F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            NOV 8 2004
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                            No. 04-4047
                                               (D. Ct. No. 02-CR-502-DKW)
 SURMAN MILLER,                                          (D. Utah)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, BRISCOE, and HARTZ, Circuit Judges.


      After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not be of material assistance in

the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.

34.1(G). The case is therefore submitted without oral argument.

      Appellant Surman Miller pleaded guilty to one count of sexual abuse of a

minor “within the Indian country” in violation of 18 U.S.C. §§ 2243(a) and

1153(a). On appeal, Mr. Miller challenges the District Court’s finding that it was


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
without authority to depart downward for diminished capacity pursuant to U.S.

Sentencing Guidelines Manual § 5K2.0 (2003) (“U.S.S.G.”) when a downward

departure is not permitted under U.S.S.G. § 5K2.13. We take jurisdiction under

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2) and AFFIRM.

                                I. BACKGROUND

      Mr. Miller entered a guilty plea on August 21, 2002 in a one-count

indictment for sexual abuse of a minor within Indian country. Mr. Miller’s prior

convictions placed him in criminal history category VI, which has a sentencing

range of 188 to 235 months. He subsequently filed a motion for downward

departure under U.S.S.G. § 5K2.0 on the grounds that his mental condition

reduced his culpability for the offense and was present to an exceptional degree

not contemplated by the diminished capacity guideline found at U.S.S.G. §

5K2.13. On March 1, 2004, the District Court denied Mr. Miller’s motion to

depart downward and sentenced him to 188 months in prison followed by a 36-

month term of supervised release. Mr. Miller timely appealed the District Court’s

finding that it had no authority to depart downward under § 5K2.0.

                                 II. DISCUSSION

A.    Jurisdiction

      This Court has jurisdiction to hear Mr. Miller’s appeal. Generally, “a

district court’s refusal to exercise its discretion and depart downward from the


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sentencing guidelines is not appealable.”    United States v. Sheehan , 

, 1215-16 (10th Cir. 2004). However, we have jurisdiction in this case

because the District Court unambiguously stated that it lacked discretion to depart

downward, and a District Court’s statement that it lacks the authority to depart

downward is sufficient to permit us to review its decision.     See id . (recognizing

that this Court “may exercise jurisdiction . . . in the very rare circumstance that

the district court states that it does not have any authority to depart . . . for the

entire class of circumstances proffered by the defendant”).

B.     Standard of Review

       The District Court’s interpretation of the Sentencing Guidelines is reviewed

de novo. Sheehan , 371 F.3d at 1216. However, de novo review is only

appropriate if the issue was properly raised below.     United States v. Ruiz-Gea ,

, 1185 (10th Cir. 2003). Failure to raise the issue below results in

review for plain error.   

Departures for “Diminished Capacity”

       Though mental and emotional conditions are not ordinarily relevant in

determining whether a downward departure is warranted,         see U.S.S.G. § 5H1.3,

Chapter 5, Part K, Subpart 2 of the Guidelines provide for certain exceptions,          see

portions of the Guideline provisions at issue in this appeal

provide the following: Section 5K2.13 establishes a “Diminished Capacity”


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departure, which allows a downward departure for defendants “suffering from a

significantly reduced mental capacity” that “contributed substantially to the

commission of the offense.” U.S.S.G. § 5K2.13. Section 5K2.0 states that mental

and emotional conditions of the defendant not otherwise accounted for “may be

relevant to [sentencing] only if such offender characteristic or other circumstance

is present to an exceptional degree.” U.S.S.G. § 5K2.0.

      In Mr. Miller’s motion for downward departure and at the sentencing

hearing, he argued that § 5K2.13 applies to cases where a “significantly reduced

mental capacity” contributed to the commission of the offense, while § 5K2.0

applied to all cases where a reduced mental capacity is “present to an exceptional

degree”–including cases where the condition contributed to the commission of the

offense. Mr. Miller argued that his reduced mental capacity, which contributed to

the commission of the offense, is “not merely ‘significant.’ It is statistically

‘exceptional’” and therefore he is eligible for a downward departure under §

5K2.0.

      The District Court rejected Mr. Miller’s argument. Without Tenth Circuit

authority on point, it found that § 5K2.13 and § 5K2.0 are mutually exclusive

provisions – that is, § 5K2.13 governs all cases in which reduced mental capacity,

no matter how severe, contributed to commission of the offense, while § 5K2.0

applies only when the defendant’s mental state is exceptional but it did not


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contribute to the commission of the offense. Therefore, because Mr. Miller

argued that his exceptional condition contributed to the commission of his

offense, the District Court found that it had no authority to grant a departure

under § 5K2.0.   1



      Two months after Mr. Miller’s sentencing hearing, we addressed this issue

in Sheehan . We held that “departures pursuant to U.S.S.G. § 5K2.13 are a subset

of departures allowed under § 5H1.3 based on mental and emotional conditions.

While other departure requests based on mental and emotional conditions may be

governed by § 5K2.0, diminished capacity claims are governed       solely by §

5K2.13.” 

(emphasis added). We held that a district

court has “no discretion to depart pursuant to § 5K2.0 based on diminished

capacity when such a departure was prohibited by the terms of § 5K2.13.”          

In other words, a defendant claiming that his reduced mental capacity

contributed to the commission of his offense may not circumvent the limitations

of § 5K2.13 by invoking § 5K2.0.     

In this case, therefore, the District

Court properly rejected Mr. Miller’s motion for downward departure pursuant to §

5K2.0.



      1
       The District Court also found that a downward departure was not
warranted under § 5K2.13 because Mr. Miller’s offense involved actual violence
and his criminal history indicated a need to incarcerate him to protect the public.
Mr. Miller has not appealed these findings of fact.

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      Contending with this precedent on appeal, Mr. Miller now argues that the

District Court misconstrued his argument below. He claims that his argument was

that his exceptional condition will somehow affect his punishment. Specifically,

he argues that his reduced mental capacity will cause him to be vulnerable to

victimization and that he will likely need to be segregated from the general prison

population. Because this is a proper basis for a downward departure under §

5K2.0, Mr. Miller argues, the District Court erred in finding that it had no

discretion to depart from the Guidelines.

      Despite Mr. Miller’s argument to the contrary, he did not raise this

circumstances-of-punishment issue to the District Court. The record reveals that

the only ground presented for Mr. Miller’s motion for downward departure was

the fact that his reduced mental capacity contributed to the commission of the

offense. In fact, the District Court expressly stated that diminished capacity was

“the only avenue” for downward departure argued by Mr. Miller. At the

sentencing hearing, Mr. Miller emphasized how his mental condition reduced his

culpability and “being able to reason, being able to foresee consequences of your

conduct, goes to the heart of ethical and moral culpability . . . and is directly

related to his commission of this offense.” Thus, the record clearly reflects the

fact that Mr. Miller’s sole argument for downward departure was based on his

diminished capacity in committing the offense.


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       Nevertheless, Mr. Miller points to a psychologist’s report that states that

his mental disorders “increase his vulnerability and the likelihood of

victimization.” Again, Mr. Miller did not move for downward departure on this

basis below and the District Court has no duty to infer legal arguments from facts

in the record. Cf. United States v. Chavez-Marquez     , 

, 262 (10th Cir.

1995) (recognizing that a district court has no duty to “propose legal theories sua

sponte and rule on them”).

       Because Mr. Miller did not raise his circumstances-of-punishment argument

below, we review the District Court’s failure to consider a departure on these

grounds pursuant to § 5K2.0 for plain error.     Ruiz-Gea , 340 F.3d at 1185.

Resolution of whether a downward departure is warranted under § 5K2.0 turns on

factual contentions. A factual dispute concerning the applicability of a particular

guideline not brought to the attention of the district court does not rise to the

level of plain error.   United States v. Yarnell , 

, 1137-38 (10th Cir.

1997). Accordingly, Mr. Miller is not entitled to relief from the District Court’s

failure to consider a downward departure based on the impact his mental health

conditions might have on the circumstances of his incarceration.

                                   III. CONCLUSION

       Finding no plain error, we AFFIRM the District Court’s decision denying




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Mr. Miller’s motion for downward departure.

                                    ENTERED FOR THE COURT,



                                    Deanell Reece Tacha
                                    Chief Circuit Judge




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