                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                      F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                              October 11, 2006

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                               No. 05-10341


                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                           BRIAN LERON SAM,

                                                      Defendant-Appellant.


           Appeal from the United States District Court
                for the Northern District of Texas
                         (3:02-CR-29-ALL-G)


Before KING, BARKSDALE, and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

     Primarily   before   us    for   Brian   Leron    Sam’s    bank-robbery

conviction are sentencing issues related to his diminished mental

capacity. He challenges the sufficiency of the evidence underlying

that conviction and the district court’s refusal, at sentencing, to

grant: a downward departure for his diminished mental capacity; an

acceptance-of-responsibility      reduction;    and    his     Blakely      (now

Booker)   objection,    concerning    application     of     the    Sentencing

Guidelines. The court erred only in its downward-departure ruling.

CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.
                                      I.

     The facts are not in dispute.            For several years, Sam has

suffered from periods of schizophrenia and psychosis.                    On 30

January 2002,     he   entered   a   bank   in     Duncansville,   Texas,    and

presented a teller the following note:           “I HAVE A GUN! SILENTLY AND

QUICKLY GIVE ME ALL YOUR MONEY”.           Before the teller could comply,

and while she was reaching into her cash drawer to empty it, Sam

reached over the counter and seized money being counted by her and

another teller.    Neither attempted to stop the robbery.

     After seizing the money, Sam exited, leaving his note behind.

It was written on the back of his disability paperwork, which

contained   information    identifying       him    to   the   police.      When

apprehended by the police, and after being advised of his rights,

he confessed to the robbery.

     Sam was subsequently charged with a single count of bank

robbery, in violation of 18 U.S.C. § 2113(a).            In July 2002, after

a psychological examination was performed pursuant to 18 U.S.C. §

4247(b) and (c), Sam was declared mentally incompetent to stand

trial.   In September 2003, after psychiatric treatment, he was

declared competent to do so.

     At trial in October 2004, Sam conceded each element of the

offense but presented a narrow insanity defense through expert

medical testimony.      That expert claimed:          although Sam knew his

actions were wrong, his mental condition prevented his appreciating



                                      2
the seriousness of their consequences.         Sam did not move for

judgment of acquittal under Federal Rule of Criminal Procedure 29.

On 21 October 2004, he was convicted by a jury.

     At sentencing in February 2005, Sam objected to the pre-

sentence investigation report’s recommended sentencing range of 92

to 115 months, claiming:      he should be awarded both a downward

departure for his diminished mental capacity and an acceptance-of-

responsibility reduction; and, pursuant to Blakely v. Washington,

542 U.S. 296 (2004), the court’s consideration of the Guidelines

was impermissible fact-finding.    Those objections were denied.

     The court held:   a downward departure was precluded because

Sam’s offense was a crime of violence under U.S.S.G. § 5K2.13

(permitting a downward departure for crimes committed as a result

of a diminished mental capacity, except where the circumstances

surrounding the crime involved violence or a serious threat of

violence);   his   insanity   defense   was   inconsistent     with   an

acceptance-of-responsibility     reduction    because   that    defense

challenged one of the factual elements the Government had to prove

— culpable mental state; and, concerning Sam’s Blakely objection,

although the Supreme Court invalidated the mandatory nature of the

Guidelines under its subsequent opinion in United States v. Booker,

543 U.S. 220 (2005), “in other respects[, it] left those Guidelines

intact”.




                                  3
                                       II.

      Sam contests his conviction and sentence.          He claims:   there

was insufficient evidence to convict him under § 2113(a) because,

while he may have used force and intimidation, those actions were

not the causal link that allowed him to seize the money; the

district court erred in failing to grant his requests for both a

downward departure based on his diminished capacity and a reduction

for acceptance of responsibility; and it erred in overruling his

Blakely (now Booker) objection.

                                       A.

      Concerning Sam’s conviction, the usual standard of review for

a sufficiency-of-the-evidence challenge is to consider the evidence

in   the   light    most   favorable    to   the   verdict,   accepting   all

reasonable inferences that support it, in deciding whether a

rational jury could have found the elements of the offense beyond

a reasonable doubt.        United States v. Baker, 17 F.3d 94, 96 (5th

Cir.), cert. denied, 513 U.S. 857 (1994).            Because Sam failed to

move for a judgment of acquittal, however, his claim is reviewed

“under a stricter than usual standard”.            United States v. Green,

293 F.3d 886, 895 (5th Cir.), cert. denied, 537 U.S. 965 (2002).

“[R]eview is [only] for ‘a manifest miscarriage of justice,’ which

is found if the record is ‘devoid of evidence pointing to guilt’”,

id. (quoting United States v. Ruiz, 860 F.2d 615, 617 (5th Cir.

1988)), or if      “the evidence on a key element of the offense was so


                                        4
tenuous that a conviction would be shocking”, Ruiz, 860 F.2d at 617

(internal quotation omitted).

     Section 2113(a) states:

           Whoever, by force and violence, or by
           intimidation, takes or attempts to take, from
           the person or presence of another, or obtains
           or attempts to obtain by extortion any
           property or money or any other thing of value
           belonging to, or in the care, custody,
           control, management, or possession of, any
           bank, credit union, or any savings and loan
           association, [is guilty of bank robbery].

(Emphasis added.) Because § 2113(a) is written in the disjunctive,

the Government need prove only that Sam took the money by use of

“force and violence” or by “intimidation”.              United States v.

Higdon, 832 F.2d 312, 314 (5th Cir. 1987), cert. denied, 484 U.S.

1075 (1988).

     Sam   concedes   he   threatened   the    first   teller   and   likely

intimidated her by use of his note.           He maintains, however, his

threat and intimidation was not the causal link by which he robbed

the bank; because he seized the money, and neither of the two

tellers aided him, his intimidation and threat of force were

extraneous to that seizure.      Sam relies exclusively on the first

teller’s trial testimony to support his claim. She testified that,

after Sam placed the note in front of her, “I looked at the

[second] teller and the cash drawer, and ... was going to react

because [the second teller] did not, but before I could open the




                                   5
cash drawer, the money that was on the counter that we were

verifying, he reached over and grabbed [it]”.

     “[F]rom    the   perspective   of    the    victim,   a   taking     ‘by

intimidation’ under section 2113(a) occurs when an ordinary person

in the teller's position reasonably could infer a threat of bodily

harm from the defendant's acts.”         Baker, 17 F.3d at 96 (quoting

Higdon, 832 F.2d at 315).     Sam’s note stated he had a gun.             The

first teller testified:    as soon as she saw that note, she knew the

bank was being robbed; she was extremely fearful; she was trained

to follow the robber’s instructions; and, in doing so, she reached

for the cash drawer.

     Accordingly, there is evidence that her response resulted

directly from Sam’s note.      It is reasonable to infer that this

response permitted, in part, his seizing the money.                 In other

words, there was no manifest miscarriage of justice.

                                    B.

     In challenging his sentence, Sam maintains the court erred in

holding:   (1) Guidelines § 5K2.13 precludes a downward departure

because bank robbery is a crime of violence; (2) his insanity

defense precluded an acceptance-of-responsibility reduction; and

(3) Booker requires, according to Sam, “a specific articulable

reason” to depart from the now-advisory Guidelines.

     Although   Booker   eliminated      the   mandatory   nature    of   the

Guidelines, “a sentencing court must still carefully consider the


                                    6
detailed statutory scheme created by [the Guidelines]”, and should

apply them “in the same manner as before [Booker]”.    United States

v. Mares, 402 F.3d 511, 518-19 (5th Cir.), cert. denied, 126 S. Ct.

43 (2005).    While we review a properly calculated Guidelines

sentence for reasonableness, we review de novo the interpretation

and application of the Guidelines.    See United States v. Villegas,

404 F.3d 355, 359-61 (5th Cir. 2005).

                                 1.

      This court lacks jurisdiction to review a downward-departure

denial unless, as here, the district court held a mistaken belief

that the Guidelines do not give it the authority to depart.    E.g.,

United States v. Barrera-Saucedo, 385 F.3d 533, 535 (5th Cir.

2004), cert. denied, 543 U.S. 1080 (2005).     Our review is de novo.

Id.

      At sentencing, the court correctly stated that, pursuant to

Guidelines § 5K2.13, Sam may not receive a downward departure “if

the facts and circumstances of [his] offense indicate a need to

protect the public because the offense involved actual violence or

a serious threat of violence”.   Yet, the court went on to state it

did not believe a departure was permissible:    “The reason that I am

forbidden by the Guidelines to grant such a downward departure is

that [bank robbery] is a crime of violence, even though there was

no overt violence utilized by ... Sam in the commission of this

crime”.   In other words, although the court correctly stated it

                                 7
should consider the facts and circumstances of Sam’s crime in

ruling on the downward-departure request, it, instead, denied the

departure, as a matter of law, because bank robbery is a crime of

violence.

     Section 5K2.13 states:

            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. Similarly, if
            a departure is warranted under this policy
            statement, the extent of the departure should
            reflect the extent to which the reduced mental
            capacity contributed to the commission of the
            offense.

The section further provides, however, that the departure may not

be granted 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”.

U.S.S.G. § 5K2.13 (emphasis added).

     This language resulted from an amendment to § 5K2.13 in its

pre-1998 form, which resolved a circuit split on whether § 5K2.13

permitted a departure for a “crime of violence” as defined by the

career offender guidelines.          § 5K2.13 cmt. n.1 (1998).        Compare

United States v. Poff, 926 F.2d 588 (7th Cir.) (en banc) (§ 5K2.13

categorically prohibits a departure for a crime of violence), cert.

denied, 502 U.S. 827 (1991), with United States v. Chatman, 986

F.2d 1446 (D.C. Cir. 1993) (§ 5K2.13 requires courts to look at all

                                       8
facts   and   circumstances    surrounding    a   defendant’s    crime   to

determine whether it was non-violent, permitting a departure).           As

a result, the district court should have considered the facts and

circumstances of Sam’s offense to determine whether it involved

“actual violence or a serious threat of violence”.              U.S.S.G. §

5K2.13. As it noted, Sam did not use overt violence in robbing the

bank.

     Although the court correctly stated the standard upon which it

should have based its review, it failed to consider all the facts

and circumstances of Sam’s crime, instead categorically denying the

departure because “bank robbery is considered a crime of violence”.

In sum, the district court erred in failing to perform § 5K2.13's

requisite factual inquiry.

                                    2.

     Generally, a district court’s refusal to grant an acceptance-

of-responsibility reduction is a factual finding, given even more

deference than review for clear error.            E.g., United States v.

Ragsdale, 426 F.3d 765, 781 (5th Cir. 2005), cert. denied, 126 S.

Ct. 1405 (2006).    When that denial involves an interpretation of

the Guidelines, however, it is reviewed de novo.        United States v.

Charon, 442 F.3d 881, 886-87 (5th Cir. 2006).

     The   denial   of   the   requested   acceptance-of-responsibility

reduction was premised on the court’s ruling that, because of his




                                    9
insanity defense at trial, Sam had not accepted responsibility for

his criminal conduct.        It concluded:

            [T]he insanity defense asserted by ... Sam at
            trial really challenges one of the elements of
            proof that the government has to establish;
            namely, that ... Sam had a culpable mental
            state at the time the offense was committed.
            In essence, an insanity defense says that he
            lacks the mental capacity to form a culpable
            mental state, and so that is a challenge to
            one   of  the   factual  elements   that   the
            government had to prove at trial.

     Guidelines § 3E1.1(a) permits the district court to grant a

two-level    reduction       if   the   defendant    “clearly     demonstrates

acceptance of responsibility for his offense”. U.S.S.G. § 3E1.1(a).

Application Note 2 states:

            This adjustment is not intended to apply to a
            defendant who puts the government to its
            burden of proof at trial by denying the
            essential factual elements of guilt ....
            Conviction by trial, however, does not
            automatically   preclude   a  defendant   from
            consideration for such a reduction. In rare
            situations a defendant may clearly demonstrate
            an acceptance of responsibility for his
            criminal conduct even though he exercises his
            constitutional right to a trial.

Id. cmt. n.2 (emphasis added).

     Sam claims his insanity defense did not challenge the factual

elements of his offense:           upon arrest, he admitted guilt both

orally and in a voluntary written statement; and, at trial, he did

not move for a judgment of acquittal.            Sam contends that, because

bank robbery    under    §    2113(a)   is   a   general-intent    crime,   the

Government was required only to prove he knew he was taking the

                                        10
bank’s    property      by   force    and       violence   or    by    intimidation.

Maintaining it is possible to claim he is legally insane, without

challenging this mens rea element of § 2113(a), Sam relies on an

Eighth Circuit opinion, United States v. Barris, 46 F.3d 33 (8th

Cir. 1995), which held an insanity defense “does not as a matter of

law preclude a reduction for acceptance of responsibility”. Id. at

35 (emphasis added).

     The Government counters that, although Sam conceded the actus

reus of his crime, his insanity defense was the same as denying he

had the culpable mens rea.            It cites a subsequent First Circuit

opinion, United States v. Gorsuch, 404 F.3d 543 (1st Cir. 2005),

which held a bank-robbery insanity defense precluded an acceptance-

of-responsibility reduction. Gorsuch held the defendant “denied an

essential factual element of guilt when she asserted at trial that

she lacked the capacity to form the mens rea ... necessary for the

imposition   of       criminal   responsibility”.          Id.    at    546   (second

emphasis added).         Gorsuch further opined that Barris failed to

“explain   how    a    defendant     who    has    contested     the    government’s

allegation that she acted with the requisite mens rea has not at

the same time contested her factual guilt and thereby declined to

accept responsibility for the charged offense”.                        Id. (emphasis

added).




                                           11
     Consistent with Gorsuch, we agree that, generally, an insanity

defense   precludes    an   acceptance-of-responsibility           reduction.

Pursuant to the above-quoted Guidelines § 3E1.1(a) cmt. n.2, we

leave open the possibility, however, that in a “rare situation[]”

a defendant may assert such a limited insanity defense that he is

eligible for the reduction.        This is not one of those instances.

As discussed supra, Sam’s expert testified at trial that Sam could

appreciate    the   wrongfulness    of     his   actions,   just    not   the

seriousness of their consequences.           Moreover, Sam’s position on

appeal undermines his claimed acceptance of responsibility.               For

the first time on appeal, he challenges the sufficiency of the

evidence, claiming the Government failed to prove one of the

factual elements of its case – causation.         This claim is difficult

to reconcile with Sam’s contention that he is eligible for a

sentencing reduction based on acceptance of responsibility.

     In any event, Sam contends Guidelines § 3E1.1(a) allows a

sentencing reduction unless a defendant denies an element of the

offense; however, “guilt”, as used in the Guidelines commentary, is

a broader term than “offense”.            Accordingly, we must determine

whether sanity is an “essential factual element[] of guilt”.

U.S.S.G. § 3E1.1(a) cmt. n.2 (emphasis added). “Guilty” is defined

as “justly liable to or deserving of a penalty”, and it is

synonymous with “blameworthy”.        WEBSTER’S NINTH NEW COLLEGE DICTIONARY

542 (1990).   This definition is reflected in our criminal justice


                                     12
system:     “‘Our collective conscience does not allow punishment

where it cannot impose blame’”.            United States v. Lyons, 739 F.2d

994, 994-95 (5th Cir.) (quoting Holloway v. United States, 148 F.2d

665, 666-67 (D.C. Cir. 1945)), cert. denied, 469 U.S. 930 (1984).

Significantly, the legal terminology used to refer to one who has

committed       wrongful   acts,    but    lacks      the    mental    capacity      to

understand      their   wrongfulness,          is   “not    guilty    by   reason    of

insanity”.       This “is a judgment that the defendant is not guilty

because, as a result of his mental condition, he is unable to make

an effective choice regarding his behavior”.                 Id. at 995 (emphasis

in original).

     In criminal law, “[t]he presumption of sanity is ... universal

in some variety or other, being (at least) a presumption that a

defendant has the capacity to form the mens rea necessary for a

verdict of guilt and the consequent criminal responsibility”.

Clark v. Arizona, 126 S. Ct. 2709, 2729-30 (2006).                     The insanity

defense raises “the kinds of mental differences that overcome the

presumption of sanity or capacity and therefore excuse a defendant

from customary criminal responsibility”.                    Id. at 2731.      Sanity

became a disputed issue, essential to finding guilt, when Sam

challenged the presumption of sanity by raising insanity as an

affirmative defense. See Davis v. United States, 160 U.S. 469, 486

(1895)    (if    “presumption      [of    sanity]     were    not     indulged,     the



                                          13
government    would     always   be   under    the    necessity   of   adducing

affirmative evidence of the sanity of an accused”).

      This interpretation of § 3E1.1(a) is further compelled by our

precedent holding affirmative defenses ordinarily challenge factual

guilt and therefore make a defendant ineligible for an acceptance-

of-responsibility reduction.          In United States v. Brace, 145 F.3d

247, 265 (5th Cir.) (en banc), cert. denied, 525 U.S. 973 (1998),

we held a defendant’s assertion of entrapment was a denial of

factual guilt and made him ineligible for that reduction because it

was a “challenge to criminal intent and thus to culpability”.

Similarly, in United States v. Branch, 91 F.3d 699, 742 (5th Cir.

1996), cert. denied, 520 U.S. 1185 (1997), we affirmed the denial

of that reduction for a defendant who contested his factual guilt

by claiming he acted in self-defense.              These affirmative defenses

are not analogous to the examples in the commentary to § 3E1.1(a)

of   issues   “that    [are   unrelated]      to    factual   guilt”   such   as

“constitutional challenge[s] to a statute” and “challenge[s] to the

applicability of a statute to [the defendant’s] conduct”. U.S.S.G.

§ 3E1.1(a) n.2.       See also United States v. Fells, 78 F.3d 168, 171

(5th Cir.) (holding defendant was not precluded from receiving

acceptance-of-responsibility reduction where he asserted underlying

facts did not legally constitute possession under statute and

challenged court’s venue), cert. denied, 519 U.S. 847 (1996).




                                        14
                                  3.

     Finally, Sam claims the district court erred in overruling

his Blakely/Booker objection when it stated that, notwithstanding

the now-advisory nature of the Guidelines, there was no need to

depart from them.   According to Sam, this misconstrues Booker’s

holding; he claims a district court need not find a specific

reason to depart from the Guidelines.

     “Even in the discretionary sentencing system established by

[Booker], a sentencing court must still carefully consider the

detailed statutory scheme created by [the Guidelines], which are

designed to guide the judge toward a fair sentence while avoiding

serious sentence disparity.” Mares, 402 F.3d at 518-19 (emphasis

added).    When the district court imposes a sentence falling

within a properly calculated Guidelines range, that sentence is

presumptively reasonable and “little explanation is required”.

Id. at 519.

                                 III.

     For the foregoing reasons, the conviction is AFFIRMED; the

sentence   is   VACATED;   and    this   matter   is   REMANDED   for

resentencing.

                CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED




                                  15
