1 Judge Wicker passed away sometime after sentencing Thames and

as a result, this case was reassi gned to Judge Martin Feldman on

December 2, 1993. REVISED - June 28, 2000

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 99-31092

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MICHAEL ANTHONY THAMES,

Defendant-Appellant.

Appeal from the United States District Court

For the Eastern District of Louisiana

June 13, 2000

Before GARWOOD, DeMOSS, and PARKER, Circuit Judges.

DeMOSS, Circuit Judge:

Michael Anthony Thames (“Thames”) appeals from the sentence

im posed by the district court for the Eastern District of

Louisia na, the Honorable Veronica Wicker, 1 presiding, after he

pleaded guilty to two count s of armed robbery in violation of 18

U.S.C . §§ 2113(a) and 2113(d), and one count of use of a firearm

during the commission of a felony in violation of 18 U.S.C.2

§ 924(c)(1). For the reasons discussed below, we affirm the

sentence imposed.

BACKGROUND

The facts of this case are und isputed and the following

recitation thereof is taken primarily from the pre-sentence report

(“PSR”) prepared for the di strict court by the United States

Probation Office. Michael Thames was a police officer for the New

Orleans Police Department. On May 29, 1992, he used a small, snubnosed blue steel revolver to rob the Hibernia National Bank on

Canal Boulevard in New Orleans. In June 1992, the FBI had obtained

an identification o f Thames as the robber through confidential

source information. Approximately one year after the first

robbery, on A pril 19, 1993, Thames used a .38 caliber Smith and

Wesson revolver to again rob the same branch of the Hibernia

National Bank. It was when the Hibernia Bank was robbed the second

time, by an individual matchi ng his description, that the FBI

located and questioned Thames.

FBI agent s stopped Thames in his vehicle, and upon

questioning, he consented to a search of his vehicle which produced

some of the money from the second robbery containing a dye pack

inserted therein by one of the tellers. Thames admitted to

committing both robberies and voluntarily went with the agents to

his residence whe re he retrieved and turned over the rest of the3

money from the second robbery. He subsequently admitted his guilt

as to both robberies to a probation officer and stated that he had

a gambling problem. The probation officer ultimately prepared a

PSR recommending a range of imprisonment of 70 to 87 months on the

robbery charges and the minimum mandatory 60 months applicable to

the firearms charge.

The government filed a motion with the district court asking

it to sentence Thames at the low end of the guidelines range based

on his early willingness to give a truthful account of his

involvement in the robberies, but it stopped short of filing a

§ 5K1.1 motion for departure from the guidelines because in the

government's opinion, Thames had not offered substantial

assistance. Thames informed the district court at his sentencing

hearing that he had a gambling addiction, and he suggested that his

status as a former New Orleans police officer would subject him to

the risk of physical harm in prison. The government reminded the

district court that Thames had cooperated as stated in its motion,

and it requested that the district court inform the Bureau of

Prisons of Thames' status as a former police officer.

On September 21, 1993, the district court sentenced Thames at

the lowest end of the guidelines range, to a term of imprisonment

of 70 months on the two robbery counts, to be served concurrently,

and it sentenced him to a statutory mandatory minimum 60-month term

of imprisonment on the firearms count, to be served consecutive to

the sentence for the robbery counts. Thames was also ordered to2 On April 14, 1997, Thames sought habeas relief under 28 U.S.C.

§ 2255, request ing an out of time appeal based on his trial

counsel's alleged failure t o inform him of the ten-day filing

requirement for a notice of appeal and failure to perfect an appeal

on his behalf. The district court initially denied his request

4 pay restitution in the amount of $25,639 to Hibernia National Bank.

After announcing Thames' sentence, the district court

expressed its concern tha t the guidelines range for Thames'

offenses were rather high given that he was a first-time offender.

Specifically the district court stated for the record:

Let me say that, although I'maware of

your conditions, your mental conditions, and

the fact that you need treatment on two very

important areas. One is the manic depressive

m ood swings and the other is your gambling

addiction, I find nothing in the guidelines to

permit this Court to deviat e because of your

illnesses. And I feel that because of the

manner in which the sentencing guidelines are

set out at this time, that the court could not

deviate from what the sentencing guidelines

impose. However I wish the record to reflect

that you are a first time offender and I think

th at the guidelines are rather harsh for the

crimes that were committed, but I feel

compelled by those guidelines to give you the

sentence that I have. I'm not sure that

perhaps at some time in the future those might

be changed

. . . . But I wanted you to be

aware of that, Mr. Thames, although I may not

fully agree with the guidelines, I feel

compelled under the facts and circumstances of

this case, that they now stand, and the law,

to give you the sentence that you are getting,

which I think , for a first time offender, is

rather high.

The district court permitted Thames to file an o ut-of-time

appeal based upon a miscommunication between Thames and his

attorneys as to whether his attorneys were filing an appeal. 2without a hearing, but on appeal, a panel of this Court remanded

his § 2255 petition for an evidentiary hearing. On remand, the

district court granted his petition, finding that his counsel

effectively denied Thames his right to appeal. Thus, Thames'

appeal is timely.

3 We pause here to note that within his “Summary of Argument”

Thames also argues that his counsel was ineffective in failing to

develop at sentencing that his case was out of the heartland based

upon his cooperation and status as a former police officer.

However, his ineffective assistance argument is neither listed in

his “Statement of Issues Presented for Review” nor addressed in the

body of his brief. Accordingly, his ineffective assistance claims

must be deemed waived. S ee L & A Contracting Co. v. Southern

C oncrete Services

, 17 F.3d 106, 113 (5 th Cir. 1994)(issue s

inadequately briefed are deemed waived); see also Fed. R. App. P.

28(a)(9)(A) & (B).

5 DISCUSSION

On appeal, Thames argues that the district court erroneously

sentenced him under the mistaken belief that it could not depart

from the guidelines. 3 Thames first claims that the district court

had authority to depart downward based under U.S.S.G. § 5K2.16,

based upon his voluntar y disclosure of an additional crime, that

is, the first robbery, which according to Thames, would not have

been discovered absent his admission. He next claims that the

district court had authority to downwardly depa rt under K oon v.

United States

, 116 S. Ct. 2035 (1996), because he would be subject

to abuse in prison as a former police officer. Thames also claims,

presumably under U.S.S.G. §§ 5K2.13 and 5K2.0, as well as 18 U.S.C.

§ 3553(b), that the district court could have departed because his

case is “out of the heartland” of cases contemplated by the

guidelines based upon both the history of corruption in the New6

Orleans Police Department which had led to murders of cooperating

officers and the fact that his psychological problem s (gambling

addiction a nd manic depressive mood swings) made his conduct

inadvertent. Thames finally argues that an aggregation of the

above factors took his case “out of the heartland.”

We are generally without jurisdiction to review a sentencing

court's refusal to grant a downward departure when its decision is

based upon a determination that departure was not warranted on the

facts of the ca se before it; however, we do have jurisdiction to

review such a refusal when it is based upon the district court's

mistaken belief that it does not have the authority to depart, as

such a mistaken belief would constitute a violation of law. S ee

United States v. Palmer

, 122 F.3d 215, 222 (5 th Cir. 1997). Whether

the district co urt below believed it lacked authority to depart

from the guidelines, and would have otherwise done so, is unclear,

but the district court's statement that it found nothing in the

guidelines which would “permit it” to do so m ay indicate that it

believed it lacked such authority. The government contends that

t he district court's comments, taken in context, showed only the

district court's criticism and frustration with the guidelines, but

in no way signified an erroneous belief of a lack of authority to

depart.

Thames did not request a downward departure from the district

court, and his argu ments regarding his entitlement to a downward4 We note that the district court was informed that Thames

cooperated early by confessing to the first robbery and that he

suffered from mood swings and had a compulsive gambling addiction,

but no argument for a downward departure based thereupon was made.

7 departure based upon his voluntary disclosure of the first robbery,

his status as a former police officer, and the aggregation of

factors were not made to the district court, 4 thus they are

reviewed for plain error only. See United States v. Flanagan , 87

F.3d 121, 124 (5 th Cir. 1996) ( downward departure requested under

safety valve provision, when raised in objections to PSR, but not

renewed at sentencing hearing, was to be reviewed under plain error

standard). If the error complained of for the first time on appeal

is plain and affected s ubstantial rights, this Court may provide

relief. S ee United States v. Gaudin

, 115 S. Ct. 2310, 2322 (1995)

(stating that if there is a forfeited error, which is plain, and

which affects substanti al rights, the decision to correct that

forfeited error is in the sound discretion of the Courts of

Appeals). And under this standard, we should not exercise our

discretion to correct a forfeited error unless the error “seriously

affec ts the fairness, integrity or public reputation of judicial

proceedings.” I d. (internal quotations omitted). As is more fully

set out below, we decline to exercise our discretion to correct

these obviously forfeited errors.

The district court did, however, raise sua sponte the issue of

Thames' entitlement to a downward departure based upon his mental5 We note that the district court's s ua sponte address of

Thames' mental condition occurred at the end of the sentencing

hearing just after the pronouncemen t of Thames' sentence. We

express doubt that Thames' failure to request a downward departure

based upon his diminished mental capacity was motivated by the

district court's remarks.

8 condition when it stated that it found nothing in the guidelines

which would permit it to deviate from the guidelines based upon

Thames' manic depressive mood swings or gambling addiction.

Assuming, arguendo only

, 5 that plain error review would therefore

be inappropriate, we would review the district court's refusal to

downwardly depart on this ground for an abuse of discretion. See

United St ates v. Winters , 174 F.3d 478, 482 (5 t h Cir.), cert.

denied

, 120 S. Ct. 409 (1999). The government, however, argues

that Thames' failure to raise a technical objection to the failure

of the district court to depart on the basis of his mental capacity

requires review under the plain error standard. We need not decide

which of these two standards is the most appropriate, because for

the reasons discussed below, we find that the district court's

failure to grant a downward departure based on Thames' diminished

mental capacit y was neither an abuse of discretion, nor plain

error.

Each of Thames' asserted grou nds for entitlement to a

departure are discussed below under the appropriate standards.

A. Voluntary Disclosure of Additional Crime9

Thames first argues that the district court c ould have

departed from the guidelines under U.S.S.G. § 5K2.16 because once

arrested for the 1993 robbery, he immed iately confessed to

committing the 1992 robbery of the same bank. Guidelines § 5K2.16

provides in pertinent part that a depar ture below the applicable

guidelines range may be warranted:

[i]f the defendant voluntarily discloses to

authorities the existence of, and accepts

responsibility for, the offense prior to the

discovery of such offense, and if such offense was

unlikely to have been discovered otherwise, a

departure below the applicable guideline range for

tha t offense may be warranted. For example, a

downward departure under this section might be

considered where a defendant, motivated by remorse,

discloses an offense that otherwise would have

remained undiscovered. This provision does not

apply where the motivating factor is the

defendant's knowledge that discovery of the offense

is likel y or imminent, or where the defendant's

disclosure occurs in connection with the

investigation or prosecution of the defendant for

related conduct.

U.S.S.G. § 5K2.16.

In this case, the complaint alleges that as early as July 1,

1992, a confidential informant informed the FBI that Thames was the

robber of the Hibernia National Bank on May 29, 1992. Thus, it is

apparent that the authorities were already “on to” Thames in

connection with the first robbery, and when he executed his encore

performance approximately one year later at the same branch of

Hibernia Bank, and his description was given as the robber, they

moved in on him for both robberies. Given that the authorities

already suspected, based on the informant's tip , that Thames had10

committed the first robbery, when he committed and admitted to

committing the exact same crime, we conclude that his involvement

in the first was likely to be discovered irrespective of his

confession. The guidelines departure provision, § 5K2.16, applies

only where the additional offense would not have been discovered

but for the defendant's admission. Here, the crime had already

been discovered, and Thames was already a suspect.

Based on the foregoing, the district court's failure to apply

§ 5K2.16 for a downward departure was not error, plain or

otherwise. S ee United States v. Adams

, 996 F.2d 75, 79 (5 th Cir.

1993) (no error in failing to apply § 5K2.1 6 where defendant was

already a suspect and similarities in crimes increased likelihood

that authorities would have linked the two).

B. Status as a Former Police Officer

Here, Thames argues that the district court could have

departed because, as a former police officer who exposed corruption

in the New Orleans Police Department, he would be subjected to

harassment and abuse in prison, and this fact removed his case from

the heartland of cases contemplated by the guidelines. We find

this argument to be without merit.

Relying on Koon v. United States

, 116 S. Ct. 2035 (1996),

Thames argues that the district court could consider a defendant's

susceptibility to abuse i n prison as a basis for departing11

downward. However, in K oon

, the Court focused on the victim's

provocation and misconduct, and on the enormous amount of press and

rioting resulting from the beating of Rodney King, in determining

that the defendant may be subject t o abuse in prison. No such

extenuating circumstances are present in this case which make Koon

controlling. To the contrary, we have noted that a defendant's

status as a law enforcement officer is often times more akin to an

aggravating as op posed to a mitigating sentencing factor, as

criminal conduct by a police officer constitutes an abuse of a

public position. See, e.g., Winters , 174 F.3d at 486 (Sentencing

Commission “applied greater not lesser sentenc es” for crimes

committed by law enforcement officers).

Thames also argues that his case is removed from the heartland

of cases considered by the guidelines because of his cooperation in

exposing co rruption in the New Orleans Police Department. This

contention is belied by the record w hich reveals that the

government stated to the sentencing court that Thames' cooperation

was limited to his confession about his own actions. Additionally,

there is no adequate basis in the record from which to co nclude

that Thames cooperated in exposing corruption in the New Or leans

Police department to such an extent as to subject him to abuse in

prison.

Thus, we find that the district court did not commit error,

plain or otherwise, in failing to depart downward based on Thames'12

status as a former police off icer or for his role in exposing

corruption in the New Orleans Police Department.

C. Mental Condition

Here, Thames argues that the district court could have

departed from the guidelines based upon the fact that his mental

condition made his criminal conduct “[in]advertent behavior.”

Despite the district court's acknowledgment of Thames' manic

depressive mood swings, the only record evidence of psychological

problems pres ented by Thames was with respect to his gambling

addiction.

A defendant's mental condition may, under certain

circumstances, provide grounds for departing from the guidelines.

Under U.S.S.G. § 5K2.13, a departure may be warranted:

if the defendant committed the offense while

suffering from a significantly reduced mental

capacity. However, the court may not depart below

the applicable guideline range if (1) the

significantly reduced mental capacity was caused by

the vo luntary use of drugs or other intoxicants;

(2) the facts and circumstances of the defendant's

offense in dicate a need to protect the public

because the offense involved actual violence or a

serious threat of violence; or (3) the defendant's

criminal history indicates a need to incarcerate

the defendant to protect the public. If a departure

is warranted, the extent of the departure should

reflect the extent to which the redu c ed mental

capacity contributed to the commission of the

offense.

U.S.S.G. § 5K2.13.

U nder this provision, which is the guideline's specific13

attempt to take into consideration a defendant's mental condition,

no departure may be given where the crime was violent in nature.

Thames does not contend that the armed robberies were non-violent,

and the reco rd would not permit such a conclusion in any event.

Thames committed armed takeovers of Hiberni a National Bank's

employees and customers in which everyone was ordered, at gunpoint,

to lay on the f loor while Thames collected money. Under any

d efinition of “crime of violence,” such behavior involved an

obvious and inherent “serious threat of violence,” making § 5K2.13

inapplicable, irrespective of the extent of Thames' reduced mental

capacity.

Guideli nes § 5K2.0 provides that a district court may also

depart from the guide lines when “there exists an aggravating or

mitigating circumstance of a kind, or to a degree, not adequately

taken into consideration by the Sentencing Commissi on in

formulating the guidelines . . . .” U.S.S.G. § 5K2.0. The Third

Circuit addressed a case quite similar to Thames' in United States

v. Rosen

, 896 F.2d 789 (3d Cir. 1990). In R osen

, the court

determined that the defend ant, who claimed entitlement to a

dow nward departure based upon his compulsive gambling, was not

eligible for a departure under § 5K2.13 because his crime, sending

a threatening communication in the mail to extort money through the

threat of injury, was not a non-violent crime. Rosen, however,

argued that irrespective of § 5K2.13's inapplicability, the14

district court misapplied the guidelines in holding that departure

was not justified under § 5K2.0, because the guidelines did not

adequately take into consideration gambling addictions.

The Ro sen court looked to § 5H1.3 which provides that

“[m]ental and emotional conditions are not ordinarily relevant in

determining whether a sen tence should be outside the guidelines,

except as provided in the general provisions of Chapter Five.”

U.S.S.G. § 5H1.3. It went on to determine that a gambling

addiction did not qualify under §5K2.13, the only relevant section

of Chapter Five. The R osen court concluded that the guidelines had

conside red and determined that a mental condition of the sort

s uffered by Rosen would not permit departure in cases inv olving

violent crimes.

We agree with the reasoning of the Third Circuit in Rosen

, and

hold that the guideline s have already adequately taken into

consideration a defendant's mental capacity with §5K2.13, and thus

§5K2.0 is inapplicable to Thames' claim that his diminished mental

capacity, derived from his gambling addiction, entitles him to

consideration for a downward departure. Thus, we conclude that the

district court was, indeed, without authority to grant a downward

departure in Thames' sentence based upon his mental condition, and

no error ensued from the district court's failure to grant the

same.15 D. Aggregation of factors

T hames final argument is that a combination of the

aforementioned factors takes his case out of the heartland of cases

contemplated by the guidelines, and thus, the district court could

have granted a departure based thereupon. As discussed above, each

of Thames' arguments is without merit, and quite simply, we

conclude that an aggregation of meritless contentions cannot serve

as a basis for taking Thames' case out of t he heartland of cases

contemplated by the guidelines. Thus, the district court did not

commit error, plain or otherwise, in failing to depart from the

applicable guidelines sentence range.

CONCLUSION

For all of the foregoing reasons, the sentence imposed by the

district court below is AFFIRMED.