*1 1506 penalty on such imposing a criminal statute argues Ahue law of State.”
criminal 514(b), Thus, § 29 U.S.C. 388-6(6) ERISA conduct. “criminal law” because § is a H.R.S. 388-6(6) 1144(b)(4), § H.R.S. pen- does not save a criminal H.R.S. contains Chapter 388 preemption. other sec- from ERISA that violate the alty employers including 388- chapter, H.R.S. tions of AFFIRMED. 388-6(6) “generally 6(6), H.R.S. and that employers it affects all applicable” because argument Ahue bases his the state.6
within 523, Mangano, Misc.2d upon v. Goldstein (1978), 368, held which 374-75
417 N.Y.S.2d at em- specifically aimed law
that a criminal applicable “generally plans is
ployee benefit employers all it affects law” where
criminal Id. within the state. America, STATES UNITED federal No reject this contention. We Plaintiff-Appellee, Goldstein, and at least have followed courts v. Goldstein court has criticized one federal legis language, its conflicting ERISA’s with CANTU, Defendant-Appellant. Jose Garza by the history, and its construction lative No. 92-30211. Bonnabel, F.Supp. Calhoon courts. Moreover, (S.D.N.Y.1982). ma Appeals, Court of a criminal have found that jority of courts Ninth Circuit. plans is employee at benefit law directed See, applicable criminal law.” “generally .a 1993.* March Submitted Int'l Metal Workers’ e.g., Sheet Trustees of Dec. Decided (New Fund Prod. Workers’ Ass’n Welfare York) Metal and Sheet v. Aberdeen Blower Workers, Inc., F.Supp. 562-63
(E.D.N.Y.1983). conclude, as did the We court, prevailing that “the better
district Congress intended the words
view is to refer to criminal
‘generally applicable’ like larce general conduct apply
laws Airlines, Inc.
ny Aloha and embezzlement.” Ahue, 1501, 1503 n. 1. See F.Supp. Con v. Kenco Constructional
also Sforza Inc., F.Supp.
tracting,
(D.Conn.1986); National Carriers’ Confer F.Supp. Heffernan, 454
ence Comm. (D.Conn.1978). 388-6(6)
Here, repre- does not H.R.S. law” “generally applicable criminal
sent employer pay failure
because employment-re- employees
provide con- general criminal expenses
lated larceny and embezzlement. such as
duct to save Congress not intend
Clearly, did preemptive broad reach
from ERISA’s * unanimously 388-6(6) panel this case suitable for employers finds applies ex- to all 6. H.R.S. briefs without oral on the record and submission employers, cept government as indicated 34(a); Fed.R.App.P. Circuit argument. Ninth § 388-1. H.R.S. 34-4. Rule *3 traumatic stress disorder. We hold that it does, sentence, vacate Cantu’s and remand.
BACKGROUND dispute bar, Cantu, After a in a Jose Garza veteran, "questioned by Vietnam was police and searched. The search revealed a loaded pistol .22 caliber tucked his waistband. pled guilty being posses- a felon in sion of a firearm in violation of 18 U.S.C. 924(a). 922(g), §§ *4 sentencing, presented report by Wert, court a with written Dr. Paul a psychologist. report clinical' The stated infantry that Cantu served as an rifleman in Corps the Marine from 1966 to spend- years period more than two of that There, Vietnam. he “was involved numer- firefights, missions, ous destroy search and day three and four patrols, reconnaissance day night and both and ambushes.” At times, heavy his unit was under fire. He WA, Cooney, Spokane, Thomas E. for de- civilians, witnessed the death including fendant-appellant. women and children. He also witnessed the death of his own men. Tangvald, Atty., Rolf H. Spo- Asst. U.S.
kane, WA, for plaintiff-appellee. report Dr. stated that Cantu’s Wert’s com- . experience him
bat left and “severe ongoing” disorder, post-traumatic stress a recognized psychiatric symp- condition.1 His an,d toms “frequent include flashbacks to and nightmares experi- vivid” his combat about CANBY; REINHARDT, Before: and ences, insomnia, chronic “considerable” anxi- TASHIMA, Judges, Circuit and District ety, thoughts images,” “intrusive [and] de- Judge.** pression, rage, paranoia. “marked[ ]” and The also stated that Cantu has REINHARDT, Judge: Circuit weapons “fixation on and reliance on for feel- ings personal security safety” and that was Sentencing permit Guidelines dis- “greatly by enhanced or exacerbated his Viet depart trict court to if downward a defendant experiences, ongoing [post- Nam his significantly suffers from reduced mental ca- traumatic stress as well.” disorder] pacity that contributed to the commission of his or her Sentencing symptoms persisted offense. United States since his Commission, Manual, § Guidelines return According from Vietnam. to Dr. (Nov. 1991) (“U.S.S.G. p.s. 5K2.13,” frequency report, intensity Wert’s their 5K2.13”). “§ required hospitalized The issue before us is whether that he be for three- authority depart twenty-one years district court has the and-a-half months in pursuant guidelines provi- year downward to that after his return from Vietnam and one sion post- where defendant suffers from before he committed the offense the sentence ** Tashima, Johnson, 1987). The Honorable A. Wallace ed. rev. See also United States v. Judge States District (6th Cir.1992) for Central District of (taking judicial California, sitting designation. manual). notice of that Ass'n, Psychiatric Diagnostic 1. See Am. and Sta- (3d tistical Manual Mental Disorders 247-51 person- ture. would indication involve- appeals. now Medical Nor he which hospi- depar- ment alcohol reflect a basis for recommended second apparently
nel committed ture this matter. just months before he downward talization intense- symptoms His were still the offense. The court concluded that Cantu was not suf- evaluation, psychological at the time of his fering significantly from reduced mental ca- offense. six months after the therefore, pacity and the law did not before the district depart ap- Cantu contended permit him to downward. Cantu that he report established peals. that Dr. Wert’s “significantly reduced
suffered from contributed to the commission capacity” that DISCUSSION requested a downward his I. Jurisdiction 5K2.13, pro- §to which departure pursuant matter, vides: an initial we As must deter Statement) mine court’s (Policy district refusal Capacity Diminished depart is' reviewable. See United States v. If committed a non-violent the defendant Belden, Cir.1992), cert. offense while 234, 121 113 S.Ct. resulting *5 (1992). jurisdiction L.Ed.2d have to 169 We intoxicants, drugs voluntary use of or other sentencing depart review a court’s refusal to may a to lower sentence warranted long downward as as the refusal on rested extent to which reduced mental reflect the possessed no the court’s conclusion that it to the commission of capacity contributed discretion, and not on belief that the exercise offense, provided that the defendant’s the of its discretion was unwarranted. United history a need criminal does indicate Robinson, 268, (9th v. States 958 F.2d 272 public. to the for incarceration Cir.1992); Garcia-Garcia, v. United States § 5K2.13. U.S.S.G. (9th Cir.1991). 489, Here, F.2d 927 491 sentencing hearing, the court At Cantu’s sentencing clearly it court understood that argument defense heard from both the and depart had the to if it discretion downward concerning propriety prosecution significantly found that Cantu suffered from applied to The court 5K2.13 as Cantu. capacity. appears The court mental then told Cantu: to have found that Cantu did not from suffer request depar- considered the for I’ve significantly capacity, and to ture, request, guidelines, to the pursuant a possessed that it no concluded therefore particularly subsection Section 5K2.13. depart on discretion to downward that basis. Dealing capacity. with diminished supports “Because an the record inference sentencing depart
that the refusal to .court’s on rested the court’s conviction it lacked important important, require- One so, to do we will the discretion treat significantly a re- ments is that there be as product interpreta- refusal the court’s have, again, I mental as duced ‘ guidelines, subject appellate tion of to indicated, report reviewed the from Doctor Brown, review.” v. F.2d 985 is clear his re- Wert. And while it from (9th Cir.1993) (citations omitted). 478, 481 you post trau- port that are you appear and matic stress disorder Departure II. Under 5K2.13 significant dependency
to have alcohol you reflect some characteristics show- A. your, call ing that the doctor would paranoid, having a fixation the extent de the district court’s “We review novo weapons. with ruling particular that a circumstance does permissible depar-
I
find
not constitute a
basis for
can
nowhere
Morales,
suffering from
you
ture.” United States v.
972 F.2d
indication
(9th Cir.1992)
1007,
(citing
capacity,
significantly reduced mental
1010
United
Lira-Barraza,
745,
depar-
for
941
746
the law indicates as
basis
States
—
(9th Cir.1991) (en
denied,
banc)),
sentencing
process
cert.
court to tailor its
1665,
U.S. -,
dispute,
tion has indicia of to sufficient support probable accuracy.” U.S.S.G. 6A1.3(a). Thus, § unnecessary, it is for ex turning body to the of our ample, requests depar a who a for defendant analysis, we note under U.S.S.G. § undergo ture under 5K2.13 to a mental 5H1.3, “Mental and emotional conditions type health of the examination used in deter ordinarily determining in are not relevant mining guilt innocence. or United States a sentence be outside the should (D.D.C. Adonis, F.Supp. 339 n. 11 range, guideline except provided Chap as in 1990) (noting requirement such a would that (Other K, Five, Subpart Part ter Grounds provision turn into a superfluity, since a Departure).” We have construed this enough impaired qualify would guideline to mean that “a defendant’s mental trial, incompetent to stand or be would condition-is relevant to a emotional impairment). found innocent virtue of his (1) sentencing in determination the extraordi (2)
Beyond general Chapter in requirement, nary provided case and as K, commentary Five,” guideline permits Subpart guidelines. sentenc Part of ing appropriate proce Doering, to determine the (9th Cir.1990).2 facts, unques- dure to 5K2.13 is resolve contested but Section Doering slightly The not affect our considered different version of 5H1.3. difference does M.D., Progress Psychiatry, Eng. tionably category. New latter covered (1993) therefore, than (surveying more question, is no J.Med. There papers, including pertain- un- 300 scientific those proper policy statement 5K2.13 is the disorder, post-traumatic stress ail- a mental der which to consider whether concluding biologic psy- of “[t]he basis eligible for a down- ment a defendant makes chiatry firmly is established than ever more sentencing. departure at ward before”). us emphasize question We before Treating emotional illnesses in the same mentally is or emotion- is not whether Cantu way that we abnormalities fur- do mental ally The district court found disturbed. purpose goal thers the 5K2.13. The of post-traumatic stress Cantu does suffer guideline lenity toward defendants disorder, psychiatric recognized condition.3 ability whose to make reasoned decisions fact, most disorder. In is a serious his conditions, impaired. Emotional like mental question stress is whether impairments, may suppress or distort illness, disorder, may cause an emotional focus formation reasoned decisions. The for the guideline provision of the is reduced mental guideline.4 behavioral, capacity, organic, not the cause— everyday language, “reduced In or both —of the reduction. to a lack of full intel capacity” refers Moreover, application our functioning. impair It lectual connotes an to emotional illnesses is consistent with the intellect, a ment of the failure to be able usage Psychiatric American Associa- fully grasp ordinary concepts. or quickly text, Diagnostic tion’s standard and Statisti- applying as We treated Manual That man- cal Mental Disorders. as emotional conditions well. United States language ual classifies what common Doering, (finding F.2d at 394 that “a emotional disabilities “mental disorders.” and emotional condition defendant’s mental separately It does not list or discuss emotion- ... determina relevant to ailments, distinguish al them from mental tion_ diminished under section 5K2.13’s any way. Rather, abnormalities in it states: added). (emphasis capacity exception”) We present is useful to [I]t definition v. Lew reaffirmed that view United States mental disorder that has influenced inson, (9th Cir.1993), *7 decision include certain conditions endorsing application guideline as mental and to [the manual] disorders “psychological a defendant who suffered from exclude others. problems.” applied courts Other In [the manual] each mental disor- suffering defendants from schi- clinically signifi- is as a conceptualized ders disorder, Ruk zoaffective United States v. psychological syndrome cant behavioral or (8th lick, Cir.1990), bipolar pattern person in a or that occurs and (i.e. disorder), manic-depressive disorder (a present pain- is associated with distress F.Supp. McMurray, disability symptom) ful (impairment or (D.Neb.1993), schizophre- 1480-84 and important or function- one more areas of disorder, Speight, niform United States v. cause, ing) original .... Whatever (D.D.C.1989). F.Supp. Such currently must be considered a manifesta- artificially applications appropriate. To behavioral, psychological, tion of or bio- (mental distinguish syndromes organic de dysfunction logical person.... in the fects) ignore from emotional disorders is to added). blurry xxii increasingly (emphasis line between them. Id. at Consistent M.D., Marzuk, Michels, definition, Peter M. with this the manual classifies as Robert disposition. reasoning symptoms accompany and the der] or it.” Government’s Brief at 10. supra government 3. See 1. The does note Only post-traumatic dispute post-traumatic disorder is an 4. if stress disorder causes stress “Sadly, capacity may many persons emotional disease: suffer we determine [post-traumatic “significant.” disor- effects of stress reduction impairmenfis “mental disorders” not mental retarda- Cantu’s more than sufficient tion, 28-37, ordinarily eligible id. at a condition we make him for a reduction in sentence affecting capacity, § consider as mental but under 5K2.13. disorders, schizophrenia
also and mood id. at 187-98, 213-33, lay per- conditions that the D. son would consider emotional illnesses. require- We now consider the additional then, capacity,” “Reduced mental imposed by § ments and 5K2.13 their rela- comprehends dysfunction organic both tionship eligibility to Cantu’s for a downward impair behavioral disturbances that the for judgments. mation of reasoned Both make a eligible departure for a Therefore, 5K2.13. a defendant disorder, post-traumatic stress an emo that the dis Section illness, eligible tional for such a trict court posses find that Cantu’s if reasoning his ailment distorted his felon, sion of a firearm is non-violent. ability interfered with his to make considered We have defined “non-violent” as con decisions.5 of a verse “crime of violence” under U.S.S.G. 4B1.2(l)(i), one of the career offender is, guidelines: a non-violent offense is recently
We have
held that a defen
one that does not have “as an element the
eligible
use,
use,
dant
for a
attempted
or threatened use of
§ 5K2.13 no matter what the
or
physical
nature
se
against
person
force
of another.”
verity
underlying
of his
4B1.2(l)(i);
condition. United U.S.S.G.
United States v. Bor
Lewinson,
(9th Cir.1989).
States v.
rayo,
important,
reasoning
the
shows that Cantu’s
Our
was the
substantially
condition interfered
with his
same
all of those cases: that the status of
decisions,
ability
causing
being
to make reasoned
possession
a felon in
“does not have as
actual,
him
weapons
rely
to fixate on
and
an
attempted
on them
element the
or threat-
violence[,]
feelings
personal safety
security.
for
of
ened use of
nor does the actual
Although post-traumatic
Psychiatric
Diagnostic
5.
stress disorder is a
can
Association’s
and Sta-
illness,
Disorders,
recognized psychiatric
plain language
the
tistical Manual Mental
or even that
of
require
§
recognized
of 5K2.13
not
does
that a defendant's
the defendant suffer from a
mental or
does,
appear,
condition
as Cantu’s
in the Ameri-
emotional disease.
urges
find
potential
government
us to
charges
involve a serious
conduct
injury
departure
physical
ineligible
to another.” Sahaki
a
of
Cantu
for
risk
an,
above,
ground
§
States
F.2d 534
part by
capacity
caused in
volun
duced
was
(holding
§ 5H1.4
bars
tary drug
disqualified
or
is not
alcohol use
departing
court
from
downward on the
always
possible
It is not
ground of the defendant’s extreme alcohol
certainty
the cause of a men
determine
ism).
ailment,
tal or emotional
and such illnesses
permit
do
often have
cause. To
a sole
report,
According to Dr. Wert’s
Cantu is
capacity
defendant whose reduced
was
alcoholic,
stress disor-
part
voluntary drug
alcohol
caused
or
may
cause
der
be the
of his alcoholism.
departure
use
receive a
is to
downward
is, however,
in the
There
no evidence
record
orders,
adhere,
implicitly
to the
Lewinson
suggests
that Cantu was drunk at the
plain language
§of
5K2.13. The
result,
As
time
his offense.
sentenc-
eligible
states
finding regarding
no
made
Cantu’s
a,
if
he committed his offense
link,
any,
alcoholism or the causal
if
between
“while
post-trau-
alcoholism and either his
voluntary
capacity
resulting from
matic stress disorder
his offense.7 Never-
drugs
theless,
use of
or other intoxicants.” It does
the evidence submitted
Cantu is
uncontroverted,
not restrict
defendants
Al-
record
clear.
entirely
problem;
the cause
whose
coholism is not
of Cantu’s
*9
indeed,
voluntary
may
products
drug
it
one of
that
unrelated to their
or alcohol
the
Thus,
“drug
use.
use ...
problem.
a defendant whose
1, 1991,
application
disqualified a de-
tuted a crime of violence that
6. Until November
the
note
4B1.2(l)(i)
did not
the
departure
to
exclude
offense
from a
See
fendant
5K2.13.
being
possession
the
felon in
definition of
Doering,
v.
1515
with,
to some extent dis-
contributed to
is concurrent
but
the commission of the offense
capacity,
degree
tinct
from” his
does not constitute the
to which the
Lewinson,
1007,
988 F.2d at
United States v.
eligible
departure.
the
is
The
for
may
disqualified
departure.8
from a
not be
eligibility
defendant’s
remains
the same
impairment
whether his
greatly
contributed'
Here,
evidence
the uncontroverted
showed
offense,
to
hardly
the commission of his
at
that
condition was caused
his
Cantu’s
Rather,
all.
degree
to which the impair-
experiences
Marine in
as a combat
Vietnam.
ment contributed to the commission of the
subject
Accordingly,
disquali-
not
to
Cantu is
degree
offense constitutes
to
which the
drug
departure
fication from the
for
or alco-
punishment
defendant’s
should be reduced.
hol use.
pled guilty
being
pos-
to
a felon in
3.
session of a firearm. While the district court
requires
Section 5K2.13
that the
explicitly
post-traumatic
did not
that his
find
offender’s
reduced mental ca
offense,
stress disorder contributed to his
pacity
to the
have contributed
commission of
court did state that “it is clear” that Cantu
Although
the crime.
the issue has never
some
showing
“reflect[s]
characteristics
that
circuit,
arisen
our
other circuits are unani
is],
paranoid,
[he
the doctor
call it
would
to
holding
mous in
the disorder
that
need be
having
the extent of
fixation
weapons.”
cause,
only contributing
not a but-for cause
question
The
post-
thus
Cantu’s
cause,
aor
sole
of the offense. United States
traumatic
para-
stress disorder caused his
Soliman,
954 F.2d
Cir. noia, and
weap-
whether Cantu’s fixation on
Lauzon,
1992);
States
ons contributed to his offense. Dr. Wert’s
(1st
Cir.1991),
cert.
paranoia
uncontroverted
that
states
(1991);
112 S.Ct.
holding. language guideline pro requirement final The The permits history vision criminal depart court to the defendant’s must “to to which reflect the extent reduced men demonstrate a need incarceration to capacity government tal public. contributed the commission of con- is, That it requires offense.” 5K2.13. tends that Cantu’s criminal record bars a degree, that the district court find some 5K2.13. Cantu has one particular degree, carrying weapon, not a a concealed causation. Our conviction for holding merely language. unspecified weapons one conviction reaffirms for an Thus, violation, degree impairment differing which the and four convictions for plain We have hinted in dictum that reduced mental our decision in Lewinson adhere to capacity part drug meaning provision, caused in alcohol or of that dictate the conclusion use disqualifies partly *10 reduced that defendant from by voluntary drug Borrayo, United v. 898 F.2d at caused or other abuse States 94. Howev- alcohol er, 5K2.13, eligible we believe of leaves a for the that the structure incapacitation is not an addition, that “when pre- states In his degrees of assault. punishment, states, justification [a] important of his arrests “Most report sentence may depar of a people be the basis on other mental condition assaults have involved Poff, at 595 carrying a firearm v. was ture.” United States quite he often which essence, up being (Easterbrook, J., dissenting). involved In knife which ended or sentencing, Cantu filed to de court guideline altercation.” asks report. He pre-sentence objection to the safety requires an public termine whether lists one assault contends to the same term be sentenced the defendant twice, fourth-degree that the conviction capacity if imposed his mental that would be the result of a domes- was assault conviction pur significantly reduced.9 were not weapon used a dispute in which he neither tic lenity, harsh departure is not pose of this injury, there is no an and that inflicted nor mentally ness, or emo toward those who are concerning his habit the statement basis for may sentencing court tionally A disabled. gun. The district carrying a knife or presume that a defendant with reduced not disputes these because did not resolve dangerous capacity is more than oth sentencing once they germane were offenders, that, if a defendant has or such er ineligible that Cantu was the court concluded record, likely than he is more a criminal 5K2.13. for a future impaired to commit those who are pun precise primary rationales for must be crimes. The court’s decision “[T]wo by incarceration —desert ishing an individual into account fact-specific, must take relevance receiving some their and deterrence —lose or any treatment the defendant applied sentence, to those with when the likeli receive while under will Chatman, 986 States v. capacity.” United prevent will that such treatment hood Poff, (citing United States F.2d at crimes, committing further defendant from banc) (7th Cir.1991) (en (East 588, 595 likely upon re circumstances the defendant’s erbrook, J., dissenting), cert. alternatives, custody or lease (1991)). 116 L.Ed.2d S.Ct. record, nature and the defendant’s overall (blameworthiness) loses some bite be Desert brings the offense that and circumstances of reason, ability or reduced cause those with sentencing court. before the the defendant deserving impulses, their are less to control F.Supp. at Speight, See than those who act out of punishment eligible for de (finding a defendant has greed. Id. Deterrence viciousness or receiving treatment for his parture was who. punishment be as a rationale for less value age at schizophreniform disorder and whose capacities are less people cause statutory minimum term the end of his system punishment and susceptible to a unlikely pose a him imprisonment made may grip of their disorders reward: public). risk to the identify and to less able both to make them regard- conflicting evidence exists Because appropriate to an conform their actions incarceration possibility that Cantu’s Incapacitation alone conduct. Id. course of public, we remand required to against full such offenders. retains its force on this issue. inflicting They capable of harm are as disabled, and their mental who are not those CONCLUSION susceptible less make them
conditions
deterrence.
ruling
district court erred
Because the
it lacked discretion to award Cantu
men
with reduced
When defendants
5K2.13,
conduct,
we vacate Cantu’s
departure under
not exhibit violent
tal
do
case.
and remand his
however,
impor
sentence
incapacitation is not such
Brown,
F.2d at 483. Cantu’s
whole,
States
goal. Read as a
tant
in a
5K2.13 will result
emphasize
ward
the court's decision is not
9. We
imposing
war-
period
the same term of in-
than would be
limited to either
of incarceration
lesser
if the defen-
period
that would be warranted
departure,
carceration
not in no
without the
ranted
ill,
mentally
imposing no term
dant were not
incarceration.
cases, a
at all.
In
down-
of incarceration
most
*11
tencing
post-traumatic
ruling
stress disorder constitutes
court s error in
that it lacked
capacity for
significantly
depart
reduced mental
discretion to
downward
re-
Furthermore,
§of
5K2.13.
his dis
resentencing).
mand for
order contributed to the commission of his
Beyond
go.
I would not
The district
offense,
was
and his offense
neither violent
court made no factual determination whether
by voluntary drug
nor caused
or alcohol use.
post-traumatic
stress disorder con-
If the
finds that Cantu’s criminal rec
tributed to the commission of his
require
ord
does
he
incarcerated
I would leave that determination to the dis-
protect
public,
period
or that a lesser
clearly,
trict court. Even more
the district
of incarceration consistent with a downward
questions
court never reached the
whether
protect
public,
would suffice to
non-violent,
Cantu’s crime was
it
grant
in the exercise of its discretion
by voluntary
drugs
was caused
use of
downward
intoxicants,
other
and whether Cantu’s crimi-
§ 5K2.13. The court
should act
history
nal
indicates a need for his incarcera-
justice system
awareness that
criminal
“[t]he
public.
tion to
I would neither
long
per
has
out lower
meted
sentences
expound
questions
rule nor
on these
before
who,
insane,
although
technically
sons
the district court has addressed them.
are not
full command of their actions.”
(East
Poff,
United States v.
erbrook, J., dissenting). The mandate shall immediately.
issue AND
VACATED REMANDED. WATKINS, Watkins, Jimmie L. Wanda CANBY, Judge, concurring: Circuit wife, husband and Plaintiffs- agree I majority with the this ease Appellees-Cross-Appellants, my resentencing, must be remanded for but grounds for decision are more limited than majority opinion.
those of the WESTINGHOUSE HANFORD COMPA sentencing, At the district court said NY, Washington Corporation, al., et you Cantu that “while it is clear [ ] are Defendants-Appellants-Cross-Appellees. suffering post traumatic stress disorder 91-36195, 91-36233. Nos. ... I can find nowhere in the you sig- indication that from a Appeals, States Court of nificantly capacity.” reduced mental This Ninth Circuit. indicates, believe, I comment the sen- Argued and Submitted Nov. 1993. tencing judge post-traumatic believed that disorder, itself, cannot constitute or stress Decided Dec. rise to the level of a Rehearing As Amended on Denial of agree majority I with the Suggestion Rehearing proposition that this is erroneous aas matter En Banc March law, by Judge for reasons well stated majority opin- Reinhardt in of his Section C.l
ion; part I therefore concur of his
opinion. appears
Because the district court to have depart
made the decision not downward
under the mistaken view that qualify “signifi-
stress disorder could not
cantly capacity” 5K2.13,
Guideline we must vacate and re- See resentencing.
mand for
Brown, (9th Cir.1993) (sen-