United States v. Hamm

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4714
UNITED STATES OF AMERICA
v.
DANIEL HAMM,
Appellant.
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D. C. No. 1-07-cr-00344-001)
District Judge: Hon. John E. Jones, III
Submitted under Third Circuit LAR 34.1 (a)
on October 2, 2009
Before: AMBRO, GARTH and ROTH, Circuit Judges
(Opinion filed: May 5, 2010)
OPINION
ROTH, Circuit Judge:
Daniel Hamm pled guilty to distribution of cocaine and crack cocaine, in violation
of 21 U.S.C. § 841(a)(1), and possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1). At sentencing, the District Court determined that Hamm’s base
offense level was 24. After adding two levels for possession of a dangerous weapon in
connection with a drug conspiracy, subtracting three levels for acceptance of
responsibility, and denominating Hamm a career criminal, the District Court determined
that Hamm’s total offense level was 29. Hamm was sentenced to 170 months
imprisonment.
Hamm appeals, alleging that the District Court erred in its interpretation of
U.S.S.G. § 5K2.13 and in its failure to order an evidentiary hearing.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). We review a district court’s decision concerning departure from the
Sentencing Guidelines for abuse of discretion. United States v. Lofink, 564 F.3d 232, 237
(3d Cir. 2009) (citing Gall v. United States, 552 U.S. 38 (2007)). However, we have no
jurisdiction to review a District Court’s decision to grant a downward departure, unless
the District Court mistakenly believed it had no discretion to do so. United States v.
Batista, 483 F.3d 193, 199 (3d Cir. 2007).
Here, the District Court considered Hamm’s diminished mental capacity as laid out
in the pre-sentence report. The District Court doubted whether Hamm was laboring under
a diminished capacity as defined by Section 5K2.13 of the Sentencing Guidelines, noting
that “[t]he mere diagnosis of panic attacks and a long history of violence and explosive
disorders, including assaulting others, doesn’t tie [section 5K2.13] up.” Nonetheless, the
District Court went on to review disqualifying factors and concluded that Hamm’s
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voluntary drug use, violent behavior, and criminal history disqualify him for a downward
departure. See U.S.S.G. § 5K2.13 (listing factors which preclude the court from
“depart[ing] below the applicable guideline range”). We hold that the District Court did
not err in its interpretation of U.S.S.G. § 5K2.13. We also hold that the District Court
acknowledged its discretion to depart downward but refused to do so on the facts of this
case.
In light of the information contained in the pre-sentence report, as well as Hamm’s
failure to request a hearing, we find that the District Court did not commit plain error by
declining to order an evidentiary hearing on Hamm’s alleged diminished capacity.
For the foregoing reasons, we will affirm the District Court’s judgment of
sentence.
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