No. 95-2638


UNITED STATES OF AMERICA,         *
                                  *
          Plaintiff-Appellee,     *   Appeal from the United
                                  *   States District Court
     v.                           *   for the Western District
                                  *   of Missouri.
PETER LAWRENCE MAYOTTE,           *
                                  *
          Defendant-Appellant.    *



                   Submitted:     January 9, 1996

                      Filed:     February 12, 1996


Before MAGILL, REAVLEY* and Hansen, Circuit Judges.


REAVLEY, Circuit Judge.


     Peter Lawrence Mayotte pleaded guilty to bank robbery in
violation of 18 U.S.C. § 2113(a). The district court1 accepted his
plea and sentenced him to 37 months imprisonment and 3 years of
probation.   Mayotte appeals the district court’s denial of his
motion for downward departure. We affirm.




     *
      The HONORABLE THOMAS M. REAVLEY, United States Circuit
     Judge for the United States Court of Appeals, Fifth
     Circuit, sitting by designation.
     1
      The Honorable Howard F. Sachs, United States District Court
for the Western District of Missouri.
                                I.


     On August 29, 1994, Mayotte entered the North American Savings
Bank in Gladstone, Missouri. He approached a teller and presented
her with a paper sack and a note which stated, "Give me 100's,
50's, 20's, no tricks, you have ten seconds or I’ll shoot
everybody." The teller placed currency and a dye pack into the
paper sack. Mayotte fled the bank to an awaiting taxicab. Before
reaching the cab, the dye pack exploded and Mayotte dropped the
money. Mayotte was arrested in the taxi on his way home.


       Mayotte suffered from bipolar affective disorder (manic
depression) and post-traumatic stress syndrome. Prior to the bank
robbery, Mayotte had voluntarily ceased taking lithium which had
been prescribed for his mental condition. He filed a motion for
sentence reduction under U.S.S.G. § 5K2.13, alleging that his
criminal conduct was the result of his diminished capacity. The
district court determined that the diminished capacity was a result
of Mayotte’s voluntary cessation of consuming his prescribed
medication and denied the motion. Mayotte asserts the court erred.
Because Mayotte was not eligible for the downward departure based
on diminished capacity, we affirm.


                               II.


     We review de novo the district court’s application of the
sentencing guidelines. United States v. Premachandra, 

,
348 (8th Cir. 1994). The guidelines and policy statements do not
apply to Mayotte’s situation. Section 5K2.13 of the United States
Sentencing Guidelines provides:


     If the defendant committed a non-violent offense while
     suffering from significantly reduced mental capacity not
     resulting from the voluntary use of drugs or other
     intoxicates, a lower sentence may be warranted to reflect
     the extent which reduced mental capacity contributed to

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     the commission of the offense, provided that the
     defendant’s criminal history does not indicate a need for
     incarceration to protect the public.


The first requirement in Section 5K2.13 is that the offense be
"non-violent." The phrase "non-violent offense" is not defined in
the guidelines. However, the term "crime of violence" is defined
in Section 4B1.2 of the sentencing guidelines. We believe that a
"non-violent offense" necessarily excludes a "crime of violence."2
This decision is consistent with a majority of the circuits who
have considered whether the terms "crime of violence" and "non-
violent offense" are mutually exclusive. United States v. Poff,

(7th Cir.)(en banc), cert. denied, 

(1991); United States v. Russell, 

, 517 (11th Cir.
1990), cert. denied, 

(1991); United States v.
Borrayo, 

, 94 (9th Cir. 1990); United States v. Rosen,

, 791 (3d Cir. 1990); United States v. Maddalena, 

, 819 (6th Cir. 1989); contra United States v. Weddle, 

, 537-40 (4th Cir. 1994); United States v. Chatman, 

, 1448-53 (D.C.Cir. 1993).


     Therefore, if Mayotte committed a "crime of violence" he is
not eligible for a "diminished capacity" reduction. Robbery is
specifically listed as a crime of violence in Application Note 2,
because robbery requires the "use, attempted use, or threatened use

     2

Mayotte asserts that in Premachandra, we adopted the district
court’s "surrounding facts and circumstances test" to determine
whether a crime was "non-violent." We disagree. In Premachandra
and later in United States v. Jackson, we chose not to decide the
question before us today, whether the terms "nonviolent offense"
and "crime of violence" are mutually exclusive, because in each of
those cases the district court had specifically found that the
offense was violent. Jackson, 

, 961 (8th Cir. 1995)(the
failure of Jackson to challenge the district court’s determination
that the offense was violent was fatal to his claim that he was
eligible for a downward departure); 

(because the offense was violent, and the district court so held,
we declined to address whether the terms were mutually exclusive).

                               -3-
of physical force against the person of another."      U.S.S.G. §
4B1.2; see 18 U.S.C. § 2113(a)(bank robbery requires a taking "by
force and violence, or by intimidation"). Mayotte’s commission of
the offense of bank robbery precludes any "diminished capacity"
reduction in his sentence.


     Affirmed.


     A true copy.


          Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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