NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 08-4714


                            UNITED STATES OF AMERICA

                                            v.

                                    DANIEL HAMM,

                                                        Appellant.


                     On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D. C. No. 1-07-cr-00344-001)
                         District Judge: Hon. John E. Jones, III


                       Submitted under Third Circuit LAR 34.1 (a)
                                  on October 2, 2009

                 Before: AMBRO, GARTH and ROTH, Circuit Judges

                               (Opinion filed: May 5, 2010)



                                      OPINION


ROTH, Circuit Judge:

       Daniel Hamm pled guilty to distribution of cocaine and crack cocaine, in violation

of 21 U.S.C. § 841(a)(1), and possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g)(1). At sentencing, the District Court determined that Hamm’s base

offense level was 24. After adding two levels for possession of a dangerous weapon in

connection with a drug conspiracy, subtracting three levels for acceptance of

responsibility, and denominating Hamm a career criminal, the District Court determined

that Hamm’s total offense level was 29. Hamm was sentenced to 170 months

imprisonment.

       Hamm appeals, alleging that the District Court erred in its interpretation of

U.S.S.G. § 5K2.13 and in its failure to order an evidentiary hearing.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a). We review a district court’s decision concerning departure from the

Sentencing Guidelines for abuse of discretion. United States v. Lofink, 

, 237

(3d Cir. 2009) (citing Gall v. United States, 

(2007)). However, we have no

jurisdiction to review a District Court’s decision to grant a downward departure, unless

the District Court mistakenly believed it had no discretion to do so. United States v.

Batista, 

, 199 (3d Cir. 2007).

       Here, the District Court considered Hamm’s diminished mental capacity as laid out

in the pre-sentence report. The District Court doubted whether Hamm was laboring under

a diminished capacity as defined by Section 5K2.13 of the Sentencing Guidelines, noting

that “[t]he mere diagnosis of panic attacks and a long history of violence and explosive

disorders, including assaulting others, doesn’t tie [section 5K2.13] up.” Nonetheless, the

District Court went on to review disqualifying factors and concluded that Hamm’s

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voluntary drug use, violent behavior, and criminal history disqualify him for a downward

departure. See U.S.S.G. § 5K2.13 (listing factors which preclude the court from

“depart[ing] below the applicable guideline range”). We hold that the District Court did

not err in its interpretation of U.S.S.G. § 5K2.13. We also hold that the District Court

acknowledged its discretion to depart downward but refused to do so on the facts of this

case.

        In light of the information contained in the pre-sentence report, as well as Hamm’s

failure to request a hearing, we find that the District Court did not commit plain error by

declining to order an evidentiary hearing on Hamm’s alleged diminished capacity.

        For the foregoing reasons, we will affirm the District Court’s judgment of

sentence.




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