UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                 No. 98-4265

WENDY ROBBINS PERRY,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-97-266-MU)

Argued: October 29, 1998

Decided: February 17, 1999

Before WIDENER and MURNAGHAN, Circuit Judges, and
WILSON, Chief United States District Judge for the
Western District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion. Chief Judge Wilson
wrote a dissenting opinion.

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COUNSEL

ARGUED: Brian Lee Whisler, Assistant United States Attorney,
Charlotte, North Carolina, for Appellant. Richard Andrew Culler,
CULLER & CULLER, P.A., Charlotte, North Carolina, for Appellee.
ON BRIEF: Mark T. Calloway, United States Attorney, Charlotte,
North Carolina, for Appellant.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

In September 1997, Wendy Robbins Perry pleaded guilty to a one-
count information charging her with embezzlement pursuant to 18
U.S.C. § 656. A probation officer prepared a pre-sentence report to
which Mrs. Perry objected, in writing, claiming that she suffered from
mental and emotional difficulties which made her eligible for a down-
ward departure due to diminished capacity under§ 5K2.13 of the
United States Sentencing Guidelines.

Following the testimony of her psychologist and a letter report
from her gynecologist, the district court granted Mrs. Perry's request
for downward departure. The government appeals that decision and
argues that the evidence was insufficient to establish that Mrs. Perry
suffered from the requisite diminished capacity. Especially in light of
the government's failure to present any evidence to refute the testi-
mony of Mrs. Perry's experts, we disagree. Accordingly, we affirm
the district court's decision to downwardly depart.

I

In 1988, Branch Banking & Trust hired Mrs. Perry as a teller. It
was not long thereafter that Mrs. Perry began taking money from her
cash drawer, concealing her theft by altering the daily balance reports.
Sometime later, she devised a scheme whereby she falsified Inter-
branch Tickets, a method used to transfer funds between the bank's
branches, to conceal the missing funds. By falsely applying the tickets
on a weekly basis, Mrs. Perry maintained her scheme, undetected,
through a series of promotions, not to mention regular audits, which
spanned almost nine years. In total, Mrs. Perry attempted to embezzle
$584,602.53, between $1,000 and $1,500 a week.1 Eventually, Mrs.
_________________________________________________________________
1 Following some adjustments, the net loss to the bank as a result of
Mrs. Perry's crimes was $556,197.15.

                    2
Perry's thefts were discovered, at which time she cooperated fully
with authorities.

At sentencing, Mrs. Perry called Dr. John Long, a psychologist
with Piedmont Psychological Associates, as an expert witness to tes-
tify on behalf of her motion for downward departure under § 5K2.13.
Dr. Long testified that Mrs. Perry was clinically depressed; that her
actions evidenced a need for acceptance, an addictive quality, and a
capacity for denial; and that the denial and addictive aspects of her
problem "did cause some diminished judgment."

Mrs. Perry also provided the court, through her response to the pro-
bation officer's pre-sentence report, with the report of Dr. Charles
Peach, Mrs. Perry's gynecologist. In that report, Dr. Peach acknowl-
edged that Mrs. Perry reported signs of depression and anxiety at least
as early as 1992, and perhaps back into the late 1980's. He prescribed
Xanax, an anti-anxiety medication, at that time. After attempting a
different treatment under one of Dr. Peach's associates for a few
years, Mrs. Perry returned to Dr. Peach in 1996, and he began treating
her with anti-depressant medication.

The government declined to offer any evidence to refute Mrs.
Perry's expert testimony. Instead, the prosecutor merely offered his
opinion regarding the insufficiency of the evidence. The district court
granted Mrs. Perry a downward departure from an offense level of 15
to an offense level of 13.

II

"A district court's decision to depart from the Guidelines . . . will
in most cases be due substantial deference, for it embodies the tradi-
tional exercise of discretion by a sentencing court." Koon v. United
States, 

, 98 (1996). Thus, the appropriate standard to
apply to the district court's downward departure is abuse of discre-
tion. Koon, 518 U.S. at 99-100. We find that the district court did not
abuse its discretion in this instance.

U.S.S.G. § 5K2.13 states:

                    3
          If a defendant committed a non-violent offense while suffer-
          ing from a significantly reduced mental capacity not result-
          ing from the voluntary use of drugs or other intoxicants, a
          lower sentence may be warranted to reflect the extent to
          which reduced capacity contributed to the commission of
          the offense, provided that the defendant's criminal history
          does not indicate the need for incarceration to protect the
          public.

This type of diminished capacity is one ground designated by the
Guidelines as "not adequately taken into consideration by the Sen-
tencing Commission," and is therefore an appropriate reason for a
downward departure pursuant to 18 U.S.C. § 3553(b). U.S.S.G.
§ 5K2.0 (1997) (quoting 18 U.S.C. § 3553(b)); § 5K2.13 (1997) (pol-
icy statement); United States v. Goossens, 

, 700 (4th Cir.
1996); United States v. Glick, 

, 338 (4th Cir. 1991).
Thus, we look to the district court's findings of fact to determine
whether it abused its discretion in departing downward based on
diminished capacity. Goossens, 84 F.3d at 700; Glick, 946 F.2d at
338.

The district court found "that Ms. Perry's lifetime of rejection,
abuse coupled with clear, improper, inadequate medication is support-
ive of Dr. Long's ultimate conclusion that in her case, she was heavily
into denial, and that the denial clouded her judgement such that she
-- her problems impaired the formation of reasoned judgments as
required by U.S. v. Goossens." The government argues that the court
erred in determining that Mrs. Perry's denial rose to the level of
diminished capacity and, further, in determining that a sufficient
causal connection existed between Mrs. Perry's crimes and her "pur-
ported diminished capacity." Given the evidence presented to the dis-
trict court, that argument is not well taken.

"[I]n order for a defendant's mental condition to be considered `a
significantly reduced mental capacity' within the meaning of
§ 5K2.13, p.s., the defendant must have been unable to process infor-
mation or to reason." Goossens, 84 F.3d at 701. The evidence in
Goossens contained no conclusion that reason had been impaired. 84
F.3d at 701. In light of that evidentiary deficiency, the court looked
to the defendant's "high level of mental functioning" to find insuffi-

                    4
cient impairment.2 Goossens , 84 F.3d at 701-02. The government now
asserts that the complexity of Mrs. Perry's crimes means that she
must have been capable of reason.

At Mrs. Perry's sentencing, however, Dr. Long testified that "the
denial process that operates in any kind of addictive behavior did
cause some diminished judgment in this situation." When further
asked whether "this addiction impaired the formation of reasoned
judgments in Mrs. Perry?", Dr. Long replied "Yes, in the sense that
the denial was operational." In response, the government put on no
evidence to refute this expert testimony. Presented with no contrary
testimony, the district court followed Dr. Long's conclusion, and,
based upon the evidence before it, we cannot say that the court's deci-
sion was clearly erroneous. See Glick, 946 F.2d at 339 (making a sim-
ilar determination); cf. Glick, 946 F.2d at 339 ("The government pre-
sented no evidence on the issue of Glick's mental capacity except a
page from a textbook. While the government contends that the psy-
chiatrist's testimony was not credible, the district court found to the
contrary and we are not in a position to say otherwise.").

The government encounters the same problem here as in Glick with
its argument regarding the sufficiency of the causal connection
between the diminished capacity found by the district court and Mrs.
Perry's crimes. Dr. Long testified that determining the cause of her
criminal behavior was one of Mrs. Perry's primary reasons for seek-
ing therapy. In that regard, he said "buying things was a way of gain-
ing acceptance from other people . . . spending money had an
addictive quality to it in a sense that when she was spending money,
she felt important, she felt some elation, and I think this contrasted
to much of her day-to-day existence being, I would say, quietly
depressed and anxious." On cross examination, Dr. Long did admit
that it was possible that Mrs. Perry simply liked to spend money. The
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2 Similarly, in United States v. Withers, on which the government also
relies, this court reversed a § 5K2.13 downward departure only after
finding that "there was no evidence that Withers' depression affected her
ability to reason or process information." 

, 1148 (4th Cir.
1996). This key evidence which was not present in the cases cited by the
government was not only provided by Mrs. Perry but not contradicted by
any government evidence.

                    5
district court, however, credited Dr. Long's other testimony along
with other evidence tending to establish a causal connection3 and,
based on the record, did not abuse its discretion by so deciding. Con-
trary to the government's assertion, this determination is not pre-
cluded by our decision in Goossens. In that case, the court found that
"no evidence" supported a causal connection. Goossens, 84 F.3d at
702. That is simply not the case we have before us; here we have the
uncontradicted evidence of a physician or a psychologist.4

III.

Accordingly, the sentence of the district court is

AFFIRMED.5
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3 In his report, Dr. Peach supported this conclusion when he said the
following:

           "It is my belief that the combination of these traumatic events
           with her family history of depression has a lot to do with the
           patient's current mood disorder and may also have impaired her
           judgment at the times in question. . . ."
4 Although the government did not specifically contest the extent of the
departure, the reasonableness of the extent of a downward departure is
generally our final inquiry into these matters. See Goossens, 84 F.3d at
700; Glick, 946 F.2d at 339. The government did protest, in the final
footnote to its brief, that Mrs. Perry's resulting sentence would make her
eligible for a program which "would unjustly result in the defendant
serving six months of active imprisonment. . . ." Mrs. Perry's original
guidelines were 18 to 24 months for a level 15. The district court
departed two levels to a level 13 which carried a range of 12 to 18
months. Mrs. Perry was sentenced to 12 months and one day, a less than
six month difference. We cannot say that a six month departure
amounted to an abuse of discretion under these circumstances.
5 While the dissenting opinion recites that "Wordsmithing is no substi-
tute for difficult, informed, practical decision making," (p.7, lines 4,5 of
dissent) it proceeds to do just that; it does not take account of the explicit
finding of the district judge, which is quoted below; and it ignores the
persuasive effect of Fed. R. Civ. P. 52(a) which states, " . . . due regard
shall be given to the opportunity of the trial court to judge of the credibil-
ity of the witnesses."

                     6
WILSON, Chief District Judge, dissenting:

I regret that I must dissent. There is much to be said for affording
great deference to the sentencing decision of the trial judge. Nuances
wholly undetectable from the cold, printed record often are clear to
the trial judge who has seen and heard the witnesses. Wordsmithing
is no substitute for difficult, informed, practical decision making.
Four words, however, demonstrate why I cannot join the majority
opinion: "not very much reduction." The trial judge stated that Perry
suffered from "reduced mental capacity, not very much reduction, but
certainly the formation of reasoned judgment was impaired...."
(emphasis added). The trial judge's finding of "not very much reduc-
tion" is borne out by the evidence. I do not dissent because the trial
judge chose his words poorly, therefore, but because he chose them
well, and the findings they reveal do not support his guideline appli-
cation.

A defendant's "[m]ental and emotional conditions are not ordinar-
ily relevant in determining whether a sentence should be outside the
applicable guideline range...." U.S. Sentencing Guidelines Manual
§ 5H1.3 (1998). The Sentencing Guidelines, however, provide a nar-
row exception from this general rule when the defendant's mental
capacity is impaired. See id. § 5K2.13. A District Court may lower a
sentence because of reduced mental capacity, but only if the defen-
dant suffered "from a significantly reduced mental capacity...." Id.
(emphasis added). In United States v. Withers , 

 (4th
Cir. 1996), this court clarified that a defendant suffering from dimin-
ished capacity must "be suffering from something greater than `emo-
tional problems....'" Id. at 1148 (quoting United States v. Gentry, 925
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           THE COURT: Next go around, if you want me to consider more
           punishment in a circumstance where there is evidence, where I
           have got a professional whose opinion I respect making a state-
           ment that is clearly within the law, and you--you don't agree
           with it, I don't expect you to agree with it, but I do expect, if the
           Government sufficiently disagrees, to demand more time to gen-
           erate more evidence, Okay?

(Italics added).

                    

, 188 (7th Cir. 1991)). The defendant must show "an inability
`to process information or to reason.'" Id . (quoting United States v.
Goossens, 

, 701 (4th Cir. 1996)). That is, the defendant's
problems must "`impair the formation of reasoned judgments' or pre-
vent him from processing information when he committed the
offenses." See Goossens, 84 F.3d at 701 (quoting United States v.
Cantu, 

, 1513 (9th Cir. 1993)).

The record is void of any indication that Perry suffered from the
required level of reduced capacity. Perry carried out a complex finan-
cial fraud over several years. Her own psychologist described her as
"bright." Assuming that her psychologist correctly diagnosed her as
suffering from "addictive tendencies," those tendencies did not signif-
icantly impair her judgment. The most that the psychologist claimed
was that her mental problems "cloud[ed] her judgment" and that her
problems "did cause some diminished capacity." (emphasis added).
He even conceded that Perry may have embezzled over half a million
dollars because of a motivation common to many embezzlers: she
liked to spend money. Based on this testimony, the trial judge cor-
rectly found as a matter of fact that there was"not very much reduc-
tion" in her mental capacity. The trial judge erred, however, in
concluding that his finding that a defendant suffered from "not very
much reduction" could somehow satisfy the requirement for a "signif-
icantly reduced mental capacity."*

Not only did the trial judge's decision not comport with the plain
language of the Sentencing Guidelines, but it is also inconsistent with
the precedent of this circuit. Perry is much like the defendant in
United States v. Goossens, 84 F.3d at 697. Goossens was convicted
of using a computer to download child pornography. See id. at 698-
99. When accessing pornography, Goossens had the wherewithal to
use encryption technology to hide his crime. See id. As the majority
_________________________________________________________________
*The majority opinion places great weight on the government's deci-
sion not to proffer evidence contradicting Perry's expert. Yet, such addi-
tional evidence was unnecessary. Perry's own expert testified that she
did not suffer from a significantly reduced mental capacity; a conclusion
the trial judge accepted. I cannot fault the government for failing to con-
tradict the testimony of a witness when that the defendant has failed to
satisfy its burden of production.

                    8
notes, this court rejected Goossens's claim of reduced mental capac-
ity. See id. at 702. This court in Goossens held that to merit a reduced
sentence the defendant "must have been unable to process information
or to reason" Id. at 701. This court went on to hold that such a finding
was unwarranted when the defendant "`displayed considerable mental
agility in his professional and personal affairs, both legal and illicit.'"
Id. (quoting United States v. Johnson, 

, 401 (6th Cir.
1991)). The very nature of Perry's financial fraud and the schemes
she used to conceal her crimes demonstrate that she had "`consider-
able mental agility,'" defeating any claim of reduced mental capacity.
Id. (quoting Johnson, 979 F.2d at 401).

The majority attempts to distinguish Goossens by noting that there
was "no evidence" of a causal relationship between Goossens's
diminished mental capacity and his crimes. See Maj. Op. at 4-5 (quot-
ing Goossens, 84 F.3d at 702). That finding, however, was dicta. See
id. ("Moreover, even if Goossens suffered from diminished mental
capacity, no evidence supports a conclusion that it contributed in any
degree to the commission of the offense."). The court in Goossens
found that the defendant did not warrant a downward adjustment
because his ability to process information and to reason was not sub-
stantially impaired. See id. at 701. Similarly, Perry, by the trial
judge's own admission, did not suffer from a significantly reduced
mental capacity.

This case comes down to three simple facts. First, the trial judge
found that Perry did not suffer from a significantly reduced mental
capacity. Second, the testimony of Perry's own psychologist supports
the trial judge's finding. Third, Perry's crimes involved a sustained
pattern of forgery, deception, and manipulation of complicated finan-
cial transactions, all of which required "`considerable mental agility.'"
Id. (quoting Johnson, 979 F.2d at 401). These three facts, the plain
language of the Sentencing Guidelines, and the binding precedent of
this court force me to conclude that the trial judge erred when he
reduced Perry's sentence.

                     9