United States v. James Ernest Davis, 264 F.3d 813 (9th Cir. 2001). · Go Syfert
United States v. James Ernest Davis, 264 F.3d 813 (9th Cir. 2001). Cases Citing This Book View Copy Cite
29 citation events (29 in the last 25 years) across 1 distinct court.
Strongest positive: Bennett v. Islamic Republic of Iran (ca9, 2016-02-22)
Treatment trajectory · 2001 → 2026 · click a year to view as-of
2001 2013 2026
Top citers, strongest first. 19 distinct citers. How cited ↗
discussed Cited as authority (rule) Bennett v. Islamic Republic of Iran
9th Cir. · 2016 · signal: cf. · confidence medium
Cf. United States v. Davis, 264 F.3d 813, 816-17 (9th Cir. 2001) (so holding in the context of a district court’s silence regarding a requested downward departure under the United States Sentencing Guidelines). (2) There is no conflict between § 1610(g) and the 1955 Treaty of Amity between the United States and Iran, which requires that the United States respect the juridical status of Iranian companies, protect their property in accordance with international law, and not discriminate against them.
discussed Cited as authority (rule) Bennett v. Islamic Republic of Iran
9th Cir. · 2016 · signal: cf. · confidence medium
Cf. United States v. Davis, 264 F.3d 813, 816-17 (9th Cir.2001) (so holding in the context of a district court’s silence regarding a requested downward departure under the Sentencing Guidelines). (2) There is no conflict between § 1610(g) and the 1955 Treaty of Amity between the United States and Iran, which requires that the United States respect the juridical status of Iranian companies, protect their property in accordance with international law, and not discriminate against them.
cited Cited as authority (rule) United States v. Rafael Rodriguez
9th Cir. · 2004 · confidence medium
United States v. Romero, 293 F.3d 1120 , *960 1126 (9th Cir.2002); United States v. Davis, 264 F.3d 813, 815 (9th Cir.2001).
discussed Cited as authority (rule) United States v. Chance Rearden (2×) also: Cited "see"
9th Cir. · 2003 · confidence medium
See United States v. Pinto, 48 F.3d 384, 389 (9th Cir.1995) (holding that decisions to deny downward departure will be considered discretionary unless the court indicates that it could not do so as a matter of law); Davis, 264 F.3d at 817 (holding that the court’s silence regarding authority to depart is not sufficient to indicate belief that it lacked power to depart).
cited Cited as authority (rule) United States v. McDowell
9th Cir. · 2003 · confidence medium
United States v. Davis, 264 F.3d 813, 816-17 (9th Cir.2001); see also United States v. Ladum, 141 F.3d 1328,1344 (9th Cir.1998).
discussed Cited as authority (rule) United States v. Reyes-Castro (2×) also: Cited "see"
9th Cir. · 2002 · confidence medium
United States v. Davis, 264 F.3d 813, 815 (9th Cir.2001).
cited Cited as authority (rule) United States v. Ramirez-Bustamante
9th Cir. · 2002 · confidence medium
We review for abuse of discretion a district court’s decision regarding departure, see United States v. Davis, 264 F.3d 813, 815 (9th Cir.2001), and find none.
cited Cited as authority (rule) United States v. Flores-Lopez
9th Cir. · 2001 · confidence medium
United States v. Davis, 264 F.3d 813, 816 (9th Cir.2001).
discussed Cited as authority (rule) United States v. Medina-Hernandez
9th Cir. · 2001 · confidence medium
We may review the refusal to depart to ensure that it “was not guided by erroneous legal conclusions.” United States v. Davis, 264 F.3d 813, 815 (9th Cir.2001) (quoting Koon v. United States, 518 U.S. 81, 100 , 116 S.Ct. 2035 , 135 L.Ed.2d 392 (1996)); see also Ruiz, 241 F.3d at 1161-63 .
discussed Cited "see" United States v. Chang Guo You, United States of America v. Mi Ae Yim, AKA Mi Ae Pigman
9th Cir. · 2004 · signal: accord · confidence high
Even more tellingly, the court stated that, while “an argument can be made either way,” it felt that “in this district, for illegal harboring, persons who have people illegally employed, I don’t think that this is outside the ordinary case.” We have held that a “court’s silence regarding authority to depart is not sufficient to indicate that the court believed it lacked power to depart.” United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir.1991); accord United States v. Davis, 264 F.3d 813, 816-17 (9th Cir.2001).
cited Cited "see" United States v. Gonzalez-Huerta
9th Cir. · 2004 · signal: see · confidence high
See United States v. Davis, 264 F.3d 813, 815 (9th Cir.2001).
discussed Cited "see" United States v. Tobin
9th Cir. · 2003 · signal: see · confidence high
See United States v. Davis, 264 F.3d 813, 815-16 (9th Cir.2001) (concluding that the sentencing guidelines prohibit a departure based on reduced mental capacity where the district court finds that the defendant’s criminal history demonstrates a need for incarceration to protect the public).
cited Cited "see" United States v. Antonio Andrew Smith
9th Cir. · 2003 · signal: see · confidence high
See United States v. Davis, 264 F.3d 813, 815-16 (9th Cir.2001).
cited Cited "see" United States v. Urias-Salazar
9th Cir. · 2003 · signal: see · confidence high
See United States v. Davis, 264 F.3d 813, 815 (9th Cir.2001).
cited Cited "see" United States v. Gomez-Garcia
9th Cir. · 2003 · signal: see · confidence high
See United States v. Davis, 264 F.3d 813, 817 (9th Cir.2001).
cited Cited "see" United States v. Williams
9th Cir. · 2002 · signal: see · confidence high
See United States v. Davis, 264 F.3d 813, 815 (9th Cir.2001); United States v. Morales, 898 F.2d 99, 101-02 (9th Cir.1990).
discussed Cited "see" United States v. Banuelos
9th Cir. · 2002 · signal: see · confidence high
See United States v. Davis, 264 F.3d 813, 816-17 (9th Cir.2001) (stating that a district court’s silence regarding authority to depart is not enough to indicate that it believed it lacked power to depart).
discussed Cited "see" United States v. Moreno-Espinoza (2×)
9th Cir. · 2002 · signal: see · confidence high
See United States v. Davis, 264 F.3d 813, 815 (9th Cir.2001).
discussed Cited "see, e.g." United States v. Hill
9th Cir. · 2010 · signal: see also · confidence medium
See U.S.S.G. § 5K2.13; see also United States v. Davis, 264 F.3d 813, 815-16 (9th Cir.2001) (holding that courts lack discretion to depart downward under Section 5K2.13 if incarceration is needed “to protect the public”).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
James Ernest DAVIS, Defendant-Appellant
00-50238.
Court of Appeals for the Ninth Circuit.
Sep 4, 2001.
264 F.3d 813
2001 U.S. App. LEXIS 19600
2001 WL 1002160
Elizabeth A. Newman, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant., Michael J. Raphael, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.
Hug, Graber, Fletcher.
Cited by 21 opinions  |  Published
GRABER, Circuit Judge:

This appeal requires us to define the limits on a district court’s discretion to depart downward under U.S.S.G. § 5K2.13 because of a criminal defendant’s significantly reduced mental capacity when the court finds that the defendant’s criminal history demonstrates a need for incarceration to protect the public. We conclude that the United States Sentencing Guidelines prohibit a departure in those circumstances.

BACKGROUND

On January 30, 1998, Defendant James Ernest Davis robbed a bank in Beverly Hills, California, by handing a teller a withdrawal slip on which he had written: “This is a holdup.” After the robbery, a bank customer saw Defendant get on a bus. The customer notified the police, who arrested Defendant on the bus a few minutes later.

The January 30 robbery proved to be but one in a long string of similar robberies committed by Defendant. According to Defendant, he also had robbed banks on January 22, 24, and 27, 1998, and had made a failed attempt to rob another bank on January 22. Shortly before the 1998 robberies, Defendant had been released from custody after having served a five-year sentence for a separate bank robbery. Before that, Defendant had robbed yet another bank, for which he was sentenced to three years’ imprisonment.

Defendant has a long history of mental illness. He suffers from chronic schizophrenia, chronic depression, and other chronic mental disorders. He also has a history of substance abuse.

[*815] Following his arrest on January 30, 1998, Defendant pleaded guilty to one count of unarmed bank robbery, in violation of 18 U.S.C. § 2113(a). At sentencing, the district court departed downward for two reasons: (1) Defendant’s extraordinary military service; and (2) the fact that Defendant had not received the help that he needed to adjust to his freedom following his release from custody after his prior sentence for bank robbery. The court did not depart downward because of Defendant’s mental- condition. It recognized that Defendant suffered from an “extraordinary” mental disease, but found that Defendant’s substantial criminal history demonstrated a need for incarceration to protect the public and, thus, precluded a departure under U.S.S.G. § 5K2.13.

Defendant filed a timely notice of appeal. On appeal he argues that the district court erred when it concluded that it lacked authority to depart downward under U.S.S.G. § 5K2.13. He also contends that the district court erroneously declined to depart under U.S.S.G. § 5K2.0.

STANDARD OF REVIEW

We review departure decisions under a ‘“unitary abuse-of-discretion standard.’ ” Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 403, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990)). That “standard includes review to determine that the discretion was not guided by erroneous legal conclusions.” Id.

JURISDICTION

We have jurisdiction to review a district court’s determination regarding its authority to depart downward under the Guidelines, but we lack jurisdiction to review a discretionary denial of a downward departure. United States v. Lipman, 133 F.3d 726, 729 (9th Cir.1998).

DISCUSSION

1. Departure Under U.S.S.G. § 5K2.18

Section 5K2.13 of the United States Sentencing Guidelines authorizes a sentencing court to depart downward in certain circumstances because of a defendant’s significantly reduced mental capacity:

A sentence below the applicable guideline range may be warranted if the defendant committed the offense while suffering from a significantly reduced mental capacity. However, the couH may not depart belmv the applicable guideline range if (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 defendant’s criminal history indicates a need to incarcerate the defendant to protect the public. If a departure is warranted, the extent of the departure should reflect the extent to which the reduced mental capacity contributed to the commission of the offense.

U.S.S.G. § 5K2.13 (2000) (emphasis added).

The text of the guideline plainly prohibits a sentencing court from departing downward if it first finds that a circumstance identified in any one of the three prongs is present. In other words, if a sentencing court determines that (1) the defendant’s condition resulted from voluntary intoxication; (2) the present offense involved actual violence or a serious threat of violence, evidencing a need to[*816] protect the public; or (3) the defendant’s criminal history demonstrates a need to protect the public, then the court lacks authority to depart downward under U.S.S.G. § 5K2.13. See United States v. Bowe, 257 F.3d 336, 347 (4th Cir.2001) (holding that a district court lacks discretion to depart downward under § 5K2.13 when the court finds that the instant offense involved violence or a serious threat of violence).

In this case, the district court concluded that a factual finding that the circumstances of the third prong of § 5K2.13 were present eliminated its authority to depart downward under that guideline. As we have just held, that is a proper legal conclusion.

But Defendant also challenges the adequacy of the court’s underlying finding that his criminal history demonstrates a need to protect the public. The parties dispute whether the third prong requires a court to predict future crimes by the defendant, see 18 U.S.C. § 3553(a)(2)(C) (directing the sentencing court to impose a sentence that takes into account “the need ... to protect the public from further crimes of the defendant”), or whether it requires a court to predict future violence or the threat of violence. We need not resolve that question to decide this case, however, because Defendant’s criminal history demonstrates a need to protect the public from both.

First, Defendant’s criminal history establishes that he is a chronic bank robber, and it is permissible to infer that he will continue to rob banks in the future. Second, Defendant’s criminal history establishes that he has a propensity toward violent conduct during bank robberies as well as in other situations. He was convicted in 1975 of carrying a loaded firearm in public. In the same year, he was arrested for assault with a deadly weapon in an incident in which, while intoxicated, he fired a .22 caliber revolver at his brother-in-law, but missed. In 1978, Defendant was charged with assault and battery. In 1981, Defendant again was arrested for assault with a deadly weapon, after he kicked in the door of his ex-wife’s house, tried to cut her with a knife, and slashed another person in the face. In 1985, Defendant was arrested for battery on a peace officer, after the officer responded to a call about a fight involving Defendant. During the January 30, 1998, bank robbery, a teller saw the grip of a large-caliber semi-automatic pistol in Defendant’s waistband when Defendant raised his jacket to put the stolen money inside.

In short, the district court permissibly found that Defendant’s criminal history indicated a need to incarcerate him to protect the public—both from further bank robberies and from violence or the threat of violence. Before making that finding, the district court made the individualized determination required by United States v. Cantu, 12 F.3d 1506 (9th Cir.1993). Accordingly, the court correctly concluded that it lacked authority to depart downward under U.S.S.G. § 5K2.13.

2. Departure Under U.S.S.G. § 5K2.0

Defendant also argues that, even if a downward departure because of significantly reduced mental capacity was not available under § 5K2.13, the district court had discretion, alternatively, to depart downward under § 5K2.0, but incorrectly held as a matter of law that it lacked discretion to depart downward under § 5K2.0. The district court did not discuss its authority under § 5K2.0 at Defendant’s sentencing hearing.

We have “clearly stated that ‘[t]he court’s silence regarding authority to depart is not sufficient to indicate that the[*817] court believed it lacked power to depart.’ ” United States v. Davoudi, 172 F.3d 1130, 1134 (9th Cir.1999) (quoting United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir.1991)) (concluding that the fact that the district court did not address a particular factor did not mean the court had concluded that it lacked authority to depart under the circumstances). Here, the district court addressed only its authority to depart under § 5K2.13; the court was silent with regard to its authority to depart under § 5K2.0. That being so, under our precedents we must conclude that the district court held or assumed that it had authority, but simply declined to exercise its discretion to depart under § 5K2.0. There is, therefore, nothing further for us to review. We “may not review a district court’s discretionary decision refusing to depart from the Sentencing Guidelines.” Id. at 1133. In other words, we lack jurisdiction to review this argument.

AFFIRMED in part; DISMISSED in part.