244 F.3d 158 (D.C. Cir. 2001)
United States of America, Appelleev.Pili C. Greenfield, Appellant
No. 98-3133
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 23, 2000Decided April 6, 2001

Appeal from the United States District Court  for the District of Columbia  (No. 98cr00067-01)
Neil H. Jaffee, Assistant Federal Public Defender, argued  the cause for appellant.  With him on the briefs was A. J.  Kramer, Federal Public Defender.
Elizabeth Carroll, Assistant U.S. Attorney, argued the  cause for appellee.  With her on the brief were Wilma A.  Lewis, U.S. Attorney, and JJohn R. Fisher and Roy W. McLeese, III, Assistant U.S. Attorneys.  Mary-Patrice  Brown, Assistant U.S. Attorney, entered an appearance.
Before:  Edwards, Chief Judge, Rogers and Garland,  Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
Pili Greenfield pled guilty to the  charge of conspiring to possess with intent to distribute  cocaine base.  Greenfield asked the district court to depart  downward from the sentence required by the United States  Sentencing Guidelines (U.S.S.G.), asserting that he had committed the offense while suffering from significantly reduced  mental capacity.  The district court declined to grant the  requested departure.  Finding no error in the court's application of the Guidelines, we affirm.


2
* Greenfield was arrested during a January 1998 police raid  on a house in which cocaine base was being packaged for sale. A grand jury initially indicted him for possession with intent  to distribute 50 grams or more of cocaine base, in violation of  21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii).  Greenfield later  pled guilty to a superseding information charging him with  conspiracy to possess with intent to distribute cocaine base, in  violation of 18 U.S.C.  371.


3
Pursuant to Federal Rule of Criminal Procedure 32(b)(1),  the United States Probation Office submitted a presentence  report (PSR) to the court.  The report concluded that, under  the Sentencing Guidelines, the applicable sentence in Greenfield's case was 60 months' imprisonment.1  Greenfield filed a  memorandum seeking a downward departure from the guideline sentence on the ground that he suffered from significantly reduced mental capacity, pursuant to U.S.S.G.  5K2.13. According to the memorandum, Greenfield suffered from  depression, which contributed to his participation in the drug  conspiracy.  Def.'s Mem. in Aid of Sentencing at 7.


4
At the sentencing hearing, Greenfield called as his only  witness Dr. Clark Hudak, a Ph.D. in clinical social work and  the director of a drug treatment program.  Hudak had  previously treated Greenfield in 1995-96, and reexamined him  in April 1998 at the request of defense counsel.  A copy of  Hudak's written report was also admitted into evidence.


5
Hudak testified that when he first saw Greenfield in 1995,  he diagnosed him as suffering from depression.  At the same  time, Hudak learned that Greenfield was using marijuana  heavily.  Hudak consulted with a staff psychiatrist who confirmed the diagnosis of depression and placed Greenfield on  medication.  Sentencing Hr'g Tr. at 21.  After nine months to  a year of therapy, Hudak found that Greenfield was responding "pretty well" and discharged him from the treatment  program.  Id. at 22.


6
Hudak testified that he did not see Greenfield again until  April 1998, three months after his arrest.  Id. at 25.  Greenfield told Hudak that he had stopped taking his medication  soon after leaving the treatment program in 1996, and that he  had quickly resumed using drugs.  Id. at 25-26.  Hudak's  "impression ... was that [Greenfield] was still suffering from  a depression[, and] that he was also addicted to marijuana  and cocaine."  Id. at 30.  Hudak testified that "when a person  gets ... depressed," he can "get involved in very selfdestructive behaviors," and that "knowing his history, I believe that's the direction that [Greenfield] went until he was"  arrested.  Id. at 26.


7
On cross-examination, Hudak testified that "in some cases,  if a depression is severe enough, ... it can impair one's  capacity" and "could significantly reduce someone's mental  capacity."  Id. at 31-32.  Hudak conceded, however, that he  had "no idea" what Greenfield's "mental condition was in  January of 1998."  Id. at 33.  Hudak further testified that Greenfield's drug use was voluntary, id. at 31, that once he  stopped taking his medication it was predictable that Greenfield "would return to drugs as a way to self medicate for his  depression," id. at 33, and that his use of drugs was "a  contributing factor to his reduced mental state."  Id. at 34.


8
After the parties completed their examinations, the district  court undertook its own inquiry.  The court asked Hudak to  explain the various degrees of depression and their associated  treatments, and to relate them to defendant's condition.  Id.  at 35-38.  Hudak said that when he saw Greenfield in 199596, he did not recommend the kind of treatment, including  hospitalization, that would be indicated for severe depression. Id. at 37-38.  After further probing by the court, Hudak  described Greenfield's depression as "moderate."  Id. at 39.


9
At the conclusion of the sentencing hearing, the district  court denied Greenfield's request for a departure under   5K2.13.  "[T]here is simply no basis to depart," the court  said.  "With respect to this matter of depression[,] ...  viewed ... in the most favorable light, ... the testimony  actually given by [Hudak] mandates that the court not take  into consideration diminished capacity."  Id. at 52.  The court  imposed the 60-month guideline sentence, with accompanying  recommendations that Greenfield be placed in a "boot camp,"  rather than a typical prison facility, and that he be permitted  to enter a drug treatment program.  Id. at 54.

II

10
This court may review a district court's refusal to depart  downward from an applicable guideline range only to determine whether the sentence was imposed "in violation of law"  or "as a result of an incorrect application of the sentencing  guidelines."  18 U.S.C.  3742(a)(1), (2);  see United States v.  Leandre, 132 F.3d 796, 800 (D.C. Cir. 1998);  United States v.  Sammoury, 74 F.3d 1341, 1343 (D.C. Cir. 1996).  We must  "accept the findings of fact of the district court unless they  are clearly erroneous," and "give due deference to the district  court's application of the guidelines to the facts."  18 U.S.C.   3742(e).  If a district court refuses to depart because it "mistakenly believes [it] lacks authority to do otherwise," its  sentencing decision is reviewable as an incorrect application  of the Guidelines.  Sammoury, 74 F.3d at 1344.  If the court  "correctly understands [its] discretionary authority to depart  downward when a particular mitigating circumstance exists,  [but] make[s] a clearly erroneous factual finding that the  circumstance does not exist," the resulting sentence may also  have been imposed as a result of an incorrect application of  the Guidelines.  Id. at 1344;  see Leandre, 132 F.3d at 800.


11
The relevant version of U.S.S.G.  5K2.13, which is entitled  "Diminished Capacity," provides:


12
If the defendant committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants, a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense, provided that the defendant's criminal history does not indicate a need for incarceration to protect the public.


13
U.S.S.G.  5K2.13, p.s. (1997).2  As we have previously noted,  this guideline contains five eligibility criteria.  A district court  may depart downward under  5K2.13 if the defendant:  "(1)  has committed a non-violent offense, (2) while suffering from  'significantly reduced mental capacity,' (3) that was not  caused by the voluntary use of [drugs or] other intoxicants,  (4) where the defendant's mental incapacity 'contributed to  the commission of the offense,' (5) so long as the defendant's  criminal record does not indicate a need for imprisonment to  protect public safety."  Leandre, 132 F.3d at 800.


14
There is no question that the district court understood that  it had discretion to depart under  5K2.13 if each of the five  criteria were met.3  Defendant contends, however, that the  court "failed to consider ... Greenfield's individualized facts  and circumstances in weighing his diminished capacity departure request," and that "there is nothing in th[e] record to  indicate that the district court determined whether the requirements for a  5K2.13 departure had been met."  Greenfield Br. at 9.  Neither charge is true.  The court heard  extensive testimony regarding defendant's individual facts  and circumstances, and personally examined the expert witness about Greenfield's psychological condition.  Following  the testimony, the court concluded, on the record, that the  requirements for application of  5K2.13 had not been met. See Sentencing Hr'g Tr. at 52.


15
Greenfield also argues that the district court misunderstood  the law regarding the third and fourth criteria for departure  under  5K2.13.  In support, he relies on the judge's statement that Hudak's testimony "mandates that the court not  take into consideration diminished capacity."  Id. at 52.  According to defendant, the court was "apparently referring to  testimony by the defense expert that Greenfield was addicted  to drugs," and wrongly concluded that such an addiction  required the court to deny a departure.  Greenfield Br. at 56.  Citing United States v. Leandre, Greenfield argues that as  long as reduced mental capacity did not itself "result[ ] from  voluntary use of drugs," a "departure under section 5K2.13  might remain available if a defendant's drug use contributed  only in part to a crime, because his mental infirmity may have  also played a role."  132 F.3d at 806. Greenfield asserts that  Hudak's testimony met these requirements, and that in failing to comprehend them, the district court misapplied the  guideline's third criterion (regarding voluntary drug use), as  well as its fourth (regarding the contribution of defendant's  mental capacity to the commission of the offense).


16
We need not dwell on whether Hudak's testimony satisfied  the third and fourth criteria of  5K2.13, however, because  there is nothing in the district court's statement to suggest  that its decision was based on those criteria--or on Hudak's  testimony regarding drug use at all.  The court did not  specify which criteria defendant failed, and there is no reason  to assume it was referring to these two.  As we have stressed  before with respect to refusals to depart, "the appellant ...  has the initial responsibility to ensure that the district court  explains its reasoning for the record, and appellant neglected  that responsibility when he failed to object to the district  court's ruling.  Under these circumstances, we assume 'that  the district court kn[ew] and applie[d] the law correctly'...." United States v. Pinnick, 47 F.3d 434, 439 (D.C. Cir. 1995)  (quoting United States v. Garcia-Garcia, 927 F.2d 489, 491  (9th Cir. 1991)).


17
In any event, in this case it is clear that the sentencing  court's focus was not on the testimony regarding Greenfield's  drug use and its relation to the third and fourth criteria, but  rather on Hudak's testimony about Greenfield's mental condition and its relation to the second criterion of  5K2.13:  the  requirement that the defendant have committed the offense  while suffering from "significantly reduced mental capacity." Greenfield's evidence failed to demonstrate that his mental  capacity was significantly reduced, and that it was significantly reduced at the relevant time.


18
A diagnosis of depression, alone, does not establish that a  defendant suffered from "significantly reduced mental capacity" under  5K2.13.  See United States v. Watkins, 179 F.3d  489, 500 (6th Cir. 1999) (affirming refusal to depart where,  although defendant introduced evidence that he suffered from  "depressive disorder," no evidence "reflected his alleged diminished capacity");  see also United States v. Withers, 100  F.3d 1142, 1148 (4th Cir. 1996) (same);  cf. United States v.  Edwards, 98 F.3d 1364, 1371 (D.C. Cir. 1996).  Nor is the  guideline satisfied even by testimony that the depression  manifested itself in "reduced" mental capacity.  Rather, the  words of the guideline require evidence that the defendant's  mental capacity was "significantly" reduced.  U.S.S.G.   5K2.13;  see United States v. Webb, 49 F.3d 636, 639 (10th  Cir. 1995) (reversing  5K2.13 departure where, although  defendant's psychiatric reports documented a history of mental problems, "they do not address or lead to the conclusion  that defendant suffered from 'significantly reduced mental  capacity' ");  see also United States v. Frazier, 979 F.2d 1227,  1230 (7th Cir. 1992) (same).  Moreover, defendant's mental  capacity must have been significantly reduced at the time he  committed the offense.  See United States v. White, 71 F.3d  920, 929 (D.C. Cir. 1995);  Frazier, 979 F.2d at 1230.


19
The sentencing court's own examination of Hudak makes  clear that its focus was on Greenfield's claim of significantly  reduced mental capacity, rather than on the implications of  his drug use.  The court did not ask Hudak a single question  about drug use.  Rather, it inquired extensively into the  nature and severity of Greenfield's mental disorder, and  asked Hudak to explain what the treatment prescribed for  defendant indicated about the level of severity.  Sentencing  Hr'g Tr. at 35-39.  In response, Hudak categorized Greenfield's depression as "moderate," id. at 39, and testified that  the consulting psychiatrist had prescribed an antidepressant,  id. at 22, characterized by the PSR as "mild," PSR p 41. Nothing in Hudak's response to the court's inquiries would  have supported a finding of "significantly" reduced mental  capacity.


20
Nor was there anything in Hudak's direct or crossexamination testimony that would have supported such a  finding.  Although Hudak testified that "in some cases, if a  depression is severe enough, ... it can impair one's capacity"  and "could significantly reduce someone's mental capacity,"  Sentencing Hr'g Tr. at 31 (emphasis added), he never testified that this was so in Greenfield's case.  To the contrary, he  testified that Greenfield's depression was only moderate, "on  a scale of mild at the least, moderate in the middle, and then  severe."  Id. at 39.  Moreover, Hudak failed altogether to  offer an opinion about Greenfield's mental condition at the  time of the offense, conceding that he had "no idea ... what  [Greenfield's] mental condition was in January of 1998."  Sentencing Hr'g Tr. at 33.


21
Hudak's written report was equally deficient.  Although  the report stated that "Greenfield suffers from a depressive  disorder" and that without proper treatment his judgment  "becomes impaired," App. 36, Hudak did not indicate the  severity of that impairment nor tie it to an evaluation of  Greenfield's mental capacity.  Indeed, the contents of the  report cut strongly against a finding of significantly reduced  mental capacity.  Hudak reported that:


22
[Greenfield] seemed to be experiencing mild anxiety related to his pending legal matters.  He was oriented [as] to person, place and time, and there was no evidence of any psychotic behavior past or present.  His recent and remote memory were intact;  his thinking was clear and organized;  and he seemed to be functioning at an above average level of intelligence.  There was clear evidence of tendencies toward impulsivity;  however, he appeared to not be at risk for suicidal or homicidal behavior.


23
Id. at 35.  Whether or not this description necessarily precludes a finding of diminished capacity, it surely does not  support such a finding, and there is no evidence in the record  that does.  Moreover, like his testimony, Hudak's report does  not even venture a guess as to Greenfield's mental capacity  on the day he committed the crime.


24
In light of the clear focus of the district court's questioning  of Hudak, and of the content of his testimony, we have no  doubt that the court's reference to "the testimony actually  given" was a reference to Hudak's testimony regarding defendant's mental capacity.  For the same reason, it is clear that  the court's conclusion, that Hudak's testimony "mandates that  the court not take into consideration diminished capacity,"  expressed its view that the expert had failed to say anything  that would have permitted a departure for diminished capacity under  5K2.13.  Given the complete dearth of evidence to  meet  5K2.13's second criterion, there was nothing "incorrect" about the court's conclusion, 18 U.S.C.  3742(a)(2). See Frazier, 979 F.2d at 1230 (vacating departure where,  although mental health evaluation diagnosed defendant as  having depression, it did not "conclud[e] that the defendant  'suffered from significantly reduced mental capacity' when  she committed her offense");  see also Webb, 49 F.3d at 639  (same);  cf. Leandre, 132 F.3d at 803 (noting that "a bare  showing of reduced mental capacity, without more, is insufficient to authorize a court to depart," and that "[a]bsent some  causal link, the sentencing judge would misapply the Guidelines by granting a departure");  United States v. Cantu, 12  F.3d 1506, 1511 (9th Cir. 1993) (noting that "a defendant  bears the burden of proving the appropriateness of a downward departure").

III

25
The district court neither misapprehended its authority  under, nor otherwise misapplied, the Sentencing Guidelines. Accordingly, the judgment of that court is


26
Affirmed.



Notes:


1
 Based on Greenfield's offense level and criminal history, the  PSR determined that the applicable guideline range was 87-108  months.  PSR p 56.  However, because 18 U.S.C.  371 authorized  a maximum sentence of only 60 months, and because that sentence  was less than the minimum of the applicable guideline range,  U.S.S.G.  5G1.1(a) dictated that the court apply the 60-month  sentence.  See PSR p 56.


2
 Amendments to  5K2.13, effective November 1998 (after  Greenfield was sentenced), clarified the conditions for a departure  under the guideline as well as the meaning of "significantly reduced  mental capacity."  See U.S.S.G.  5K2.13 & comment., n.1 (1998); U.S.S.G. app. C, amend. 583.  Neither party urges application of  the revised guideline or suggests that it would have any effect on  the disposition of this appeal.


3
 Defendant's appellate briefs do not dispute this point, and the  entire focus of the sentencing hearing was on whether the criteria  were met.  Although, as discussed below, the district court concluded that Hudak's testimony "mandates that the court not take into  consideration diminished capacity," Sentencing Hr'g Tr. at 52 (emphasis added), in context it is clear that the court used the word  "mandates" to indicate that  5K2.13's criteria were not met.  Indeed, the court prefaced its conclusion with an equivalent formulation:  "[T]here is simply no basis to depart."  Id. at 52.  See United  States v. Shark, 51 F.3d 1072, 1077 (D.C. Cir. 1995) (holding that  judge's statement, that "I don't see any basis on what I've heard so  far that gives me any leeway," indicated "that the judge appreciated  his discretion [to depart] but thought that he had not been presented with any reason to exercise it").


