Unpublished Disposition, 899 F.2d 1226 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1226 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Lawrence J. PETITTA, Defendant-Appellant.

No. 89-50331.

United States Court of Appeals, Ninth Circuit.

Submitted April 9, 1990.* Decided April 12, 1990.

Before GOODWIN, Chief Judge, TANG and BOOCHEVER, Circuit Judges.


MEMORANDUM** 

Laurence J. Petitta appeals his sentence, imposed under the Federal Sentencing Guidelines, ("the guidelines"), of 37 months imprisonment and five years supervised release for unarmed bank robbery in violation of 18 U.S.C. § 2113(a). Petitta claims that the district court erred in its determination that unarmed bank robbery is a violent offense, precluding departure from the guidelines on the basis of diminished capacity under Section 5K2.13.1  We affirm.

On August 19, 1988, Petitta robbed the Wells Fargo Bank at 60001 Topanga, Woodland Hills, California. He presented the teller with a demand note containing the word "robbery" and, though he was unarmed, threatened to injure her.2  Petitta was arrested, indicted, and eventually plead guilty to a single charge of unarmed bank robbery.

Following Petitta's guilty plea, the matter was referred to a probation officer for preparation of a presentence report. The probation officer calculated the guideline range to be 37-46 months with a supervised release period of three years.3  The probation officer also recommended that Petitta be referred for a psychological evaluation before sentencing because he had been diagnosed as a paranoid schizophrenic. The district court followed the recommendation and ordered a psychiatric study. The study concluded that Petitta suffered from chronic paranoid schizophrenia at the time of the bank robbery.

At his final sentencing hearing, Petitta filed a Petition With Respect to Sentencing Factors Under Seal seeking downward departure from the guidelines under Section 5K2.13 based on his diminished capacity at the time of the offense. The government argued that Section 5K2.13 is inapplicable because an unarmed bank robbery is a violent offense. The district court agreed and did not depart from the guidelines. The court did, however, take into account the psychiatric study and sentenced Petitta at the lower end of the guideline range. Petitta appeals the district court's refusal to depart downward.

Although neither party questions our jurisdiction in this case, we note that this court recently decided that a district court's discretionary refusal to depart downward from the guidelines is not reviewable. United States v. Morales, No. 89-10168, slip op. at 2423, 2429 (9th Cir. March 5, 1990). However, where, as here, the defendant claims that his sentence was imposed as the result of an incorrect application of the guidelines which preclude departure, we have jurisdiction to review the district court's decision. See id. at 2429 n. 2.

In United States v. Borrayo, No. 88-5354, slip op. at 1259 (9th Cir. Feb. 7, 1990), decided after Petitta's sentencing, we held that unarmed bank robbery is a violent offense not covered by Section 5K2.13's authorization to depart from the guidelines for diminished capacity. We based this holding on our conclusion that the definition of "crime of violence" in the guidelines applies to the term "non-violent offense" in Section 5K2.13. Id. at slip op. 1265. "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." Id., citing 18 U.S.C. § 16(a). Like Borrayo, Petitta threatened to use force if the teller did not tender the money. See id. at slip op. 1265 n. 5. Accordingly, his crime is a violent offense and the district court did not err in refusing to depart downward from the guideline range under Section 5K2.13.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

Section 5K2.13 states in full:

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, provided that the defendant's criminal history does not indicate a need for incarceration to protect the public.

Sentencing Guidelines Sec. 5K2.13 (Nov. 1, 1987).

 2

During the robbery, Petitta stated: "You better give me some money or I'm going to blow your tits off."

 3

There is no dispute over the correctness of the presentencing report