United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued July 11, 2006

Decided July 27, 2006

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. RICHARD A. POSNER, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

No. 05-4464

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BARRY O. RAMSEY,

Defendant-Appellant.

Appeal from the United States District

Court for the Southern District of

Illinois

No. 3:04-CR-30121-001-MJR

Michael J. Reagan,

Judge.

O R D E R

Barry Ramsey pleaded guilty to possession of a firearm by a felon and

was sentenced after the Supreme Court’s decision in United States v. Booker, 543

U.S. 220 (2005). As relevant to this appeal, he sought a sentence below his

guidelines range based on his allegedly diminished mental capacity, but the district

judge rejected his argument and sentenced him within the range to 21 months’

imprisonment and three years’ supervised release. Ramsey appeals, arguing that it

was an error of law for the district court to reject his request for a sentence below

the guidelines range. We affirm.

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 05-4464 Page 2

Ramsey was arrested for unlawful flight to avoid prosecution, and the

police discovered a loaded gun by his bedside during a protective sweep of his

residence. An investigation of his criminal history uncovered a 1996 conviction for

mail fraud, and based on that conviction he was charged with possession of a

firearm by a felon. Ramsey offered three different explanations for possessing the

gun. He first told officers at the time of his arrest that the gun was his. Next, at

the police station, he claimed that the gun was left in his apartment by the previous

owner. Finally, while being transported to the federal courthouse, he told an officer

that he purchased the gun for $50 from “an unknown black man.” All three

explanations were variations on the theme that Ramsey kept the gun for protection,

but at no time before sentencing did he offer a basis for his need to protect himself. 

He only asserted generally that he kept the gun “because of safety reasons.” 

Before trial Ramsey moved to suppress the gun as well as two of his

statements to the police—his statement at time of his arrest and his statement at

the police station. The district court denied the motion to suppress the gun after

concluding that the search of Ramsey’s residence had been proper, and also refused

to suppress the statements he made at the police station and during transport to

the courthouse. But the court did suppress the statement he made at the time of

his arrest because the officers failed to administer the Miranda warnings.

Following the hearing Ramsey pleaded guilty. Prior to sentencing he

filed a “Notice of Departure Grounds from the Advisory Sentencing Guidelines,”

which, as relevant here, requested that the court impose a sentence below the

guidelines range based on diminished capacity. In this request Ramsey alleged for

the first time, based on representations he made to clinical psychologist Dr. Daniel

Cuneo, that childhood abuse and a series of events in 1993 caused him to obtain the

firearm found in his bedroom more than ten years later. Cuneo, relying strictly on

his interview of Ramsey, testified at sentencing that Ramsey (who was 40 at the

time of the offense) suffered physical and sexual abuse as a child and that this

abuse “was a contributing factor for his strong need for protection.” Cuneo related

that Ramsey felt threatened by his girlfriend’s ex-boyfriend, who vandalized

vehicles belonging to he and his girlfriend and also watched the couple engage in

sexual activity through a back window of their home in 1993. Cuneo opined that

Ramsey’s childhood, in conjunction with these events, did not “cause him to get a

gun” but “impinged upon his reasoning, would have impinged upon his

consciousness, would have made him have much greater need for protection.” 

The district court, taking Ramsey’s motion for a “downward departure” at

face value, announced that it could “depart downward” under U.S.S.G. § 5K2.13

based on diminished capacity but concluded that no “departure” was warranted in

Ramsey’s case:
No. 05-4464 Page 3

In this case I just don’t believe there is enough temporal

relationship between the abuse that occurred as a child with this

defendant and the felon in possession that occurred many years later. 

Further, I listened carefully to Dr. Cuneo. Although he did say there

was a significant contribution based upon the prior abuse, I did not

hear him say that the significantly reduced mental capacity

contributed substantially to the commission of the offense. In fact, he

said the opposite. The abuse did not cause him to get a gun, it caused

him to enhance or heightened—to feel a need for protection. Based

upon those conclusions also, I don’t believe the departure would be

warranted under diminished capacity.

The court then commented, “I think this information is certainly something I will

take into consideration in the ultimate sentence, but I will not make a finding of

diminished capacity.”

The court went on to assign Ramsey a total offense level of 14 and placed

him in criminal history category II, yielding an advisory imprisonment range of 18

to 24 months. After calculating this range, which Ramsey does not challenge, the

court noted that it was “considering all of the factors under 18 U.S.C. Section 3553,”

including the “diminished capacity discussion that we had earlier.” The court then

imposed a sentence of 21 months, near the middle of the range. 

On appeal Ramsey argues that the district court erred by failing to reduce

his sentence based on diminished capacity. He asserts that the court committed

legal error in rejecting his request for a “downward departure” because, in Ramsey’s

view, the court based its rejection on the fact that Ramsey’s possession of the

firearm “occurred many years later” than his childhood abuse and improperly

concluded that the abuse did not affect his decision to possess a gun. Neither

temporal relationship nor lack of substantial contribution, according to Ramsey,

should be a basis for a court to reject a “departure” request under § 5K2.13. 

Ramsey recognizes that reasonableness is the ultimate measure of whether his

sentence should stand, but argues that an error of law regarding a request for a

“departure” makes the sentence unreasonable. 

Ramsey’s focus on § 5K2.13 and the pre-Booker language of “departures”

is misguided. After Booker, matters having no effect on the calculation of the

guidelines range are relevant only to the extent they affect the reasonableness of

the sentence imposed. See United States v. Vaughn, 433 F.3d 917, 923-24 (7th Cir.

2006); United States v. Arnaout, 431 F.3d 994, 1003-04 (7th Cir. 2005); see also

United States v. Lange, 445 F.3d 983, 987 (7th Cir. 2006). And as in other recent

cases where defendants have tried to fit an argument in favor of a below-range
No. 05-4464 Page 4

sentence into “the narrow review framework for departures” that applied before

Booker, the discussion here is an “unnecessary diversion.” United States v. Laufle,

433 F.3d 981, 986 (7th Cir. 2006); see United States v. Walker, 447 F.3d 999, 1005-

06 (7th Cir. 2006); United States v. Castro-Juarez, 425 F.3d 430, 436 (7th Cir. 2005). 

As we have explained, “framing of the issue as one about ‘departures’ has been

rendered obsolete” by Booker, and now “what is at stake is the reasonableness of the

sentence, not the correctness” of a departure ruling “as measured against preBooker rulings.” United States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005). Thus,

Ramsey’s attempt to quibble with the district court’s understanding of § 5K2.13 is

fruitless because the district court should never have entertained his request for a

“departure” independent of its consideration of the § 3553(a) factors. The only

relevant question for us is whether the district court fairly considered Ramsey’s

diminished capacity argument as a factor under § 3553(a) when it imposed his

sentence. See Laufle, 433 F.3d at 986.

The district court adequately evaluated Ramsey’s argument in favor of a

lesser sentence, and Ramsey has failed to undermine the reasonableness of that

sentence. The court, approaching the question (as did Ramsey) from the

perspective of a request for a “downward departure,” viewed his childhood abuse as

too remote in time to have weakened his capacity to avoid possessing a firearm

illegally, and not as a factor that had “contributed substantially to the commission

of the offense.” The court iterated its refusal to adjust Ramsey’s sentence based on

diminished capacity when it considered whether the § 3553(a) factors should

mitigate his sentence. Though the court should not have engaged in the

“unnecessary diversion” of first analyzing Ramsey’s argument in the language of

“departures,” Laufle, 433 F.3d at 986, the court nevertheless considered Ramsey’s

plea for a below-range sentence and did not misunderstand its discretion to adjust

his sentence. Id. 

There is also no indication that Ramsey’s sentence is unreasonable. Even

applying our § 5K2.13 jurisprudence as a “useful starting point,” Castro-Juarez, 425

F.3d at 434, Ramsey presented a weak case for a “departure.” Dr. Cuneo testified

that Ramsey “knew what he was doing was wrong,” and we have remarked that “[a]

single statement which could be more damaging to [a defendant’s] motion for a

downward departure is hard to imagine.” United States v. Ferron, 357 F.3d 722,

725 (7th Cir. 2004). Ramsey’s complains that the court should not have discounted

childhood abuse because it occurred in the past, but he points only to the Ninth

Circuit’s opinion in United States v. Menyweather, 447 F.3d 625, 631, 634 (9th Cir.

2006), to suggest that critique is improper. Menyweather, though, did not comment

on temporal proximity, though it did affirm a “downward departure” (Menyweather

was first sentenced prior to Booker) based in part on a history of traumatic

childhood events. Menyweather, 447 F.3d at 631. Ramsey also argues that it was

unreasonable for the court to suggest that his alleged need for protection had not
No. 05-4464 Page 5

“contributed substantially to the commission of the offense.” But, the district

court’s approach to § 5K2.13 in this case is similar to the approach in United States

v. Roach, in which we drew a distinction between a defendant’s inability to fully

“control unspecified wrongful behavior” and whether her “impairment was

significant.” 296 F.3d 565, 573 (7th Cir. 2002). As Cuneo testified, Ramsey’s

general need for security did not “cause him to get a gun,” and he knew his action

was wrong. Both statements support the district court’s determination that

Ramsey’s alleged diminished capacity did not contribute substantially to his

possession of the firearm. Thus, it cannot be said that the district court’s failure to

impose a below-guidelines sentence was unreasonable.

AFFIRMED.