United States v. Leandre, Yves

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 23, 1997 Decided January 13, 1998

No. 96-3166

United States of America,

Appellee

v.

Yves Leandre, a/k/a Jean-Claude Jean Baptiste,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 96cr00238-03)

Carmen D. Hernandez, Assistant Federal Public Defender,

argued the cause for appellant, with whom A.J. Kramer,

Federal Public Defender, was on the briefs. Amy Seidman,

Assistant Federal Public Defender, entered an appearance.

Joseline A. Pea, Assistant U.S. Attorney, argued the

cause for appellee, with whom Mary Lou Leary, U.S. Attor-

ney, John R. Fisher, Mary-Patrice Brown, and G. Bradley

Weinsheimer, Assistant U.S. Attorneys, were on the brief.

Before: Williams, Rogers and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: On appeal from his sentence for

distribution, and aiding and abetting the distribution, of co-

caine base, appellant Yves Leandre principally contends that

the district court erred by failing to reduce his sentence

based upon his diminished mental capacity. Although the

United States Sentencing Guidelines do not include an explicit

reduction for "diminished mental capacity," the policy state-

ment contained in section 5K2.13 states that a court may

reduce a sentence "to reflect the extent to which reduced

mental capacity contributed to the commission of the offense."

U.S. Sentencing Guidelines Manual s 5K2.13, p.s. (1997)

[hereinafter "U.S.S.G." or "Guidelines"]. The Sentencing

Commission has thus acknowledged that a defendant's "di-

minished capacity" is a mitigating circumstance not adequate-

ly taken into account in formulating the Guidelines that would

normally warrant a downward departure. See 18 U.S.C.

s 3553(b) (1988); U.S.S.G. s 5K2.0, p.s.; Koon v. United

States, 116 S. Ct. 2035, 2044 (adopting the framework of

United States v. Rivera, 994 F.2d 942, 949 (1st Cir. 1993)).

The threshold question, however, is precisely what "contribu-

tion" is required of a defendant's "reduced mental capacity"

before the court may depart from the Guidelines, and that is

not an easy question to answer. The remaining questions are

whether the district court misapplied the Guidelines or con-

sidered improper factors. We conclude that the district court

did not misconceive the necessary causal relationship between

a defendant's diminished capacity and his criminal conduct

nor otherwise err in denying Leandre's request for a depar-

ture under section 5K2.13. Similarly unpersuasive are Lean-

dre's challenges to the district court's failure to depart down-

ward based upon his family circumstances under section

5H1.6 and his status as a deportable alien. Accordingly, we

affirm.

I.

Yves Leandre pleaded guilty to the unlawful distribution

and aiding and abetting the distribution of five grams or more

of cocaine base.1 According to the presentence report, Lean-

dre was accountable for a total of 123.21 grams of crack

cocaine; he had participated in three separate sales of a total

of 115.21 grams of drugs to undercover officers and nearly 8

grams of cocaine base and related drug paraphernalia were

found in his apartment. This placed him at a base offense

level of 32 under the Guidelines. See U.S.S.G. s 2D1.1(c)(4).

The district court, without objection by the government,

reduced Leandre's offense level to 29 because of his accep-

tance of responsibility for his criminal conduct. See U.S.S.G.

s 3E1.1(a), (b)(2). Leandre had also previously been convict-

ed of two drug-related misdemeanors and a felony, for which

he fell into criminal history category IV. See U.S.S.G.

ss 4A1.1, 4A1.2, 5A. The combination of these factors estab-

lished a sentencing range of 121-151 months imprisonment.

See U.S.S.G. s 5A. Prior to sentencing, Leandre sought to

have his sentence reduced due to a variety of factors.2 Of

relevance here, he sought a downward departure from the

Guidelines' range because of his diminished mental capacity,

noting in his memorandum in aid of sentencing his history of

mental problems. He also requested departures based upon

his responsibility to care for his two young children and the

likelihood of his deportation as a result of his conviction. The

__________

1 See 18 U.S.C. s 2(A) (1988); 21 U.S.C. s 841(a), (b)(1)(B)(iii)

(1988). "Cocaine base" is more commonly known as "crack co-

caine." See United States v. Edwards, 98 F.3d 1364, 1369 (D.C.

Cir. 1996), cert. denied, 117 S. Ct. 1437 (1997).

2 In addition to the departures addressed in the instant appeal,

Leandre asserted that he was entitled to a downward adjustment

under U.S.S.G. s 3B1.2 for his minor role in the drug offenses;

under s 4A1.3 because the criminal history category overrepresents

the seriousness of his prior crimes; under s 5K2.12 for coercion

and duress; and, more generally, based on his "efforts to overcome

[an] adverse environment," as well as a combination of all of these

factors. Leandre does not challenge the denial of these departures

on appeal.

district court denied each request, but imposed the shortest

term of incarceration within the applicable Guideline range:

121 months imprisonment followed by four years of super-

vised release.

The scope of this court's review of a district court's decision

not to depart from the Guidelines is limited but not insignifi-

cant. Because in deciding whether to depart "the district

court must make a refined assessment of the many facts

bearing on the outcome, informed by its vantage point and

day-to-day experience in criminal sentencing," these courts

have an "institutional advantage over appellate courts in

making these sorts of determinations." Koon v. United

States, 116 S. Ct. 2035, 2046-47 (1996) (interpreting 18 U.S.C.

s 3742 (1988)). Hence an appellate court's review of the

denial of a downward departure is confined to determining

whether there has been a mistake of law or an incorrect

application of the Guidelines.3 See United States v. Johnson,

49 F.3d 766, 768 (D.C. Cir. 1995). As this court explained in

United States v. Sammoury, 74 F.3d 1341, 1344 (D.C. Cir.

1996), "[i]f a district judge sticks to the [G]uideline range

because [the judge] mistakenly believes he [or she] lacks

authority to do otherwise, [the judge's] sentencing decision is

reviewable on appeal." Factual findings relied upon by the

district court in determining that a departure is not warrant-

ed are reviewed for clear error. See 18 U.S.C. s 3742(d);

Sammoury, 74 F.3d at 1344. "Even if a judge correctly

understands his [or her] discretionary authority to depart

downward when a particular mitigating circumstance exists,

the judge may make a clearly erroneous factual finding that

the circumstances do not exist." Sammoury, 74 F.3d at 1344.

But, if the district court correctly understood the Guidelines

and the evidence, was aware of its authority to depart, and

decided not to depart, there is no basis on which this court

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3 We have no occasion to decide whether after Koon our review

of a denial of a departure is for abuse of discretion, see Koon, 116

S. Ct. at 2047-58, for even were that standard to apply it would not

affect our disposition. See generally, Kickapoo Tribe of Indians v.

Babbitt, 43 F.3d 1491, 1497 (D.C. Cir. 1995) (describing nature of

trial court discretion).

can reverse the exercise of discretion because no error has

occurred. Id. at 1343.

II.

The Guidelines do not expressly provide for a departure

from the applicable sentencing range based on a defendant's

diminished mental capacity. Congress, however, has allowed

district courts to depart from the Guidelines to reflect "miti-

gating circumstances of a kind, or to a degree, not adequately

taken into consideration by the Sentencing Commission in

formulating the [G]uidelines." 18 U.S.C. s 3553(b). In

Chapter 5, Part K (Departures) of the Guidelines, the Sen-

tencing Commission recognized certain factors that it had not

taken fully into account, and listed in policy statements

several encouraged or discouraged grounds for departures.

See U.S.S.G. s 5K2.0, p.s.; Koon, 116 S. Ct. at 2045. The

Commission identified a defendant's reduced mental capacity

as one circumstance in which a departure would be encour-

aged. See U.S.S.G. s 5K2.13; Koon, 116 S. Ct. at 2044

(adopting the framework of United States v. Rivera, 994 F.2d

942, 949 (1st Cir. 1993)). Such a disability, in the Commis-

sion's view, "would normally warrant a downward departure."

Rivera, 994 F.2d at 947 (Breyer, C.J.) (citing U.S.S.G.

s 5K2.13, p.s.). Thus, under section 5K2.13 of the Guidelines,

the district court may depart downward if a defendant: (1)

has committed a non-violent offense, (2) while suffering from

"significantly reduced mental capacity", (3) that was not

caused by the voluntary use of other intoxicants, (4) where

the defendant's mental incapacity "contributed to the commis-

sion of the offense," (5) so long as the defendant's criminal

record does not indicate a need for imprisonment to protect

public safety.4 U.S.S.G. s 5K2.13, p.s.; see also United

States v. Cantu, 12 F.3d 1506, 1511 (9th Cir. 1993).

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4 Section 5K2.13 provides:

If the defendant committed a non-violent offense while suffer-

ing 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

Leandre contends that the district court misconstrued the

scope of its discretion to depart under section 5K2.13 by

applying an overly-stringent standard for the fourth require-

ment. He maintains that the phrase "contributed to the

commission of the offense" encompasses a far broader mean-

ing than the district court appreciated when it focused on the

absence of any "direct connection between [Leandre's] re-

duced mental capacity and the offense which was committed."

Noting that the Sentencing Commission's policy statement

only requires that a defendant's mental incapacity contribute

to the commission of a crime, Leandre contends that the

district court improperly applied a "but-for" test in determin-

ing his eligibility for the departure. By applying such a

heightened standard, Leandre maintains, the district court

evaluated the grounds for the departure as if Leandre were

asserting an insanity defense under 18 U.S.C. s 17 (1988). In

addition, Leandre contends, the district court failed to review

the availability of the departure with a "view to lenity, as

section 5K2.13 implicitly recommends" consistent with United

States v. Chatman, 986 F.2d 1446, 1454 (D.C. Cir. 1993).

The evidence before the district court at sentencing includ-

ed a psychological report classifying Leandre as mildly men-

tally retarded, with an IQ of 66. The report, provided by

Leandre, noted that he suffered from bouts of depression

since early adolescence and has exhibited symptoms of "de-

pressive psychosis." Further, the report revealed, while in-

carcerated for a previous conviction, Leandre had attempted

suicide after experiencing hallucinations and hearing demean-

ing voices that convinced him that he was a failure. At times,

the report continued, these voices also expressed paranoid

delusions. After his release from prison, the voices continued

and, according to the psychologist, may have even intensified.

Nevertheless, Leandre received no psychiatric treatment or

medication after his release. Observing that throughout his

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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. s 5K2.13, p.s.

life Leandre has repeatedly turned to drug use to cover over

his depression and psychoses, the psychologist concluded that

Leandre's addiction may have aggravated his conditions.

Based upon this history, the psychologist further concluded

that Leandre's decision to sell drugs was "partly" influenced

by his psychiatric difficulties. The psychologist opined that

Leandre's "ability to refrain from accepting the offer pro-

posed to him was diminished by the recurrence of a serious

depression with suicidal implications and the intensification of

a psychotic underlayer in his psyche."

The district court found, notwithstanding the psychologist's

causal conclusion, that Leandre had failed to establish "the

collection of factors" necessary for a downward departure

under section 5K2.13. Of concern to Leandre on appeal, the

court stated that "there must be a direct connection between

the reduced mental capacity and the offense which was

committed." Relying on Sammoury, 74 F.3d at 1345, the

court emphasized that there must be a "causal connection"

between the two, and resolved that Leandre had "not pre-

sented any persuasive demonstration of a real nexus or

connection between this state of mind and the conduct consti-

tuting the crimes in this case." Largely adopting the position

taken by the government in opposing Leandre's motion for

departure,5 the court observed that it did not take a great

deal of intellectual sophistication either to sell drugs or to

understand that doing so was unlawful, that Leandre had

repeatedly chosen to resume his own drug use, and that his

prior convictions put him on notice of the consequence of his

actions. The district court was of the opinion that Leandre

did not suffer from a "significantly reduced mental capacity,"

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5 The government had argued first, that given the uncomplicat-

ed nature of the crimes, Leandre, who had previously worked as a

plumber and a cook, was more than capable of understanding what

was required of him and was sufficiently savvy to participate in

negotiations for the amount of drugs he was to supply, and second,

that while Leandre's intellectual limitations may have made him

more susceptible to the lure of the drug trade, he had failed to show

that his mental infirmities contributed to the commission of the

offense in any "real sense."

as required by section 5K2.13 because his condition did not

impede his ability to reason.

The meaning properly ascribed to the term "reduced men-

tal capacity" and its precise application in addressing a depar-

ture request involve areas that are not without difficulty.

Little substantive guidance has been provided by the Sen-

tencing Commission, either in the language of the Guidelines

themselves or in the commentary or application notes. See

U.S.S.G. s 5K2.13. Is the court to award a departure upon a

showing of a nontrivial probability that the defendant's dimin-

ished capacity increased the likelihood of the crime? Put

otherwise, is the court to depart when presented with evi-

dence that a defendant suffers from diminished mental capac-

ity that possibly contributed, but was not essential, to the

commission of the crime? Neither the Sentencing Commis-

sion nor the courts have given a clear answer. But similar

concerns were traditionally considered by sentencing judges

prior to the promulgation of the Guidelines in mitigation of

the punishment of legally sane defendants suffering from

various mental infirmities. See generally Norval Morris,

Madness and the Criminal Law 129-134, 142-44, 146-152

(1982); Henry Weihofen, Mental Disorder as a Criminal

Defense 209-10 (1954). This can be seen most clearly in the

context of capital punishment where mental limitations and

illnesses must be considered as mitigating factors when of-

fered by the defendant. See, e.g., Penry v. Lynaugh, 492

U.S. 302, 317-29 (1989); Eddings v. Oklahoma, 455 U.S. 104,

113-16 (1982). This court explained in Chatman, moreover,

that leniency is appropriate because "two of the primary

rationales for punishing an individual by incarceration--des-

ert and deterrence--lose some of their relevance when ap-

plied to those with reduced mental capacity." Chatman, 986

F.2d at 1452 (quoting United States v. Poff, 926 F.2d 588, 595

(7th Cir. 1991) (Easterbrook, J., dissenting)); see also Morris,

supra, at 151-52.

The mitigation of sentences to reflect a defendant's reduced

mental capacity is distinct from the conventional criminal law

defense of "diminished capacity." 6 In its most commonly

accepted formulation, "diminished capacity" refers to situa-

tions where a defendant's mental abnormality, although insuf-

ficient to exonerate the defendant on grounds of insanity,

negates the element of mens rea required for conviction for

the charged offense (i.e. an intent to kill, premeditation, etc.).

See United States v. Brawner, 471 F.2d 969, 998-1002 (D.C.

Cir. 1972); Model Penal Code s 4.02(1) cmt. 2 (1962). Con-

sideration of a defendant's mental condition in sentencing, on

the other hand, is appropriately viewed as an extension of the

concept of "diminished (or partial) responsibility." See Ste-

phen J. Morse, Undiminished Confusion in Diminished

Capacity, 75 J. Crim. L. & Criminology 1, 21 (1984); Andrew

Brown, Limits on the Use of Diminished Capacity as a Basis

for Departure, 7 Fed. Sentencing Rep. 193, 194 (1995). A

defendant may not be considered fully responsible for a crime

due to his mental condition: as one commentator has suggest-

ed, "[e]ven if the technical elements of an offense are satis-

fied, the defendant is less culpable and should be convicted of

a lesser crime, or, at least, should be punished less severely."

Morse, supra, at 20. While courts have generally refused to

integrate the defense of partial responsibility into substantive

criminal law, it has long been applied, at least implicitly, by

judges during sentencing.7 Id. at 27-28.

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6 The Sentencing Commission has included several conventional

common law affirmative defenses as encouraged departures from

the guidelines, such as coercion and duress, see U.S.S.G. s 5K2.12,

and victim provocation, see U.S.S.G. s 5K2.10. These claims may

not be sufficient to provide a full affirmative defense for acquittal,

but they may be "morally salient under the guidelines." Robert

Weisberg, Guideline Sentencing, Traditional Defenses, and the

Evolution of Substantive Criminal Law Doctrine, 7 Fed. Sentenc-

ing Rep. 168, 168 (1995); see also U.S.S.G. s 5K2.12 (acknowledging

that judge may depart for coercion or duress "not amounting to a

complete defense.").

7 See Joshua Dressler, Understanding Criminal Law s 26.03

at 325 (1987) ("The partial-responsibility variant of the diminished

capacity defense is not a defense to most crimes in the United

States. In some states it is a defense to murder."). For a general

Against this background it follows that the departure for

"significantly reduced mental capacity" under section 5K2.13

does not require a showing of insanity. Cf. United States v.

Spedalieri, 910 F.2d 707, 711 (10th Cir. 1990). Neither does

it require a defendant's diminished capacity to have prevent-

ed formation of the legally defined mental state associated

with an offense. Nor must a defendant demonstrate that he

or she is severely mentally retarded. The departure under

section 5K2.13 applies to all crimes equally and may be

considered by the sentencing judge even if the fact-finder has

rejected a defense of insanity or diminished capacity. See

Spedalieri, 910 F.2d at 711; United States v. Cheape, 889

F.2d 477, 480-81 (3d Cir. 1989). As this court emphasized in

vacating and remanding for resentencing in Chatman, the

ultimate goal of section 5K2.13 "is to treat with lenity those

individuals whose reduced mental capacity contributed to the

offense." Chatman, 986 F.2d at 1452 (internal quotation

marks omitted).

Thus, as Leandre maintains, a defendant's reduced mental

capacity need not be the necessary cause of the commission of

his crime in order for him to be eligible for a downward

departure under section 5K2.13. In other words, a defendant

is not required to prove that he would not have committed the

offense but for the existence of his mental infirmity. All of

the circuits to have addressed the issue of causation have

rejected a "but-for" test. See, e.g., United States v. Cantu, 12

F.3d 1506, 1515 (9th Cir. 1993); United States v. Soliman,

954 F.2d 1012, 1014 (5th Cir. 1992); United States v. Glick,

946 F.2d 335, 339 (4th Cir. 1991); United States v. Lauzon,

938 F.2d 326, 331 (1st Cir. 1991); United States v. Ruklick,

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discussion of the confusion between "diminished capacity" and

"diminished responsibility," see Morse, supra, and Peter Aranella,

The Diminished Capacity and Diminished Responsibility Defens-

es: Two Children of a Doomed Marriage, 77 Colum. L. Rev. 827

(1977). Compare also Insanity Defense Reform Act of 1984, 18

U.S.C. s 17 (1988) (abolishing the affirmative defense of diminished

responsibility in federal prosecutions), with United States v. Chil-

dress, 58 F.3d 693, 728-30 (D.C. Cir. 1995) (holding that diminished

capacity may still be used to negate mens rea).

919 F.2d 95, 97 (8th Cir. 1990). See also United States v.

Speight, 726 F. Supp. 861, 868 (D.D.C. 1989). The plain

language of section 5K2.13, permitting departures, "to reflect

the extent to which reduced mental capacity contributed to

the commission of the offense," makes clear that the defen-

dant's diminished capacity need be only a contributing factor.

U.S.S.G. s 5K2.13; see also Cantu, 12 F.3d at 1515; Ruklick,

919 F.2d at 97-98. Yet, it is equally clear that a bare

showing of reduced mental capacity, without more, is insuffi-

cient to authorize a court to depart. See United States v.

Frazier, 979 F.2d 1227, 1230 (7th Cir. 1992). The belief that

a defendant with diminished capacity is less culpable for a

crime, and the conclusion that the rationales for punishment

are reduced for such a defendant, may in theory suggest that

a court should consider mitigating a sentence regardless of

the mental deficiency's contribution to the crime. Leandre

appeared to advance this view at oral argument by positing

that section 5K2.13 should be understood as encouraging a

downward departure in the case of a defendant possessing a

diminished mental capacity as compared with an identically

situated, but psychologically normal, defendant convicted of

the same crime. But as Leandre readily admitted, the lan-

guage of the policy statement rejects such a broad basis for

departure by explicitly requiring that the defendant's reduced

capacity "contribute to" the offense. U.S.S.G. s 5K2.13, p.s.

Absent some causal link, the sentencing judge would misapply

the Guidelines by granting a departure. See id.; Sammoury,

74 F.3d at 1345.

Leandre's comparison of two hypothetical defendants, how-

ever, suggests a subtler interpretation of the requirements

for a departure under section 5K2.13. Under this interpreta-

tion, once the district court finds that a defendant was

suffering from a reduced mental capacity at the time of the

criminal conduct, the court has discretion to depart so long as

the departure is roughly commensurate with the extent to

which the diminished capacity affected the crime. "Courts

need not measure contribution against a minimum threshold

before allowing a departure[;] ... [t]he proper focus is on

matching the magnitude of the departure with the magnitude

of the contribution." Brown, supra, at 195. Presumably the

magnitude would be zero if the district court found the

contribution to be negligible, thus permitting no departure,

but, in general, the court would be given a freer hand in

departing from the Guidelines.

Other circuits examining the grounds for departures under

section 5K2.13, have required an initial finding of causation

before the district court can attempt to scale the punishment

to the effects of the mental abnormality. For example, in

Frazier the Seventh Circuit rejected the approach adopted by

the sentencing judge who had assumed that there was a

connection between the defendant's mental disorder and the

crime committed, requiring instead specific findings of causa-

tion before allowing a departure. See Frazier, 979 F.2d at

1230. Similarly in Cantu, the Ninth Circuit explained that

causation actually comes into play twice in deciding whether

to depart based on a defendant's diminished mental capacity:

first, in deciding whether a defendant is eligible for a down-

ward departure, and subsequently in determining the extent

of any available departure. See Cantu, 12 F.3d at 1515.

In practice, this distinction may result more in a difference

in emphasis than in any difference in substance. Whether a

mentally infirm defendant whose reduced mental capacity did

not contribute to his crime is per se ineligible for a departure,

or is legally eligible but the extent of the departure must be

nil, the result is the same. Under either view, the district

court may not mitigate a sentence in the absence of some

causal link. However, once some nexus is shown, to any

degree, the district court may depart downwardly to reflect

the extent of that contribution. See Cantu, 12 F.3d at 1515.

While the defendant has the burden of showing "some"

connection between his diminished capacity and his criminal

conduct, see Sammoury, 74 F.3d at 1345; Johnson, 49 F.3d at

768, that burden may not be particularly heavy in view of the

obligation to treat with lenity defendants who suffer from

"significantly reduced mental capacity." See Chatman, 986

F.2d at 1454; Cantu, 12 F.3d at 1511 ("The goal of the

guideline is lenity toward defendants whose ability to make

reasoned decisions is impaired.").

Of course neither formulation clarifies what constitutes a

"contribution" to an offense. Leandre's interpretation seems

to assume that any reduction in mental capacity will "contrib-

ute" to an offense in the sense that there will always be a

nontrivial probability that the defendant's mental capacity

increased the likelihood of the crime. This contention is not

directed at the relevant legal standard for a departure under

section 5K2.13, however, but at the legitimacy of ever finding

that there exists no causal connection between a defendant's

reduced mental capacity and his crime. Such an assumption

would effectively negate the requirement of causation entire-

ly, and therefore, given the language of section 5K2.13, we

cannot credit it. Cf. Frazier, 979 F.2d at 1230. Whether a

defendant's reduced mental capacity "contributed to the com-

mission of a crime" is an individualized factual determination

to be made by a sentencing court in light of the entire record

before it. Unlike the usually uniform sentencing structure

mandated by the Guidelines, the court is called upon to

consider the defendant's individual characteristics in exercis-

ing its discretion to depart. See Koon, 116 S. Ct. at 2044-45.

So understood, we conclude that the district court did not

misapprehend its authority to depart from the Guidelines

under section 5K2.13 by applying an overly stringent "but-

for" test. The district court never considered the degree of

causation necessary for a downward departure because it

found that Leandre's reduced mental capacity did not contrib-

ute to his crime in any way. Leandre's reliance on the

district court's initial statement at sentencing that "there

must be a direct connection between the reduced mental

capacity and the offense which was committed" as proof of an

inappropriate standard8 is misplaced. The statement merely

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8 Leandre also contends that the district court's conclusion that

his mental deficiency did not affect his perception of "the relation-

ship between cause and effect, crime and consequence" indicates

that the court actually applied the test for an insanity defense.

This statement, however, addresses the separate issue of whether

the defendant possessed a "significantly reduced mental capacity,"

not the extent to which any reduced capacity contributed to the

crime. Furthermore, the phrase "cause and effect" cannot be

echoed the language of Johnson, where this court explained

that a finding of a "direct connection" does not require the

defendant's reduced mental capacity to be the sole cause of

his conduct. See Johnson, 49 F.3d at 768. Moreover, the

district court explained that it was relying on Sammoury in

requiring "a causal connection between the reduced mental

capacity and the offense." See Sammoury, 74 F.3d at 1345.

After reviewing the presentence report, the psychological

evaluation, and Leandre's prior criminal record, the district

court concluded that there was no "clear demonstration of a

nexus between the so-called diminished capacity and the

crimes before the Court today." The record thus shows that

while the district court might well have reached a different

conclusion about causation in light of the psychologist's re-

port, the court understood that section 5K2.13 requires no

more than that the defendant's reduced capacity be a contrib-

uting factor, to some degree, to his offense.

At the same time, when the district court conducts the

factual inquiry required for an encouraged departure under

section 5K2.13, Chatman makes clear that the court should

proceed "with a view to lenity." Chatman, 986 F.2d at 1454.

In that case the court vacated and remanded for resentencing

in the absence of record evidence that the district court

undertook its factual inquiry "with a view to lenity, as section

5K2.13 implicitly requires." Id. The district court here did

not refer to lenity in so many words, nor to the purposes of

punishment discussed in Chatman. But, the court was aware

of the Chatman analysis as it was presented in Leandre's

memorandum in aid of sentencing. Significantly, for this

purpose, the court imposed the sentence at the lowest end of

the Guideline range.

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equated with a determination that Leandre did not know "right

from wrong" as would be required for a showing of insanity.

Rather it is an evaluation of the defendant's ability to reason in

accordance with United States v. Edwards, 98 F.3d 1364, 1371 (D.C.

Cir. 1996), cert. denied, 117 S. Ct. 1437 (1997), and represents the

court's response to the conclusions of Leandre's psychologist.

The only remaining question is whether the district court's

causal finding was clearly erroneous. In finding that Lean-

dre's reduced mental capacity had not contributed to the

offense, the district court considered the unsophisticated na-

ture of the crime, the effect of Leandre's voluntary drug use

on his conduct, and his criminal history. Although reliance

on some of these factors in isolation might be problematic,

viewed together, they support the district court's finding.

First, the nature of the offense. The district court proper-

ly emphasized the fact that "it really doesn't require a great

amount of intellectual sophistication to sell drugs or to under-

stand that it is unlawful." The mental acumen required for

the planning, preparation, and execution of a crime is a logical

starting place for examining the effects of a defendant's

reduced capacity. While the particular mens rea required for

conviction of the offense is not relevant to this assessment,

the general level of intellectual sophistication associated with

a crime is. Of course, the "intellectual sophistication of the

crime" taken in isolation cannot be the end of the inquiry.

Without suggesting that the more complicated the criminal

conduct, the more likely the mental incapacity contributed to

it, it is nevertheless clear that even the simplest, most

mindless crime can be caused in part by a defendant's mental

incapacity. A defendant, for example, could be driven by a

compulsive mental disorder to commit a crime unthinkingly.

Section 5K2.13, therefore, is not limited to particular classes

of crime and may be considered for any offense, no matter

how unsophisticated.

The level of intellectual sophistication required for a crime

is only relevant when considered in relation to the type of

mental abnormality suffered by the defendant. Here, the

district court concluded that this factor belied any causal

connection to the crime. The government's proffer of evi-

dence in support of Leandre's plea showed that he was

essentially a courier, bringing the drugs in response to in-

structions from a third person. There was evidence as well

that Leandre participated in negotiations for the sale price of

the drugs. Further, Leandre had been employed in the past,

as both a plumber and a cook, despite his low IQ, depression,

and other mental afflictions. Although the district court

might well have reached a different conclusion, see, e.g.,

Speight, 726 F. Supp. at 868 (ordering departure from sen-

tence for the distribution of cocaine and possession of a

firearm where the defendant was suffering from schizophre-

nia), especially in view of the psychologists' report, its con-

trary conclusion is supported by the evidence before it.

Second, voluntary drug use. The district court evaluated

the effects of Leandre's drug use on his mental capacity and

his conduct. Clearly, the relationship between a defendant's

drug use and his conduct is relevant to an assessment of

whether his reduced mental capacity was a cause of his

offense. A departure under section 5K2.13 might remain

available if a defendant's drug use contributed only in part to

a crime, because his mental infirmity may have also played a

role. Because a defendant's reduced mental capacity need

not be the sole cause of the crime, both drug use and mental

illness may contribute to the commission of an offense. See

Cantu, 12 F.3d at 1514-15; Speight, 726 F.Supp at 868. But

if drug use was an independently sufficient cause of a defen-

dant's behavior, a court could conclude that his reduced

mental capacity had not contributed to the crime. Further-

more, a departure under section 5K2.13 is unavailable where

the reduced mental capacity itself "result[ed] from voluntary

use of drugs or other intoxicants." U.S.S.G. s 5K2.13. See

Chatman, 986 F.2d at 1452.

In sentencing Leandre, the district court's evaluation of

Leandre's drug use was confined to stating that "the drug use

may indeed have had an effect on his behavior and his state of

mind." The court did not indicate whether it had concluded

that Leandre began to sell cocaine base in whole or in part

because of his drug addiction. The psychologist's report, on

the other hand, indicated that Leandre began selling drugs to

others as a result of his efforts to buy them for his own use.

The district court apparently accepted the psychologist's con-

clusion that Leandre's mental problems predated his drug use

and were exacerbated by it. If the court had found that

Leandre's reduced mental capacity was actually caused by his

voluntary drug use, Leandre would have been ineligible to

receive a departure under section 5K2.13. See Chatman, 986

F.2d at 1452. Instead, the court continued its inquiry into

the nature and effect of Leandre's diminished capacity in

light of his drug use. While it is doubtful that the court's

finding of an absence of causation could be supported by

Leandre's drug use alone, nevertheless, recognition of Lean-

dre's drug use, as part of a broader range of relevant factors,

was entirely appropriate.

Third, criminal history. In declining to grant a downward

departure under section 5K2.13, the district court noted that

Leandre had previously been convicted of attempted posses-

sion of PCP (phencyclidine), possession of cocaine, and armed

robbery. This was a proper consideration for the purpose of

determining whether Leandre suffered from a "significantly

reduced mental capacity" under section 5K2.13.9 But it is

unclear how a defendant's past crimes would be relevant to

determining whether his mental illness contributed to the

criminal conduct for which he is to be sentenced. The

government argued that Leandre had failed to show evidence

that he was suffering from any psychosis at the time of the

current offense. It is unclear which way this cuts. If a

defendant has committed the same crime in the past or

engaged in a particular pattern of behavior, and did not suffer

from the same mental illness, then a sentencing court might

reasonably conclude that the defendant's current claim of

reduced mental capacity did not contribute to the offense.

Yet such an occurrence would probably be rare, and, in any

event, is not Leandre's case. In general, section 5K2.13 is an

offense specific departure. The Guidelines contemplate other

departures, and to the extent that section 5K2.13 is an

encouraged departure, see Koon, 116 S. Ct. at 2045; Rivera,

994 F.2d at 948, it follows that even if a defendant has

committed crimes in the past, his punishment for the current

__________

9 Leandre's criminal history would also be relevant to deter-

mining whether his incarceration was necessary to protect public

safety, as an independent ground for denying him a departure

under section 5K2.13. See U.S.S.G. s 5K2.13.

criminal offense may still be mitigated due to his reduced

mental capacity at the time of the current offense.

Given the uncertainty about how a district court is to

determine whether a defendant's reduced mental capacity

"contributed" to the commission of an offense, the district

court cannot be faulted for exploring several alternative lines

of analysis. Its consideration of the sophistication of Lean-

dre's offense and the effects of his voluntary drug use were

proper factors to be evaluated and support the court's ulti-

mate conclusion that there was no causal nexus between

Leandre's offense and his mental disabilities. Although the

psychologist concluded that Leandre's decision to sell drugs

was "influenced ... partly" by his "intellectual limitation and

psychiatric illness," the district court was not bound to accept

that conclusion. Cf. Sammoury, 74 F.3d at 1346. The gov-

ernment offered a contrary analysis that the court found

persuasive. Based upon the record as a whole, the court

considered the relevant evidence before it, including the

psychologist's report and the appellant himself, and did not

clearly err in finding that there was no contribution as would

warrant a downward departure.

Leandre belatedly contends, however, that the district

court misconceived the nature of Leandre's diminished capac-

ity and the conditions that qualify as a "significantly reduced

mental capacity" under section 5K2.13. In declining to de-

part under section 5K2.13, the court interpreted the depar-

ture as covering mental, psychological, and behavioral disor-

ders that "diminish the defendant's ability to reason." The

court doubted, however, that Leandre possessed a "mental

deficiency that might not make apparent the relationship

between cause and effect, crime and consequence." Leandre

contends that the district court underestimated its authority

to depart by focusing exclusively on Leandre's ability to

reason, without considering any "volitional impairments" as

suitable grounds for departure. He relies on United States v.

McBroom, 124 F.3d 533, 544-49 (3d Cir. 1997), in which the

Third Circuit held that a person may suffer from a "reduced

mental capacity" if he or she "knows what he [or she] is doing

and that it is wrong but cannot control his [or her] behavior

to conform it to the law." This argument was never present-

ed to the district court or even to this court until Leandre's

reply brief, and we find no plain error. See United States v.

Olano, 507 U.S. 725, 734 (1993); United States v. Saro, 24

F.3d 283, 286 (D.C. Cir. 1994); United States v. Foster, 988

F.2d 206, 209 (D.C. Cir. 1993).

The district court's observation that "reduced mental ca-

pacity" refers to a defendant's ability to reason was taken

directly from United States v. Edwards, 98 F.3d 1364, 1371

(D.C. Cir. 1996), cert. denied, 117 S. Ct. 1437 (1997). See

also Cantu, 12 F.3d at 1512. No precedent exists in this

circuit suggesting that a district court should consider "voli-

tional impairments" under section 5K2.13, and McBroom was

not decided until after Leandre was sentenced. See

McBroom, 124 F.3d at 544-49. Given the absence of prece-

dent and the "novelty of the issue," the district court's failure

sua sponte to consider any "volitional" component of Lean-

dre's mental infirmity was not plain error. United States v.

Blackwell, 694 F.2d 1325, 1342 (D.C. Cir. 1982).

III.

Leandre's other claims of sentencing error require only

brief discussion.

His contention that the district court erred by failing to

reduce his sentence due to his extraordinary family circum-

stances under section 5H1.6 of the Guidelines is, given the

limited scope of review of a denial of a departure request,

fully met by United States v. Dyce, 91 F.3d 1462 (D.C. Cir.),

cert. denied, 117 S. Ct. 533 (1996). Leandre is a single father

of two young children who might be placed in foster care if

Leandre's brother refuses to take them into his home. Such

evidence of a difficult family situation that will arise upon

Leandre's incarceration is, unfortunately, no more extraordi-

nary than that deemed by the Dyce court not to be sufficient-

ly extraordinary for a departure. At best Leandre's situation

is within the same range of extraordinary circumstances as

those of the defendant in Dyce. See Dyce, 91 F.3d at 1466-

68. From the perspective of the defendants' children, the

result may be harsh but it is not so extraordinary a circum-

stance confronting sentencing judges. If, as this court con-

cluded in Dyce, the district court erred in taking into account

the desirability of breast feeding of a newborn by the defen-

dant, see Dyce, 91 F.3d at 1467, then the district court's

decision not to depart because Leandre cared for his two

children falls within the range of permissible determinations

available in the exercise of reasoned discretion.

Finally, Leandre's contention that the district court erred

by failing to reduce his sentence because of his status as an

alien is meritless. A downward departure from the Guide-

lines "may be appropriate where the defendant's status as a

deportable alien is likely to cause a fortuitous increase in the

severity of his sentence." United States v. Smith, 27 F.3d

649, 655 (D.C. Cir. 1994). But Leandre, assisted by able

counsel, requested at sentencing only that the district court

consider the increased likelihood of his deportation. In deny-

ing the articulated request, the district court concluded that

"no departure is appropriate because of [Leandre's] status

which has been placed at risk by his own criminal behavior."

At no point did Leandre suggest that he might suffer more

serious punishment as a result of his deportation. See Smith,

27 F.3d at 655. Hence, the district court cannot be faulted

for failing sua sponte to also address whether his deportable

status would affect the severity of his sentence. See Saro, 24

F.3d at 286; cf. United States v. Soto, No. 97-3002, 1997 WL

791661 (D.C. Cir. Dec. 30, 1997).

Accordingly, we affirm the denial of Leandre's request for

downward departures from the Guidelines and the judgment

of conviction.