                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 03-1911
UNITED STATES OF AMERICA,
                                           Plaintiff-Appellee,
                              v.

ROBIN FERRON,
                                        Defendant-Appellant.

                        ____________
          Appeal from the United States District Court
               for the Eastern District of Wisconsin.
         No. 02 CR 189—Charles N. Clevert, Jr., Judge.
                        ____________
 ARGUED DECEMBER 11, 2003—DECIDED FEBRUARY 9, 2004
                   ____________



  Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
  BAUER, Circuit Judge. Defendant Dr. Robin Ferron was
charged by information and ultimately, pleaded guilty to
one count of bank fraud. At sentencing, Ferron’s request for
a downward departure due to her claimed diminished
capacity, see U.S.S.G. § 5K2.13, was denied. Ferron says
that the district court judge committed error by refusing to
consider evidence that he considered barred by the Federal
Rules of Evidence. The evidence offered was the testimony
of a clinical psychologist which the court held was barred by
the ruling in Daubert v. Merrell Dow Pharmaceuticals, 509
U.S. 579 (1993). It was not. Nevertheless, several things are
2                                                No. 03-1911

apparent that made this slip harmless: 1) the court did
consider the evidence (even when disclaiming that it was
not), 2) Daubert did not preclude such consideration—the
Federal Rules of Evidence are not applicable to sentencing
proceedings, and 3) the evidence contributed nothing to the
process and would have been appropriately discounted in
any event.


                     BACKGROUND
  Ferron, a medical doctor, owned and operated Pain
Management Centers, S.C. (PMC) with offices in Wisconsin.
In January of 2000, she obtained a $450,000 line of credit
on behalf of her business. As security, the creditor, TCF
Bank (TCF), a federally insured institution, received a
security interest in PMC’s assets and equipment. Despite
this agreement, Ferron sold x-ray equipment, an asset of
PMC, and deposited the proceeds of the sale in her personal
banking account. Under the agreement, the funds should
have been paid to TCF. This and other conduct on the part
of Ferron led to federal criminal charges being levied
against her by way of information. She pleaded guilty to a
single count of bank fraud, in violation of 18 U.S.C. § 1344.
  At the sentencing phase of the proceedings, Ferron moved
for a downward departure on a number of grounds. Specifi-
cally, she claimed that a departure was appropriate for the
following reasons: 1) extraordinary acceptance of responsi-
bility, 2) the offense level overstated the seriousness of the
offense itself, 3) diminished capacity, and 4) a combination
of the above factors plus “other mitigating circumstances.”
  In support of her claim of diminished capacity, Ferron
submitted the report of Dr. R. Bronson Levin, Ph.D., a
clinical and forensic psychologist. From three examinations
over the course of approximately one month, Dr. Levin
No. 03-1911                                                3

diagnosed Ferron with generalized anxiety disorder,
dependant personality disorder, dysthymia, and drug
and alcohol abuse. These findings were similar to those of
Dr. Brehm’s court-ordered psychological evaluation. Levin
also suspected that Ferron suffered from adult attention
deficit disorder (ADD). At sentencing, he testified that the
defendant suffered from these conditions at the time of the
offense. When asked how these diagnoses affected the de-
fendant’s offense-related conduct, he essentially said that
she cannot concentrate on financial matters and therefore,
must rely on others to direct and make financial decisions
for her. On cross-examination Dr. Levin testified that
Ferron was competent, understood the difference between
right and wrong, and the difference between a lie and the
truth. He also testified that she did not suffer from a com-
pulsive disorder which would cause her to steal.
  After direct and cross examination, the district court
judge hearing the sentencing rejected Dr. Levin’s testimony
by relying on Federal Rule of Evidence 702 and Daubert. He
did not rest here however, in that he adopted the argu-
ments of the prosecution and stated other non-psychological
reasons for refusing to depart. Ferron appeals.


                      DISCUSSION
I. Standard of Review
  This court reviews a district court’s refusal to grant a
downward departure for abuse of discretion. 18 U.S.C.
§ 3743(e); Koon v. United States, 518 U.S. 81, 92-100 (1996).
In practice, a refusal to depart is unreviewable so long as
the sentencing judge understood his authority to depart and
exercised his discretion in refusing to do so. United States
v. Payton, 198 F.3d 980, 984 (7th Cir. 1999). However, a
misapplication of the guidelines is an error of law and is by
4                                                No. 03-1911

its very terms, an abuse of discretion. Koon, 518 U.S. at
100; United States v. Besler, 86 F.3d 745, 747 (7th Cir.
1996).


II. The Error
  The sentencing judge applied Federal Rule of Evidence
702 and Daubert to reject the testimony of Ferron’s expert,
(Br. of Defendant-Appellant at App. 37- 39), despite the fact
that the Federal Rules of Evidence do not apply at sentenc-
ing. U.S.S.G. § 6A1.3(a). He clearly stated, “[l]et the record
note that the Court is exercising its obligation under
Daubert with regard to not allowing this testimony.” (Tr.
Vol. II at 55) (emphasis added). Later, the judge said
Daubert and Federal Rule of Evidence 702 “requires the
Court to be the gatekeeper when considering specialized
knowledge or information that is offered in the form of
opinion testimony.” (Tr. Vol. II. at 96) (emphasis added). It
is this mandatory language which causes concern.
  It is unfortunate, but clear, that the judge in this case
misapplied the law; he felt obligated to reject the testimony
under Daubert. This is an abuse of discretion because it is
an incorrect application of the sentencing guidelines. United
States v. Hunter, 145 F.3d 946, 952 (7th Cir. 1998) (stating
that under the standard of “sufficient indicia of reliability,”
a district court may admit evidence during sentencing that
would not qualify as expert testimony under Federal Rule
of Evidence 702).


III. Analysis
  At the sentencing hearing, the Assistant United States
Attorney orally argued against a downward departure. The
judge adopted the argument as a reason for refusing to
depart. The text of the argument, as it related to dimin-
ished capacity, is as follows.
No. 03-1911                                                   5

      And that leaves really the diminished capacity basis
    for a downward departure. And the guidelines, and
    recognizing at this point there is fairly little evidence to
    support such a departure, the guidelines indicate that
    a significantly reduced mental capacity means the
    defendant although convicted has a significantly im-
    paired ability to understand the wrongfulness of her
    behavior comprising the offense or to exercise the power
    of reason.
      And while Dr. Levin or the other materials submitted
    suggest some disorder, none of it, and I know the Court
    has rejected it, but even his testimony was that she has
    the ability to understand the wrongfulness. That’s what
    that guideline’s aimed at. You now, maybe we all suffer
    from some kind of mental difficulties or stress. The
    guidelines are looking for something truly extraordi-
    nary.
      And to talk about this defendant with significant
    intelligence, with significant ability to process complex
    information—this isn’t a case of whether she could
    balance her checkbook. This is when she stole by selling
    property she had pledged, where she attempted to
    defraud her former husband by diverting her income to
    her daughter. These are big old concepts of truth and
    honesty and right and wrong. And the defendant has
    the ability to understand that, judge.
(Tr. Vol. II at 95.)
  The Government’s argument centered on Ferron’s ability
to understand right from wrong and the truth and a lie.
This is testimony that was uttered by Dr. Levin, and as far
as we can determine, by no one else. Therefore, it is clear
that, despite his claim or outright rejection, the judge ac-
tually considered the evidence adduced from Dr. Levin’s
testimony.
6                                                No. 03-1911

  Beyond the procedural issue, the third paragraph of the
Government’s argument, as adopted by the judge, supports
the finding that Ferron’s life was not “so compartmentalized
that she can be found to have a significantly reduced
mental capacity with respect to the operation of her busi-
ness and, yet, a perfectly appropriate and professional ca-
pacity as to continue her medical practice.” (Tr. Vol. II at
98.) The evidence of Ferron’s intelligence and her ability
to process complex medical information; the fact that she
knows the difference between right and wrong, the truth
and a lie; the fact that she understands the concept of
stealing; and that she does not suffer from some sort of
compulsive disorder which causes her to steal all cut
against a diminished capacity departure. Therefore, the
evidence was appropriately discounted.
   Ferron’s own expert, Dr. Levin, testified that the defen-
dant knew the difference between right and wrong. (Tr. Vol.
II at 25-6.) A single statement which could be more damag-
ing to Ferron’s motion for a downward departure is hard to
imagine. He also testified that she does not suffer from a
compulsive disorder which predisposes her to the criminal
conduct which formed the basis of her conviction. (Tr. Vol.
II at 48-9.) Instead, he testified that she is supremely inept
in dealing with financial matters. As a result of her inepti-
tude, she relies on others to perform these tasks for her.
This argument presumably goes to show that she is incapa-
ble of “control[ing] behavior that the defendant knows is
wrongful.” See U.S.S.G. § 5K2.13. However, the argument
loses much of its strength when Dr. Levin says, “She wants
to focus on taking care of patients. She doesn’t want to
think about the business aspects. She wants other people to
do that for her.” (Tr. Vol. II at 22) (emphasis added). It
seems to us that a significantly impaired ability to control
behavior would be reflected not by “wants,” but by needs;
i.e., she cannot think about the business aspects. She needs
others to do that for her.
No. 03-1911                                                 7

  After reviewing the arguments, record and evidence, we
are left with the unmistakable conclusion that the judge
found Dr. Levin’s testimony to be insufficiently probative to
support the departure. He said,
      Here Dr. Levin during the course of his testimony
    stated on several occasions that he suspected certain
    things were true and that he relied upon representa-
    tions that were made by third parties without going to
    primary data to confirm whether or not information he
    was provided by these third parties was accurate.
      One good example of that was failure of Dr. Levin to
    look at any particulars concerning the consulting ar-
    rangements and financial statements of the defendant.
    This was very telling and was one of the bases for
    my decision that I could not accept as a medical fact
    that this defendant has a significantly reduced mental
    capacity as compared to others who have a similar
    combination of psychological disorders and personality
    disorders.
(Tr. Vol. II at 97.)
   Despite the district court judge’s claim of rejecting the
testimony of Dr. Levin, the record shows that he considered
it. Furthermore, the testimony failed to produce any reason
for a downward departure.
                                                   AFFIRMED.
A true Copy:
       Teste:
                           ________________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




                       USCA-02-C-0072—2-9-04
