               Vacated by Supreme Court, January 24, 2005




                            PUBLISHED

UNITED STATES COURT OF APPEALS
                  FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellant,
                  v.                              No. 03-4017
ANDRE E. RIGGS,
                  Defendant-Appellee.
                                        
           Appeal from the United States District Court
            for the District of Maryland, at Baltimore.
                 J. Frederick Motz, District Judge.
                         (CR-01-187-JFM)

                       Argued: January 23, 2004

                        Decided: June 3, 2004

   Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.



Vacated and remanded by published opinion. Judge Shedd wrote the
majority opinion, in which Judge Niemeyer joined. Judge Duncan
wrote a dissenting opinion.


                             COUNSEL

ARGUED: Philip S. Jackson, Assistant United States Attorney, Balti-
more, Maryland, for Appellant. Kelli Colleen McTaggart, Assistant
Federal Public Defender, Greenbelt, Maryland, for Appellee. ON
BRIEF: Thomas M. DiBiagio, United States Attorney, Baltimore,
Maryland, for Appellant. James Wyda, Federal Public Defender, Jef-
frey Risberg, Assistant Federal Public Defender, Greenbelt, Mary-
land, for Appellee.
2                      UNITED STATES v. RIGGS
                             OPINION

SHEDD, Circuit Judge:

   Andre Riggs pled guilty to possession of a firearm after having pre-
viously been convicted of a crime punishable by imprisonment for a
term exceeding one year, in violation of 18 U.S.C. § 922(g). At sen-
tencing, the district court granted Riggs a downward departure under
§ 5K2.13 of the United States Sentencing Guidelines based upon his
diminished mental capacity. Because Riggs is not eligible for a down-
ward departure, we vacate his sentence and remand for resentencing.

                                  I.

   In March 2001, a Baltimore City police officer stopped Riggs for
driving a vehicle with expired license tags. After the vehicle was
stopped, the officer observed Riggs clutching the left side of his
jacket. The officer asked Riggs to show his hands, but Riggs refused
and continued to clutch his jacket. The officer subsequently stepped
back from the vehicle and waited for back-up officers to arrive. When
the back-up officers arrived at the scene, they ordered Riggs to exit
the vehicle. Riggs complied, and a pat-down frisk resulted in the dis-
covery of a .22 revolver in Riggs’s jacket.

   Riggs had previously been convicted in Maryland state court on
charges of drug distribution and possession of a short-barrel shotgun.
Riggs was sentenced to ten years’ imprisonment on the distribution
counts and three years’ imprisonment on the firearm count. These
sentences were suspended, and Riggs completed three years of proba-
tion.

   Riggs suffers from paranoid schizophrenia and, unless medicated,
experiences auditory hallucinations and feelings of paranoia. At the
time of his arrest for the firearm offense at issue here, Riggs had
stopped taking his medication and had begun to hallucinate. In fact,
he was under the impression that people were trying to "hurt" him and
that he was an undercover police officer. During the approximately
twenty months between his arrest and the sentencing hearing, how-
ever, Riggs’s condition seems to have improved. Riggs’s mother
                        UNITED STATES v. RIGGS                         3
reminds him to take his oral medication, and his physician adminis-
ters intramuscular injections of antipsychotic drugs. Because the
injections are absorbed into the bloodstream slowly, they keep Riggs
medicated for periods of up to a month even if he fails to take his oral
medication.

   The district court determined that Riggs’s offense level was 17
with a criminal history category of I, resulting in a sentencing range
of 24 to 30 months. Riggs moved for a downward departure based
upon his diminished mental capacity. The district court granted a
seven-level downward departure and sentenced Riggs to three years’
probation, of which 12 months was to be served under home confine-
ment with an electronic home monitoring system. The government
appeals the district court’s decision to grant the downward departure.

                                   II.

   The diminished capacity guideline, § 5K2.13, provides that a sen-
tence below the applicable guideline range may be imposed "if the
defendant committed the offense while suffering from a significantly
reduced mental capacity." However, under the version of § 5K2.13 in
effect at the time of Riggs’s sentencing, the district court may not
depart below the applicable guideline range if any one of the follow-
ing conditions applies:

    (1) the significantly reduced mental capacity was caused by
    the voluntary use of drugs or other intoxicants; (2) the facts
    and circumstances of the defendant’s offense indicate a need
    to protect the public because the offense involved actual
    violence or a serious threat of violence; or (3) the defen-
    dant’s criminal history indicates a need to incarcerate the
    defendant to protect the public.

U.S.S.G. § 5K2.13 (2002), amended by Amendment 649, effective
April 30, 2003.

  In granting the downward departure motion, the district court first
noted in its oral ruling that there was no indication that Riggs had vol-
untarily used drugs. The government does not challenge this finding
4                          UNITED STATES v. RIGGS
on appeal. Next, the district court appeared to state the conclusion that
Riggs was not going to shoot the officers, and therefore, Riggs’s
offense did not involve a serious threat of violence. Finally, in
addressing the public protection aspect of § 5K2.13 (found in both
§ 5K2.13(2) and § 5K2.13(3)), the district court stated:

        I really do think that to the extent one can tell, based upon
        the facts as they now exist, things are under control, that you
        have been taking your medication, your mother is making
        sure, and you are [sic] treating physician is making sure you
        take your medication, and as long as you do that I think you
        are going to be lawabiding [sic].

This statement appears to mean that the success of Riggs’s treatment
plan, at the time of sentencing, alleviated public protection concerns.

   We review the district court’s decision to depart from the applica-
ble Guidelines range de novo. 18 U.S.C. § 3742(e).1 As to the district
court’s determination whether the offense involved a serious threat of
violence under the diminished capacity guideline, we review for clear
error. See United States v. Bowe, 257 F.3d 336, 347 (4th Cir. 2001).
A finding of the district court is clearly erroneous "when although
    1
   Prior to April 30, 2003, we reviewed a district court’s decision to
depart from the Guidelines for abuse of discretion. Koon v. United States,
518 U.S. 81, 98-100 (1996). Congress, however, amended 18 U.S.C.
§ 3742(e) to provide for de novo review of a district court’s decision to
depart "from the applicable guideline range based on a factor" that "is not
justified by the facts of the case." See Prosecutorial Remedies and Tools
Against the Exploitation of Children Today Act of 2003 ("PROTECT
Act"), Pub. L. No. 108-21, § 401(d)(1)-(2), 117 Stat. 650, 670. Because
we are asked to determine whether the facts of this case justify a down-
ward departure for diminished mental capacity, we conclude that the cor-
rect standard of review is de novo. See United States v. May, 359 F.3d
683, 687-88 (4th Cir. 2004)(reviewing de novo the district court’s grant
of a downward departure under § 5K2.10 for victim conduct). Although
Riggs was sentenced prior to the effective date of the PROTECT Act,
application of a heightened standard of review does not violate the Ex
Post Facto Clause because it does not change the legal standards govern-
ing the decision. United States v. Stockton, 349 F.3d 755 n.4 (4th Cir.
2003).
                         UNITED STATES v. RIGGS                          5
there is evidence to support it, the reviewing court on the entire evi-
dence is left with the definite and firm conviction that a mistake has
been committed." Anderson v. City of Bessemer City, 470 U.S. 564,
573 (1985).

                                    A.

   We first consider whether Riggs’s offense involved a serious threat
of violence. Under § 5K2.13(2), a district court is directed to consider
"the facts and circumstances of the defendant’s offense" in determin-
ing whether it involved a "serious threat of violence."2 Here, the dis-
trict court apparently determined that Riggs was not going to shoot
the officers, and therefore, Riggs’s offense did not involve a serious
threat of violence.

   We conclude, however, that the district court’s factual finding in
this regard was clearly erroneous because the facts and circumstances
of Riggs’s offense did involve a serious threat of violence. It is undis-
puted that Riggs was carrying a firearm at the time of the traffic stop
and that he refused to comply with an officer’s order to remove his
  2
   Prior to a 1998 amendment to § 5K2.13, a circuit split existed as to
whether the inquiry under § 5K2.13 was synonymous with the categori-
cal approach used to determine a "crime of violence" under § 4B1.2, the
career offender guideline. See United States v. Weddle, 30 F.3d 532, 537-
38 (4th Cir. 1994). The categorical approach requires courts to examine
only the fact of conviction and the statutory definition of the offense,
United States v. Pierce, 278 F.3d 282, 286 (4th Cir. 2002), rather than
conducting "a wideranging inquiry into the specific circumstances sur-
rounding a conviction," United States v. Johnson, 246 F.3d 330, 333 (4th
Cir. 2001). The 1998 amendment, however, resolved the circuit split by
directing district courts to consider the "facts and circumstances of the
defendant’s offense," which differs markedly from the categorical
approach. Thus, although we have held under the categorical approach
that possession of a firearm by a convicted felon is not a "crime of vio-
lence" for purposes of § 4B1.2, see United States v. Johnson, 953 F.2d
110, 155 (4th Cir. 1991); see also USSG § 4B1.2, cmt. n.1 (stating that
the term "[C]rime of violence does not include the offense of unlawful
possession of a firearm by a felon"), that does not control the result here
because § 5K2.13 requires a fact-specific inquiry into the circumstances
of the offense.
6                        UNITED STATES v. RIGGS
hands from the jacket where the gun was located. Riggs’s refusal to
obey the officer’s order, while at the same time clutching his jacket,
created a highly volatile situation that could have erupted in violence.
Moreover, Riggs thought that he was an undercover police officer and
that people were trying to hurt him. These facts suggest, if anything,
that Riggs was prepared to use the firearm, exposing the officers and
the public to potential harm.3 While the dissent maintains that we
have based our determination solely on the officer’s subjective per-
ception of threatened violence, this is clearly not the case. Our con-
clusion is based, rather, on all of the relevant and objective "facts and
circumstances" of the offense, including the fact that Riggs was carry-
ing a firearm and the fact that he thought he was an undercover police
officer—both of which were unknown to the arresting officer.
Accordingly, we hold that the district court erred in determining that
the facts and circumstances of Riggs’s offense did not involve a seri-
ous threat of violence.
    3
    We also reject Riggs’s argument that the offense did not involve a
threat of violence—much less a serious threat—because he did not make
any threatening gestures or statements. While the word "threat" may
mean "an expression of an intention to inflict pain, injury, evil, or pun-
ishment," American Heritage Dictionary 1801 (4th ed. 2000), it also
means "an indication of impending danger or harm." Id. See also
Merriam-Webster’s Collegiate Dictionary 1302 (11th ed. 2003). If the
Sentencing Commission intended to restrict the meaning of "threat" to
the former, it could have prohibited the district court from granting a
downward departure only if the defendant made a serious threat of vio-
lence. See USSG § 5C1.2 (providing that a district court may depart
below the statutory minimum under the "safety valve" provision if,
among other things, the defendant "did not use violence or credible
threats of violence"). Here, a downward departure is prohibited if the
facts and circumstances of the offense "involved" a serious threat of vio-
lence. This choice of language strongly suggests that the word "threat"
is broader than gestures or statements, and includes activities that are "an
indication of impending danger or harm." The district court apparently
understood the word "threat" to be used in this sense as well — finding
that there was no threat that Riggs was going to shoot the officers, rather
than finding that Riggs had failed to make a threat. Because we have no
trouble concluding that the facts and circumstances of Riggs’s offense
were an indication of impending danger or harm, they were "threats"
within the meaning of § 5K2.13.
                         UNITED STATES v. RIGGS                          7
                                    B.

   Although we have determined that Riggs’s offense involved a seri-
ous threat of violence, our inquiry does not end there because a down-
ward departure is prohibited under § 5K2.13(2) only if "the facts and
circumstances of the defendant’s offense indicate a need to protect the
public." In addressing this question, the district court determined that
Riggs’s treatment regimen, which consists of his doctor’s administra-
tion of intramuscular injections and his mother’s reminders to take his
oral medication, alleviated public protection concerns. We hold, how-
ever, that despite the apparent success of Riggs’s treatment plan, "the
facts and circumstances" of his offense "indicate a need to protect the
public," and the district court therefore erred in granting the down-
ward departure.

   Riggs’s failure to take his medication is a fact and a circumstance
that led to a serious threat of violence, thereby endangering the pub-
lic. It remains, however, for us to decide whether, at the time of sen-
tencing, that "fact" still attains such that there is a need to protect the
public. We find that it clearly does. Although Riggs has been comply-
ing with his treatment program, we see no adequate assurance in the
record that he will continue to do so. If Riggs were to decide that he
no longer wants to receive the injections, he could refuse to visit his
doctor. Likewise, Riggs could decline to take his oral medication,
despite his mother’s reminders. A discontinuation in Riggs’s medica-
tion could easily lead to a recurrence of symptoms whereby Riggs’s
actions pose a serious threat of violence. We conclude, therefore, that
because Riggs may discontinue his medication in the future (and has
done so in the past), a need to protect the public has been established.
Accordingly, Riggs’s diminished capacity does not justify a down-
ward departure under § 5K2.13(2).4
   4
     The dissent suggests that this conclusion is inconsistent with our
statement in United States v. Weddle, 30 F.3d 532 (4th Cir. 1994), that
the purpose of § 5K2.13 "is to treat with lenity those individuals whose
reduced mental capacity contributed to commission of a crime." Id. at
540 (internal quotation marks omitted). While it is true as a general prop-
osition that § 5K2.13 provides for lenity, we are required to apply the
language of the guideline, which prohibits a downward departure, despite
the defendant’s significantly reduced mental capacity, "if the facts and
circumstances of the defendant’s offense indicate a need to protect the
public because the offense involved actual violence or a serious threat of
violence."
8                        UNITED STATES v. RIGGS
                                   III.

   Because we have determined that the downward departure was pro-
hibited under § 5K2.13(2), we need not address whether the departure
was also prohibited under § 5K2.13(3). Accordingly, we vacate
Riggs’s sentence and remand for resentencing in accordance with this
opinion.

                                          VACATED AND REMANDED

DUNCAN, Circuit Judge, dissenting:

   The majority holds that, under United States Sentencing Guideline
("U.S.S.G.") § 5K2.13(2), the defendant’s failure to move or respond
to the police constituted a serious threat of violence. It also holds that,
while acknowledging the "apparent success of Riggs’s treatment
plan," ante at 7, the possibility that the defendant might, at some
future time, decide not to take his medications requires the defen-
dant’s incarceration to protect the public. I strongly disagree that the
facts support the former conclusion, and believe that the latter misap-
plies our standard of review and rests primarily on speculation. Fur-
ther, I agree with the district court that the defendant’s criminal
history does not indicate a need to protect the public that would pre-
clude a downward departure under § 5K2.13(3). Because I find that
the district court properly applied § 5K2.13 to the facts of this case,
I would affirm its sentence. Accordingly, I dissent.

                                    I.

   Section 5K2.13 permits a district court to impose a sentence below
the applicable guideline range "if the defendant committed the offense
while suffering from a significantly reduced mental capacity."
U.S.S.G. § 5K2.13 (2002). The guideline precludes a departure if,
inter alia, "the facts and circumstances of the defendant’s offense
indicate a need to protect the public because the offense involved
actual violence or a serious threat of violence;" or "the defendant’s
criminal history indicates a need to incarcerate the defendant to pro-
tect the public." U.S.S.G. § 5K2.13(2)-(3). The purpose of the guide-
line "is to treat with lenity those individuals whose reduced mental
                       UNITED STATES v. RIGGS                        9
                                                   1
capacity contributed to commission of a crime." United States v.
Weddle, 30 F.3d 532, 540 (4th Cir. 1994) (internal quotations omit-
ted) (quoting United States v. Chatman, 986 F.2d 1446, 1452 (D.C.
Cir. 1993)); accord United States v. Cantu, 12 F.3d 1506, 1516 (9th
Cir. 1993). Indeed, this court and others have interpreted § 5K2.13 in
this way. For example, although nothing in the language of the guide-
line suggests that the availability of medical treatment for a defen-
dant’s mental impairment should influence a sentencing court’s
decision to depart, see United States v. Atkins, 116 F.3d 1566, 1572
(D.C. Cir. 1997) (Henderson, J., dissenting), courts consider "any
treatment the defendant is receiving or will receive while under sen-
tence, [and] the likelihood that such treatment will prevent the defen-
dant from committing further crimes." Cantu, 12 F.3d at 1516;
accord, Atkins , 116 F.3d at 1569; Weddle, 30 F.3d at 540. Thus, we
must resolve any ambiguity in the language of this guideline to
achieve this purpose.

   With this purpose in mind, I address the majority’s application of
§ 5K2.13(2) to this case.

                                  II.

   A sentencing court may not depart from the applicable guideline
range if it finds that (1) the "offense involved actual violence or a
serious threat of violence" and (2) "the facts and circumstances of the
defendant’s offense indicate a need to protect the public." U.S.S.G.
§ 5K2.13(2). I address each in turn.
  1
    Departures based on a defendant’s diminished capacity are encour-
aged because "two of the primary rationales for punishing an individual
by incarceration — desert and deterrence — lose some of their relevance
when applied to those with reduced mental capacity." United States v.
Chatman, 986 F.2d 1446, 1452 (D.C. Cir. 1993). Those who are unable
to control their conduct do not "deserve as much punishment as those
who act maliciously or for gain." United States v. Poff, 926 F.2d 588,
595 (7th Cir. 1991) (Easterbrook, J., dissenting). Likewise, "[b]ecause
legal sanctions are less effective with persons suffering from mental
abnormalities, a system of punishment based on deterrence also curtails
its sanction." Id.
10                       UNITED STATES v. RIGGS
                                     A.

   The majority concludes that Riggs’s offense involved a serious
threat of violence because his "refusal to obey the officer’s order,
while at the same time clutching his jacket, created a highly volatile
situation that could have erupted in violence." Ante at 6 (emphasis
added). By basing its holding on what could have happened, the
majority apparently construes § 5K2.13 to preclude a departure if
someone perceives a risk of violence. However, the availability of a
departure under the guideline does not turn on a subjective percep-
tion.

   A perceived risk of violence might be one fact relevant to deter-
mining whether an offense involved a serious threat of violence (I
have found no case in which this is so), but it cannot be the sole determi-
nant.2 As this court has already noted, whether an offense involved a
serious threat of violence is dependent upon what actually happened,
not what could have happened. See United States v. Bowe, 257 F.3d
336, 347 (4th Cir. 2001) (holding that "a sentencing court should
make a fact-specific investigation of the offense to determine whether
it was non-violent"). A person may perceive a risk of harm without
being threatened; but this perception reflects the mere possibility of
violence, which does not preclude a departure for diminished capac-
ity. To be relevant, the perception of violence must be based on the
defendant’s conduct. And if it is, then the perception simply rein-
forces evidence of the conduct itself. The conduct, however, consti-
tutes the threat.3

   The majority attempts to evade this fact by defining "threat" to
mean more than just "gestures or statements," but rather to include
"activities that are ‘an indication of impending danger or harm.’" Ante
at 6 n.3 (quoting AMERICAN HERITAGE DICTIONARY 1801 (4th ed.
  2
     In fact, other courts have held that an offense does not involve a seri-
ous threat of violence because the defendant "did not possess any real
intent to cause physical harm." E.g., United States v. Walter, 256 F.3d
891, 895 (9th Cir. 2001). Clearly, a person witnessing the defendant’s
offense cannot have a perception of the defendant’s actual intent.
   3
     The perceived risk of violence might more appropriately relate to the
seriousness of the threat, rather than to the existence of the threat.
                         UNITED STATES v. RIGGS                           11
2000)). But this definition, assuming its appropriateness, still requires
that the defendant be engaged in an activity that indicates an impend-
ing danger. I fail to see how a defendant can be engaged in an activity
that does not involve some gesture or statement. The majority, of
course, does not state in what activity Riggs was engaged — if Riggs
had taken action, the majority would hardly have found it necessary
to attempt to incorporate more than just gestures and statements into
the term "threat."4 The majority’s definition simply cannot support the
burden placed on it.

   Moreover, if the Sentencing Commission had intended to preclude
a downward departure under § 5K2.13 because the defendant’s
offense involved a risk of violence, it could have said so. For exam-
ple, in defining a "crime of violence" under § 4B1.2, the Commission
included offenses that "involve conduct that presents a serious poten-
tial risk of physical injury to another." U.S.S.G. § 4B1.2(a). A risk is
a "possibility of suffering harm or loss." WEBSTER’S II NEW RIVERSIDE
DICTIONARY 602 (1984). The majority imposes the meaning of this
phrase onto "serious threat of violence" in § 5K2.13, despite the fact
that the Commission decided against using this language.

   This difference in terminology is particularly relevant in light of
the fact that the Commission amended § 5K2.13 specifically to draw
a distinction between these two guideline sections.5 The amendment’s
  4
     If the majority construes "threat" to include the activities of someone
other than the defendant, those activities can hardly be described as part
of the defendant’s offense.
   5
     Prior to 1998, § 5K2.13 permitted a departure if, inter alia, the defen-
dant’s offense was "non-violent." See U.S.S.G. § 5K2.13 (1997). The
courts of appeals disagreed as to the meaning of this term. Five circuits
held the term to be the contrapositive of the term "crime of violence" as
defined in § 4B1.2. See United States v. Mayotte, 76 F.3d 887, 889 (8th
Cir. 1996); United States v. Poff, 926 F.2d 588, 591-93 (7th Cir. 1991)
(en banc); United States v. Rosen, 896 F.2d 789, 791 (3d Cir. 1990);
United States v. Borrayo, 898 F.2d 91, 94 (9th Cir. 1989); United States
v. Maddalena, 893 F.2d 815, 819 (6th Cir. 1989). Thus, if the offense
"(1) ha[d] as an element the use, attempted use, or threatened use of
physical force against the person of another, or (2) . . . otherwise
involve[d] conduct that presents a serious potential risk of physical injury
12                       UNITED STATES v. RIGGS
purpose was to confirm that a finding that an offense is a crime of
violence does not preclude a diminished capacity departure. United
States v. Askari, 159 F.3d 774, 779 (3d Cir. 1998) (en banc) (discuss-
ing 1998 amendment). Narrowing the reach of § 5K2.13(2) in this
manner "seems sensible when it is realized that ‘section 4B1.2 can be
read as depriving career offenders of the benefit of the doubt, and
assuming the worst,’" whereas § 5K2.13’s purpose is to treat mentally
impaired defendants with lenity.6 Weddle, 30 F.3d at 539-40 (quoting
Chatman, 986 F.2d at 1451). The important point is that the Commis-
sion knew how to say that a risk of violence should preclude a
§ 5K2.13 departure if that is what it intended. Plainly, it did not.

   Even assuming that the majority’s interpretation of § 5K2.13(2)
was supportable, its application of this section to the facts of this case
is not. There was nothing "volatile" about Riggs’s arrest. Riggs nei-
ther moved nor spoke during the police officer’s initial encounter with
him. Riggs was already holding his jacket when the officer first
approached him, diminishing any inference that Riggs intended to

to another," U.S.S.G. § 4B1.2(a), then the offense was not "non-violent"
and a diminished capacity departure was precluded. This court and the
D.C. Circuit held that whether an offense is "non-violent" under
§ 5K2.13 is not controlled by whether it is a "crime of violence" — an
offense could be both a crime of violence and a non-violent offense.
Weddle, 30 F.3d at 540; Chatman, 986 F.2d at 1450. In 1998, the Com-
mission amended § 5K2.13 to resolve this conflict. See U.S.S.G. app. C,
amend. 584 (1998).
   6
     The majority apparently views lenity as a consequence of the applica-
tion of § 5K2.13, rather than as the guideline’s purpose. Yet in Weddle,
we relied on this purpose to interpret the term "non-violent" — the pre-
decessor of the phrase "actual violence or a serious threat of violence."
To interpret a section of § 5K2.13 without regard to the guideline’s over-
all purpose is not only inconsistent with our decision in Weddle, it is con-
trary to our rules of statutory construction. See United States v. Nat’l
Ass’n of Sec. Dealers, Inc., 422 U.S. 694, 720 (1975) ("[W]e must inter-
pret the [statute] in a manner most conducive to the effectuation of its
goals."); United States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995) ("[I]n
statutory interpretation, nothing is better settled than that statutes should
receive a sensible construction, such as will effectuate the legislative
intention . . . .") (internal quotations omitted).
                        UNITED STATES v. RIGGS                        13
communicate a threat by clutching his jacket. After additional officers
arrived and the police officer repeated his order to step out of the car,
Riggs complied without incident. The record does not suggest that
Riggs was anything but submissive after exiting his vehicle.

   In addition, even if the fact that Riggs was clutching his jacket was
an indication of potential danger, I fail to see how any such danger
was "impending." An impending danger is a danger that is "about to
happen." WEBSTER’S II NEW RIVERSIDE DICTIONARY 349 (1984). Riggs
was clutching his jacket, not his firearm. As the majority notes, Riggs
was afraid that "people were trying to hurt him." Ante at 6. Far from
suggesting, "if anything, that Riggs was prepared to use the firearm,"
id., the circumstances of Riggs’s offense suggest that he was para-
lyzed from fear and that, consistent with the district court’s findings,
he "did not possess any real intent to cause physical harm." United
States v. Walter, 256 F.3d 891, 895 (9th Cir. 2001) (reversing district
court finding that defendant’s written threats constituted "serious
threat of violence" because defendant lacked intent to follow through
with threats).

   Consequently, I believe that the facts and circumstances of the
instant offense plainly demonstrate that Riggs’s possession conviction
did not involve a serious threat of violence. I next consider the major-
ity’s conclusion that the instant offense indicates a need to incarcerate
Riggs to protect the public.

                                   B.

   The majority holds that the district court committed clear error in
finding that the facts and circumstances of Riggs’s offense do not
indicate a need to protect the public. It reaches this conclusion "be-
cause Riggs may discontinue his medication in the future (and has
done so in the past)." Ante at 7 (emphasis added). This holding trans-
gresses the clear error standard of review.

   The facts before the district court were these: Riggs was on pre-
sentence release for almost two years and had taken his medication
throughout. His mother stated that she reminded Riggs daily to take
his medication. Riggs emphasized to the court that he wanted to con-
tinue taking his medication, an intent that his consulting clinical psy-
14                      UNITED STATES v. RIGGS
chologist believed. Moreover, after Riggs’s arrest, his treating
physician started Riggs on an injected medication in addition to the
oral medication he had previously been prescribed. These injections
remained in Riggs’s blood stream for one month, thus assuring that
Riggs would be at all times medicated, even if he forgot or refused
to take his pills. The district court credited each of these facts and
held that Riggs’s mental condition was "under control, that you have
been taking your medication, your mother is making sure, and [your]
treating physician is making sure you take your medication." J.A. at
27.

   The parties agree that the cause of Riggs’s instant offense was his
failure to take his medication for two or three days prior to the date
of his arrest. This is the only factual basis for the majority’s conclu-
sion that Riggs might cease taking his medication, and it relies on this
fact only parenthetically. However, at the time, he was only taking
oral medication. The additional injections were added to his medical
regimen after the instant offense, presumably to prevent another
relapse. Thus, the relevance of Riggs’s prior failure to take his oral
medication is considerably diminished. Aside from this fact, the
majority’s conclusion is pure speculation. Although the majority sees
"no adequate assurance in the record" that Riggs would continue his
treatment, it is difficult to imagine what more it would require. The
record both amply supports the district court’s holding and makes
doubtful that of the majority.

   But even if there were a basis in the record for the majority’s hold-
ing, the district court’s factual determination would still be a permis-
sible interpretation of the record. Although the Supreme Court has
indicated that a factual finding is clearly erroneous when "the review-
ing court on the entire evidence is left with the definite and firm con-
viction that a mistake has been committed," the Court stressed that
such a standard "does not entitle a reviewing court to reverse the find-
ing of the trier of fact simply because it is convinced that it would
have decided the case differently." Anderson v. City of Bessemer City,
470 U.S. 564, 573 (1985) (internal quotations omitted). The clear
error standard is not concerned with the certainty of an appellate court
regarding its own view of the facts. Id. at 573-74. "Where there are
two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous." Id. at 574 (emphasis
                         UNITED STATES v. RIGGS                         15
added). In my opinion, the majority reaches its holding through an
improper application of this standard.

                                   III.

   Because the district court’s downward departure was appropriate
under § 5K2.13(2), I also address whether Riggs’s "criminal history
indicates a need to incarcerate [him] to protect the public." U.S.S.G.
§ 5K2.13(3). I agree with the district court that it does not.

   Riggs was convicted in 1997 of possession with intent to distribute
a controlled substance and possession of a short-barreled shotgun. At
the time of his arrest, Riggs was not carrying the shotgun; it was
recovered in a subsequent search of his home. According to Riggs’s
psychiatrist, Riggs’s mental condition began to assert itself approxi-
mately two years prior to this first arrest. Riggs did not receive any
psychiatric treatment until after his arrest.

   When considered together with the facts of the instant offense, the
district court plausibly concluded that Riggs would not engage in
unlawful activity while medicated. The flaw in his previous treatment
program — exclusive reliance on oral medication — had been cor-
rected. Moreover, Riggs expressed commitment to his psychiatric
treatment, and his mother stated that she will supervise her son’s med-
ication. Thus, for substantially the same reasons that the facts and cir-
cumstances of the instant offense do not indicate a need to incarcerate
Riggs to protect the public, the district court did not err in finding that
Riggs’s criminal history does not indicate that he poses a threat to the
public. See, e.g., United States v. Brown, No. 96 CR 451, 1997 WL
786643, at *6-7 (N.D. Ill. 1997) (finding defendant’s fourteen prior
arrests and five convictions did not indicate need for incarceration
where defendant was receiving proper treatment at sentencing and
"committed these acts when he was not properly treating his depres-
sion"); United States v. Speight, 726 F. Supp. 861 (D.D.C. 1989)
(finding defendant’s three narcotic convictions and firearm possession
conviction did not indicate need for incarceration because defendant
was receiving appropriate treatment for his illness at time of sentenc-
ing).
16                      UNITED STATES v. RIGGS
                                  IV.

   Because I believe the majority improperly interprets § 5K2.13, and
because the record amply supports the district court’s factual findings,
I would affirm the district court’s decision to depart from the applica-
ble guideline range. Accordingly, I dissent.
