Opinion
Submitted November 4, 1996
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the Eastern District of Washington Robert H. Whaley, District Judge, Presiding.
This disposition is not appropriate for publication and may not be cited to or used by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Before WRIGHT, BRUNETTI and O'SCANNLAIN, C.J.
Daniel Ostin appeals his sentence for entry into a bank with the intent to commit a felony or larceny under 18 U.S.C. § 2113(a). We have jurisdiction under 28 U.S.C. § 1291. We vacate the sentence and remand for resentencing.
Ostin pleaded guilty to an indictment for "Bank Robbery":
That on or about July 26, 1995 ... Daniel J. Ostin, did enter the U.S. Bank of Washington ... the deposits of which were then insured by the Federal Deposit Insurance Corporation, with intent to commit in such bank a felony affecting such bank, that is, the taking and carrying away, with the intent to steal and purloin, property and money exceeding $100 in value belonging to add in the care, custody, control, management and possession of such bank, all in violation of 18 U.S.C. § 2113(a).
He contends that the court erred in concluding that it did not have discretion to depart downward from the Sentencing Guidelines based upon extraordinary mental or emotional conditions under 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0, p.s. Whether the court was correct presents both a legal and factual question. We review de novo whether it had the authority to depart based upon extraordinary conditions. We review for clear error whether the conditions were extraordinary. See United States v. Roe, 976 F.2d 1216, 1217-18 (9th Cir.1992).
On appeal, Ostin abandoned his claim that the court could have departed downward based on diminished capacity under U.S.S.G. § 5K2.13, and we do not consider it here. Because the court expressed confusion about this issue, however, we note that although Ostin's indictment was titled "Bank Robbery," the charge was that he committed a crime under paragraph two of 18 U.S.C. § 2113(a), which requires entry into a bank with intent to commit an underlying felony or larceny, not robbery.
In Koon v. United States, 116 S.Ct. 2035, 2047-48 (1996), the Court established that an appellate court reviews for abuse of discretion a sentencing court's decision to depart downward from the Guidelines. See United States v. Sablan, 114 F.3d 913, 915-17 (9th Cir.1997) (en banc) (discussing standards changed by Koon ). This does not change the de novo standard of review when a sentencing court believes, as here, that it cannot depart as a matter of law. Koon does clarify, however, that downward departures under the Guidelines more often demand fact-specific inquiries rather than categorical ones. The Court concluded:
[A] federal court's examination of whether a factor can ever be an appropriate basis for departure is limited to determining whether the commission has proscribed, as a categorical matter, consideration of the factor. If the answer to the question is no--as it will be most of the time--the sentencing court must determine whether the factor, as occurring in the particular circumstances, takes the case outside of the heartland of the applicable Guideline.
Koon, 116 S.Ct. at 2051 (emphasis added).
Mental and emotional conditions are discouraged factors for departure under U.S.S.G. § 5H1.3, but not prohibited ones. We adopt the reasoning of Koon : "If the special factor is a discouraged factor ... the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present." Koon, 116 S.Ct. at 2045.
Here, the district court apparently never got past the first hurdle: whether it has the authority to depart for extraordinary mental or emotional conditions. It had such authority. Moreover, in a later statement following the sentencing hearing, the court noted that it may have misapplied the proper standard. Thus, it had not considered whether Ostin's mental condition, including his lack of anti-depressant medication, suicidal ideation, and desire for assistance, was sufficiently extreme in kind or degree to distinguish his case from those cases in which mental and emotional conditions are not relevant to the sentencing decision. U.S.S.G. § 5H1.3.
We VACATE the sentence and REMAND to give the district court an opportunity to decide whether it wishes to exercise its discretion to depart downward.
The mandate shall issue forthwith.
To describe the underlying crime, the indictment employed the language of 18 U.S.C. § 2113(b), which defines larceny. See, e.g., United States v. Registe, 993 F.2d 408 (9th Cir.1985); see also United States v. Jones, 993 F.2d 58 (5th Cir.1993). Ostin's crime therefore was entry into a bank with intent to commit larceny. See generally Bell v. United States, 462 U.S. 356, 361-62 (1983) (discussing history of Federal Bank Robbery Act); Prince v. United States, 352 U.S. 322, 325-29 (1957) (same).