                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0532n.06

                                            No. 16-4713

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                        FILED
                                                                                     Sep 18, 2017
UNITED STATES OF AMERICA,                                )                       DEBORAH S. HUNT, Clerk
                                                         )
       Plaintiff-Appellee,                               )
                                                         )   ON APPEAL FROM THE UNITED
v.                                                       )   STATES DISTRICT COURT FOR
                                                         )   THE NORTHERN DISTRICT OF
DARNELL E. COSPER, JR.,                                  )   OHIO
                                                         )
       Defendant-Appellant.                              )
                                                         )
                                                         )


       BEFORE: SUHRHEINRICH, GRIFFIN, and KETHLEDGE, Circuit Judges.

       PER CURIAM. Darnell E. Cosper, Jr., challenges his within-guidelines sentence as

substantively unreasonable. As set forth below, we affirm Cosper’s sentence.

       On November 19, 2015, Cosper and his co-defendant, James Stites-Bray, entered a Fifth

Third Bank in Cleveland, Ohio, with guns drawn and pointed at the tellers. Cosper approached

the tellers and demanded money from them. As Cosper was taking money from the tellers,

Stites-Bray warned that a bank employee had activated an alarm. Cosper and Stites-Bray then

fled from the bank. A federal grand jury subsequently charged Cosper with armed bank robbery,

in violation of 18 U.S.C. § 2113(a) and (d), and using, carrying, and brandishing a firearm during

and in relation to that robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).

       Upon the district court’s referral for a competency evaluation, a psychologist diagnosed

Cosper with borderline intellectual functioning but concluded that “there is no evidence to

indicate the defendant suffers from a mental disorder or defect that would substantially impair
No. 16-4713
United States v. Cosper

his present ability to understand the nature and consequences of the court proceedings brought

against him, or substantially impair his ability to assist counsel in his defense.” (RE 35, Page ID

# 109). Based on the evaluation report, to which both parties stipulated, the district court found

that Cosper was competent to stand trial and assist with his defense. Thereafter, Cosper pleaded

guilty to the charges against him.

       Cosper’s presentence report set forth a guidelines range of 33 to 41 months of

imprisonment for the robbery count based on a total offense level of 19 and a criminal history

category of II. With the seven-year mandatory consecutive sentence for the firearm count, see

18 U.S.C. § 924(c)(1)(A)(ii), Cosper’s total sentencing range became 117 to 125 months of

imprisonment. Cosper sought a downward departure pursuant to USSG § 5K2.13 or, in the

alternative, a downward variance pursuant to the sentencing factors under 18 U.S.C. § 3553(a)

based on his diminished mental capacity.

       At sentencing, the government presented the testimony of FBI Special Agent Andrew

Earl. Special Agent Earl testified that, during an interview, Cosper “outlined to me that he . . .

had a documented below average IQ, that a judge was never going to convict him based upon his

IQ, [and] that he was going to beat the case.” (RE 61, Page ID # 414). According to Special

Agent Earl, Cosper “made statements that he was basically going to play stupid and act as if

information went in one ear and out the other.” (Id.). Cosper threatened that, “once he beat this

case,” he was “coming to visit and sexually assault [the officers’] wives” as well as Special

Agent Earl’s daughter. (Id.).

       After hearing Special Agent Earl’s testimony and the arguments of counsel, the district

court found that USSG § 5K2.13’s policy statement on diminished capacity did not apply

because Cosper’s offense involved a serious threat of violence indicating a need to protect the


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United States v. Cosper

public. Considering the § 3553(a) factors, the district court found that a within-guidelines

sentence was appropriate and sentenced Cosper to 33 months on the robbery count and

84 months on the firearm count, to be served consecutively, for an aggregate sentence of

117 months of imprisonment. The district court also ordered Cosper to serve a three-year term

of supervised release and to pay $5,983 in restitution to the victim bank.

       In this timely appeal, Cosper contends that the district court imposed a substantively

unreasonable sentence in denying him a downward departure or variance based on his

diminished capacity. We review the substantive reasonableness of Cosper’s sentence under a

deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). “The

essence of a substantive-reasonableness claim is whether the length of the sentence is ‘greater

than necessary’ to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a).” United States

v. Tristan-Madrigal, 601 F.3d 629, 632-33 (6th Cir. 2010). “A sentence may be considered

substantively unreasonable when the district court selects a sentence arbitrarily, bases the

sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an

unreasonable amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d

508, 520 (6th Cir. 2008). We apply a rebuttable presumption of substantive reasonableness to

Cosper’s within-guidelines sentence. United States v. Vonner, 516 F.3d 382, 389-90 (6th Cir.

2008) (en banc).

       Cosper acknowledges that the district court’s denial of a downward departure is generally

not cognizable on appeal. See United States v. Heath, 525 F.3d 451, 459 (6th Cir. 2008)

(holding that this court does “not review decisions of a district court not to depart downward

unless the record reflects that the district court was not aware of or did not understand its

discretion to make such a departure”). Cosper instead contends that the district court’s failure to


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United States v. Cosper

fully consider USSG § 5K2.13’s policy statement as required by 18 U.S.C. § 3553(a)(5) resulted

in a substantively unreasonable sentence.

       USSG § 5K2.13’s policy statement provides that “[a] downward departure may be

warranted if (1) the defendant committed the offense while suffering from a significantly

reduced mental capacity; and (2) the significantly reduced mental capacity contributed

substantially to the commission of the offense.” The policy statement continues: “However, the

court may not depart below the applicable guideline range if . . . 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.” Id. The district court considered this policy statement

and concluded that it did not apply because Cosper’s offense involved a serious threat of

violence and “there is a need to protect the public from that type of activities.” (RE 61, Page ID

# 447). Recognizing that Cosper has learning disabilities and mental health diagnoses, the

district court noted that “there is some uncertainty as to his true abilities, because of an apparent

unwillingness to always cooperate with the testing or to fully apply himself with the testing.”

(Id. Page ID # 446). The district court found no support for the defense’s argument that Cosper

was susceptible to manipulation, noting that the record reflected Cosper’s own attempts to

manipulate the system. The district court stated: “I am a great deal concerned about his apparent

sophistication regarding the criminal history justice system and how he could use his disabilities

or low IQ to manipulate the system and his aggressiveness with the agents and his hostility when

he doesn’t get his way as reflected in the documents.” (Id. Page ID # 447).

       Given the district court’s full consideration of his diminished capacity argument, Cosper

has failed to overcome the presumption that his within-guidelines sentence is substantively

reasonable. Accordingly, we AFFIRM Cosper’s sentence.


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