Refusal to Depart for Diminished Capacity Upheld

United States v. Felix Valdez, Docket No. 04-3811-cr (2d Cir. Oct. 5, 2005) (Walker, Cardamone, Parker): There is little of interest in this largely fact-specific opinion, discussing the well-established contours of the diminished capacity departure under U.S.S.G. § 5K2.13. Valdez argues on appeal that the district court (Judge Duffy) “incorrectly applied the Guidelines by using the wrong legal standard when it denied a downward departure for dimished capacity.” Op. at 10. After reviewing the record of the sentencing proceeding, the Circuit disagrees and concludes that Judge Duffy, despite some questionable grumblings to the contrary, understood the nature of his departure authority under § 5K2.13.

The Court remands for a Crosby proceeding, however, since the sentencing occurred before Booker. (At which proceeding, one assumes, Valdez will simply convert his unsuccessful pitch for a § 5K2.13 departure into an equally unsuccessful argument for a below-the-Guidelines sentence pursuant to Booker and the Section 3553(a) factors. But one can always hope; the good Judge may enjoy a fine breakfast that morning and deliver rare leniency from the bench that afternoon).

The only legal issue of note is the Court’s conclusion that “a district court is not required to accept evidence concerning a defendant’s mental and emotional states offered by a defendant’s own expert, but rather may rely on its own assessment of defendant’s mental state based on its own assessment of the defendant’s mental state based upon its observations, even when they conflict with those of the expert.” Op. at 15. Judge Duffy thus did not err as a matter of law when he concluded, despite a psychiatrist’s report & testimony that Valdez had an IQ of 55 and a host of other mental ailments, that Valdez did not suffer from a “significantly reduced mental capacity” within the meaning of § 5K2.13. The judge’s factual finding on this point was also not clearly erroneous, the Circuit concluded, supported as it was by Judge Duffy’s observations of Valdez’s behavior in court as well as by the nature of the offense of conviction (a relatively sophisticated ruse ripping off the phone company).