* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 17 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. ELIZABETH SUZANNE PORTMAN,

Defendant - Appellant. No. 99-1251 (D. Ct. No. 98-CR-180-WM)

(D. Colo.)

ORDER AND JUDGMENT *

Before TACHA , McKAY , and MURPHY , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. This appeal is from the sentence imposed by order o f the district court following defendant Portman’s plea of guilty to Cou nt One of an indictment which charged her with bank robbery. Defendant was sentenced to 30 months of- 2 -

imprisonment. On appeal, she alleges that the dist rict court erred by failing to consider a downward departure on the basis of dimin ished capacity in addition to and separate from the downward departure that the d istrict court granted for coercion and duress. We affirm. Defendant pled guilty to bank robbery after she was indicted for her role in an incident in which she drove her boyfriend and ot hers to World Savings and Loan in Lakewood, Colorado, on April 15, 1998. Pri or to sentencing, defendant filed a motion for downward departure in which she requested departures based on: 1) coercion and duress under United States Sent encing Guidelines (“U.S.S.G.”) § 5K2.12; 2) diminished capacity underU.S.S.G. § 5K2.13; and 3) extraordinary remorse, aberrant behavior, overst ated criminal history, and a combination of these factors pursuant to Koon v. United States , 518 U.S. 81 (1996). The district court conducted a thorough se ntencing hearing on May 10, 1999 at which the court heard arguments and testimo ny concerning all of the requested grounds for departure. The court also he ard testimony from an expert witness who was called to testify with regard to wh ether defendant Portman suffered from battered woman’s syndrome. At the en d of that hearing, the district court determined that defendant suffered from batte red woman’s syndrome and therefore exercised his discretion to grant a two l evel downward departure on the basis of her vulnerability to coercion and duress. The district court, however, did- 3 -

not grant an additional departure for diminished capacity. The district court said at that hearing:

“With regard to diminished capacity, I think that’s really the same bite of the apple as duress, and it, in my conclusion, is that the duress provision applies an d is sufficient unto itself in my findings that she is i n fact -- does have the syndrome. The district court also granted the government’s mo tion for a two level downward departure under U.S.S.G. § 5K1.1. The result was t he district court departed downward from the guideline sentence of 57-71 month s to a four level reduction resulting in a level 18 range, a term of imprisonme nt from 30 to 37 months. The court sentenced defendant Portman to 30 months of i mprisonment. On appeal, defendant argues that the district courtmisapplied the guidelines as a matter of law by conflating the req uest for downward departure for coercion and duress with the request for downward departure for diminished capacity. We review legal interpretations of the application of the sentencing guidelines de novo. United States v. Henry , 164 F.3d 1304, 1310 (10th Cir. 1999), cert. denied, 119 S. Ct. 2381. We review fac tual findings relating to applications of the guidelines for clear error. Id. We are without jurisdiction to review a district court’s discretionary refusal to depart downward from the guideline range unless the record is clear that the district court believed it did not have the authority to depart downward. United States v. Fortier , 180 F.3d 1217,- 4 -

1231 (10th Cir. 1999) (citing United States v. Rodriguez , 30 F.3d 1318, 1319 (10th Cir. 1994)). We have reviewed the transcript of the sentencing h earing and conclude that the district court made a factual finding unde r the facts of this case in determining that the only downward departure warranted was based on coercion and duress. The district court’s statement with re spect to the additional request for a downward departure based on diminished capaci ty merely reflects the court’s understanding of the facts of this case and the factual basis for the requests for downward departures. The record revea ls no evidence that the district court was under any misapprehension about its power to depart downward for both reasons under the appropriate facts. The district court found that only the coercion and duress departure applied in this c ase. We hold therefore that the refusal of the district court to depart downward on the basis of diminished capacity was a simple refusal to depart downward wh ich we will not review on appeal. The sentencing determination of the distri ct court is affirmed. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge