United States v. Thames

REVISED - June 28, 2000

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 99-31092

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MICHAEL ANTHONY THAMES,

Defendant-Appellant.

Appeal from the United States District Court
For the Eastern District of Louisiana
June 13, 2000
Before GARWOOD, DeMOSS, and PARKER, Circuit Judges.

DeMOSS, Circuit Judge:

Michael Anthony Thames (“Thames”) appeals from the sentence

imposed by the district court for the Eastern District of

Louisiana, the Honorable Veronica Wicker,1 presiding, after he

pleaded guilty to two counts of armed robbery in violation of 18

U.S.C. §§ 2113(a) and 2113(d), and one count of use of a firearm

during the commission of a felony in violation of 18 U.S.C.

1
Judge Wicker passed away sometime after sentencing Thames and
as a result, this case was reassigned to Judge Martin Feldman on
December 2, 1993.
§ 924(c)(1). For the reasons discussed below, we affirm the

sentence imposed.

BACKGROUND

The facts of this case are undisputed and the following

recitation thereof is taken primarily from the pre-sentence report

(“PSR”) prepared for the district court by the United States

Probation Office. Michael Thames was a police officer for the New

Orleans Police Department. On May 29, 1992, he used a small, snub-

nosed blue steel revolver to rob the Hibernia National Bank on

Canal Boulevard in New Orleans. In June 1992, the FBI had obtained

an identification of Thames as the robber through confidential

source information. Approximately one year after the first

robbery, on April 19, 1993, Thames used a .38 caliber Smith and

Wesson revolver to again rob the same branch of the Hibernia

National Bank. It was when the Hibernia Bank was robbed the second

time, by an individual matching his description, that the FBI

located and questioned Thames.

FBI agents stopped Thames in his vehicle, and upon

questioning, he consented to a search of his vehicle which produced

some of the money from the second robbery containing a dye pack

inserted therein by one of the tellers. Thames admitted to

committing both robberies and voluntarily went with the agents to

his residence where he retrieved and turned over the rest of the

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money from the second robbery. He subsequently admitted his guilt

as to both robberies to a probation officer and stated that he had

a gambling problem. The probation officer ultimately prepared a

PSR recommending a range of imprisonment of 70 to 87 months on the

robbery charges and the minimum mandatory 60 months applicable to

the firearms charge.

The government filed a motion with the district court asking

it to sentence Thames at the low end of the guidelines range based

on his early willingness to give a truthful account of his

involvement in the robberies, but it stopped short of filing a

§ 5K1.1 motion for departure from the guidelines because in the

government's opinion, Thames had not offered substantial

assistance. Thames informed the district court at his sentencing

hearing that he had a gambling addiction, and he suggested that his

status as a former New Orleans police officer would subject him to

the risk of physical harm in prison. The government reminded the

district court that Thames had cooperated as stated in its motion,

and it requested that the district court inform the Bureau of

Prisons of Thames' status as a former police officer.

On September 21, 1993, the district court sentenced Thames at

the lowest end of the guidelines range, to a term of imprisonment

of 70 months on the two robbery counts, to be served concurrently,

and it sentenced him to a statutory mandatory minimum 60-month term

of imprisonment on the firearms count, to be served consecutive to

the sentence for the robbery counts. Thames was also ordered to

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pay restitution in the amount of $25,639 to Hibernia National Bank.

After announcing Thames' sentence, the district court

expressed its concern that the guidelines range for Thames'

offenses were rather high given that he was a first-time offender.

Specifically the district court stated for the record:

Let me say that, although I'm aware of
your conditions, your mental conditions, and
the fact that you need treatment on two very
important areas. One is the manic depressive
mood swings and the other is your gambling
addiction, I find nothing in the guidelines to
permit this Court to deviate because of your
illnesses. And I feel that because of the
manner in which the sentencing guidelines are
set out at this time, that the court could not
deviate from what the sentencing guidelines
impose. However I wish the record to reflect
that you are a first time offender and I think
that the guidelines are rather harsh for the
crimes that were committed, but I feel
compelled by those guidelines to give you the
sentence that I have. I'm not sure that
perhaps at some time in the future those might
be changed . . . . But I wanted you to be
aware of that, Mr. Thames, although I may not
fully agree with the guidelines, I feel
compelled under the facts and circumstances of
this case, that they now stand, and the law,
to give you the sentence that you are getting,
which I think, for a first time offender, is
rather high.

The district court permitted Thames to file an out-of-time

appeal based upon a miscommunication between Thames and his

attorneys as to whether his attorneys were filing an appeal.2

2
On April 14, 1997, Thames sought habeas relief under 28 U.S.C.
§ 2255, requesting an out of time appeal based on his trial
counsel's alleged failure to inform him of the ten-day filing
requirement for a notice of appeal and failure to perfect an appeal
on his behalf. The district court initially denied his request

4
 DISCUSSION

On appeal, Thames argues that the district court erroneously

sentenced him under the mistaken belief that it could not depart

from the guidelines.3 Thames first claims that the district court

had authority to depart downward based under U.S.S.G. § 5K2.16,

based upon his voluntary disclosure of an additional crime, that

is, the first robbery, which according to Thames, would not have

been discovered absent his admission. He next claims that the

district court had authority to downwardly depart under Koon v.

United States, 116 S. Ct. 2035 (1996), because he would be subject

to abuse in prison as a former police officer. Thames also claims,

presumably under U.S.S.G. §§ 5K2.13 and 5K2.0, as well as 18 U.S.C.

§ 3553(b), that the district court could have departed because his

case is “out of the heartland” of cases contemplated by the

guidelines based upon both the history of corruption in the New

without a hearing, but on appeal, a panel of this Court remanded
his § 2255 petition for an evidentiary hearing. On remand, the
district court granted his petition, finding that his counsel
effectively denied Thames his right to appeal. Thus, Thames'
appeal is timely.
3
We pause here to note that within his “Summary of Argument”
Thames also argues that his counsel was ineffective in failing to
develop at sentencing that his case was out of the heartland based
upon his cooperation and status as a former police officer.
However, his ineffective assistance argument is neither listed in
his “Statement of Issues Presented for Review” nor addressed in the
body of his brief. Accordingly, his ineffective assistance claims
must be deemed waived. See L & A Contracting Co. v. Southern
Concrete Services, 17 F.3d 106, 113 (5th Cir. 1994)(issues
inadequately briefed are deemed waived); see also Fed. R. App. P.
28(a)(9)(A) & (B).

5
Orleans Police Department which had led to murders of cooperating

officers and the fact that his psychological problems (gambling

addiction and manic depressive mood swings) made his conduct

inadvertent. Thames finally argues that an aggregation of the

above factors took his case “out of the heartland.”

We are generally without jurisdiction to review a sentencing

court's refusal to grant a downward departure when its decision is

based upon a determination that departure was not warranted on the

facts of the case before it; however, we do have jurisdiction to

review such a refusal when it is based upon the district court's

mistaken belief that it does not have the authority to depart, as

such a mistaken belief would constitute a violation of law. See

United States v. Palmer, 122 F.3d 215, 222 (5th Cir. 1997). Whether

the district court below believed it lacked authority to depart

from the guidelines, and would have otherwise done so, is unclear,

but the district court's statement that it found nothing in the

guidelines which would “permit it” to do so may indicate that it

believed it lacked such authority. The government contends that

the district court's comments, taken in context, showed only the

district court's criticism and frustration with the guidelines, but

in no way signified an erroneous belief of a lack of authority to

depart.

Thames did not request a downward departure from the district

court, and his arguments regarding his entitlement to a downward

6
departure based upon his voluntary disclosure of the first robbery,

his status as a former police officer, and the aggregation of

factors were not made to the district court,4 thus they are

reviewed for plain error only. See United States v. Flanagan, 87

F.3d 121, 124 (5th Cir. 1996) (downward departure requested under

safety valve provision, when raised in objections to PSR, but not

renewed at sentencing hearing, was to be reviewed under plain error

standard). If the error complained of for the first time on appeal

is plain and affected substantial rights, this Court may provide

relief. See United States v. Gaudin, 115 S. Ct. 2310, 2322 (1995)

(stating that if there is a forfeited error, which is plain, and

which affects substantial rights, the decision to correct that

forfeited error is in the sound discretion of the Courts of

Appeals). And under this standard, we should not exercise our

discretion to correct a forfeited error unless the error “seriously

affects the fairness, integrity or public reputation of judicial

proceedings.” Id. (internal quotations omitted). As is more fully

set out below, we decline to exercise our discretion to correct

these obviously forfeited errors.

The district court did, however, raise sua sponte the issue of

Thames' entitlement to a downward departure based upon his mental

4
We note that the district court was informed that Thames
cooperated early by confessing to the first robbery and that he
suffered from mood swings and had a compulsive gambling addiction,
but no argument for a downward departure based thereupon was made.

7
condition when it stated that it found nothing in the guidelines

which would permit it to deviate from the guidelines based upon

Thames' manic depressive mood swings or gambling addiction.

Assuming, arguendo only,5 that plain error review would therefore

be inappropriate, we would review the district court's refusal to

downwardly depart on this ground for an abuse of discretion. See

United States v. Winters, 174 F.3d 478, 482 (5th Cir.), cert.

denied, 120 S. Ct. 409 (1999). The government, however, argues

that Thames' failure to raise a technical objection to the failure

of the district court to depart on the basis of his mental capacity

requires review under the plain error standard. We need not decide

which of these two standards is the most appropriate, because for

the reasons discussed below, we find that the district court's

failure to grant a downward departure based on Thames' diminished

mental capacity was neither an abuse of discretion, nor plain

error.

Each of Thames' asserted grounds for entitlement to a

departure are discussed below under the appropriate standards.

A. Voluntary Disclosure of Additional Crime

5
We note that the district court's sua sponte address of
Thames' mental condition occurred at the end of the sentencing
hearing just after the pronouncement of Thames' sentence. We
express doubt that Thames' failure to request a downward departure
based upon his diminished mental capacity was motivated by the
district court's remarks.

8
 Thames first argues that the district court could have

departed from the guidelines under U.S.S.G. § 5K2.16 because once

arrested for the 1993 robbery, he immediately confessed to

committing the 1992 robbery of the same bank. Guidelines § 5K2.16

provides in pertinent part that a departure below the applicable

guidelines range may be warranted:

[i]f the defendant voluntarily discloses to
authorities the existence of, and accepts
responsibility for, the offense prior to the
discovery of such offense, and if such offense was
unlikely to have been discovered otherwise, a
departure below the applicable guideline range for
that offense may be warranted. For example, a
downward departure under this section might be
considered where a defendant, motivated by remorse,
discloses an offense that otherwise would have
remained undiscovered. This provision does not
apply where the motivating factor is the
defendant's knowledge that discovery of the offense
is likely or imminent, or where the defendant's
disclosure occurs in connection with the
investigation or prosecution of the defendant for
related conduct.

U.S.S.G. § 5K2.16.

In this case, the complaint alleges that as early as July 1,

1992, a confidential informant informed the FBI that Thames was the

robber of the Hibernia National Bank on May 29, 1992. Thus, it is

apparent that the authorities were already “on to” Thames in

connection with the first robbery, and when he executed his encore

performance approximately one year later at the same branch of

Hibernia Bank, and his description was given as the robber, they

moved in on him for both robberies. Given that the authorities

already suspected, based on the informant's tip, that Thames had

9
committed the first robbery, when he committed and admitted to

committing the exact same crime, we conclude that his involvement

in the first was likely to be discovered irrespective of his

confession. The guidelines departure provision, § 5K2.16, applies

only where the additional offense would not have been discovered

but for the defendant's admission. Here, the crime had already

been discovered, and Thames was already a suspect.

Based on the foregoing, the district court's failure to apply

§ 5K2.16 for a downward departure was not error, plain or

otherwise. See United States v. Adams, 996 F.2d 75, 79 (5th Cir.

1993) (no error in failing to apply § 5K2.16 where defendant was

already a suspect and similarities in crimes increased likelihood

that authorities would have linked the two).

B. Status as a Former Police Officer

Here, Thames argues that the district court could have

departed because, as a former police officer who exposed corruption

in the New Orleans Police Department, he would be subjected to

harassment and abuse in prison, and this fact removed his case from

the heartland of cases contemplated by the guidelines. We find

this argument to be without merit.

Relying on Koon v. United States, 116 S. Ct. 2035 (1996),

Thames argues that the district court could consider a defendant's

susceptibility to abuse in prison as a basis for departing

10
downward. However, in Koon, the Court focused on the victim's

provocation and misconduct, and on the enormous amount of press and

rioting resulting from the beating of Rodney King, in determining

that the defendant may be subject to abuse in prison. No such

extenuating circumstances are present in this case which make Koon

controlling. To the contrary, we have noted that a defendant's

status as a law enforcement officer is often times more akin to an

aggravating as opposed to a mitigating sentencing factor, as

criminal conduct by a police officer constitutes an abuse of a

public position. See, e.g., Winters, 174 F.3d at 486 (Sentencing

Commission “applied greater not lesser sentences” for crimes

committed by law enforcement officers).

Thames also argues that his case is removed from the heartland

of cases considered by the guidelines because of his cooperation in

exposing corruption in the New Orleans Police Department. This

contention is belied by the record which reveals that the

government stated to the sentencing court that Thames' cooperation

was limited to his confession about his own actions. Additionally,

there is no adequate basis in the record from which to conclude

that Thames cooperated in exposing corruption in the New Orleans

Police department to such an extent as to subject him to abuse in

prison.

Thus, we find that the district court did not commit error,

plain or otherwise, in failing to depart downward based on Thames'

11
status as a former police officer or for his role in exposing

corruption in the New Orleans Police Department.

C. Mental Condition

Here, Thames argues that the district court could have

departed from the guidelines based upon the fact that his mental

condition made his criminal conduct “[in]advertent behavior.”

Despite the district court's acknowledgment of Thames' manic

depressive mood swings, the only record evidence of psychological

problems presented by Thames was with respect to his gambling

addiction.

A defendant's mental condition may, under certain

circumstances, provide grounds for departing from the guidelines.

Under U.S.S.G. § 5K2.13, a departure may be warranted:

if the defendant committed the offense while
suffering from a significantly reduced mental
capacity. However, the court may not depart below
the applicable guideline range if (1) the
significantly reduced mental capacity was caused by
the voluntary use of drugs or other intoxicants;
(2) the facts and circumstances of the defendant's
offense indicate a need to protect the public
because the offense involved actual violence or a
serious threat of violence; or (3) the defendant's
criminal history indicates a need to incarcerate
the defendant to protect the public. If a departure
is warranted, the extent of the departure should
reflect the extent to which the reduced mental
capacity contributed to the commission of the
offense.

U.S.S.G. § 5K2.13.

Under this provision, which is the guideline's specific

12
attempt to take into consideration a defendant's mental condition,

no departure may be given where the crime was violent in nature.

Thames does not contend that the armed robberies were non-violent,

and the record would not permit such a conclusion in any event.

Thames committed armed takeovers of Hibernia National Bank's

employees and customers in which everyone was ordered, at gunpoint,

to lay on the floor while Thames collected money. Under any

definition of “crime of violence,” such behavior involved an

obvious and inherent “serious threat of violence,” making § 5K2.13

inapplicable, irrespective of the extent of Thames' reduced mental

capacity.

Guidelines § 5K2.0 provides that a district court may also

depart from the guidelines when “there exists an aggravating or

mitigating circumstance of a kind, or to a degree, not adequately

taken into consideration by the Sentencing Commission in

formulating the guidelines . . . .” U.S.S.G. § 5K2.0. The Third

Circuit addressed a case quite similar to Thames' in United States

v. Rosen, 896 F.2d 789 (3d Cir. 1990). In Rosen, the court

determined that the defendant, who claimed entitlement to a

downward departure based upon his compulsive gambling, was not

eligible for a departure under § 5K2.13 because his crime, sending

a threatening communication in the mail to extort money through the

threat of injury, was not a non-violent crime. Rosen, however,

argued that irrespective of § 5K2.13's inapplicability, the

13
district court misapplied the guidelines in holding that departure

was not justified under § 5K2.0, because the guidelines did not

adequately take into consideration gambling addictions.

The Rosen court looked to § 5H1.3 which provides that

“[m]ental and emotional conditions are not ordinarily relevant in

determining whether a sentence should be outside the guidelines,

except as provided in the general provisions of Chapter Five.”

U.S.S.G. § 5H1.3. It went on to determine that a gambling

addiction did not qualify under §5K2.13, the only relevant section

of Chapter Five. The Rosen court concluded that the guidelines had

considered and determined that a mental condition of the sort

suffered by Rosen would not permit departure in cases involving

violent crimes.

We agree with the reasoning of the Third Circuit in Rosen, and

hold that the guidelines have already adequately taken into

consideration a defendant's mental capacity with §5K2.13, and thus

§5K2.0 is inapplicable to Thames' claim that his diminished mental

capacity, derived from his gambling addiction, entitles him to

consideration for a downward departure. Thus, we conclude that the

district court was, indeed, without authority to grant a downward

departure in Thames' sentence based upon his mental condition, and

no error ensued from the district court's failure to grant the

same.

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 D. Aggregation of factors

Thames final argument is that a combination of the

aforementioned factors takes his case out of the heartland of cases

contemplated by the guidelines, and thus, the district court could

have granted a departure based thereupon. As discussed above, each

of Thames' arguments is without merit, and quite simply, we

conclude that an aggregation of meritless contentions cannot serve

as a basis for taking Thames' case out of the heartland of cases

contemplated by the guidelines. Thus, the district court did not

commit error, plain or otherwise, in failing to depart from the

applicable guidelines sentence range.

CONCLUSION

For all of the foregoing reasons, the sentence imposed by the

district court below is AFFIRMED.

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