United States of America v. Dennis J. Cooper

*The Honorable R ichard M ills, United States District Judge for the
Central District of Illinois, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0394P (6th Cir.)
File Name: 03a0394p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DENNIS J. COOPER,
Defendant-Appellant.
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No. 02-6172
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 01-00015—Joseph M. Hood, District Judge.
Submitted: September 18, 2003
Decided and Filed: November 5, 2003
Before: MARTIN and SUTTON, Circuit Judges; MILLS,
District Judge.*
_________________
COUNSEL
ON BRIEF: John K. West, McCOY, WEST, FRANKLIN
& BEAL, Lexington, Kentucky, for Appellant. Charles P.
2 United States v. Cooper No. 02-6172
Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEY,
Lexington, Kentucky, for Appellee.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Dennis J.
Cooper, a federal prisoner proceeding through counsel,
appeals the sentence imposed upon his conviction for
possessing child pornography in violation of 18 U.S.C.
§ 2252(a)(4)(B). The parties have waived oral argument and,
upon examination, this panel unanimously agrees that oral
argument is not needed. Fed. R. App. P. 34(a).
Cooper was indicted by a grand jury on one count of
possessing child pornography. When questions arose
concerning Cooper’s mental health, the district court ordered
a psychiatric evaluation and subsequently found that Cooper
was competent to stand trial. On February 11, 2002, Cooper
waived his right to a trial and pleaded guilty as charged,
pursuant to a written plea agreement. The presentence
investigation report calculated Cooper’s offense level as
sixteen, his criminal history category as I, and the resulting
guidelines range of imprisonment as twenty-one to twenty-
seven months. Defense counsel filed no objections to these
calculations, but did move for a downward departure based on
diminished capacity pursuant to section 5K2.13 of the
Sentencing Guidelines. Although a new psychiatric
evaluation revealed that Cooper suffered from major
depressive disorder and functioned at a borderline intellectual
level, the evaluating team nonetheless concluded that Cooper
did not suffer from diminished capacity as defined by the
guideline. The district court considered the report at
sentencing, denied the downward departure motion, and
sentenced Cooper at the high end of the range to twenty-seven
months in prison. The judgment was filed on September 16,
2002, and was entered September 17, 2002.

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No. 02-6172 United States v. Cooper 3
Section 5K2.13 provides, in pertinent part:
A sentence below the applicable guideline range may be
warranted if the defendant committed the offense while
suffering from a significantly reduced mental capacity.
However, the court may not depart below the applicable
guideline range if (1) the significantly reduced mental
capacity was caused by the voluntary use of drugs or
other intoxicants; (2) the facts and circumstances of the
defendant’s offense indicate a need to protect the public
because the offense involved actual violence or a serious
threat of violence; or (3) the defendant’s criminal history
indicates a need to incarcerate the defendant to protect
the public. . . .
USSG § 5K2.13. “Significantly reduced mental capacity” is
defined in the commentary regarding section 5K2.13 as “a
significantly impaired ability to (A) understand the
wrongfulness of the behavior comprising the offense or to
exercise the power of reason; or (B) control behavior that the
defendant knows is wrongful.”
As a general rule, a district court’s refusal to grant a
downward departure, whether pursuant to section 5K2.13 or
another guideline, is unreviewable on appeal unless the
district court (1) improperly computed the guideline range;
(2) was unaware of its discretion to depart downward from
the guideline range; or (3) imposed the sentence in violation
of law or as a result of the incorrect application of the
Sentencing Guidelines. See United States v. Price, 258 F.3d
539, 547-48 (6th Cir. 2001).
Cooper’s primary argument is that appellate review is
appropriate because the district court was unaware of its
discretion to grant a downward departure in this case. The
district court need not explicitly state that it is aware of its
discretionary authority to depart downward; the record need
only make clear the court’s awareness of its discretion. See
United States v. Strickland, 144 F.3d 412, 418 (6th Cir.
4 United States v. Cooper No. 02-6172
1998); see also United States v. Owusu, 199 F.3d 329, 349
(6th Cir. 2000). Furthermore, we will presume that the
district court did understand its discretion in the absence of
any evidence to the contrary in the record. See United States
v. Ford, 184 F.3d 566, 585 (6th Cir. 1999). According to the
record, the district court ordered Cooper to undergo a
psychiatric and psychological examination at the Federal
Correctional Institution in Butner, North Carolina, in order to
determine, among other things, whether he suffered from
diminished capacity at the time of his offense. The results of
the examination indicated that he did not suffer from
diminished capacity. The transcript from the sentencing
hearing clearly reveals that the district court considered
Cooper’s argument but concluded, based upon the test results,
that a downward departure based upon diminished capacity
was unwarranted: “I have . . . received a copy of the report
from Butner, and in that report the conclusion is that Mr.
Cooper does not suffer from a diminished capacity. So
whether [the downward departure] is warranted or not – I
don’t think it is because, because of that finding by the staff
at Butner.”
Under these circumstances, we must conclude that the
district court was aware of its discretion to grant a downward
departure for diminished capacity but determined that the
facts of the case did not justify such a departure. Therefore,
the district court’s refusal to grant the downward departure is
unreviewable on appeal.
Cooper also suggests that the district court improperly
applied subsections (2) and (3) of section 5K2.13, which
provide that even if the defendant suffered from diminished
capacity at the time of the offense, the court should not grant
a downward departure on that basis if it finds a need to
“protect the public.” Subsections (2) and (3) do not come into
play unless the court finds that the defendant suffered from
diminished capacity at the time of the offense. Because the
district court concluded that Cooper did not suffer from
diminished capacity, its determinations regarding the need to

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No. 02-6172 United States v. Cooper 5
protect the public are irrelevant. Therefore, we decline to
consider Cooper’s argument that the district court improperly
applied subsections (2) and (3) of section 5K2.13.
Accordingly, the district court’s judgment is affirmed.

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