                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-28-2003

USA v. Overton
Precedential or Non-Precedential: Non-Precedential

Docket 02-2467




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Recommended Citation
"USA v. Overton" (2003). 2003 Decisions. Paper 854.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/854


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                                                                       NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                                            No. 02-2467




                                 UNITED STATES OF AMERICA

                                                  v.

                                      JOSEPH L. OVERTON,
                                                                  Appellant


                           On Appeal from the United States District Court
                                for Eastern District of Pennsylvania
                                  (D.C. Crim. No. 01-cr-00431)
                              District Judge: Hon. Petrese B. Tucker


                             Submitted Under Third Circuit LAR 34.1(a)
                                        January 27, 2003

                          Before: SLOVITER, RENDELL, Circuit Judges
                                 and DEBEVOISE,* District Judge

                                      (Filed: January 28, 2003)




                                    OPINION OF THE COURT

__________________

*      Hon. Dickinson R. Debevoise, Senior Judge, United States District Court for the
District of New Jersey, sitting by designation.
SLOVITER, Circuit Judge.

                                                    I.

        Joseph Overton, who pled guilty to bank robbery and escape in violation of 18

U.S.C. §§ 2113(a) and 751(a), appeals from the District Court’s judgment sentencing him

to 77 months imprisonment. Overton, who moved for a downward departure under both

U.S.S.G. § 5K2.0 and § 5K2.13, argues that the District Court failed to rule on his § 5K2.0

motion, and that as a result we should remand.

        Prior to Overton’s sentencing hearing, he submitted a request for a downward

departure, claiming diminished capacity under U.S.S.G. § 5K2.13 and mental and emotional

conditions under U.S.S.G. §§ 5H1.3, 5K2.0. In his sentencing memorandum, Overton

included the report of Dr. Gary Glass, a psychiatrist, who concluded that Overton suffers

from bipolar disorder. The Government argued that Overton was not entitled to a downward

departure under § 5K2.13 because his lengthy criminal history (eleven prior convictions)

precluded the departure. The Government also argued that there was a lack of evidence that

Overton’s emotional or mental condition were so extraordinary as to warrant relief under §

5H1.3 and/or § 5K2.0.

        The District Court heard arguments on the downward departure motion. Defense

counsel did not reference § 5K2.0 during the hearing, but argued that Overton was entitled

to a departure because of an untreated mental disorder and emotional problems, which

substantially contributed to the commission of his crime.

        The District Court, while recognizing its authority to depart, denied the downward

                                                    2
departure stating it did not find sufficient evidence establishing that Overton’s mental

health substantially contributed to his commission of the offense and that his mental health

and emotional condition did not rise to the level warranting the court to depart.

        After this ruling, defense counsel stated that he was ready to proceed with

sentencing and did not raise the § 5K2.0 motion or request clarification of the ruling. The

court then sentenced Overton to 77 months imprisonment, within the applicable range of

77 to 96 months.

                                                     II.

        A downward departure may be appropriate under § 5K2.13 “if the defendant

committed the offense while suffering from a significantly reduced mental capacity.”

U.S.S.G. § 5K2.13. A departure is permitted under § 5K2.0 if “‘there exists an aggravating

or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration

by the Sentencing Commission in formulating the guidelines that should result in a

sentence different from that described.’” U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)).

Overton argued that a departure under § 5K2.0 was appropriate because Overton’s mental

illness was so exceptional and severe that a departure was required.

        After the District Court expressly acknowledged its authority to depart, it used its

discretion to deny the downward departure, and stated its basis for doing so. The District

Court stated that it recognized Overton’s mental health issues and had reviewed Dr. Glass’s

evaluation, but was still of the opinion that Overton’s “mental health and emotional

condition do not rise to the level warranting this Court to depart.” App. at 70. This

                                                     3
encompassed not only its reasoning on the diminished capacity ground for the departure

motion but also the § 5K2.0 ground, because in this case they present nearly identical

issues. Therefore, we reject Overton’s argument that the District Court failed to rule on his

§ 5K2.0 ground for departure, even though the District Court did not expressly reference §

5K2.0.

         Moreover, Overton did not argue to the District Court that it had overlooked his §

5K2.0 argument. That guideline section had not been called to its attention. Therefore, we

review for plain error, a standard Overton has patently not met. In light of our decision, we

need not reach the Government’s contention that § 5K2.0 cannot be used to circumvent the

§ 5K2.13 requirements.

         For the reasons set forth, we will affirm the judgment of the District Court.

___________________________

TO THE CLERK:

                 Please file the foregoing opinion.

                                                      /s/ Delores K. Sloviter
                                                           Circuit Judge
