In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2409

United States of America,

Plaintiff-Appellee,

v.

Lawrence Cravens,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 1068--Suzanne B. Conlon, Judge.

Argued November 9, 2001--Decided December 27, 2001



  Before Manion, Kanne, and Rovner, Circuit
Judges.

  Manion, Circuit Judge.

I.

  In the 1930’s and 40’s, the notorious
bank robber Willie Sutton, when asked why
he robbed banks, simply replied, "Because
that’s where the money is."/1
Apparently Law-rence Cravens endorses
this philosophy. While no Willie Sutton,
Cravens does seem to crave robbing banks.
In the indictment giving rise to the
present appeal, Cravens was charged with
four counts of bank robbery in violation
of 18 U.S.C. sec. 2113(a), arising out of
four separate bank robberies during the
period of November 2000 to January 2001.
In addition to these bank robberies,
Cravens confessed to an additional four
bank robberies for which he was not
charged. Cravens also has six prior bank
robbery convictions.

  On March 1, 2001, Cravens pleaded guilty
to the most recent robberies charged in
Counts One, Two and Three. The district
court sentenced him to 169 months’
imprisonment, 3 years of supervised
release, a fine of $2,000 and a special
assessment of $300. At the conclusion of
the sentencing hearing, on the
government’s motion, the court dismissed
Count Four of the indictment.

  The subject of the present appeal is the
length of Cravens’ prison sentence. Prior
to sentencing, his court-appointed
attorney filed a motion for authorization
to obtain expert services pursuant to 18
U.S.C. sec. 3006A(e)(1). Cravens sought
the appointment of an expert to assist
him in preparing a motion for downward
departure based upon diminished mental
capacity./2 In a minute order, the
district court denied the motion, finding
that "even if defendant establishes he
suffers from diminished capacity, it
appears from the face of the motion and
defendant’s admission during his guilty
plea that a downward departure is
prohibited under 5K2.13(1), (2) and (3)."
Cravens then filed a motion for
reconsideration, with more medical
evidence, and also filed a motion for
downward departure. At his sentencing
hearing, the court heard oral argument
from both sides and then denied both
motions. Cravens appeals, and we affirm.

II.

  Cravens appeals the denial of his
request for authorization to obtain a
psychiatric evaluation for purposes of
supporting his downward departure motion.
We review this decision for an abuse of
discretion. See United States v. Daniels,
64 F.3d 311, 315 (7th Cir. 1995).
Pursuant to 18 U.S.C. sec. 3006A(e)(1),
"[c]ounsel for a person who is
financially unable to obtain
investigative, expert, or other services
necessary for adequate representation may
request them . . . . Upon finding, after
appropriate inquiry . . ., that the
services are necessary and that the
person is financially unable to obtain
them, the court . . . shall authorize
counsel toobtain the services." There is
no dispute that Cravens is financially
unable to obtain the expert services, and
therefore the sole issue is whether such
services are "necessary."/3

  The test commonly used to determine
whether expert psychiatric services are
"necessary" is the "private attorney"
standard which requires the authorization
of such services when defense counsel
"makes a timely request in circumstances
in which a reasonable attorney would
engage such services for a client having
the independent financial means to pay
for them." United States v. Alden, 767
F.2d 314, 318-19 (7th Cir. 1984). The
Alden court also placed further
limitations on the authorization of
services based on the circumstances of
that case. In Alden, the defendants were
caught red-handed and, thus, their only
conceivable defense was one based on
insanity. This court noted that "to
require the government to pay for
psychiatric services in this type of case
just because a reasonable private
attorney would do so might be to require
the government to subsidize a ’fishing
expedition’ which is not the purpose of
section 3006A(e)." Id. at 318.
Accordingly, we held that it was
appropriate for the district court to
"satisfy itself that a defendant may have
a plausible defense before granting the
defendant’s section 3006A(e) motion . . .
." Id. at 318-19. We find that this
limited test is also appropriate in the
case before us. Obviously it follows that
if Cravens is not legally entitled to a
downward departure even if he suffers
from a diminished mental capacity, expert
testimony to establish the proof of a
mental defect would merely be a "fishing
expedition" and is not required for
Cravens’ defense. See Daniels, 64 F.3d at
315.

  In analyzing whether Cravens had a
plausible argument for a downward
departure, the district court held that
even if he established, through an
expert, that he suffers from diminished
capacity, a downward departure is
prohibited under Section 5K2.13. This
section of the Sentencing Guidelines
provides that a "sentence below the
applicable guideline range may be
warranted if the defendant committed the
offense while suffering from a
significantly reduced mental capacity."
U.S.S.G. sec. 5K2.13. However, Section
5K2.13 further provides that the court
may not depart downward if any one of
three factors exists: "(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
indicates a need to protect the public
because the offense involved actual
violence or a serious threat of violence;
or (3) defendant’s criminal history
indicates a need to incarcerate the
defendant to protect the public." Id.
Here, the district court determined that
not just one, but all three of these
factors applied and therefore found the
issue of whether an expert should be
appointed merely academic. The court
concluded that even if Cravens was
mentally diminished at the time he
committed his crimes, he was not eligible
for a downward departure. Cf. Osoba, 213
F.3d at 916-17 (denial of authorization
to obtain an expert to support downward
departure motion was proper where the
circumstances of defendant’s theory of
diminished incapacity would not have
supported a departure, even if true).

  Cravens argues that it was improper for
the district court to analyze any of the
three limiting factors under Section
5K2.13 in the absence of a recent expert
mental health evaluation. Whether expert
testimony is needed to establish the
exceptions contained under Section 5K2.13
is a question of law that we review de
novo. See United States v. Berrio, 77
F.3d 206, 208 (7th Cir. 1996). Turning to
the first of the three factors, Cravens
is arguably correct that determining
whether "the significantly reduced mental
capacity was caused by the voluntary use
of drugs or other intoxicants" requires
consideration of an expert medical
opinion. Although a lay person may
readily observe a drug or alcohol
problem, the causation of a mental
disease or defect is a more technical
medical determination such that a court
would find expert testimony particularly
useful to its ultimate decision. Cf.
United States v. Brown, 32 F.3d 236, 240
(7th Cir. 1994) (noting that under the
Legal Insanity Defense Reform Act, "[i]t
is the province of the jury to determine
whether the defendant has carried his
burden of proving his legal insanity, but
the psychiatrist’s opinion regarding the
defendant’s mental status in the
psychiatric or psychological sense is
quite useful, even critical, to the
jury’s deliberation" and is thus properly
admissible under Fed. R. Evid. 704(b).).
However, we need not conclusively decide
that question here because the existence
of any one of the three factors set forth
under Section 5K2.13 precludes a downward
departure on Cravens’ sentence and we
find that no expert testimony is needed
for a court to analyze the second and
third factors of Section 5K2.13. As noted
above, the second factor prevents
departure where "the facts and
circumstances of the defendant’s offense
indicates a need to protect the public
because the offense involved actual
violence or a serious threat of violence"
and the third factor considers whether
the "defendant’s criminal history
indicates a need to incarcerate the
defendant to protect the public." Neither
factor, by its plain language, refers to
nor depends upon the defendant’s mental
health condition. Accordingly, expert
testimony to establish a diminished
mental capacity is unnecessary for a
district court to analyze either one and
we conclude that the district court did
not abuse its discretion in denying
Cravens’ motion for an expert to evaluate
his mental health condition.

  At this point, we note that, because we
find the district court correctly applied
Section 5K2.13(2) and (3), we lack
jurisdiction to review the underlying
merits of Cravens’ downward departure
motion. Generally a decision not to award
an adjustment under Section 5K2.13 falls
within the court’s unreviewable
discretion unless it "yields a sentence
’imposed as a result of an incorrect
application of the sentencing guidelines
. . . .’" United States v. Crucean, 241
F.3d 895, 899 (7th Cir. 2001) (citation
omitted). According to Crucean, "the
mental capacity adjustment provided by
sec. 5K2.13 is one committed entirely to
the discretion of the district court. . .
. Even if the judge finds that the
defendant committed the offense while
afflicted by a significantly reduced
mental capacity, he is not required to
reduce the defendant’s sentence; he is
merely authorized to do so, and his
exercise of that authority is
unreviewable." Id. (citation omitted).
Nevertheless, we briefly review the
district court’s reasoning to support its
conclusion that Cravens would not qualify
for a reduction under Section 5K2.13(2)
and (3).

  First, under Section 5K2.13(2), the
district court concluded that Cravens’
offenses involved a serious threat of
violence. On Count One, the government
would have introduced evidence that
Cravens approached a teller at Old Kent
Bank in Chicago, Illinois and handed her
a demand note which stated "give me all
your 50 and 100 now." The teller then
gave him $3,750 and, as Cravens exited
the bank, she yelled to the security
guard to stop him. The security guard
then stopped Cravens during his flight
from the bank. On Count Two, the
government would have introduced evidence
that Cravens entered the LaSalle Bank in
Chicago, Illinois, approached a teller
and inquired about opening a bank
account. After some discussion, Cravens
held up the same demand note that he used
to rob Old Kent Bank. The teller then
walked away and Cravens exited the bank
without completing the robbery. With
respect to Count Three, according to the
affidavit of FBI Special Agent Timothy
Keese, the investigating officer, Cravens
approached the teller at the
Manufacturers Bank in Lansing, Illinois,
and passed her a demand note which read
"give me your 100s and 50s now." He also
said, "don’t be stupid," and, placing his
hands in his pockets, stared directly at
her. The teller believed that Cravens was
reaching for a gun. However, when the
teller showed Cravens her empty drawer,
Cravens took the note back and left the
bank. At the sentencing hearing, Cravens
informed the judge that he did not
remember placing his hand in his pocket
and telling the teller "don’t be stupid."
Under these circumstances, the district
court concluded that there was a serious
threat of violence. Even if Cravens was
unarmed and never actually caused any
physical violence, it concluded that the
facts and circumstances indicated that he
used intimidation and some threatening
behavior to accomplish his crimes.

  Next, under Section 5K2.13(3), the
district court concluded that Cravens’
extensive criminal history (at least
thirteen bank robberies) indicated a need
to incarcerate him to protect the public.
Cravens argued that, in light of his
mental health history, there is no need
to incarcerate him in order to protect
the public./4 As we noted, however,
this determination is one properly made
irrespective of the defendant’s mental
health condition.

  Accordingly, the district court
concluded that Cravens could not qualify
for a reduction under Section 5K2.13 and
therefore he did not have a plausible
basis for obtaining an expert witness to
assist him in that motion. Were we able
to review the merits of the district
court’s downward departure decision, we
would likely find that it had not abused
its discretion. Nevertheless, we limit
our holding to the issue properly before
us on appeal and conclude that the
district court was not required to
consider expert testimony in its analysis
of the second and third factors of
Section 5K2.13 and therefore did not
abuse its discretion in denying Cravens’
motion for the appointment of an
expert./5

III.

  For the reasons stated herein, we
conclude that the district court did not
abuse its discretion in denying Cravens’
motion for the appointment of an expert
and AFFIRM the sentence imposed by the
district court.

FOOTNOTES

/1 See http://www.fbi.gov/fbinbrief/historic/
famcases/sutton/ sutton.htm.

/2 Cravens apparently suffers from serious drug and
alcohol addiction problems and he may also suffer
from mental illness. In February 1985, after
threatening to commit suicide, Cravens was admit-
ted to Charter Barclay Hospital where he was
diagnosed as suffering from "dysthymic disorder"
(a depression disorder) and cocaine abuse. Addi-
tionally, he was admitted to mental health facil-
ities in August 1997 and again in September 2000.

/3 The government does not question whether Section
3006A(e)(1) applies to the sentencing phase of a
trial, as well as to the guilt phase. Because the
parties do not raise it, we assume, without
deciding, that it does. See United States v.
Osoba, 213 F.3d 913, 915 (6th Cir. 2000) (col-
lecting cases where circuits assume without
discussion that Section 3006A(e)(1) applies to
sentencing).

/4 We note that Cravens did not request a hearing
under 18 U.S.C. sec. 4244(a) to determine if
hospitalization was necessary in lieu of incar-
ceration due to the fact that he may be suffering
from a mental disease or defect.

/5 In support of his argument that he had a plausi-
ble argument for a downward departure, Cravens
also points to the extensive analysis engaged in
by a district court in the Northern District of
Illinois in United States v. McFadzean, 1999 WL
1144909 (N.D. Ill.). We note that since district
court decisions are not authoritative in this or
any other court of appeals, we need not even try
to distinguish this case. See Indianapolis Colts,
Inc. v. Metropolitan Baltimore Football Club Ltd.
Partnership, 34 F.3d 410, 413 (7th Cir. 1994).
Nevertheless, we do not find it to be particular-
ly helpful to Cravens’ argument. The thorough
analysis engaged in by thedistrict court in
McFadzean does not persuade us that Cravens had
a plausible defense requiring the appointment of
an expert. In McFadzean, the district court
concluded that the defendant indeed suffered from
a mental health problem at the time he committed
his crime. Nevertheless, the court denied his
motion for a downward departure, concluding that
his criminal history indicated a need for incar-
ceration. The court’s determination was made
irrespective of the defendant’s mental health
condition and, therefore, regardless of the
thoroughness of the court’s analysis, the deci-
sion does not support Cravens’ argument.
