United States of America, Plaintiff-appellee, v. Rockney H. Meier, Defendant-appellant, 942 F.2d 795 (9th Cir. 1991)

MEMORANDUM^** 

Rockney Howard Meier appeals his sentence imposed following a guilty plea to robbery of a savings and loan, in violation of 18 U.S.C. § 2113(a). Meier contends the district court erred by classifying him as a career offender under the United States Sentencing Guidelines (Guidelines), and determining that it did not have discretion to depart downward from the Guidelines based upon Meier's psychiatric problems, chemical addictions and the non-violent nature of the underlying offenses used to classify him as a career offender. In addition, Meier contends his commitment to Leavenworth prison constitutes cruel and unusual punishment because its psychiatric counseling and drug rehabilitation services are inadequate to satisfy Meier's needs. We have jurisdiction under 28 U.S.C. § 1291 and we affirm in part and dismiss in part.

Meier contends that neither his two prior robbery convictions nor his conviction in the instant offense were for crimes of violence, as required by the Guidelines in order to classify an individual as a career offender. He argues he did not actively present "a serious potential risk of physical injury to another" because he was not armed with a dangerous weapon, no one was actually injured, he was not psychologically capable of actually injuring anyone, and his actions were simply those of a desperate drug addict. In addition, Meier contends that if the district court did not have discretion to consider the facts underlying each of the prior convictions, this was a violation of his due process rights to a fair hearing on the merits of his claims and individual sentencing.

We review de novo the district court's interpretation of a provision of the Guidelines. United States v. O'Neal, No. 89-10051, slip op. 8215, 8228 (9th Cir. July 2, 1991). The Guidelines provide that a defendant is a career offender if he "was at least eighteen years old at the time of the instant offense, ... the instant offense of conviction is a felony that is ... a crime of violence ..., and ... [he] has at least two prior felony convictions of ... a crime of violence." U.S.S.G. § 4B1.1 (West 1990). At the time of Meier's offense, the Guidelines defined a "crime of violence" by reference to 18 U.S.C. § 16 (1988). U.S.S.G. § 4B1.2(1) (West 1989).¹  Section 16 defines a "crime of violence" as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 16. "The elements of the crimes of which the defendant was previously convicted, and not the particular conduct of the defendant on the day the crimes were committed, should control" whether a prior crime was a "crime of violence." United States v. Selfa, 918 F.2d 749, 751 (9th Cir.), cert. denied, 111 S. Ct. 521 (1990). Actual use of violence is not required by Section 4B1.1,; merely threatening to use physical force against the person of another is sufficient. United States v. McDougherty, 920 F.2d 569, 574 (9th Cir. 1990), cert. denied, 111 S. Ct. 1119 (1991).

Meier's instant conviction was for unarmed bank robbery. His two relevant prior convictions are a 1984 state conviction for robbery in California and a 1979 state conviction for aggravated robbery in Minnesota. We have previously held that convictions for unarmed bank robbery under 18 U.S.C. § 2113(a) and for robbery under California law qualify as "crimes of violence" for purposes of U.S.S.G. § 4B1.1. See McDougherty, 920 F.2d at 573 (California robbery); Selfa, 918 F.2d at 751 (federal bank robbery).

The Minnesota conviction arose out of an incident wherein Meier used a knife to threaten a salesperson and robbed a retail clothing store of $200. Like California, Minnesota law requires as an element of robbery that the taking of personal property from another be done through the use or threat of use of force against the person of another. See Minn.Stat. 609.24 and 609.245 (West 1991). Therefore, robbery as defined in the relevant Minnesota statutes is a felony that falls within the definition of a "crime of violence" for purposes of 18 U.S.C. § 16(b). See McDougherty, 920 F.2d at 574.

Further, "ad hoc mini-trials regarding an individual's prior criminal conduct" are not required when applying the Guidelines' career offender provisions. See Selfa, 918 F.2d at 750-751; see also McDougherty, 920 F.2d at 573 ("the court should not have to consider the specific conduct of the defendant in committing the predicate offense, or sentencing hearings will turn into unmanageable mini-trials themselves"). Therefore, Meier's due process argument fails as well. See McDougherty, 920 F.2d at 573; Selfa, 918 F.2d at 750-751.

Meier contends that his "serious and life-controlling crack cocaine addiction, and his long history of childhood neglect and abuse" were mitigating circumstances not adequately considered by the Sentencing Commission and provided grounds for departure. Therefore, he argues, the district court erred by determining that it did not have discretion to depart downward from the applicable Guidelines range.² 

The district court has no discretion to depart unless "the court finds that 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 from that described." 18 U.S.C. § 3553(b) (West 1990); see also U.S.S.G. §§ 1.4(b) and 5K2.0 (West 1990); United States v. Lira-Barraza, No. 88-5161, slip op. 9025, 9028-9029 (9th Cir. July 22, 1991). We have previously held that the Sentencing Commission adequately considered substance abuse and foreclosed this mitigating circumstances as a basis for downward departure.³  United States v. Page, 922 F.2d 534, 535 (9th Cir. 1991).

Although a court may rely on mitigating mental and emotional conditions in making a downward departure in exceptional circumstances,⁴  United States v. Mondello, 927 F.2d 1463, 1470 (9th Cir. 1991), a district court's discretionary decision not to depart downward from the Guidelines is not reviewable on appeal. United States v. Morales, 898 F.2d 99, 102 (9th Cir. 1990). We lack jurisdiction to review a refusal to depart even when the district court concludes that it lacks the authority to depart, if the district court simultaneously concludes that there are no facts to support the departure. United States v. Williams, 898 F.2d 1400, 1403 (9th Cir. 1990).

Here, the district court noted that Meier's examining psychiatrist "found no evidence of psychosis or neurosis," and concluded that, " [t]here's a normal amount of neurosis that all of us have. He's not gone beyond the normal limits of neurosis." Clearly, the district court found insufficient basis to depart due to Meier's psychological condition. Even if the district court determined it lacked discretion to depart downward on this basis, the district judge "clearly indicated that ... there were no facts to justify departing downward [and this] finding constitutes a discretionary refusal to depart." See Williams, 898 F.2d at 1403. Therefore, we are without jurisdiction to review it. See Morales, 898 F.2d at 101.

Meier's final contention that his commitment by the Bureau of Prisons to a facility which lacks adequate psychiatric counseling and drug rehabilitation services constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution is without merit.

Although the district court may recommend a particular facility or type of facility as appropriate, the district court has no jurisdiction to select the place where a sentence will be served. 18 U.S.C. § 3621(b).⁵  Authority to determine place of confinement resides in the executive branch of the government and is delegated to the Bureau of Prisons. 18 U.S.C. § 3621(b). Therefore, we have no jurisdiction to consider this claim on appeal.

AFFIRMED IN PART, DISMISSED IN PART.