United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                 Nos. 04-3667/3851
                                   ___________

United States of America,             *
                                      *
            Appellee/Cross-Appellant, *
                                      * Appeals from the United States
      v.                              * District Court for the
                                      * District of North Dakota.
Patrick Timothy McMorrow,             *
                                      *       [PUBLISHED]
            Appellant/Cross-Appellee. *
                                ___________

                          Submitted: January 6, 2006
                              Filed: January 30, 2006
                                   ___________

Before BYE, McMILLIAN,1 and RILEY, Circuit Judges.
                             ___________

RILEY, Circuit Judge.

       A ten-person jury found Patrick Timothy McMorrow (McMorrow) guilty of
mailing threatening communications, in violation of 18 U.S.C. § 876(c); extortion, in
violation of 18 U.S.C. § 876(b); and threatening the use of a weapon of mass
destruction, in violation of 18 U.S.C. § 2332a(a)(2). At sentencing, the district court
granted McMorrow’s downward-departure motion and sentenced him to concurrent
prison terms of 120 months, 140 months, and 140 months, respectively, and to three
years’ supervised release. McMorrow appeals his conviction and sentence, asserting

      1
       The Honorable Theodore McMillian died on January 18, 2006. This opinion
is being filed by the remaining judges of the panel pursuant to 8th Cir. Rule 47E.
he did not freely and voluntarily waive his right to a jury of twelve persons.
Specifically, McMorrow maintains he feared the possibility of future incarceration
with inadequate medical attention if he did not stipulate to a jury of fewer than twelve
persons. Additionally, citing Blakely v. Washington, 

(2004), and United
States v. Booker, 

(2005), McMorrow requests remand for resentencing
under the now advisory Guidelines. The government cross-appeals the district court’s
decision to depart downward. We affirm the conviction, but reverse and remand for
resentencing.

I.     TWELVE-PERSON JURY WAIVER
       The right to a twelve-person jury may be waived, and indeed McMorrow
stipulated in writing and orally the trial could proceed with fewer than twelve jurors.
See Fed. R. Crim. P. 23(b)(1) (jury consists of twelve persons), (b)(2) (at any time
before verdict, parties may, with court’s approval, stipulate in writing that jury may
consist of fewer than twelve persons). There is nothing to suggest McMorrow’s
stipulation to a jury of fewer than twelve persons was either coerced or involuntary.
The district court repeatedly advised McMorrow that he was not required to agree to
a jury of ten persons and that he could have his detention order reviewed by the trial
judge if he so desired. See United States v. Reyes, 

, 71-72 (9th Cir. 1979)
(holding that at time of defendant’s oral stipulation to jury of fewer than twelve
persons, district court should question defendant to determine if stipulation was made
knowingly and intelligently). McMorrow’s motivation to waive a twelve-person jury
because he was incarcerated and not receiving desired medical care does not
undermine the voluntariness of his stipulation. See United States v. Dalman, 

, 539 (8th Cir. 1993) (holding trial judge’s statement to defendant with medical
issues during plea hearing, that pleading not guilty would necessitate continued
detention for the weekend, did not render defendant’s guilty plea involuntary; “[i]f
[defendant] pled guilty on the strength of the possibility that he would leave federal
custody sooner, he chose to exercise an option that we are unwilling to disturb now



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in absence of evidence that [defendant] entered his plea in a manner that was not
voluntary”). Thus, we affirm the conviction.

II.     SENTENCING
        A.    Booker Error
        McMorrow’s Blakely and Booker challenge to his sentence is valid. The
district court erred in sentencing McMorrow under a mandatory Guidelines regime,
see Booker, 543 U.S. at ___, 125 S. Ct. at 756-57 (holding Guidelines to be only
advisory), and McMorrow preserved this issue at sentencing. We thus review for
harmless error. See United States v. Haidley, 

, 644-45 (8th Cir. 2005).
We are left with grave doubt as to whether the error was harmless. Although the
district court sentenced McMorrow well below the Guidelines range and noted that
if the Sentencing Guidelines were later found to be unconstitutional, the court would
impose the same sentence, the court also added that under an advisory scheme, the
court would sentence McMorrow “to at least ten years.” It is unclear the district court
would have given the same sentence under an advisory system. See 

vacate the sentence and remand for resentencing in light of Booker.

      B.     Departures
      As to the government’s cross-appeal, we review de novo the district court’s
decision to depart from the Guidelines, see United States v. Rodriguez, 

,
847 (8th Cir. 2005), and review a district court’s factual findings for clear error, see
United States v. Flores, 

, 763 (8th Cir. 2003). We conclude none of the
reasons given by the district court provided a permissible ground for departure.

       First, the district court erred in finding McMorrow suffered from diminished
capacity warranting departure under U.S.S.G. § 5K2.13. The court identified no basis
for its conclusions regarding McMorrow’s mental problems, stating only that
McMorrow suffered from psychiatric problems and a “defiant personality” that
hindered his ability to make reasonable decisions. These conditions do not meet the

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section 5K2.13 definition of “significantly reduced mental capacity.” See U.S.S.G.
§ 5K2.13 cmt. n.1 (defining “significantly reduced mental capacity” as significantly
impaired ability to understand the wrongfulness of offense behavior, exercise power
of reason, or control behavior defendant knows is wrongful); see also U.S.S.G.
§ 5H1.3 (“[m]ental and emotional conditions are not ordinarily relevant in
determining whether a departure is warranted, except as provided in Chapter Five,
Part K, Subpart 2”); cf. United States v. McCart, 

, 878 (8th Cir. 2004)
(finding no support for diminished capacity departure where district court relied on
doctor’s report that diagnosed the defendant with depression and anxiety, and the
evidence showed the defendant realized his wrongful conduct).

       The district court also departed, in part, due to McMorrow’s lack of serious
intent to harm. We view this as a U.S.S.G. § 5K2.11 departure. See U.S.S.G.
§ 5K2.11, p.s. (providing for departure where offense “conduct may not cause or
threaten the harm or evil sought to be prevented by the law proscribing the offense at
issue”); see also United States v. Dyck, 

, 741-42 (8th Cir. 2003)
(construing district court’s downward departure based on defendant’s intent as
departure under section 5K2.11). McMorrow’s lack of intent did not provide a
permissible basis for departure, because the intent to carry through on a threat is not
an element of any of his crimes of conviction. See 18 U.S.C. §§ 876(b)-(c), and
2332a(a)(2); 

(holding Dyck’s purported lack of criminal intent
when illegally reentering the United States was an invalid basis for granting a
departure, because “[t]he statute Dyck violated [made] no reference to the purpose for
which [Dyck] entered the country”); see also United States v. Koski, 

,
817 (8th Cir. 2005) (rejecting argument that section 876(c) contains any specific intent
element); United States v. Guevara, 

, 258 (5th Cir. 2005) (holding for
section 2332a purposes, the “threat need not be credible”), cert. denied, No. 05-7643,

(U.S. Jan. 9, 2006).




                                          -4-
       The district court also based its departure on its finding the trial evidence
demonstrated “few” people, other than individuals in the Governor’s office, took
seriously the threatening letters McMorrow sent, which comprised the offense
conduct. The conduct of the recipients belies this conclusion: they forwarded the
letters to law enforcement authorities, who in turn investigated and interviewed
McMorrow. See 

(holding a downward departure based upon
facts not in record is not warranted).

      As for the district court’s reliance on the perceived unreasonableness of the
Guidelines sentence, the “exceptional circumstances” identified by the
court–McMorrow’s longstanding history and animosity toward the Fargo Police
Department, and his obsessive efforts to garner attention to a civil rights action he had
filed–offer no basis to take McMorrow’s case out of the “heartland” of applicable
Guidelines. See United States v. Wong, 

, 727-28 (8th Cir. 1997) (stating
Guidelines allow court to depart from prescribed sentencing range in exceptional
circumstances; finding departure from Guidelines range not warranted where court
gave no explanation as to why factor for departure took case out of “heartland”).

       Furthermore, we conclude the district court erred in relying on the uncertainty
as to whether the Sentencing Guidelines would ultimately be invalidated as a basis for
departure. This uncertainty existed in many, if not most, Guidelines cases at that time.
See 

.

       Finally, after examining each of the district court’s individual bases for
departure, “the resulting impact does not rise to the level of ‘extremely rare’” to take
this case outside of the heartland of the Guidelines, and the “aggregate [comes] to no
more than a sum of its insufficient parts.” See 

(quoting
United States v. Roberts, 

, 1056 (8th Cir. 2002) (reversing district
court’s departure decision where, of five factors considered to support departure, “[n]o



                                           -5-
factor was found to be exceptional, and the aggregation came to no more than a sum
of its insufficient parts”)).

       Given our holding, it is premature and unnecessary to address the government’s
argument regarding reasonableness under 18 U.S.C. § 3553(a). See United States v.
Love, 

, 829 (8th Cir. 2005) (stating the determination whether a sentence
outside the Guidelines range is warranted is committed “to the district court’s
discretion, at least in the first instance”).

III.  CONCLUSION
      We, therefore, affirm McMorrow’s conviction, but reverse and remand for
resentencing consistent with this opinion.
                       ______________________________




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