United States of America, Plaintiff-appellee, v. Gerald Michael Haggard, Defendant-appellant, 967 F.2d 593 (9th Cir. 1992)

Before D.W. NELSON and DAVID R. THOMPSON, Circuit Judges, and PRO, District Judge.^** 

MEMORANDUM^*** 

Appellant Gerald Michael Haggard pled guilty to a single count of unarmed bank robbery in violation of 18 U.S.C. § 2113(a). He was sentenced to sixty-three months in prison, plus three years of supervised release. Haggard appeals his sentence, arguing that the district court erred in refusing to depart downward from the applicable Federal Sentencing Guideline range. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and affirm.

DISCUSSION

Haggard initially contends the district court erred in refusing to depart downward from the applicable guideline range because: (1) his criminal history overrepresented the seriousness of a past conviction for selling marijuana, and (2) his conduct showed a substantial lack of sophistication.¹  These arguments challenge the district court's refusal to exercise its discretion in granting a downward departure. As such, neither provides a cognizable ground for appeal. United States v. Koenig, 952 F.2d 267, 273 (9th Cir. 1991) ("The discretionary refusal to grant a downward departure will not be reviewed on appeal.").

Haggard also contends the trial court mistakenly concluded it lacked authority to grant a downward departure based on his intoxication during the robbery. This argument also fails.

Guideline § 5K2.13 permits a downward departure "if the defendant suffered from diminished capacity that resulted from involuntary drug use, so long as the offense was nonviolent." United States v. Sanchez, 933 F.2d 742, 747 (9th Cir. 1991) (emphasis added). For purposes of this section, a crime of violence "is defined as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." United States v. Borrayo, 898 F.2d 91, 94 (9th Cir. 1989). The crime of unarmed bank robbery falls within this category when the defendant threatens to use violence during the robbery. Sanchez, 933 F.2d at 747.

When Haggard entered the bank, he handed the teller a note which read: "Stay calm, got a gun, this is bank robbery, don't stall for time or give me a dye pack or I'll give you one." Because Haggard threatened the teller with violence, the district court correctly concluded it could not depart downward based on Haggard's claim of involuntary intoxication.

AFFIRMED.