           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                          2    United States v. Cooper                     No. 02-6172
        ELECTRONIC CITATION: 2003 FED App. 0394P (6th Cir.)
                    File Name: 03a0394p.06                                  Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEY,
                                                                            Lexington, Kentucky, for Appellee.
UNITED STATES COURT OF APPEALS                                                                  _________________
                   FOR THE SIXTH CIRCUIT                                                            OPINION
                     _________________                                                          _________________

 UNITED STATES OF AMERICA , X                                                 BOYCE F. MARTIN, JR., Circuit Judge. Dennis J.
                                                                            Cooper, a federal prisoner proceeding through counsel,
             Plaintiff-Appellee, -                                          appeals the sentence imposed upon his conviction for
                                   -
                                   -   No. 02-6172                          possessing child pornography in violation of 18 U.S.C.
            v.                     -                                        § 2252(a)(4)(B). The parties have waived oral argument and,
                                    >                                       upon examination, this panel unanimously agrees that oral
                                   ,                                        argument is not needed. Fed. R. App. P. 34(a).
 DENNIS J. COOPER ,                -
          Defendant-Appellant. -                                              Cooper was indicted by a grand jury on one count of
                                  N                                         possessing child pornography. When questions arose
      Appeal from the United States District Court                          concerning Cooper’s mental health, the district court ordered
    for the Eastern District of Kentucky at Lexington.                      a psychiatric evaluation and subsequently found that Cooper
     No. 01-00015—Joseph M. Hood, District Judge.                           was competent to stand trial. On February 11, 2002, Cooper
                                                                            waived his right to a trial and pleaded guilty as charged,
                Submitted: September 18, 2003                               pursuant to a written plea agreement. The presentence
                                                                            investigation report calculated Cooper’s offense level as
            Decided and Filed: November 5, 2003                             sixteen, his criminal history category as I, and the resulting
                                                                            guidelines range of imprisonment as twenty-one to twenty-
 Before: MARTIN and SUTTON, Circuit Judges; MILLS,                          seven months. Defense counsel filed no objections to these
                  District Judge.*                                          calculations, but did move for a downward departure based on
                                                                            diminished capacity pursuant to section 5K2.13 of the
                       _________________                                    Sentencing Guidelines.        Although a new psychiatric
                                                                            evaluation revealed that Cooper suffered from major
                             COUNSEL                                        depressive disorder and functioned at a borderline intellectual
                                                                            level, the evaluating team nonetheless concluded that Cooper
ON BRIEF: John K. West, McCOY, WEST, FRANKLIN                               did not suffer from diminished capacity as defined by the
& BEAL, Lexington, Kentucky, for Appellant. Charles P.                      guideline. The district court considered the report at
                                                                            sentencing, denied the downward departure motion, and
                                                                            sentenced Cooper at the high end of the range to twenty-seven
    *
                                                                            months in prison. The judgment was filed on September 16,
     The Hon orable R ichard M ills, United States District Judge for the   2002, and was entered September 17, 2002.
Central District of Illinois, sitting by designation.

                                   1
No. 02-6172                     United States v. Cooper         3   4    United States v. Cooper                     No. 02-6172

  Section 5K2.13 provides, in pertinent part:                       1998); see also United States v. Owusu, 199 F.3d 329, 349
                                                                    (6th Cir. 2000). Furthermore, we will presume that the
  A sentence below the applicable guideline range may be            district court did understand its discretion in the absence of
  warranted if the defendant committed the offense while            any evidence to the contrary in the record. See United States
  suffering from a significantly reduced mental capacity.           v. Ford, 184 F.3d 566, 585 (6th Cir. 1999). According to the
  However, the court may not depart below the applicable            record, the district court ordered Cooper to undergo a
  guideline range if (1) the significantly reduced mental           psychiatric and psychological examination at the Federal
  capacity was caused by the voluntary use of drugs or              Correctional Institution in Butner, North Carolina, in order to
  other intoxicants; (2) the facts and circumstances of the         determine, among other things, whether he suffered from
  defendant’s offense indicate a need to protect the public         diminished capacity at the time of his offense. The results of
  because the offense involved actual violence or a serious         the examination indicated that he did not suffer from
  threat of violence; or (3) the defendant’s criminal history       diminished capacity. The transcript from the sentencing
  indicates a need to incarcerate the defendant to protect          hearing clearly reveals that the district court considered
  the public. . . .                                                 Cooper’s argument but concluded, based upon the test results,
                                                                    that a downward departure based upon diminished capacity
USSG § 5K2.13. “Significantly reduced mental capacity” is           was unwarranted: “I have . . . received a copy of the report
defined in the commentary regarding section 5K2.13 as “a            from Butner, and in that report the conclusion is that Mr.
significantly impaired ability to (A) understand the                Cooper does not suffer from a diminished capacity. So
wrongfulness of the behavior comprising the offense or to           whether [the downward departure] is warranted or not – I
exercise the power of reason; or (B) control behavior that the      don’t think it is because, because of that finding by the staff
defendant knows is wrongful.”                                       at Butner.”
  As a general rule, a district court’s refusal to grant a            Under these circumstances, we must conclude that the
downward departure, whether pursuant to section 5K2.13 or           district court was aware of its discretion to grant a downward
another guideline, is unreviewable on appeal unless the             departure for diminished capacity but determined that the
district court (1) improperly computed the guideline range;         facts of the case did not justify such a departure. Therefore,
(2) was unaware of its discretion to depart downward from           the district court’s refusal to grant the downward departure is
the guideline range; or (3) imposed the sentence in violation       unreviewable on appeal.
of law or as a result of the incorrect application of the
Sentencing Guidelines. See United States v. Price, 258 F.3d           Cooper also suggests that the district court improperly
539, 547-48 (6th Cir. 2001).                                        applied subsections (2) and (3) of section 5K2.13, which
                                                                    provide that even if the defendant suffered from diminished
  Cooper’s primary argument is that appellate review is             capacity at the time of the offense, the court should not grant
appropriate because the district court was unaware of its           a downward departure on that basis if it finds a need to
discretion to grant a downward departure in this case. The          “protect the public.” Subsections (2) and (3) do not come into
district court need not explicitly state that it is aware of its    play unless the court finds that the defendant suffered from
discretionary authority to depart downward; the record need         diminished capacity at the time of the offense. Because the
only make clear the court’s awareness of its discretion. See        district court concluded that Cooper did not suffer from
United States v. Strickland, 144 F.3d 412, 418 (6th Cir.            diminished capacity, its determinations regarding the need to
No. 02-6172                   United States v. Cooper       5

protect the public are irrelevant. Therefore, we decline to
consider Cooper’s argument that the district court improperly
applied subsections (2) and (3) of section 5K2.13.
  Accordingly, the district court’s judgment is affirmed.
