The district court's factual findings that the bank robberies to which Mr. xxxxxxx pled guilty were crimes of violence and that any reduced mental capacity was attributable to voluntary drug use were clearly erroneous. The court's conclusion that Mr. xxxxxxx's criminal history indicated a need for incarceration to protect the public was based upon a mistake of law. The court's failure to make findings that Mr. xxxxxxx suffered from a significantly reduced mental capacity at the time of the offenses and that the impairment contributed to his offenses necessitates a remand. Applying the five factors set out in United States Sentencing Guideline § 5K2.13, Mr. xxxxxxx is entitled to a downward departure based upon diminished capacity.



            The decision of a sentencing judge not to depart downward is reviewable for mistake of law or incorrect application of the United States Sentencing Guidelines. United States v. Johnson, 49 F.3d 766 (D. C. Cir. 1995); United States v. White, 71 F.3d 920, 929 (D. C. Cir. 1995). Factual findings relied upon in determining that departure is not warranted are reviewed for clear error. United States v. Sammoury, 74 F.3d 1341, 1344 (D. C. Cir. 1996).




                  WERE CLEARLY ERRONEOUS.

            The applicable Guideline provision, Section 5K2.13, provides that

            If the defendant committed a non-violent offense while suffering from

            significantly reduced mental capacity not resulting from voluntary 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.

This circuit addressed the nature of this guideline provision in United States v. Chatman, 986 F.2d

1446 (D. C. Cir. 1993), finding that the purpose of § 5K2.13

            is to treat with lenity those individuals whose "reduced mental capacity"

            contributed to commission of a crime. Such lenity is appropriate in part

            because . . . two of the primary rationales for punishing an individual

            by incarceration -- desert and deterrence -- lose some of their relevance

            when applied to those with reduced mental capacity. As to desert,

            "[p]ersons who find it difficult to control their conduct do not --

            considerations of dangerousness to one side -- deserve as much

            punishment as those who act maliciously or for gain." (Citation omitted).

            Further, "[b]ecause legal sanctions are less effective with persons

            suffering from mental abnormalities, a system of punishment based on

            deterrence also curtails its sanction." (Citation omitted).

Id. at 1452. Pursuant to Chatman, the district court was obligated to assess each of the five factors spelled out in the guideline with a view to lenity. United States v. Cantu, 12 F.3d 1506, 1510 (9th Cir. 1993).

                        1. The court failed to determine whether Mr. xxxxxxx suffered

                             from a significantly reduced mental capacity.

            The district court did not make a specific finding that Mr. xxxxxxx suffered from a significantly reduced mental capacity. However, in discussing whether voluntary drug use disqualified Mr. xxxxxxx from a departure under §5K2.13, the court seemed to question whether he suffered from a mental disorder. These references in the court's October 6, 1997 Opinion suggest the court's skepticism: "some history of a bipolar disorder," "if there is any reduced mental capacity at issue in this case," "[h]is alleged bipolar disorder." Opinion, p. 3 (emphasis added). This language demonstrates that the court discounted the report of Dr. Barbara Jones, the psychologist who examined Mr. xxxxxxx at the request of his counsel, and who found that Mr. xxxxxxx "qualif[ies] for a diagnosis of Bipolar II Disorder (recurrent major depressive episodes with hypomanic episodes)." Report, p. 4. At the resentencing hearing, the court questioned the significance of the diagnosis: "[W]hat is a bipolar disease, depression? . . . It's depression. I mean, how many -- you know, half the people in America suffer from depression." Tr. 9/30/97, p. 11.

            Contrary to the court's characterization, bipolar disorder is a serious emotional illness.

Section 5K2.13 treats emotional illnesses in the same way as mental abnormalities:

            The goal of the guideline is lenity toward defendants whose ability to

            make reasoned decisions is impaired. Emotional conditions, like

            mental impairments, may distort or suppress the formation of

            reasoned decisions. The focus of the guideline provision is

            reduced mental capacity, not the cause -- organic, behavioral,

            or both -- of the reduction.

United States v. Cantu, 12 F.3d 1506, 1511 (9th Cir. 1973). The court in United States v. McMurray, 833 F. Supp. 1454, 1458 (D. Neb. 1993) classified bipolar disorder, also known as manic depression, as a major mental illness. The court described the illness in some detail, referring to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (Third Edition Revised) (DSM-III-R):

            A "bipolar disorder" is characterized by manic episodes. . . . These

            manic episodes are characterized by elevated, expansive, or irritable

            moods and "are sufficiently severe to cause marked impairment in

            occupational functioning or in usual social activities or relationships

            with others, or to require hospitalization to prevent harm to self or

            others. . . . " The "elevated mood may be described as euphoric,

            unusually good, cheerful, or high, often having an infectious quality

            for the uninvolved observer, but recognized as excessive by those

            who know the person well. . . . " The "elevated mood" may also turn

            angry: "Another common associated feature is lability of mood, with

            rapid shifts to anger or depression. . . . " "Frequently the person

            does not recognize that he or she is ill and resists all efforts" at

            treatment. . . .

            These episodes begin suddenly, and last from a few days to months. . . .

            There is often a need for involuntary hospitalization because of the

            poor judgment exhibited by the person during these periods of time. . . .

            The "most common complications of a Manic Episode are

            Psychoactive Substance Abuse and the consequences of actions

            resulting from impaired judgment, such as financial losses and illegal

            activities. . . . "

United States v. McMurray, 833 F. Supp. At 1480, citing DSM-III-R. According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), some associated features of this disorder are suicide, occurring in 10 % to 15% of persons with the disorder, school truancy, school failure, occupational failure, or divorce. Associated mental disorders include substance abuse or dependence. Only 0 .5% of the population suffers from bipolar disorder. DSM-IV, p. 360.

            This circuit has held that whatever the form of the mental or emotional impairment suffered by a defendant urging departure, the disorder must impact one's ability to reason or make judgments. United States v. Edwards, 98 F.3d 1364, 1371 (D. C. Cir. 1996). Bipolar disorder certainly qualifies as reduced mental capacity, applying that criterion. In the instant case,    objective tests administered by Dr. Jones revealed that Mr. xxxxxxx had "significant areas of disruption in his cognitive functioning." These areas included "attention and concentration, as well as social judgment and common sense reasoning ability." Report, p. 2. Dr. Jones' report supported Mr. xxxxxxx's claim that he suffered from a reduced mental capacity.

            It appears from the district court's Opinion that the court did not make a specific finding as to whether Mr. xxxxxxx suffered from a significantly reduced mental capacity because the court concluded that certain other factors, including that the bank robberies to which he pled guilty were crimes of violence within the meaning of U.S.S.G. § 5K2.13 and that any impairment resulted from voluntary drug abuse, made such a finding unnecessary. In the event that this court finds that the district court erred in those conclusions, a remand would be appropriate to allow the district court to fully consider whether Mr. xxxxxxx's bipolar disorder caused a significantly reduced mental capacity at the time of these offenses.

                        2. The district court's finding that the bank robberies committed

                             by Mr. xxxxxxx were crimes of violence was clearly erroneous.

               The district court found that the bank robberies to which Mr. xxxxxxx entered pleas of guilty were crimes of violence and that he was therefore not entitled to a downward departure under § 5K2.13. In United States v. Chatman, 986 F.2d at 1451, this court held that a district court, in deciding whether a crime qualifies as a non-violent offense within the meaning of the guideline, should consider the facts and circumstances surrounding the commission of the crime. The court relied upon the reasoning of the dissenting judges in United States v. Poff, 926 F.2d 588 (7th Cir. 1991). In Poff, the defendant had written threatening letters to then-President Ronald Reagan. With regard to that conduct, the dissent observed that ". . . the Commission has not required judges to treat the innocuous threatener and the murderous one identically." Id. at 594.

            In the instant case, the government's evidence in support of Mr. xxxxxxx's guilty plea was that he robbed three different banks on six occasions, each time approaching the bank tellers and handing them notes demanding large bills. He usually made statements that he did not want anyone to get hurt, or that "this thing is going to explode any minute." On one occasion, after the teller gave him a dye pack, he stated that he was going to hurt someone. On another occasion he warned the teller, "Don't do anything stupid; there are three more of us in here." No one at any of the banks was injured. Employees of the banks were interviewed by the presentence report writer, who related that no one incurred any serious mental or emotional problems and that one manager noted that his bank had been robbed so frequently that "there is nothing to say about the robberies anymore." Presentence Report, pp. 2-4 (see Appendix containing Record Material Under Seal).

            The district court seized on the statement during one of the robberies that "this thing is going to explode any minute now," and determined that the robberies were crimes of violence because "they specifically relied on the threat of violence for their commission." Opinion, p. 3. The court apparently overlooked the requirement of Chatman that in order for the offense to be a crime of violence, there must be "a real and serious threat of violence." United States v. Chatman, 986 F.2d at 1454. Nothing in the record revealed that any of the robberies committed by Mr. xxxxxxx involved a real and serious threat of violence. There was nothing in the record from which the court could have concluded that the statements uttered by Mr. xxxxxxx during the course of the robberies were anything more than idle threats. It was undisputed that he was unarmed during these robberies. The court's classification of these robberies as violent offenses was clearly erroneous. Chatman requires that this inquiry, as well as the others which are envisioned by the guideline, be undertaken with a view to lenity. 986 F.2d at 1454. Had the district court done so, it would not have concluded that these unarmed bank robberies were non- violent offenses which did not preclude Mr. xxxxxxx from a downward departure on diminished capacity grounds.

                        3. The district court clearly erred in finding that Mr. xxxxxxx's

                              reduced mental capacity, insofar as it existed, was the product

                              of voluntary drug use.

            The district court found that Mr. xxxxxxx's reduced mental capacity, if any, "stems primarily from Defendant's drug abuse." October 6, 1997 Opinion, p. 3. The court added that "[h]is allegled bipolar disorder is at best secondary." Id. The court relied upon one sentence in the psychological report that "[v]irtually all of [Mr. xxxxxxx's] criminal activity seems to have occurred in connection with drug abuse." However, the report went on at great length about Mr. xxxxxxx's test results, the clinical interview results, and the bases upon which Dr. Jones diagnosed Mr. xxxxxxx as having a bipolar disorder. Dr. Jones noted a history of drug abuse, but nothing in the report could fairly be said to support the court's finding that the drug abuse produced the bipolar disorder.

            The Diagnostic and Statistical Manual recognizes that substance abuse is a frequent side-effect of a bipolar disorder. DSM-IV, p. 360; United States v. McMurray, 833 F. Supp. at 1480 (citing DSM-III-R). Other courts have noted the interaction between mental or emotional disorders and substance abuse. In United States v. Cantu, 12 F.3d at 1513, the court made it clear that the disqualification from voluntary substance use applies only if alcohol or drug use caused the reduced mental capacity. "If the reduced mental capacity was caused by another factor, or if it, in turn, causes the defendant to use alcohol or another drug, the defendant is eligible for the departure." Id. See also, United States v. Lewinson, 988 F.2d 1005, 1006 (9th Cir. 1993) (drug use was both a product and a factor of defendant's impaired mental condition, citing United States v. Speight, 726 F. Supp. 861 (D.D.C. 1989)). In light of the weight of authority to the contrary, the district court's finding that Mr. xxxxxxx's drug use caused his bipolar disorder is clearly erroneous.

                        4. The district court failed to determine whether Mr.

                             xxxxxxx's impairment contributed to his criminal conduct.

            Dr. Jones said in her report that "[t]he disorder of executive functions obviously contributes to [Mr. xxxxxxx's] criminal activities in that he is deficient in sound judgment, in delay of gratification, in making long-term plans and sticking to them, etc." Report, p.5. The report also noted that Mr. xxxxxxx suffers significant areas of disruption in cognitive functioning, including attention and concentration, as well as social judgment and common sense reasoning ability. Id., p. 2. In spite of this and other evidence in the record, the district court failed to address whether Mr. xxxxxxx's impairment contributed to his criminal conduct.

            It is settled that the impairment need not be the sole contributing factor to the criminal conduct. United States v. Leandre, ___F.3d___ 1998 WL 7081, at 4 (D. C. Cir. 1998). And while the defendant has the burden of showing some connection between the impairment and the criminal conduct, "that burden may not be particularly heavy in view of the obligation to treat with lenity defendants who suffer from `significantly reduced mental capacity.'" Id., at 5 (citing Chatman).

            The court in United States v. McMurray, 833 F. Supp. at 1482, set out with some specificity how bipolar disorder can impact on criminal conduct. The court cited the DSM-III-R references that the most common side-effect of the manic episodes which characterize the bipolar disorder are substance abuse and resultant impaired judgment leading to illegal activities. That connection is equally compelling in the instant case. The district court did not make a finding with regard to whether Mr. xxxxxxx's reduced mental capacity contributed to his offenses, having found that the reduced capacity, if any, stemmed from voluntary drug use. Given the error of the latter finding, a remand would be appropriate to assess the extent to which the reduced capacity contributed to the offenses. United States v. Cantu, 12 F.3d at 1515 (the degree to which the impairment contributed to the offense constitutes the degree to which punishment should be reduced).

            5. The district court's conclusion that Mr. xxxxxxx's criminal history

                    demonstrated a need for incarceration to protect the public resulted

                    from a mistake of law.

            In United States v. Atkins, 116 F.3d 1566 (D. C. Cir. 1997), this court relied upon United States v. Cantu, 12 F.3d 1506 (9th Cir. 1993) and Chatman's exhortation to lenity to hold that the term "criminal history" in § 5K2.13 is more expansive that the same term in Chapter 4 of the Sentencing Guidelines, and encompasses these factors: psychiatric or other treatment which the defendant is receiving, the likeihood of the treatment's success, the defendant's likely circumstances upon release, the defendant's overall criminal record, and the nature and circumstances of the current offenses. United States v. Atkins, 116 F.3d at 1569. An examination of the district court's Opinion makes it clear that the court focused on criminal history in the more narrow sense contemplated by Chapter 4 of the Guidelines and failed to evaluate Mr. xxxxxxx's criminal history utilizing the factors spelled out in Atkins. The court referred to Mr. xxxxxxx's history of drug abuse and criminality to support his habit, that he had been in and out of prisons for nearly all of his adult life, and that once released, his record demonstrated an "utter lack of support" to curb his addiction. The court also pointed to his predeliction for bank robbery, as evidenced by a spree of six robberies in less than six months. Opinion, p. 4. The court failed to take account of Mr. xxxxxxx's amenability to psychiatric treatment, to his network of support in the community, to the character strengths to which Dr. Jones alluded in her report, and to the nature and remoteness of his prior offenses.

            Dr. Jones found that if Mr. xxxxxxx was treated with appropriate medications (lithium and/or antidepressants) he could remain drug free and lead a law-abiding life. Report, p. 6. During her evaluation, she noted several of Mr. xxxxxxx's strengths: an intellectual capacity of average to bright normal (Report, p. 2); verbal abilities in the high average to superior range (Id.); an average ability to learn and retain new information (Id., p. 3); good reality testing, an interest in other people and a recent realization of the self-destructive quality of drug abuse (Id., p. 5).

             According to a letter attached to the Memorandum in Aid of Sentencing filed by Mr. xxxxxxx's counsel on April 30, 1996, Mr. xxxxxxx was trained as a paralegal and worked in that capacity in a law firm for two and a half years, where his performance was outstanding. At Mr. xxxxxxx's sentencing on May 2, 1996, his family demonstrated their continued support by attending the hearing. Tr. 5/2/96, p. 17. The district court made no mention of Mr. xxxxxxx's potential employability upon release or of his family ties in concluding that he was utterly without support in curbing his addiction upon release from prison.

            Moreover, in reviewing Mr. xxxxxxx's criminal record, the district court failed to take account of the fact that his only convictions for crimes of violence were in 1974 (armed robbery) and 1975 (bank robbery). The other offenses of which he was convicted, unauthorized use of a motor vehicle, forgery and uttering, carrying a pistol without a license, theft, prison breach, receiving stolen property, a bail reform act violation, and three drug offenses, Tr. 9/30/97, pp. 7, 8; Tr. 5/2/96, pp. 11, 12, do not demonstrate any need for his incarceration to protect the public..          The district court found that Mr. xxxxxxx's criminal history necessitated incarceration. However, there is nothing in the record of the resentencing hearing or the court's Opinion which indicates that the judge considered whether a lesser period of incarceration than 151 months could still protect the public. In determining whether a defendant's criminal history demonstrates a need for incarceration to protect the public, so as to disqualify him from the downward departure based on diminished capacity, the court should "determine whether public safety requires that the defendant be sentenced to the same term that would be imposed if his mental capacity were not significantly reduced." United States v. Cantu, 12 F.3d at 1516. The court can determine that a defendant does not need incarceration at all, or that a lesser period of incarceration consistent with a downward departure would suffice to protect the public. Id.

            The record shows that Mr. xxxxxxx suffers from a treatable illness. Appropriate treatment would reduce the risk of further criminal activity. His age, 53 (Tr. 5/2/96), is a factor to be considered in assessing the likelihood of successful treatment of his illness. United States v. Atkins, 116 F.3d at 1566. The nature of his prior offenses, and the fact that all but two convictions in 1974 and 1975 stem from non-violent conduct, are also appropriate factors for consideration. Id. Failure to take account of appropriate factors, just like reliance upon inappropriate factors, amounts to an error of law which is, by definition, an abuse of discretion. United States v. Atkins, 116 F.3d at 1570.


            For all the foregoing reasons, Mr. xxxxxxx respectfully requests that his sentences be vacated and that the case be remanded for resentencing.

                                                            Respectfully submitted,

                                                            A.J. KRAMER

                                                            FEDERAL PUBLIC DEFENDER


                                                            Reita Pendry

                                                            Assistant Federal Defender

                                                            Counsel for Samuel Bertrell xxxxxxx

                                                            625 Indiana Avenue, N.W. #550

                                                            Washington, D. C. 20001



            I certify that I served a copy of the foregoing Brief for Appellant, an Appendix and a separate Appendix containing Record Material Under Seal upon John R. Fisher, Esq., Chief, Appellate Section, Office of the United States Attorney, by mailing a copy to him at the Office of the United States Attorney, 555 4th Street, N.W., Washington, D. C. 20001, and by hand-delivering a copy to that same address, this 27th day of January, 1998.


                                                            Reita Pendry