* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR. R.

47.5.4.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 96-50734

(Summary Calendar)

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JASON ARTHUR COPSON,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Texas

(A-95-CR-162-1)

September 17, 1997

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Jason Arthur Copson, a self-described computer and telephone

“hacker,” plead guilty to aiding and abetting the interstate

transportation of stolen property in violation of 18 U.S.C. §§ 2

and 2314 and was sentenced to, among other things, 96 months of
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imprisonment and a three-year term of supervised release. On

appeal, Copson asserts that the district court erred in not

allowing him to withdraw his guilty plea and in denying his motion

for reduction in sentence based on diminished capacity. We affirm.

I

In September 1995, Copson entered into a plea agreement with

the government. This agreement provided that “[i]f the Defendant

fully complies with the terms of this plea agreement, and in

addition provides substantial assistance to the United States in

this and other criminal investigations, the United States Attorney

for the Western District of Texas [“United States Attorney”] will

file a motion for a downward departure pursuant to [United States

Sentencing Guidelines] § 5K1.1.” Section 5K1.1 provides in

relevant part that “[u]pon motion of the government stating that

the defendant has provided substantial assistance in the

investigation or prosecution of another person who has committed an

offense, the court may depart from the guidelines.” The plea

agreement then noted that “the determination as to whether or not

the defendant has provided substantial assistance shall be made

exclusively by the United States Attorney” and that the United

States Attorney had “sole discretion” over the “decision to file a

5K1.1 motion . . . .” 

Subsequently, Copson filed a motion to withdraw his guilty

plea, asserting that the government had denied him an opportunity

to provide substantial assistance in accordance with the plea
1 In support of this contention, Copson relied on an

unsigned draft of a plea agreement which was apparently faxed

from the U.S. Attorney’s Office to Copson in April 1995. The

draft agreement states in part that

[i]f the Defendant fully complies with the terms of

this plea agreement, and in addition provides

substantial assistance to the United States in this and

other criminal investigations, the United States

Attorney . . . may file a motion for a downward

departure pursuant to . . . § 5K1.1, and/or may request

that the Court order that sentence in this matter run

concurrently with the sentence that the defendant is

now serving.

The draft agreement also notes that the United States Attorney

had “sole discretion” over the “decision to file a 5K1.1 motion

or request a concurrent sentence . . . .”

 

2 The Assistant United States Attorney (“AUSA”) stated at the

sentencing hearing that Copson “has agreed to withdraw his motion to withdraw

his plea - in other words, to proceed with sentencing today.” Copson’s

attorney responded that “[m]y client has agreed that he would proceed . . . as

well as withdraw[] his motion to vacate his plea previously filed.”

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agreement and thus prevented him from qualifying for a § 5K1.1

departure. Copson also asserted that his guilty plea was based on

a prior plea agreement in which the government consented both to

move for a § 5K1.1 departure and to recommend that his sentence run

concurrently with a state sentence he was serving.1 Lastly, Copson

maintained that, unbeknownst to him, the government changed the

plea agreement before he signed it. Copson later revoked his

motion to withdraw his guilty plea and never renewed it.2

Prior to the sentencing hearing, a psychiatrist examined

Copson and determined that he suffered from an obsessive-compulsive

disorder, used self-mutilation for relaxation, and suffered from

“Diminished Capacity at the time of his offense” (emphasis in

original). The psychiatrist also testified to this effect at the
 

3 The district court conducted Copson’s first sentencing hearing on

May 20, 1996. After hearing psychiatric testimony regarding Copson’s mental

health, the court held the proceedings in abeyance pending a 45-day mental

health examination of Copson at the Bureau of Prisons. The sentencing hearing

resumed on September 11, 1996, at which time the court found Copson competent

enough to comprehend the proceedings.

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sentencing hearing. In addition, Copson was evaluated by a

psychologist employed by the Federal Bureau of Prisons who

confirmed that Copson was suffering from a mental disease but could

still “comprehend[] the charges against him and . . . provide

reliable information to assist his attorney in his own defense.”

Based on the evidence regarding Copson’s mental state and its

own observations, the district court decided at the sentencing

hearing that Copson was sufficiently competent to understand the

proceedings.3 The court then considered Copson’s motion for a

downward departure based on diminished mental capacity pursuant to

§ 5K2.13 of the Guidelines. Section 5K2.13 provides that

[i]f the defendant committed a non-violent offense while

suffering significantly reduced mental capacity not

resulting from voluntary use of drugs or other

intoxicants, a lower sentence may be warranted to reflect

the extent to which reduced mental capacity contributed

to the commission of the offense, provided that the

defendant’s criminal history does not indicate a need for

incarceration to protect the public. 

At one point during the sentencing hearing, the district court

stated that “[d]iminished capacity, I guess, could come from

various sources, from alcohol, from drugs.” The court then

confirmed that diminished capacity was a proper ground for

departure under the Guidelines except when it resulted from the use
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of drugs or other intoxicants, and proceeded to hear argument over

whether Copson should receive the § 5K2.13 departure. During this

discussion, the prosecutor stated that in order to depart downward,

the court should find some nexus between the diminished mental

capacity and the offense. It is unclear from the record whether

the court agreed with this comment. 

Ultimately, the district court denied Copson’s motion for

downward departure and sentenced Copson to 96 months of

imprisonment, a three-year term of supervised release, the payment

of $320,513.60 in restitution, and a $50.00 special assessment.

Copson appeals.

II

Copson first contends that the district court erred in failing

to allow him to withdraw his guilty plea, and that this error

deprived him of constitutional due process. 

Copson filed a motion to withdraw his guilty plea shortly

before his sentencing hearing because the government had allegedly

breached the plea agreement by not filing a § 5K1.1 motion. Copson

later withdrew this motion and affirmed his desire to plead guilty

in open court. He never renewed the motion. Now, on appeal,

Copson apparently maintains that the district court should have sua

sponte struck his guilty plea because the government allegedly

violated the plea agreement. 

Where a defendant fails to preserve an objection to something

affecting his substantial rights (e.g., does not object to a guilty
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plea), we generally review the “mistake” he did not point to below

for plain error. See FED. R. CRIM. P. 52(b) (“Plain errors or

defects affecting substantial rights may be noticed although they

were not brought to the attention of the court.”); United States v.

Ruiz, 43 F.3d 985, 988 (5th Cir. 1995) (stating that “unobjected-to

errors” warrant plain error review). However, the Supreme Court

has held that, where a defendant makes an objection, withdraws it,

and then fails to renew it, the defendant has “waived” the

objection and may not rely upon it as a ground for reversal.

Johnson v. United States, 318 U.S. 189, 200-01, 63 S. Ct. 549, 554-

55, 87 L. Ed. 704 (1943). We simply refuse to review a defendant’s

argument on appeal in such a situation because “we are not dealing

here with inadvertence or oversight. This is a case where silent

approval of the course followed by the court is accompanied by an

express waiver of a prior objection . . . .” Id.

In this case, Copson moved to withdraw his guilty plea because

the government allegedly breached the plea agreement. He then

revoked the motion and failed to renew it. Now, he attempts to

resurrect the motion on appeal under the pretext of alleging that

the district court “erred” in “failing” to permit him to recant his

guilty plea. However, we determine that, under Johnson, Copson has

waived any objection to his guilty plea based on the government’s

alleged breach of the plea agreement, and that we may not consider

his argument on that point.
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III

Copson next avers that the district court erred in denying his

motion under § 5K2.13 for a reduction in sentence based on

diminished capacity. We lack jurisdiction to review a defendant’s

challenge to his sentence based merely upon his dissatisfaction

with the court’s refusal to grant a downward departure. United

States v. DiMarco, 46 F.3d 476, 477 (5th Cir. 1995); see also 18

U.S.C. § 3742(a) (listing kinds of challenges to sentences

permitted on appeal). Jurisdiction will lie, however, if the

sentencing court’s refusal to depart downward violated the law.

United States v. Akin, 62 F.3d 700, 701 (5th Cir. 1995). A

violation of law occurs if the court bases its refusal to depart

downward on the mistaken assumption that it does not have the

authority to do so. Id. In the absence of such a violation,

however, this court will not disturb the sentencing court’s

discretionary decision not to depart downward. United States v.

Keller, 947 F.2d 739, 740 (5th Cir. 1991).

Copson argues that we have jurisdiction to review the district

court’s refusal to grant him a § 5K2.13 departure because the

district court mistakenly assumed that it did not have the

authority to reduce his sentence under that section. Specifically,

Copson asserts that the district court incorrectly believed that,

to obtain a downward departure under § 5K2.13, a defendant’s

diminished capacity must be the sole cause of the crime and the
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defendant must prove that he is insane. In addition, he maintains

that the court wrongly equated diminished mental capacity with use

of alcohol or drugs, a comparison that § 5K2.13 specifically

forbids.

On the first point, Copson maintains that the district court

misapplied § 5K2.13 when it allegedly relied on the prosecutor’s

statement that there must be “some nexus between the problem he has

and the offense that he committed; that it [in] some way

contributed to the commission of the offense . . . .”

Section 5K2.13 provides in relevant part that “a lower sentence may

be warranted to reflect the extent to which reduced mental capacity

contributed to the commission of the offense . . . .” Contrary to

Copson’s assertion otherwise, there is no indication that the court

believed that it could grant a § 5K2.13 departure only if Copson’s

diminished mental capacity was the sole reason he committed the

offense. In fact, the prosecutor’s statement, which the district

court may or may not have adopted, is an accurate paraphrase of one

of the requirements of § 5K2.13.

Copson next asserts that the district court believed that it

could only award a § 5K2.13 departure if Copson was insane, as

opposed to merely suffering from diminished capacity. The record

reflects that the court relied upon the results of Copson’s mental

examinations to establish that he was competent for the purpose of
4 Upon resumption of the sentencing hearing, the Court

stated that “[f]rom the standpoint of the legal definition of

sanity, [various experts] found and expressed to the court that

you were sane at the time of the [criminal] act or acts and also

at the present time. So, then we proceed with this sentencing

hearing based on those representations . . . .”

5 For example, the psychiatrist who examined Copson

testified at the sentencing hearing that he was instructed to

give “an opinion about whether there was or was not diminished

capacity” for purposes of § 5K2.13, and “that’s what I did.” The

prosecutor then confirmed that the psychiatrist was “just talking

now about whether [Copson] should be getting credit under”

§ 5K2.13.

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proceeding with the sentencing hearing.4 Moreover, both before and

after the court made that determination, the parties discussed at

length issues related to diminished capacity as it pertained to a

downward departure under § 5K2.13.5 There is no evidence that the

court confused the question of Copson’s sanity for purposes of

proceeding with the sentencing hearing with its understanding of

diminished capacity as it relates to a § 5K2.13 departure.

In his third point, Copson contends that the court’s statement

that “diminished capacity, I guess, could come from various

sources, from alcohol, from drugs . . .” reflected its incorrect

belief that diminished capacity was not a recognized basis for a

§ 5K2.13 departure. Immediately after this statement, though, the

court clarified with the prosecutor that “diminished capacity from
6 The following colloquy occurred between the district

court and prosecutor:

THE COURT: Diminished capacity . . . could come from

various sources, from alcohol, from drug ))

MR. PITMAN: Well, the guidelines don’t recognize that

circumstance.

THE COURT: Diminished capacity from a mental standpoint is

recognized?

MR. PITMAN: That’s correct, Your Honor. Anything that, in

fact, is not induced by drug or alcohol.

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a mental standpoint” was grounds for departure,6 and the court

subsequently entertained extensive argument on the issue.

We conclude that the district court was fully aware of its

authority under § 5K2.13 to depart downward from the guideline

range. The record clearly indicates that the court took into

account Copson’s mental condition in deciding not to depart

downward, and the court’s willingness to hear arguments regarding

Copson’s alleged diminished capacity further demonstrates its

awareness of its authority to grant a § 5K2.13 departure. We find

no violation of law in the court’s exercise of its discretion here

and, therefore, lack jurisdiction to review the district court’s

refusal to depart downward under § 5K2.13.

IV

For the foregoing reasons, we AFFIRM the judgment of the

district court.