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Defendant David L. Merryman’s Brief in Support of Motion for a Downward Departure under U.S.S.G. § 5K2. 13. Based upon Diminished Capacity — United States v. Merryman (Dkt. 54, E.D. Va.)

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Defendant David L. Merryman's brief in support of a motion for a downward departure under U.S.S.G. § 5K2.13 based on diminished capacity, in United States v. David L. Merryman, Case No. 4:24cr4, in the U.S. District Court for the Eastern District of Virginia, Newport News Division, filed December 4, 2024 as Document 54. The defendant moves for a departure from the advisory guidelines range to be determined at sentencing and argues that the elements of the diminished capacity departure are met. It is filed by his counsel in Norfolk.

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Filed December 4, 2024 in David L. Merryman; one of 2 filings from this case.

Record facts

Court	U.S. District Court for the Eastern District of Virginia
Filed	2024-12-04

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“Defendant David L. Merryman’s Brief in Support of Motion for a Downward Departure under U.S.S.G. § 5K2. 13. Based upon Diminished Capacity — United States v. Merryman (Dkt. 54, E.D. Va.).” U.S. District Court for the Eastern District of Virginia, No. 4:24-cr-00004, Doc. 54, filed 2024-12-04. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/us-v-david-l-merryman/2024-12-04-defendant-david-l-merryman-s-brief-in-support-of-motion-for-dkt-54/, SHA-256 f356f22ca2b6c9a99bdc864ff4648e7d30dd89cbca42afacc09ba626fa048adf.

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Case 4:24-cr-00004-RAJ-DEM Document 54 Filed 12/04/24 Page 1 of 4 PageID# 404

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
NEWPORT NEWS DIVISION

UNITED STATES OF AMERICA

v. Case No. 4:24cr4

DAVID L. MERRYMAN.

DEFENDANT DAVID L. MERRYMAN’S BRIEF IN SUPPORT OF MOTION FOR A DOWNWARD
DEPARTURE UNDER U.S.S.G. § 5K2. 13. BASED UPON DIMINISHED CAPACITY

COMES NOW the defendant, DAVID L. MERRYMAN, by counsel, and as and for his

Brief In Support Of Motion For Downard Departure Under U.S.S.G. § 5K2. 13. Based Upon

Diminished Capacity, respectfully states as follows:

INTRODUCTION

The defendant respectfully notifies the Government that he intends to present

mental health extenuating and mitigating evidence at sentencing through Elizabeth Wheeler,

Ph.D., an experienced, capable and credible forensic psychologist.

More specifically, as requested in defendant’s accompanying Motion, and as further

set forth below, the defendant respectfully moves this Honorable Court for a downward

departure from the applicable Advisory Sentencing Guidelines range to be determined by the

Court, on the recognized ground of “diminished capacity.” See generally Sentencing

Procedures Order, entered on July 31, 2024, at Paragraph 10.

ARGUMENT

§5K2.13 - Diminished Capacity

U.S.S.G. §5K2.13 states, in pertinent part, as follows:

A downward departure may be warranted if (1) the
defendant committed the offense while suffering from a

Case 4:24-cr-00004-RAJ-DEM Document 54 Filed 12/04/24 Page 2 of 4 PageID# 405

significantly reduced mental capacity; and (2) the significantly
reduced mental capacity contributed substantially to the
commission of the offense. Similarly, if a departure is warranted
under this policy statement, the extent of the departure should
reflect the extent to which the reduced mental capacity
contributed to the commission of the offense.

As further noted under the Commentary, Application Note 1.:

“Significantly reduced mental capacity” means the
defendant, although convicted, has a significantly impaired
ability to (A)… exercise the power of reason; or (B) control
behavior that the defendant knows is wrongful.

The defendant intends to present evidence at sentencing that he did, in fact, commit

“the offense while suffering from a significantly reduced mental capacity.” As noted above,

the defendant intends to present Elizabeth Wheeler, Ph.D., as a defense expert witness at

sentencing.

More specifically, as a result of her evaluation and assessment of the defendant, Dr.

Wheeler is expected to opine, to a reasonable degree of medical certainty, that the

defendant suffers from a personality disorder, described as severe narcissism.

Dr. Wheeler is further expected to opine, again to a reasonable degree of medical

certainty, that this mental health entity likely “contributed substantially to the commission of

the offense,” by making it more difficult for the defendant “to exercise the power of reason”

to restrain his inappropriate words and acts, as well as to “control behavior that the

defendant knows is wrongful” but in which he nevertheless engaged.

Otherwise stated, Dr. Wheeler is expected to opine that the defendant’s severe

narcissism personality disorder made it less likely for him to be able to exercise the requisite

restraints and controls that would prevent and avoid the offense conduct at issue, including,

most particularly, the discriminatory, ad hominem comments, statements, and declarations

Case 4:24-cr-00004-RAJ-DEM Document 54 Filed 12/04/24 Page 3 of 4 PageID# 406

made by the defendant to a number of his tenants and other individuals in the

housing/rental industries.

The grounds for Dr. Wheeler’s opinions include: (1) her education, training, and

experience as a forensic psychologist (see Exhibit 1 attached hereto – copy of Dr. Wheeler’s

C.V.); (2) her personal evaluation and assessment of the defendant in the Norfolk City Jail;

(3) her review of testing materials and results generated by a different forensic psychologist

who evaluated the defendant months ago in connection with potential guilt/innocence

phase mental health defenses; (4) a review of certain basic case background materials

(copies of which were provided to Dr. Wheeler by defense counsel); (5) a review of the Policy

Statement and Commentary under U.S.S.G. § 5K2. 13.; and, (6) input from, and discussion

with, the undesigned counsel as to his observations of the defendant based on extensive

and frequent in-person and telephone contacts with the defendant over the past nearly ten

and a half months (and also including discussions with Dr. Wheeler of the factual backdrop

of the case).

In sum, Dr. Wheeler is expected to testify that her forensic psychological findings and

conclusions fall within the ambit of the elements under U.S.S.G. § 5K2. 13. Diminished

Capacity.

CONCLUSION

For the foregoing reasons, the defendant respectfully moves the Court for a

downward departure from the applicable Advisory Sentencing Guidelines range to be

determined by the Court at sentencing.

DAVID L. MERRYMAN
By: /s/
Andrew M. Sacks, Esquire

Case 4:24-cr-00004-RAJ-DEM Document 54 Filed 12/04/24 Page 4 of 4 PageID# 407

Andrew M. Sacks, Esquire, VSB#: 20082
Attorney for defendant David L. Merryman
SACKS & SACKS, P.C.
Town Point Center
150 Boush Street, Suite 505
Norfolk, VA 23510
Telephone: (757) 623-2753
Facsimile: (757) 274-0148
E-mail: andrewsacks@lawfirmofsacksandsacks.com

CERTIFICATE OF SERVICE

I hereby certify that on this 4th day of December, 2024, I will electronically file the
foregoing with the Clerk of Court using the CM/ECF system, which will then send a
notification of such filing (NEF) to:

Brian James Samuels, Esquire and David M. Coleman, Esquire
Assistant United States Attorney Assistant United States Attorney
United States Attorney’s Office United States Attorney’s Office
Fountain Plaza Three Fountain Plaza Three
721 Lakefront Commons, Suite 300 721 Lakefront Commons, Suite 300
Newport News, Virginia 23606 Newport News, Virginia 23606
Telephone: 757-591-4032 Telephone: 757-591-4028
Facsimile: 757-591-0866 Facsimile: 757-591-0866
E-mail: brian.samuels@usdoj.gov E-mail: mack.coleman@usdoj.gov

/s/
Andrew M. Sacks, Esquire

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