United States v. Flowers , 38 F. App'x 911 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4866
ANTHONY RAY FLOWERS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CR-01-44-BR)
Submitted: May 29, 2002
Decided: June 25, 2002
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, Shea Riggsbee Den-
ning, Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Jennifer May-Parker, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. FLOWERS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Anthony Ray Flowers appeals his convictions and sentences for
armed bank robbery and aiding and abetting, in violation of 18
U.S.C.A. § 2113(a), (d) (West 2000), and 18 U.S.C.A. § 2 (West
2000), and for conspiracy to commit armed bank robbery in violation
of 18 U.S.C.A. § 371 (West 2000). Finding no reversible error, we
affirm.
Flowers first claims that the district court erred in denying his
motion for downward departure based on diminished capacity pursu-
ant to U.S. Sentencing Guidelines Manual (U.S.S.G.) § 5K2.13
(2000). Because a decision to depart from the sentencing guidelines
is a highly factual determination within the exclusive province of the
sentencing court, we will only review such a decision if it reflects a
purely legal determination, such as the district court’s misapprehen-
sion of its authority to depart. United States v. Wilkinson, 137 F.3d
214, 230 (4th Cir. 1998); United States v. Bayerle, 898 F.2d 28, 30-
31 (4th Cir. 1990). A review of the sentencing hearing transcript indi-
cates the district court’s refusal to depart downward was based on the
facts that Flowers and the Government presented at sentencing and
not on any misapprehension of its ability to depart. Accordingly, this
issue is not reviewable. See United States v. Matthews, 209 F.3d 338,
352-53 (4th Cir.), cert. denied, 531 U.S. 910 (2000).
Flowers next contends that the district court erred by refusing to
grant him a "minor role" adjustment under U.S.S.G. § 3B1.2. Specifi-
cally, Flowers contends that the district court should have deemed
him a minor participant in the offenses because his mental impairment
reduced his culpability for the crime. Because Flowers failed to make
this argument before the district court, this court reviews for plain
error.*United States v. Olano, 507 U.S. 725, 732 (1993). Assuming
*Flowers argued at sentencing that he was entitled to an adjustment
under U.S.S.G. § 3B1.2 on the basis that he was merely the getaway
driver for the armed bank robbery.
UNITED STATES v. FLOWERS 3
that a "minor role" adjustment may be granted solely based upon the
defendant’s mental condition, rather than his conduct, but cf. United
States v. Howard, 894 F.2d 1085, 1088 (9th Cir. 1990) (stating that
the court should not rely exclusively on a defendant’s mental state in
determining whether U.S.S.G. § 3B1.2’s minor participant adjustment
applies), our review of the record reveals that Flowers’s conduct was
"material or essential to committing the offense[s]," United States v.
Palinkas, 938 F.2d 456, 460 (4th Cir. 1991). Flowers was involved
in many aspects of the planning and execution of the robbery.
Although Flowers may have some intellectual limitations, he has not
presented evidence demonstrating that his limitations prevented him
from understanding and taking part in the crime. We therefore con-
clude that the district court did not commit plain error in finding that
Flowers was not entitled to a "minor role" adjustment.
Finally, Flowers contends that the district court’s restitution order
must be corrected on remand to include language stating that the
bank’s recovery is limited to the amount of its loss. The district
court’s order holds Flowers jointly and severally liable with his co-
defendent for the payment of $1484 to the bank. Because Flowers did
not raise this issue in the district court, this court reviews for plain
error. Olano, 507 U.S. at 732. Because there is no statutory require-
ment, nor controlling law in the Fourth Circuit, requiring that a resti-
tution order imposing joint and several liability explicitly state the
limit of the victim’s recovery, we conclude that the district court’s
failure to include this limitation in its order does not amount to plain
error.
Accordingly, we affirm Flowers’s convictions and sentences. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED