                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           DEC 17 1999
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                             No. 99-1251
                                                  (D. Ct. No. 98-CR-180-WM)
 ELIZABETH SUZANNE PORTMAN,                                (D. Colo.)

                Defendant - Appellant.


                             ORDER AND JUDGMENT           *




Before TACHA , McKAY , and MURPHY , Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal.   See Fed. R. App. P. 34(a)(2); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

       This appeal is from the sentence imposed by order of the district court

following defendant Portman’s plea of guilty to Count One of an indictment

which charged her with bank robbery. Defendant was sentenced to 30 months of



       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. This 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.
imprisonment. On appeal, she alleges that the district court erred by failing to

consider a downward departure on the basis of diminished capacity in addition to

and separate from the downward departure that the district court granted for

coercion and duress. We affirm.

      Defendant pled guilty to bank robbery after she was indicted for her role in

an incident in which she drove her boyfriend and others to World Savings and

Loan in Lakewood, Colorado, on April 15, 1998. Prior to sentencing, defendant

filed a motion for downward departure in which she requested departures based

on: 1) coercion and duress under United States Sentencing Guidelines

(“U.S.S.G.”) § 5K2.12; 2) diminished capacity under U.S.S.G. § 5K2.13; and

3) extraordinary remorse, aberrant behavior, overstated criminal history, and a

combination of these factors pursuant to   Koon v. United States , 518 U.S. 81

(1996). The district court conducted a thorough sentencing hearing on May 10,

1999 at which the court heard arguments and testimony concerning all of the

requested grounds for departure. The court also heard testimony from an expert

witness who was called to testify with regard to whether defendant Portman

suffered from battered woman’s syndrome. At the end of that hearing, the district

court determined that defendant suffered from battered woman’s syndrome and

therefore exercised his discretion to grant a two level downward departure on the

basis of her vulnerability to coercion and duress. The district court, however, did


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not grant an additional departure for diminished capacity. The district court said

at that hearing:

              “With regard to diminished capacity, I think that’s really
              the same bite of the apple as duress, and it, in my
              conclusion, is that the duress provision applies and is
              sufficient unto itself in my findings that she is in fact --
              does have the syndrome.

The district court also granted the government’s motion for a two level downward

departure under U.S.S.G. § 5K1.1. The result was the district court departed

downward from the guideline sentence of 57-71 months to a four level reduction

resulting in a level 18 range, a term of imprisonment from 30 to 37 months. The

court sentenced defendant Portman to 30 months of imprisonment.

       On appeal, defendant argues that the district court misapplied the

guidelines as a matter of law by conflating the request for downward departure

for coercion and duress with the request for downward departure for diminished

capacity. We review legal interpretations of the application of the sentencing

guidelines de novo.    United States v. Henry , 164 F.3d 1304, 1310 (10th Cir.

1999), cert. denied, 119 S. Ct. 2381. We review factual findings relating to

applications of the guidelines for clear error.    Id. We are without jurisdiction to

review a district court’s discretionary refusal to depart downward from the

guideline range unless the record is clear that the district court believed it did not

have the authority to depart downward.        United States v. Fortier , 180 F.3d 1217,


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1231 (10th Cir. 1999) (citing   United States v. Rodriguez , 30 F.3d 1318, 1319

(10th Cir. 1994)).

      We have reviewed the transcript of the sentencing hearing and conclude

that the district court made a factual finding under the facts of this case in

determining that the only downward departure warranted was based on coercion

and duress. The district court’s statement with respect to the additional request

for a downward departure based on diminished capacity merely reflects the

court’s understanding of the facts of this case and the factual basis for the

requests for downward departures. The record reveals no evidence that the

district court was under any misapprehension about its power to depart downward

for both reasons under the appropriate facts. The district court found that only

the coercion and duress departure applied in this case. We hold therefore that the

refusal of the district court to depart downward on the basis of diminished

capacity was a simple refusal to depart downward which we will not review on

appeal. The sentencing determination of the district court is affirmed.

                                        ENTERED FOR THE COURT,


                                        Deanell Reece Tacha
                                        Circuit Judge




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