[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11520 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 9, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-20632-KMM-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
NORRIS LUNDY,
a.k.a. Polo,
lllllllllllllllllllll Defendant-Appellant
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 9, 2010)
Before DUBINA, Chief Judge, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Appellant Norris Lundy appeals his 188-month total sentence after pleading
guilty to two counts of possession of crack cocaine with intent to distribute, in
violation of 21 U.S.C.§ 841(a)(1).
On appeal, Lundy argues that the district court erred in denying his motion
for a second psychiatric evaluation, which he filed to assist in his sentencing. He
notes that 18 U.S.C. § 3006A(e)(1) provides that district courts will authorize
indigent defendants to obtain services “necessary for adequate representation.” He
contends that the district court’s denial of his motion prejudiced him because it
precluded him from requesting a diminished capacity departure pursuant to
U.S.S.G. § 5K2.13. Additionally, he asserts that the denial left him unable to
effectively argue for a reduced sentence based on his mitigating psychological
issues.
We review the district court’s denial of a motion for presentence psychiatric
examination for abuse of discretion. See United States v. Nickels, 324 F.3d 1250,
1251 (11th Cir. 2003) (reviewing presentence motions brought under 18 U.S.C. §§
3552(c) and 4241(a)).
“Counsel for a person who is financially unable to obtain investigative,
expert, or other services necessary for adequate representation may request them
in an ex parte application.” 18 U.S.C. § 3006A(e)(1). After appropriate inquiry,
if the district court finds the services to be necessary, it shall authorize counsel to
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obtain them. Id. “A court may refuse to authorize Section 3006A(e) expert
services on grounds that they are not ‘necessary’ when it concludes that the
defendant does not have a plausible claim or defense.” United States v. Rinchack,
820 F.2d 1557, 1564 (11th Cir. 1987).
The guidelines provide that a “downward departure may be warranted if (1)
the defendant committed the offense while suffering from a significantly reduced
mental capacity; and (2) the significantly reduced mental capacity contributed
substantially to the commission of the offense.” U.S.S.G. § 5K2.13. The
guidelines do not require a defendant to submit to psychiatric examination in order
to request a departure based on diminished capacity. See id.
In imposing a sentence, the district court is required to choose a term that is
“sufficient, but not greater than necessary to comply with the purposes” listed in
18 U.S.C. § 3553(a)(2), including the need to reflect the seriousness of the
offense, promote respect for the law, provide just punishment for the offense, deter
criminal conduct, protect the public from the defendant’s future criminal conduct,
and provide the defendant with needed educational or vocational training or
medical care. See 18 U.S.C. § 3553(a). The court must also consider the nature
and circumstances of the offense, the history and characteristics of the defendant,
the kinds of sentences available, the applicable guideline range, the pertinent
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policy statements of the Sentencing Commission, the need to avoid unwarranted
sentencing disparities, and the need to provide restitution to victims. Id.
§ 3553(a)(1), (3)-(7). For purposes of § 3553(a)(1), “the history and
characteristics of the defendant” include the defendant’s mental capacity. See
18 U.S.C. § 3553(a)(1); see also United States v. Willis, 560 F.3d 1246, 1251
(11th Cir. 2009) (discussing defendant’s diminished mental capacity in the context
of § 3553(a)(1)). A district court may assess a defendant’s mental condition
without the aid of a psychiatric examination if it has adequate information relating
to the condition. Nickels, 324 F.3d at 1251 (affirming the denial of a motion for a
psychiatric examination under 18 U.S.C. § 3552(c)).
After reviewing the record, we conclude that the district court did not err in
sentencing Lundy without the aid of an additional presentence psychiatric
examination, because such an examination was not “necessary for adequate
representation” under 18 U.S.C. § 3006A(e)(1). Lundy did not need the additional
examination in order to request a departure for diminished capacity. See U.S.S.G.
§ 5K2.13. The additional examination was also unnecessary for purposes of §
3553(a) sentencing arguments, since the district court may properly consider a
defendant’s mental condition without a presentence examination so long as it has
adequate information relating to the condition. See Nickels, 324 F.3d at 1251. In
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light of the ample information concerning Lundy’s mental health available to the
district court, it did not abuse its discretion in denying his request for an additional
psychiatric examination. Accordingly, we affirm the denial of Lundy’s request for
additional psychiatric examination and his sentence.
AFFIRMED.
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