PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.
                                                                     No. 96-4454
ANDREW SCOTT MORIN, a/k/a Scott
Morris,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-94-375)

Argued: December 5, 1996

Decided: September 11, 1997

Before WILKINSON, Chief Judge, and ERVIN and HAMILTON,
Circuit Judges.

_________________________________________________________________

Vacated and remanded by published opinion. Judge Ervin wrote the
opinion, in which Chief Judge Wilkinson and Judge Hamilton joined.

_________________________________________________________________

COUNSEL

ARGUED: Vincent Gambale, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellant. Lisa Bondareff Kemler, ZWERLING & KEM-
LER, P.C., Alexandria, Virginia, for Appellee. ON BRIEF: Helen F.
Fahey, United States Attorney, William G. Otis, Senior Litigation
Counsel, OFFICE OF THE UNITED STATES ATTORNEY, Alex-
andria, Virginia, for Appellant. John Kenneth Zwerling, ZWERLING
& KEMLER, P.C., Alexandria, Virginia, for Appellee.

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Andrew Scott Morin was convicted of attempting to arrange a
murder-for-hire and for sending a threatening communication through
the mail. The government appealed Morin's sentence, and in United
States v. Morin, 80 F.3d 124 (4th Cir. 1996), we vacated the sentence
and remanded the case for resentencing. Morin was resentenced and
the government again appeals his sentence. We vacate and remand the
case for a second time with instructions that the trial court not depart
from the United States Sentencing Guidelines (U.S.S.G.).

Morin was indicted on November 1, 1994, in a four-count indict-
ment. Counts one through three charged Morin with violations of the
federal murder-for-hire statute, 18 U.S.C. § 1958(a), and count four
charged him with a violation of 18 U.S.C. § 876, using the mail to
send a threat to kill another. At a bench trial which began March 13,
1995, Morin defended on the basis of insanity. Morin was found
guilty of all counts in the indictment.

At the original sentencing hearing, the court noted that the base
offense level for murder-for-hire was 32; however, the court departed
downward to level 18 and imposed a sentence of 21 months in prison,
followed by three years of supervised release. The court justified its
downward departure on three bases.

Morin appealed his conviction on the murder-for-hire counts and
the government cross-appealed from the court's decision to depart
downward. We subsequently affirmed Morin's murder-for-hire con-
victions but vacated his sentence and remanded the case for resen-
tencing since two of the district court's justifications for departure
were found to be in error.

                    2
A resentencing hearing was held on May 16, 1996, at which time
the district court imposed a sentence of 24 months imprisonment, to
be followed by three years of supervised release. The district court
again calculated the base offense level to be 32 and reduced the sen-
tence by three levels for acceptance of responsibility to an adjusted
level of 29. The court then departed downward 12 levels to 17 based
upon Morin's diminished capacity. The government appeals the dis-
trict court's sentencing departure. We, once again, vacate Morin's
sentence and remand this case for resentencing.

I.

In early 1994, Dr. Armondo Soto-Barbarra (Soto), who had known
Morin for a number of years and was fifteen years his senior, invited
Morin, age 20, to move into his apartment in California to look after
his wife, Ms. Raghnild Perstolen, while Soto went to the Philippines
to manage a clinic. Morin claimed that Perstolen seduced him and that
he fell in love with her. She denies this. Psychiatrists delivered con-
flicting testimony as to whether an affair likely took place or was just
a product of Morin's delusional disorder. Morin also claimed that Per-
stolen led him to believe that Soto had abused her. While Soto
remained in the Philippines, Morin decided to hire a"hit man" to kill
Soto. In furtherance of that plan, Morin contacted Richard Marchinko
in New York. Marchinko was the author of a book about counter-
terrorist activities in Vietnam. Marchinko referred Morin to Steve
Hartman, a private investigator in Virginia whose company special-
ized in, among other things, surgical shooting. Morin traveled to Vir-
ginia to meet Hartman and tried to hire him to kill Soto.

Hartman contacted the FBI, who arranged to put Morin in touch
with an undercover agent posing as a hit man. Morin telephoned the
agent, discussed the murder plan, and set up a meeting at which
Morin would pay for the "hit" and provide the killer with a ticket to
the Philippines. Before the meeting, Morin sent the"hit man" a 13-
page letter listing "Target Information/Pictures" and "Proposed Sce-
narios" for the murder, including a suggestion for "one large caliber
shot to the back of the head." In late June 1994, Morin flew to Vir-
ginia and gave the "hit man" $1400 cash and a round-trip ticket to the
Philippines. Morin was then arrested.

                    3
Morin admitted these facts at trial. Morin's insanity defense rested
largely on the testimony of a paid psychiatrist who stated that Morin
was mentally ill. This doctor theorized that Morin's affair with Pers-
tolen did not occur and that therefore Morin was delusional about her
and the perceived threat to her safety. The government's psychiatrist
concluded that Morin had a "narcissistic personality disorder" but was
not psychotic. At Morin's original sentencing hearing, the district
court concluded that Morin "suffer[s] from a severe mental illness
which include[s] a delusional motivation for illegal conduct, but that
. . . Morin appreciate[d] the nature and quality of wrongfulness of his
acts."

II.

The PSR (Presentence Investigation Report) set Morin's base
offense level at 32, U.S.S.G. § 2E1.4, and gave him a three-level
reduction for acceptance of responsibility. This resulted in a guide-
lines range of 87 to 108 months for Morin's Criminal History Cate-
gory I. The PSR also noted a number of "factors that may warrant
departure," including 1) victim misconduct, U.S.S.G. § 5K2.10 (based
on Morin's claim that he thought Perstolen needed protection from
Soto), 2) the crime being outside "heartland" murder-for-hire cases,
U.S.S.G. § 5K2.0, and 3) diminished mental capacity, U.S.S.G.
§ 5K2.13. In its original sentencing decision, the district court agreed
that Morin's base level for murder-for-hire was 32, but it departed to
level 18 on these three grounds.

On the "outside heartland" departure, the lower court initially con-
cluded that Morin's crime was "more akin to sending a threatening
communication" because of "the convoluted way in which the murder
was to be committed, . . . the naive way the defendant interacted with
the hit man, . . . [and the fact that] the chances of a successful `hit'
in the real world were minimal." With respect to the diminished
capacity rationale, the court noted at Morin's first sentencing hearing
that "the chances of a real murder being carried out were most
unlikely . . . because it would be ludicrous . . . to arrange for a hit to
occur in the Philippines, to pay $1400 cash down payment to a
stranger to commit the murder, to give the `hit man' a letter as collat-
eral and to expect to pay the balance over time." Section 5K2.13 of
the Sentencing Guidelines provides the following:

                     4
          Diminished Capacity (Policy Statement)
          If the defendant committed a non-violent offense while suf-
          fering from significantly reduced mental capacity . . . a
          lower sentence may be warranted to reflect the extent to
          which reduced mental capacity contributed to the offense,
          provided the defendant's criminal history does not indicate
          a need for incarceration to protect the public.

The district court attempted to articulate why Morin's conduct was a
"non-violent offense" under § 5K2.13:

          If Hartman . . . had been a real hit man, what would have
          happened here is I have no doubt Mr. Morin would have
          come East and paid his money and never seen the money
          again, and that would have been it, because this whole sce-
          nario was so strange . . . the chances of it being carried out
          were very, very thin. So I really don't think we have the
          kind of violent offense that would be of concern normally
          for this type of crime.

In the government's original appeal from the district court's down-
ward departure, it argued that all three departure grounds were errone-
ous and that, even if a downward departure were justified, the extent
of the departure was too great. In vacating Morin's sentence, we held
that the district court erred in using the victim misconduct guideline,
U.S.S.G. § 5K2.10, and the outside-the-heartland guideline, U.S.S.G.
§ 5K2.0, as justifications for downward departure. With respect to the
departure under § 5K2.0, we stated that Morin's plot to have Soto
murdered "is typical of murder-for-hire cases," and, therefore, the
case was not outside the heartland. Morin, 80 F.3d at 129. "[I]t
appears just as likely that Morin's motive, even if delusional, was
simply the elimination of a perceived competitor for Ms. Perstolen's
affections . . . [and his behavior] is another tale of romantic rivalry
fueling a murder plot." Id.

We did not find, however, that the trial court had erred in departing
on the basis of diminished capacity, U.S.S.G. § 5K2.13. Noting that
the "validity" of such a departure "hinges on the district court's fac-
tual determination that Morin's murder-for-hire plot was `non-
violent,'" we remanded the case for resentencing since it was "uncer-

                    5
tain regarding the extent to which [that] factual finding may have
been influenced by the district court's erroneous belief that Morin's
behavior fell outside the heartland murder-for-hire cases." Id. We
went on to state that resentencing was "required in any event" because
there was no way for us to discern how much weight the district court
gave to the two erroneous grounds it relied on in determining the
extent of the departure. Id.

In resentencing Morin, the district court departed from the applica-
ble guideline range by 12 levels based upon diminished capacity pur-
suant to § 5K2.13. As such, the district court increased Morin's
original sentence by only three months, from 21 months to 24 months
in prison, stating that "the essential basis for the departure" it origi-
nally granted was Morin's diminished capacity and that it had only
awarded a one-level reduction for each of the erroneous grounds upon
which it had previously relied.

In concluding that a departure under the diminished capacity guide-
line was warranted, the district court specifically found the acts result-
ing in Morin's conviction constituted a "non-violent offense" under
§ 5K2.13. The court found that "the extremely serious delusional
problems that he had . . . were both the motivation for the crime and
they drove the way in which he went about committing the crime."
The court below finally concluded that "[t]he potential for violence in
this particular case under these circumstances just wasn't there."

III.

A.

We have set out a fact-based standard for determining whether
crimes are non-violent under the diminished capacity provision of the
guidelines, U.S.S.G. § 5K2.13. See United States v. Weddle, 30 F.3d
532, 537 (4th Cir. 1994). While courts of appeal must "give due def-
erence to the district court's application of the guidelines to the facts,"
we recognize that the findings of fact of the district court shall be
accepted unless they are clearly erroneous. Koon v. United States, ___
U.S. ___, 116 S.Ct. 2035, 2046 (1996) (quoting 18 U.S.C. § 3742(e)).
Although a definition of crimes of violence is found elsewhere in the
guidelines, we have held that the definition of a"crime of violence"

                     6
in § 4B1.2 of the sentencing guidelines (regarding career offenders)
is not applicable to § 5K2.13 and its reference to a "non-violent
offense."1 See Weddle, 30 F.3d at 540. See also United States v.
Chatman, 986 F.2d 1446, 1451-52 (D.C. Cir. 1993). Rather, when
applying § 5K2.13 the sentencing court should make a fact-specific
investigation of the offense to determine whether it was non-violent.2
Weddle, 30 F.3d at 540.

In our instructions to the court below on our previous remand, we
stated that the validity of the diminished capacity ground for down-
ward departure "hinges on the district court's factual determination
that Morin's murder-for-hire plot was `non-violent.'" United States v.
Morin, 80 F.3d 124, 129 (4th Cir. 1996) (emphasis added). In making
this determination, the district court's finding that Morin suffered
diminished capacity is simply one factor to be considered by the court
in analyzing whether the behavior was non-violent.

B.

The government's central challenge to the resentencing is that the
district court erred by considering Morin's "reduced mental capacity"
in reaching its conclusion that his actions constituted a "non-violent
offense" under § 5K2.13. The government argues that "a `non-violent'
crime and `reduced mental capacity contribut[ing] to the commission
of the offense' are separate and distinct requirements for departure."
Br. for Appellant at 12 (quoting U.S.S.G. § 5K2.13). We hold, rather,
that the court below did not err by considering Morin's reduced men-
_________________________________________________________________
1 Under § 4B1.2, Morin's behavior would constitute a "crime of vio-
lence" because that section includes among such crimes the "threatened
use of physical force against the person of another." U.S.S.G. § 4B1.2(1).
2 By contrast, at least five circuits have applied the definition of "crime
of violence" from § 4B1.2 of the guidelines and concluded that, if an
offense fits that definition, it cannot be non-violent pursuant to § 5K2.13.
United States v. Cantu, 12 F.3d 1506, 1513 (9th Cir. 1993); United States
v. Poff, 926 F.2d 588, 591 (7th Cir.) (en banc), cert. denied, 502 U.S. 827
(1991); United States v. Russell, 917 F.2d 512, 517 (11th Cir. 1990),
cert. denied, 499 U.S. 953 (1991); United States v. Rosen, 896 F.2d 789,
791 (3d Cir. 1990); United States v. Maddalena , 893 F.2d 815, 819 (6th
Cir. 1989), cert. denied, 502 U.S. 882 (1991).

                    7
tal capacity in its determination that his crime was non-violent. How-
ever, we also hold that Morin's reduced mental capacity alone was
not sufficient to justify the court's conclusion that his murder-for-hire
plot was non-violent.3 The circumstances surrounding the plot,
including Morin's mental illness, do not render it a non-violent
offense.

The district court declared at Morin's resentencing hearing that
"[t]he essential basis for this departure is that given that diminished
mental capacity, this was not a crime of violence." Morin contends,
and the district court agreed, that his diminished capacity and the dan-
ger posed by his behavior are inextricably linked. The court below
reasoned that if Morin had not been driven by his"fantasy" and
"Robin Hood-type motive," he presumably would not have been so
naive in the way he went about hiring a hit man. According to the
court, the unsophisticated manner in which Morin attempted to carry
out his plot "was driven . . . by his delusional state."

In our initial opinion remanding this case, we discussed why
Morin's plot brought the case within the heartland murder-for-hire
cases. In that opinion, we suggested that Morin's behavior was violent
in spite of his mental condition; however, we regretfully did not spell
out this conclusion. In that initial decision, we noted that Morin took
substantial steps in furtherance of the crime, and that the fact that his
plot was thwarted had no bearing on the potential for injury. Morin,
80 F.3d at 128. Further, we stated that "it is not at all clear that
Morin's supposed naivete would have prevented him from finding a
willing assassin." Id.

Morin contends that certain facts, even when considered indepen-
dently from his mental capacity, indicate that his plan may not have
succeeded. Morin attempted to hire a legitimate security consultant to
carry out a contract killing. Also, Morin simply gave the "hit man"
$1400 and a plane ticket with no assurance that the man would not
simply take the money and not do the job. Finally, Morin attached to
_________________________________________________________________
3 The government has not challenged the factual basis for the reduced
mental capacity component of § 5K2.13 because medical evidence was
presented concerning Morin's mental illness; thus, the finding of non-
violence is the relevant issue for our review.

                     8
his resentencing memorandum a letter containing the opinions of two
former Maryland state police officers that Morin's actions were
unique among individuals planning contract murders and that the
actions demonstrated a blatant failure by Morin to insulate himself
from the proposed crime. The district court considered these facts in
its determination that "the potential for violence in this particular
case, under these circumstances just wasn't there."

In our original opinion in this case, we noted facts that tend to
show that Morin's murder-for-hire scheme was indeed dangerous and
could have succeeded had it not been thwarted by the FBI:

         [Morin] knew how to locate Dr. Soto, had photographs of
         Dr. Soto, and had financial resources sufficient to travel
         back and forth between California and Virginia, to purchase
         an airline ticket to the Philippines, and to provide the under-
         cover agent with the ticket and $1,400 cash.

         [. . .]

         Morin's plot is typical of murder-for-hire cases; he did after
         all suggest "one large caliber shot to the head."

Morin, 80 F.3d at 128-29.

In Weddle we found no error in the district court's determination
of non-violence under § 5K2.13; the facts of the instant case, how-
ever, may be distinguished from those in Weddle .4 In that case, the
defendant (Weddle) continued to threaten to kill the intended victim
(Angleberger) even after Weddle was charged with assault for
attempting to run Angleberger off the road and hit him with a "slap-
jack." Weddle, 30 F.3d at 540. The final threat, and the act at issue
on appeal, took the form of bullets sent through the mail and inscribed
with Angleberger's name. Id. Even though the involvement of law
enforcement apparently did not deter Weddle from making threats,
the fact that Angleberger had notice of proposed threats to his life
_________________________________________________________________
4 In Weddle, we affirmed a probationary sentence when the sentencing
guidelines called for a pre-reduction sentence of incarceration.

                    9
may have placed him in less danger than Soto because he was able
to seek the protection of law enforcement. Also, the offense before us
in Weddle involved threatening communications whereas the instant
case involves acts taken in furtherance of a carefully orchestrated
murder.

We distinguish the instant case from Weddle and determine that the
steps taken towards completion of Morin's plot preclude it from being
labeled a non-violent offense. A reduction in a defendant's sentence
is not proper under § 5K2.13 unless the facts support the proposition
that the offense was non-violent. In the instant case, applying the
clearly erroneous standard to the district court's factual findings, that
court committed clear error in finding that Morin's plot was non-
violent.

IV.

Since a defendant's offense must be found to be non-violent in
order to invoke § 5K2.13, and since the facts of the instant case do
not support the district court's determination of non-violence, that
court erred by reducing Morin's sentence pursuant to§ 5K2.13.
Accordingly, Morin's sentence is vacated and this case is remanded
for resentencing within the range prescribed by the sentencing guide-
lines.

VACATED AND REMANDED

                     10
