                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________           FILED
                                                          U.S. COURT OF APPEALS
                                       No. 10-11520         ELEVENTH CIRCUIT
                                   Non-Argument Calendar     DECEMBER 9, 2010
                                 ________________________        JOHN LEY
                                                                  CLERK
                           D.C. Docket No. 1:09-cr-20632-KMM-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                Plaintiff-Appellee,

                                            versus

NORRIS LUNDY,
a.k.a. Polo,

lllllllllllllllllllll                                             Defendant-Appellant

                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                     (December 9, 2010)

Before DUBINA, Chief Judge, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

         Appellant Norris Lundy appeals his 188-month total sentence after pleading
guilty to two counts of possession of crack cocaine with intent to distribute, in

violation of 21 U.S.C.§ 841(a)(1).

      On appeal, Lundy argues that the district court erred in denying his motion

for a second psychiatric evaluation, which he filed to assist in his sentencing. He

notes that 18 U.S.C. § 3006A(e)(1) provides that district courts will authorize

indigent defendants to obtain services “necessary for adequate representation.” He

contends that the district court’s denial of his motion prejudiced him because it

precluded him from requesting a diminished capacity departure pursuant to

U.S.S.G. § 5K2.13. Additionally, he asserts that the denial left him unable to

effectively argue for a reduced sentence based on his mitigating psychological

issues.

      We review the district court’s denial of a motion for presentence psychiatric

examination for abuse of discretion. See United States v. Nickels, 324 F.3d 1250,

1251 (11th Cir. 2003) (reviewing presentence motions brought under 18 U.S.C. §§

3552(c) and 4241(a)).

      “Counsel for a person who is financially unable to obtain investigative,

expert, or other services necessary for adequate representation may request them

in an ex parte application.” 18 U.S.C. § 3006A(e)(1). After appropriate inquiry,

if the district court finds the services to be necessary, it shall authorize counsel to

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obtain them. Id. “A court may refuse to authorize Section 3006A(e) expert

services on grounds that they are not ‘necessary’ when it concludes that the

defendant does not have a plausible claim or defense.” United States v. Rinchack,

820 F.2d 1557, 1564 (11th Cir. 1987).

      The guidelines provide that 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.” U.S.S.G. § 5K2.13. The

guidelines do not require a defendant to submit to psychiatric examination in order

to request a departure based on diminished capacity. See id.

      In imposing a sentence, the district court is required to choose a term that is

“sufficient, but not greater than necessary to comply with the purposes” listed in

18 U.S.C. § 3553(a)(2), including the need to reflect the seriousness of the

offense, promote respect for the law, provide just punishment for the offense, deter

criminal conduct, protect the public from the defendant’s future criminal conduct,

and provide the defendant with needed educational or vocational training or

medical care. See 18 U.S.C. § 3553(a). The court must also consider the nature

and circumstances of the offense, the history and characteristics of the defendant,

the kinds of sentences available, the applicable guideline range, the pertinent

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policy statements of the Sentencing Commission, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to victims. Id.

§ 3553(a)(1), (3)-(7). For purposes of § 3553(a)(1), “the history and

characteristics of the defendant” include the defendant’s mental capacity. See

18 U.S.C. § 3553(a)(1); see also United States v. Willis, 560 F.3d 1246, 1251

(11th Cir. 2009) (discussing defendant’s diminished mental capacity in the context

of § 3553(a)(1)). A district court may assess a defendant’s mental condition

without the aid of a psychiatric examination if it has adequate information relating

to the condition. Nickels, 324 F.3d at 1251 (affirming the denial of a motion for a

psychiatric examination under 18 U.S.C. § 3552(c)).

      After reviewing the record, we conclude that the district court did not err in

sentencing Lundy without the aid of an additional presentence psychiatric

examination, because such an examination was not “necessary for adequate

representation” under 18 U.S.C. § 3006A(e)(1). Lundy did not need the additional

examination in order to request a departure for diminished capacity. See U.S.S.G.

§ 5K2.13. The additional examination was also unnecessary for purposes of §

3553(a) sentencing arguments, since the district court may properly consider a

defendant’s mental condition without a presentence examination so long as it has

adequate information relating to the condition. See Nickels, 324 F.3d at 1251. In

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light of the ample information concerning Lundy’s mental health available to the

district court, it did not abuse its discretion in denying his request for an additional

psychiatric examination. Accordingly, we affirm the denial of Lundy’s request for

additional psychiatric examination and his sentence.

      AFFIRMED.




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