United States v. Goins , 113 F. App'x 131 ( 2004 )

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0052n.06
Filed: October 28, 2004
Case No. 03-6281
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
Plaintiff-Appellant, ) THE EASTERN DISTRICT OF
) TENNESSEE
v. )
)
PARKE GOINS, )
)
Defendant-Appellee. )
Before: BATCHELDER and GIBBONS, Circuit Judges; and STAFFORD, District Judge.*
STAFFORD, District Judge. Appellant, the United States of America (the
“government”), appeals the sentence given to the defendant, Parke Goins (“Goins”),
following his guilty plea to dealing in firearms without a license to do so. Specifically, the
government appeals the district court’s five-level downward departure from the
sentencing guidelines. We vacate and remand for resentencing.
I.
On June 5, 2002, Goins was charged with four counts of firearms violations
occurring between May, 2001, and April 17, 2002. In Count One, Goins was charged
with willfully engaging in the unlicensed business of dealing in firearms, including but
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* The Honorable William Stafford, Senior United States District Judge for the
Northern District of Florida, sitting by designation.
not limited to those firearms identified in the remaining three counts, in violation of 18
U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D). Goins pleaded guilty to Count One on March
26, 2003. The government agreed to move for dismissal of the remaining three counts
at the time of sentencing.
On September 2, 2003, after filing a motion for downward departure, Goins
appeared before the district court for sentencing. At the time of sentencing, Goins was
69 years old. In 1997, he suffered a heart attack that required quadruple bypass
surgery. He suffers from diabetes and psoriasis; has been diagnosed with coronary
artery disease, congestive heart failure and hypertension; has poor circulation in his legs
which causes him to use a cane to walk at times; and takes daily medication, including
nitroglycerin tablets, for his various conditions. In the district court’s words:
[Defendant is] 69 years old; he has got congestive heart
failure, hypertension, coronary artery disease, diabetes,
psoriasis; he has got all kinds of problems; [he’s] as gray as
he can be. He looks like he has got some problems with
circulation just looking at him right now. He doesn’t look well
at all. He came in here staggering on a cane. He doesn’t
belong in the penitentiary.
J.A. at 93.
Pursuant to U.S.S.G. § 2K2.1, the probation officer calculated Goins’s base
offense level to be twelve (12). That base offense level was increased six (6) levels
pursuant to U.S.S.G. § 2K2.1(b)(1)(C) for possession of between twenty-five (25) and
ninety-nine (99) firearms. Taking into account a three-level reduction for acceptance of
responsibility, Goins’s adjusted total offense level was fifteen (15). With a criminal
history category I, Goins’s guideline range for imprisonment was eighteen (18) to twenty-
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four (24) months. Pursuant to U.S.S.G. § 5B1.1(b), Goins was not eligible for a sentence
of probation.
Rejecting the government’s objections to a downward departure, the district court
sentenced Goins to probation for a term of five (5) years. The district court explained:
It is felt that this sentence of probation will afford more than
adequate deterrence and provide just punishment in your
case, particularly in lieu, in view of the fact that you are in a
very fragile physical condition, not only by your appearance,
but by what I have learned about your medical problems.
You look frail. You look pale; you look sick. I find that that is
an extraordinary physical impairment. It gives me reason to
impose a sentence below the applicable guideline range that
you are seriously infirm. Home detention is as efficient and
certainly is less costly than prison. You have diabetes,
psoriasis, coronary artery disease, congestive heart failure,
hypertension. You are required to use a cane because of
arthritis of the right hip, poor circulation in your legs. You
take medication for all these conditions, that you have to use
nitroglycerin for severe chest pain on a regular basis.
J.A. at 100.
The government filed a timely notice of appeal on September 29, 2003.
II.
18 U.S.C. § 3742(e) spells out the standard of review as follows:
The court of appeals shall give due regard to the opportunity
of the district court to judge the credibility of the witnesses,
and shall accept the findings of fact of the district court unless
they are clearly erroneous and, except with respect to
determinations under subsection (3)(A) or (3)(B), shall give
due deference to the district court’s application of the
guidelines to the facts. With respect to determinations under
subsection (3)(A) or (3)(B), the court of appeals shall review
de novo the district court’s application of the guidelines to the
facts.
Subsection (e)(3)(B) provides that “the court of appeals shall determine whether the
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sentence..is outside the applicable guideline range, and...departs from the applicable
guideline range based on a factor that (i) does not advance the objectives set forth in
section 3553(a)(2); or (ii) is not authorized under section 3553(b); or (iii) is not justified by
the facts of the case.”
In United States v. Johnson, 71 F.3d 539, 544-45 (6th Cir. 1995), cert. denied,
517 U.S. 1113 (1996), the court explained how to review departures as follows:
In reviewing departures from the guideline range, we apply a
three-part test: (1) whether the case is sufficiently unusual to
warrant departure, a legal question subject to de novo review;
(2) whether the circumstances, if legally sufficient, are
actually present, a factual question subject to a clearly
erroneous standard of review; (3) whether the direction and
degree of departure is reasonable.
III.
A sentencing court must impose a sentence within the applicable guideline range
“unless the court finds that there exists an aggravating or mitigating circumstance of a
kind, or to a degree, not adequately taken into consideration by the Sentencing
Commission.” United States v. Reed, 264 F.3d 640, 646 (6th Cir. 2001), cert. denied,
122 S. Ct. 1374 (2002). The guidelines provide that both age and physical condition
may be valid grounds for a downward departure. Specifically, U.S.S.G. § 5H1.4
provides, in relevant part:
Physical condition or appearance, including physique, is not
ordinarily relevant in determining whether a sentence should
be outside the applicable guideline range. However, an
extraordinary physical impairment may be a reason to impose
a sentence below the applicable guideline range; e.g., in the
case of a seriously infirm defendant, home detention may be
as efficient as, and less costly than, imprisonment.
U.S.S.G. § 5H1.1 provides:
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Age (including youth) is not ordinarily relevant in determining
whether a sentence should be outside the applicable
guideline range. Age may be a reason to impose a sentence
below the applicable guideline range when the defendant is
elderly and infirm and where a form of punishment such as
home confinement might be equally efficient as and less
costly than incarceration.
See also Johnson, 71 F.3d at 545 (noting that,”[l]egally, we find it possible that an aged
defendant with a multitude of health problems may qualify for a downward departure
under § 5H1.4...[but] such downward departures are rare").
In United States v. Tocco, 200 F.3d 401, 434 (6th Cir. 2000), the defendant was
72 at the time of his original sentencing, and he was suffering from “debilitating health,”
including arterioscleriotic disease, coronary artery disease, hypertension, renal
insufficiency, labrynthitis, and diverticulosis, all of which required periodic monitoring.
The district court granted a four-level downward departure on the basis of the
defendant’s age and health. On appeal, this court remanded the case to the district
court with instructions to “make more specific findings as to whether defendant has ‘an
extraordinary physical impairment,’ or combination of impairments, worthy of departure.”
Id. at 435. The district court was also instructed that its findings should be based upon
“independent and competent medical evidence to determine the extent of Tocco’s
infirmities.” Id. Furthermore, the district court was told to consider “the prison system’s
ability or inability to accommodate” the defendant’s infirmities. Id. On remand, the
district court found that the defendant’s physical infirmities were not so extraordinary as
to warrant a downward departure. See United States v. Tocco, 306 F.3d 279, 295 (6th
Cir. 2002) (explaining that the district court’s refusal--on remand--to depart downward on
the basis of Tocco’s health was unreviewable).
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In Johnson, the district court granted a departure based on the 65-year-old
defendant’s medical problems, including diabetes, hypertension, hypothyroidism, ulcers,
potassium loss and major depressive disorder, all conditions for which he was receiving
medication. 71 F.3d at 544-45. As in Tocco, this court remanded the case to the district
court for “more thorough fact-finding as to defendant’s medical condition.” Id. at 544.
Specifically, the district court was directed to
make more specific findings as to whether defendant has ‘an
extraordinary physical impairment,’ or combination of
impairments, worthy of departure. Toward this end, more
evidence than the letters produced by the defendant [one
from his treating physician and one from his psychiatrist] may
be necessary to determine the extent of defendant's
infirmities and the prison system's ability or inability to
accommodate them.”
Id. at 545.
In United States v. Bostic, 371 F.3d 865, 869-70 (6th Cir. 2004), the district court
granted the defendant’s motion for a downward departure, departing downward eleven
(11) levels based on the defendant’s age (82) and infirmities (emphysema, anemia, and
coronary artery disease). The United States appealed. This court reviewed the
departure for plain error because the government had failed to make an explicit objection
to the departure at the time of sentencing. Id. at 871. The court of appeals concluded
that the district court indeeed committed plain error by granting an eleven-level
downward departure without complying with the methodology set forth in Johnson and
Tocco. Id. at 877. The defendant’s sentence was accordingly vacated, and the case
was remanded for resentencing. Id.
Consistent with Tocco, Johnson, and Bostic, when considering a downward
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departure for medical reasons, a district court must determine (1) whether the defendant
has demonstrated, by independent medical evidence, that his or her medical condition is
exceptional or outside the heartland of similar cases; and (2) whether the BOP can
efficiently and economically accommodate the defendant’s medical needs. At the
sentencing hearing in this case, neither Goins nor the district court referred to the
medical records that were attached to Goins’s motion to depart. Those medical records,
moreover, contain very little information about Goins’s medical condition in 2003 when
he was sentenced. They also do not contain a physician’s opinion as to Goins’s current
condition. Indeed, in granting Goins’s departure motion, it appears that the district court
relied not at all on an independent medical evaluation of Goins’s condition. Rather, the
district court relied on its own visual inspection of Goins and on Goins’s testimony about
his various ailments. Furthermore, the district court failed to address whether the BOP
would be able to accommodate Goins’s medical needs. The district court thus failed to
comply with the requirements of Johnson and Tocco, making a remand for resentencing
necessary.
IV.
For the foregoing reasons, we conclude that the district court erred by granting
Goins’s departure motion without making the findings required by the applicable
caselaw. Accordingly, we VACATE Goins’s sentence and REMAND for resentencing.