                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0694n.06

                                           No. 08-5769                                 FILED
                                                                                    Nov 10, 2010
                             UNITED STATES COURT OF APPEALS                   LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                 ON APPEAL FROM THE
                                       )                 UNITED STATES DISTRICT
v.                                     )                 COURT FOR THE EASTERN
                                       )                 DISTRICT OF KENTUCKY
TROY PARKER,                           )
                                       )
      Defendant-Appellant.             )                        OPINION
_______________________________________)


Before: BATCHELDER, Chief Circuit Judge, MOORE and COOK, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Following a jury trial in federal court, Troy

Parker was convicted of four counts of bank fraud, in violation of 18 U.S.C. § 1344, and six counts

of engaging in a monetary transaction in property from specified unlawful activity (i.e., money

laundering), in violation of 18 U.S.C. § 1957. The district court sentenced Parker to 120 months of

imprisonment and five years of supervised release. Parker’s counsel presents two arguments on

appeal; in a supplemental pro se brief, Parker wishes to augment his counsel’s second argument and

also to assert another claim related to his sentence. For the following reasons, we AFFIRM the

district court’s judgment.

                                 I. FACTS AND PROCEDURE

       Parker owned and operated several cleaning businesses in the greater Cincinnati, Ohio, and

Covington, Kentucky, area. Using false statements of his accounts receivables, tax filings, and
equipment inventories, Parker obtained several loans and lines of credit for these businesses from

banks in the Northern Kentucky area between 2002 and 2004. Parker’s fraud eventually came to the

FBI’s attention, and Parker was indicted by a federal grand jury in November 2007 on four counts

of bank fraud in violation of 18 U.S.C. § 1344 and seven counts of money laundering in violation

of 18 U.S.C. § 1957 (for transferring loan proceeds from one bank to another bank).

        Six days prior to the scheduled jury trial, Parker’s counsel moved for a second continuance

to allow time to investigate Parker’s diagnosis of and treatment for Dissociative Identity Disorder

(“DID”) by Dr. Donald Beere, a clinical psychologist. According to the PSR in this case, at the time

of the arrest for the instant offense Parker had been seeing Dr. Beere for counseling related to his

DID as a condition of his supervised release for a prior crime. The district court denied counsel’s

motion for a continuance because it found that a continuance was not warranted under the

circumstances—Parker had known of his diagnosis for four years and it was included in the pretrial

report—and because the time to file a notice of expert testimony related to a defendant’s mental

health had passed. The case proceeded to trial, and Parker did not introduce any witnesses in his

defense. The government dismissed one of the money-laundering counts, and the jury found Parker

guilty of all other counts.

        The PSR grouped all counts of conviction for sentencing and recommended a Guidelines

range of 97 to 121 months of imprisonment with an offense level of 29 and a criminal history

category II. This range was reduced to 97 to 120 months because the money-laundering counts are

statutorily capped at 120 months. The district court rejected all of Parker’s counsel’s objections to

the Guidelines calculation based on specific offender characteristics for downward departures and

rejected the government’s request for either an upward departure or an upward variance. The court


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then made a thorough review of the 18 U.S.C. § 3553(a) factors and sentenced Parker to 120 months

of imprisonment for each count, to be served concurrently, and a total of five years of supervised

release. Parker filed a notice of appeal the next day.

                                         II. ANALYSIS

A. Denial of Parker’s Motion for a Continuance

       Parker argues through counsel that the district court abused its discretion in denying his

motion for a continuance to investigate what counsel asserts was newly revealed information of a

prior DID diagnosis by Dr. Beere relevant to Parker’s mental state because the district court

improperly construed the motion as an untimely attempt to seek an insanity defense under Federal

Rule of Criminal Procedure 12.2(b).1




       1
         Federal Rule of Criminal Procedure 12.2 prescribes the procedures a defendant must
follow in federal court to introduce mental-health related evidence or defenses in a criminal trial.
In pertinent part, Rule 12.2 states,
        (a) Notice of an Insanity Defense. A defendant who intends to assert a defense of
        insanity at the time of the alleged offense must so notify an attorney for the
        government in writing within the time provided for filing a pretrial motion, or at
        any later time the court sets, and file a copy of the notice with the clerk. A
        defendant who fails to do so cannot rely on an insanity defense. The court may,
        for good cause, allow the defendant to file the notice late, grant additional
        trial-preparation time, or make other appropriate orders.
        (b) Notice of Expert Evidence of a Mental Condition. If a defendant intends to
        introduce expert evidence relating to a mental disease or defect or any other
        mental condition of the defendant bearing on . . . (1) the issue of guilt . . . , the
        defendant must--within the time provided for filing a pretrial motion or at any
        later time the court sets--notify an attorney for the government in writing of this
        intention and file a copy of the notice with the clerk. The court may, for good
        cause, allow the defendant to file the notice late, grant the parties additional
        trial-preparation time, or make other appropriate orders.

                                                 3
        We review for abuse of discretion the district court’s denial of a motion for a continuance.2

United States v. Garner, 507 F.3d 399, 408 (6th Cir. 2007). We may conclude that the district

court’s denial of a continuance rises to the level of a constitutional violation3 only if the district court

displayed “an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable

request for delay.” United States v. Crossley, 224 F.3d 847, 855 (6th Cir. 2000) (internal quotation

marks omitted). The denial also must have resulted in actual prejudice to the defendant’s defense,

which may be “established by showing that a continuance would have made relevant witnesses

available or added something to the defense.” Id. (internal quotation marks omitted). Because

“‘[t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to

violate due process,’” our inquiry is dependent upon the circumstance of this case and “‘particularly

. . . the reasons presented to the trial judge at the time the request is denied,’” with the recognition

that “[a] reasonable time for adequate preparation of the accused’s defense is the first essential of

trial fairness.” Garner, 507 F.3d at 408 (quoting Ungar v. Sarafite, 376 U.S. 575, 588–91 (1964)).

In our analysis, we may consider several non-dispositive factors, including:

        the length of the requested delay; whether other continuances had been requested and
        granted; the convenience or inconvenience to the parties, witnesses, counsel and the
        court; whether the delay was for legitimate reasons or whether it was “dilatory,


        2
         The Government contends that Parker’s motion for a continuance was an untimely notice
of intent to introduce evidence under Rule 12.2(b). We apply the same abuse-of-discretion
standard of review to a denial on those grounds. See United States v. McLernon, 746 F.2d 1098,
1115 (6th Cir. 1984) (“The district judge has wide discretion to excuse appellants’ failure to
grant timely notice of their expert’s testimony[ under Rule 12.2(b)], but also has broad discretion
to exclude such testimony.”).
        3
        Parker has not alleged that the denial abridged any particular constitutional right, but our
cases indicate that the failure to investigate a defense theory and/or call a defense witness may
implicate either the Sixth Amendment right to present a defense with counsel or the Fifth
Amendment right to due process. See Garner, 507 F.3d at 408; Crossley, 224 F.3d at 854–55.

                                                     4
       purposeful or contrived;” whether the defendant contributed to the circumstances
       giving rise to the request; whether denying the continuance will result in identifiable
       prejudice to defendant’s case; and the complexity of the case.

Powell v. Collins, 332 F.3d 376, 396 (6th Cir. 2003).

       Parker’s trial counsel filed a motion requesting the continuance at issue six days before the

scheduled trial start date stating that he did not become aware of Parker’s DID diagnosis or treatment

with Dr. Beere until he was meeting with Parker to discuss final trial matters the day before.

Counsel stated that he needed additional time to investigate this new evidence because “[i]f Mr.

Parker’s DID was present at or before the time of the alleged criminal activity then it has a direct

bearing on whether or not Mr. Parker formed or could have formed the requisite ‘intent’ to engage

in the alleged criminal activity.” Doc. 22 (Pl. Continuance Mot. at 3). At the hearing four days

before trial, Parker’s counsel argued that he did not yet have enough information to form the basis

of a Rule 12.2 notice related to insanity or to decide whether any information “is going to have any

bearing on the criminal intent, as I raise in my memorandum.” Doc. 69 (Mot. Tr. at 8–9). Counsel

also asserted that he was prepared to go to trial, but that he was concerned that Parker would be

prejudiced if counsel had missed something.

       The district court denied the motion on the record at the hearing, construing it as an attempt

to file an untimely notice of Rule 12.2(b) evidence of a mental disease bearing on guilt, and barred

any expert testimony at trial regarding Parker’s mental condition. The court noted that “the fact that

the pretrial services report does include the reference to Dr. Beere, [demonstrates that] your client

certainly had knowledge that there may be something there which potentially could impact the

defense of the action,” and that “the defendant certainly knew of this diagnosis and condition for

almost four years and, in fact, has been treating with Dr. Beere for 18 months while he’s been on


                                                  5
supervised release.” Id. at 13, 14–15. The court was also influenced by the fact that it had already

granted one continuance for approximately seven weeks to accommodate defense counsel’s schedule

in another trial. The court found “that the second delay is of the defendant’s own making,” “that the

delay of the current motion will unduly delay the proceedings,” and “that the defendant has failed

to show adequate good cause to excuse his failure to give the [Rule 12.2(b)] notice.” Id. at 14. The

case proceeded to trial as scheduled, and the defense presented no witnesses at trial.

       We conclude that the district court did not abuse its discretion. We have previously

concluded that it is not an abuse of discretion to deny a continuance where the defense counsel’s

claimed lack of adequate preparation time was based on late notice of evidence obtained from the

defendant or the defendant’s unwillingness to help prepare the defense. See Broom v. Mitchell, 441

F.3d 392, 414–15 (6th Cir. 2006), cert. denied, 549 U.S. 1255 (2007). And the Supreme Court has

noted that a district court does not necessarily abuse its discretion when its denial of a continuance

results in the defense offering no evidence. Ungar, 376 U.S. at 589. Even if it is “arguable” that

another court may have granted the continuance—and we agree that it is definitely arguable under

the circumstances here—“the fact that something is arguable does not make it unconstitutional.” Id.

at 591. Based on the timing of the request, the mention of Parker’s treatment with Dr. Beere in the

pretrial services report, Parker’s knowledge of his own treatment, and defense counsel’s

acknowledgment that he knew Parker was undergoing counseling prior to his trial in this case, we

conclude that it was not an abuse of discretion for the district court to deny the request. Although

we are wary to condone basing the denial of a continuance on defense counsel’s need to rely on a

defendant with an alleged mental disability that affects his memory—and given these considerations




                                                  6
we may have decided differently had we been the trial court—we cannot agree that the district court

abused its discretion here.

        We are also unpersuaded that Parker has satisfied his burden to demonstrate actual prejudice

from the denial “by showing that a continuance would have made relevant witnesses available or

added something to the defense.” Crossley, 224 F.3d at 855 (internal quotation marks omitted); see

United States v. Harris, 308 F. App’x 932, 938 (6th Cir. 2009) (unpublished opinion) (“A showing

of prejudice based on new evidence or new witnesses that the defendant would have produced if the

motion had been granted must be made with specificity.”). Parker contends that if the court had

granted a short continuance, then “the defense could have offered Dr. Beere as a witness to explain

to the jury Parker’s inability to recall any of the events outlined in the indictment”—testimony that

Parker asserts would not have been presented to bear on whether Parker met the legal definition of

insanity or whether Parker had the requisite mental state in a manner that implicates Rule 12.2(b).

Appellant Br. at 20–21. It is unclear how Dr. Beere’s potential testimony, as Parker characterizes

it on appeal, would have added to his defense in a non-expert capacity that could escape the

requirements of Rule 12.2(b), especially in light of the fact that Parker did not testify at trial and his

counsel did not present an argument related to Parker’s inability to recall the events at issue. See id.

(stating Dr. Beere would not have offered testimony about an insanity defense or provided an

“opinion on a[n] ultimate issue to be decided by the trier of fact” but rather could have testified that

“[i]n Dr. Beere’s opinion Parker’s amnesia was so complete that it was likely that another ‘alter’

performed these acts”); Reply Br. at 2–3 (“Dr. Beere’s testimony would have only concerned

Parker’s mental condition at the time of [Dr. Beere’s] treatment of Parker, not the time frame of his

offenses.”). Under the circumstances as presented to the district court, and even with the additional


                                                    7
information relating to Dr. Beere’s potential testimony that Parker included in his brief on appeal,

we cannot conclude that the district court abused its discretion in denying the continuance.

B. Denial of Parker’s Request for a U.S.S.G. § 5K2.13 Departure

        “We do ‘not review decisions of a district court not to depart downward unless the record

reflects that the district court was not aware of or did not understand its discretion to make such a

departure.’” United States v. Heath, 525 F.3d 451, 459 (6th Cir. 2008) (quoting United States v.

Puckett, 422 F.3d 340, 345 (6th Cir. 2005)). Although he acknowledges that the district court here

clearly both was aware of and understood its discretion to depart downward under U.S.S.G.

§ 5K2.13, Parker argues through counsel that the district court misapplied § 5K2.13 to the facts here

because the court misinterpreted the “volitional prong” of the “significantly reduced mental capacity”

definition under § 5K2.13. Appellant Br. at 27–28. We may review the district court’s decision only

to the extent required to determine whether the court incorrectly applied § 5K2.13 as a matter of law,

United States v. Santillana, 540 F.3d 428, 431 (6th Cir.), cert. denied, 129 S. Ct. 469 (2008), but we

may not review the district court’s findings of fact related to § 5K2.13, even if “‘a court’s failure to

grant a downward departure is . . . based on clearly erroneous findings of fact,’” United States v.

Puckett, 422 F.3d 340, 346 (6th Cir. 2005) (quoting United States v. Clark, 385 F.3d 609, 623 (6th

Cir. 2004)), cert. denied, 547 U.S. 1122 (2006); see also United States v. Jones, 445 F.3d 865,

868–69 (6th Cir.) (reaffirming that circuit precedent constraining review of a district court’s decision

not to depart downward to instances where the court failed to recognize or understand its discretion

survived Booker, but holding that “Puckett did not alter our ability to review the overall

reasonableness of a district court’s sentence”), cert. denied, 549 U.S. 912 (2006).




                                                   8
       The district court utilized the 2007 edition of the Guidelines Manual. Section 5K2.13, a

policy statement, authorizes a sentencing court to exercise its discretion to depart downward 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 (emphasis added). The Application Note defines “significantly

reduced mental capacity” to mean that “the defendant, although convicted, has a significantly

impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to

exercise the power of reason [(the cognitive impairments prong)]; or (B) control behavior that the

defendant knows is wrongful [(the volitional impairments prong)].” Id. cmt. n.1 (emphasis added);

see United States v. Sadolsky, 234 F.3d 938, 942 (6th Cir. 2000) (explaining how the “significantly

reduced mental capacity” definition has two prongs). “[Section] 5K2.13 does not require a direct

causal link between the [significantly reduced mental capacity] and the crime charged.” Sadolsky,

234 F.3d at 943 (explaining that the significantly reduced mental capacity may be a motivating factor

in the offense but need not be part of the offense conduct itself).

       The district court did not state explicitly that it found that Parker did suffer from a

“significantly reduced mental capacity” as defined under § 5K2.13. Instead, the court moved directly

to applying the standard in § 5K2.13 for whether or not someone with a significantly reduced mental

capacity may receive a downward departure—whether “(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

(emphasis added). The court first found that “although Dr. Beere certainly diagnosed the defendant

with [DID], it is certainly not clear and it’s certainly not proven, at least in my view, by a


                                                  9
preponderance of the evidence, that the defendant committed the offenses while suffering from that

affliction.” Doc. 80 (Sent. Tr. at 123). The district court thus found that Parker had not met the first

requirement under § 5K2.13. The district court next rejected Parker’s argument that he could meet

the second requirement, stating that “[a]ssuming for purposes of this argument that he did suffer

from that particular significantly reduced mental capacity, I don’t believe that there’s proof that it

substantially contributed to the commission of the offenses here.” Id. at 123–24. One could argue

that the district court misapplied § 5K2.13 by assuming that Parker’s DID diagnosis met the standard

for “significantly reduced mental capacity” instead of making a finding to that effect, but contrary

to Parker’s argument on appeal, the court did not misapply § 5K2.13’s definitions by making an

improper finding—the court made no finding, which was likely to Parker’s benefit.4 The district

court moved directly to considering whether, assuming Parker suffered from a “significantly reduced

mental capacity” under § 5K2.13, that status both was present at the time Parker committed the

offense and contributed substantially to that commission. For these reasons, we conclude that the

district court applied § 5K2.13 in a procedurally proper manner that was not a misinterpretation of

the law. Therefore we do not have jurisdiction to consider whether the district court erred in its

decision to not grant a departure under § 5K2.13.5


        4
          Parker argues that the district court relied on the wrong set of facts through lay testimony
to determine whether Parker’s DID diagnosis met the “significantly reduced mental capacity”
definition, which led the court to ignore the definition’s volitional prong. We may not review the
district court’s factual findings related to its decision not to grant the § 5K2.13 downward
departure. See Puckett, 422 F.3d at 346. The district court did discuss that trial testimony
demonstrated that Parker appeared to have “control of his faculties” and did not “show[] the
slightest signs of an alter personality” during the time period of the offense, but these musings
did not affect the district court’s application of § 5K2.13. Doc. 80 (Sent. Tr. at 123–25).
        5
        As in Santillana, “[a]lthough we would be free to review a claim that [Parker]’s sentence
is unreasonable under the § 3553(a) factors, [Parker] did not raise such a claim in his appeal, thus

                                                  10
C. Use of “Intended Loss” Rather than “Actual Loss” for U.S.S.G. § 2B1.1

       Parker has requested to file a pro se supplemental brief that asserts that the district court

misapplied U.S.S.G. § 2B1.1 in its loss calculation because the court utilized a flawed “intended

loss” calculation that failed to make a credit against the loss for money returned and the value of

collateral. We have considered Parker’s pro se issue and we conclude that it lacks merit. We

therefore deny his request to file this supplemental brief.

                                       III. CONCLUSION

       For these reasons, we AFFIRM the district court’s judgment. Although we question the

district court’s reliance on the ability of a defendant with a potential mental-health problem that

affects his memory to inform his attorney of the effect of his mental-health treatment, we conclude

that the district court did not abuse its discretion in denying Parker’s motion for a continuance in

light of the other circumstances present here. The district court also did not misinterpret the

applicable law under U.S.S.G. § 5K2.13, and we therefore conclude that we do not have jurisdiction

to consider Parker’s further arguments related to the district court’s decision not to apply § 5K2.13

to reduce Parker’s sentence.




waiving further review here,” and he “has made no effort to develop [an overall reasonableness]
argument here or elsewhere in the record” in response to the government’s notice in its brief that
Parker’s sentence was otherwise procedurally reasonable. Santillana, 540 F.3d at 433 & n.1.
Parker’s brief provides an overview of the § 3553(a) factors and sentencing requirements but
does not argue that any other aspects of Parker’s sentence were procedurally or substantively
unreasonable with reference to those factors, and no such objections were raised at the sentencing
hearing. See Doc. 80 (Sent. Tr. at 105–51).

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