UNITED STATES DISTRICT COURT

_________________ DISTRICT OF TEXAS

________________  DIVISION

UNITED STATES OF AMERICA		  §
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V.						  §	CAUSE NO. ________________
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DEFENDANT’S SUPPLEMENTAL BRIEF ON MOTION FOR DOWNWARD DEPARTURE BASED ON DIMINISHED CAPACITY
(REQUEST FOR SEALING)

TO THE HONORABLE ________________, UNITED STATES DISTRICT JUDGE FOR THE ____________  DISTRICT OF TEXAS:

	COMES NOW the Defendant, _____________, through her attorney ___________________, pursuant to U.S.S.G. § 5K2.13 and files this supplemental brief in support of her motion for downward departure based on diminished capacity, and __________  respectfully moves this Honorable Court to downwardly depart from the sentencing range calculated by the United States Probation Officer.
	In support of her previously filed motion, __________________ asked this Court to consider the  report of the psychological evaluation written by ________________., in addition to information previously submitted by her and recounted in the Presentence Investigation Report.  Because these matters are confidential and contain sensitive information about __________________ and her family, that motion was placed under seal.  As this supplemental briefing also references these confidential matters, ___________ requests that it too be placed under seal.
I

	__________________ pleaded guilty to unarmed bank robbery.  Her offense conduct involved entering an ______________________  at 11:15 in the morning, and handing the teller a note that read “Please forgive me but I need money.”  (P.R. 3.)  Upon admitting her offense conduct to the FBI, __________________ identified the person who suggested the bank robbery and who pressured her to give the note to the teller.  At the time of __________________’s commission of this offense, she was suffering from what has been diagnosed as bipolar disorder, postraumatic stress syndrome, depression, and a cognitive disorder suggestive of mild mental retardation.  According to ______________________, a psychologist who evaluated __________________ in 2000, __________________’s possessed impaired judgment, which particularly effected her ability to “[set] limits with other people who tend to take advantage of her.”  See page 2 of Puente’s report.  
	__________________ and the Government entered into a plea agreement, in which the Government agreed not to request a sentence in excess of 151 months (the bottom of the calculated guideline range) in light of the nature of the offense and __________________’s medical condition.  The Government also agreed not to oppose the sentence running concurrently with any state court sentence.  __________________ has requested a downward departure from that guideline range, and has asked this Court to assess a term of imprisonment of not more than 77 months, concurrent with her state court sentence.  The Court has requested additional briefing on the diminished capacity downward departure. 
II

	A sentence below the applicable guideline range may be warranted if the defendant committed the offense while suffering from a significantly reduced mental capacity. See  U.S.S.G. §5K2.13.  “Significantly 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.”  Id Comment. n.1.  Thus, significantly reduced mental capacity includes both cognitive impairments (i.e., an inability to understand the wrongfulness of the conduct or to exercise the power of reason) and volitional impairments (i.e., an inability to control behavior that the person knows is wrongful).  United States v. Sadolsky, 234 F.3d 938, 942 (6th Cir. 2000)(citing  U.S.S.G.App. C § 5K2.13, amendment 583 (1998)).  The defendant's significantly reduced mental capacity must be a contributing cause of the offense, but need not be the sole cause. United States v. Soliman,  954 F.2d 1012, 1014 (5th Cir.1992).  
	The Court may not depart on this ground, however, if (1) the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants; (2) the facts and circumstances of the defendant's offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence; or (3) the defendant's criminal history indicates a need to incarcerate the defendant to protect the public.  United States v. Thames, 214 F.3d 608, 614 (5th Cir. 2000)(citing U.S.S.G. §5K2.13)); United States v. Sheehan, 371 F.3d 1213, 1217 (10th Cir. 2004)(same).  None of these prohibitions exist in this case.  __________________’s significantly reduced mental capacity was not caused by her voluntary use of intoxicants, nor do the facts and circumstances surrounding her offense indicate a need to protect the public.
III

	Prior to 1998, diminished-capacity departures were available only if the defendant “committed a non-violent offense....” United States v. Gorsuch,  375 F.3d 114, 120 (1st Cir. 2004)(quoting U.S.S.G. app. C, amend. 583).  The Sentencing Commission amended the guideline to clarify a textual ambiguity within the guideline that had divided the circuits: whether the term "non-violent offense" imports the definition of "crime of violence" from U.S.S.G. § 4B1.2, the career-offender guideline.  Gorsuch, 375 F.3d at 120.  Thus, a departure is permissible, irrespective of whether the offense would qualify as a crime of violence under U.S.S.G. § 4B1.2, if the facts and circumstances of the offense do not demonstrate a need to protect the public.  Gorsuch,  375 F.3d 120, 121; also see United States v. Riggs,370 F.3d 382, 385 n.2 (4th Cir. 2004) (instead of employing a categorical “crime of violence” approach, amended guideline directs district courts to consider the “facts and circumstances of the defendant's offense” in determining whether it involves actual violence or a serious threat of violence) (internal quotations omitted).  The facts and circumstances of __________________’s offense do not involve actual violence or a serious threat of violence, nor do they indicate a need to protect the public.  
	As recounted above, __________________ committed her robbery offense by stating, in writing, “Please forgive me but I need money.”  (P.R., 3.)   She then asked for all the money and instructed the teller to hurry.  The relatively meek manner in which __________________ requested money, while perhaps disturbing and frightening, was devoid of any actual or serious threat of violence.  This conduct simply does not fall within the ambit of that which courts have found to include actual or a serious threat of violence.  See Thames, 214 F.3d 608,  614–15 (armed takeover of bank, in which everyone was ordered at gunpoint to lay on the floor); United States v. Bell, 371 F.3d 239, 241 (5th Cir. 2004) (false bomb report to police which lead to false arrest and incarceration of a Pakistani immigrant); United States v. Sheehan, 371 F.3d 1213,  1215, 1217 (10th Cir. 2004) (armed robberies of restaurant, gas station, and 7-Eleven undisputably ineligible due to actual violence); Gorsuch, 375 F.3d at 116 (brandishing firearm during course of  bank robbery involve serious threat of violence); United States v. De La Cruz, 358 F.3d 623, (9th Cir. 2004)(telephonic bomb threat intended to cause immediate disruption).

	Moreover, the facts and circumstances of __________________’s offense are not even as egregious as those of other defendants found eligible for the departure.  See United States v. Walter, 256 F.3d 891, (9th Cir. 2001) (threatening letter sent to president as ill-conceived prank not serious threat of violence); United States v. McFadzean, No. 98-CR-754, 1999 WL 1144909 (N.D.Ill. 1999)(no serious threat of violence when unarmed defendant gave teller note reading, “I have a gun and want $3,000 don’t try to touch nothing”); United States v. Bradshaw, No. 96-CR-485-1, 1999 WL 1129601 (N.D.Ill. 1999) (unarmed bank robbery employing note that read “this is a stick-up” not a serious threat of violence); United States v. Weddle, 30 F.3d 532, 540 (4th Cir. 1994) (mailing threatening communications, sending bullets inscribed with victim's name to victim's parents, was "non-violent offense" within meaning of sentencing guideline).  
	__________________ was unarmed, presented no danger to the teller or anyone else, and did not threaten to harm anyone.  As noted in the PSR (page 5), the teller was frightened at the time of the robbery, but sustained no injury or loss as a result of __________________’s actions.  __________________’s mental illnesses significantly impaired her ability to exercise her power of reasoning at the time of the offense, and to resist the inappropriate suggestion that she engage in the activity that led to this charge.  
IV
	Similarly, __________________’s criminal history should not preclude this Court from downwardly departing based on her diminished capacity.  Courts have declined to grant a downward departure  in cases in which the defendant’s criminal history warrants incarceration to protect the public. For example, in Bradshaw, the district court found that defendant’s “long history of violent criminal acts,” including two armed robberies, batteries, robberies with threat of force, and aggravated battery of a senior citizen precluded application of the departure.  1999 WL 1129601, *3.  By contrast, __________________’s two prior robbery convictions—15 and 17 years’ old respectively—are extremely remote.  While __________________ does have a more recent conviction for murder, she is currently serving a 10 year sentence of imprisonment for that offense.   For at least six years, __________________ has  sought treatment for her mental illnesses.  Her current state offense was committed at a time when her illness was untreated.  __________________ is not requesting a downward departure to a wholly unincarcerated sentence, but instead to a sentence of 77 months’ imprisonment to run concurrent to her state sentence.  If the Court grants the requested downward departure, __________________ will remain incarcerated for the length of her state sentence, running consecutive to her 77-month federal sentence.  During this time, she will have the opportunity for treatment of her mental illness.  Taking the above circumstances into consideration, it cannot be said that the full period of at least 151 months’ incarceration required by the unmitigated application of the guidelines is necessary to protect the public.  See United States v. Speight, 726 F.Supp. 861, 868 (D.D.C. 1989).  In Speight, the district court recognized that the defendant’s two prior narcotics offenses may have indicated a need for incarceration to protect the public, however, it also noted that with application of the statutory mandatory minimum, Speight would be incarcerated for a sufficient period to insure medication and appropriate treatment for his mental illness.  Id. at 868.  Thus the court granted a departure from the guideline range, in recognition of Speight’s significantly reduced mental capacity. Id.  Such a result is similarly appropriate in this case.   __________________ suffers from such a significantly reduced mental capacity.  At the time this offense occurred, __________________ was unable to exercise power of reason sufficient to fully distinguish between wrongful behavior and acceptable behavior.  
V
	Alternatively, if the Court finds that __________________ is ineligible for the diminished capacity departure, she requests that the Court consider departing below the guideline range based on serious coercion and duress, under U.S.S.G. §5K2.12.    Section 5K2.12 provides, in part: “If the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense, the court may decrease the sentence below the applicable guideline range.” United States v. Vela, 927 F.2d 197, 200 (5th Cir. 1991) (citing U.S.S.G. §5K2.12). Ordinarily coercion will be sufficiently serious to warrant departure only when it involves a threat of physical injury, substantial damage to property or similar injury, substantial damage to property or similarly injury resulting from the unlawful action of a third party or from a natural emergency. Id.  The Fifth Circuit has suggested, however,  that improper influence that amounts to especially serious coercion might justify a departure even in the absence of threats of injury.  See Vela, 927 F.3d at 200.  
	In Vela, the defendant argued that the district court erred in refusing to depart downward from the guideline range due to the corrupting influence of her family history. Id. at 198. At the sentencing hearing, Vela offered extensive evidence that her stepfather had sexually abused her as a child and that this experience and the denial of this experience by her mother predisposed her to commit the underlying drug distribution offense.  Id. The district court district court found that §5K2.12 did not apply to Vela’s situation because there were no threats of violence, and “any improper influence that may be attributed to [Vela’s] mother did not amount to coercion so serious that, even without any threats, it justified a downward departure. Id. at 200.  Vela did not demonstrate a particular susceptibility to her mother’s improper influence, or that the improper influence coerced her into committing the drug distribution offense of which she was convicted.
	In __________________’s case, 
Lengthy incarceration of __________________ would not serve the ends of justice.
	PRAYER
	WHEREFORE, PREMISES CONSIDERED, __________________ respectfully requests that this Honorable Court downwardly depart from the proposed guideline sentence.
							Respectfully submitted.
							______________________
							Attorney for Defendant

	CERTIFICATE OF SERVICE

      I hereby certify that I caused to be served a true and correct copy of the foregoing Motion for Downward Departure (Request for Sealing) on _________________, United States Attorney for the ____________ District of Texas (ATTN: Assistant United States Attorney __________) by faxing it and delivering it by courier to his office, ________________________, on ________________.	

							_______________________________
							Attorney for Defendant