                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        DEC 14 2004
                                   TENTH CIRCUIT
                                                                   PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                    No. 04-1238
                                                 (D.C. No. 03-CR-399-D)
 DONALD G. HOGUE,                                       (D. Colo.)

          Defendant - Appellant.




                             ORDER AND JUDGMENT *


Before EBEL, MURPHY, and McCONNELL, Circuit Judges.


      Donald G. Hogue (“Defendant”) pled guilty to misuse of a social security

number, in violation of 42 U.S.C. § 408(a)(5). The district court sentenced

Defendant to five months in custody, followed by five months of home detention




      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
as a condition of his supervised release. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we AFFIRM.



                                 BACKGROUND

      In December of 2003, Defendant pled guilty to one count of “knowingly

and wilfully converting Social Security disability payments for the use and benefit

of a person other than the intended beneficiary,” in violation of 42 U.S.C.

§ 408(a)(5). Pursuant to a plea agreement, six other related counts were

dismissed.

      The offense at issue arose because Defendant falsely represented to the

Social Security Administration that he had legal custody of his daughter, Sara

Henderson; applied to be her representative payee; and then converted her

disability payments for his personal use. Defendant also falsely represented to the

Social Security Administration that he had in fact received and used the payments

on Henderson’s behalf. In truth, Henderson did not live with Defendant, and he

did not provide her any financial support.

      Defendant was sentenced based on an offense level of 10 and a criminal

history category of III, which resulted in a recommended sentencing range of 10

to 16 months. The district court sentenced Defendant at the bottom of this range,

imposing a five-month prison sentence followed by five months of home


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detention. The home detention was imposed as a condition of his three years of

supervised release.



                                  DISCUSSION

      Defendant suffers from rapid-cycling bipolar disorder, post-traumatic stress

disorder, and a personality disorder. Based on his mental condition, Defendant

sought a downward departure at sentencing. The district court refused, and now

on appeal, Defendant seeks to challenge this decision. Specifically, Defendant

argues that the district court should have departed based on Defendant’s

diminished capacity pursuant to § 5K2.13, and also because Defendant’s criminal

history over-represents the seriousness of his criminal past due to his history of

mental illness. We address each of these arguments in turn.

      1.     Offense level departure for diminished capacity

      Before the district court, Defendant argued that because his bipolar disorder

was “a pervasive part of his life” and because he committed the instant offense

“to feed his gambling disorder, which is a clearly recognized clinical symptom of

bipolar disorder,” a diminished capacity departure was warranted.

      “Absent the trial court’s clear misunderstanding of its discretion to depart,

or its imposition of a sentence which violates the law or incorrectly applies the

guidelines, we have no jurisdiction to review a refusal to depart.” United States


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v. Saffo, 227 F.3d 1260, 1271 (10th Cir. 2000). Appellate review exists only in

“the very rare circumstance that the district court states that it does not have any

authority to depart from the sentencing guideline range for the entire class of

circumstances proffered by the defendant.” United States v. Brown, 316 F.3d

1151, 1154 (10th Cir. 2003).

      In this case, the district court recognized that the applicable sentencing

policy statement on diminished capacity provides that a 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.” U.S.S.G.

§ 5K2.13 (2003).

      After hearing oral argument on the issue, the district court denied

Defendant’s motion, concluding that “on the record before me, I can’t tell the

extent to which the bipolar condition contributed substantially . . . to the

commission of the offense.” Defendant had submitted only general

documentation on bipolar conditions universally, but provided no specific

affirmative evidence showing how Defendant’s particular case of bipolar disorder

directly affected him over the course of the several years during which the instant

offense was committed. The district court concluded that there was “an

inadequate showing by the defendant, who has the burden here, that in fact the


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bipolar condition in the context of the diminished capacity request . . . has been

met.”

        On this record, we have no doubt that the district court understood its

discretion to depart under § 5K2.13 but concluded, based on the particular facts

of Defendant’s case, that the departure was not warranted. Thus, we have no

jurisdiction to review the decision not to depart based on diminished capacity.

        Defendant asserts that we do have jurisdiction because the court

misinterpreted the guideline by imposing a heightened “but-for causation”

requirement on Defendant. We need not decide whether such a requirement

would be a proper application of the § 5K2.13 guideline language in the abstract,

however, because the district court never applied such a standard here. Instead,

the district court consistently stated the exact language of the guideline, expressly

looking to whether Defendant’s bipolar disorder “contributed substantially” to the

commission of the offense. 1 Defendant simply failed to convince the court that a

§ 5K2.13 diminished capacity departure was warranted in this case. Accordingly,

we must dismiss this claim on appeal.




       For example, the district court explicitly stated that the “test now is that in
        1

order to receive a departure for diminished capacity, the significantly reduced
mental capacity must have contributed substantially to the commission of the
offense.”

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      2.     Criminal history departure for over-representation due to mental
             illness

      Defendant also argues that the district court should have departed

downward from Defendant’s criminal history category in recognition of the extent

to which Defendant’s mental illness impacted his past criminal conduct.

According to Defendant, the district court failed to rule on this issue, which was

raised in Defendant’s written motion for downward departure, and the sentence

should therefore be vacated and the case remanded for resentencing, with proper

consideration given to this ground for departure.

      We do not agree that the district court failed to address this issue. In its

final statement at sentencing, the district court said:

      Let me just note that even though my reason [for refusing to depart]
      primarily focused on § 5K2.13, the Court makes an affirmative finding that
      there is an inadequate showing that there are extraordinary mitigating
      circumstances which would allow me to conclude that a downward
      departure is appropriate under section 5K2.0. The defendant has seven
      convictions which were not assessed criminal history points which includes
      two felony convictions. The Court finds that the defendant’s criminal
      history category, meaning criminal history category III, as determined by
      the Court, is appropriate, proper, does not significantly overrepresent the
      seriousness of his criminal history of the likelihood that he will commit
      further crimes. The Court finds no reason to depart from the Guideline
      range. . . .

      Defendant emphasizes that the district court “made a confusing reference”

in its citation to § 5K2.0 before discussing the appropriateness of Defendant’s

criminal history category and in this regard only discussed the number of


                                         -6-
Defendant’s prior convictions, without considering whether Defendant’s bipolar

disorder warranted a criminal history departure. 2 Instead, § 4A1.3 governs

criminal history category departures. The district court’s statements at sentencing

directly track the language of § 4A1.3, which provides that “[i]f reliable

information indicates that the defendant's criminal history category substantially

over-represents the seriousness of the defendant's criminal history or the

likelihood that the defendant will commit other crimes, a downward departure

may be warranted.” U.S.S.G. § 4A1.3 (2003). At best, the district court’s failure

to cite § 4A1.3 explicitly makes his statement ambiguous; however, even if that

were the case, “we treat ambiguous statements made by district judges as though

the judge was aware of his or her legal authority to depart but chose instead, in an

exercise of discretion, not to depart.” United States v. Fortier, 180 F.3d 1217,

1231 (10th Cir. 1999.) We have no doubt this was the case here.

      As for Defendant’s argument that the court considered only the number of

convictions, without addressing the effect of Defendant’s history of suffering



      2
        Section 5K2.0 provides generally for downward departures based on a
finding that the defendant’s case presents circumstances “of a kind, or to a
degree, not adequately taken into consideration by the Sentencing Commission in
formulating the guidelines that . . . would result in a sentence different from that
described.” U.S.S.G. § 5K2.0(a) (2003). Defendant raised below an alternative
grounds for departure under this guideline based on a combination of his mental
illness and his abusive childhood. However, this issue has not been raised on
appeal.

                                        -7-
from bipolar disorder on his criminal history, we find this suggestion entirely

unconvincing given the district court’s earlier findings that Defendant had failed

to present any evidence, aside from his counsel’s own assertions, of how bipolar

disorder had actually affected Defendant personally. Moreover, we note that it is

not clear that the district court even could have considered Defendant’s mental

illness outside the context of § 5K2.13. The guidelines specifically state: “Mental

and emotional conditions are not ordinarily relevant in determining whether a

sentence should be outside the applicable guideline range, except as provided in

Chapter Five, Part K, Subpart 2 (Other Grounds for Departure).” U.S.S.G. §

5H1.3 (2003). Having concluded that Defendant’s evidence was inadequate to

establish the effect of his bipolar condition on his conduct for purposes of §

5K2.13, there may have been no need to continue to consider his requests for a

departure based on the same claims of mental illness in the criminal history

context.

      Once again, “[a]ppeal jurisdiction exists only if the court states that it lacks

authority to depart for the entire class of circumstances proffered by the

defendant, not if it concludes that it lacks authority under the defendant's

particular circumstances.” United States v. Mendez-Zamora, 296 F.3d 1013,

1018-1019 (10th Cir. 2002). Here, the district court found that Defendant’s

criminal history category III is “appropriate, proper, [and] does not significantly


                                        -8-
overrepresent the seriousness of his criminal history of the likelihood that he will

commit further crimes.” The district court clearly knew it had authority to depart

but found “no reason to depart” in this particular case. Thus, we cannot review

this issue, and accordingly, we must dismiss this appeal.



                                  CONCLUSION

      For the foregoing reasons, the appeal is DISMISSED.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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