RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Cooper No. 02-6172
ELECTRONIC CITATION: 2003 FED App. 0394P (6th Cir.)
File Name: 03a0394p.06 Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEY,
Lexington, Kentucky, for Appellee.
UNITED STATES COURT OF APPEALS _________________
FOR THE SIXTH CIRCUIT OPINION
_________________ _________________
UNITED STATES OF AMERICA , X BOYCE F. MARTIN, JR., Circuit Judge. Dennis J.
Cooper, a federal prisoner proceeding through counsel,
Plaintiff-Appellee, - appeals the sentence imposed upon his conviction for
-
- No. 02-6172 possessing child pornography in violation of 18 U.S.C.
v. - § 2252(a)(4)(B). The parties have waived oral argument and,
> upon examination, this panel unanimously agrees that oral
, argument is not needed. Fed. R. App. P. 34(a).
DENNIS J. COOPER , -
Defendant-Appellant. - Cooper was indicted by a grand jury on one count of
N possessing child pornography. When questions arose
Appeal from the United States District Court concerning Cooper’s mental health, the district court ordered
for the Eastern District of Kentucky at Lexington. a psychiatric evaluation and subsequently found that Cooper
No. 01-00015—Joseph M. Hood, District Judge. was competent to stand trial. On February 11, 2002, Cooper
waived his right to a trial and pleaded guilty as charged,
Submitted: September 18, 2003 pursuant to a written plea agreement. The presentence
investigation report calculated Cooper’s offense level as
Decided and Filed: November 5, 2003 sixteen, his criminal history category as I, and the resulting
guidelines range of imprisonment as twenty-one to twenty-
Before: MARTIN and SUTTON, Circuit Judges; MILLS, seven months. Defense counsel filed no objections to these
District Judge.* calculations, but did move for a downward departure based on
diminished capacity pursuant to section 5K2.13 of the
_________________ Sentencing Guidelines. Although a new psychiatric
evaluation revealed that Cooper suffered from major
COUNSEL depressive disorder and functioned at a borderline intellectual
level, the evaluating team nonetheless concluded that Cooper
ON BRIEF: John K. West, McCOY, WEST, FRANKLIN did not suffer from diminished capacity as defined by the
& BEAL, Lexington, Kentucky, for Appellant. Charles P. guideline. The district court considered the report at
sentencing, denied the downward departure motion, and
sentenced Cooper at the high end of the range to twenty-seven
*
months in prison. The judgment was filed on September 16,
The Hon orable R ichard M ills, United States District Judge for the 2002, and was entered September 17, 2002.
Central District of Illinois, sitting by designation.
1
No. 02-6172 United States v. Cooper 3 4 United States v. Cooper No. 02-6172
Section 5K2.13 provides, in pertinent part: 1998); see also United States v. Owusu, 199 F.3d 329, 349
(6th Cir. 2000). Furthermore, we will presume that the
A sentence below the applicable guideline range may be district court did understand its discretion in the absence of
warranted if the defendant committed the offense while any evidence to the contrary in the record. See United States
suffering from a significantly reduced mental capacity. v. Ford, 184 F.3d 566, 585 (6th Cir. 1999). According to the
However, the court may not depart below the applicable record, the district court ordered Cooper to undergo a
guideline range if (1) the significantly reduced mental psychiatric and psychological examination at the Federal
capacity was caused by the voluntary use of drugs or Correctional Institution in Butner, North Carolina, in order to
other intoxicants; (2) the facts and circumstances of the determine, among other things, whether he suffered from
defendant’s offense indicate a need to protect the public diminished capacity at the time of his offense. The results of
because the offense involved actual violence or a serious the examination indicated that he did not suffer from
threat of violence; or (3) the defendant’s criminal history diminished capacity. The transcript from the sentencing
indicates a need to incarcerate the defendant to protect hearing clearly reveals that the district court considered
the public. . . . Cooper’s argument but concluded, based upon the test results,
that a downward departure based upon diminished capacity
USSG § 5K2.13. “Significantly reduced mental capacity” is was unwarranted: “I have . . . received a copy of the report
defined in the commentary regarding section 5K2.13 as “a from Butner, and in that report the conclusion is that Mr.
significantly impaired ability to (A) understand the Cooper does not suffer from a diminished capacity. So
wrongfulness of the behavior comprising the offense or to whether [the downward departure] is warranted or not – I
exercise the power of reason; or (B) control behavior that the don’t think it is because, because of that finding by the staff
defendant knows is wrongful.” at Butner.”
As a general rule, a district court’s refusal to grant a Under these circumstances, we must conclude that the
downward departure, whether pursuant to section 5K2.13 or district court was aware of its discretion to grant a downward
another guideline, is unreviewable on appeal unless the departure for diminished capacity but determined that the
district court (1) improperly computed the guideline range; facts of the case did not justify such a departure. Therefore,
(2) was unaware of its discretion to depart downward from the district court’s refusal to grant the downward departure is
the guideline range; or (3) imposed the sentence in violation unreviewable on appeal.
of law or as a result of the incorrect application of the
Sentencing Guidelines. See United States v. Price, 258 F.3d Cooper also suggests that the district court improperly
539, 547-48 (6th Cir. 2001). applied subsections (2) and (3) of section 5K2.13, which
provide that even if the defendant suffered from diminished
Cooper’s primary argument is that appellate review is capacity at the time of the offense, the court should not grant
appropriate because the district court was unaware of its a downward departure on that basis if it finds a need to
discretion to grant a downward departure in this case. The “protect the public.” Subsections (2) and (3) do not come into
district court need not explicitly state that it is aware of its play unless the court finds that the defendant suffered from
discretionary authority to depart downward; the record need diminished capacity at the time of the offense. Because the
only make clear the court’s awareness of its discretion. See district court concluded that Cooper did not suffer from
United States v. Strickland, 144 F.3d 412, 418 (6th Cir. diminished capacity, its determinations regarding the need to
No. 02-6172 United States v. Cooper 5
protect the public are irrelevant. Therefore, we decline to
consider Cooper’s argument that the district court improperly
applied subsections (2) and (3) of section 5K2.13.
Accordingly, the district court’s judgment is affirmed.