Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1991)

No. 90-30394.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and O'SCANNLAIN, Circuit Judges, and GEORGE,^**  District Judge.

MEMORANDUM^*** 

Jose Gonzales-Cruz appeals his conviction and subsequent sentence for illegally re-entering the United States and for escape.

* At trial, Gonzales-Cruz argued that he did not have the requisite mental state for escape. On appeal, Gonzales-Cruz contends that the government failed to prove the intent element of the escape charge. In addition, Gonzales-Cruz contends that the district court erred in failing to instruct the jury that his mental condition might have prevented him from forming the requisite intent. Each contention will be considered in turn.

* "There is sufficient evidence to support a conviction if any rational trier of fact, after viewing the evidence in the light most favorable to the government, could have found the defendant guilty beyond a reasonable doubt of each essential element of the crime charged." United States v. Stauffer, 922 F.2d 508, 514 (9th Cir. 1990). Circumstantial evidence can be used to prove any fact, including facts from which another fact is to be inferred. Id. Intent may be inferred from objective facts and the actions of the defendant. United States v. Birges, 723 F.2d 666, 672 (9th Cir.), cert. denied, 466 U.S. 943 (1984).

Here, the evidence was more than sufficient to establish Gonzales-Cruz's intent. When Officer Merkley took Gonzales-Cruz to the shower area, Merkley told Gonzales-Cruz that he would be back. In addition, Gonzales-Cruz could not exit by way of the door; rather, he left the shower area by climbing on a chair and through a window. With all natural means of egress blocked, a reasonable factfinder could conclude that Gonzales-Cruz knew that he was not free to leave.

B

Gonzales-Cruz also contends that the district court erred in failing to instruct the jury that his mental condition might have affected his ability to form the requisite intent. No such instruction was requested nor does the record reveal any objection to the instructions as given. Thus, reversal on this ground would be warranted only if failure to give the diminished mental capacity instruction was plain error. See United States v. Skinna, 915 F.2d 1250, 1253 (9th Cir. 1990). Here, the district court correctly instructed the jury that it must find that Gonzales-Cruz knew that his leaving was unauthorized. The failure to instruct on diminished mental capacity was not plain error. See United States v. Jones, 569 F.2d 499, 501-02 & n. 3 (9th Cir.), cert. denied, 436 U.S. 908 (1978).

II

Gonzales-Cruz contends that the district court erred in refusing to depart downward from the prescribed Guideline sentence. However, a district court's discretionary refusal not to depart in sentencing is not reviewable on appeal. United States v. Dickey, 924 F.2d 836, 838 (9th Cir. 1991). This portion of the appeal must be dismissed. See id.

DISMISSED in part and AFFIRMED in part.