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

No. 06-4195
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.

LUIS MIRANDA,
                                           Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
        No. 05 CR 787—Samuel Der-Yeghiayan, Judge.
                         ____________
    ARGUED JUNE 1, 2007—DECIDED OCTOBER 26, 2007
                    ____________


 Before FLAUM, MANION and ROVNER, Circuit Judges.
   ROVNER, Circuit Judge. Luis Miranda pled guilty to
one count of bank robbery, in violation of 18 U.S.C.
§ 2113(a). Miranda has a history of severe mental illness,
and at sentencing, he presented considerable evidence
of diminished capacity. Miranda also presented evidence
in support of an argument that his criminal history
category overstated the nature of his prior criminal
history. He argued to the district court for a below-guide-
lines sentence based on several factors listed in 18 U.S.C.
§ 3553(a). The district court did not directly address
these non-frivolous arguments and sentenced Miranda to
fifty months of imprisonment, a sentence greater than the
government requested. Because the district court did not
2                                                    No. 06-4195

address Miranda’s principal, non-frivolous arguments
before sentencing, we vacate and remand for resentencing.


                                 I.
  On September 12, 2005, Miranda walked into the
Amcore Bank in Carpentersville and handed the teller a
note. The note warned the teller not to activate the silent
alarm and threatened that she had a limited number of
seconds to hand over the money. The note also indicated
that Miranda had a gun pointed at the teller and that he
had a bomb.1 The teller handed Miranda all of the cash
in her drawer, approximately $4,045.00. Miranda placed
the money in his backpack and walked out of the bank.
The next day, his wife saw a picture of the robber in a local
newspaper and immediately recognized the man in a
baseball cap and sunglasses as her husband. She called
him, told him about the newspaper photo and then called
the police.
   This was not the first time that Melissa Miranda had
been compelled to call the police regarding her husband’s
strange behavior. Miranda had been telling his wife
for years that he heard voices and that he saw reflec-
tions in her eyes of people lurking behind him. He be-
lieved that these people wanted to hurt him. The voices
he heard sometimes directed him to do specific things,
and sometimes told him to hurt himself. Miranda also
thought that others could hear his thoughts. He saw
shadows that told him things about his wife. Miranda had
twice attempted suicide, once with a gun and once by
dousing himself in gasoline and attempting to light him-
self on fire. During the incident with the gun, Melissa
Miranda called the police, fearing for her husband’s life.


1
    As far as we can tell from the record, he had neither.
No. 06-4195                                              3

The police officers took Miranda to a hospital where he
was admitted for a psychotic disorder. Because his fire-
arm owner’s identification card had expired, the police
later returned to arrest him for illegal possession of the
gun he used in his suicide attempt. When the police
arrested Miranda for this offense, they discovered a crack
pipe and a small amount of cocaine on his person and
charged him with both unlawful possession of a firearm
and possession of a controlled substance. Miranda pled
guilty to both of these offenses, which comprised the
entirety of his criminal history prior to the bank robbery.
  Miranda pled guilty to the bank robbery as well. In light
of Miranda’s earlier mental health issues, his counsel
petitioned the district court to appoint a psychiatrist to
examine him. The court appointed Dr. Daniel Yohanna, an
associate professor of psychiatry at the University of
Chicago. Dr. Yohanna, who is board certified, has vast
experience in psychiatric practice, teaching and publish-
ing. Dr. Yohanna reviewed Miranda’s prior medical records
and prior extensive psychiatric records. He examined
Miranda and also reviewed both the Presentence Investi-
gation Report (“PSR”) prepared by a probation officer
and Miranda’s plea agreement. He wrote his initial report
from these sources but prior to the sentencing hearing,
he also had an opportunity to speak with Melissa Miranda
about her husband’s behavior.
  In the initial report, Dr. Yohanna concluded that
Miranda suffers from Schizoaffective Disorder and that he
suffered from that disorder at the time he committed
the offense of conviction. Dr. Yohanna noted that Miranda
had a history of depression and other mental health
conditions since he was a child but had not received any
4                                                 No. 06-4195

treatment until 2003.2 At that time, he was hospitalized
for auditory hallucinations and substance abuse. Miranda
was hospitalized five more times for psychiatric condi-
tions in the next two years, including two hospitaliza-
tions for suicide attempts. Miranda was treated on an
outpatient basis for the three years prior to the bank
robbery, and was taking six medications relating to his
mental health and medical conditions at the time Dr.
Yohanna examined him. He had taken other psychiatric
medications over the years as well. His medications
included antipsychotic agents, mood stabilizers, anti-
anxiety medications, pain medication, antidepressants,
and drugs that served as substitutes for heroin. The rec-
ord does not indicate which medications Miranda was
taking at the time of the robbery. Miranda’s history of
substance abuse (cocaine and heroin) was extensive, but
by the time Dr. Yohanna examined him, no illegal drugs
had been detected in his system for more than a year.
  Dr. Yohanna’s primary diagnosis was, as we noted,
Schizoaffective Disorder. He also diagnosed cocaine
dependance, in remission, and opiate dependence, in
remission. Schizoaffective Disorder is marked by an
uninterrupted period of illness during which, at some
time, there is a Major Depressive Episode, a Manic
Episode or a Mixed Episode concurrent with symptoms


2
  When Miranda’s brief was filed earlier this year, he was 38
years old and had been married to Melissa Miranda since 1993.
They have two sons, aged 15 and 8. At the time of the offense,
Miranda was working for a trucking company. According to
the opening brief, Miranda’s mother is 52. By our calculations,
Miranda’s mother was approximately 14 years old when Miranda
was born. Miranda was sexually abused as a child by per-
sons close to his family, and as a teenager, he suffered serious
injuries in an auto accident that left him in a wheelchair for
two years.
No. 06-4195                                                 5

of Schizophrenia.3 Dr. Yohanna opined that Miranda met
the criteria for Schizophrenia because Miranda experi-
enced auditory hallucinations and displayed a blunted
affect. Miranda also met the criteria for Major Depression
because he suffered from a depressed mood, diminished
interest and pleasure in his activities, psychomotor
agitation, decreased sleep, and suicide attempts. Accord-
ing to Dr. Yohanna:
    Mr. Miranda understands the nature of his crime and
    has pleaded guilty to the charges; however he was
    hallucinating at the time of the crime. This symptom
    has been persistent since its onset in 2003 and the
    description of the hallucination that is being inter-
    mittent throughout the day, being an unrecognizable
    but discernable, single, male voice, is consistent with
    real disease as well as the partial response to medica-
    tion. The evidence against the diagnosis of schizophre-
    nia is that there are no corresponding delusions
    which occur in most patients with hallucinations. It is
    also then my opinion with the necessary degree of
    psychiatric certainty that Mr. Miranda is not malin-
    gering.
R. 55, at 7. After speaking to Melissa Miranda, Dr.
Yohanna supplemented his report. This conversation
confirmed for Dr. Yohanna that his original diagnosis
was correct and removed any doubt caused by the absence
of any reported delusions:
    [Melissa Miranda] stated that Mr. Miranda began to
    experience delusions and auditory hallucinations


3
  These capitalized terms are defined terms in the Diagnostic
and Statistical Manual of Mental Disorders, Fourth Edition,
commonly referred to as the DSM-IV. The DSM-IV is the most
widely used psychiatric reference book in the world, according
to its publisher, the American Psychiatric Association.
6                                            No. 06-4195

    beginning in February 2001. She describes a signifi-
    cant disturbance where he believed that people were
    talking from under or in the bed. She would come
    home to find that he emptied drawers or tore open the
    mattress looking for the source of voices. He also was
    paranoid[,] complaining that people were out to harm
    him and seeing people behind him in the reflection of
    her eyes. This made it clearer that Mr. Miranda
    suffered from not only auditory hallucinations but
    delusions, which is more common in the diagnosis of
    schizophrenia. This confirms my opinion with the
    necessary degree of medical certainty that Mr.
    Miranda suffers from Schizoaffective Disorder. Also
    that he was suffering from this disorder at the time
    of the offense in September of 2005 displaying symp-
    toms including auditory hallucinations and delusions.
R. 57. Both the original report and the supplement were
presented to the district court prior to the sentencing
hearing.
  In addition, Dr. Yohanna testified at the sentencing
hearing, where he explained that, at the time of the
robbery, Miranda was experiencing auditory command
hallucinations. In other words, Miranda heard a voice
telling him that “we need money” and that he should rob
a bank. Dr. Yohanna described schizophrenia as a
disease of the brain and explained that when a person
with schizophrenia hears voices, it is because the area
of the brain that processes hearing is stimulated even
though there is no external stimulus. As a result, that
person “hears” a voice in the same manner another person
would hear a voice when someone actually speaks. To a
schizophrenic, an auditory hallucination sounds no differ-
ent than normal speech. As Dr. Yohanna framed the issue,
“[T]here’s no real sound happening but your brain is
actually firing like there is a sound.” R. 68-1, at 15-16.
After receiving treatment in prison while awaiting sen-
No. 06-4195                                               7

tencing, Miranda began to understand that his visual and
auditory hallucinations were part of a brain disease, but
before that time, he experienced the hallucinations as
real events. Dr. Yohanna also testified that the auditory
hallucinations were caused not by drug use but by the
separate medical condition of schizophrenia. R. 68-1, at 17.
Moreover, Dr. Yohanna opined that Miranda was re-
sponding to command hallucinations at the time he
committed this crime. R. 68-1, at 18. Finally, Dr. Yohanna
testified that, as between drugs use and schizophrenia,
“the primary thing [Miranda] was responding to were the
hallucinations but drugs will also reduce your inhibitions
and may contribute to impulsive acts.” R. 68-1, at 19. See
also r. 68-1, at 20 (“I thought that what was driving him
was the schizophrenia more than the drug use so that’s
what I thought was the predominant disease driving
him.”).
  After Dr. Yohanna’s testimony, Miranda himself testi-
fied about the circumstances of his earlier firearms and
drug convictions. He explained that, in 2004, he told his
wife he was going to kill himself with a gun, that she
called the police and that they came to his home and took
the gun from him. The police officers then took him to a
hospital where he was admitted for psychiatric treatment.
Approximately one month later, the officers returned to
his home to arrest him because his FOID card had ex-
pired and his gun possession was thus illegal. When the
officers arrested and searched Miranda on the gun charge,
they found a few grams of cocaine on his person, and he
was charged with drug possession as well. Miranda also
testified about his subsequent attempt to kill himself
by dousing himself with gasoline and attempting to set
himself on fire. This incident came approximately six
months after the first suicide attempt.
  Counsel for Miranda argued for a below-guidelines
sentence. Miranda had already been jailed for approxi-
8                                              No. 06-4195

mately fourteen months at the time of his sentencing
hearing and counsel argued that he should be released to
serve the remainder of his time in a halfway house, where
he could continue his mental health treatment.4 Counsel
noted that Miranda suffered from severe mental illness
and that his mental illness was a substantial factor in
committing his crime. Counsel argued that because
Miranda was mentally ill and had little control over
himself at the time he committed the crime, he warranted
a lower sentence in terms of deterrence, incapacitation,
and desert. Counsel also noted that Miranda immedi-
ately acknowledged his offense and made a proffer to the
government. The government argued that Miranda’s case
was no different from those the court saw on a weekly
basis, “where you have a defendant who is suffering
from some mental infirmity, also has a history of drug
use and was in fact under the influence of drugs at the
time of the offense.” R. 68-1, at 33. The government also
argued that because Miranda heard command hallucina-
tions, he was a danger to himself (and others) and should
be incapacitated through imprisonment to protect him
from himself.
  It is unclear from the record whether the court accepted
Dr. Yohanna’s opinion that Miranda suffers from
Schizoaffective Disorder. The court noted that although
Miranda pled guilty and admitted knowingly committing
the crime, Miranda “is basically stating that the alleged
voices in his head caused his actions and has produced
a psychiatric report in support of his contention that he
was suffering from auditory hallucinations at the time
of the bank robbery.” R. 68-1, at 38. The court found that


4
  Dr. Yohanna testified that the University of Chicago was
prepared to accept Miranda as a patient for the treatment of
schizophrenia, and would also refer him to a drug program
to address his addictions. R. 68-1, at 21.
No. 06-4195                                               9

Miranda “understood the nature of his crime and was
aware that he was committing the crime and therefore he
should be held accountable for his conduct.” R. 68-1, at 39.
The district judge stated that he respected Dr. Yohanna’s
expertise and testimony and noted that Dr. Yohanna had
characterized the auditory hallucinations as “a contribut-
ing factor.” The court agreed with the government’s
contention that Miranda was disguised, prepared a note
and did not act on a quick impulse. Bank robbery is a
serious crime, the court noted, and the crime caused great
emotional distress to those present and could have re-
sulted in injury to the public. The court also found the
stability of our banking institutions to be an important
factor in sentencing Miranda:
    The punishment I’m imposing is a just punishment
    for such a serious offense involving the safety of the
    public and the stability of banking institutions. The
    sentence I’m imposing will also prevent the defendant
    from committing future bank robberies because he
    will be confined. The sentence will also serve as a
    warning to others who contemplate committing a
    bank robbery.
R. 68-1, at 40. The court concluded that the public would
be protected from Miranda and that Miranda would be
protected from himself if he were imprisoned. The court
therefore sentenced Miranda to fifty months’ imprison-
ment, four months longer than the government had
requested. Miranda appeals.


                            II.
  On appeal, Miranda contends that the court failed to
consider his non-frivolous arguments regarding deterrence,
desert and incapacitation in relation to the largely uncon-
tested evidence that Miranda was suffering from delusions
10                                              No. 06-4195

and auditory hallucinations at the time he committed the
crime. Miranda also argues that the court failed to con-
sider his claim that his criminal history category over-
stated the seriousness of his prior criminal conduct.
Finally, Miranda contends that the district court gave
weight to protecting Miranda from himself when deter-
mining the length of his sentence, a factor that goes
beyond the bounds of appropriate sentencing consider-
ations.
   In sentencing a defendant, the district court is obliged
first to calculate the correct advisory guidelines range and
then to decide whether to impose a sentence within the
range or outside of it. United States v. Robinson, 435 F. 3d
699, 700-01 (7th Cir. 2006). The court must apply the
factors set forth in 18 U.S.C. § 3553(a) in determining
whether to apply a sentence within the advisory guide-
lines range. Robinson, 435 F.3d at 701. Several of those
factors are very relevant to Miranda’s case and we will
therefore address them in some detail. The statute reads,
in relevant part:
     (a) Factors to be considered in imposing a sen-
     tence.—The court shall impose a sentence sufficient,
     but not greater than necessary, to comply with the
     purposes set forth in paragraph (2) of this subsection.
     The court, in determining the particular sentence to
     be imposed, shall consider—
        (1) the nature and circumstances of the offense and
        the history and characteristics of the defendant;
        (2) the need for the sentence imposed—
            (A) to reflect the seriousness of the offense, to
            promote respect for the law, and to provide
            just punishment for the offense;
            (B) to afford adequate deterrence to criminal
            conduct;
No. 06-4195                                              11

            (C) to protect the public from further crimes
            of the defendant; and
            (D) to provide the defendant with needed
            educational or vocational training, medical
            care, or other correctional treatment in the
            most effective manner[.]
18 U.S.C. § 3553(a). Although the guidelines are treated
as advisory after Booker, the application of section 3553(a)
is mandatory. United States v. Booker, 543 U.S. 220, 261-
63 (2005); United States v. Dean, 414 F.3d 725, 729 (7th
Cir. 2005) “The sentencing judge cannot, after consider-
ing the factors listed in that statute, import his own
philosophy of sentencing if it is inconsistent with them.”
Dean, 414 F.3d at 729. We review a sentence for rea-
sonableness, and we may accord a sentence that is
within the guidelines a presumption of reasonableness.
Rita v. United States, 127 S. Ct. 2456, 2459 (2007); United
States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). That
presumption is not binding, however, and it applies only
on appellate review. Rita, 127 S. Ct. at 2463. The district
court judge “does not enjoy the benefit of a legal presump-
tion that the Guidelines sentence should apply,” but
must instead subject the “defendant’s sentence to the
thorough adversarial testing contemplated by federal
sentencing procedure.” Rita, 127 S. Ct. at 2465. As a
matter of process, the Supreme Court stated in Rita, the
district judge will normally begin by considering the PSR
and its interpretation of the guidelines, and then hear
arguments by the prosecution and defense that a guide-
lines sentence should not apply, perhaps because the
case falls outside the heartland of the guidelines, or
because a guidelines sentence fails to reflect the section
3553(a) factors, “or perhaps because the case warrants
a different sentence regardless.” Rita, 127 S. Ct. at 2465.
See also United States v. Wallace, 458 F.3d 606, 609 (7th
12                                            No. 06-4195

Cir. 2006) (on appellate review of a sentence, the proce-
dural inquiry focuses on the actual reasons given, not on
whether the sentence could have been supported by a
different rationale).
  Miranda first contends that the district court failed to
consider or make findings with respect to the psychiatric
evidence and its relevance under the section 3553(a)
factors. Miranda also argues that when the court did
mention Miranda’s mental illness, the court did not
discuss how that illness related to the section 3553(a)
factors and instead substituted its own ideas about
mental illness. When a defendant challenges a within-
guidelines sentence as unreasonable, the judge must
explain why the sentence imposed is appropriate in light
of the section 3553(a) factors. Robinson, 435 F.3d at 701;
United States v. Cunningham, 429 F.3d 673, 678 (7th Cir.
2005). A judge need not comment on every argument
the defendant raises. “[A]rguments clearly without merit
can, and for the sake of judicial economy should, be passed
over in silence.” Cunningham, 429 F.3d at 678. But when
a court gives little or no attention to the defendant’s
principal argument when that argument “was not so
weak as not to merit discussion,” we cannot have confi-
dence that the judge adequately considered the section
3553(a) factors. Cunningham, 429 F.3d at 679. “[I]f anyone
acquainted with the facts would have known without
being told why the judge had not accepted the argument,”
then the judge need not specifically comment on that
argument. Id. Such was not the case here. Anyone ac-
quainted with the facts of Miranda’s well-documented
mental health history would not know why the district
court rejected his arguments for a lesser sentence unless
the court commented on its reasons.
  Miranda’s severe mental illness (and in particular his
diagnosis of Schizoaffective Disorder) is a recognized
ground for departing from the normal guidelines range.
No. 06-4195                                                      13

Sentencing Guideline 5K2.13 recognizes diminished
capacity as a ground for a downward departure.5
Cunningham, 429 F.3d at 679. The concept of departures
has been rendered obsolete in post-Booker sentencing
but the district court may apply those departure guide-
lines by way of analogy in analyzing the section 3553(a)
factors. United States v. Johnson, 427 F.3d 423, 426 (7th
Cir. 2005); United States v. Castro-Juarez, 425 F.3d 430,
434-46 (7th Cir. 2005). If the district court fails to com-
ment on a ground of recognized legal merit that is sup-
ported by a factual basis, “it is likely to have committed
an error or oversight.” Cunningham, 429 F.3d at 679.
  In relating his diminished capacity to the section 3553(a)
factors, Miranda argued to the district court that his
mental illness (1) reduced the need for deterrence; (2)
made incapacitation by imprisonment less appropriate;



5
    Guideline 5K2.13 provides, in whole:
      A downward departure may be warranted if (1) the defen-
      dant committed the offense while suffering from a signifi-
      cantly reduced mental capacity; and (2) the significantly
      reduced mental capacity contributed substantially to the
      commission of the offense. Similarly, if a departure is
      warranted under this policy statement, the extent of the
      departure should reflect the extent to which the reduced
      mental capacity contributed to the commission of the offense.
      However, the court may not depart below the applicable
      guideline range if (1) the significantly reduced mental
      capacity was caused by the voluntary use of drugs or other
      intoxicants; (2) the facts and circumstances of the defen-
      dant’s offense indicate a need to protect the public because
      the offense involved actual violence or a serious threat of
      violence; (3) the defendant’s criminal history indicates a
      need to incarcerate the defendant to protect the public; or
      (4) the defendant has been convicted of an offense under
      chapter 71, 109A, 110, or 117, of title 18, United States Code.
14                                             No. 06-4195

and (3) rendered him less deserving of punishment.
Although the district court mentioned Miranda’s mental
illness, the court did not specifically address Miranda’s
principal, non-frivolous arguments based on these sec-
tion 3553(a) factors, and we therefore are not confident
that the court gave these arguments adequate consider-
ation. Dr. Yohanna stated that Miranda’s schizophrenia
was the “predominant disease” driving him at the time
he committed the bank robbery. Although his drug use
could have contributed by reducing his inhibitions, Dr.
Yohanna concluded that the command hallucinations
were the primary or predominant cause of Miranda’s
behavior.6 Dr. Yohanna also noted that, with appropriate
medication and therapy, Miranda’s illness was treatable
and Miranda was coming to understand that the voices
he heard were not real but were the result of a brain
disease. The district court stated that it respected Dr.
Yohanna’s expertise and testimony but it is unclear
whether and to what extent the court credited that
testimony.
  Under section 3553(a)(2), the primary purposes of a
criminal sentence are to reflect the seriousness of the
offense, to promote respect for the law, to provide just
punishment for the offense, to afford adequate deterrence
to criminal conduct, to protect the public from further
crimes by the defendant, and to provide the defendant
with needed training, medical care or correctional treat-
ment in the most effective manner. See also United States
v. Dyer, 216 F.3d 568, 570 (7th Cir. 2000) (the principal
objectives of criminal punishment that guide the design



6
  Dr. Yohanna noted that Miranda continued to have auditory
hallucinations and delusions long after his drug use ceased,
indicating that the schizophrenia and not the drug use was
the cause of the hallucinations and delusions.
No. 06-4195                                             15

and application of the sentencing guidelines are retribu-
tion, deterrence, and incapacitation). Mental illness, we
noted in Dyer, might make it more difficult for a person to
comply with the law, and so a heavy sentence would not
have a significant general deterrent effect on persons in
the defendant’s class. 216 F.3d at 570. It is difficult to
see how a person experiencing auditory command halluci-
nations would be deterred by the threat of a heavy sen-
tence, for example. On the other hand, a heavy sentence
would have a general deterrent effect on persons who
are not mentally ill. As for specific deterrence, it is for
the district court to decide in the first instance whether
a heavy sentence is necessary to deter Miranda from
committing further crimes. The court may decide that
Miranda, after being treated for mental illness, is not
inclined to commit crimes and so does not require the
added encouragement of a lengthy sentence. Or the court
may come to the opposite conclusion if it determines
that Miranda remains a threat even after treatment. In
either case, the court must decide the applicability of
specific deterrence on the facts before the court.
   If the mental illness is treatable, as is the case with
Miranda, the goal of incapacitation may not be advanced
by a heavy sentence. Dyer, 216 F.3d at 570. Instead,
mental health treatment would “incapacitate” Miranda
from committing further crimes. In this case, there is
evidence that Miranda was being treated for mental ill-
ness at the time he committed his crimes, and so the
court may determine that the only way to truly incapaci-
tate Miranda is a heavy prison sentence. On the other
hand, there is also some evidence that Miranda was not
correctly diagnosed or appropriately treated until his
imprisonment for this crime. The district court may decide,
if it credits Dr. Yohanna’s testimony that Miranda has
improved under his current treatment regime, that
16                                           No. 06-4195

Miranda is not a further threat, and that the goal of
incapacitation is not served well by lengthy imprisonment.
   Finally, a person who would not have committed a crime
but for his mental illness would be less deserving of
punishment because he is “not as evil, as worthy therefore
of punishment, as one who would not be law abiding even
if he were not mentally impaired.” Dyer, 216 F.3d at 571.
Dr. Yohanna testified that the primary or predominant
force driving Miranda at the time of the crime was
mental illness. Dr. Yohanna also acknowledged that
Miranda’s drug use could have reduced his inhibitions. It
is unclear whether the district court credited this testi-
mony.
  Miranda advanced all of these arguments, all of which
were supported by Dr. Yohanna’s report and testimony,
none of which were seriously challenged factually by the
government, and the district court did not address them.
Under Cunningham, because we cannot be confident that
the judge considered these arguments, we must vacate and
remand for resentencing. Because we are vacating and
remanding, we will address Miranda’s other arguments.
  Miranda contends that the district court substituted
its own ideas about mental illness on those occasions
that the court did address Miranda’s schizoaffective
disorder. There is some support in the record for this
contention. For example, the district court stated that
Miranda “understood the nature of his crime and was
aware he was committing the crime.” We note first that
Dr. Yohanna offered no opinion as to whether Miranda
understood the nature of his crime at the time he commit-
ted it. Dr. Yohanna opined only that Miranda now under-
stands the nature of his crime. We find no factual basis
in the record supporting a conclusion about what Miranda
understood at the time of the crime except that at that
time, he believed the voices he heard were real and were
No. 06-4195                                                 17

commanding him to engage in certain acts.7 The court
also concluded that Miranda was disguised, had pre-
pared a note and was not acting on impulse. Whether a
baseball hat and sunglasses constitute a disguise is
debatable—Miranda’s wife immediately recognized him
from the newspaper photo of the bank robber—but assum-
ing that this was a disguise and that Miranda did
engage in some planning, there is no indication in the
record that this sort of behavior is inconsistent with
psychotic delusions and auditory hallucinations. The
court seems to have been considering whether Miranda
met the legal standard for insanity at the time of the
crime. But Miranda has never argued that he was legally
insane and in fact pled guilty to the crime. Rather,
Miranda argued that his mental illness was a significant
factor in committing the crime and warranted lesser
punishment under the section 3553(a) factors. That
sentencing argument under section 3553(a) is what the
district court did not address and must address on re-
mand.8
  The court also did not address Miranda’s argument that
his criminal history category substantially over-repre-
sented the seriousness of his prior criminal history and
the risk of recidivism. Section 4A1.3(b)(1) of the guide-


7
  According to his medical records, Miranda had seen a psychia-
trist five days prior to the robbery, complaining about hearing
voices, including hearing commands to hurt himself.
8
  The government argued at sentencing that further imprison-
ment was appropriate in part because Miranda was a danger to
himself, and the court indicated in sentencing Miranda that
imprisonment would protect Miranda from himself. The govern-
ment now concedes that protecting a defendant from himself is
not an appropriate sentencing consideration under section
3553(a). The district court should therefore not apply that
reasoning on remand.
18                                            No. 06-4195

lines provides for a downward departure in such a case.
The Introductory Commentary to guideline 4A1.1 explains
that a defendant’s record of past criminal conduct is
directly relevant to the purposes of sentencing set forth
in 18 U.S.C. § 3553(a)(2). First, a defendant with a record
of prior criminal behavior is more culpable than a first-
time offender and thus deserving of greater punishment.
Second, the goal of general deterrence dictates that
“repeated criminal behavior will aggregate the need for
punishment with each recurrence.” U.S.S.G. Chapter 4,
Part A, Introductory Commentary. Third, in terms of
specific deterrence, repeated criminal behavior is an
indicator of a limited likelihood of successful rehabilita-
tion.
  As we noted earlier, departures are obsolete but the
district court may apply those departure guidelines by
way of analogy in analyzing the section 3553(a) factors.
Moreover, section 3553(a) directs the court to consider
the defendant’s “history and characteristics.” Miranda
argued that his two prior convictions both arose out of
his attempt to kill himself with a gun. He testified that
his FOID card had expired, giving rise to the firearm
possession charge. Of course, Miranda could not have
renewed his FOID card because persons suffering from
mental illness and persons who are addicted to narcotics
are prohibited from owning firearms. When he was
arrested on the gun charge, the officers found a small
amount of cocaine on his person, giving rise to the second
conviction. Dr. Yohanna testified that, in some cases,
mentally ill persons start using illegal drugs to self-
medicate, and that mental health problems affect a per-
son’s capacity to manage drug use. These convictions
resulted in a criminal history category of III. The crux of
Miranda’s claim was that he was not an incorrigible
criminal, purposely flouting the law on multiple occasions,
but rather was a working man, with a wife and two
No. 06-4195                                               19

children, who would not have committed these crimes
but for his mental illness. Dr. Yohanna’s testimony
provided some factual support for this argument. The
district court, unfortunately, failed to state whether it
credited Dr. Yohanna’s testimony, and failed to state
whether Miranda’s criminal history category accurately
reflected his culpability or likelihood of recidivism, among
other things. The court may conclude that Miranda’s
criminal history category accurately reflects his culpabil-
ity and the danger he poses for recidivism, given that he
committed some of these crimes while being treated for
mental illness. We do not mean to suggest a particular
result, and nor do we minimize the dangerousness that a
drug-addicted gun owner with serious mental illness poses.
  When Miranda sought to enter evidence on the con-
text of these two prior convictions, the district court
repeatedly stated that it could not “revisit” or “look be-
yond” those convictions, apparently construing Miranda’s
argument as a collateral attack on the prior convictions.
But Miranda was not collaterally attacking those convic-
tions; rather, he was asking the court to consider an
argument under section 3553(a)(1) that those convic-
tions arose out of his mental health issues and that his
criminal history category overstated both the serious-
ness of his prior conduct and the likelihood that he
would commit further crimes. The district court is free to
accept or reject that theory based on the evidence before it,
using the factors set forth in section 3553(a)(1) and, by
way of analogy, sections 4A1.3(b) and 5K2.13 of the
guidelines. Dean, 414 F.3d at 730 (explicit fact-finding
is required if contested facts are material to the judge’s
sentencing decision). See also Dyer, 216 F.3d at 570
(“If there is no connection between the defendant’s
mental condition and his crime, there is no basis for a
punishment discount.”).
20                                            No. 06-4195

   In Rita, the Supreme Court stated that the sentencing
judge “should set forth enough to satisfy the appellate
court that he has considered the parties’ arguments and
has a reasoned basis for exercising his own legal
decisionmaking authority.” 127 S. Ct. at 2468. The Court
stated that, when the district court decides to impose
a within-guideline sentence, a lengthy explanation is
generally not required. 127 S. Ct. at 2468. When “the
defendant or the prosecutor presents nonfrivolous rea-
sons for imposing a different sentence, however, the judge
will normally go further and explain why he has rejected
those arguments. Sometimes the circumstances will call
for a brief explanation; sometimes they will call for a
lengthier explanation.” Rita, 127 S. Ct. at 2468. The
district court did not have the benefit of Rita at the time
of sentencing Miranda. Rita clarified the need for a dis-
trict court to explain its response to nonfrivolous argu-
ments. Rita also explained that the presumption of
reasonableness for a within-guidelines sentence applies
only to appellate review and not to the district court’s
analysis. Rita, 127 S. Ct. at 2465. Much of the district
court’s discussion of the reasons for the court’s choice of
fifty months as Miranda’s sentence applies to all cases of
bank robbery and not to Miranda specifically; thus the
discussion focuses almost exclusively on factors that are
already built into the heartland of the guidelines. For
example, the court commented that bank robbery puts
the public at great risk and undermines the stability of
our banking institutions. The court also commented
that imprisoning Miranda would prevent him from com-
mitting crimes while in prison and would serve as a
warning to others who contemplate robbing a bank. These
statements are truisms, and are the general sorts of
sentencing considerations that are worked into the stan-
dard guidelines sentence. See Cunningham, 429 F.3d at
679 (a rote statement that the judge considered all of the
No. 06-4195                                                 21

relevant factors will not always suffice). None of these
considerations are specific to Miranda. But Miranda
advanced specific arguments regarding the effect of his
mental illness on sentencing. Because Miranda raised
nonfrivolous reasons to impose a different sentence, the
district court must focus on the section 3553(a) factors as
they apply to Miranda in particular. Although the gov-
ernment portrayed Miranda’s case as “not that different
from ones you see on a weekly basis where you have a
defendant who is suffering from some mental infirmity,”
Schizoaffective Disorder is a rare condition, and the
courts do not often encounter a person who has a docu-
mented history of auditory command hallucinations
and delusions that predate any criminal conduct. We
cannot tell from the district court’s comments whether the
court made that individualized analysis of Miranda’s
factually and legally supported sentencing arguments
under section 3553(a). Rita, 127 S. Ct. at 2468;
Cunningham, 429 F.3d at 679. See also Wallace, 458 F.3d
at 610 (a sentence may be found to be unreasonable if it
is so inadequately supported by the record that a writ
must issue). We therefore vacate and remand for
resentencing.9
                                  VACATED AND REMANDED.




9
  The court appreciates the skillful representation provided to
Miranda by his appointed counsel, Gareth G. Morris, and also
appreciates the services of Professor Mark J. Heyrman, Director
of the Mental Health Advocacy Project at the University of
Chicago Law School, and law student Mark Bala, who assisted
Mr. Morris in the preparation of the appellate briefs.
22                                        No. 06-4195

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—10-26-07
