This order and judgment is not binding precedent except under the *

doctrines of law of the case, res judicata and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

 After examining the briefs and the appellate record, this three-judge **

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

F I LED

United States Court of Appeals

Tenth Circuit

August 31, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 06-4299

v. (D. of Utah)

KYLE MINCHEY,

Defendant-Appellant.

(D.C. No. 2:05-CR-546-DB)

ORDER AND JUDGMENT

*

Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges. 

**

Kyle Minchey pleaded guilty to one count of possession of stolen firearms

in violation of 18 U.S.C. § 922(j). Based on an offense level of 21 and a criminal

history of VI, Minchey fell within a sentence range of 77–96 months pursuant to

the United States Sentencing Guidelines (USSG). Minchey sought a downward

departure based on “diminished capacity” under USSG §5K2.13. The district
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court denied the motion and sentenced Minchey to a term of 86 months. Minchey

timely appealed (1) the denial of the downward departure and (2) the

reasonableness of his sentence under 18 U.S.C. § 3553(a). We AFFIRM.

I. Background

Minchey was indicted for possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1) and for knowing possession of a stolen firearm

in violation of 18 U.S.C. § 922(j). He pleaded guilty to the second count,

admitting that he possessed a Magnum revolver, a shotgun, and two rifles, which

he knew were stolen. At his change of plea hearing, Minchey requested a

psychological examination pending sentencing.

A Presentence Report (PSR) was prepared which related the following: On

May 15, 2005, police were called to investigate a residential burglary at the home

of Minchey’s parents-in-law. Four firearms, some cash, and a set of car keys had

been stolen. Minchey was subsequently stopped in the vehicle owned by his inlaws and later told the officers where the firearms were hidden. The PSR

calculated a base offense level of 20 and four enhancements for involvement of

more than three firearms and a stolen firearm. After a downward adjustment for

acceptance of responsibility, the PSR arrived at a total offense level of 21,

yielding a guideline range of imprisonment of 77–96 months.
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Minchey’s criminal history included adult convictions of 12 separate theft,

drug possession, and forgery-related offenses that yielded a criminal history

category of VI. Other charges for drug possession and receiving stolen property

were pending at the time. The PSR also noted that, three years before, Minchey

had been diagnosed by Salt Lake County Jail medical personnel as schizophrenic

and had taken medication for that condition as well as depression. The PSR

recommended Minchey be required to complete a substance abuse program as

well as to receive treatment for his mental illness. Finally, the PSR noted that the

maximum term of imprisonment for Minchey’s offense was ten years. 

Before sentencing, Minchey filed a motion for a downward departure for

significantly reduced mental functioning in support of which he submitted the

results of a psychological examination. The report suggested that Minchey’s

“historical experiences of mental illness including paranoid schizophrenia

symptoms may have contributed to [his] perceived need to procure weapons as a

means of self-protection.” Supp. App. at 4. Minchey argued the report supported

a causal connection between his mental illness and his crime, thus entitling him to

a downward departure under § 5K2.13. The government objected to the motion at

sentencing based on its view that any mental illness on Minchey’s part

nevertheless did not cause him to commit the crime. R. Vol. III at 4.
 Section 5K2.13 allows “[a] sentence below the applicable guideline 1

range” if “(1) the defendant committed the offense while suffering from a

significantly reduced mental capacity; and (2) the significantly reduced mental

capacity contributed substantially to the commission of the offense.” USSG

§5K.13.

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At sentencing, the district court denied Minchey’s motion to depart and

sentenced him to 86 months incarceration, within the suggested guideline range.

II. Discussion

1. Denial of Downward Departure

Minchey argues the district court erred in denying his motion for a

downward departure under USSG § 5K2.13, which allows a sentence below the

applicable guidelines range when the defendant has significantly reduced mental

capacity. After considering family letters sent on Minchey’s behalf, the results 1

of a psychological examination, and the testimony of the parties at sentencing, the

district court denied Minchey’s motion to depart and sentenced him to 86 months

imprisonment. R. Vol. III at 3, 9. 

We lack jurisdiction to review a sentencing court’s refusal to depart

downward from the guidelines, absent a clear misunderstanding by the court of its

discretion to depart. See, e.g., United States v. Chavez-Diaz, 444 F.3d 1223, 1228

(10th Cir. 2006); United States v. Brown, 316 F.3d 1151, 1154 (10th Cir. 2003). 

The only exception arises if the district court refuses to depart based on a false

belief that it lacks the authority to do so “for the entire class of circumstances
 Specifically, the court stated it “has reviewed the psychological 2

evaluation in connection with this sentencing and taken that into consideration as

well.” R. Vol. III at 3. In ruling on the motion, the court simply stated that it

“denies the motion for the downward departure.” Id. at 9. 

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proffered by the defendant.” United States v. Sheehan, 371 F.3d 1213, 1215–16

(10th Cir. 2004) (concluding we could review the denial of a departure under

USSG §5K2, but only because “the district court unambiguously stated it had no

discretion to depart . . . based on a defendant’s diminished capacity.”).

While the district court in this case did not elaborate on its rationale for

denying the motion to depart, it also never betrayed a false belief that it lacked

authority to depart for the “class of circumstances proffered,” namely mental

illness. It made clear, moreover, that the results of the psychological exam were

considered but exercised its discretion to deny the motion nevertheless.2

2. Reasonableness of Sentence

Minchey also challenges the reasonableness of his sentence. In light of the

Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), we

continue to have jurisdiction to review a sentence for reasonableness. ChavezDiaz, 444 F.3d at 1229. 

We review the district court’s sentence for reasonableness in light of the

sentencing factors set forth in 18 U.S.C. § 3553(a). United States v. Kristl, 437

F.3d 1050, 1053 (10th Cir. 2006). The district court has significant discretion in
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sentencing, and our review for reasonableness, regardless of whether the sentence

falls inside or outside of the advisory guidelines, is a review for abuse of

discretion. Rita v. United States, 127 S. Ct. 2456, 2465 (2007); see also United

States v. Garcia-Lara, No. 06-3054, 2007 WL 2380991, at *4 (10th Cir. Aug. 22,

2007).

In this case, the district court sentenced Minchey within the guidelines

range and Minchey does not claim that the guidelines range itself was improperly

calculated. The binding precedent of our court is that “a sentence that is properly

calculated under the guidelines is entitled to a rebuttable presumption of

reasonableness.” Kristl, 437 F.3d at 1054. See also United States v. RuizTerrazas, 477 F.3d 1196, 1203 (10th Cir. 2007). The Supreme Court has recently

affirmed our application of the presumption of reasonableness to withinguidelines sentences, holding that the presumption is permissible but not required. 

Rita v. United States, 127 S. Ct. 2456, 2459 (2007). 

Nevertheless, the presumption of reasonableness “is a deferential standard

that either the defendant or the government may rebut by demonstrating that the

sentence is unreasonable when viewed against the other factors delineated in

§ 3553(a).” Kristl, 437 F.3d at 1054. These factors include “the nature of the

offense and characteristics of the defendant, as well as the need for the sentence

to reflect the seriousness of the crime, to provide adequate deterrence, to protect
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the public, and to provide the defendant with needed training or treatment.” Id. at

1053. Moreover, the Supreme Court has emphasized the district court’s duty to

show it has considered these factors in reaching the sentence imposed. Rita, 127

S. Ct. at 2468 (“The sentencing judge should set forth enough to satisfy the

appellate court that he has considered the parties’ arguments and has a reasoned

basis for exercising his own legal decisionmaking authority.”). But the Court also

made clear that a district judge is not required to give an exhaustive list of

reasons. Id. (“The law leaves much, in this respect, to the judge’s own

professional judgment.”).

In this case, Minchey does not challenge the fact that many of the § 3553(a)

factors weighed against him, including his excessive criminal history, the

seriousness of his offense, the need for the sentence to deter him from similar

conduct in the future, as well as his need for treatment for drug abuse and mental

health issues. Rather, he claims the district court “did not consider the mitigating

factors [namely, the results of his psychological examination] that Mr. Minchey

presented at sentencing as required by 18 U.S.C. § 3553(a).” Aplt. Br. at 21–22. 

He adds that it is “clear that the district court did not consider any of the

considerations raised in the downward departure motion independently in

determining the reasonableness of the sentence.” Id. at 23. 

But the record belies this claim. At sentencing, the district court noted:
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I have received a number of letters on the defendant’s behalf, from his

mother and from his ex-wife, and they are very thoughtful letters and

I appreciate receiving them. . . . I have also reviewed a psychological

examination in connection with this sentencing and taken that into

consideration as well. 

R. Vol. III at 3 (emphasis added). The district court was thus explicit that it had

considered Minchey’s psychological profile in connection with its sentencing

decision. Additionally, the terms of the sentence imposed reflect the court’s

consideration of Minchey’s history of mental illness and drug abuse. Specifically,

the court ordered Minchey to participate in a drug and alcohol rehabilitation

program as well as a mental health treatment program. R. Vol. III at 9. 

Minchey’s claims that the district court failed to consider his mitigating factors in

imposing his sentence are simply unfounded.

III. Conclusion

For the foregoing reasons, the district court’s sentence is AFFIRMED.

Entered for the Court

Timothy M. Tymkovich 

Circuit Judge