*

The HONORABLE THOMAS M. REAVLEY, United States Circuit

Judge for the United States Court of Appeals, Fifth

Circuit, sitting by designation.

 1The Honorable Howard F. Sachs, United States District Court

for the Western District of Missouri.

 

No. 95-2638

 

UNITED STATES OF AMERICA, *

 *

Plaintiff-Appellee, * Appeal from the United

 * States District Court

v. * for the Western District

 * of Missouri.

PETER LAWRENCE MAYOTTE, *

 *

Defendant-Appellant. *

 

Submitted: January 9, 1996

 Filed: February 12, 1996 

Before MAGILL, REAVLEY* and Hansen, Circuit Judges. 

REAVLEY, Circuit Judge.

Peter Lawrence Mayotte pleaded guilty to bank robbery in

violation of 18 U.S.C. § 2113(a). The district court1 accepted his

plea and sentenced him to 37 months imprisonment and 3 years of

probation. Mayotte appeals the district court’s denial of his

motion for downward departure. We affirm.
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I.

On August 29, 1994, Mayotte entered the North American Savings

Bank in Gladstone, Missouri. He approached a teller and presented

her with a paper sack and a note which stated, "Give me 100's,

50's, 20's, no tricks, you have ten seconds or I’ll shoot

everybody." The teller placed currency and a dye pack into the

paper sack. Mayotte fled the bank to an awaiting taxicab. Before

reaching the cab, the dye pack exploded and Mayotte dropped the

money. Mayotte was arrested in the taxi on his way home. 

 Mayotte suffered from bipolar affective disorder (manic

depression) and post-traumatic stress syndrome. Prior to the bank

robbery, Mayotte had voluntarily ceased taking lithium which had

been prescribed for his mental condition. He filed a motion for

sentence reduction under U.S.S.G. § 5K2.13, alleging that his

criminal conduct was the result of his diminished capacity. The

district court determined that the diminished capacity was a result

of Mayotte’s voluntary cessation of consuming his prescribed

medication and denied the motion. Mayotte asserts the court erred.

Because Mayotte was not eligible for the downward departure based

on diminished capacity, we affirm.

II.

We review de novo the district court’s application of the

sentencing guidelines. United States v. Premachandra, 32 F.3d 346,

348 (8th Cir. 1994). The guidelines and policy statements do not

apply to Mayotte’s situation. Section 5K2.13 of the United States

Sentencing Guidelines provides:

If the defendant committed a non-violent offense while

suffering from significantly reduced mental capacity not

resulting from the voluntary use of drugs or other

intoxicates, a lower sentence may be warranted to reflect

the extent which reduced mental capacity contributed to
 2

Mayotte asserts that in Premachandra, we adopted the district

court’s "surrounding facts and circumstances test" to determine

whether a crime was "non-violent." We disagree. In Premachandra

and later in United States v. Jackson, we chose not to decide the

question before us today, whether the terms "nonviolent offense"

and "crime of violence" are mutually exclusive, because in each of

those cases the district court had specifically found that the

offense was violent. Jackson, 56 F.3d 959, 961 (8th Cir. 1995)(the

failure of Jackson to challenge the district court’s determination

that the offense was violent was fatal to his claim that he was

eligible for a downward departure); Premachandra, 32 F.3d at 348

(because the offense was violent, and the district court so held,

we declined to address whether the terms were mutually exclusive).

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the commission of the offense, provided that the

defendant’s criminal history does not indicate a need for

incarceration to protect the public.

The first requirement in Section 5K2.13 is that the offense be

"non-violent." The phrase "non-violent offense" is not defined in

the guidelines. However, the term "crime of violence" is defined

in Section 4B1.2 of the sentencing guidelines. We believe that a

"non-violent offense" necessarily excludes a "crime of violence."2

This decision is consistent with a majority of the circuits who

have considered whether the terms "crime of violence" and "nonviolent offense" are mutually exclusive. United States v. Poff,

926 F.2d 588 (7th Cir.)(en banc), cert. denied, 112 S.Ct. 96

(1991); United States v. Russell, 917 F.2d 512, 517 (11th Cir.

1990), cert. denied, 111 S.Ct. 1427 (1991); United States v.

Borrayo, 898 F.2d 91, 94 (9th Cir. 1990); United States v. Rosen,

896 F.2d 789, 791 (3d Cir. 1990); United States v. Maddalena, 893

F.2d 815, 819 (6th Cir. 1989); contra United States v. Weddle, 30

F.3d 532, 537-40 (4th Cir. 1994); United States v. Chatman, 986

F.2d 1446, 1448-53 (D.C.Cir. 1993).

Therefore, if Mayotte committed a "crime of violence" he is

not eligible for a "diminished capacity" reduction. Robbery is

specifically listed as a crime of violence in Application Note 2,

because robbery requires the "use, attempted use, or threatened use
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of physical force against the person of another." U.S.S.G. §

4B1.2; see 18 U.S.C. § 2113(a)(bank robbery requires a taking "by

force and violence, or by intimidation"). Mayotte’s commission of

the offense of bank robbery precludes any "diminished capacity"

reduction in his sentence. 

 Affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.