Appeal from the United States District Court for the Central District of California. D.C. No. 91-964-JGD. John G. Davies, District Judge Presiding This Opinion Substituted by Court for Withdrawn Opinion of October 22, 1992
Before: Tang, Pregerson, and Alarcon, Circuit Judges.
The memorandum Disposition filed October 22, 1992 is withdrawn. The mandate issued on November 12, 1992 is recalled.
Robert Owen Davies appeals his sentence under the sentencing guidelines following his guilty plea to unarmed bank robbery. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, but vacate and remand for resentencing.
On July 24, 1991, Davies was arrested shortly after he robbed the Household Bank in Solvang, California of $1,979. Davies confessed to the robbery and wrote a letter of apology to the employees of the Household Bank. On October 8, 1991, Davies pled guilty to a one-count indictment for unarmed bank robbery as defined in 18 U.S.C. § 2113(a).*fn1
At his sentencing hearing, Davies argued that a downward departure from the sentencing guidelines range of 41 to 51 months was justified because (1) his offense constituted aberrant behavior; (2) he was unusually vulnerable to physical assault while incarcerated; (3) he was especially well-suited for placement at the Bureau of Prison's Intensive Confinement Center (ICC) in Lewisberg, Pennsylvania; and/or (4) a combination of the above factors.
The district court rejected each of these arguments. Regarding aberrant behavior, the district court described Davies' conduct as "absolutely uncharacteristic" but believed Davies' reflection on whether to commit the robbery precluded departure on this ground. In rejecting Davies' physical vulnerability argument, the court stated that this ground was not a valid basis for departure in our circuit, but the court noted it would not depart even if physical vulnerability was a valid basis for departure. The district court believed that Davies' suitability for placement at the ICC in Lewisberg and his combination of factors argument were not valid grounds for departure.
Finding no basis for departure, the court sentenced Davies to the minimum guidelines recommended sentence of 41 months. This appeal followed.
On appeal, Davies argues that the district court erroneously believed it lacked the authority to depart downward on any of the above-listed grounds. We discuss the district court's treatment of each ground in turn.
We review de novo a district court's legal interpretation and application of the sentencing guidelines. United States v. Mena, 925 F.2d 354, 355 (9th Cir. 1991); United States v. Sanchez, 914 F.2d 1355, 1361 (9th Cir. 1990), cert. denied, 111 S. Ct. 1626 (1991). But a district court's discretionary refusal to depart downward is ...