In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3707

United States of America,

Plaintiff-Appellee,

v.

Todd Dyer,

Defendant-Appellant.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98 CR 176--Rudolph T. Randa, Judge.


Argued April 25, 2000--Decided June 8, 2000




 Before Posner, Chief Judge, and Easterbrook and Evans,
Circuit Judges.

 Posner, Chief Judge. The defendant was convicted
of mail fraud and related federal crimes arising
from his operation of a Ponzi scheme between 1991
and 1996, and was sentenced to 70 months in
prison. The scheme involved the sale of
securities in Dyer’s sham or nonexistent
corporations and imposed losses on its mostly
elderly victims of more than $2 million. The
appeal challenges the district judge’s refusal to
give Dyer a downward departure on the basis of
section 5K2.13 of the federal sentencing
guidelines, which provides that "a sentence below
the applicable guideline range may be warranted
if the defendant committed the offense while
suffering from a significantly reduced mental
capacity." A refusal to grant a downward
departure is unreviewable unless the refusal is
based on a legal error, e.g., United States v.
Thomas, 

, 873 (7th Cir. 1999), and
the legal error here, according to Dyer, is the
judge’s failure, once he found as he did that
Dyer had suffered from a serious mental illness
during the period in which the crime was
committed, to determine how far that mental
illness "contributed" to the crime and to reduce
Dyer’s sentence accordingly. Dyer is manic
depressive and had frequent manic episodes during
the five-year life of his Ponzi scheme. His
condition was undiagnosed and as a consequence he
did not take the drug that controls the condition
(lithium).

 Nothing in U.S.S.G. sec. 5K2.13 or the cases
construing it imposes the burden that Dyer faults
the district judge for not having shouldered. The
guideline is permissive rather than mandatory.
Even if the judge finds that the defendant
committed the offense while afflicted by a
significantly reduced mental capacity, he is not
required to reduce the defendant’s sentence; he
is merely authorized to do so, and his exercise
of that authority is unreviewable.

 All this is clear enough, and we write only
because of the confused discussion in the briefs
and at argument of the question whether section
5K2.13 requires the judge to determine, as a
precondition to granting a downward departure on
the basis of the defendant’s mental condition,
whether that condition was a "but for" cause of
his criminal conduct. A judge who thought the
guideline does require such a determination was
reversed in United States v. Ruklick, 

(8th Cir. 1990), and a number of opinions deny
the necessity for such a determination, e.g.,
United States v. Leandre, 

, 803 (D.C.
Cir. 1998); United States v. Cantu, 

,
1515 (9th Cir. 1993), though none in this
circuit. Some opinions deny that the defendant’s
mental condition must be the "sole cause" of his
criminal act, e.g., United States v. Aker, 

, 173-74 (1st Cir. 1999); United States
v. Goosens, 

, 702 (4th Cir. 1996), and
seem to think that this is the same thing as a
"but for" cause. E.g., United States v. 

, 12 F.3d at 1515. This equation, coupled
with the fact that the cases that deny the need
to show a but-for cause are equally insistent
that some causal connection be shown between the
defendant’s mental condition and his criminal
conduct, suggests a degree of confusion.

 "But for" causation is a very weak sense of
causation; in fact, it often falls short of the
meaning of "cause" in ordinary usage. It is poles
apart from "sole cause," as innumerable cases in
other areas of the law make clear. E.g., Greater
Rockford Energy & Technology Corp. v. Shell Oil
Co., 

, 401 (7th Cir. 1993); Farley v.
Nationwide Mutual Ins. Co., 

, 1334
(11th Cir. 1999); Fajardo v. Sun Alliance Ins.
Co., 

, 11 (1st Cir. 1999); Jones v.
Dunkirk Radiator Corp., 

, 23 (2d Cir.
1994). But for Dyer’s having been born, he
wouldn’t have operated a Ponzi scheme; but it
would be odd, in fact incorrect, to say that his
birth (or the birth of his parents or
grandparents) caused his crime. The significance
of a but-for cause (better termed a "necessary
condition" than a "cause") is that something that
is not even a but-for cause of the event that
we’re interested in is unlikely to hold the
slightest interest for us in evaluating,
altering, or otherwise dealing with that event.
If Dyer’s mental condition was not a but-for
cause of his crime, that is, if he would have
committed the crime even if he had been
completely sane at all times, then it is hard to
see how his mental condition is any more relevant
to his punishment than the color of his hair.
Nothing in the opinions that we cited in the last
paragraph indicates disagreement with this. If
there is no connection between the defendant’s
mental condition and his crime, there is no basis
for a punishment discount. United States v.
Frazier, 

, 1229-30 (7th Cir. 1992);
United States v. Sammoury, 

, 1346
(D.C. Cir. 1996).

 The principal objectives of criminal punishment
that guide the design and application of the
federal sentencing guidelines are retribution,
deterrence, and incapacitation. See 18 U.S.C.
sec.sec. 3553(a), (b); United States v.
Heffernan, 

, 1148 (7th Cir. 1994);
United States v. Rivera, 

, 949 (1st
Cir. 1993). Mental illness can bear on any of
these, and usually on more than one. It might for
example make it more difficult for a person to
comply with the law, and this could warrant a
judgment that a heavy sentence would not have a
significant deterrent effect on persons in the
defendant’s class, United States v. Poff, 

, 595 (7th Cir. 1991) (en banc)
(dissenting opinion); an insane person might be
completely undeterrable, although this is rare.
If as in Dyer’s case the mental illness is
treatable, this may argue that the incapacitative
objective of imprisonment would not be advanced
by a heavy sentence. But as a matter of logic
such a judgment would have to rest on a
determination that, had it not been for the
defendant’s mental illness, he would not have
committed the crime (or perhaps would have
committed a lesser crime). If the crime would
have occurred anyway, then curing the defendant’s
mental illness would not make him less likely to
commit future crimes. Nor would it make him less
deserving of retribution. He would be less
deserving of it if he would not have committed
the crime but for his mental illness, even if the
illness were untreatable, for whatever the
prognosis of a mental illness, a person who acts
under the effect of disease is not as evil, as
worthy therefore of punishment, as one who would
be law abiding were he not mentally impaired.

So there has to be some causal connection
between the defendant’s mental condition and his
criminal conduct in order to warrant a punishment
discount under any plausible set of penal goals.
Yet judicial reluctance to acknowledge a but-for
requirement in section 5K2.13 is a fact, and it
is a fact that, we think, reflects the
uncertainty that plagues efforts to determine the
causal effect of mental disease. It was this that
led the district court in United States v. Royal,

, 273 (D.D.C. 1995), to find that
the defendant’s "mental illness contributed at
least 1/3 to his commission of the book thefts."
Read literally, this doesn’t make sense; either
he would have committed the crime had he not been
mentally ill, or he would not have. What the
court undoubtedly was trying to say was that had
the defendant not been mentally ill, it is
somewhat less likely that he would have committed
the crime. This is not a denial of the
requirement of but-for causation, but an effort
to adjust the sentence to reflect the possibility
that the requirement was not satisfied. And with
that we have no quarrel. But if the judge finds
that the defendant would have committed the crime
anyway, there would be no possible justification
for reducing the sentence other than that the
judge felt sorry for the defendant--which would
be just the kind of ad hoc, unfocused sentencing
judgment that the guidelines seek to purge. Given
the length of time over which Dyer conducted his
Ponzi scheme, the elaborate planning that went
into it, and the purely episodic character of his
manic fits, it would have been surprising had the
judge found his illness to be a necessary
condition of his criminal activity and therefore
a possible mitigating factor in punishment.
 The determination of causality was in any event
the judge’s determination to make, not ours; so
our agreement with his determination is no more
relevant than our disagreement with it would be.
He committed no legal error in refusing to depart
downward, and the appeal is therefore

Dismissed.