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Click here for the full text of this decision FACTS:Brian Leron Sam suffers from periods of schizophrenia and psychosis. On Jan. 30, 2002, he entered a bank in Duncansville and presented a teller the following note: “I HAVE A GUN! SILENTLY AND QUICKLY GIVE ME ALL YOUR MONEY.” Before the teller could comply, Sam reached over the counter and seized money being counted by her and another teller. After seizing the money, Sam exited, leaving his note behind. It was written on the back of his disability paperwork, which contained information identifying him to the police. Caught, Sam confessed to the robbery. Sam was subsequently charged with a single count of bank robbery, in violation of 18 U.S.C. �2113(a). In July 2002, after a psychological examination was performed pursuant to 18 U.S.C. �4247(b) and (c), Sam was declared mentally incompetent to stand trial. In September 2003, after psychiatric treatment, he was declared competent to do so. At trial in October 2004, Sam conceded each element of the offense but presented a narrow insanity defense through expert medical testimony. That expert claimed that although Sam knew his actions were wrong, his mental condition prevented his appreciating the seriousness of their consequences. On Oct. 21, 2004, he was convicted by a jury. At sentencing in February 2005, the court held that a downward departure was precluded because Sam’s offense was a crime of violence under U.S. Sentencing Guideline �5K2.13 (permitting a downward departure for crimes committed as a result of a diminished mental capacity, except where the circumstances surrounding the crime involved violence or a serious threat of violence) and his insanity defense was inconsistent with an acceptance-of-responsibility reduction because that defense challenged one of the factual elements the government had to prove culpable mental state. Sam contested his conviction and sentence. He claimed, inter alia, that there was insufficient evidence to convict him under �2113(a) because, while he may have used force and intimidation, those actions were not the causal link that allowed him to seize the money; and the district court erred in failing to grant his requests for both a downward departure based on his diminished capacity and a reduction for acceptance of responsibility. HOLDING:Conviction affirmed. Sentence vacated and remanded for resentencing. The court noted that because �2113(a) is written in the disjunctive, the government need prove only that Sam took the money by use of “force and violence” or by “intimidation.” The court noted that a taking by intimidation under �2113(a) occurs when an ordinary person in the teller’s position reasonably could infer a threat of bodily harm from the defendant’s acts. The first teller, the court noted, testified that as soon as she saw Sam’s note, she knew the bank was being robbed, she was extremely fearful, she was trained to follow the robber’s instructions and, in doing so, she reached for the cash drawer. Accordingly, the court found evidence that the teller’s response resulted directly from Sam’s note and it was reasonable to infer that this response permitted, in part, Sam’s seizing the money. In other words, the court found no manifest miscarriage of justice (the standard of review because Sam failed to move for a judgment of acquittal before his conviction). The court then turned to Sam’s challenge of the denial of a downward departure for his diminished mental capacity. The court noted that �5K2.13 states that a downward departure may be warranted if the defendant committed the offense while suffering from a significantly reduced mental capacity and the significantly reduced mental capacity contributed substantially to the commission of the offense. The section further provides, however, that the departure may not be granted if “the facts and circumstances of the defendant’s offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence.” As a result, the court stated that the district court should have considered the facts and circumstances of Sam’s offense to determine whether it involved “actual violence or a serious threat of violence.” Sam did not use overt violence in robbing the bank. The court found that the district court failed to consider all the facts and circumstances of Sam’s crime, instead categorically denying the departure because “bank robbery is considered a crime of violence.” In sum, the court held that the district court erred in failing to perform �5K2.13′s requisite factual inquiry. The court then examined the district court’s denial of the acceptance-of-responsibility reduction. Because of his insanity defense at trial, the district court denied the reduction on the theory that Sam had not accepted responsibility for his criminal conduct. The court stated that U.S. Sentencing Guideline �3E1.1(a) permits the district court to grant a two-level reduction if the defendant “clearly demonstrates acceptance of responsibility for his offense.” The court found that an insanity defense generally precludes an acceptance-of-responsibility reduction. But it left open the possibility that in a rare situation a defendant may assert such a limited insanity defense and be eligible for the reduction. Sam’s case was not one of those instances because of Sam’s legal sufficiency challenge on appeal and Sam’s expert testified at trial that Sam could appreciate the wrongfulness of his actions, just not the seriousness of their consequences. OPINION:Barksdale, J.; King, Barksdale and Dennis, J.J.

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