United States v. Schneider ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-30527
Plaintiff-Appellee,
v.  D.C. No.
CR-01-00110-MFM
PAUL H. SCHNEIDER,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Argued and Submitted
November 1, 2004—Portland, Oregon
Filed November 18, 2005
Before: Warren J. Ferguson, Stephen S. Trott, and
Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Trott;
Concurrence by Judge Ferguson
15443
UNITED STATES v. SCHNEIDER 15445
COUNSEL
Stephen R. Sady, Chief Deputy Federal Public Defender,
Portland, Oregon, for the defendant-appellant.
Kathleen R. Bickers, Assistant United States Attorney, Port-
land, Oregon, for the plaintiff-appellee.
OPINION
TROTT, Circuit Judge:
Paul H. Schneider appeals his ten-month prison sentence
entered after his conviction for theft of government money in
violation of 18 U.S.C. § 641 and Social Security fraud in vio-
lation of 42 U.S.C. § 408(a)(4). Schneider contends that (1)
his Sixth Amendment rights were violated because his sen-
tence was enhanced by judge-found facts under the then-
mandatory United States Sentencing Guidelines (“U.S.S.G.”);
(2) the district court erred in denying him a downward depar-
ture for diminished mental capacity under U.S.S.G. § 5K2.13;
and (3) the district court erred in denying him an adjustment
for acceptance of responsibility under U.S.S.G. § 3E1.1.
[1] We remand to the district court for proceedings consis-
tent with United States v. Ameline, 409 F.3d 1073 (9th Cir.
2005) (en banc). The sentencing court adjusted upwards the
guideline range by six levels because the court determined
that the amount of loss exceeded $30,000, but was less than
$70,000. See U.S.S.G. § 2B1.1(b)(1)(d). The jury made no
finding regarding the amount of loss beyond $1,000. Under
Ameline, when, as here, “the record is insufficiently clear to
conduct a complete plain error analysis, a limited remand to
the district court is appropriate for the purpose of ascertaining
whether the sentence imposed would have been materially
different had the district court known that the sentencing
15446 UNITED STATES v. SCHNEIDER
guidelines were advisory.” Id. at 1074. Accordingly, we
remand to the district court with instructions that the court fol-
low the procedures outlined in Ameline. See id. at 1084-85.
[2] Having determined that an Ameline remand is required,
we do not address Schneider’s remaining sentencing chal-
lenges.1
REMANDED.
FERGUSON, Circuit Judge, concurring in the judgment:
A remand in light of United States v. Ameline, 409 F.3d
1073 (9th Cir. 2005) (en banc), is proper but insufficient to
reverse the injustice that occurred at sentencing to a former
United States Marine who suffers from a mental illness that
first surfaced while on duty in the Far East. I concur in the
result but write separately to underscore how the District
Court misapprehended its departure authority and misapplied
U.S.S.G. § 5K2.13, which warrants resentencing.
I.
In order to understand this case, it is necessary to set forth
important facts about Schneider’s mental condition and what
occurred at the resentencing hearing.
From April 1997 to August 2000, Schneider, a Marine
Corps veteran with serious mental disabilities that surfaced
during his overseas tour of duty, was hired as a teleservices
representative in the Auburn, Washington, and later Portland,
1
We respectfully disagree with our able colleague’s analysis of the dis-
trict court’s refusal to depart under § 5K2.13 of the Sentencing Guidelines.
However, we need not formally respond to our colleague’s analysis given
that we all agree that an Ameline remand is necessary.
UNITED STATES v. SCHNEIDER 15447
Oregon, offices of the Social Security Administration (SSA).
During this period, he continued to receive disability benefits
from the SSA although he earned more income per month
than the minimum amount required to constitute “substantial
gainful work” under Title II of the Social Security Act.
Strangely, Schneider worked full time in the same SSA office
that handled his disability case, rendering the government’s
negligence a proximate cause of the very employment it now
claims was unlawful. The government, which apparently did
nothing to determine if Schneider was employable, should not
now have the right to demand that the defendant be impris-
oned.
Upon resentencing in November 2003, Schneider presented
evidence of his mental illness. He submitted a psychiatric
evaluation prepared by Yale-educated psychiatrist Dr. Susan
Fiester, in which she concluded that Schneider “suffers from
a severe lifelong psychiatric disorder which is disabling. He
has demonstrated symptoms of both severe Bipolar Disorder
with both Manic and Depressive Episodes and ongoing symp-
toms of Schizophrenia.”
Dr. Fiester further concluded that Schneider suffers from
ongoing paranoia and delusions, particularly involving the
government. In 1984, for example, Schneider experienced for
the first time an acute mania while on a tour of duty of the
Indian Ocean as a member of the Marine Corps. According to
Dr. Fiester, Schneider’s mania consisted of “not sleep[ing] for
three days, [having] a tremendous surge of energy, [running]
compulsively to the point of exhaustion and [thinking] the
government was secretly using him as a subject for experi-
mentation.” Schneider was controlled with tranquilizers and
then evacuated to Guam where he attempted to escape by
jumping out of a bus window, fearing that the Marines were
driving him through a live fire exercise.
Eventually, Schneider was transported to a hospital in
Washington, D.C., where he spent eight months in a locked
15448 UNITED STATES v. SCHNEIDER
psychiatric unit. He was released to his father after being
treated for another three months in the Veteran’s Administra-
tion Hospital in Arizona. After this acute manic episode,
Schneider applied for Title II disability benefits in 1984.
Almost a decade later, Schneider became acutely manic on
several more occasions requiring hospitalization. He devel-
oped auditory hallucinations, hearing voices primarily when
he turned on the shower. Schneider was hospitalized for his
mental disabilities after a lengthy high-speed chase in which
he was pursued by several police cars and a police helicopter.
Schneider fled the police because he believed he was partici-
pating in a training maneuver for the police department.
In addition to the foregoing manic episodes, Dr. Fiester
reported that Schneider currently believes “that the govern-
ment ha[s] developed machines (regulators) which they ‘use
against people as subterfuge.’ ” He believes that at times the
government sends him “special messages” “as a way of ‘com-
municating to agents,’ ” and that the government at times
“ ‘put[s] [him] to the test’ (e.g., when two government agents
investigating his situation in Portland ‘challenged him’ physi-
cally . . . He ignored them, feeling they were testing him).”
Moreover, Dr. Fiester explained that Schneider’s disorder
is tied to his sense of entitlement relating to the government.
He has a distorted view of reality whereby he believes he is
entitled to work and collect benefits. This view is affected in
part by the fact that Schneider’s father, who performed cryp-
tographic services and was involved in top-secret projects for
the government, received special entitlements from the gov-
ernment for his work.
During the resentencing hearing, the District Judge first
considered whether Schneider qualified for an acceptance-of-
responsibility adjustment under U.S.S.G. § 3E1.1 and then
addressed the submissions regarding a diminished capacity
departure under U.S.S.G. § 5K2.13. The District Judge began
UNITED STATES v. SCHNEIDER 15449
by discussing Schneider’s demeanor and appearance at trial,
stating that in all his years of experience he had only once or
twice “seen such arrogance in a defendant’s position, such
control of the attorney, interrupting her, adding to her . . .
smirking at witnesses, taking copious notes which he then
passed to the attorney to guide her.” He then stated that
Schneider had not expressed any remorse and found the fol-
lowing:
[Schneider] is an intelligent man . . . [who] knew
exactly what he was doing . . . knew exactly what he
was doing throughout the trial . . . knew exactly what
he was doing throughout the commission of the
offense . . . despite the fact that I will recognize that
he has a mental illness, but I do not find that he is
in any way changed his mind about those things and,
therefore, I’m going to deny the acceptance of
responsibility.
As to diminished capacity . . . What I need to find
out is whether there is any connection between a
diminished capacity and the offense committed. I
think whatever diminished capacity he has did not
affect his commission of this crime. I think it was
totally built within him an intent to live off someone
else, including the Government, and not face his own
responsibility. . . .
When I carry over the diminished capacity and then
reconsider, in the light of the acceptance of responsi-
bility, I come to the same conclusion. I appreciate
the report of Dr. Fiester, but I think that Dr. Fiester
might have seen, but I can only surmise here, a per-
sonality which she felt supported her conclusions.
What I see here is a man totally manipulative, totally
understanding, knowing exactly what he is doing.
15450 UNITED STATES v. SCHNEIDER
Therefore, I’m going to stay with my previous sen-
tence.
(emphases added). The Court then resentenced Schneider to
the same sentence originally imposed.
II.
It is correct that we need to remand to the District Court for
it to determine whether Schneider should be resentenced
under the post-Booker advisory Sentencing Guidelines (the
“Guidelines”). See United States v. Booker, 125 S. Ct. 738(2005). I write separately, however, because the District
Court’s refusal to depart under § 5K2.13 rested on two signif-
icant errors. First, that Court misapprehended its departure
authority by improperly limiting its scope of review exclu-
sively to the issue of whether Schneider understood the
wrongfulness of his behavior comprising the offense, without
considering the volitional aspect of § 5K2.13. Second, it mis-
applied § 5K2.13 by conflating the standard for acceptance of
responsibility with that for diminished capacity in finding an
absence of a causal link between Schneider’s unchallenged
mental condition and the commission of the crime in question.
A.
In construing § 5K2.13, the District Court improperly lim-
ited its scope of review to the cognitive prong of the dimin-
ished capacity definition and completely failed to consider its
discretion to depart on the basis of the separate volitional
capacity prong. See U.S.S.G. § 5K2.13, cmt. n.1 (explaining
that “ ‘[s]ignificantly reduced mental capacity’ means the
defendant, although convicted, has a significantly impaired
ability to (A) understand the wrongfulness of the behavior
comprising the offense or to exercise the power of reason; or
(B) control behavior that the defendant knows is wrongful”)
(emphases added). It is clear that “[s]entencing courts must
consider both prongs [of the significantly-reduced-mental-
UNITED STATES v. SCHNEIDER 15451
capacity definition] before making a determination about a
defendant’s ‘reduced mental capacity.’ ” United States v.
McBroom, 124 F.3d 533, 548 (3d Cir. 1997). Section 5K2.13
simply states the commonly understood principle that mental
illness is as often manifested in an inability to control behav-
ior a person realizes is wrongful, as it is manifested in an
inability to grasp the wrongfulness of the behavior.
The sentencing hearing transcript indicates the District
Judge only considered Schneider’s ability to understand, not
control, the wrongfulness of his behavior. In fact, that Court
stated that “it was totally built within [Schneider] an intent to
live off someone else . . . and not face his own responsibility,”
and that he is “a man totally manipulative, totally understand-
ing, knowing exactly what he is doing.” These were the only
statements the District Judge made concerning Schneider’s
mental condition. The record certainly shows no effort exer-
cised by the Court to consider whether Schneider, despite pre-
sumably knowing what he was doing while committing the
offense in question, had the power to control his behavior or
conform it to law.
Since there is a substantial risk that the District Judge erred
in neither recognizing nor considering the volitional prong of
the diminished capacity guideline, he misapplied the now
advisory Guidelines. A district judge must consider a defen-
dant’s ability to control his or her own conduct when deter-
mining that defendant’s eligibility for a downward departure
under § 5K2.13.
B.
The District Court erred not once but twice in considering
whether to depart under § 5K2.13. The Court also erred by
conflating the standard for an acceptance-of-responsibility
adjustment under § 3E1.1 with that for a diminished capacity
departure under § 5K2.13.
15452 UNITED STATES v. SCHNEIDER
Before discussing the relevant error, it is important to
understand first how § 5K2.13 operates. “The goal of
[§ 5K2.13] is lenity toward defendants whose ability to make
reasoned decisions is impaired.” United States v. Cantu, 12
F.3d 1506, 1512 (9th Cir. 1993); see McBroom, 124 F.3d at
548. As such, a district court may depart downward to “reflect
the extent to which the reduced mental capacity contributed
to the commission of the offense.” U.S.S.G. § 5K2.13. We
have held explicitly that “[§ 5K2.13] requires only that the
district court find some degree, not a particular degree, of
causation” between the defendant’s mental condition and the
commission of the offense in question. Cantu, 12 F.3d at
1515.
In order to find an absence or existence of a causal link, the
district court must necessarily first determine whether the
defendant suffers from a mental illness. See U.S.S.G.
§ 5K2.13; United States v. Silleg, 311 F.3d 557, 564 (2d Cir.
2002) (explaining that “to establish diminished capacity a
defendant must establish both ‘reduced mental capacity and a
causal link between that reduced mental capacity and the
commission of the charged offense’ ”) (citations omitted).
Here, the Court conceded at the sentencing hearing that
“[Schneider] has a mental illness,” but it did not discuss the
nature or characteristics of that illness. Instead, it described it
as “whatever diminished capacity [Schneider] had.” The
Court also doubted Dr. Fiester’s findings, concluding that
“Dr. Fiester might have seen . . . a personality which she felt
supported her conclusions,” but neither the Court nor the
Government ever attempted to substitute Dr. Fiester’s evalua-
tion with their own. These statements mark the full extent of
the Court’s assessment of Schneider’s mental condition.
With this limited information, the Court then considered
the causal connection between Schneider’s unchallenged
mental condition and the commission of the crime (defrauding
the SSA). The Court specifically found that “whatever dimin-
ished capacity [Schneider] had did not affect his commission
UNITED STATES v. SCHNEIDER 15453
of this crime” because the Court believed that “it was totally
built within him an intent to live off someone else, including
the Government, and not face his own responsibility” (empha-
ses added). Curiously, without assessing the nature of Schnei-
der’s mental illness, the Court found an absence of a causal
link between that illness and the commission of the offense.
In so doing, the Court effectively concluded that there existed
no possibility that any mental condition Schneider had,
“whatever” that might be, could have contributed to the com-
mission of the offense since he was essentially born with an
intent to cheat others without accepting his own responsibil-
ity. This blanket conclusion derives from an erroneous appli-
cation of § 5K2.13.
Indeed, while the Court recognized the need to find a
causal link in order to grant a § 5K2.13 departure, it explicitly
stated that it “reconsider[ed]” diminished capacity “in the
light of the acceptance of responsibility,” strongly suggesting
that the Court conflated departure standards. Whether there
was a causal link, therefore, is secondary to the more funda-
mental error here: the Court conflated two different legal stan-
dards for determining two different downward departures.
To receive an acceptance-of-responsibility adjustment, a
defendant must truthfully admit the conduct comprising the
offense and manifest adequate contrition for his or her actions
in a timely manner. U.S.S.G. § 3E1.1, cmt. n.1; see United
States v. Cortes, 299 F.3d 1030, 1038 (9th Cir. 2002); United
States v. Ochoa-Gaytan, 265 F.3d 837, 843 (9th Cir. 2001);
United States v. Flores, 93 F.3d 587, 590 (9th Cir. 1996). This
standard does not consider the defendant’s mental health or
whether he has the cognitive or volitional capacity to accept
responsibility.
To receive a diminished capacity departure, on the other
hand, a defendant is required to show “some degree, not a
particular degree, of causation” between his mental impair-
ment and the commission of the offense in question. Cantu,
15454 UNITED STATES v. SCHNEIDER
12 F.3d at 1515; see United States v. Leandre, 132 F.3d 796,
803 (D.C. Cir. 1998). Because § 5K2.13 and § 3E1.1 require
evidence of different elements, a court cannot lawfully inter-
pret one standard “in the light of” the other.
Here, the record suggests the District Court did exactly that
—it misapplied § 5K2.13 by conflating two legal standards.
While discussing the acceptance-of-responsibility adjustment,
the Court not only described Schneider’s arrogance and lack
of remorse but also explained that Schneider “knew exactly
what he was doing throughout the commission of the crime.”
This statement speaks more to whether Schneider’s mental
condition contributed to the commission of the crime than to
whether he accepted responsibility now for the crime he
knowingly committed then.
Similarly, when the Court shifted to discussing diminished
capacity after discussing acceptance of responsibility, it stated
that “[a]s to diminished capacity, I carry over the same thing,”
suggesting that it was carrying over the same analysis from
acceptance of responsibility. The Court then concluded that it
was “totally built within [Schneider] . . . not to face his own
responsibility,” which speaks more to whether he was able to
accept responsibility than to whether his long history of schiz-
ophrenia and bipolar affective disorder may have affected to
some degree his decision to continue unlawfully to collect
disability benefits from the SSA. The District Judge blurred
these two standards and misapplied § 5K2.13 by viewing it
“in the light of” § 3E1.1.
This case, in fact, is a compelling example of the risks
involved in considering diminished capacity in light of accep-
tance of responsibility. Dr. Fiester noted in Schneider’s psy-
chiatric evaluation that “[his] severe mental illness [was]
directly related to his inability to appropriately indicate his
guilt, remorse and full acceptance of responsibility for his
fraudulent acts.” She further explained:
UNITED STATES v. SCHNEIDER 15455
Although [Schneider] may appear to have under-
stood the wrongfulness of his behavior on a superfi-
cial level, his severe psychiatric illness, particularly,
his thought disorder, paranoia and delusions about
the government and the grandiosity and sense of
entitlement relating to the Bipolar aspects of his dis-
order, caused him to have a distorted view of reality,
and to deny and ‘justify’ his actions.
Even if Dr. Fiester is incorrect as to the effect of Schneider’s
particular mental illness on his ability to accept responsibility,
her analysis underscores a significant legal question. If the
purpose of § 5K2.13 is lenity toward those impaired by men-
tal illness, then preventing someone like Schneider from qual-
ifying for a diminished capacity departure in part because his
mental illness makes it difficult or even impossible for him to
accept responsibility for his actions defies that very purpose.
Accordingly, in determining whether to grant a downward
departure on the basis of diminished capacity, a court cannot
consider diminished capacity “in the light of” acceptance of
responsibility. This is a misapplication of the Guidelines.
III.
The District Judge improperly reviewed only the cognitive
prong of the diminished capacity definition and conflated the
standard for an acceptance-of-responsibility adjustment under
§ 3E1.1 with that for a diminished capacity departure under
§ 5K2.13. Resentencing is entirely warranted in light of these
significant errors.