The most current shooting incident occurred six days before he was arrested. U.S. v. Harvey, 516 F.3d 553 (7th Cir. 2008).

7th Circuit remands so court can address defendant’s arguments about his mental illness. (730) Defendant pled guilty to one count of bank robbery. He had a history of severe mental illness, and at sentencing, he presented considerable evidence of diminished capacity. He also presented evidence in support of an argument that his criminal history category was overstated, and argued for a below-guideline sentence based on several factors listed in 18 U.S.C. § 3553(a). The district court did not directly address these non-frivolous arguments and sentenced defendant to 50 months of imprisonment, a sentence greater than the government requested. The Seventh Circuit found that remand was required so that the district court could address defendant’s principal, non-frivolous arguments in favor of a lower sentence. The evidence was uncontested that defendant was suffering from delusions and auditory hallucinations at the time he committed the crime. Guideline § 5K2.13 recognizes diminished capacity as a ground for a downward departure. While departures are obsolete in post-Booker sentencing, the district court may apply those departure guidelines by way of analogy in analyzing the § 3553(a) factors. There also was some suggestion in the record that the court considered whether defendant met the legal standard for insanity at the time of the crime. U.S. v. Miranda, 505 F.3d 785 (7th Cir. 2007).

7th Circuit upholds refusal to impose below-guideline sentence based on duress. (730) Defendant was convicted of firearms charges, and requested a lower sentence due to coercion and duress. Defendant claimed that he was under duress because his mother was murdered in October 2003 while he was in jail. He also claimed that when he was released from jail in January 2004, he was shot at several times and received death threats. Thus, he asserted that when he was pulled over by police in March 2004, he was wearing body armor and carrying weapons and ammunition because he was in fear for his life. The Seventh Circuit ruled that the district court properly found that his assertion of duress was improbable and did not err in denying his request for a lower sentence on that basis. Jettisoning the weapon (that was supposedly protecting him) while being pursued by police is not an indication of duress, and his evasive conduct was more reasonably attributable to fear of apprehension. Additionally, the police stop occurred five months after defendant’s mother was murdered, and two months after defendant alleged he was shot at and received death threats. The time lapse indicated that defendant was not under a reasonable belief of a current and imminent threat. U.S. v. Burks, 490 F.3d 563 (7th Cir. 2007).

7th Circuit holds that failure to discuss departure request was harmless where no evidence of coercion. (730) Defendant was a member of a gang that trafficked in cocaine in and around a Wisconsin Indian reservation. Defendant ran powder and crack cocaine from Milwaukee to the reservation for resale, and served as secretary for the gang at the reservation. She argued that the judge should have lowered her sentence on the basis of coercion and duress. At sentencing, the court did not mention her argument on this point, and did not depart. The Seventh Circuit found any error by the court in failing to discuss the argument was at worst a harmless error since the claim was not valid. Defendant’s point about coercion was weak in light of all the evidence that she willingly participated in the drug conspiracy. She was not a bit player in the gang, but rather worked as an officer with substantial responsibility. Her participation was not limited to a few acts but rather took place, uninterrupted, over a period of years. She continued to work even after her husband, the alleged manipulator, was imprisoned. She provided no real evidence of coercion outside of her own self-serving testimony. U.S. v. Acosta, 474 F.3d 999 (7th Cir. 2007).

7th Circuit holds that guideline sentence was reasonable. (730) Defendant argued that the district court erred in failing to grant him a downward departure in his prison sentence based on his diminished capacity or mental status. The Seventh Circuit noted that the concept of “departures” was outmoded; it now reviews a district court’s sentencing decision for unreasonableness. U.S. v. Wallace, 458 F.3d 606 (7th Cir. 2006). When a sentence falls outside of the guideline range, it is incumbent upon the district court to provide a sound justification according to the § 3553(a) factors. The 21-month sentence imposed here fell within the 15-24 month sentencing range. Defendant’s claim that the court should have adjusted his sentence for his diminished capacity made no citation to the record, and ignored the full rehearing of both parties’ expert medical testimony. In holding that there was no basis for grant a sentence below the guidelines, the district court reflected on the personal success of defendant’s orthodontic practice and the impact his fraud had on the taxpayers of the state of Illinois and the federal government. Defendant’s 21-month sentence was not unreasonable. U.S. v. Rinaldi, 461 F.3d 922 (7th Cir. 2006).

7th Circuit cannot review refusal to depart based on finding that defendant did not suffer from reduced mental capacity. (730) Defendant challenged the district court’s refusal to grant him a downward departure under § 5K2.13 for diminished mental capacity. The Seventh Circuit found that it lacked jurisdiction to review the refusal to depart. The record left no doubt that the principal basis on which the court denied defendant’s departure motion was the lack of sufficient proof that he actually suffered from a significantly reduced mental capacity at the time of the underlying offense. The determination that the record did not adequately support the assertion that defendant suffered from a significantly reduced mental capacity at the time of his offense was a discretionary, merits-based determination that falls outside of appellate jurisdiction. U.S. v. Zuniga-Lazaro, 388 F.3d 308 (7th Cir. 2004).

7th Circuit upholds rejection of diminished capacity departure. (730) The district court denied defendant’s request for a downward departure under § 5K2.13 due to her claimed diminished capacity. In support of her claim, defendant submitted the report of a clinical and forensic psychologist. After hearing direct and cross-examination, the district court rejected the expert’s testimony by relying on Federal Rule of Evidence 702, despite the fact that the Federal Rules of Evidence do not apply at sentencing. The Seventh Circuit found that this was an abuse of discretion. A court may admit evidence during sentencing that would not qualify as expert testimony under Rule 702. However, it was clear that despite the judge’s claim of outright rejection, he actually considered the evidence adduced from the expert’s testimony. The court adopted the government’s argument that defendant understood right from wrong and the truth and a lie. This was testimony that was uttered by defendant’s expert and no one else. After reviewing the arguments, records and evidence, the panel concluded that the judge found the expert testimony to be insufficiently probative to support the departure. U.S. v. Ferron, 357 F.3d 722 (7th Cir. 2004).

7th Circuit says defendant not entitled to departure for reduced mental capacity based on heart condition. (730) Defendant, a citizen of Northern Ireland, pled guilty to using a computer to entice a minor to engage in sexual activity. The district court granted him a four-level departure for “severely diminished capacity to make good judgments” based on U.S.S.G. § 5K2.13. Defendant suffered from heart disease, and a doctor provided an affidavit that defendant’s heart problems may gave led to a mental deterioration that curtailed his ability to resist impulses and caused him to act strangely. The Seventh Circuit reversed. The prosecutor offered evidence from a psychiatrist who questioned this reasoning. Moreover, defendant’s crime was not the result of poor “impulse control.” He communicated with the “minor” for more than a month and crossed the Atlantic Ocean to meet her. He knew that what he was doing was wrong, since he advised the victim not to tell her mothers what was going on and to delete from all of his communications from her computer. U.S. v. Mallon, 345 F.3d 943 (7th Cir. 2003).

7th Circuit holds that judge improperly relied on collateral facts in indictment to find offense was violent. (730) The district court found that defendant was ineligible for a § 5K2.13 diminished mental capacity departure because he had not been convicted of a non-violent offense. Looking to the language of the indictment, the judge concluded that the drug charges against defendant presented a serious risk of potential injury to others. The Seventh Circuit held that although the sentencing court may look to the indictment to determine whether a particular offense was violent, it must confine its consideration to those allegations that were necessary to charge the offense of conviction. An indictment may allege any number of fact which are not necessary to establish the crime charged. The alleged acts of violence on which the district court relied here fell into that category of collateral facts. Proof that violence was used or threatened was wholly unnecessary to establish that defendant conspired to distribute drugs. U.S. v. Mansoori, 304 F.3d 635 (7th Cir. 2002).

7th Circuit holds that court did not properly assess mental capacity at time of offense. (730) Defendant suffered from chronic depression and turned to excessive shopping to relieve her depression. When she discovered that she could receive reimbursements from her employer for expenses that she did not incur, she embezzled more than $240,000 over a three-year period. She did this in order to repay the significant debt incurred by her excessive purchases. The district court departed downward under § 5K2.13 based on diminished capacity, finding that her offense was motivated and caused by her compulsive shopping and depression and that she had a significantly impaired ability to control her behavior. The Seventh Circuit reversed, finding the court did not properly assess defendant’s mental capacity at the time of the offense. Understanding defendant’s motive did not necessarily reveal anything about her mental capacity at the time of the offense. The behavior at issue was her submission of false expense reports, not her shopping. The court’s finding that defendant would not have committed the offense had it not been for her shopping disorder, without more, could not support the departure. To the extent the court’s conclusions could be read to include a finding that defendant had a significantly impaired capacity to control her conduct at the time of the offense, it was unsupported by the evidence. Defendant had compulsively shopped for more than 10 years without any criminal activity, and did not begin the fraud until she inadvertently discovered that she could be paid for business expenses not incurred. U.S. v. Roach, 296 F.3d 565 (7th Cir. 2002).

7th Circuit refuses to appoint expert on diminished capacity where offense involved violence. (730) Before sentencing, defendant filed a motion for the appointment of an expert to assist him in preparing a motion for a downward departure based on diminished mental capacity. The district judge denied the motion, finding that even if defendant established that he suffered from diminished capacity, a downward departure was prohibited under § 5K2.13 because (1) his reduced mental capacity was caused by his voluntary use of drugs or other intoxicants, (2) the offense involved a serious threat of violence, and (3) his criminal history indicated a need to incarcerate him to protect the public. On appeal, the Seventh Circuit affirmed the refusal to appoint an expert. Although it may have been useful to appoint an expert to determine whether any diminished capacity was caused by the voluntary use of drugs, it was unnecessary to decide this question because the other two factors precluded a diminished capacity departure, according to the court. That is, defendant’s bank robberies posed a serious threat of violence and his extensive criminal history (at least 13 bank robberies) indicated a need to incarcerate him to protect the public. U.S. v. Cravens, 275 F.3d 637 (7th Cir. 2001).

7th Circuit holds that court properly understood authority to make physical impairment departure. (730) The district court rejected defendant’s request for a downward departure under § 5K2.13 (diminished capacity) and under § 5H1.4 (extraordinary physical impairment). Defendant contended that the district court misunderstood the law, since the court stated that defendant was not suffering from an extraordinary physical condition “at the time of the offense.” Section 5H1.4 does not require that the defendant have suffered a physical impairment at the time of the offense; however, § 5K2.13 does require that the diminished capacity occur at the time of the offense. The Seventh Circuit ruled that the district court correctly understood its authority to depart, and thus, the decision was not reviewable. Defendant provided the court with a memo that separately discussed his diminished capacity claim and his physical impairment claim. At sentencing, the court allowed defense counsel to address the departure motions. At no time did defense counsel present evidence regarding why defendant’s physical condition would preclude him from being incarcerated and cared for properly by the Bureau of Prisons. Therefore, it would have been improper for the district court to grant a departure on this basis. Although the court might have conflated to some extent defendant’s two departure motions, this confusion did not necessarily indicate that the court did not understand its authority to depart. In other portions of his statement, the judge clearly acknowledged the distinct nature of the two departure requests. U.S. v. Albarran, 233 F.3d 972 (7th Cir. 2000).

7th Circuit says judge may refuse to depart without determining how mental illness contributed to crime. (730) Defendant was manic depressive and had frequent manic episodes during the five years that he operated a Ponzi scheme. The judge refused to grant defendant a downward departure under § 5K2.13 for a significantly reduced mental capacity. Defendant argued that once the judge found that defendant suffered from a serious mental illness during the period in which the crime was committed, the judge was required to determine how far that illness “contributed” to the crime and to depart under § 5K2.13 accordingly. The Seventh Circuit found nothing in § 5K2.13 imposed such a burden on the judge. The guideline is permissive rather than mandatory. Thus, even if a judge finds that the defendant committed the offense while afflicted by a significantly reduced mental capacity, he is not required to reduce the defendant’s sentence; he is merely authorized to do so. The exercise of that authority is unreviewable. U.S. v. Dyer, 216 F.3d 568 (7th Cir. 2000).

7th Circuit says judge exercised discretion not to grant diminished capacity departure. (730) Defendant argued that she should have received a § 5K2.13 diminished capacity departure because she was dependent on her abusive husband, which made her incapable of controlling her behavior. The Seventh Circuit did not review because it found that the district court knew it had the legal authority to depart, but chose not to do so. The judge found that defendant did not have diminished capacity, because the evidence showed that defendant had a strong personality, possessed an impressive business acumen, and was the main decision-maker in her family. The court did not ignore the volitional aspect of § 5K2.13. Although some of the court’s comments indicated it was focusing on the cognitive aspect of significantly reduced mental capacity, the court’s written order denying defendant’s motion for a stay of imprisonment stated that the judge did not believe defendant’s “ability to control her behavior was impaired or that it was her husband who directed her to file false tax returns.” U.S. v. Thomas, 181 F.3d 870 (7th Cir. 1999).

7th Circuit finds defendant raised diminished capacity claim to avoid responsibility. (730) Defendant requested a § 5K2.13 departure, claiming that she had a dependent personality and that her abusive husband caused her to file the false tax return involved in her offense of conviction. The district court refused to depart and refused to grant her an acceptance of responsibility reduction. The Seventh Circuit rejected defendant’s claim that the district court’s decision would preclude a finding of both diminished capacity and acceptance of responsibility. The district court simply did not believe defendant’s claim that she had a dependent personality and that her abusive husband forced her to commit the crime. Evidence showed that defendant had a strong personality, possessed an impressive business acumen, and was the main decision-maker in her family. In addition, her husband died before she committed the offense of conviction. Defendant raised the diminished capacity argument to avoid responsibility. U.S. v. Thomas, 181 F.3d 870 (7th Cir. 1999).

7th Circuit refuses to grant inmate departure based on threats from victim. (730) Defendant, a federal prison inmate, stabbed another inmate in the head and neck with five sharpened pencils bound together with tape. Defendant claimed that before the incident, the victim and his friends had been pressuring him to perform oral sex on them. Defendant refused to comply. He claimed he did not report the victim’s threats to prison officials because he did not want to be labeled a snitch or placed in segregation. Section 5K2.10 permits a departure if the victim’s wrongful conduct contributed significantly to provoking the offense. The district court refused to depart, stating that an inmate’s concern that prison officials would not take him seriously and would place him in segregation was not a sufficient reason for not reporting the incident. Responding with violence is not an acceptable option. Defendant argued that the court’s comments indicated an unconstitutional policy of depriving inmates equal protection under the law. The Seventh Circuit disagreed. First, prisoners are not a suspect class entitled to heightened equal protection scrutiny. Second, the decision not to depart was well within the court’s discretion and was not reviewable on appeal. U.S. v. Vahovick, 160 F.3d 395 (7th Cir. 1998).

7th Circuit upholds refusal to grant continuance to allow psychiatric exam. (730) Five days before sentencing, defendant requested a continuance so he could be examined by a psychiatrist. He was trying to demonstrate a reduced mental capacity in order to qualify for a § 5K2.13 departure. The Seventh Circuit upheld the district court’s refusal to grant a continuance. The district court found that nothing would be gained by a psychiatric evaluation. Defendant alleged that he had had a nervous breakdown, his mother believed he was depressed, and he had a history of heavy use of alcohol and drugs. The district court was able to observe defendant during the various proceedings and the appellate court was hesitant to second-guess the judge’s determination that a psychiatric evaluation would not be useful. Moreover, the nature of defendant’s allegations regarding his mental illness were not overwhelming. U.S. v. Gwiazdzinski, 141 F.3d 784 (7th Cir. 1998).

7th Circuit holds gun and crack in car at midnight did not justify lesser harms departure. (730) A jury convicted defendant of being a felon in possession of a firearm after police found drugs and a gun in the car defendant was driving. Defendant contended that he possessed the gun for self‑defense, and therefore should have received a downward departure under § 5K2.11 (Lesser Harms). The Seventh Circuit held it lacked jurisdiction to review the matter, since the record showed that the court recognized its authority to depart but found that it was not warranted in this case. Moreover, even giving defendant the benefit of the doubt, the refusal to depart was proper. If defendant, a convicted felon, kept a firearm in his house on a particular day because of a direct, imminent threat of harm from an anticipated intruder, he might qualify under § 5K2.11. However, his possession of a firearm around midnight in a car also carrying crack cocaine did not come close to the sort of mitigating circumstance reviewed by the Eighth Circuit in U.S. v. One Star, 9 F.3d 60 (8th Cir. 1993). U.S. v. Murray, 89 F.3d 459 (7th Cir. 1996) .

7th Circuit rejects § 5K2.13 departure for defendant convicted of crime of violence. (730) Defendant sent threatening communications to his ex-wife’s new husband and several other individuals. The district court rejected defendant’s request for a diminished capacity departure under § 5K2.13. Relying on U.S. v. Poff, 926 F.2d 588 (7th Cir. 1991) (en banc), the district court found defendant’s offense could not be a “non-violent offense” under § 5K2.13 because it was a crime of violence under § 4B1.1. Thus, defendant was not eligible for a § 5K2.13 departure. The Seventh Circuit held that it was bound by the en banc opinion and affirmed the denial of the departure. The potential danger to the public is a rational basis for refusing to mitigate the sentence for diminished mental capacity to those defendants charged with violent offense. U.S. v. Sullivan, 75 F.3d 297 (7th Cir. 1996).

7th Circuit refuses to review failure to grant diminished capacity departure. (730) Defendant challenged the district court’s refusal to depart downward under § 5K2.13 for a non-violent offense caused by a significantly reduced mental capacity. The Seventh Circuit would not review the refusal to depart. It was clear from the transcript that the district court was not inclined to depart on this basis, regardless of whether defendant’s offenses were characterized as violent or non-violent. Such a discretionary decision is not subject to review. U.S. v. Johnson-Dix, 54 F.3d 1295 (7th Cir. 1995).

7th Circuit finds court was aware of its authority to depart based on coercion and duress. (730) Defendant committed an armed bank robbery. He testified that he destroyed the cocaine of drug dealers who poisoned his sister. The dealers demanded the value of the destroyed cocaine, and defendant had no money to do so. He claimed that the district court should have departed downward under § 5K2.12 based on coercion and duress. The 7th Circuit held that it lacked jurisdiction to review the matter, since the district court was aware of its authority to depart under § 5K2.12. The district court found that even if the threats occurred, defendant’s robbery was an unreasonable response. The judge’s comments showed that the court determined that the evidence presented by defendant did not warrant a departure. U.S. v. Wright, 37 F.3d 358 (7th Cir. 1994).

7th Circuit reverses departure for reduced mental capacity at time of offense. (730) The district court departed downward under section 5K2.13, for reduced mental capacity. The 7th Circuit reversed, since the district court made no finding that defendant’s mental condition resulted in a significantly reduced mental capacity at the time of the offense. Two mental health evaluations concluded that defendant suffered from a “dysthymic disorder,” which is characterized as a type of depression. Neither evaluation concluded that defendant suffered from significantly reduced mental capacity when she committed the offense. Moreover, the district court incorrectly believed that once a defendant is diagnosed with a mental disorder, that disorder is automatically assumed to contribute to the offense. There must be a showing that the defendant’s reduced mental capacity contributed to the commission of the offense. U.S. v. Frazier, 979 F.2d 1227 (7th Cir. 1992).

7th Circuit, en banc, finds that crime of violence cannot be a non-violent offense for departure purposes. (730) Defendant was sentenced as a career offender for writing threatening letters to the President. She had a long history of making similar threats, and the government conceded that she had no intent to carry out her threats. The district court found that it had no authority to depart downward based on defendant’s reduced mental capacity under guideline § 5K2.13, since defendant had committed a crime of violence. Defendant argued that even if her crime was a crime of violence for career offender purposes, it was still a “non-violent offense” within the meaning of guideline § 5K2.13. The 7th Circuit rejected the argument, finding that the term “crime of violence” under the career offender guidelines and the term “non-violent offense” in guideline § 5K2.13 are mutually exclusive. Judges Easterbrook, Cudahy, Posner, Coffey and Manion dissented, arguing that the two terms are not mutually exclusive. U.S. v. Poff, 926 F.2d 588 (7th Cir. 1991)(en banc).

7th Circuit remands for district court to determine whether defendant’s mental condition justified downward departure. (730) Defendant was convicted of making a false report of food tampering. He made the false report to attract attention rather than for extortion. The district court departed downward to 12 months from a guideline range of 21 to 27 months, stating that defendant’s case was “atypical,” and that he suffered from reduced mental capacity. The 7th Circuit remanded for resentencing. Defendant’s case was not sufficiently unusual. The Sentencing Commission considered the difference between false reports of food tampering involving extortion and those that did not by providing for an increase in offense level if extortion was involved. Moreover, the record showed no reduced mental capacity. On remand, the district court was instructed to consider the questions of severity and causation, and whether a false report of food tampering is a non-violent offense. U.S. v. Gentry, 925 F.2d 186 (7th Cir. 1991).

7th Circuit reverses downward departure made on the basis of victim’s conduct. (730) Defendants came to the door of the victim at 7:30 in the morning in an attempt to collect a legitimate business debt for their client. The victim had an unpleasant voice and demeanor, weighed 270 pounds and refused to let the defendants in his house. Defendants tried to push past the victim, who pushed back and was punched in the face by one of the defendants. The defendants then chased the victim’s 13 year old son, shoved him into a couch and tore the phone from the wall. The 7th Circuit reversed the district court’s determination that the defendants were entitled to a downward departure under guideline § 5K2.10, based upon the victim’s conduct. Section 5K.10 contemplates a situation where the victim provokes the attack. Here, the victim’s unpleasant manner and blocking of the door did not provoke or justify the attack. U.S. v. Bigelow, 914 F.2d 966 (7th Cir. 1990).

8th Circuit finds court considered defendant’s request for a duress departure before rejecting it. (730) Defendant and her boyfriend each pled guilty to second-degree murder on an Indian reservation. Defendant’s guideline range was 168-210 months, but she received a substantial assistance departure and was sentenced to 121 months. She argued for the first time on appeal that the district court failed to give proper consideration to her request for a downward departure under § 5K2.12 for “serious coercion, blackmail or duress,” based on her fear of her boyfriend. The Eighth Circuit found no error. The district court acknowledged defendant’s fear of her boyfriend, but did not “entirely accept that each and every thing that was done that evening was done out of fear.” The court then declined to “give any mitigation” because of this factor, under either the guidelines or as a variance. Thus, the record made it clear that the district court considered defendant’s requested departure and rejected it. U.S. v. Maxwell, 664 F.3d 240 (8th Cir. 2011).

8th Circuit holds that 40 percent downward variance resulted a in reasonable sentence. (730) While serving a prison sentence for mailing threatening letters, defendant mailed additional threatening letters to a federal judge and defendant’s public defender. The district court found that the case fell outside the heartland, but concluded that a departure under § 5K2.13 was not authorized because the offense “clearly involved a serious threat of violence.” Nonetheless, the court found that it could depart under § 5K2.0. Based on the same circumstances, the court alternatively found that a non-guidelines sentence was appropriate. The Eighth Circuit held that the § 5K2.0 departure was not proper. The Sentencing Commission adequately considered reduced mental capacity when it formulated § 5K2.13, so this foreclosed consideration of diminished mental capacity under § 5K2.0. The error, however, was harmless, because the alternative ground for the sentence, a variance based on the § 3553(a) factors, supported the sentence. The 60-month sentence, which represented a 40 percent variance from the guideline range of 100-125 months, was reasonable. The court reviewed each § 3553(a) factor, and based the variance on a number of findings, including that defendant was a seriously mentally ill individual who had been institutionalized or incarcerated most of his life, his mental illness interfered with his ability to control his impulses, he acknowledged his mental impairment and expressed a desire to obtain help, he never carried through with a threat, and the threats were designed to get attention. The court carefully considered each § 3553(a) factors, and did not abuse its discretion in finding that a shorter period of incarceration, with mental health treatment and supervised release, was the most effective sentence. U.S. v. Myers, 503 F.3d 676 (8th Cir. 2007).

8th Circuit rejects downward departure for diminished capacity, lack of intent to cause harm, “exceptional circumstances,” and uncertainty of guidelines. (730) Defendant was convicted of mailing threatening communications and related charges. The district court made a substantial downward departure on a variety of grounds, and the Eighth Circuit reversed. First, the district court erred in finding that defendant suffered from diminished capacity under § 5K2.13. The court identified no basis for its conclusions regarding defendant’s mental problems, stating only that defendant suffered psychiatric problems and a “defiant personality.” Defendant’s lack of serious intent to cause harm was not a proper ground for departure because intent to carry through on a threat was not an element of any of his crimes of conviction. The court’s finding that “few” people took his threats seriously was belied by the conduct of the recipients of his threatening letters – they forwarded the letters to law enforcement authorities. Finally, the “exceptional circumstances” identified by the court (defendant’s long standing history of animosity with the local police department and his obsessive efforts to garner attention to his civil rights action) did not take his case out of the heartland of applicable guidelines. Further, the uncertainty as to whether the Sentencing Guidelines would ultimately be invalidated was not a basis for departure. U.S. v. McMorrow, 434 F.3d 1116 (8th Cir. 2006).

8th Circuit holds that alleged involuntary intoxication amounted to claim of diminished capacity. (730) Defendant argued that his “involuntary intoxication” resulting from psychotropic medication that he took to treat a bipolar condition, was a mitigating circumstance that the Sentencing Commission did not adequately take into consideration when it formulated the guidelines. The Eighth Circuit agreed with the district court that defendant’s alleged involuntary intoxication amounted to an assertion of diminished capacity. A federal statute enacted in 2003 specifically prohibits departures based on “diminished capacity” in child pornography cases. See U.S.S.G. § 5K2.13. Defendant’s attempt to distinguish between a “state of mania” caused by the bipolar disorder and one caused by the medication for the disorder, was unavailing. U.S. v. Mark, 425 F.3d 505 (8th Cir. 2005).

8th Circuit departs based on unrebutted testimony that defendant was compelled to collect pornography. (730) Defendant, a university student, collected and disseminated pornographic material using his university internet account. He moved for a § 5K2.13 diminished capacity departure, presenting testimony from two doctors. One doctor who treated defendant for 11 months twice a week concluded that defendant suffered from “a significant mental illness” involving, among other things, an “obsessive-compulsive disorder.” The other opined that defendant had a compulsion to gather pornography and “couldn’t not do it without some kind of outside intervention.” The district court granted defendant the § 5K2.13 departure, and the Eighth Circuit affirmed. The government did not dispute the doctor’s qualifications to provide expert testimony. It chose not to call its own expert to rebut their opinions, but instead relied on cross-examination, which proved ineffective. Thus, there was sufficient evidence to establish defendant suffered from a significantly reduce mental capacity, i.e. an obsessive-compulsive disorder, and the district court was not clearly erroneous in crediting the unrebutted expert testimony. U.S. v. Lighthall, 389 F.3d 791 (8th Cir. 2004).

8th Circuit rejects downward departure based on lack of criminal history and diminished capacity. (730) Defendant was convicted of interstate travel with the intent to engage in a sexual act with a minor. The district court granted defendant’s motion to depart downward after finding that defendant lacked a criminal history, was unlikely to reoffend, and suffered from diminished capacity. The court also granted a departure based upon a convergence of these facts. The Eighth Circuit reversed. Lack of criminal history can never furnish the basis for a downward departure because the guidelines have already set Category I to accommodate the first-time offender. The district court did not specify any facts relevant to rehabilitation that made defendant’s case exceptional. The doctor’s report submitted by defendant was insufficient, by itself, to support a finding of diminished capacity. Although the doctor diagnosed defendant as suffering from depression and anxiety, as well as a language disorder, the doctor did not suggest that these conditions impaired defendant’s ability to understand the wrongfulness of his behavior or his ability to control behavior he knew was wrong. U.S. v. McCart, 377 F.3d 874 (8th Cir. 2004).

8th Circuit says that co-conspirator who died in arson attempt was not victim of arson. (730) Defendant hired a friend to burn down defendant’s nightclub so that defendant could collect the insurance proceeds. The nightclub ended up exploding, and the friend died in the explosion. Defendant argued that because his sentence was determined by reference to the homicide guideline, § 2A1.1, he should have received a downward departure under § 5K2.10, Victim’s Conduct. The issue on appeal was whether defendant’s friend was, in fact, a victim. The Eighth Circuit ruled, in a pre-Blakely case, that the district court correctly denied the downward departure. Defendant was convicted of arson. The target of that offense was the insurance company from whom he hoped to collect on a fraudulent claim. Defendant’s friend was not a victim; he was a co-conspirator who tragically died in the process of completing the crime. Defendant’s argument that he must get a downward departure because he was charged under a homicide guideline was simply incorrect. U.S. v. Manfre, 368 F.3d 832 (8th Cir. 2004).

8th Circuit remands where government abandoned previously successful argument on rehearing. (730) In U.S. v. Woods, 359 F.3d 1061 (8th Cir. 2004), the Eighth Circuit ruled that defendant was ineligible as a matter of law for a departure under § 5K2.13 for diminished mental capacity, because he was convicted of robbery. It held the case was controlled by U.S. v. Peterson, 276 F.3d 432 (8th Cir. 2002), which held the term “nonviolent offense” excludes any offense that is a crime of violence under U.S.S.G. § 4B1.2. On rehearing, the government abandoned its argument that the reasoning of Petersen rendered defendant ineligible for a § 5K2.13 departure. Defendant argued that the amended policy statement requires an inquiry by the district court into the “facts and circumstances” of a particular bank robbery to determine whether defendant’s offense “involved actual violence or a serious threat of violence,” and that not every bank robbery committed by “intimidation” must involve a “serious threat of violence.” In view of the government’s abandonment of the argument on which it relied in the district court, the Eighth Circuit concluded that the better course was to remand the case for the district court to consider, in the first instance, whether it had authority to depart under § 5K2.13, and if so, whether departure is warranted. U.S. v. Woods, 364 F.3d 1000 (8th Cir. 2004), on rehearing of U.S. v. Woods, 359 F.3d 1061 (8th Cir. 2004).

8th Circuit rejects downward departure based on parental influence. (730) Defendant and his father operated a cash rental Ponzi scheme in which investors lost millions of dollars. The district court found that defendant’s family situation was outside the heartland because he had a significant relationship with his preschool-aged children, his wife had advanced rheumatoid arthritis, and defendant’s “extraordinary loyalty, if not blind trust,” in his father. The Eighth Circuit reversed the downward departure, concluding that defendant did not show his family circumstances were substantially different from those facing families of any other defendant. Although a parent’s unique position vis-à-vis his or her child may result in an ability to wield significant influence over that child, parental influence is most appropriately analyzed under § 5K2.12, which permits departure for coercion and duress. U.S. v. Contreras, 180 F.3d 1204 (10th Cir. 1999). Absent serious threats of physical injury or substantial damage to property, coercion is a discouraged basis for departure and must be present in some unusual way to warrant departure. Here, the district court did not specify any facts that would support a finding of an exceptional degree of coercion. Defendant was educated, with a degree in business administration and finance. He had full knowledge and understanding of the nature of the fraud, and actively participated in it for financial profit. U.S. v. King, 280 F.3d 886 (8th Cir. 2002).

8th Circuit rejects temporary insanity departure to defendant who committed violent offenses. (730) Defendant broke into the home of his estranged wife, in violation of a temporary protection order, and beat and raped her. The district court departed downward in part because defendant “exhibited some degree of temporary insanity.” The Eighth Circuit reversed. While the guidelines do not address “temporary insanity” as a basis for departure, § 5K2.13 does permit a departure based upon “a significantly reduced mental capacity.” Thus, the Sentencing Commission adequately considered mental capacity as a basis for a downward departure. Section 5K2.13 provides the only basis for such a departure, which forecloses consideration of diminished mental capacity under § 5K2.0. A defendant must have committed a nonviolent offense to be eligible for a downward departure under § 5K2.13. The jury convicted defendant of multiple violent offenses. Accordingly, a departure based upon a reduced mental capacity or “temporary insanity” was not authorized by the guidelines. Moreover, the court adduced no evidence on defendant’s mental capacity, reasoning only that defendant’s motivation was not the same as in a typical sexual assault and abuse. Whether or not this observation was true, this would not support a diminished capacity departure. U.S. v. Petersen, 276 F.3d 432 (8th Cir. 2002).

8th Circuit holds that lesser harms departure is permitted for making false statement to acquire gun. (730) Defendant, a convicted felon, inherited a family heirloom shotgun. After he learned that he could not legally keep the gun, he gave it to his son. Defendant obtained possession of the shotgun solely to pawn it for money to pay his utility bills. When he returned to the pawn shop to retrieve the gun, he falsely represented on an ATF form that he was not a convicted felon. He was denied clearance to reclaim the gun, but he and his wife returned later that same day and his wife reclaimed the gun. The gun was immediately returned to defendant’s son. Defendant was convicted of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and making a false statement on the ATF form, § 922(a)(6). He requested a § 5K2.11 “lesser harms” departure, claiming that his possession of the firearm and false statement on the ATF form were not the kinds of harms that Congress envisioned when it enacted the law proscribing those offenses. Because the district court may have incorrectly believed that § 5K2.11 did not permit departures for making false statement in connection with acquiring a firearm, the Eighth Circuit remanded for resentencing. Section 5K2.11 is not limited to departures for illegal firearm possessions. The two sections of § 922 involved share the same purpose of keeping firearms out of the hands of convicted felony. Section 922(a)(6) has no purpose independent of § 922(g)(1). U.S. v. Lewis, 249 F.3d 793 (8th Cir. 2001).

8th Circuit finds no prejudice from counsel’s failure to seek departure for victim’s wrongful conduct. (730) Late one night a man and three others went to defendant’s trailer home seeking money defendant allegedly owed the man. An argument ensued and defendant walked to his father’s nearby trailer, retrieved a shotgun, and returned. When a scuffle broke out, the shotgun discharged, killing the man. In a § 2255 motion, defendant claimed that his counsel was ineffective at sentencing for not requesting a downward departure under § 5K2.10 because the victim’s wrongful conduct contributed significantly to provoking the offense. The Eighth Circuit affirmed the denial of relief because defendant could not show prejudice. These facts were presented to the district court and to the appellate court on direct appeal in support of defendant’s request for a justification defense, which was rejected as a matter of law. Although a defendant need not prove the elements of a justification defense in order to obtain a § 5K2.10 downward departure, the district court’s findings showed that it would not have departed based on the victim’s wrongful conduct. Although the victim provoked the confrontation, he was not armed and presented no serious threat of harm. Blankenship v. U.S., 159 F.3d 336 (8th Cir. 1998).

8th Circuit holds attempted robbery was not “non-violent offense.” (730) Defendant was convicted of attempted bank robbery. He challenged the district court’s denial of a downward departure under § 5K2.13 based on diminished capacity. To be eligible for a departure under this section, defendant must have committed non-violent offense. Defendant argued that, because the shotgun in the attempted robbery was not loaded and his accomplice was carrying the weapon, his commission of the attempted robbery was non-violent. The Eighth Circuit rejected this argument. Attempted robbery is not a “non-violent offense.” U.S. v. Valdez, 146 F.3d 547 (8th Cir. 1998).

8th Circuit will not review court’s refusal to grant diminished capacity departure. (730) Defendant was convicted of drug crimes. He sought a downward departure on the basis of a reduced mental capacity. The district court refused. Defendant argued that the court’s erroneous finding that he did not have a reduced mental capacity led it to mistakenly believe that it did not have authority to depart. The Eighth Circuit refused to review the matter. The district court clearly stated during the sentencing hearing that although it had the ability to depart where a defendant’s mental capacity contributed to the crime, it refused to do so because defendant’s mental capacity was not significantly reduced, and even if it was lower than normal, it did not contribute to the commission of the offense. The court clearly recognized its authority to depart and therefore, the court’s decision to depart was unreviewable on appeal. U.S. v. Jones, 145 F.3d 959 (8th Cir. 1998).

8th Circuit rules that § 5K2.13 provides sole basis for downward departure based on defendant’s mental condition. (730) Defendant argued in a § 2255 motion that his trial counsel was ineffective for failing to argue for a downward departure under § 5H1.3 based upon defendant’s mental condition. At sentencing, defense counsel requested a downward departure under § 5K2.13 because of defendant’s significantly reduced mental capacity. The district court denied the request because defendant’s bank robberies were violent offenses. The Eighth Circuit found no ineffective assistance because § 5K2.13 provides the sole basis for a downward departure based on a defendant’s mental condition. Section 5H1.3 is not an independent source of departure authority. The Sentencing Commission adequately considered diminished mental capacity when it formulated § 5K2.13, thus foreclosing consideration of diminished capacity under § 5K2.0. Premachandra v. U.S., 101 F.3d 68 (8th Cir. 1996).

8th Circuit affirms departure for diminished capacity from post-traumatic stress disorder. (730) Defendant pled guilty to using a firearm in relation to a drug trafficking crime and being a felon in possession of a firearm. The district court departed downward under § 5K2.13 for diminished capacity based on defendant’s post-traumatic stress disorder resulting from his service in the Vietnam War. The Eighth Circuit affirmed, since the court had legal authority to depart under § 5K2.13, its factual findings were not clearly erroneous, and the degree of departure was reasonable. U.S. v. Risse, 83 F.3d 212 (8th Cir. 1996).

8th Circuit holds that “non-violent offense” necessarily excludes a “crime of violence.” (730) Defendant robbed a bank. He suffered from manic depression, and post-traumatic syndrome, and prior to the robbery, he had voluntarily stopped taking his medication. Defendant requested a downward departure under § 5K2.13 based on diminished capacity. The Eighth Circuit held that defendant was not entitled to a downward departure because his robbery was not a “non-violent offense.” Robbery is a crime of violence under § 4B1.2. The term “non-violent offense” in § 5K2.13 necessarily excludes a “crime of violence.” U.S. v. Mayotte, 76 F.3d 887 (8th Cir. 1996).

8th Circuit affirms refusal to depart for diminished capacity. (730) Defendant robbed a bank with a toy gun. The district court denied defendant’s request for a diminished capacity departure under § 5K2.13, finding he had sufficient mental capacity to understand the consequences of his actions, and that his crime was a violent offense. On appeal, defendant argued that his crime was not a violent offense. The Eighth Circuit found it unnecessary to examine this issue, since defendant did not challenge the court’s finding that he did not have a “significantly reduced mental capacity.” Defendant’s failure to meet this standard made him ineligible for a § 5K2.13 departure. U.S. v. Jackson, 56 F.3d 959 (8th Cir. 1995).

8th Circuit holds that robbery with pellet gun was not “non-violent” offense (730) Defendant robbed a bank with a pellet gun. The 8th Circuit held that the offense was not a “non-violent offense” under § 5K2.13. The facts and circumstances of the robbery clearly established that the offense was not non-violent. Therefore, the court declined to decide whether the terms “non-violent offense” in § 5K2.13 and “crime of violence” under § 4B1.2 are mutually exclusive. Defendant’s use of a pellet gun did not make the offense non-violent. A pellet gun is a dangerous weapon warranting enhancement under § 2B3.1(b)(2). U.S. v. Premachandra, 32 F.3d 346 (8th Cir. 1994).

8th Circuit rejects economic coercion as grounds for downward departure. (730) Defendant pled nolo contendere to conspiring to fix prices. The district court departed downward in part based on the coercive economic influence one of the conspirators had on the other participants, including defendant. It also found that defendant was a “relative newcomer” in the industry who just “swam with the crowd” without the courage to object to the price-fixing. The 8th Circuit rejected economic coercion as grounds for a downward departure. Section 5K2.12 expressly states that personal financial difficulties and economic pressures upon a trade or business do not warrant a downward departure. The court rejected the district court’s characterization of defendant as a “relative newcomer.” He was a president of one company from 1977 to 1986. He did not just “swim with the crowd,” but “jumped in the pool willingly.” U.S. v. Haversat, 22 F.3d 790 (8th Cir. 1994).

8th Circuit departs down where defendant used sawed-off shotgun to kill animals that preyed on his chickens. (730) After stopping defendant for drunk driving, police discovered an unloaded rifle with a shortened barrel in his van. He pled guilty to unlawful possession of an unregistered firearm. The 8th Circuit approved a downward departure under section 5K2.11, because defendant’s conduct did not cause the harm sought to be prevented by the statute. Defendant used the gun to kill small animals that preyed on his chickens. He sawed off the rifle’s barrel to make it easier to handle when hunting the animals when they hid in the crawl spaces underneath the shacks next to his house. However, the departure was not justified under section 5K2.0 based on defendant’s employment record, family ties, and living conditions on an Indian reservation. The case was factually distinguishable from U.S. v. Big Crow, 898 F.3d 1326 (8th Cir. 1990). U.S. v. White Buffalo, 10 F.3d 575 (8th Cir. 1993).

8th Circuit affirms denial of downward departure based on coercion. (730) The 8th Circuit affirmed the district court’s refusal to depart downward under section 5K2.12 based upon threats. The district court correctly recognized its authority to depart under section 5K2.12. It considered the circumstances surrounding the threats made to defendants, and considered the effect of those threats on the defendants’ actions. After hearing all the evidence district court determined that defendants had not shown that coercion was the motivation for the defendants’ offenses. U.S. v. Henderson-Durand, 985 F.2d 970 (8th Cir. 1993).

8th Circuit affirms that court may not depart downward under 5K2.0 for diminished capacity. (730) Defendant pled guilty to a violent crime. At sentencing, he requested a downward departure under section 5K2.0 due to his paranoid schizophrenia. The 8th Circuit affirmed the district court’s ruling that it lacked discretion to depart downward under section 5K2.0 for diminished mental capacity because section 5K2.13 covered diminished capacity departures. The Sentencing Commission adequately considered downward departures based on diminished mental capacity when it formulated section 5K2.13, thus foreclosing consideration of the same factor under section 5K2.0 Because defendant committed a violent offense, he was not eligible for a downward departure under section 5K2.13. U.S. v. Dillard, 975 F.2d 1554 (8th Cir. 1992).

8th Circuit upholds refusal to depart based upon victim’s conduct. (730) Defendant argued that the district court should have departed downward under guideline section 5K2.10, which authorizes a downward departure where the victim’s wrongful conduct contributed significantly to the provoking the offense. The 8th Circuit rejected this argument, since the evidence did not establish that the assault victim’s misconduct, if there was any, substantially provoked or led to defendant’s attack. The district court has broad discretion whether to reduce a sentence under section 5K2.10. U.S. v. Waloke, 962 F.2d 824 (8th Cir. 1992).

8th Circuit rules jury’s rejection of self-defense claim did not prohibit downward departure for battered woman syndrome. (730) Defendant was convicted of the second degree murder of her long-time, live-in boyfriend. At trial, she claimed she was suffering from battered woman syndrome, and that she stabbed her boyfriend in self-defense. The district court refused to depart downward under guideline section 5K2.10 based upon the battered woman syndrome, ruling that by finding defendant guilty, the jury rejected defendant’s claim of battered woman syndrome. The 8th Circuit ruled that the jury’s rejection of defendant’s self-defense claim did not preclude a downward departure based upon the battered woman syndrome. Defendant submitted evidence of battered woman syndrome, not as a defense in itself, but as the primary component of her claim of self-defense. If her claim of self-defense had been accepted by the jury, she would have been acquitted. Thus, to the extent that section 5K2.10 permits consideration of battered woman syndrome as a basis for departure, it does not require proof of the same elements necessary to establish a claim of self-defense at trial. U.S. v. Whitetail, 956 F.2d 857 (8th Cir. 1992).

8th Circuit reverses downward departure for spouse abuse, post-arrest education, and victim’s conduct. (730) Defendant stabbed a woman who was in the company of defendant’s boyfriend. The district court departed downward because the defendant had been abused by her husband, and because she had obtained her GED degree after arrest, and because of the victim’s wrongful conduct. The 7th Circuit reversed, noting that section 5H1.3 states that emotional conditions are not ordinarily relevant in determining whether to depart. Defendant’s circumstances were not sufficiently unusual: the abuse occurred three years earlier, and her present boyfriend was not the abuser. Under section 5H1.2, education is not ordinarily relevant in determining whether to depart, and defendant’s attainment of the GED was not sufficiently extraordinary. Finally, the victim’s wrongful conduct did not provoke the offense as required for departure under section 5K2.10. Although the victim may have breached dating etiquette, that was not wrongful. U.S. v. Desormeaux, 952 F.2d 182 (8th Cir. 1991).

8th Circuit rejects use of paid informant in controlled buy as grounds for downward departure. (730) Defendant was arrested after selling drugs to a paid informant. The 8th Circuit affirmed the district court’s refusal to depart downward under sections 5K2.0, 5K2.10 or 5K2.12. Section 5K2.10 permits a downward departure if the victim’s conduct contributed significantly to provoking the offense. As a matter of law, the actions of the government, admittedly not amounting to entrapment, did not constitute victim conduct sufficient to warrant a departure. Section 5K2.12, permitting a departure on the basis of coercion and duress, also did not apply as a matter of law. Defendant did not allege that the government made any threats to him or engaged in any unlawful activity. The district court’s refusal to depart under section 5K2.0 was not reviewable on appeal. U.S. v. Martinez, 951 F.2d 887 (8th Cir. 1991).

8th Circuit reverses where district court misunderstood authority to depart downward for diminished capacity. (730) The district court denied a downward departure because it found that defendant’s diminished capacity was not the sole cause of his offense. The 8th Circuit remanded for resentencing, finding that the district court misunderstood its authority to grant a downward departure. The guidelines policy statement for diminished capacity does not require defendant’s mental state to have caused the offense. Rather, a departure is justified if “defendant’s diminished capacity comprised a contributing factor in the commission of the offense.” U.S. v. Ruklick, 919 F.2d 95 (8th Cir. 1990).

8th Circuit affirms downward departure where victim provoked assault. (730) The government appealed from the sentencing judge’s downward departure from the sentencing guidelines in an assault case. The 8th Circuit affirmed the downward departure, ruling that the evidence at trial supported the trial court’s determination that the victim provoked the assault. Section 5K2.10 specifically authorizes a downward departure in such circumstances. U.S. v. Yellow Earrings, 891 F.2d 650 (8th Cir. 1989).

9th Circuit rejects claim that diminished capacity should have led to further reduction in below-Guidelines sentence. (730) After calculating defendant’s Guidelines range for her mail fraud conviction as 37 to 46 months, the district court imposed a sentence of 24 months. The court explained that defendant was a gambling addict with a severe problem. On appeal, defendant claimed that the court should have imposed a lower sentence because she has diminished mental capacity. The Ninth Circuit affirmed, noting that the district court made a reasoned and reasonable decision that the factors set forth in 18 U.S.C. § 3553(a) justified the sentence. U.S. v. Blixt, 548 F.3d 882 (9th Cir. 2008).

9th Circuit says court may consider drug addiction in applying § 3553(a) factors. (730) At defendant’s sentencing for conspiracy to traffic in methamphetamine, he argued that the court should consider his drug addiction under 18 U.S.C. § 3553(a) as part of his “history and characteristics.” The district court held that it did not have discretion to consider defendant’s alleged diminished mental capacity due to drug addiction because the guidelines preclude using voluntary drug addiction as a basis for a downward departure. The Ninth Circuit held that the factors that constrain the court’s discretion to depart under the guidelines do not necessarily constrain the court when considering the § 3553(a) factors. The court held that a district court is not prohibited in all circumstances from considering a defendant’s drug addiction in choosing a reasonable sentence. U.S. v. Garcia, 497 F.3d 964 (9th Cir. 2007).

9th Circuit upholds diminished capacity departure based on post-traumatic stress. (730) At defendant’s sentencing for mail fraud, she presented expert evidence that she suffered from post-traumatic stress caused by her abandonment by her parents as a child and the violent murder of her fiancé while she was pregnant with their child. The expert testified that defendant committed the offense as part of “manic denial of psychic trauma accompanied by compulsive coping behaviors.” Based on this testimony, the district court departed downward by eight levels. The Ninth Circuit held that the district court had not abused its discretion by crediting the expert’s testimony, finding that defendant suffered from diminished capacity, and departing downward on that basis. U.S. v. Menyweather, 447 F.3d 625 (9th Cir. 2005), implied overruling recognized by U.S. v. Munoz-Camarena, 621 F.3d 967 (9th Cir. 2010).

9th Circuit says defendant who phoned in threat to a courthouse was ineligible for diminished capacity departure. (730) Under guideline 5K2.13, a district court may depart downward based on the defendant’s significantly reduced mental capacity if the offense did not involve a serious threat of violence. Defendant was convicted of making telephonic bomb threats, in violation of 18 U.S.C. § 844(e), based on calls he made stating that explosives were located in a courthouse. Defendant made the calls to force the postponement of collection proceedings against him. The Ninth Circuit held that defendant’s offenses raised a serious threat of violence and that he was ineligible for a departure under § 5K2.13. U.S. v. Dela Cruz, 358 F.3d 623 (9th Cir. 2004).

9th Circuit says restriction on departure for diminished capacity precludes departing under § 5K2.0. (730) The district court found that defendant suffered from diminished mental capacity but concluded that the guidelines prohibited a downward departure under § 5K2.13 because defendant’s diminished mental capacity was caused by the voluntary use of drugs and his unarmed bank robbery involved a serious threat of violence. The district court also found that because it was precluded from departing under § 5K2.13, it could not depart for diminished capacity under § 5K2.0, the general departure section. On appeal, the Ninth Circuit affirmed, agreeing with the Fifth Circuit’s decision in U.S. v. Thames, 214 F.3d 608 (5th Cir. 2000), which held that because the guidelines already took into account a defendant’s mental capacity in § 5K2.13, that § 5K2.0 was inapplicable. Section 5K2.0 allows departures only for mitigating circumstances not adequately taken into consideration by the guidelines. U.S. v. Smith, 330 F.3d 1209 (9th Cir. 2003).

9th Circuit finds district court considered whether to depart for imperfect duress. (730) Defendant, an illegal alien, was induced to smuggle other illegal aliens into the U.S. when she could not pay the fee demanded to smuggle her into the country. At her sentencing for alien smuggling, the district court rejected defendant’s contention that she should receive a downward departure for imperfect duress on the ground that the smuggler’s alleged threats to defendant did not just justify her actions. The Ninth Circuit held that the district court had considered and rejected defendant’s imperfect duress departure request, and the discretionary refusal to depart was not appealable. U.S. v. Lopez-Garcia, 316 F.3d 967 (9th Cir. 2003).

9th Circuit holds diminished capacity departure is not available for Hobbs Act robbery involving murder. (730) Based on his assistance in disposing of a murder victim’s body and his subsequent theft of the victim’s vehicle and money, defendant was convicted of Hobbs Act robbery and using or carrying a firearm during a crime of violence. The Ninth Circuit agreed with the district court that the robbery involved “actual violence” and thus that § 5K2.13 – which bars a diminished-capacity departure when the defendant’s “offense involved actual violence or a serious threat of violence” – foreclosed a diminished-capacity departure for defendant. U.S. v. Pizzichiello, 272 F.3d 1232 (9th Cir. 2001).

9th Circuit finds court understood it could depart for duress, aberrant behavior. (730) In his sentencing memoranda, defendant sought a departure on the grounds of duress and aberrant behavior and because his offense was outside the “heartland” of cases contemplated by the Guidelines. The district court noted the proposed grounds of departure, but declined to exercise its discretion to depart. In discussing the duress departure, however, the court added that it did not think that defendant had shown that he committed the offense because of coercion or duress “that would complete the offense.” The Ninth Circuit held that in light of defendant’s discussion of a duress departure in his sentencing memorandum, this phrase did indicate that the district court wrongly believed that defendant had to show duress sufficient to constitute a complete defense to the crime. The court of appeals also found that the district court’s factual findings in denying a duress departure were not clearly erroneous. Finally, it found no basis for concluding that the district court had rested its refusal to depart on aberrant behavior and outside-the-heartland grounds on a mistaken view of the law. U.S. v. Pizzichiello, 272 F.3d 1232 (9th Cir. 2001).

9th Circuit holds that finding that incarceration was necessary to protect the public barred departure for reduced mental capacity. (730) At sentencing on his bank robbery convictions, defendant sought a downward departure under § 5K2.13. That section provides for a departure when the defendant commits an offense while suffering from a significantly reduced mental capacity except when, inter alia, “the defendant’s criminal history indicates a need to incarcerate the defendant to protect the public.” The district court found that defendant’s lengthy history of violent bank robberies established a need to incarcerate him to protect the public and denied a departure on this ground. The Ninth Circuit held that the district court’s factual finding was not clearly erroneous and that it precluded a departure under § 5K2.13. U.S. v. Davis, 264 F.3d 813 (9th Cir. 2001).

9th Circuit requires evidentiary hearing on request for diminished capacity departure. (730) At his sentencing for convictions arising out of threats made to the President and his family, the defendant requested a downward departure under § 5K2.13. In support of that request, he asserted that as a result of extraordinary abuse as a child, he suffered from diminished capacity. He submitted a psychological evaluation from a doctor stating that his emotional difficulties influenced his decision to commit the crime. The district court declined to hold an evidentiary hearing and refused to depart downward, relying on an earlier psychological evaluation that found that the defendant was “manipulative.” The Ninth Circuit vacated the sentence, finding that the district court erred in rejecting the psychological evaluation submitted by the defendant. The court ordered the district court to hold a hearing on remand so that the defendant could attempt to substantiate the expert’s conclusions. U.S. v. Walter, 256 F.3d 891 (9th Cir. 2001).

9th Circuit finds no error in permitting defendant to subpoena only two of six witnesses. (730) Defendant argued that the district court abused its discretion by denying her request to subpoena more than two witnesses to testify regarding her defenses of “aberrant behavior” and “imperfect duress.” Specifically, she argued that her participation in the murder was the result of spousal abuse and the effects of battered woman syndrome. The district court issued Rule 17(b) subpoenas to defendant’s mother and her ex-husband, but declined to subpoena (1) defendant’s friend, (2) a high-school acquaintance, (3) a person with whom defendant and her husband resided temporarily, and (4) defendant’s husband’s ex-wife. The Ninth Circuit acknowledged that the observations of at least three of these witnesses were relevant to defendant’s duress claim. But her motion in the district court did not explain what these witnesses could add to the testimony of her mother and ex-husband. Accordingly, the court found no abuse of discretion in authorizing subpoenas for only two of the six witnesses. U.S. v. Weischedel, 201 F.3d 1250 (9th Cir. 2000).

9th Circuit upholds downward departure for “imperfect entrapment.” (730) Relying on U.S. v. Garza-Juarez, 992 F.2d 896 (9th Cir. 1991), the district court departed downward by six levels for “imperfect entrapment.” The government appealed, arguing that the departure should not apply where the defendant initiated the criminal activity and was predisposed to commit the crime. The Ninth Circuit found no merit in the argument, because it would eliminate all “imperfect entrapment” departures. Such departures are appropriate because imperfect entrapment may show that a defendant is “both less morally blameworthy than an enthusiastic [defendant] and less likely to commit other crimes if not incarcerated.” U.S. v. McClelland, 72 F.3d 717 (9th Cir. 1995).

9th Circuit says unarmed robbery is a violent offense for diminished capacity purposes. (730) Defendant argued that the district court should have departed downward for diminished capacity under sections 5K2.13 or 5H1.1-6. These guidelines permit a court to depart if the defendant “committed a nonviolent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants.” The Ninth Circuit found no error, ruling that the unarmed bank robberies committed by defendant “did not qualify as nonviolent offenses.” U.S. v. Cook, 53 F.3d 1029 (9th Cir. 1995).

9th Circuit upholds denial of departure for imperfect duress. (730) Defendant argued that the district court improperly applied the standard for “perfect” duress, in rejecting his request for a downward departure under § 5K2.12 for “imperfect” duress. His argument was based on the fact that the prosecution’s recommendation against departure was based on the defendant’s inability to prove the elements of perfect duress. The Ninth Circuit found no indication that the district court applied the wrong legal standard, noting that a discussion of the elements of perfect duress is not irrelevant to the issue of imperfect duress. Since the district court applied the correct standard, its discretionary refusal to depart was not reviewable on appeal. U.S. v. Pinto, 48 F.3d 384 (9th Cir. 1995).

9th Circuit says felon’s possession of a firearm is not a crime of violence. (730) The application note to guideline section 4B1.2(1)(i) states that the term “crime of violence” does not include the offense of unlawful possession of a firearm by a felon. The 9th Circuit said that provision bolstered its conclusion in U.S. v. Sahakian, 965 F.2d 740, 741-43 (9th Cir. 1992), that being a felon in possession is not a crime of violence for the purpose of applying the career offender guidelines. The court further noted that it had extended Sahakian to sentences imposed under the Armed Career Criminal Act, 18 U.S.C. section 924(e). In this case, the court extended this rule to hold that possession of a firearm by a felon is not a crime of violence for purposes of departing downward under section 5K2.13, which permits a downward departure for reduced mental capacity for nonviolent offenses. U.S. v. Cantu, 12 F.3d 1506 (9th Cir. 1993).

9th Circuit says post-traumatic stress disorder may justify downward departure for reduced mental capacity. (730) The 9th Circuit held that post-traumatic stress disorder, an emotional illness, may cause reduced mental capacity for the purpose of a downward departure under guideline section 5K2.13. The court held that “reduced mental capacity” comprehends both organic dysfunction and behavioral disturbances that impair the formation of reasoned judgments. Both make a defendant eligible for a departure under section 5K2.13. “Therefore, a defendant suffering from post-traumatic stress disorder, an emotional illness, is eligible for such a departure if his ailment distorted his reasoning and interfered with his ability to make considered decisions.” Judge Canby concurred in the result. U.S. v. Cantu, 12 F.3d 1506 (9th Cir. 1993).

9th Circuit says reduced mental capacity need only be a contributing cause of the crime. (730) The 9th Circuit noted that the circuits are unanimous in holding that the disorder that results in significantly reduced mental capacity need only be a contributing cause, not a but-for cause or a sole cause, of the offense of conviction. “The defendant’s eligibility remains the same whether his impairment contributed greatly to the commission of the offense, or hardly at all.” The degree to which the impairment contributed to the commission of the offense is the degree to which the defendant’s punishment should be reduced. Judge Canby concurred in the result. U.S. v. Cantu, 12 F.3d 1506 (9th Cir. 1993).

9th Circuit discusses need to protect the public in departure for reduced mental capacity. (730) Guideline section 5K2.13 permits a downward departure for significantly reduced mental capacity unless the defendant’s criminal history demonstrates a need for incarceration to protect the public. The government argued that defendant’s criminal record barred a departure because defendant had one conviction for carrying a concealed weapon, one conviction for an unspecified weapons violation, and four convictions for differing degrees of assault. The 9th Circuit did not resolve the question, noting that conflicting evidence existed regarding the possibility that defendant’s incarceration was required to protect the public, and remanded the case to the district court on this issue. The majority noted however, that two of the primary rationales for punishing an individual by incarceration — desert and deterrence — lose some of their relevance when applied to those with reduced mental capacity. Judge Canby concurred in the result. U.S. v. Cantu, 12 F.3d 1506 (9th Cir. 1993).

9th Circuit authorizes departure for reduced mental capacity despite alcoholism. (730) To be eligible for a downward departure under 5K2.13 for reduced mental capacity, the defendant’s impairment must not be caused by voluntary use of drugs or other intoxicants. Here, the defendant was an alcoholic and his post-traumatic stress disorder may have been the cause of his alcoholism. There was no evidence that defendant was drunk at the time of his offense, however. Therefore, his alcoholism did not prevent a downward departure. Judge Canby concurred in the result. U.S. v. Cantu, 12 F.3d 1506 (9th Cir. 1993).

9th Circuit says claim to mental impairment must be viewed with “lenity.” (730) The 9th Circuit said that in resolving disputed facts concerning mental impairment the court’s inquiry into the defendant’s mental condition and the circumstances of the offense must be undertaken “with a view to lenity, as section 5K2.13 implicitly recommends.” The defendant bears the burden of proving the appropriateness of a downward departure, but it is unnecessary for a defendant who requests a departure under section 5K2.13 to undergo a mental health examination of the type used in determining guilt or innocence. The district court must tailor its fact-finding process to “the nature of the dispute, its relevance to the sentencing determination, and applicable caselaw.” Judge Canby concurred in the result. U.S. v. Cantu, 12 F.3d 1506 (9th Cir. 1993).

9th Circuit upholds departure for coercion not amounting to entrapment. (730) In sentencing defendants on firearm offenses, the district court stated that “the conduct of this investigation, although not amounting to entrapment, was sufficiently coercive in nature as to warrant a downward departure under guideline 5K2.12.” On appeal, the 9th Circuit affirmed, noting that the policy statement for section 5K2.12 permits a downward departure if “the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense.” The court noted that in U.S. v. Takai, 941 F.2d 738 (9th Cir. 1991) the court said a downward departure may be appropriate when government agents used persuasion alone, not threats. Moreover, other circuits have recognized that section 5K2.12 “was meant to apply precisely to those situations where a complete defense was not present.” The court distinguished U.S. v. Dickey, 924 F.2d 836 (9th Cir. 1991) which held that a downward departure based on “imperfect entrapment” was not appropriate, “at least where the defendant pleads guilty to an offense,” on the ground that here the defendants contested their guilt at trial. U.S. v. Garza-Juarez, 992 F.2d 896 (9th Cir. 1993).

9th Circuit rejects claim that defendant’s diabetes and poverty forced him to rob banks. (730) Defendant argued that the district court should have departed downward under section 5K2.12 for coercion and duress, resulting from a combination of his severe diabetes and poverty. He contended that the circumstances forced him to turn to robbing banks to get money to pay for necessary insulin to treat his illness. The district court refused to depart, and on appeal, the 9th Circuit ruled that this discretionary refusal to depart was not reviewable. The district court properly determined that under section 5K2.12 the coercion and duress claimed by the defendant was not sufficient to warrant a downward departure. The court also properly refused to depart downward under section 5K2.0. U.S. v. Gardner, 988 F.2d 82 (9th Cir. 1993).

9th Circuit finds court stated adequate reasons for departure. (730) The defendant argued the district court improperly failed to state its reasons under 18 U.S.C. section 3553(c)(1), which requires the district court to state its reasons for choosing a sentence within the applicable guideline range if that range exceeds 24 months. Here, subsection (c)(1) did not apply because the defendant received a sentence below the applicable guideline range. In addition, the court provided an adequate statement of reasons for imposing a sentence different from the guideline range as required by section 3553(c)(2). The court clearly stated that it was granting a downward departure for coercion and duress under section 5K2.12 and that because the defendant’s conduct was not entirely reasonable, she was only entitled to a two-level downward departure. The explanation satisfied the statute. U.S. v. Roe, 976 F.2d 1216 (9th Cir. 1992).

9th Circuit approves “incomplete duress” as basis for downward departure in drug case. (730) U.S.S.G. section 5K2.12 authorizes downward departures for “incomplete duress.” The 9th Circuit held that “the incomplete defense of duress supposes a voluntary crime carried out by a person whose personal characteristics and personal perception of the circumstances of the situation made her susceptible to the threat of force.” In this case, the women defendants had been subject to “savage” treatment and had been involved with “a manipulative, violent, brutal drug lord.” On these facts the district court had discretion to depart downward if it found that a defendant “had been subject to coercion, even though with effort she could have escaped.” Since the district court failed to make adequate findings, and it was unclear whether it knew it could depart, the case was remanded for resentencing. U.S. v. Johnson, 956 F.2d 894 (9th Cir. 1992), superseded on other grounds by Guideline as stated in U.S. v. Martinez-Martinez, 369 F.3d 1076 (9th Cir. 2004).

9th Circuit rejects downward departure for diminished capacity based on involuntary drug use. (730) Section 5K2.13 permits a court to depart downward if the defendant suffered from diminished capacity that resulted from involuntary drug use, as long as the offense was nonviolent. However, there was no evidence in the record that defendant in fact had diminished capacity. Moreover his unarmed bank robberies were “violent offenses,” making departure inappropriate. U.S. v. Sanchez, 933 F.2d 742 (9th Cir. 1991).

9th Circuit rules departure not appropriate for partially diminished capacity. (730) Defendant sought a downward departure based on his partially diminished capacity, caused by depression and alcohol abuse. The applicable guideline, § 5K2.13, permits departure where a “defendant committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants.” The 9th Circuit found the section inapplicable here because defendant committed a crime of violence, attempted unarmed bank robbery. Additionally, the district court found it unlikely that defendant’s diminished capacity claim was as significant as required by the guidelines. It was partially caused by defendant’s voluntary alcohol abuse, which would have also barred his claim under § 5K2.13. The refusal to depart was appropriate. U.S. v. Borrayo, 898 F.2d 91 (9th Cir. 1989).

10th Circuit holds that defendant who enticed minors to engage in sexual activity was not eligible for diminished capacity departure. (730) A diminished capacity departure is not available under § 5K2.13 if “the facts and circumstances of the defendant’s offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence.” Defendant was convicted of enticing minor to engage in sexual activity and traveling for the purpose of engaging in sexual acts with a minor. The district court found that defendant was ineligible for a § 5K2.13 departure because his offenses included a serious threat of violence. The Tenth Circuit agreed. Enticing a minor to engage in sexually explicit conduct is a crime of violence. U.S. v. Sims, 428 F.3d 945 (10th Cir. 2005).

10th Circuit rejects departure for family circumstances and aberrant behavior. (730) The district court granted defendant a three-level downward departure on three grounds: (1) extraordinary family circumstances, (2) aberrant behavior, and (3) a combination of the two factors. The Tenth Circuit reversed. The family circumstances relied upon by the court was the condition of defendant’s 22-year old son, who had a number of psychological disabilities that required constant care and supervision. However, the son’s need for management, structure, and support in his daily routine did not justify a downward departure. There was no evidence that defendant, and only defendant, could provide the help that his son needed. In fact, the son’s psychiatrist stated only that one or the other parent had to be directly involved in his daily care. Defendant’s assistance was required not because he was an irreplaceable part of his son’s treatment, but because defendant’s wife worked full-time and was unable to monitor their son on an ongoing basis and maintain her job. Defendant did not qualify for an aberrant behavior departure because his crime was not “short-lived.” Behavior is aberrant only if its represents “a short-lived, marked departure from an otherwise law-abiding life.” The combination of factors also did not support a departure since there was little support for either ground for departure. U.S. v. McClatchey, 316 F.3d 1122 (10th Cir. 2003).

10th Circuit upholds refusal to depart based on obsessive-compulsive disorder. (730) Defendant broke into a house carrying a loaded .22 caliber handgun with an attached silencer. He pled guilty to possessing an unregistered firearm, the homemade silencer. He moved for a downward departure, claiming that the silencer was a symptom of the “over-preparation” he was compelled to perform because he suffered from an obsessive-compulsive disorder. The Tenth Circuit affirmed the refusal to depart. The district court constructed defendant’s motion relating to his obsessive-compulsive disorder as a motion based on diminished capacity under § 5K2.13. However, § 5K2.13 could not be applied here because defendant’s crime involved “actual violence or a serious threat of violence.” The court also did not believe that the condition caused defendant to bring the silencer, instead believing that defendant’s act of bringing the silencer was a reaction to an earlier burglary. This was not a legal conclusion that the court had no discretion to depart, but a factual conclusion that a departure was not warranted under the circumstances at issue. An appellate court lacks jurisdiction to review a sentencing court’s refusal to depart when the court was aware that it had the authority to depart but declines to exercise that authority. U.S. v. Constantine, 263 F.3d 1122 (10th Cir. 2001).

10th Circuit rejects departure based on sentencing disparity and parental influence. (730) In U.S. v. Contreras, 108 F.3d 1255 (10th Cir. 1997), the Tenth Circuit reversed a downward departure based on the sentencing disparity between defendant and co-conspirator Denogean. At resentencing, the district court again departed downward. Once again, the Tenth Circuit reversed, holding that the district court abused its discretion in departing based on the sentencing disparity between defendant and co-conspirator Villalba. As with Denogean, defendant and Villalba were not similarly situated (Villalba pled guilty to a lesser charge). Thus, any disparity in their sentences was not unwarranted. The court also ruled that the parental influence wielded by defendant’s father, the leader of the drug conspiracy, did not justify a departure. Such influence is most appropriately analyzed under § 5K2.12 (Coercion and Duress). Although defendant depended on her father financially, § 5K2.12 says that economic hardship and personal financial difficulties do not warrant a departure. As to emotional coercion, defendant acknowledged that her father never threatened her with physical harm. Judge McKay dissented. U.S. v. Contreras, 180 F.3d 1204 (10th Cir. 1999).

10th Circuit holds that bank robbery is not a “non-violent offense.” (730) Defendant entered a bank, unarmed, and handed a teller a note that said “I have a gun. This is a robbery.” After receiving some cash, he fled on foot and was immediately apprehended. Defendant pled guilty to bank robbery. He argued that his history of mental problems warranted a downward departure, since at the time of the robbery, he was hearing voices directing him to commit the offense. The district court found defendant ineligible for a § 5K2.13 departure because he had committed a violent offense under the facts of the case. The Tenth Circuit held that because defendant was convicted of a crime that required the use of “force and violence” or “intimidation,” he was not eligible for a § 5K2.13 departure. The court did not decide whether the definition of “crime of violence” in § 4B1.2 affects the meaning of the term “non-violent offense” in § 5K2.13, because the elements required to support a bank robbery conviction precluded a finding that the offense was non-violent. Defendant pled guilty to an indictment which charged him with robbing a bank “by force, violence and intimidation.” U.S. v. Valdez, 158 F.3d 1140 (10th Cir. 1998).

10th Circuit reverses departure for disparity, minor role, coercion, lack of criminal history, and family responsibility. (730) Defendant was convicted of drug charges. The district court departed downward based on five factors: (1) the disparity of sentences between defendant and a co-defendant; (2) defendant’s minor role; (3) the court’s finding that defendant was manipulated by her co-defendant; (4) defendant’s lack of criminal history; (5) defendant’s family responsibilities as the sole support for her six-year old son and partial support for her parents. The Tenth Circuit reversed. A departure based on a disparity between co-defendants is not justified when sentences are dissimilar because of a plea bargain. Defendant’s minor role is accounted for by § 3B1.2. Coercion must involve a threat of physical injury, substantial damage to property or similar injury. The only evidence was defendant’s comment that she refused to testify against her co-defendant because she was scared. Also, coercion must occur at the time of the offense. Defendant’s lack of criminal history was accounted for in criminal history category I. Defendant’s family responsibilities were not extraordinary. U.S. v. Gallegos, 129 F.3d 1140 (10th Cir. 1997).

10th Circuit rejects § 5K2.13 departure where incarceration was necessary to protect public. (730) Defendant requested a criminal history downward departure and a downward departure under § 5K2.13 for diminished capacity. In rejecting the criminal history departure the court found that defendant’s incarceration was necessary to protect the public. The court rejected a § 5K2.13 departure because it believed that a crime of violence could not be a “non-violent” offense. The Tenth Circuit did not address whether a crime of violence can ever be a non-violent offense because the court’s separate finding that defendant’s incarceration was necessary to protect the public provided an independent basis for rejecting a § 5K2.13 departure. Diminished capacity departures are only appropriate if the defendant’s criminal history does not indicate a need for incarceration to protect the public. U.S. v. Mitchell, 113 F.3d 1528 (10th Cir. 1997).

10th Circuit rejects downward departure for defendant carrying machine gun in car. (730) Defendant was involved in an altercation by the side of the road. At one point, defendant threatened that he would get a gun. Police discovered a machine gun in defendant’s car, along with three loaded magazines. Defendant was convicted of unlawful possession of a machine gun. The district court originally departed downward under the “sporting and collection” exception in § 2K2.1(b)(2), and the Tenth Circuit reversed. On remand, the district court reimposed the same sentence, departing under the “lesser harms” provision of § 5K2.11. The Tenth Circuit again reversed. First, the district court’s findings that the gun was “unshootable” and had not yet been fully converted to automatic status was contrary to expert testimony and defendant’s own testimony. More importantly, this was not the type of situation in which a departure was justified. Defendant’s possession of the gun in his car, along with three loaded magazines, and his threat to use the gun, all contradicted defendant’s claimed innocent reason for possessing the machine gun. The lesser harms rationale for departing should be interpreted narrowly. U.S. v. Warner, 43 F.3d 1335 (10th Cir. 1994).

10th Circuit refuses to review failure to depart downward for coercion. (730) Defendant contended that the district court erred in refusing to grant a downward departure based on coercion or duress. The 10th Circuit held that it was without jurisdiction to consider the district court’s discretionary refusal to depart downward. U.S. v. Merchant, 992 F.2d 1091 (10th Cir. 1993).

10th Circuit refuses to review refusal to depart based on defendant’s diminished capacity. (730) The 10th Circuit refused to review defendant’s claim that the district court erred in refusing to depart downward based upon his diminished mental capacity. The language of section 5K2.13 is discretionary, not mandatory. When a district court has discretion to depart downward, and explicitly declines to exercise that jurisdiction, 18 U.S.C. section 3742 does not grant jurisdiction to review that decision. U.S. v. Eagan, 965 F.2d 887 (10th Cir. 1992).

10th Circuit holds that district court did exercise discretion in refusing downward departure. (730) A jury convicted defendant of armed robbery, rejecting his insanity defense. The district court refused defendant’s request to make a downward departure on the basis of defendant’s diminished capacity. Defendant argued that the district court felt bound by the jury’s verdict rejecting his insanity defense, and thus incorrectly refused to exercise its discretion to make a downward departure on the basis of defendant’s diminished capacity. The 10th Circuit disagreed with this argument, finding that the district court refused to make a downward departure because of the potentially violent nature of defendant’s crime. Thus, the failure to make a downward departure was an exercise of discretion. U.S. v. Spedalieri, 910 F.2d 707 (10th Cir. 1990).

10th Circuit holds that failure to request departure based upon diminished capacity waived objection to failure to conduct evidentiary hearing on issue. (730) Defendant argued that he suffered from diminished capacity at the time of the offense and therefore was entitled to a guidelines departure under §5K2.13. He claimed that he was entitled to an evidentiary hearing on the issue and the district court’s failure to do so required the sentence to be vacated. Without considering the question as to whether a district court’s discretionary refusal to order an evidentiary hearing on an issue relevant to a possible departure is reviewable, the court held that because no request for an evidentiary hearing had been made to the sentencing court, the defendant waived whatever procedural objections he may have had. U.S. v. Kuntz, 908 F.2d 655 (10th Cir. 1990), overruling on other grounds recognized by U.S. v. Duncan, 242 F.3d 940 (10th Cir. 2001).

11th Circuit denies variance for diminished capacity. (730) In the wake of Hurricane Katrina, defendant filed 17 fraudulent applications for aid from FEMA. Defendant argued that she deserved a downward variance based on her diminished capacity, which she said prevented her from accepting guidance from her lawyers. See 18 U.S.C. § 3553(A)(1). The Eleventh Circuit held the court was reasonable in denying defendant’s motion and in imposing a guideline sentence. Defendant’s assertion of diminished capacity was contrary to a 45-day forensic evaluation conducted at defendant’s request. The report concluded that defendant was likely malingering and that she was possibly “motivated by external incentives such as … evading criminal prosecution.” Her trial counsel acknowledged that defendant was “entirely capable of rendering valuable assistance” in formulating her defense. U.S. v. Willis, 560 F.3d 1246 (11th Cir. 2009).

11th Circuit says motive for illegally reentering county is irrelevant for departure purposes. (730) Defendant illegally reentered the country after deportation. He argued that his motive for reentering the U.S. – supporting his family – did not involve an intent to commit further crimes, and thus a downward departure was warranted under § 5K2.11 (conduct did not threaten the harm sought to be prevented by law). The Eleventh Circuit disagreed, finding defendant’s motive for reentering irrelevant. The only harm 8 U.S.C. § 1326 is aimed at preventing “is illegal reentry itself, for whatever purpose.” U.S. v. Saucedo-Patino, 358 F.3d 790 (11th Cir. 2004).

11th Circuit holds that sexual addiction not sufficient to take case out of heartland of child pornography cases. (730) Defendant was convicted of possessing child pornography. The district court granted defendant’s request for a downward departure, concluding that defendant suffered from a significantly reduced mental capacity because his ability to control his behavior was significantly impaired by his sexual addiction. The government argued on appeal that defendant’s expert’s diagnosis, that defendant suffered from a sexual addiction and that collecting child pornography was his way of medicating this addiction, was not sufficiently different from impulse control disorder, which the court expressly rejected as a basis for a downward departure in U.S. v. Miller, 146 F.3d 1281 (11th Cir. 1998). The Seventh Circuit held that the departure was an abuse of discretion. Defendant’s expert admitted that defendant’s condition was not atypical to other people who collect a sizeable amount of child pornography and are addicted to collecting it. As in Miller, the offense conduct, defendant’s receipt, possession and distribution of child pornography, was exactly the sort of conduct that Congress intended to regulate. This case was not outside the heartland of cases. U.S. v. Caro, 309 F.3d 1348 (11th Cir. 2002).

11th Circuit rejects departure based on drug abuse, learning disability and emotional disorder. (730) In departing downward, the district court stated that it believed defendant’s judgment was impaired by a number of factors, including drug abuse, a low aptitude or learning disability leading to classification as a special education student, and “early treatment for an emotional or mental disorder.” The Eleventh Circuit found that this was an improper ground for departure. While the guidelines do not categorically prohibit a judge from departing on the basis of offender-related characteristics, the policy statements of § 5H1.6 prohibit departures from the applicable sentencing range in all but extraordinary cases, i.e. all but departures under § 5K2.0. There was nothing in the record about defendant’s drug addiction or his mental and emotional condition that made his case so extraordinary as to take it out of the heartland. Moreover, departures based on diminished capacity are further restricted by § 5K2.13. A § 5K2.13 departure is not permitted when the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants. U.S. v. Smith, 289 F.3d 696 (11th Cir. 2002).

11th Circuit says court could not depart below minimum ACCA sentence under lesser harms theory. (730) Defendant argued that the district court erred in refusing to depart under § 5K2.11 based on a lesser harms theory. Defendant did not argue that the district court misconstrued its authority to depart; he claimed only that the court erred in not departing. Accordingly, the Eleventh Circuit found he could not appeal the court’s refusal to depart. Moreover, the statutes under which defendant was convicted and sentenced provided for a mandatory minimum sentence of 15 years. See 18 U.S.C. §§ 922(g)(1) and 924(e)(1). A court may only depart beneath the statutory minimum in limited circumstances. Defendant provided no authority for such a departure. U.S. v. Reynolds, 215 F.3d 1210 (11th Cir. 2000).

11th Circuit rules “impulse control disorder” did not justify downward departure. (730) Defendant pled guilty to transporting child pornography through a computer service. Although he was not interested in child pornography, he used the pictures of children to trade for the kinds of pornography in which he had an interest. A doctor testified that defendant had an impulse control disorder, as well as a personality disorder and a sexual identity disorder. The district court departed downward under § 5K2.13, finding that defendant’s impulse control disorder constituted a diminished mental capacity. The Eleventh Circuit reversed, holding that defendant’s impulse control disorder did not take him out of the heartland and did not contribute to the offense. Many offenders commit crimes because they have poor impulse control. An impulse control disorder is not so atypical or unusual that it separated defendant from other defendants. Moreover, the disorder was not sufficiently linked to the offense. At most, the impulse disorder was related to his viewing of adult pornography and acting out sexually with adults. The crime was no more related to his disorder than if he had robbed someone in order to use the proceeds to purchase adult pornography. U.S. v. Miller, 146 F.3d 1281 (11th Cir. 1998).

11th Circuit rejects downward departure for “innocent possession” of firearm. (730) Defendant, a felon, pawned his father’s lawfully owned gun. He was convicted of being a felon in possession of a firearm based solely on the minimal time it took for him to carry the weapon from his family home to a neighborhood pawn shop. Defendant did not use or intend to use the gun for any unlawful purpose. The Eleventh Circuit held that the district court was without authority to depart downward based on defendant’s “innocent possession” of the firearm. The underlying reason he possessed the firearm was for an economic purpose—to assist him in paying his bills. Section 5K2.12 states that personal financial difficulties and economic pressures do not warrant a decrease in sentence. When a convicted felon who is debt uses a relative’s firearm as collateral for a loan, that firearm possession is related directly to “personal financial difficulties” and clearly is based on the type of “economic” motivation addressed in § 5K2.12. U.S. v. Bristow, 110 F.3d 754 (11th Cir. 1997).

11th Circuit upholds departure for exporting endangered gorillas for breeding. (730) Defendant was convicted of attempting to illegally export two endangered gorillas from the United States to Mexico. The district court departed downward under § 5K2.11 because defendant had intended to export the gorillas for purposes of breeding and exhibition, and his conduct did not “cause or threaten the harm or evil sought to be prevented by the law” under which he was convicted. The Eleventh Circuit affirmed. There was no evidence that defendant intended to harm the gorillas; he was a conservationist who intended to help perpetuate the species. The district court concluded that the Sentencing Commission did not consider the special factors involved in this case under the applicable sentencing guidelines, and that a downward departure was justified. The district court did not abuse its discretion. U.S. v. Bernal, 90 F.3d 465 (11th Cir. 1996).

11th Circuit rejects downward departure even though child pornography victims came to defendant for suggestive photos. (730) Defendant was convicted of various child pornography counts. In one instance, several teenage girls went to defendant to have suggestive photographs made. The district court departed downward based on the “corresponding seaminess” on the victim’s side. The Eleventh Circuit reversed, since § 5K2.10 only allows a victim’s wrongful conduct to warrant a departure where the victim has engaged in an “extended course of provocation and harassment” or has engaged in other “substantial victim misconduct.” The victims here did not provoke or harass defendant into making videotapes of them engaged in sexual acts. Nor could they have provoked or harassed defendant into making a videotape that they did not even know was being made. U.S. v. Hatney, 80 F.3d 458 (11th Cir. 1996).

11th Circuit upholds refusal to depart under § 5K2.0 or § 5K2.13. (730) Defendant pled guilty to possessing a destructive device—a Claymore anti-personnel mine. He challenged the district court’s failure to depart downward under either § 5K2.0 or § 5K2.13 based upon his post-traumatic stress disorder and other mitigating circumstances. The Eleventh Circuit held that defendant did not qualify for a departure under § 5K2.13 and that it could not review the failure to depart under § 5K2.0. Defendant’s evidence showed how his diminished capacity might explain his dealings with other individuals which led to the discovery of the mine in his home. However, the evidence did not establish that the disorder caused defendant to possess the mine, which would be required under § 5K2.13. The court’s refusal to depart under § 5K2.0 was not reviewable. The district court considered all of defendant’s evidence of mitigating factors, from his military service to his psychological problems. It determined, within its discretion, that none of those factors constituted atypical grounds which could serve as the basis for a departure. U.S. v. Holden, 61 F.3d 858 (11th Cir. 1995).

11th Circuit rejects § 5K2.11 departure for defendant attempting to smuggle arms to resistance in Cuba. (730) The Coast Guard found ammunition and weapons on a boat in Bahamian waters about 200 miles from Miami and 50 miles from Cuba. Defendant admitted that the weapons were loaded in Florida and that he was attempting to smuggle them into Cuba to aid the resistance efforts against Castro. Defendant pled guilty to knowing possession of unregistered firearms. The Eleventh Circuit reversed a downward departure under § 5K2.11. A departure was not warranted under the second prong of § 5K2.11, since the gun statute was intended to reach the harms connected with defendant’s conduct. Congress was concerned about the role of dangerous weapons in situations where political passions have “run wild.” Defendant did not fall under the first prong of § 5K2.11 as someone who commits a crime to avoid a greater harm. The § 5K2.11 departure does not apply to a defendant with a personal belief that the criminal action is furthering a greater political goal. Society has a significant interest in deterring “one-man state departments.” Senior Judge Fay dissented based on the “bizarre nature” of our country’s policies relative to Cuba. U.S. v. Rojas, 47 F.3d 1078 (11th Cir. 1995).

11th Circuit rejects departure based on diminished mental capacity because kidnapping is a crime of violence. (730) Defendant was convicted of kidnapping a six-month old baby. The 11th Circuit rejected a downward departure under § 5K2.13 based on a diminished mental capacity, since kidnapping is a violent crime. Section 5K2.13 can only apply if the defendant committed a non-violent offense. The district court apparently believed that defendant was a non-violent person who probably believed he was protecting the baby. However, the district court erroneously focused on the defendant, rather than the crime. A defendant’s mental and emotional condition cannot be considered as a mitigating factor when the offense of conviction is a violent crime. U.S. v. Salemi, 26 F.3d 1084 (11th Cir. 1994).

11th Circuit rejects greater harm departure where no evidence that kidnapping was to protect victim. (730) Defendant and his wife kidnapped a six-month old baby. The district court departed downward in part under § 5K2.11, which permits a departure where the defendant commits a crime to avoid a perceived greater harm. The district court suggested that the baby may have been in an abusive environment. The 11th Circuit reversed, since there was no evidence that defendant kidnapped the baby to protect her from an unsafe environment. Defendant knew his wife was bringing a baby to their home. Shortly after her arrival, defendant lied to the FBI to help hide the baby. Defendant knew the baby had been kidnapped and that police were seeking his wife. Nevertheless, he quit his job, fled from his home city, and helped keep the baby hidden from authorities. U.S. v. Salemi, 26 F.3d 1084 (11th Cir. 1994).

11th Circuit holds crime of violence and non-violent offense are mutually exclusive. (730) Section 5K2.13 authorizes a downward departure where a defendant commits a “non-violent offense” while suffering from a significantly reduced mental capacity. In U.S. v. Russell, 917 F.2d 512 (11th Cir. 1990), the 11th Circuit held that the terms “non-violent offense” and “crime of violence” under § 4B1.2 were mutually exclusive. However, a different 11th Circuit panel implicitly disagreed with this conclusion in U.S. v. Philibert, 947 F.2d 1467 (11th Cir. 1991) when it concluded that a defendant’s threatening phone call was a non-violent crime. Here, the 11th Circuit found there was no way to reconcile the two opinions. In such a case, the earliest panel opinion binds the circuit until the matter is resolved en banc. Accordingly, Russell was controlling authority. Thus, since defendant’s interstate travel to carry on extortion was a crime of violence, he was not eligible for a downward departure under § 5K2.13. U.S. v. Dailey, 24 F.3d 1323 (11th Cir. 1994).

11th Circuit says extortion victim who defrauded defendant provoked offense. (730) Defendant was convicted of interstate travel with intent to carry on the unlawful activity of extortion. During a recorded phone call, defendant told the victim that he would “make sure you never walk again” if the victim did not repay money he owed defendant. The 11th Circuit agreed that the victim’s wrongful conduct contributed significantly to provoking defendant’s actions under § 5K2.10. The victim had defrauded defendant out of tens of thousands of dollars. Defendant only threatened physical harm after he and his family came under financial distress. U.S. v. Dailey, 24 F.3d 1323 (11th Cir. 1994).

11th Circuit rejects downward departure for lack of mental capacity to provide substantial assistance. (730) The district court departed downward, finding defendant “did his best” to provide assistance, and that if his mental capacity were greater, he would helped the government catch “the next guy.” The 11th Circuit reversed, holding that § 5K2.13 does not authorize a departure because a defendant does not have the mental capacity to render substantial assistance to the government. This also was not grounds for a departure under § 5K2.0. Finally, defendant did not qualify for a substantial assistance departure because the government did not so move. U.S. v. Munoz-Realpe, 21 F.3d 375 (11th Cir. 1994).

11th Circuit reverses downward departure based on past abuse and mental condition. (730) Defendant was convicted of armed robbery and carrying a firearm during a felony. The district court departed downward based on defendant’s mental state, which it found was caused by past abuse. The 11th Circuit reversed, holding that the Sentencing Commission adequately considered a defendant’s mental condition in formulating the guidelines. Section 5H1.3 provides that mental and emotional conditions are not ordinarily relevant in determining whether a departure is appropriate, except as provided in Chapter Five. Section 5K2.13 is the only provision even marginally relevant to the instant case. It authorizes downward departures if the defendant committed a non-violent offense while suffering from significantly reduced mental capacity. Section 5K2.13 does not apply since armed robbery is not a “non-violent offense.” U.S. v. Braxton, 19 F.3d 1385 (11th Cir. 1994).

11th Circuit holds it lacked jurisdiction to review refusal to make further downward departure. (730) The district court departed downward under § 5K1.1 for substantial assistance, but refused to further depart under § 5K2.13 for diminished mental capacity. The 11th Circuit found that it lacked jurisdiction to review the refusal to depart further, since the district court was aware of its authority to depart under § 5K2.13. The court made a substantive analysis of defendant’s allegations regarding his mental impairment, and then refused to depart because it found that the impairment did not contribute to the commission of the offense. The court obviously understood the scope of its authority to depart downward, but, found that the requisite elements that would permit downward departure were not present. U.S. v. Patterson, 15 F.3d 169 (11th Cir. 1994).

11th Circuit remands where district court incorrectly believed it lacked discretion to depart downward for atypical conduct. (730) Defendant argued that his possession of a sawed-off shotgun fell outside the heartland of cases Congress sought to address when it outlawed their possession, and thus a downward departure was warranted under section 5K2.11. Section 5K2.11 authorizes a departure for conduct that does not cause or threaten the harm of evil sought to be prevented by the law proscribing the offense at issue. The 11th Circuit ruled that the district court had the authority under section 5K2.11 to depart if it believed that defendant’s case was truly atypical or his conduct threatened lesser harms. Because the court incorrectly believed it lacked authority to depart, the case was remanded. U.S. v. Hadaway, 998 F.2d 917 (11th Cir. 1993).

11th Circuit holds district court may depart downward for severe mental illness. (730) Defendant was convicted of making a threatening phone call to his former supervisor. The 11th Circuit ruled that the district court incorrectly determined that it lacked authority to depart downward based on defendant’s diminished capacity under guideline section 5K2.13. Government physicians concluded that defendant was suffering from severe mental illness, including paranoid delusions, at the time of the offense. Although a departure is only available if the defendant committed a non-violent crime, defendant’s telephone call was a non-violent crime. U.S. v. Philibert, 947 F.2d 1467 (11th Cir. 1991), implied overruling recognized by U.S. v. Bonner, 85 F.3d 522 (11th Cir. 1996).

11th Circuit rules guidelines do not conflict with statute prohibiting limitations on sentencing information. (730) Defendant, who committed armed bank robbery, requested a downward departure based on his mental condition, even though guideline section 5K2.13 authorizes a downward departure for diminished capacity only for non-violent offenses. Defendant contended that the guidelines’ limitation conflicted with 18 U.S.C. section 3661, which prohibits any limitation on the information which a sentencing court may consider. The 11th Circuit interpreted section 3661 as only prohibiting limitations on information that had not already been considered by the Commission in formulating the guidelines. Limitations can be placed on the district court’s consideration of information which has already been considered by the Commission, because technically the district court considers this information by applying the guidelines. U.S. v. Fairman, 947 F.2d 1479 (11th Cir. 1991).

11th Circuit reverses downward departure based on dependent personality disorder. (730) Defendant was persuaded by his co-defendant to rob a bank at gunpoint. A psychologist diagnosed defendant as having a “dependent personality disorder,” which could cause him to do unpleasant things to win approval. The 11th Circuit rejected this as a grounds for a downward departure. A defendant’s emotional or mental condition is not ordinarily relevant in determining whether a departure is authorized. Defendant was not entitled to a downward departure based on his diminished capacity, since this is only available to one who commits a non-violent crime. Armed robbery is a crime of violence regardless of whether defendant’s gun was loaded or fired. Defendant was also not entitled to a departure based on coercion or duress, since there was no threat of injury or damage to property. Defendant introduced no evidence that his co-defendant “engaged in anything more substantial than run-of-the-mill persuasion.” U.S. v. Russell, 917 F.2d 512 (11th Cir. 1990).

11th Circuit rules that upward departure for post-plea offense must be based on Criminal History guideline. (730) While on bail pending sentencing for bribery of an immigration official, defendant bribed another official. He was also arrested for being a felon in possession of a firearm. The sentencing court made an unguided departure after concluding the guidelines did not adequately reflect the defendants’ post-plea criminal conduct. The 11th Circuit reversed and remanded for resentencing. “We hold that guideline § 4A1.3 is controlling where . . . a departure involves post-plea offenses.” On remand, district court was instructed to upwardly adjust defendants’ criminal history category instead of making an unguided departure. U.S. v. Fayette, 895 F.2d 1375 (11th Cir. 1990).

D.C. Circuit rejects ineffective assistance claim where court previously rejected similar argument. (730) Defendant argued that his attorney was ineffective for failing to seek a “lesser harms” downward departure under § 5K2.11. He claimed that counsel could have presented evidence to support his claim that he suffered from excruciating pain and sold drugs to support an addiction to heroin, which developed after he was treated extensively with opiates as a result of severe burns. The district court expressly acknowledged the possibility that defendant’s pain drove him to addiction, but nonetheless found that his long history of drug dealing outweighed that mitigating factor. Given this, the D.C. Circuit rejected the ineffective assistance claim. Defendant failed to show a reasonable probability that the district court, having rejected the predicate of his lesser harms argument, would have departed had counsel formally invoked § 5K2.11. U.S. v. Goodwin, 594 F.3d 1 (D.C. Cir. 2010).

D.C. Circuit says innocent reason for carrying firearm did not entitle defendant to lesser harms departure. (730) Defendant, was arrested by FBI agents for being a felon in possession of a firearm after he was observed leaving a car that had been reported stolen. Defendant was a chaplain for the local police department, and contended that the night before, he had delivered an invocation at an annual memorial service for law enforcement, and then participated in a “ridealong” with a police officer, eventually accompanying that officer to a 24-hour shooting range in Maryland. In the morning, he drove directly to work from the shooting range. He claimed that if it had not been for his arrest, he would have secured the gun upon his arrival at the ATF office where he was employed as a federal contractor. The D.C. Circuit rejected a downward departure under § 5K2.11 for lesser harms and under § 5K2.0 because he possessed the gun for an innocent sporting purpose. The felon in possession statute is not aimed solely at felons who possess weapons with a criminal purpose. While some courts have suggested that § 922(g) is not aimed at the innocent and transitory possession of a weapon, defendant’s possession was not transitory. Moreover, if possession without an unlawful purpose is outside the heartland of § 922(g), there would be nothing left of that heartland. Finally, defendant was not entitled to a reduction under § 2K2.1(b)(2) for possessing a firearm “solely for lawful sporting purposes or collection.” Even if defendant possessed the gun at a shooting range, he crossed state lines with the weapon hours after its purported sporting use. U.S. v. Riley,376 F.3d 1160 (D.C. Cir. 2004).

D.C. Circuit holds that defendant’s depression did not warrant diminished capacity departure. (730) Section 5K2.13 permits a downward departure if the defendant (1) has committed a non-violent offense, (2) while suffering from a significantly reduced mental capacity, (3) that was not caused by the voluntary use of drugs or other intoxicants, and (4) the mental incapacity contributed to the commission of the offense, and (5) defendant’s criminal record does not indicate a need for imprisonment to protect public safety. Defendant requested a § 5K2.13 departure, contending that his depression contributed to his participation in the drug conspiracy. At sentencing, a therapist who had previously treated defendant testified that defendant suffered from depression in 1995. The therapist did not see defendant again until April 1998, after his arrest, at which time he found that defendant was still suffering from depression. The therapist testified that “in some cases, if a depression is severe enough, … it can impair one’s capacity.” He conceded that he had “no idea” what defendant’s mental condition was in January of 1998. He further testified that defendant’s drug use was voluntary, and that his use of drugs was “a contributing factor to his reduced mental state.” The D.C. Circuit upheld the district court’s refusal to depart under § 5K2.13 based on defendant’s depression. The district court understood that it had discretion to depart under § 5K2.13 if the five criteria were met, and found that the therapist’s testimony did not establish that defendant’s mental capacity was significantly reduced, or that it was significantly reduced at the relevant time. U.S. v. Greenfield, 244 F.3d 158 (D.C. Cir. 2001).

D.C. Circuit won’t disturb refusal to depart where court found defendant’s testimony incredible. (730) Defendant requested a downward departure under §§ 5K2.12 and 5K2.13 on grounds of diminished mental capacity, duress and coercion. At sentencing, defendant testified that her co-defendant’s physical, sexual and emotional abuse compelled her to participate in his fraud and money laundering scheme, or weakened her ability to resist such participation. Observing that defendant was “very articulate, sophisticated, [and] very intelligent,” the district court found “absolutely incredible” and “preposterous” defendant’s testimony that she simply did whatever her co-defendant told her to do and that she knew nothing about the source or amount of money going into and out of her bank account during the period of the charged conduct. Struck by defendant’s “total lack of candor,” the court rejected defendant’s claim that the abuse had debilitated her to such an extent that she was unable to control her own actions. Deferring to the district court’s credibility determination, the D.C. Circuit saw no grounds for disturbing the district court’s decision to deny defendant a downward departure. U.S. v. Rouse, 168 F.3d 1371 (D.C. Cir. 1999).

D.C. Circuit says failure to sua sponte depart for diminished capacity was not plain error. (730) A jury convicted defendant of threatening to assault the Clerk and the Chief Justice of the Supreme Court. She argued for the first time on appeal that the district court erred in failing to depart downward under § 5K2.13 for her reduced mental capacity. The D.C. Circuit held that the district court’s failure to sua sponte depart under § 5K2.13 was not plain error. There was no indication that the court misunderstood its authority to depart. U.S. v. Klat, 156 F.3d 1258 (D.C. Cir. 1998).

D.C. Circuit finds no causal relationship between diminished mental capacity and offense. (730) Defendant argued that the district court erred by failing to reduce his sentence under § 5K2.13 based on his diminished mental capacity. The D.C. Circuit held that the district court properly understood the necessary causal relationship between the diminished capacity and the offense and did not err in denying defendant a downward departure. The court properly found no direct connection between defendant’s reduced mental capacity and the offense. The court noted that defendant failed to show a real nexus or connection between his mental capacity and his crime. Although a defendant is not required to prove that he would not have committed his crime “but-for” the diminished capacity, a bare showing of reduced mental capacity, without more, is insufficient to warrant a departure. The district court’s finding was not clearly erroneous given the unsophisticated nature of the drug crime involved, defendant’s voluntary drug use, and his criminal history. U.S. v. Leandre, 132 F.3d 796 (D.C. Cir. 1998).

D.C. Circuit holds court considered improper factors under § 5K2.13 in assessing need for incarceration. (730) Defendant pled guilty being a felon in possession of a firearm. The district court departed under § 5K2.13 (diminished capacity). In concluding that incarceration was not necessary to protect the public, the district court found defendant’s mental condition was treatable, he would not be released from prison until his middle 50’s, his record was based on an erroneous criminal history score, and he had never injured law enforcement officers. The D.C. Circuit reversed, holding that the district court considered impermissible factors under § 5K2.13. A defendant’s criminal history is the only explicit criterion for determining whether defendant’s imprisonment is necessary to protect the public. The theoretical treatability of defendant’s condition was of no relevance to his criminal history. Defendant’s age on release was only relevant to the extent it indicated a diminished inclination to commit such crimes. However, defendant’s criminal history involved the use and abuse of firearms, which did not require youthful vigor. The alleged sentencing mistake was also not appropriate to consider under § 5K2.13. The remedy for an error in a different court lies with that court or the appropriate appellate court. Although defendant did not seriously injure or kill anyone, his pattern of violent resistance to arrest, hostage-taking and armed threats against police officers showed that he should be incarcerated to protect the public. U.S. v. Atkins, 116 F.3d 1566 (D.C. Cir. 1997).

D.C. Circuit finds no showing that psychological problems diminished ability to reason. (730) Defendant challenged the denial of a diminished capacity departure under § 5K2.13. She contended that diminished capacity refers not only to intellectual capacity but to psychological or behavioral disorders. The D.C. Circuit held that defendant was not entitled to the § 5K2.13 departure because she failed to establish that her psychological problems diminished her ability to reason. Psychological or behavioral disorders may only serve as a basis for § 5K2.13 departure if there is an accompanying inability to reason. The judge’s statement that defendant had no “intellectual capacity problems” meant only that defendant failed to establish that her psychological problems diminished her ability to reason. The record supported this determination. Defendant produced only a report from a psychologist opining that she suffered from “extreme introversion, . . . an inability to interact or connect with people and . . . pronounced distrust of others.” U.S. v. Edwards, 98 F.3d 1364 (D.C. Cir. 1996).

D.C. Circuit finds no causal connection between spousal abuse and theft from employer. (730) Over a five year period, defendant stole half a million dollars from the charity for which she worked. She sought a downward departure under §§ 5K2.12 and 5K2.13, claiming her husband abused her. The district court refused to depart, finding no causal connection between the abuse and defendant’s crime. The D.C. Circuit held that the finding of no connection was not clearly erroneous. The record was clear that defendant was severely and repeatedly beaten by her former husband. The record was less clear about the relationship between the abuse and defendant’s crime. Although three experts submitted letters stating that fear and anxiety led to defendant’s offense, the district court found that the offense was a calculated effort to steal requiring extensive planning. Moreover, defendant’s mental capacity did not prevent her from exercising sound financial judgment over her own affairs. While she was stealing money, she sold a condo, reinvested the proceeds in a house, and paid off the loan on her car. U.S. v. Sammoury, 74 F.3d 1341 (D.C. Cir. 1996).

D.C. Circuit says court understood ability to depart under § 5K2.13. (730) A psychologist concluded that defendant had an I.Q. of 67 and thus was mildly retarded. The district court refused to depart under § 5K2.13. The D.C. Circuit held that the court’s refusal to depart was beyond review since the court was aware of its authority to depart for diminished mental capacity, but simply chose not to in light of its own assessment of defendant and its experience with others with reduced mental capacities. U.S. v. White, 71 F.3d 920 (D.C. Cir. 1995).

D.C. Circuit says court properly required direct connection between reduced mental capacity and offense. (730) Defendant requested a downward departure under § 5K2.13 alleging he suffered a significantly reduced mental capacity from post traumatic stress disorder resulting from the murder of his brother 20 years earlier. The district court rejected the request. The D.C. Circuit held that the district court properly required a “direct connection” between the disorder and the offense. The requirement was no more than a restatement of the express guideline language that reduced mental capacity must have “contributed to the commission of the offense.” U.S. v. Johnson, 49 F.3d 766 (D.C. Cir. 1995).

D.C. Circuit holds findings inadequate to support downward departure for diminished capacity. (730) The D.C. Circuit found that the district court failed to make adequate factual findings to support its downward departure based on defendant’s diminished mental capacity, as required by 18 U.S.C. section 3553(c). The district court failed to adequately explore the extent to which defendant’s mental capacity contributed to the offense. In addition, although one doctor testified that defendant’s dependent personality was “strikingly beyond normal,” it was not clear whether he was comparing defendant to the population at large or to other defendants who have committed similar offense. The district court did not explore whether the symptoms of defendant’s dependent personality disorder were “substantially in excess” of those “ordinarily involved” in the offense for which she was convicted. U.S. v. Perkins, 963 F.2d 1523 (D.C. Cir. 1992).

D.C. Circuit rules that court failed to adequately explain extent of departure. (730) At sentencing, the district court stated that if the government’s position were correct, defendant would have a guideline range of 97 to 121 months. However, it then noted that it would have “no problem” with reducing defendant’s sentence based on her minimal role, which would bring the guideline range down to 63 to 78 months. The court then departed downward based on defendant’s diminished capacity to a sentence of 15 months. The D.C. Circuit ruled that the district court failed to give specific reasons explaining the extent of the departure. From the court’s comments, it was impossible to determine whether the departure was seven years or three years. The court offered no clear explanation for the departure it chose. The structural principles of the guidelines- -uniformity and proportionality–require district courts to justify the magnitude of their departures for “diminished capacity.” Section 5K2.12 itself provides a straightforward standard for evaluating diminished capacity departures: “a lower standard may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense.” U.S. v. Perkins, 963 F.2d 1523 (D.C. Cir. 1992).

D.C. Circuit finds downward departure not authorized because diminished capacity was the result of substance abuse. (730) Defendant contended that the district court improperly refused to consider a departure based upon defendant’s diminished capacity because the judge mistakenly believed that Congress had foreclosed consideration of diminished capacity as a mitigating factor when it eliminated it as an affirmative defense. The D.C. Circuit rejected this argument, noting that defendant’s psychologist’s letter expressly stated that defendant did not meet the guidelines criterion for reduced mental capacity and that the cause of any reduced capacity was defendant’s substance abuse. U.S. v. Butler, 924 F.2d 1124 (D.C. Cir. 1991).

D.C. Circuit holds “coercion” does not require downward departure. (730) Defendant argued that the district court improperly refused to depart downward for coercion under guideline § 5K2.12. Although defendant claimed to have presented evidence that he was the victim of physical injuries, property damage and threats of continued harm if he did not participate in the drug distribution ring, the D.C. Circuit refused to consider the claim. The guidelines do not require a downward departure in the case of coercion, and the district court’s decision not to depart is unreviewable. U.S. v. Jamison, 934 F.2d 371 (D.C. Cir. 1991).

D.C. District Court departs downward for diminished capacity. (730) Although defendant had an offense level of 22, the D.C. District Court departed downward to level 20 because defendant suffered from a diminished mental capacity. In his presentence report, a clinical social worker reported that defendant had been suffering from depression, self-destructive behavior and possible suicidal ideation. The social worker also concluded that defendant used drugs as a response to his existing emotional problems. U.S. v. Wilkerson, 773 F.Supp. 479 (D.D.C. 1991).

D.C. District Court departs downward for reduced mental capacity. (730) Defendant pled guilty to distributing crack cocaine and being a felon in possession of a weapon. Because of defendant’s long history of mental illness, the court departed downward from the guidelines pursuant to § 5K2.13 (diminished capacity). The court ruled that neither of defendant’s offenses were crimes of violence within the meaning of § 4B1.2(1) and that departure was appropriate under all the circumstances. U.S. v. Speight, 726 F.Supp. 861 (D.D.C. 1989).

Virginia District Court determines that downward departure cannot be based upon victim’s conduct. (730) Defendant was convicted of aggravated sexual assault, and moved for a downward departure based on the contention that “victim’s wrongful conduct contributed signifycantly to provoking the offense behavior.” Defendant alleged that he and the victim smoked crack cocaine together the night of the rape and that she was reputed to have, in the past, engaged in sexual relations in exchange for drugs. The Eastern District of Virginia found that none of these circumstances justified a downward departure and did not “significantly contribute[] to provoking” the rape. U.S. v. Saunders, 743 F.Supp. 444 (E.D. Va. 1990).

Commission limits departures for victim’s conduct; coercion and duress. (730) In considering whether a departure is warranted based on the victim’s conduct, the Commission added a factor to the list in § 5K2.10. The court must now consider the “proportionality and reasonableness of the defendant’s response to the victim’s provocation.” Similarly, the Commission added a factor to the departure for coercion and duress in § 5K2.12. The court must now consider the “proportionality of the defendant’s actions to the seriousness of the coercion, blackmail or duress.” Amendment,651, effective October 27, 2003 .

Commission reduces departures for diminished capacity. (730) The Commission limited the availability of departures for diminished capacity under § 5K2.13 by requiring that the significantly reduced mental capacity must have contributed substantially to the commission of the offense. In addition, the extent of the departure must reflect the extent to which the reduced mental capacity contributed to the commission of the offense. Amendment,651, effective October 27, 2003 .

Article discusses departures for diminished capacity, aberrant behavior and post-offense rehabilitation. (730) Defense attorney Alan Ellis argues that diminished capacity and aberrant behavior are two grounds for downward departure that humanize a defendant, make him more sympathetic and help to explain why he did what he did. Extraordinary post-offense rehabilitation is a factor that can additionally provide a persuasive indicator that the criminal conduct is unlikely to re-occur. He summarizes the guideline provisions and the case law in this developing area. Alan Ellis, Answering the “Why” Question: The Powerful Departure Grounds of Diminished Capacity, Aberrant Behavior and Post-Offense Rehabilitation, 11 Fed. Sent. Rptr. 322 (May/June 1999).

Commission amends diminished capacity departure guideline. (730) There is a conflict in the circuits over whether the diminished capacity departure in guideline § 5K2.13 is precluded if the defendant committed a “crime of violence” as that term is defined in the career offender guideline. See U.S. v. Askari, 140 F.3d 536 (3d Cir. 1998) (en banc). In its 1998 amendments, the Sentencing Commission adopted a new policy statement allowing a diminished capacity departure except when (1) the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants; (2) the facts and circumstances of the offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence; or (3) the defendant’s criminal history indicates a need to incarcerate the defendant to protect the public. The Commission also adopted the Third Circuit’s ruling in U.S. v. McBroom, 124 F.3d 533 (3d Cir. 1997) that “significantly reduced mental capacity” includes both cognitive impairments (i.e. an inability to understand the wrongfulness of the conduct or to exercise the power of reason) and volitional impairments (i.e. an inability to control behavior that the person knows is wrongful). Amendment 583, effective November 1, 1998.

Article encourages expanding diminished capacity departures after Koon. (730) In the first of series of articles in the ABA’s Criminal Justice magazine, defense attorney Alan Ellis says that “[s]ince Koon, nowhere have the appellate courts been more deferential to the experiential wisdom of sentencing judges than in the area of downward departures for diminished capacity.” He points out that before Koon, most courts focused their inquiry on “an individual’s inability to reason or to absorb information in the usual way.” But after Koon, the Third Circuit in U.S. v. McBroom, 124 F.3d 533 (3d Cir. 1996) held that guideline section 5K2.13 contains a volitional, as well as a cognitive component. That is, a diminished capacity departure may apply to a defendant who is unable to control his conduct even though his cognitive functions are unimpaired. The author says this is in accord with the Ninth Circuit’s view in U.S. v. Cantu, 12 F.3d 1506 (9th Cir. 1993). He also finds favorable language in Judge Posner’s opinion in U.S. v. Pullen, 88 F.3d 368, 370-71 (7th Cir. 1996) and Judge Easterbrook’s dissent in U.S. v. Poff, 926 F.2d 588, 595 (7th Cir. 1991) (en banc). Alan Ellis, Let Judges Be Judges! Downward Departures After Koon, 1998 ABA Criminal Justice 49.

Article advocates downward departures for compulsive gamblers. (730) Lawrence S. Lustberg surveys the cases that have considered whether compulsive gambling constitutes a grounds for departure. While published decisions have rejected a departure, some unpublished district court opinions permit such departures. The author argues that such departures are appropriate under section 5K2.13 (diminished capacity), and that they are sometimes also appropriate under section 5K2.12 (duress) where the gambler has been threatened by a bookie demanding payment. The author also argues that departures are warranted by analogy to cases that have permitted departures for conduct tending to establish a defense for crime but falling short. Lawrence S. Lustberg, Sentencing the Sick — Compulsive Gambling as the Basis for a Downward Departure under the Federal Sentencing Guidelines, 2 Seton Hall J. Sport L. 51-76 (1992).

Query	Gets the documents with
stock market	‘stock’ or ‘market’ or both
“stock market”	the phrase ‘stock market’
+stock +market	‘stock’ and ‘market’
+stock -market	‘stock’ but not ‘market’
+president -“United States”	‘president’ but not ‘United States’
(stock OR market) AND NOT president	‘stock’ or ‘market’, and without ‘president’