UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 96-50734
(Summary Calendar)
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JASON ARTHUR COPSON,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(A-95-CR-162-1)
September 17, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Jason Arthur Copson, a self-described computer and telephone
“hacker,” plead guilty to aiding and abetting the interstate
transportation of stolen property in violation of 18 U.S.C. §§ 2
and 2314 and was sentenced to, among other things, 96 months of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
imprisonment and a three-year term of supervised release. On
appeal, Copson asserts that the district court erred in not
allowing him to withdraw his guilty plea and in denying his motion
for reduction in sentence based on diminished capacity. We affirm.
I
In September 1995, Copson entered into a plea agreement with
the government. This agreement provided that “[i]f the Defendant
fully complies with the terms of this plea agreement, and in
addition provides substantial assistance to the United States in
this and other criminal investigations, the United States Attorney
for the Western District of Texas [“United States Attorney”] will
file a motion for a downward departure pursuant to [United States
Sentencing Guidelines] § 5K1.1.” Section 5K1.1 provides in
relevant part that “[u]pon motion of the government stating that
the defendant has provided substantial assistance in the
investigation or prosecution of another person who has committed an
offense, the court may depart from the guidelines.” The plea
agreement then noted that “the determination as to whether or not
the defendant has provided substantial assistance shall be made
exclusively by the United States Attorney” and that the United
States Attorney had “sole discretion” over the “decision to file a
5K1.1 motion . . . .”
Subsequently, Copson filed a motion to withdraw his guilty
plea, asserting that the government had denied him an opportunity
to provide substantial assistance in accordance with the plea
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agreement and thus prevented him from qualifying for a § 5K1.1
departure. Copson also asserted that his guilty plea was based on
a prior plea agreement in which the government consented both to
move for a § 5K1.1 departure and to recommend that his sentence run
concurrently with a state sentence he was serving.1 Lastly, Copson
maintained that, unbeknownst to him, the government changed the
plea agreement before he signed it. Copson later revoked his
motion to withdraw his guilty plea and never renewed it.2
Prior to the sentencing hearing, a psychiatrist examined
Copson and determined that he suffered from an obsessive-compulsive
disorder, used self-mutilation for relaxation, and suffered from
“Diminished Capacity at the time of his offense” (emphasis in
original). The psychiatrist also testified to this effect at the
1
In support of this contention, Copson relied on an
unsigned draft of a plea agreement which was apparently faxed
from the U.S. Attorney’s Office to Copson in April 1995. The
draft agreement states in part that
[i]f the Defendant fully complies with the terms of
this plea agreement, and in addition provides
substantial assistance to the United States in this and
other criminal investigations, the United States
Attorney . . . may file a motion for a downward
departure pursuant to . . . § 5K1.1, and/or may request
that the Court order that sentence in this matter run
concurrently with the sentence that the defendant is
now serving.
The draft agreement also notes that the United States Attorney
had “sole discretion” over the “decision to file a 5K1.1 motion
or request a concurrent sentence . . . .”
2
The Assistant United States Attorney (“AUSA”) stated at the
sentencing hearing that Copson “has agreed to withdraw his motion to withdraw
his plea - in other words, to proceed with sentencing today.” Copson’s
attorney responded that “[m]y client has agreed that he would proceed . . . as
well as withdraw[] his motion to vacate his plea previously filed.”
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sentencing hearing. In addition, Copson was evaluated by a
psychologist employed by the Federal Bureau of Prisons who
confirmed that Copson was suffering from a mental disease but could
still “comprehend[] the charges against him and . . . provide
reliable information to assist his attorney in his own defense.”
Based on the evidence regarding Copson’s mental state and its
own observations, the district court decided at the sentencing
hearing that Copson was sufficiently competent to understand the
proceedings.3 The court then considered Copson’s motion for a
downward departure based on diminished mental capacity pursuant to
§ 5K2.13 of the Guidelines. Section 5K2.13 provides that
[i]f the defendant committed a non-violent offense while
suffering 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.
At one point during the sentencing hearing, the district court
stated that “[d]iminished capacity, I guess, could come from
various sources, from alcohol, from drugs.” The court then
confirmed that diminished capacity was a proper ground for
departure under the Guidelines except when it resulted from the use
3
The district court conducted Copson’s first sentencing hearing on
May 20, 1996. After hearing psychiatric testimony regarding Copson’s mental
health, the court held the proceedings in abeyance pending a 45-day mental
health examination of Copson at the Bureau of Prisons. The sentencing hearing
resumed on September 11, 1996, at which time the court found Copson competent
enough to comprehend the proceedings.
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of drugs or other intoxicants, and proceeded to hear argument over
whether Copson should receive the § 5K2.13 departure. During this
discussion, the prosecutor stated that in order to depart downward,
the court should find some nexus between the diminished mental
capacity and the offense. It is unclear from the record whether
the court agreed with this comment.
Ultimately, the district court denied Copson’s motion for
downward departure and sentenced Copson to 96 months of
imprisonment, a three-year term of supervised release, the payment
of $320,513.60 in restitution, and a $50.00 special assessment.
Copson appeals.
II
Copson first contends that the district court erred in failing
to allow him to withdraw his guilty plea, and that this error
deprived him of constitutional due process.
Copson filed a motion to withdraw his guilty plea shortly
before his sentencing hearing because the government had allegedly
breached the plea agreement by not filing a § 5K1.1 motion. Copson
later withdrew this motion and affirmed his desire to plead guilty
in open court. He never renewed the motion. Now, on appeal,
Copson apparently maintains that the district court should have sua
sponte struck his guilty plea because the government allegedly
violated the plea agreement.
Where a defendant fails to preserve an objection to something
affecting his substantial rights (e.g., does not object to a guilty
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plea), we generally review the “mistake” he did not point to below
for plain error. See FED. R. CRIM. P. 52(b) (“Plain errors or
defects affecting substantial rights may be noticed although they
were not brought to the attention of the court.”); United States v.
Ruiz, 43 F.3d 985, 988 (5th Cir. 1995) (stating that “unobjected-to
errors” warrant plain error review). However, the Supreme Court
has held that, where a defendant makes an objection, withdraws it,
and then fails to renew it, the defendant has “waived” the
objection and may not rely upon it as a ground for reversal.
Johnson v. United States, 318 U.S. 189, 200-01, 63 S. Ct. 549, 554-
55, 87 L. Ed. 704 (1943). We simply refuse to review a defendant’s
argument on appeal in such a situation because “we are not dealing
here with inadvertence or oversight. This is a case where silent
approval of the course followed by the court is accompanied by an
express waiver of a prior objection . . . .” Id.
In this case, Copson moved to withdraw his guilty plea because
the government allegedly breached the plea agreement. He then
revoked the motion and failed to renew it. Now, he attempts to
resurrect the motion on appeal under the pretext of alleging that
the district court “erred” in “failing” to permit him to recant his
guilty plea. However, we determine that, under Johnson, Copson has
waived any objection to his guilty plea based on the government’s
alleged breach of the plea agreement, and that we may not consider
his argument on that point.
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III
Copson next avers that the district court erred in denying his
motion under § 5K2.13 for a reduction in sentence based on
diminished capacity. We lack jurisdiction to review a defendant’s
challenge to his sentence based merely upon his dissatisfaction
with the court’s refusal to grant a downward departure. United
States v. DiMarco, 46 F.3d 476, 477 (5th Cir. 1995); see also 18
U.S.C. § 3742(a) (listing kinds of challenges to sentences
permitted on appeal). Jurisdiction will lie, however, if the
sentencing court’s refusal to depart downward violated the law.
United States v. Akin, 62 F.3d 700, 701 (5th Cir. 1995). A
violation of law occurs if the court bases its refusal to depart
downward on the mistaken assumption that it does not have the
authority to do so. Id. In the absence of such a violation,
however, this court will not disturb the sentencing court’s
discretionary decision not to depart downward. United States v.
Keller, 947 F.2d 739, 740 (5th Cir. 1991).
Copson argues that we have jurisdiction to review the district
court’s refusal to grant him a § 5K2.13 departure because the
district court mistakenly assumed that it did not have the
authority to reduce his sentence under that section. Specifically,
Copson asserts that the district court incorrectly believed that,
to obtain a downward departure under § 5K2.13, a defendant’s
diminished capacity must be the sole cause of the crime and the
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defendant must prove that he is insane. In addition, he maintains
that the court wrongly equated diminished mental capacity with use
of alcohol or drugs, a comparison that § 5K2.13 specifically
forbids.
On the first point, Copson maintains that the district court
misapplied § 5K2.13 when it allegedly relied on the prosecutor’s
statement that there must be “some nexus between the problem he has
and the offense that he committed; that it [in] some way
contributed to the commission of the offense . . . .”
Section 5K2.13 provides in relevant part that “a lower sentence may
be warranted to reflect the extent to which reduced mental capacity
contributed to the commission of the offense . . . .” Contrary to
Copson’s assertion otherwise, there is no indication that the court
believed that it could grant a § 5K2.13 departure only if Copson’s
diminished mental capacity was the sole reason he committed the
offense. In fact, the prosecutor’s statement, which the district
court may or may not have adopted, is an accurate paraphrase of one
of the requirements of § 5K2.13.
Copson next asserts that the district court believed that it
could only award a § 5K2.13 departure if Copson was insane, as
opposed to merely suffering from diminished capacity. The record
reflects that the court relied upon the results of Copson’s mental
examinations to establish that he was competent for the purpose of
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proceeding with the sentencing hearing.4 Moreover, both before and
after the court made that determination, the parties discussed at
length issues related to diminished capacity as it pertained to a
downward departure under § 5K2.13.5 There is no evidence that the
court confused the question of Copson’s sanity for purposes of
proceeding with the sentencing hearing with its understanding of
diminished capacity as it relates to a § 5K2.13 departure.
In his third point, Copson contends that the court’s statement
that “diminished capacity, I guess, could come from various
sources, from alcohol, from drugs . . .” reflected its incorrect
belief that diminished capacity was not a recognized basis for a
§ 5K2.13 departure. Immediately after this statement, though, the
court clarified with the prosecutor that “diminished capacity from
4
Upon resumption of the sentencing hearing, the Court
stated that “[f]rom the standpoint of the legal definition of
sanity, [various experts] found and expressed to the court that
you were sane at the time of the [criminal] act or acts and also
at the present time. So, then we proceed with this sentencing
hearing based on those representations . . . .”
5
For example, the psychiatrist who examined Copson
testified at the sentencing hearing that he was instructed to
give “an opinion about whether there was or was not diminished
capacity” for purposes of § 5K2.13, and “that’s what I did.” The
prosecutor then confirmed that the psychiatrist was “just talking
now about whether [Copson] should be getting credit under”
§ 5K2.13.
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a mental standpoint” was grounds for departure,6 and the court
subsequently entertained extensive argument on the issue.
We conclude that the district court was fully aware of its
authority under § 5K2.13 to depart downward from the guideline
range. The record clearly indicates that the court took into
account Copson’s mental condition in deciding not to depart
downward, and the court’s willingness to hear arguments regarding
Copson’s alleged diminished capacity further demonstrates its
awareness of its authority to grant a § 5K2.13 departure. We find
no violation of law in the court’s exercise of its discretion here
and, therefore, lack jurisdiction to review the district court’s
refusal to depart downward under § 5K2.13.
IV
For the foregoing reasons, we AFFIRM the judgment of the
district court.
6
The following colloquy occurred between the district
court and prosecutor:
THE COURT: Diminished capacity . . . could come from
various sources, from alcohol, from drug ))
MR. PITMAN: Well, the guidelines don’t recognize that
circumstance.
THE COURT: Diminished capacity from a mental standpoint is
recognized?
MR. PITMAN: That’s correct, Your Honor. Anything that, in
fact, is not induced by drug or alcohol.
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