1

 Nevertheless, were the Court decide that a departure would be necessary, the United States

would suggest the departure should be limited, given the limited extent to which contributed to the

commission of the offense. See U.S.S.G. § 5K2.13 (noting that “the extent of the departure should reflect

the extent to which the reduced mental capacity contributed to the commission of the offense.”)

2 See United States v. Miller, 146 F.3d 1281, 1285 (11th Cir.1998); United States v. Steele, 178

F.3d 1230, 1240 (11th Cir.1999) (providing an example of linked testimony and noting that “[b]ecause

the facts did not sufficiently link the disorder to the offense, no § 5K2.13 departure was appropriate.”);

see also United States v. Roach, 296 F.3d 565, 570 (7th Cir.2002) (downward departure vacated and

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

)

UNITED STATES OF AMERICA )

 )

 v. ) CR. NO. 3:06-CR-204-MEF

) 

HENRY ERIK YAPIAS )

)

United States Response in Opposition to Motion for Downward Departure

Defendant Henry Erik Yapias’s Motion for Downward Departure for Diminished

Capacity should be denied. Although Yapias apparently does have a significantly reduced

mental capacity, he does not qualify for this departure because his significantly reduced

mental capacity did not contributed substantially to the commission of the offense.

Moreover, he does not qualify (1) because the offense in this case involved a serious threat

of violence and (2) because of his criminal history. His motion should therefore be denied.1

1. No Link Between Diminished Capacity and Offense.

First, Yapias does not qualify for a diminished capacity departure because his reduced

mental capacity did not contribute substantially to the commission of the offense. In order

to warrant a departure, the offender’s diminished capacity must be linked to the commission

of the offense.2

 Nowhere in the Bureau of Prison’s psychological report, in any of Yapias’s

Case 3:06-cr-00204-MEF-CSC Document 48 Filed 09/13/2007 Page 1 of 6
remanded for resentencing because the impairment must have affected the person's ability to control

behavior “at the time of the offense.”).

3 Compare with United States v. Riggs, 370 F.3d 382, 383-87 (4th Cir. 2004) (Defendant, because

of his schizophrenia, thought that he was an undercover police officer and that people were trying to hurt

him. To protect himself at a traffic stop, he possessed a gun); see also supra Part 2. 

4

 A 1998 amendment to §5K2.13 directs the Court to consider “facts and circumstances of the

defendant's offense.” See U.S.S.G. App. C, Amend. 583. Previously, in this Circuit the Court could only

consider whether the charged offense was considered a crime of violence under U.S.S.G §4B1.2. See

United States v. Dailey, 24 F.3d 1323, 27 (11th Cir. 1994).

5 See PSI at ¶ 7. 

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prior statements, or in the Presentence Investigation Report (PSI), however, is there anything

to suggest that Yapias’s significantly reduced mental capacity substantially contributed to

the commission of the charged offense–felon in possession of a firearm.3

 As a result, the

Court may not grant a downward departure for Yapias based upon his significantly reduced

mental capacity. 

2. The Facts and Circumstances of Yapias’s Offense in this Case Involved

a Serious Threat of Violence.

Additionally, a diminished capacity departure is not authorized because of the facts

and circumstance of Yapias’s offense. Sentencing Guidelines § 5K2.13 prohibits a court

from downwardly departing “if the facts and circumstances of the defendant’s offense

indicate a need to protect the public because the offense involved a serious threat of violence

. . . .”4

 In this case, Yapias was stopped for a traffic infraction.5 After Lee County Sheriff’s

deputies noticed a box of shotgun shells on the passenger seat and noticed Yapias acting

Case 3:06-cr-00204-MEF-CSC Document 48 Filed 09/13/2007 Page 2 of 6
6 Id.

7 Id.

8 Id.

9 Id.

10 370 F.3d 382, 383-87 (4th Cir. 2004).

11 Id. at 383

12 Id.

13 Id.

14 Id.

15 Id.

16 Id.

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nervous, he was requested to exit the vehicle.6 Yapias exited and then attempted to run.7

Yapias was tackled and arrested.8 Police then found a sawed-off shot gun between the

driver’s seat and the center console.9

 

This case is similar to United States v. Riggs.10 In Riggs, the defendant was stopped

for a traffic stop.11 After the vehicle was stopped, the officer observed Riggs clutching the

left side of his jacket.12 The officer asked Riggs to show his hands, but Riggs refused and

continued to clutch his jacket.13 The officer subsequently stepped back from the vehicle and

waited for back-up officers to arrive.14 When the back-up officers arrived at the scene, they

ordered Riggs to exit the vehicle.15 Riggs complied, and a pat-down frisk resulted in the

discovery of a .22 revolver in Riggs's jacket.16 Riggs, like Yapias, suffers from paranoid

Case 3:06-cr-00204-MEF-CSC Document 48 Filed 09/13/2007 Page 3 of 6
17 Id. at 384.

18 Id.

19 Id. at 386. 

20 Id. at 385.

21 Id. 

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schizophrenia.17 At the time of his arrest for the firearm offense at issue, Riggs, like Yapias,

was not taking any medication.18 Riggs, unlike Yapias, thought that he was an undercover

police officer and that people were trying to hurt him because of his schizophrenia.19 

Riggs, like Yapias, was convicted of being a felon in possession of a firearm. On

appeal, the Fourth Circuit held that “the facts and circumstances of Riggs's offense . . .

involve[d] a serious threat of violence.”20 In so concluding, the Court noted the following:

Riggs's refusal to obey the officer's order, while at the same time clutching his

jacket, created a highly volatile situation that could have erupted in violence.

Moreover, Riggs thought that he was an undercover police officer and that

people were trying to hurt him. These facts suggest, if anything, that Riggs

was prepared to use the firearm, exposing the officers and the public to

potential harm.21

Similarly here, Yapias possessed a sawed-off shotgun within his quick reach. His nervous

behavior, attempts to flee combined with the availability of a saw-off shot gun and

ammunition created a volatile situation that could have erupted in violence. Due to this

serious threat of violence, the Court may not therefore grant Yapias a departure due to

diminished capacity. 

Case 3:06-cr-00204-MEF-CSC Document 48 Filed 09/13/2007 Page 4 of 6
22 See PSI at ¶¶ 21-26. 

23 See, e.g., United States v. Larivee, 105 Fed.Appx. 737, 739 (6th Cir. 2004) (“[D]efendant's

extensive criminal history-which includes four driving-under-the-influence offenses, two attempted

larcenies, one completed larceny, one retail-fraud offense, one assault with a dangerous weapon offense,

and one receiving-and-concealing property offense-shows “a need . . . to protect the public . . . .”); United

States v. Cline, 33 Fed. Appx. 711 (6th Cir. 2002) (in a case where the defendant had a Criminal History

Category of V, the court found that defendant's criminal history indicated a need to incarcerate her to

protect the public); United States v. Davis, 264 F.3d 813 (9th Cir.2001) (refusal to depart upheld;

defendant's criminal history as a chronic bank robber with a propensity for violence demonstrated a need

to protect the public).

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3. Yapias Has a Lengthy Criminal History.

Finally, a diminished capacity departure is not authorized because of Yapias’s

criminal history. Sentencing Guidelines § 5K2.13 prohibits a court from downwardly

departing based upon a diminished capacity if a defendant’s “criminal history indicates a

need to incarcerate the defendant to protect the public.” Yapias is a 26 year-old man who

already has a Criminal History Category of V based upon distribution and possession of

controlled substances.22 As a result, he does not qualify for a diminished capacity

departure.23

Respectfully submitted this the 13th day of September, 2007.

LEURA G. CANARY 

United States Attorney

/s/ Christopher A. Snyder

CHRISTOPHER A. SNYDER

Assistant United States Attorney

131 Clayton Street

Montgomery, Alabama 36101-0197

334.223.7280

334.223.7135 fax

christopher.a.snyder@usdoj.gov

Case 3:06-cr-00204-MEF-CSC Document 48 Filed 09/13/2007 Page 5 of 6
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CERTIFICATE OF SERVICE

I hereby certify that on September 13, 2007, I electronically filed the foregoing with

the Clerk of the Court using the CM/ECF system, which will send notification of such filing

to the following: Sydney Albert Smith. 

/s/ Christopher Snyder 

CHRISTOPHER A. SNYDER

Assistant United States Attorney

Case 3:06-cr-00204-MEF-CSC Document 48 Filed 09/13/2007 Page 6 of 6