Unpublished Disposition, 902 F.2d 1580 (9th Cir. 1990)

MEMORANDUM

Aguirre appeals from his sentence imposed following a guilty plea to two counts of unarmed bank robbery, in violation of 18 U.S.C. § 2113(a). Under the Sentencing Guidelines, his adjusted offense level was 32 and he was in criminal history category VI. The sentencing guidelines range is from 210 to 262 months. Aguirre was sentenced to 210 months. Aguirre argues that the district court erred in sentencing him within this guideline range.

The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

Aguirre first argues that the district court should have reduced his offense level by two points for his acceptance of responsibility. We have held that defendants who come within the career offender provisions of the Guidelines are not entitled to a two-point reduction for acceptance of responsibility. United States v. Summers, 895 F.2d 615, 617 (9th Cir. 1990). Pursuant to the Sentencing Guidelines in effect at the time of Aguirre's sentencing, Aguirre was classified as a career offender. Aguirre was properly so classified due to his prior felony convictions for bank robbery and aggravated robbery. As a career offender sentenced under the Guidelines in effect before November 1, 1989, Aguirre is not entitled to a two-point reduction for acceptance of responsibility under the rule enunciated in Summers.

Aguirre also argues that the district court should have departed downward due to his diminished capacity at the time of the offense. Section 5K2.13 of the Guidelines states:

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

United States Sentencing Commission, Guidelines Manual Sec. 5K2.13 (Nov.1989). This section does not entitle Aguirre to a reduced sentence. Aguirre acknowledges that the alleged diminished capacity was due to his heroin use. This fact alone negates the application of section 5K2.13 to reduce his sentence.

Further, we have held that unarmed bank robbery with threatened use of physical force constitutes a violent crime thereby negating the applicability of section 5K2.13. United States v. Borrayo, No. 88-5354, slip op. 1259, 1265 (9th Cir. Feb. 7, 1990). Aguirre presented demand notes to tellers which threatened harm in the course of the bank robberies. According to Borrayo, such action makes unarmed bank robbery a violent crime and not subject to reduced sentences under section 5K2.13. Id.

Finally, Aguirre argues the district court erred by not departing downward because the Guidelines do not adequately consider the circumstances surrounding his case for purposes of mitigation. Title 18 U.S.C. § 3553(b) provides for departure from the Sentencing Guidelines when "the court finds there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different than that described." However, we recently held that pursuant to 18 U.S.C. § 3742(a) appellate review of a district court's discretionary refusal to depart downward from the Guidelines is precluded. United States v. Morales, No. 89-10168, slip op. 2423, 2430 (9th Cir. Mar. 5, 1990). Since it is clear from the record that the district court used its discretion in refusing to depart downward, we cannot review this issue on appeal.

AFFIRMED.