U.S. v. Cantu

• Decision Date: 05 March 1993
• Docket Number: No. 92-30211,92-30211
• Citation: 12 F.3d 1506
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Garza CANTU, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1506

12 F.3d 1506

62 USLW 2467

UNITED STATES of America, Plaintiff-Appellee, v. Jose Garza CANTU, Defendant-Appellant.

No. 92-30211.

United States Court of Appeals, Ninth Circuit.

Submitted March 5, 1993. ^*

Decided Dec. 27, 1993.

Thomas E. Cooney, Spokane, WA, for defendant-appellant.

Rolf H. Tangvald, Asst. U.S. Atty., Spokane, WA, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington.

Before: CANBY, and REINHARDT, Circuit Judges, and TASHIMA, District Judge. ^**

REINHARDT, Circuit Judge:

The Sentencing Guidelines permit a district court to depart downward if a defendant suffers from significantly reduced mental capacity that contributed to the commission of his or her offense. United States Sentencing Commission, Guidelines Manual, Sec. 5K2.13 p.s. (Nov. 1991) ("U.S.S.G. Sec. 5K2.13," "Sec. 5K2.13"). The issue before us is whether the district court has the authority to depart downward pursuant to that guidelines provision where a defendant suffers from post-traumatic stress disorder. We hold that it does, vacate Cantu's sentence, and remand.

BACKGROUND

After a dispute in a bar, Jose Garza Cantu, a Vietnam veteran, was questioned by police and searched. The search revealed a loaded .22 caliber pistol tucked in his waistband. Cantu pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. Secs. 922(g), 924(a).

Before sentencing, Cantu presented the court with a report written by Dr. Paul Wert, a clinical psychologist. The report stated that Cantu served as an infantry rifleman in the Marine Corps from 1966 to 1969, spending more than two years of that period in Vietnam. There, he "was involved in numerous firefights, search and destroy missions, three and four day reconnaissance patrols, and both day and night ambushes." At times, his unit was under heavy fire. He witnessed the death of civilians, including women and children. He also witnessed the death of his own men.

Dr. Wert's report stated that Cantu's combat experience left him with "severe and ongoing" post-traumatic stress disorder, a recognized psychiatric condition. ¹ His symptoms include flashbacks to and "frequent and vivid" nightmares about his combat experiences, chronic insomnia, "considerable" anxiety, "intrusive thoughts [and] images," depression, rage, and "marked[ ]" paranoia. The report also stated that Cantu has a "fixation on and reliance on weapons for feelings of personal security and safety" that was "greatly enhanced or exacerbated by his Viet Nam experiences, and by his ongoing [post-traumatic stress disorder] as well."

Cantu's symptoms have persisted since his return from Vietnam. According to Dr. Wert's report, their frequency and intensity required that he be hospitalized for three-and-a-half months in 1990, twenty-one years after his return from Vietnam and one year before he committed the offense the sentence Cantu contended before the district court that Dr. Wert's report established that he suffered from "significantly reduced mental capacity" that contributed to the commission of his offense, and requested a downward departure pursuant to Sec. 5K2.13, which provides:

for which he now appeals. Medical personnel apparently recommended a second hospitalization just months before he committed the offense. His symptoms were still intense at the time of his psychological evaluation, six months after the offense.

Diminished Capacity (Policy Statement)

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. Sec. 5K2.13.

At Cantu's sentencing hearing, the court heard argument from both the defense and the prosecution concerning the propriety of Sec. 5K2.13 as applied to Cantu. The court then told Cantu:

I've considered the request for departure, a request, pursuant to the guidelines, particularly subsection or Section 5K2.13. Dealing with diminished capacity.

. . . . .

One of the important, important requirements is that there be a significantly reduced mental capacity. I have, again, as indicated, reviewed the report from Doctor Wert. And while it is clear from his report that you are suffering from post traumatic stress disorder and that you appear to have significant alcohol dependency and that you reflect some characteristics showing that your, the doctor would call it paranoid, to the extent of having a fixation with weapons.

I can find nowhere in the report an indication that you are suffering from a significantly reduced mental capacity, as the law indicates as the basis for departure. Nor would the indication of involvement of alcohol reflect a basis for departure downward in this matter.

The court concluded that Cantu was not suffering from significantly reduced mental capacity and that, therefore, the law did not permit him to depart downward. Cantu appeals.

DISCUSSION

I. Jurisdiction

As an initial matter, we must determine whether the district court's refusal to depart is reviewable. See United States v. Belden, 957 F.2d 671, 676 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 234, 121 L.Ed.2d 169 (1992). We have jurisdiction to review a sentencing court's refusal to depart downward as long as the refusal rested on the court's conclusion that it possessed no discretion, and not on the belief that exercise of its discretion was unwarranted. United States v. Robinson, 958 F.2d 268, 272 (9th Cir.1992); United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir.1991). Here, the sentencing court clearly understood that it had the discretion to depart downward if it found that Cantu suffered from significantly reduced mental capacity. The court appears to have found that Cantu did not suffer from significantly reduced mental capacity, and to have concluded that it therefore possessed no discretion to depart downward on that basis. "Because the record supports an inference that the sentencing court's refusal to depart rested on the court's conviction that it lacked the discretion to do so, we will treat the refusal as a product of the court's interpretation of the guidelines, subject to appellate review." United States v. Brown, 985 F.2d 478, 481 (9th Cir.1993) (citations omitted).

II. Departure Under Sec. 5K2.13

A.

"We review de novo the district court's ruling that a particular circumstance does not constitute a permissible basis for departure." United States v. Morales, 972 F.2d 1007, 1010 (9th Cir.1992) (citing United States v. Lira-Barraza, 941 F.2d 745, 746

(9th Cir.1991) (en banc)), cert. denied, --- U.S. ----, 113 S.Ct. 1665, 123 L.Ed.2d 283 (1993). See also United States v. Brown, 985 F.2d at 481 (district court's determination that it lacks discretion to depart from the sentencing guidelines is reviewed de novo).

B.

Before turning to the requirements for departure established by the guideline, we consider the procedures that a request for a departure under the guideline may require. The sentencing court determines facts relevant to sentencing by a preponderance of the evidence, United States v. Navarro, 979 F.2d 786, 788 (9th Cir.1992) (citing United States v. Restrepo, 946 F.2d 654, 655-57 (9th Cir.1991) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 1564, 118 L.Ed.2d 211 (1992)), and a defendant bears the burden of proving the appropriateness of a downward departure, United States v. Anders, 956 F.2d 907, 911 (9th Cir.1992) (citing United States v. Howard, 894 F.2d 1085, 1089-90 (9th Cir.1990)), cert. denied, --- U.S. ----, 113 S.Ct. 1592, 123 L.Ed.2d 158 (1993). Under U.S.S.G. Sec. 6A1.3(a), however, the district court must give the parties "an adequate opportunity" to present information regarding disputed facts, and the court "may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy." U.S.S.G. Sec. 6A1.3(a). Thus, it is unnecessary, for example, for a defendant who requests a departure under Sec. 5K2.13 to undergo a mental health examination of the type used in determining guilt or innocence. United States v. Adonis, 744 F.Supp. 336, 339 n. 11 (D.D.C.1990) (noting that such a requirement would turn the provision into a superfluity, since a defendant impaired enough to qualify would be incompetent to stand trial, or would be found innocent by virtue of his impairment).

Beyond that general requirement, the guideline commentary permits the sentencing court to determine the appropriate procedure to resolve contested facts, but requires the sentencing court to tailor its process to "the nature of the dispute, its relevance to the sentencing determination, and applicable case law." U.S.S.G. Sec. 6A1.3 (commentary).

Resolution of disputed facts concerning mental impairment requires more than simply a neutral process. 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." United States v. Chatman, 986 F.2d 1446, 1454 (D.C.Cir.1993). Lenity is appropriate because the purpose of Sec. 5K2.13 is to treat with some compassion those in whom a reduced mental capacity has contributed to the commission of a crime.

C.

Section 5K2.13 sets out five requirements for a departure. The defendant must have 1) committed a non-violent offense 2) while suffering from significantly reduced mental capacity 3) not caused by voluntary use of drugs or other intoxicants. 4) The reduced capacity must contribute to the commission of the offense, and 5) the defendant's criminal...