United States of America, Plaintiff-appellee, v. David Scott Golden, Defendant-appellant, 103 F.3d 142 (9th Cir. 1996)

MEMORANDUM^*** 

Appellant David Golden was convicted of several counts of bank robbery. He was unarmed when he committed the offenses. The district court denied his request for a downward departure based on diminished capacity under U.S.S.G. § 5K2.13, which provides that a downward adjustment may be warranted where "the defendant committed a non-violent offense while suffering from significantly reduced mental capacity...."

Golden has filed a brief with a suggestion for initial rehearing en banc. As a panel, we are bound by United States v. Borrayo, 898 F.2d 91 (9th Cir. 1989), which held that a downward adjustment for diminished capacity was not available in a case of unarmed attempted bank robbery, because the offense did not qualify as a "non-violent offense." Id. at 94. We concluded that a "non-violent offense" under U.S.S.G. § 5K2.13 cannot be a "crime of violence" under U.S.S.G. § 4B1.2, which concerns career offender sentencing. Under § 4B1.2, a crime of violence includes one that has as an element "use, attempted use, or threatened use of physical force against the person of another." Application Note 2 states without exception that robbery is a crime of violence. In United States v. Cook, 53 F.2d 1029 (9th Cir.), cert. denied, 116 S. Ct. 249 (1995), we reaffirmed that unarmed bank robbery does not qualify as a non-violent offense under § 5K2.13.

Because the district court and this panel are bound by Borrayo, we need not consider the question of whether the defendant was, in fact, suffering from significantly reduced mental capacity.

AFFIRMED.