                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 07-3654

U NITED S TATES OF A MERICA,
                                                    Plaintiff-Appellee,
                                  v.

C OURTENAY A NDERSON,
                                               Defendant-Appellant.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
            No. 07 CR 87—Samuel Der-Yeghiayan, Judge.



  A RGUED S EPTEMBER 11, 2008—D ECIDED N OVEMBER 5, 2008




  Before E ASTERBROOK, Chief Judge, and P OSNER and
E VANS, Circuit Judges.
  P OSNER, Circuit Judge. The defendant pleaded guilty
to committing a bank robbery in 2007. Before sentencing,
he moved under 18 U.S.C. § 3006A for the appointment of
a mental health expert to evaluate him for diminished
mental capacity. The district judge denied the motion. The
defendant asks us to vacate the sentence and direct the
district judge to appoint a mental health expert and
upon receiving the report to resentence the defendant.
2                                                  No. 07-3654

  Section 5K2.13 of the federal 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 . . . . If a departure is warranted . . . the extent of
the departure should reflect the extent to which the
reduced mental capacity contributed to the commission
of the offense.” An Application Note states that “ ‘signifi-
cantly reduced mental capacity’ means the defendant,
although convicted, has a significantly impaired ability
to (A) understand the wrongfulness of the behavior
comprising the offense or to exercise the power of
reason; or (B) control behavior that the defendant knows
is wrongful.” But section 5K2.13 provides that it is inap-
plicable if the offense involved “a serious threat of vio-
lence,” and that is the case here. The defendant presented
a note to a bank teller stating “as you can see I have a
gun,” demanding money in stacks of $100, $50, and
$20 bills, and threatening the teller with death if she
didn’t comply. Although we are not told whether he
actually had a gun, he threatened to kill a person and
that was enough to disentitle him to a sentencing dis-
count under the guideline. United States v. Cravens, 275
F.3d 637, 640-41 (7th Cir. 2001).
  But now that the sentencing guidelines are merely
advisory, a judge can give a sentencing discount to a
bank robber pursuant to 18 U.S.C. § 3553(a) on account of
diminished capacity, without regard to the limitations
in guideline section 5K2.13, because diminished capacity
might affect “the nature and circumstances of the offense
and the history and characteristics of the defendant,” and
No. 07-3654                                                  3

those are among the statutory factors that guide sen-
tencing. Id., § 3553(a)(1).
  The motion to appoint a mental health expert to
evaluate the defendant’s mental capacity stated that the
defendant was HIV-positive and suffered from severe
depression, but did not indicate whether those conditions
had existed at the time of the offense or what symptoms
produced by them might have made him more likely to
rob a bank. United States v. Dyer, 216 F.3d 568, 570-71
(7th Cir. 2000) (“if [the defendant’s] mental condition
was not a but-for cause of his crime, that is, if he would
have committed the crime even if he had been completely
sane at all times, then it is hard to see how his mental
condition is any more relevant to his punishment than
the color of his hair . . . . If there is no connection between
the defendant’s mental condition and his crime, there is
no basis for a punishment discount”). But although the
district judge rightly denied the motion he said that “I will
allow you to present the information that you state that
he suffers from depression and he had HIV. I will con-
sider those as factors when I consider the 18 U.S.C. 3553
factors.”
  The defendant filed a motion to reconsider that
amplified the original motion by asserting that he had
been both HIV-positive and severely depressed at the
time of the offense and adding that there is a condition
known as “HIV-associated dementia” (HAD) that
impairs memory, speech, concentration, motor func-
tioning, and emotional control. But the motion contains
no indication that the defendant was suffering from any
4                                               No. 07-3654

of these impairments when he robbed the bank. The
judge denied that motion too, but repeated that he would
consider at sentencing the defendant’s medical condition.
  The defendant submitted a sentencing memorandum,
repeating the argument about his mental condition and
adding that he was taking Prozac for his depression and
Resterol to help him sleep (odd: Resterol is a food sup-
plement designed to lower cholesterol) and was undergo-
ing monthly therapy sessions with a psychiatrist. The
memorandum suggested in passing that since the defen-
dant’s HIV infection reduced his life expectancy a
shorter sentence might be appropriate; but this sug-
gestion was unrelated to the request for the appointment
of a mental-health expert.
  At the sentencing hearing the defendant’s lawyer
recommended that his client (who was being sentenced
as a career offender) be given a sentence of between
100 and 151 months. The government, which had neither
supported nor opposed the motion for appointment of an
expert, recommended that the sentence be within the
guidelines range. The judge, after a noncommittal
reference to the defendant’s medical condition, sentenced
him to 172 months, which was within the guidelines
range of 151 to 188 months.
  The government has made a limited confession of error,
which of course is not binding on us. Orloff v. Willoughby,
345 U.S. 83, 87-88 (1953); United States v. Demaree, 459
F.3d 791, 793 (7th Cir. 2006); Strauss v. United States,
516 F.2d 980, 982 (7th Cir. 1975); United States v. Sanchez-
Berrios, 424 F.3d 65, 81 (1st Cir. 2005). The government
No. 07-3654                                                 5

believes that the district judge may have thought the
defendant was seeking an evaluation either of his mental
capacity to have pleaded guilty or of his capacity at the
time of sentencing, rather than of his capacity at the
time of the offense. The last is the relevant time when a
sentencing discount is sought under section 5K2.13 of the
guidelines, United States v. Frazier, 979 F.2d 1227, 1230 n. 2
(7th Cir. 1992); United States v. Greenfield, 244 F.3d 158,
162 (D.C. Cir. 2001), but the guideline was inapplicable
and anyway by the time the sentencing hearing was
conducted the defendant’s lawyer had made clear that
his argument for lenity presupposed that the defendant
had had diminished capacity at the time of the offense.
  The government points out that the district judge
would not have been abusing his discretion had he
ruled explicitly that the defendant’s submission in sup-
port of his motion for the appointment of a mental health
expert was insufficient to warrant appointing an expert.
We would put the point more strongly: it would have
been an abuse of discretion had the judge granted the
motion on so skimpy a showing as the defendant made.
The appointment of an expert is an expense to the gov-
ernment (according to the defendant’s motion to recon-
sider, the cost would have been between $5,000 and
$7,500), a burden to the court (which must evaluate the
expert’s evaluation), and a source of delay in sentencing.
See, e.g., Toole v. Baxter Healthcare Corp., 235 F.3d 1307,
1315-16 (11th Cir. 2000); Town of Burlington v. Department
of Education, 736 F.2d 773, 791 (1st Cir. 1984); Shipes v.
Trinity Industries, Inc., 685 F. Supp. 612, 616 (E.D. Tex.
1987); Edward K. Cheng, “Independent Judicial Research
6                                              No. 07-3654

in the Daubert Age,” 56 Duke L.J. 1263, 1271-72 (2007).
It should not be done casually.
  The defendant’s submissions do not indicate that he
has any mental or other symptoms as a result of being
infected by the AIDS virus (HIV—human immunodefi-
ciency virus). The record does not even indicate when he
became infected. The sentencing memorandum asserts
without any backing from medical records that it was
while he was imprisoned, apparently between 1986 and
1998, for murder. That would place the onset of the HIV
infection between 9 and 21 years before the bank robbery,
certainly long enough for symptoms of AIDS to appear.
But the date of onset is unsubstantiated, and the
defendant continues to describe himself as being HIV-
positive rather than as a person with AIDS. He does not
claim to have any symptoms other than depression, which
could be a pre-AIDS consequence of HIV or could be
unrelated.
  HIV virus kills white blood cells, the core of a person’s
immune system. It can take many years, however, even
without any treatment to retard the destructive march
of the virus, for the erosion of the infected person’s im-
mune system to reach a point at which serious symp-
toms of ill health appear; only when they do appear, or
the afflicted person’s white blood cell count falls to the
level at which grave symptoms are highly likely, is
he classified as having AIDS rather than as being
just infected by HIV. Centers for Disease Control and
Prevention, “Living With HIV/AIDS,” www.cdc.gov/hiv/
resources/brochures/livingwithhiv.htm#q2 (visited Oct. 16,
No. 07-3654                                                7

2008); David W. Webber, AIDS and the Law § 1.09, pp. 1-47
to 1-48 (4th ed. 2008); Gordon Edlin & Eric Golanty, Health
and Wellness 246-47 (2007); Mary-Jane Schneider, Introduc-
tion to Public Health 158-59 (2d ed. 2006); Brett Grodeck,
The First Year HIV: An Essential Guide for the Newly Diag-
nosed 31-32 (2003).
  There is no suggestion that at the time of the robbery
the defendant had any symptoms (other than the impair-
ment of his immune system to an unknown extent), such
as dementia, of his being infected with HIV. There is
no consensus on the prevalence of dementia in persons
with AIDS. Estimates range from 5 percent (or even less)
to 24 percent, Mary Ann Cohen & Jack M. Gorman, Compre-
hensive Textbook of AIDS Psychiatry 41 (2008); Steven H.
Zarit & Judy M. Zarit, Mental Disorders in Older Adults:
Fundamentals of Assessment and Treatment 67-68 (2d ed.
2007); Valery L. Feigin & Derrick A. Bennett, Handbook of
Clinical Neuroepidemiology 361 (2007); Beau M. Ances &
Ronald J. Ellis, “Dementia and Neurocognitive Dis-
orders Due to HIV-1 Infection,” 27 Seminars in Neurology 86
(2007), though the figure can be, as one would expect,
higher in the very late stages of the disease. Donald H.J.
Hermann & William P. Schurgin, Legal Aspects of Aids
§ 1:22, pp. 1-20 to 1-21 (2007). A complication is that
modern treatments greatly reduce the likelihood of demen-
tia in an AIDS patient, Ances & Ellis, supra, at 87 (fig. 1);
Benoit Dubé et al., “Neuropsychiatric Manifestations of
HIV Infection and AIDS,” 1 Journal of Psychiatry & Neuro-
science 237, 238 (2005), and we do not know what if any
treatment the defendant has received. But we do know
that at the time of the offense—and, as far as we know, to
8                                                  No. 07-3654

this day—the defendant had only the virus, not AIDS
symptoms.
  Depression unlike dementia can be a symptom of being
infected by HIV even before the disease progresses to
AIDS. Id. at 240. And though the defendant does not
argue that his depression is a symptom of his HIV infec-
tion, it is a common and sometimes a disabling mental
disease, whatever its cause. But it cannot be assumed to
diminish a person’s ability to avoid committing crimes
and thus be relevant to his sentence. See, e.g., United States
v. Gwiazdzinski, 141 F.3d 784, 790-91 (7th Cir. 1998); United
States v. Frazier, 979 F.2d 1227, 1230 (7th Cir. 1992); United
States v. McCart, 377 F.3d 874, 878 (8th Cir. 2004); United
States v. Greenfield, 244 F.3d 158, 162-63 (D.C. Cir. 2001). All
we are told is that the defendant is being treated for
depression. Since he has been diagnosed with the
condition and is being treated with a prescription drug
(Prozac), there must be medical records. But his lawyer did
not furnish any to the district court or to us and the
presentence investigation report states that the probation
office “has been unable to verify the defendant’s [mental
health] treatment information.”
  A judge is not required to appoint a mental health expert
without a showing that the appointment would have
some (not necessarily a great) likelihood of resulting in a
reduced sentence. 18 U.S.C. § 3006A(e); United States v.
Fazzini, 871 F.2d 635, 637 (7th Cir. 1989); United States v.
Alden, 767 F.2d 314, 318-19 (7th Cir. 1984); Branscomb v.
Norris, 47 F.3d 258, 262-63 (8th Cir. 1995); compare Ake v.
Oklahoma, 470 U.S. 68, 86 (1985). That showing has not
been made.
No. 07-3654                                             9

  The defendant also asked the court to appoint an in-
vestigator “to check whether any records
confirmed . . . that the murder victim in the 1984 case
had taken in Mr. Anderson and his brother when they
were still minors, and had sexually abused them. If this
account were confirmed, it could be relevant to re-assess-
ing Mr. Anderson’s criminal history.” The judge denied
the defendant’s request. Since, as the government asserts
without contradiction, “it appears that the records defen-
dant sought to obtain through the investigator were
obtained by the Probation Officer . . . and presented to
the district court for purposes of sentencing,” the defen-
dant’s argument is frivolous.
                                               A FFIRMED.




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