U.S. v. Atkins

• Decision Date: 11 July 1997
• Docket Number: No. 95-3114,95-3114
• Citation: 116 F.3d 1566
• Parties: UNITED STATES of America, Appellant, v. William Roy ATKINS, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1566

116 F.3d 1566

325 U.S.App.D.C. 390

UNITED STATES of America, Appellant, v. William Roy ATKINS, Appellee.

No. 95-3114.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 7, 1997.

Decided July 11, 1997.

Appeal from the United States District Court for the District of Columbia (No. 92cr00431-01).

Gregg A. Maisel, Assistant United States Attorney, Washington, DC, argued the cause for the appellant. Eric H. Holder, Jr., United States Attorney, and John R. Fisher and Thomas J. Tourish, Jr., Assistant United States Attorneys, Washington, DC, were on briefs.

Gerald I. Fisher, Washington, DC, appointed by the court, argued the cause for the appellee.

Before SILBERMAN, WILLIAMS and HENDERSON, Circuit Judges.

Opinion for the court filed PER CURIAM.

Dissenting opinion filed by Circuit Judge KAREN LeCRAFT HENDERSON.

PER CURIAM:

The United States (Government) appeals the district court's decision to depart downward from the range specified in the United States Sentencing Guidelines (U.S.S.G. or Guidelines) to sentence William Atkins (Atkins) to five years of probation on his conviction of felon in possession of a firearm. Applying Guidelines section 5K2.13, the district court departed based on its finding that Atkins suffered from reduced mental capacity. We conclude that the district court's legal error requires vacatur and remand for resentencing.

I. FACTS

On March 18, 1992, District of Columbia police received a tip that Atkins, who was on escape status from federal custody, was spotted in The Guards restaurant in Georgetown. Several plain clothes officers entered the restaurant and approached Atkins. Whether they identified themselves as police officers first or instead shoved Atkins and attempted to arrest him without identifying themselves is disputed. ¹ In either event, considerable effort was required to subdue Atkins. The police recovered a loaded .357 revolver from him.

As a result of the incident, Atkins was charged with one count of assault on a police officer while armed in violation of D.C.Code § 22-505(a) and (b), one count of felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(e) and one count of felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g) and 924(e). Atkins pleaded guilty to the section 922(g) violation involving the firearm. The count alleging the D.C.Code violation as well as the remaining portions of the other two counts were dismissed. Pursuant to Guidelines section 5K2.13 (Diminished Capacity), the district court departed from the Guidelines range of 37 to 46 months' imprisonment and instead sentenced Atkins to five years' probation. In concluding that Atkins's criminal history did not indicate that incarceration was necessary to protect the public, the district court found the following: (1) Atkins's mental condition was treatable; (2) because of his uncompleted sentence, he would not be released from prison until his middle 50's; ² (3) his record was based on an erroneous calculation of his criminal history score; and (4) he had never injured law enforcement officers despite repeated opportunities to do so. ³ Appellant's R. Material K.4.

Atkins served as a special forces captain in Vietnam, a Prince George's County, Maryland police officer, a military trainer and counter-terrorism consultant in Saudi Arabia and elsewhere and a mercenary with the Rhodesian Army. According to the psychologist whose report the district court relied upon, Atkins suffered from post-traumatic stress disorder (PTSD) and "survivor mode functioning" as a result of "his combat episodes and war trauma" in Vietnam. Appellant's R. Material F.7. In the psychologist's view, Atkins's condition compelled him to possess firearms.

Atkins's criminal history attests to his attachment to firearms; he has been convicted of firearms offenses at least four times. Atkins's previous offenses also involved assaults on or threats against law enforcement officers. After a December 1980 traffic accident in England, Atkins threatened another motorist with a .38 caliber handgun. Atkins fled the scene and, when cornered by two police officers, threatened to kill them and managed to take one of them hostage at gun point. After a November 1986 arrest for driving while intoxicated, Atkins freed himself from handcuffs, recovered his loaded 9mm handgun, held the handgun at the arresting officer's side and said "Gotcha." In November 1988, Atkins reached for a .32 caliber revolver concealed at his ankle when stopped by agents of the Bureau of Alcohol, Tobacco and Firearms. In April 1990, Atkins was mistakenly released from the Federal Correctional Institute in Butner, North Carolina after completing his sentence for the 1986 offense but before he had served a 94-month consecutive sentence for the 1988 offense. Presentence Investigation Report at 6. Since his arrest in this case, Atkins has been serving the latter sentence.

II. DISCUSSION

Section 5K2.13 authorizes a sentencing judge to grant a downward departure as follows:

If the defendant committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants, a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense, provided that the defendant's criminal history does not indicate a need for incarceration to protect the public.

U.S.S.G. § 5K2.13. The Government contends that the district court considered impermissible factors in deciding that Atkins's criminal history indicated no need for incarceration to protect the public. ⁴ Specifically, the Government argues that "criminal history" as defined in Chapter 4, Part A of the Guidelines is the only relevant factor in assessing whether a defendant poses a threat to public safety such that he should be imprisoned and that, even if a broader range of factors may be considered, the factors the district court considered were improper.

The defendant's criminal history is the only explicit criterion for determining whether the defendant's imprisonment is necessary to protect the public. And, as the Government observes, the United States Sentencing Commission (Commission) knows how to use broader language when it so intends. Cf. U.S.S.G. § 5D1.3 (court is to evaluate defendant's "history and characteristics" in considering supervised release). Nevertheless, at least one court has held that whether a defendant must be incarcerated to protect the public can be determined only after a "precise and fact-specific" evaluation not limited to his "criminal history" as reflected by the numerical calculation laid out in Chapter 4, Part A. United States v. Cantu, 12 F.3d 1506, 1516 (9th Cir.1993). As the Ninth Circuit observed, "the purpose of this departure is lenity." Id. Chapter 4, Part A, on the other hand, recognizes that "[a] defendant with a record of prior criminal behavior is more culpable than a first offender and thus deserving of greater punishment" and that greater punishment for repeat offenders furthers deterrence of crimes. U.S.S.G. Ch. 4, Pt. A, intro. comment. In United States v. Chatman, 986 F.2d 1446 (D.C.Cir.1993), we analyzed whether section 5K2.13's "non-violent offense" language should be read as a contrapositive of section 4B1.2's definition of "crime of violence" and concluded that, in the absence of a cross-reference, the lenity factor undergirding section 5K2.13 suggests that the application of that section should not be controlled by section 4B1.2. Chatman, 986 F.2d at 1450-53. The different purposes behind section 5K2.13 and Chapter 4, Part A likewise suggest that the latter should not control the meaning of "criminal history" as used in the former.

Whether an individual such as Atkins is dangerous to the public turns, to some degree, on the circumstances of his mental disorder. Psychiatric treatment, for instance, may reduce the risk that the offender will continue to commit crimes that put the safety of others in jeopardy. Normally, of course, a pattern of past criminal activity warrants an inference that the offender is unlikely to mend his ways and therefore that incapacitation, i.e., a long sentence, is the only effective means of safeguarding society. See U.S.S.G. Ch. 4, Pt. A, intro. comment ("To protect the public from further crimes of the particular defendant, the likelihood of recidivism and future criminal behavior must be considered."); Chatman, 986 F.2d at 1451. Here, Atkins's history is the history of a mentally ill criminal and therefore his sentence must reflect the extent to which that additional characteristic, together with those normally taken into consideration, may increase or decrease the likelihood that he will be a danger to society. Cf. Chatman, 986 F.2d at 1451-52 (purposes of just desert and deterrence that justify longer sentences and definition of "crime of violence" in U.S.S.G. § 4B1.2 lose some relevance in context of diminished mental capacity).

Moreover, the Commission could have provided that certain repeat offenders are ineligible for a departure under section 5K2.13. That it chose not to reinforces the view that "criminal history" means something more in section 5K2.13 than it does in Chapter 4, Part A. Section 5K2.13 might, for example, have provided that a defendant with a certain number of criminal history points as calculated pursuant to Chapter 4, Part A is not eligible for a downward departure under section 5K2.13. In that case, the sentencing court would simply do a little math to determine a defendant's eligibility for the departure; it would not have to assess the "need for incarceration to protect the public."

Indeed, the Government itself acknowledges that evaluating the factors identified in Cantu is a "common-sense approach" to determining whether the defendant should be imprisoned to protect the public. Appellant's Br. 21....