United States v. Miller , 114 F. App'x 375 ( 2004 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    NOV 8 2004
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                            No. 04-4047
    (D. Ct. No. 02-CR-502-DKW)
    SURMAN MILLER,                                          (D. Utah)
    Defendant - Appellant.
    ORDER AND JUDGMENT *
    Before TACHA, Chief Circuit Judge, BRISCOE, and HARTZ, Circuit Judges.
    After examining the briefs and the appellate record, this panel has
    determined unanimously that oral argument would not be of material assistance in
    the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
    34.1(G). The case is therefore submitted without oral argument.
    Appellant Surman Miller pleaded guilty to one count of sexual abuse of a
    minor “within the Indian country” in violation of 
    18 U.S.C. §§ 2243
    (a) and
    1153(a). On appeal, Mr. Miller challenges the District Court’s finding that it was
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. This court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    without authority to depart downward for diminished capacity pursuant to U.S.
    Sentencing Guidelines Manual § 5K2.0 (2003) (“U.S.S.G.”) when a downward
    departure is not permitted under U.S.S.G. § 5K2.13. We take jurisdiction under
    
    28 U.S.C. § 1291
     and 
    18 U.S.C. § 3742
    (a)(2) and AFFIRM.
    I. BACKGROUND
    Mr. Miller entered a guilty plea on August 21, 2002 in a one-count
    indictment for sexual abuse of a minor within Indian country. Mr. Miller’s prior
    convictions placed him in criminal history category VI, which has a sentencing
    range of 188 to 235 months. He subsequently filed a motion for downward
    departure under U.S.S.G. § 5K2.0 on the grounds that his mental condition
    reduced his culpability for the offense and was present to an exceptional degree
    not contemplated by the diminished capacity guideline found at U.S.S.G. §
    5K2.13. On March 1, 2004, the District Court denied Mr. Miller’s motion to
    depart downward and sentenced him to 188 months in prison followed by a 36-
    month term of supervised release. Mr. Miller timely appealed the District Court’s
    finding that it had no authority to depart downward under § 5K2.0.
    II. DISCUSSION
    A.    Jurisdiction
    This Court has jurisdiction to hear Mr. Miller’s appeal. Generally, “a
    district court’s refusal to exercise its discretion and depart downward from the
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    sentencing guidelines is not appealable.”    United States v. Sheehan , 
    371 F.3d 1213
    , 1215-16 (10th Cir. 2004). However, we have jurisdiction in this case
    because the District Court unambiguously stated that it lacked discretion to depart
    downward, and a District Court’s statement that it lacks the authority to depart
    downward is sufficient to permit us to review its decision.     See id . (recognizing
    that this Court “may exercise jurisdiction . . . in the very rare circumstance that
    the district court states that it does not have any authority to depart . . . for the
    entire class of circumstances proffered by the defendant”).
    B.     Standard of Review
    The District Court’s interpretation of the Sentencing Guidelines is reviewed
    de novo. Sheehan , 
    371 F.3d at 1216
    . However, de novo review is only
    appropriate if the issue was properly raised below.     United States v. Ruiz-Gea ,
    
    340 F.3d 1181
    , 1185 (10th Cir. 2003). Failure to raise the issue below results in
    review for plain error.   
    Id.
    C.     Downward Departures for “Diminished Capacity”
    Though mental and emotional conditions are not ordinarily relevant in
    determining whether a downward departure is warranted,         see U.S.S.G. § 5H1.3,
    Chapter 5, Part K, Subpart 2 of the Guidelines provide for certain exceptions,          see
    id. The relevant portions of the Guideline provisions at issue in this appeal
    provide the following: Section 5K2.13 establishes a “Diminished Capacity”
    -3-
    departure, which allows a downward departure for defendants “suffering from a
    significantly reduced mental capacity” that “contributed substantially to the
    commission of the offense.” U.S.S.G. § 5K2.13. Section 5K2.0 states that mental
    and emotional conditions of the defendant not otherwise accounted for “may be
    relevant to [sentencing] only if such offender characteristic or other circumstance
    is present to an exceptional degree.” U.S.S.G. § 5K2.0.
    In Mr. Miller’s motion for downward departure and at the sentencing
    hearing, he argued that § 5K2.13 applies to cases where a “significantly reduced
    mental capacity” contributed to the commission of the offense, while § 5K2.0
    applied to all cases where a reduced mental capacity is “present to an exceptional
    degree”–including cases where the condition contributed to the commission of the
    offense. Mr. Miller argued that his reduced mental capacity, which contributed to
    the commission of the offense, is “not merely ‘significant.’ It is statistically
    ‘exceptional’” and therefore he is eligible for a downward departure under §
    5K2.0.
    The District Court rejected Mr. Miller’s argument. Without Tenth Circuit
    authority on point, it found that § 5K2.13 and § 5K2.0 are mutually exclusive
    provisions – that is, § 5K2.13 governs all cases in which reduced mental capacity,
    no matter how severe, contributed to commission of the offense, while § 5K2.0
    applies only when the defendant’s mental state is exceptional but it did not
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    contribute to the commission of the offense. Therefore, because Mr. Miller
    argued that his exceptional condition contributed to the commission of his
    offense, the District Court found that it had no authority to grant a departure
    under § 5K2.0.   1
    Two months after Mr. Miller’s sentencing hearing, we addressed this issue
    in Sheehan . We held that “departures pursuant to U.S.S.G. § 5K2.13 are a subset
    of departures allowed under § 5H1.3 based on mental and emotional conditions.
    While other departure requests based on mental and emotional conditions may be
    governed by § 5K2.0, diminished capacity claims are governed       solely by §
    5K2.13.” Sheehan, 
    371 F.3d. at 1218
     (emphasis added). We held that a district
    court has “no discretion to depart pursuant to § 5K2.0 based on diminished
    capacity when such a departure was prohibited by the terms of § 5K2.13.”          Id. at
    1218-19. In other words, a defendant claiming that his reduced mental capacity
    contributed to the commission of his offense may not circumvent the limitations
    of § 5K2.13 by invoking § 5K2.0.     Id. at 1217. In this case, therefore, the District
    Court properly rejected Mr. Miller’s motion for downward departure pursuant to §
    5K2.0.
    1
    The District Court also found that a downward departure was not
    warranted under § 5K2.13 because Mr. Miller’s offense involved actual violence
    and his criminal history indicated a need to incarcerate him to protect the public.
    Mr. Miller has not appealed these findings of fact.
    -5-
    Contending with this precedent on appeal, Mr. Miller now argues that the
    District Court misconstrued his argument below. He claims that his argument was
    that his exceptional condition will somehow affect his punishment. Specifically,
    he argues that his reduced mental capacity will cause him to be vulnerable to
    victimization and that he will likely need to be segregated from the general prison
    population. Because this is a proper basis for a downward departure under §
    5K2.0, Mr. Miller argues, the District Court erred in finding that it had no
    discretion to depart from the Guidelines.
    Despite Mr. Miller’s argument to the contrary, he did not raise this
    circumstances-of-punishment issue to the District Court. The record reveals that
    the only ground presented for Mr. Miller’s motion for downward departure was
    the fact that his reduced mental capacity contributed to the commission of the
    offense. In fact, the District Court expressly stated that diminished capacity was
    “the only avenue” for downward departure argued by Mr. Miller. At the
    sentencing hearing, Mr. Miller emphasized how his mental condition reduced his
    culpability and “being able to reason, being able to foresee consequences of your
    conduct, goes to the heart of ethical and moral culpability . . . and is directly
    related to his commission of this offense.” Thus, the record clearly reflects the
    fact that Mr. Miller’s sole argument for downward departure was based on his
    diminished capacity in committing the offense.
    -6-
    Nevertheless, Mr. Miller points to a psychologist’s report that states that
    his mental disorders “increase his vulnerability and the likelihood of
    victimization.” Again, Mr. Miller did not move for downward departure on this
    basis below and the District Court has no duty to infer legal arguments from facts
    in the record. Cf. United States v. Chavez-Marquez     , 
    66 F.3d 259
    , 262 (10th Cir.
    1995) (recognizing that a district court has no duty to “propose legal theories sua
    sponte and rule on them”).
    Because Mr. Miller did not raise his circumstances-of-punishment argument
    below, we review the District Court’s failure to consider a departure on these
    grounds pursuant to § 5K2.0 for plain error.     Ruiz-Gea , 
    340 F.3d at 1185
    .
    Resolution of whether a downward departure is warranted under § 5K2.0 turns on
    factual contentions. A factual dispute concerning the applicability of a particular
    guideline not brought to the attention of the district court does not rise to the
    level of plain error.   United States v. Yarnell , 
    129 F.3d 1127
    , 1137-38 (10th Cir.
    1997). Accordingly, Mr. Miller is not entitled to relief from the District Court’s
    failure to consider a downward departure based on the impact his mental health
    conditions might have on the circumstances of his incarceration.
    III. CONCLUSION
    Finding no plain error, we AFFIRM the District Court’s decision denying
    -7-
    Mr. Miller’s motion for downward departure.
    ENTERED FOR THE COURT,
    Deanell Reece Tacha
    Chief Circuit Judge
    -8-
    

Document Info

Docket Number: 04-4047

Citation Numbers: 114 F. App'x 375

Judges: Tacha, Briscoe, Hartz

Filed Date: 11/8/2004

Precedential Status: Non-Precedential

Modified Date: 10/19/2024