FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 03-30527 Plaintiff-Appellee,

D.C. No.

v.  CR-01-00110-MFM

PAUL H. SCHNEIDER,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Oregon

Malcolm F. Marsh, District Judge, Presiding

Argued and Submitted

November 1, 2004—Portland, Oregon

Filed November 18, 2005

Before: Warren J. Ferguson, Stephen S. Trott, and

Andrew J. Kleinfeld, Circuit Judges.

Opinion by Judge Trott;

Concurrence by Judge Ferguson

15443
COUNSEL

Stephen R. Sady, Chief Deputy Federal Public Defender,

Portland, Oregon, for the defendant-appellant.

Kathleen R. Bickers, Assistant United States Attorney, Portland, Oregon, for the plaintiff-appellee. 

OPINION

TROTT, Circuit Judge: 

Paul H. Schneider appeals his ten-month prison sentence

entered after his conviction for theft of government money in

violation of 18 U.S.C. § 641 and Social Security fraud in violation of 42 U.S.C. § 408(a)(4). Schneider contends that (1)

his Sixth Amendment rights were violated because his sentence was enhanced by judge-found facts under the thenmandatory United States Sentencing Guidelines (“U.S.S.G.”);

(2) the district court erred in denying him a downward departure for diminished mental capacity under U.S.S.G. § 5K2.13;

and (3) the district court erred in denying him an adjustment

for acceptance of responsibility under U.S.S.G. § 3E1.1. 

[1] We remand to the district court for proceedings consistent with United States v. Ameline, 409 F.3d 1073 (9th Cir.

2005) (en banc). The sentencing court adjusted upwards the

guideline range by six levels because the court determined

that the amount of loss exceeded $30,000, but was less than

$70,000. See U.S.S.G. § 2B1.1(b)(1)(d). The jury made no

finding regarding the amount of loss beyond $1,000. Under

Ameline, when, as here, “the record is insufficiently clear to

conduct a complete plain error analysis, a limited remand to

the district court is appropriate for the purpose of ascertaining

whether the sentence imposed would have been materially

different had the district court known that the sentencing

UNITED STATES v. SCHNEIDER 15445
guidelines were advisory.” Id. at 1074. Accordingly, we

remand to the district court with instructions that the court follow the procedures outlined in Ameline. See id. at 1084-85. 

[2] Having determined that an Ameline remand is required,

we do not address Schneider’s remaining sentencing challenges.1

REMANDED. 

FERGUSON, Circuit Judge, concurring in the judgment:

A remand in light of United States v. Ameline, 409 F.3d

1073 (9th Cir. 2005) (en banc), is proper but insufficient to

reverse the injustice that occurred at sentencing to a former

United States Marine who suffers from a mental illness that

first surfaced while on duty in the Far East. I concur in the

result but write separately to underscore how the District

Court misapprehended its departure authority and misapplied

U.S.S.G. § 5K2.13, which warrants resentencing. 

I.

In order to understand this case, it is necessary to set forth

important facts about Schneider’s mental condition and what

occurred at the resentencing hearing. 

From April 1997 to August 2000, Schneider, a Marine

Corps veteran with serious mental disabilities that surfaced

during his overseas tour of duty, was hired as a teleservices

representative in the Auburn, Washington, and later Portland,

1We respectfully disagree with our able colleague’s analysis of the district court’s refusal to depart under § 5K2.13 of the Sentencing Guidelines.

However, we need not formally respond to our colleague’s analysis given

that we all agree that an Ameline remand is necessary. 

15446 UNITED STATES v. SCHNEIDER
Oregon, offices of the Social Security Administration (SSA).

During this period, he continued to receive disability benefits

from the SSA although he earned more income per month

than the minimum amount required to constitute “substantial

gainful work” under Title II of the Social Security Act.

Strangely, Schneider worked full time in the same SSA office

that handled his disability case, rendering the government’s

negligence a proximate cause of the very employment it now

claims was unlawful. The government, which apparently did

nothing to determine if Schneider was employable, should not

now have the right to demand that the defendant be imprisoned.

Upon resentencing in November 2003, Schneider presented

evidence of his mental illness. He submitted a psychiatric

evaluation prepared by Yale-educated psychiatrist Dr. Susan

Fiester, in which she concluded that Schneider “suffers from

a severe lifelong psychiatric disorder which is disabling. He

has demonstrated symptoms of both severe Bipolar Disorder

with both Manic and Depressive Episodes and ongoing symptoms of Schizophrenia.” 

Dr. Fiester further concluded that Schneider suffers from

ongoing paranoia and delusions, particularly involving the

government. In 1984, for example, Schneider experienced for

the first time an acute mania while on a tour of duty of the

Indian Ocean as a member of the Marine Corps. According to

Dr. Fiester, Schneider’s mania consisted of “not sleep[ing] for

three days, [having] a tremendous surge of energy, [running]

compulsively to the point of exhaustion and [thinking] the

government was secretly using him as a subject for experimentation.” Schneider was controlled with tranquilizers and

then evacuated to Guam where he attempted to escape by

jumping out of a bus window, fearing that the Marines were

driving him through a live fire exercise. 

Eventually, Schneider was transported to a hospital in

Washington, D.C., where he spent eight months in a locked

UNITED STATES v. SCHNEIDER 15447
psychiatric unit. He was released to his father after being

treated for another three months in the Veteran’s Administration Hospital in Arizona. After this acute manic episode,

Schneider applied for Title II disability benefits in 1984. 

Almost a decade later, Schneider became acutely manic on

several more occasions requiring hospitalization. He developed auditory hallucinations, hearing voices primarily when

he turned on the shower. Schneider was hospitalized for his

mental disabilities after a lengthy high-speed chase in which

he was pursued by several police cars and a police helicopter.

Schneider fled the police because he believed he was participating in a training maneuver for the police department.

In addition to the foregoing manic episodes, Dr. Fiester

reported that Schneider currently believes “that the government ha[s] developed machines (regulators) which they ‘use

against people as subterfuge.’ ” He believes that at times the

government sends him “special messages” “as a way of ‘communicating to agents,’ ” and that the government at times

“ ‘put[s] [him] to the test’ (e.g., when two government agents

investigating his situation in Portland ‘challenged him’ physically . . . He ignored them, feeling they were testing him).”

Moreover, Dr. Fiester explained that Schneider’s disorder

is tied to his sense of entitlement relating to the government.

He has a distorted view of reality whereby he believes he is

entitled to work and collect benefits. This view is affected in

part by the fact that Schneider’s father, who performed cryptographic services and was involved in top-secret projects for

the government, received special entitlements from the government for his work.

During the resentencing hearing, the District Judge first

considered whether Schneider qualified for an acceptance-ofresponsibility adjustment under U.S.S.G. § 3E1.1 and then

addressed the submissions regarding a diminished capacity

departure under U.S.S.G. § 5K2.13. The District Judge began

15448 UNITED STATES v. SCHNEIDER
by discussing Schneider’s demeanor and appearance at trial,

stating that in all his years of experience he had only once or

twice “seen such arrogance in a defendant’s position, such

control of the attorney, interrupting her, adding to her . . .

smirking at witnesses, taking copious notes which he then

passed to the attorney to guide her.” He then stated that

Schneider had not expressed any remorse and found the following:

[Schneider] is an intelligent man . . . [who] knew

exactly what he was doing . . . knew exactly what he

was doing throughout the trial . . . knew exactly what

he was doing throughout the commission of the

offense . . . despite the fact that I will recognize that

he has a mental illness, but I do not find that he is

in any way changed his mind about those things and,

therefore, I’m going to deny the acceptance of

responsibility. 

As to diminished capacity . . . What I need to find

out is whether there is any connection between a

diminished capacity and the offense committed. I

think whatever diminished capacity he has did not

affect his commission of this crime. I think it was

totally built within him an intent to live off someone

else, including the Government, and not face his own

responsibility. . . . 

When I carry over the diminished capacity and then

reconsider, in the light of the acceptance of responsibility, I come to the same conclusion. I appreciate

the report of Dr. Fiester, but I think that Dr. Fiester

might have seen, but I can only surmise here, a personality which she felt supported her conclusions.

What I see here is a man totally manipulative, totally

understanding, knowing exactly what he is doing.

UNITED STATES v. SCHNEIDER 15449
Therefore, I’m going to stay with my previous sentence.

(emphases added). The Court then resentenced Schneider to

the same sentence originally imposed.

II.

It is correct that we need to remand to the District Court for

it to determine whether Schneider should be resentenced

under the post-Booker advisory Sentencing Guidelines (the

“Guidelines”). See United States v. Booker, 125 S. Ct. 738

(2005). I write separately, however, because the District

Court’s refusal to depart under § 5K2.13 rested on two significant errors. First, that Court misapprehended its departure

authority by improperly limiting its scope of review exclusively to the issue of whether Schneider understood the

wrongfulness of his behavior comprising the offense, without

considering the volitional aspect of § 5K2.13. Second, it misapplied § 5K2.13 by conflating the standard for acceptance of

responsibility with that for diminished capacity in finding an

absence of a causal link between Schneider’s unchallenged

mental condition and the commission of the crime in question.

A.

In construing § 5K2.13, the District Court improperly limited its scope of review to the cognitive prong of the diminished capacity definition and completely failed to consider its

discretion to depart on the basis of the separate volitional

capacity prong. See U.S.S.G. § 5K2.13, cmt. n.1 (explaining

that “ ‘[s]ignificantly reduced mental capacity’ means the

defendant, although convicted, has a significantly impaired

ability to (A) understand the wrongfulness of the behavior

comprising the offense or to exercise the power of reason; or

(B) control behavior that the defendant knows is wrongful”)

(emphases added). It is clear that “[s]entencing courts must

consider both prongs [of the significantly-reduced-mental15450 UNITED STATES v. SCHNEIDER
capacity definition] before making a determination about a

defendant’s ‘reduced mental capacity.’ ” United States v.

McBroom, 124 F.3d 533, 548 (3d Cir. 1997). Section 5K2.13

simply states the commonly understood principle that mental

illness is as often manifested in an inability to control behavior a person realizes is wrongful, as it is manifested in an

inability to grasp the wrongfulness of the behavior.

The sentencing hearing transcript indicates the District

Judge only considered Schneider’s ability to understand, not

control, the wrongfulness of his behavior. In fact, that Court

stated that “it was totally built within [Schneider] an intent to

live off someone else . . . and not face his own responsibility,”

and that he is “a man totally manipulative, totally understanding, knowing exactly what he is doing.” These were the only

statements the District Judge made concerning Schneider’s

mental condition. The record certainly shows no effort exercised by the Court to consider whether Schneider, despite presumably knowing what he was doing while committing the

offense in question, had the power to control his behavior or

conform it to law.

Since there is a substantial risk that the District Judge erred

in neither recognizing nor considering the volitional prong of

the diminished capacity guideline, he misapplied the now

advisory Guidelines. A district judge must consider a defendant’s ability to control his or her own conduct when determining that defendant’s eligibility for a downward departure

under § 5K2.13. 

B.

The District Court erred not once but twice in considering

whether to depart under § 5K2.13. The Court also erred by

conflating the standard for an acceptance-of-responsibility

adjustment under § 3E1.1 with that for a diminished capacity

departure under § 5K2.13. 

UNITED STATES v. SCHNEIDER 15451
Before discussing the relevant error, it is important to

understand first how § 5K2.13 operates. “The goal of

[§ 5K2.13] is lenity toward defendants whose ability to make

reasoned decisions is impaired.” United States v. Cantu, 12

F.3d 1506, 1512 (9th Cir. 1993); see McBroom, 124 F.3d at

548. As such, a district court may depart downward to “reflect

the extent to which the reduced mental capacity contributed

to the commission of the offense.” U.S.S.G. § 5K2.13. We

have held explicitly that “[§ 5K2.13] requires only that the

district court find some degree, not a particular degree, of

causation” between the defendant’s mental condition and the

commission of the offense in question. Cantu, 12 F.3d at

1515. 

In order to find an absence or existence of a causal link, the

district court must necessarily first determine whether the

defendant suffers from a mental illness. See U.S.S.G.

§ 5K2.13; United States v. Silleg, 311 F.3d 557, 564 (2d Cir.

2002) (explaining that “to establish diminished capacity a

defendant must establish both ‘reduced mental capacity and a

causal link between that reduced mental capacity and the

commission of the charged offense’ ”) (citations omitted).

Here, the Court conceded at the sentencing hearing that

“[Schneider] has a mental illness,” but it did not discuss the

nature or characteristics of that illness. Instead, it described it

as “whatever diminished capacity [Schneider] had.” The

Court also doubted Dr. Fiester’s findings, concluding that

“Dr. Fiester might have seen . . . a personality which she felt

supported her conclusions,” but neither the Court nor the

Government ever attempted to substitute Dr. Fiester’s evaluation with their own. These statements mark the full extent of

the Court’s assessment of Schneider’s mental condition.

With this limited information, the Court then considered

the causal connection between Schneider’s unchallenged

mental condition and the commission of the crime (defrauding

the SSA). The Court specifically found that “whatever diminished capacity [Schneider] had did not affect his commission

15452 UNITED STATES v. SCHNEIDER
of this crime” because the Court believed that “it was totally

built within him an intent to live off someone else, including

the Government, and not face his own responsibility” (emphases added). Curiously, without assessing the nature of Schneider’s mental illness, the Court found an absence of a causal

link between that illness and the commission of the offense.

In so doing, the Court effectively concluded that there existed

no possibility that any mental condition Schneider had,

“whatever” that might be, could have contributed to the commission of the offense since he was essentially born with an

intent to cheat others without accepting his own responsibility. This blanket conclusion derives from an erroneous application of § 5K2.13.

Indeed, while the Court recognized the need to find a

causal link in order to grant a § 5K2.13 departure, it explicitly

stated that it “reconsider[ed]” diminished capacity “in the

light of the acceptance of responsibility,” strongly suggesting

that the Court conflated departure standards. Whether there

was a causal link, therefore, is secondary to the more fundamental error here: the Court conflated two different legal standards for determining two different downward departures.

To receive an acceptance-of-responsibility adjustment, a

defendant must truthfully admit the conduct comprising the

offense and manifest adequate contrition for his or her actions

in a timely manner. U.S.S.G. § 3E1.1, cmt. n.1; see United

States v. Cortes, 299 F.3d 1030, 1038 (9th Cir. 2002); United

States v. Ochoa-Gaytan, 265 F.3d 837, 843 (9th Cir. 2001);

United States v. Flores, 93 F.3d 587, 590 (9th Cir. 1996). This

standard does not consider the defendant’s mental health or

whether he has the cognitive or volitional capacity to accept

responsibility.

To receive a diminished capacity departure, on the other

hand, a defendant is required to show “some degree, not a

particular degree, of causation” between his mental impairment and the commission of the offense in question. Cantu,

UNITED STATES v. SCHNEIDER 15453
12 F.3d at 1515; see United States v. Leandre, 132 F.3d 796,

803 (D.C. Cir. 1998). Because § 5K2.13 and § 3E1.1 require

evidence of different elements, a court cannot lawfully interpret one standard “in the light of” the other. 

Here, the record suggests the District Court did exactly that

—it misapplied § 5K2.13 by conflating two legal standards.

While discussing the acceptance-of-responsibility adjustment,

the Court not only described Schneider’s arrogance and lack

of remorse but also explained that Schneider “knew exactly

what he was doing throughout the commission of the crime.”

This statement speaks more to whether Schneider’s mental

condition contributed to the commission of the crime than to

whether he accepted responsibility now for the crime he

knowingly committed then. 

Similarly, when the Court shifted to discussing diminished

capacity after discussing acceptance of responsibility, it stated

that “[a]s to diminished capacity, I carry over the same thing,”

suggesting that it was carrying over the same analysis from

acceptance of responsibility. The Court then concluded that it

was “totally built within [Schneider] . . . not to face his own

responsibility,” which speaks more to whether he was able to

accept responsibility than to whether his long history of schizophrenia and bipolar affective disorder may have affected to

some degree his decision to continue unlawfully to collect

disability benefits from the SSA. The District Judge blurred

these two standards and misapplied § 5K2.13 by viewing it

“in the light of” § 3E1.1. 

This case, in fact, is a compelling example of the risks

involved in considering diminished capacity in light of acceptance of responsibility. Dr. Fiester noted in Schneider’s psychiatric evaluation that “[his] severe mental illness [was]

directly related to his inability to appropriately indicate his

guilt, remorse and full acceptance of responsibility for his

fraudulent acts.” She further explained:

15454 UNITED STATES v. SCHNEIDER
Although [Schneider] may appear to have understood the wrongfulness of his behavior on a superficial level, his severe psychiatric illness, particularly,

his thought disorder, paranoia and delusions about

the government and the grandiosity and sense of

entitlement relating to the Bipolar aspects of his disorder, caused him to have a distorted view of reality,

and to deny and ‘justify’ his actions. 

Even if Dr. Fiester is incorrect as to the effect of Schneider’s

particular mental illness on his ability to accept responsibility,

her analysis underscores a significant legal question. If the

purpose of § 5K2.13 is lenity toward those impaired by mental illness, then preventing someone like Schneider from qualifying for a diminished capacity departure in part because his

mental illness makes it difficult or even impossible for him to

accept responsibility for his actions defies that very purpose.

Accordingly, in determining whether to grant a downward

departure on the basis of diminished capacity, a court cannot

consider diminished capacity “in the light of” acceptance of

responsibility. This is a misapplication of the Guidelines.

III.

The District Judge improperly reviewed only the cognitive

prong of the diminished capacity definition and conflated the

standard for an acceptance-of-responsibility adjustment under

§ 3E1.1 with that for a diminished capacity departure under

§ 5K2.13. Resentencing is entirely warranted in light of these

significant errors.

UNITED STATES v. SCHNEIDER 15455