United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 23, 2000 Decided April 6, 2001
No. 98-3133
United States of America,
Appellee
v.
Pili C. Greenfield,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 98cr00067-01)
Neil H. Jaffee, Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A. J.
Kramer, Federal Public Defender.
Elizabeth Carroll, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, and John R. Fisher and Roy W.
McLeese, III, Assistant U.S. Attorneys. Mary-Patrice
Brown, Assistant U.S. Attorney, entered an appearance.
Before: Edwards, Chief Judge, Rogers and Garland,
Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: Pili Greenfield pled guilty to the
charge of conspiring to possess with intent to distribute
cocaine base. Greenfield asked the district court to depart
downward from the sentence required by the United States
Sentencing Guidelines (U.S.S.G.), asserting that he had com-
mitted the offense while suffering from significantly reduced
mental capacity. The district court declined to grant the
requested departure. Finding no error in the court's applica-
tion of the Guidelines, we affirm.
I
Greenfield was arrested during a January 1998 police raid
on a house in which cocaine base was being packaged for sale.
A grand jury initially indicted him for possession with intent
to distribute 50 grams or more of cocaine base, in violation of
21 U.S.C. ss 841(a)(1) and 841(b)(1)(A)(iii). Greenfield later
pled guilty to a superseding information charging him with
conspiracy to possess with intent to distribute cocaine base, in
violation of 18 U.S.C. s 371.
Pursuant to Federal Rule of Criminal Procedure 32(b)(1),
the United States Probation Office submitted a presentence
report (PSR) to the court. The report concluded that, under
the Sentencing Guidelines, the applicable sentence in Green-
field's case was 60 months' imprisonment.1 Greenfield filed a
memorandum seeking a downward departure from the guide-
__________
1 Based on Greenfield's offense level and criminal history, the
PSR determined that the applicable guideline range was 87-108
months. PSR p 56. However, because 18 U.S.C. s 371 authorized
a maximum sentence of only 60 months, and because that sentence
was less than the minimum of the applicable guideline range,
U.S.S.G. s 5G1.1(a) dictated that the court apply the 60-month
sentence. See PSR p 56.
line sentence on the ground that he suffered from significant-
ly reduced mental capacity, pursuant to U.S.S.G. s 5K2.13.
According to the memorandum, Greenfield suffered from
depression, which contributed to his participation in the drug
conspiracy. Def.'s Mem. in Aid of Sentencing at 7.
At the sentencing hearing, Greenfield called as his only
witness Dr. Clark Hudak, a Ph.D. in clinical social work and
the director of a drug treatment program. Hudak had
previously treated Greenfield in 1995-96, and reexamined him
in April 1998 at the request of defense counsel. A copy of
Hudak's written report was also admitted into evidence.
Hudak testified that when he first saw Greenfield in 1995,
he diagnosed him as suffering from depression. At the same
time, Hudak learned that Greenfield was using marijuana
heavily. Hudak consulted with a staff psychiatrist who con-
firmed the diagnosis of depression and placed Greenfield on
medication. Sentencing Hr'g Tr. at 21. After nine months to
a year of therapy, Hudak found that Greenfield was respond-
ing "pretty well" and discharged him from the treatment
program. Id. at 22.
Hudak testified that he did not see Greenfield again until
April 1998, three months after his arrest. Id. at 25. Green-
field told Hudak that he had stopped taking his medication
soon after leaving the treatment program in 1996, and that he
had quickly resumed using drugs. Id. at 25-26. Hudak's
"impression ... was that [Greenfield] was still suffering from
a depression[, and] that he was also addicted to marijuana
and cocaine." Id. at 30. Hudak testified that "when a person
gets ... depressed," he can "get involved in very self-
destructive behaviors," and that "knowing his history, I be-
lieve that's the direction that [Greenfield] went until he was"
arrested. Id. at 26.
On cross-examination, Hudak testified that "in some cases,
if a depression is severe enough, ... it can impair one's
capacity" and "could significantly reduce someone's mental
capacity." Id. at 31-32. Hudak conceded, however, that he
had "no idea" what Greenfield's "mental condition was in
January of 1998." Id. at 33. Hudak further testified that
Greenfield's drug use was voluntary, id. at 31, that once he
stopped taking his medication it was predictable that Green-
field "would return to drugs as a way to self medicate for his
depression," id. at 33, and that his use of drugs was "a
contributing factor to his reduced mental state." Id. at 34.
After the parties completed their examinations, the district
court undertook its own inquiry. The court asked Hudak to
explain the various degrees of depression and their associated
treatments, and to relate them to defendant's condition. Id.
at 35-38. Hudak said that when he saw Greenfield in 1995-
96, he did not recommend the kind of treatment, including
hospitalization, that would be indicated for severe depression.
Id. at 37-38. After further probing by the court, Hudak
described Greenfield's depression as "moderate." Id. at 39.
At the conclusion of the sentencing hearing, the district
court denied Greenfield's request for a departure under
s 5K2.13. "[T]here is simply no basis to depart," the court
said. "With respect to this matter of depression[,] ...
viewed ... in the most favorable light, ... the testimony
actually given by [Hudak] mandates that the court not take
into consideration diminished capacity." Id. at 52. The court
imposed the 60-month guideline sentence, with accompanying
recommendations that Greenfield be placed in a "boot camp,"
rather than a typical prison facility, and that he be permitted
to enter a drug treatment program. Id. at 54.
II
This court may review a district court's refusal to depart
downward from an applicable guideline range only to deter-
mine whether the sentence was imposed "in violation of law"
or "as a result of an incorrect application of the sentencing
guidelines." 18 U.S.C. s 3742(a)(1), (2); see United States v.
Leandre, 132 F.3d 796, 800 (D.C. Cir. 1998); United States v.
Sammoury, 74 F.3d 1341, 1343 (D.C. Cir. 1996). We must
"accept the findings of fact of the district court unless they
are clearly erroneous," and "give due deference to the district
court's application of the guidelines to the facts." 18 U.S.C.
s 3742(e). If a district court refuses to depart because it
"mistakenly believes [it] lacks authority to do otherwise," its
sentencing decision is reviewable as an incorrect application
of the Guidelines. Sammoury, 74 F.3d at 1344. If the court
"correctly understands [its] discretionary authority to depart
downward when a particular mitigating circumstance exists,
[but] make[s] a clearly erroneous factual finding that the
circumstance does not exist," the resulting sentence may also
have been imposed as a result of an incorrect application of
the Guidelines. Id. at 1344; see Leandre, 132 F.3d at 800.
The relevant version of U.S.S.G. s 5K2.13, which is entitled
"Diminished Capacity," provides:
If the defendant committed a non-violent offense while
suffering from significantly reduced mental capacity not
resulting from voluntary use of drugs or other intoxi-
cants, 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 defen-
dant's criminal history does not indicate a need for
incarceration to protect the public.
U.S.S.G. s 5K2.13, p.s. (1997).2 As we have previously noted,
this guideline contains five eligibility criteria. A district court
may depart downward under s 5K2.13 if the 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 [drugs or] other intoxicants,
(4) where the defendant's mental incapacity 'contributed to
the commission of the offense,' (5) so long as the defendant's
criminal record does not indicate a need for imprisonment to
protect public safety." Leandre, 132 F.3d at 800.
__________
2 Amendments to s 5K2.13, effective November 1998 (after
Greenfield was sentenced), clarified the conditions for a departure
under the guideline as well as the meaning of "significantly reduced
mental capacity." See U.S.S.G. s 5K2.13 & comment., n.1 (1998);
U.S.S.G. app. C, amend. 583. Neither party urges application of
the revised guideline or suggests that it would have any effect on
the disposition of this appeal.
There is no question that the district court understood that
it had discretion to depart under s 5K2.13 if each of the five
criteria were met.3 Defendant contends, however, that the
court "failed to consider ... Greenfield's individualized facts
and circumstances in weighing his diminished capacity depar-
ture request," and that "there is nothing in th[e] record to
indicate that the district court determined whether the re-
quirements for a s 5K2.13 departure had been met." Green-
field Br. at 9. Neither charge is true. The court heard
extensive testimony regarding defendant's individual facts
and circumstances, and personally examined the expert wit-
ness about Greenfield's psychological condition. Following
the testimony, the court concluded, on the record, that the
requirements for application of s 5K2.13 had not been met.
See Sentencing Hr'g Tr. at 52.
Greenfield also argues that the district court misunderstood
the law regarding the third and fourth criteria for departure
under s 5K2.13. In support, he relies on the judge's state-
ment that Hudak's testimony "mandates that the court not
take into consideration diminished capacity." Id. at 52. Ac-
cording to defendant, the court was "apparently referring to
testimony by the defense expert that Greenfield was addicted
to drugs," and wrongly concluded that such an addiction
required the court to deny a departure. Greenfield Br. at 5-
6. Citing United States v. Leandre, Greenfield argues that as
__________
3 Defendant's appellate briefs do not dispute this point, and the
entire focus of the sentencing hearing was on whether the criteria
were met. Although, as discussed below, the district court conclud-
ed that Hudak's testimony "mandates that the court not take into
consideration diminished capacity," Sentencing Hr'g Tr. at 52 (em-
phasis added), in context it is clear that the court used the word
"mandates" to indicate that s 5K2.13's criteria were not met. In-
deed, the court prefaced its conclusion with an equivalent formula-
tion: "[T]here is simply no basis to depart." Id. at 52. See United
States v. Shark, 51 F.3d 1072, 1077 (D.C. Cir. 1995) (holding that
judge's statement, that "I don't see any basis on what I've heard so
far that gives me any leeway," indicated "that the judge appreciated
his discretion [to depart] but thought that he had not been present-
ed with any reason to exercise it").
long as reduced mental capacity did not itself "result[ ] from
voluntary use of drugs," 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." 132 F.3d at 806. Greenfield asserts that
Hudak's testimony met these requirements, and that in fail-
ing to comprehend them, the district court misapplied the
guideline's third criterion (regarding voluntary drug use), as
well as its fourth (regarding the contribution of defendant's
mental capacity to the commission of the offense).
We need not dwell on whether Hudak's testimony satisfied
the third and fourth criteria of s 5K2.13, however, because
there is nothing in the district court's statement to suggest
that its decision was based on those criteria--or on Hudak's
testimony regarding drug use at all. The court did not
specify which criteria defendant failed, and there is no reason
to assume it was referring to these two. As we have stressed
before with respect to refusals to depart, "the appellant ...
has the initial responsibility to ensure that the district court
explains its reasoning for the record, and appellant neglected
that responsibility when he failed to object to the district
court's ruling. Under these circumstances, we assume 'that
the district court kn[ew] and applie[d] the law correctly'...."
United States v. Pinnick, 47 F.3d 434, 439 (D.C. Cir. 1995)
(quoting United States v. Garcia-Garcia, 927 F.2d 489, 491
(9th Cir. 1991)).
In any event, in this case it is clear that the sentencing
court's focus was not on the testimony regarding Greenfield's
drug use and its relation to the third and fourth criteria, but
rather on Hudak's testimony about Greenfield's mental condi-
tion and its relation to the second criterion of s 5K2.13: the
requirement that the defendant have committed the offense
while suffering from "significantly reduced mental capacity."
Greenfield's evidence failed to demonstrate that his mental
capacity was significantly reduced, and that it was significant-
ly reduced at the relevant time.
A diagnosis of depression, alone, does not establish that a
defendant suffered from "significantly reduced mental capaci-
ty" under s 5K2.13. See United States v. Watkins, 179 F.3d
489, 500 (6th Cir. 1999) (affirming refusal to depart where,
although defendant introduced evidence that he suffered from
"depressive disorder," no evidence "reflected his alleged di-
minished capacity"); see also United States v. Withers, 100
F.3d 1142, 1148 (4th Cir. 1996) (same); cf. United States v.
Edwards, 98 F.3d 1364, 1371 (D.C. Cir. 1996). Nor is the
guideline satisfied even by testimony that the depression
manifested itself in "reduced" mental capacity. Rather, the
words of the guideline require evidence that the defendant's
mental capacity was "significantly" reduced. U.S.S.G.
s 5K2.13; see United States v. Webb, 49 F.3d 636, 639 (10th
Cir. 1995) (reversing s 5K2.13 departure where, although
defendant's psychiatric reports documented a history of men-
tal problems, "they do not address or lead to the conclusion
that defendant suffered from 'significantly reduced mental
capacity' "); see also United States v. Frazier, 979 F.2d 1227,
1230 (7th Cir. 1992) (same). Moreover, defendant's mental
capacity must have been significantly reduced at the time he
committed the offense. See United States v. White, 71 F.3d
920, 929 (D.C. Cir. 1995); Frazier, 979 F.2d at 1230.
The sentencing court's own examination of Hudak makes
clear that its focus was on Greenfield's claim of significantly
reduced mental capacity, rather than on the implications of
his drug use. The court did not ask Hudak a single question
about drug use. Rather, it inquired extensively into the
nature and severity of Greenfield's mental disorder, and
asked Hudak to explain what the treatment prescribed for
defendant indicated about the level of severity. Sentencing
Hr'g Tr. at 35-39. In response, Hudak categorized Green-
field's depression as "moderate," id. at 39, and testified that
the consulting psychiatrist had prescribed an antidepressant,
id. at 22, characterized by the PSR as "mild," PSR p 41.
Nothing in Hudak's response to the court's inquiries would
have supported a finding of "significantly" reduced mental
capacity.
Nor was there anything in Hudak's direct or cross-
examination testimony that would have supported such a
finding. Although Hudak testified that "in some cases, if a
depression is severe enough, ... it can impair one's capacity"
and "could significantly reduce someone's mental capacity,"
Sentencing Hr'g Tr. at 31 (emphasis added), he never testi-
fied that this was so in Greenfield's case. To the contrary, he
testified that Greenfield's depression was only moderate, "on
a scale of mild at the least, moderate in the middle, and then
severe." Id. at 39. Moreover, Hudak failed altogether to
offer an opinion about Greenfield's mental condition at the
time of the offense, conceding that he had "no idea ... what
[Greenfield's] mental condition was in January of 1998." Sen-
tencing Hr'g Tr. at 33.
Hudak's written report was equally deficient. Although
the report stated that "Greenfield suffers from a depressive
disorder" and that without proper treatment his judgment
"becomes impaired," App. 36, Hudak did not indicate the
severity of that impairment nor tie it to an evaluation of
Greenfield's mental capacity. Indeed, the contents of the
report cut strongly against a finding of significantly reduced
mental capacity. Hudak reported that:
[Greenfield] seemed to be experiencing mild anxiety
related to his pending legal matters. He was oriented
[as] to person, place and time, and there was no evidence
of any psychotic behavior past or present. His recent
and remote memory were intact; his thinking was clear
and organized; and he seemed to be functioning at an
above average level of intelligence. There was clear
evidence of tendencies toward impulsivity; however, he
appeared to not be at risk for suicidal or homicidal
behavior.
Id. at 35. Whether or not this description necessarily pre-
cludes a finding of diminished capacity, it surely does not
support such a finding, and there is no evidence in the record
that does. Moreover, like his testimony, Hudak's report does
not even venture a guess as to Greenfield's mental capacity
on the day he committed the crime.
In light of the clear focus of the district court's questioning
of Hudak, and of the content of his testimony, we have no
doubt that the court's reference to "the testimony actually
given" was a reference to Hudak's testimony regarding defen-
dant's mental capacity. For the same reason, it is clear that
the court's conclusion, that Hudak's testimony "mandates that
the court not take into consideration diminished capacity,"
expressed its view that the expert had failed to say anything
that would have permitted a departure for diminished capaci-
ty under s 5K2.13. Given the complete dearth of evidence to
meet s 5K2.13's second criterion, there was nothing "incor-
rect" about the court's conclusion, 18 U.S.C. s 3742(a)(2).
See Frazier, 979 F.2d at 1230 (vacating departure where,
although mental health evaluation diagnosed defendant as
having depression, it did not "conclud[e] that the defendant
'suffered from significantly reduced mental capacity' when
she committed her offense"); see also Webb, 49 F.3d at 639
(same); cf. Leandre, 132 F.3d at 803 (noting that "a bare
showing of reduced mental capacity, without more, is insuffi-
cient to authorize a court to depart," and that "[a]bsent some
causal link, the sentencing judge would misapply the Guide-
lines by granting a departure"); United States v. Cantu, 12
F.3d 1506, 1511 (9th Cir. 1993) (noting that "a defendant
bears the burden of proving the appropriateness of a down-
ward departure").
III
The district court neither misapprehended its authority
under, nor otherwise misapplied, the Sentencing Guidelines.
Accordingly, the judgment of that court is
Affirmed.