United States v. Bostic

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Bostic No. 02-6437
ELECTRONIC CITATION: 2004 FED App. 0182P (6th Cir.)
File Name: 04a0182p.06 MOORE, J., delivered the opinion of the court, in which
MARTIN, J., joined. RYAN, J. (pp. 21-23), delivered a
separate concurring opinion.
UNITED STATES COURT OF APPEALS
_________________
FOR THE SIXTH CIRCUIT
_________________ OPINION
_________________
UNITED STATES OF AMERICA , X
- KAREN NELSON MOORE, Circuit Judge. The
Plaintiff-Appellant, government, with the approval of the Solicitor General,
-
- No. 02-6437 appeals from the sentence imposed by the district court on
v. - Henry Alvin Bostic (“Bostic”). Pursuant to a written plea
> agreement, Bostic pleaded guilty to firearms charges. At
, Bostic’s sentencing hearing, the district court granted a
HENRY A. BOSTIC, -
Defendant-Appellee. - downward departure under United States Sentencing
Guideline (“U.S.S.G.”) § 5H1 “[d]ue to the defendant’s age,
N infirmity and poor health.” Joint Appendix (“J.A.”) at 28.
Appeal from the United States District Court On appeal, the government argues that the district court erred
for the Eastern District of Tennessee at Knoxville. in granting this downward departure because (1) the district
No. 02-00068—James H. Jarvis, District Judge. court failed to sentence Bostic in accordance with the
framework of the sentencing guidelines; (2) the district court
Argued: January 28, 2004 failed to determine that Bostic’s age and infirmities made his
case exceptional and would make incarceration inefficient and
Decided and Filed: June 17, 2004 costly; and (3) the district court erred in granting a departure
based upon the present record.
Before: MARTIN, RYAN, and MOORE, Circuit Judges.
For the following reasons, we VACATE Bostic’s sentence
_________________ and REMAND for re-sentencing.

COUNSEL I. BACKGROUND

ARGUED: David C. Jennings, ASSISTANT UNITED The Bureau of Alcohol, Tobacco and Firearms (“ATF”)
STATES ATTORNEY, Knoxville, Tennessee, for Appellant. investigated Bostic from June 9, 2000 through June 5, 2002.
John O. Gibson, Loudon, Tennessee, for Appellee. During this period, Bostic “regularly and willfully engaged in
ON BRIEF: David C. Jennings, ASSISTANT UNITED the business of selling firearms,” but “did not have, and has
STATES ATTORNEY, Knoxville, Tennessee, for Appellant. never had a federal firearms license.” J.A. at 46 (Presentence
John O. Gibson, Loudon, Tennessee, for Appellee. Report (“PSR”) ¶ 14). Over the course of this investigation,
“ATF special agents and confidential informants purchased a

1
No. 02-6437 United States v. Bostic 3 4 United States v. Bostic No. 02-6437

total of 24 firearms from [Bostic] on 20 different occasions.” On June 6, 2002, ATF agents arrested Bostic and searched
J.A. at 46 (PSR ¶ 15). Most of these transactions took place his residence pursuant to a warrant. During that search, ATF
at Bostic’s residence. Bostic “sold firearms to convicted agents seized six firearms. Bostic told ATF agents that “he
felons and to a resident of a state other than the state in which had bought, sold and traded firearms for approximately 20
[Bostic] resides.” J.A. at 47 (PSR ¶ 16). Bostic was also years.” J.A. at 47 (PSR ¶ 20). Bostic also told ATF agents
“observed selling more firearms than those purchased by the that he had received the warning letter “and understood the
ATF.” J.A. at 47 (PSR ¶ 16). letter to mean he could not buy and sell numerous firearms
without a license.” J.A. at 47 (PSR ¶ 20). According to the
“On June 27, 2001, an ATF special agent sent [Bostic] a PSR, Bostic “stopped buying firearms that required filling out
certified letter advising [him] of the federal firearms laws, paperwork, but thought he could still trade guns and make
including the provision prohibiting a person who is not a occasional sales.” J.A. at 47 (PSR ¶ 20).
federal firearms licensee from engaging in the business of
dealing in firearms.” J.A. at 47 (PSR ¶ 18). On June 30, Also on June 6, 2002, Bostic was released on a $20,000
2001, Bostic signed a return receipt indicating that he had unsecured bond. Thereafter, Bostic and the government
received the letter. On July 5, 2001, an informant went to entered into a written plea agreement whereby Bostic agreed
Bostic’s house and purchased a firearm from Bostic. At that to plead guilty to Counts One and Two of the indictment, and
meeting, Bostic told the informant about the warning letter the government agreed to dismiss Counts Three through Nine
that he had received from the ATF regarding his firearms of the indictment and not to oppose a three-level reduction in
dealing. offense level for acceptance of responsibility. On August 19,
2002, Bostic pleaded guilty to Counts One and Two.
On June 5, 2002, a grand jury returned a nine-count
indictment charging Bostic with various firearms offenses. On September 28, 2002, prior to sentencing, Bostic filed a
Count One of the indictment charges Bostic with willfully motion for a downward departure pursuant to U.S.S.G.
engaging in the business of dealing in firearms without a §§ 5K2.0, 5H1.1, and 5H1.4, requesting that he be sentenced
license, including but not limited to the guns identified in the to probation, possibly including home detention, instead of
remaining counts of the indictment, “from on or about June 9, prison due to his advanced age (eighty-two) and his poor
2000, up to and including June 5, 2002,” in violation of 18 health (emphysema, anemia, and coronary artery disease). In
U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D). J.A. at 5 support of his motion, Bostic filed a letter from his treating
(indictment). Count Two of the indictment charges Bostic physician, John D. Arnett, M.D., which states:
with knowingly selling and disposing “of firearms, that is, a
Lorcin .22 caliber pistol and a North American Arms mini- At this time [Bostic] remain[s] in stable condition. He,
revolver,” to a person while knowing that person was a however, has serious underlying medical problems.
convicted felon, “on or about October 3, 2000,” in violation
of 18 U.S.C. §§ 922(d)(1) and 924(a)(2). J.A. at 5 It is my understanding from discussion with [Bostic’s
(indictment). Counts Three through Nine charge Bostic “with attorney] that he is facing approximately two years in
sales of specific firearms on specific dates to persons whom prison for selling guns without a license. At this time
[Bostic] knew, or should have known, were convicted felons, imprisonment would adversely affect his life expectancy
in violation of 18 U.S.C. §§ 922(d)(1) and 924(a)(2).” and also his health. Due to his coronary artery disease I
Appellant’s Br. at 2. would expect him to have more recurrences of his atrial
No. 02-6437 United States v. Bostic 5 6 United States v. Bostic No. 02-6437

fibrillation. He will be under medical therapy for the tobacco use. He is prescribed Ranitidine, Combivent,
remainder of his life and we can reasonably expect that Serovent, Cordarone, and Hyzaar. The Cordarone is
there will be intermittent periods of hospitalization. prescribed for atrial fibrillation. The defendant
underwent left heart catheterization on May 14, 2002.
J.A. at 18. This letter is the only medical evidence — indeed
it is the only evidence — that Bostic introduced in support of J.A. at 50 (PSR ¶ 51). Then, in the “Factors that May
his motion. Warrant Departure” section of the PSR, the probation officer
noted,
In Bostic’s PSR, prepared on October 10, 2002, the
probation officer assigned Bostic a base offense level of [Bostic] is 82 years old and has numerous health
fourteen in accordance with U.S.S.G. § 2K2.1(a)(6). The problems. Pursuant to USSG § 5H1.1, “Age may be a
probation officer recommended a six-level increase pursuant reason to impose a sentence below the applicable
to U.S.S.G. § 2K2.1(b)(1)(C) because Bostic sold between guideline range when the defendant is elderly and infirm
twenty-five and ninety-nine firearms, in that Bostic sold and where a form of punishment such as home
twenty-four firearms to informants and undercover ATF confinement might be equally efficient as and less costly
agents, possessed six firearms at the time of his arrest, and than incarceration.”
was observed selling additional firearms over the course of
the investigation. The probation officer recommended an J.A. at 54 (PSR ¶ 70). The probation officer, however, stated
additional two-level increase pursuant to U.S.S.G. that she was not necessarily making a recommendation for
§ 2K2.1(b)(4) because at least one of the firearms Bostic sold departure. Each party filed a notice of no objection to the
had an obliterated serial number. The probation officer PSR.
recommended a three-level downward adjustment for
acceptance of responsibility. Bostic had no criminal history At the sentencing hearing, on November 6, 2002, the
points, and thus was assigned a criminal history category of government’s counsel mentioned the defendant’s downward-
I. Accordingly, the probation officer recommended a total departure motion but failed to make an explicit objection.
offense level of nineteen, and calculated Bostic’s guideline After acknowledging that Bostic pleaded guilty to Counts
range to be thirty to thirty-seven months of imprisonment, One and Two, the district judge read the maximum penalties
with a fine between $6,000 and $60,000, and a special for those counts. The district court then asked Bostic whether
assessment of $200. Bostic’s guideline range, however, was he had read the PSR and whether the PSR was accurate;
located in “Zone D”; therefore, Bostic was not eligible for Bostic responded in the affirmative. The court and the
probation under U.S.S.G. § 5B1.1(a). government’s counsel then engaged in a brief exchange,
during which the government’s counsel stated that he would
In the “Physical Condition” section of the PSR, the like to present evidence regarding Bostic’s offense conduct
probation officer reported: before the court ruled on Bostic’s downward-departure
motion. The government’s counsel then introduced the ATF
[Bostic] is treated by John D. Arnett, M.D., Knoxville, warning letter, played a tape of the conversation during which
Tennessee. [Bostic] has atherosclerotic cardiovascular Bostic mentioned the letter, and introduced a transcript of that
disease, anemia, asbestosis, hypertension, type-II tape. After introducing this evidence, the government’s
diabetes and chronic obstructive pulmonary disease from
No. 02-6437 United States v. Bostic 7 8 United States v. Bostic No. 02-6437

counsel stated that he would like to address the issue of B. Standard of Review
sentencing after Bostic’s counsel had an opportunity to speak.
The government asserts that, although it did not make a
Following the government’s introduction of evidence specific objection, it noted its opposition to Bostic’s motion
regarding the offense conduct, Bostic did not introduce any for a downward departure at the outset of the sentencing
additional evidence supporting his motion for a downward hearing and was not given an opportunity to argue its
departure. When the district judge asked what Bostic’s opposition either before or after the district court pronounced
medical problems were, Bostic’s counsel stated, “[Bostic] has Bostic’s sentence. The government argues that it should not
emphysema and heart trouble, Your Honor.” J.A. at 36 be required to demonstrate plain error either because it
(Sentencing Hr’g Tr. at 36). adequately objected or because it was not given the
opportunity to object.
The district court then granted a downward departure and
sentenced Bostic “to five years of probation on each count to We conclude that the government failed to object
run concurrently” and a $6,000 fine. J.A. at 37. After adequately in the district court to Bostic’s motion for a
explaining the conditions of Bostic’s probation, the district downward departure. Bostic filed a motion for a downward
court accepted the plea agreement, dismissed Counts Three departure on September 28, 2002. The government did not
through Nine, clarified the due date of the fine, and adjourned file any papers opposing that motion. At the sentencing
the sentencing hearing. The district court did not explicitly hearing on November 6, 2002, after questioning Bostic about
give the government an opportunity to object after it the PSR, the district court asked, “Now, what does the U.S.
pronounced Bostic’s sentence, nor did the government’s Attorney have to say about this?” J.A. at 34 (Sentencing H’rg
counsel interrupt the district judge to object. On Tr. at 4). In response, the government’s counsel stated,
November 13, 2002, the district court entered a Judgment and
Commitment Order detailing Bostic’s sentence.1 The Your Honor, as the Court is I am sure aware, Mr.
government filed a timely notice of appeal. Gibson [Bostic’s counsel] has filed a motion for
downward departure pursuant to 5K2 based on the
II. ANALYSIS defendant’s age, his health and he has attached several
letters from members of the community asking the Court
A. Jurisdiction not to imprison him. Before the Court rules on that
motion, I have a very brief evidentiary matter I would
The district court had jurisdiction pursuant to 18 U.S.C. like to present to the Court.
§ 3231 because Bostic was charged with offenses against the
laws of the United States. This court has jurisdiction over the J.A. at 34 (Sentencing Hr’g Tr. at 4). The evidentiary matter
appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b). to which the government’s counsel was referring concerned
the offense conduct, not Bostic’s motion for a downward
departure. This statement indicated to the district court that
the government was aware of Bostic’s motion, but the
government’s statement did not inform the district court or
1
Although it is not reflected in the sentencing hearing transcript, defense counsel whether or not the government opposed the
Bo stic contends “that the [Assistant U.S. Attorney] left the Courtroom downward-departure motion.
before the Judge left the bench.” Appellee’s Br. at 2.
No. 02-6437 United States v. Bostic 9 10 United States v. Bostic No. 02-6437

After presenting his evidence, the government’s counsel to object in order to preserve an issue for review, but excuses
stated, “I would just like to address the Court on the the failure to object if that party had no opportunity to do so.
government’s view on sentencing after we hear from Mr. Rule 32(i)4 requires the court to allow the defendant, counsel
Gibson, Your Honor.” J.A. at 35 (Sentencing Hr’g Tr. at 5). for the defendant, and counsel for the government each an
This statement indicated to the district court that the opportunity to speak. The cases that the government relies
government’s counsel wished to speak, but it did not inform upon to support its argument that its failure to object should
the district court or defense counsel of the government’s be excused differ from the case at bar in an important respect
position regarding the downward-departure motion.2 — in both of the cases cited by the government, the aggrieved
party did not have notice of the issue prior to district court’s
A party “must ‘object with that reasonable degree of pronouncement of the sentence, and the district court did not
specificity which would have adequately apprised the trial give the aggrieved party an opportunity to object after it
court of the true basis for his objection.’” United States v. pronounced the sentence. United States v. Breeding, 109 F.3d
LeBlanc, 612 F.2d 1012, 1014 (6th Cir.) (quoting United 308, 310 (6th Cir. 1997); United States v. Hickey, 917 F.2d
States v. Fendley, 522 F.2d 181, 186 (5th Cir. 1975)), cert.
denied, 449 U.S. 849 (1980); see also Fed. R. Crim. P. 51(b).
A specific objection provides the district court with an
opportunity to address the error in the first instance and
allows this court to engage in more meaningful review. The
government’s statements to the district court did not take, or the party’s objection to the court’s action and
constitute a sufficiently articulated objection. the grounds for that objection. If a party does not have
an opportunity to object to a ruling or order, the
absence of an objec tion do es not later prejudice that
We hold that the government’s failure to object should not party.
be excused in this case, and therefore, that we should review Fed. R. Crim. P. 51(b) (emphasis added ).
the district court’s judgment for plain error. After reviewing
the applicable procedural rules and circuit precedent, we 4
Rule 32 (i)(1) provid es:
conclude that the district court conducted the sentencing At sentencing, the court:
hearing in compliance with our existing precedent. Federal ...
Rule of Criminal Procedure (“Rule”) 51(b)3 requires a party (C) must allow the parties’ attorneys to comment on
the probation officer’s determinations and other
matters relating to an appropriate sentence . . . .
Fed. R. Crim. P. 32.
2 Rule 32 (i)(4)(A) pro vides:
W e find it somewhat incredible that the governm ent was able Before imposing sentence, the court must:
to mention at the sentencing hearing Bostic’s motion for a downward (i) provide the defendant’s attorney an opp ortunity
departure — without stating that it opposed such a departure — and now to speak on the defendant’s behalf;
claims on appeal that it was not give n an oppo rtunity to objec t to that (ii) address the defendant personally in order to
motion. perm it the defendant to speak or present any
3
information to mitigate the sentence; and
Rule 51 (b) provides: (iii) provide an attorney for the government an
A party may preserve a claim of error by informing the opp ortun ity to speak equivalent to that of the
court — when the court ruling or order is made or defendant’s attorney.
sought — of the ac tion the p arty wishes the court to Id. (emphasis added).
No. 02-6437 United States v. Bostic 11 12 United States v. Bostic No. 02-6437

901, 906 (6th Cir. 1990).5 In this case, however, Bostic filed urges is a wise one. Therefore, we exercise our supervisory
a motion for a downward departure prior to the sentencing powers over the district courts and announce a new
hearing, and the government had an opportunity to file procedural rule, requiring district courts, after pronouncing
opposition papers and to object when the government’s the defendant’s sentence but before adjourning the sentencing
counsel spoke at the sentencing hearing, yet the government hearing, to ask the parties whether they have any objections
failed to do either. to the sentence just pronounced that have not previously been
raised.6 If the district court fails to provide the parties with
In this case, after reviewing the PSR, the district court this opportunity, they will not have forfeited their objections
asked, “Now what does the U.S. Attorney have to say about and thus will not be required to demonstrate plain error on
this?” J.A. at 34 (Sentencing H’rg Tr. at 4). Moreover, at the appeal. If a party does not clearly articulate any objection and
time the government was invited to speak, it was on notice the grounds upon which the objection is based, when given
that Bostic had moved for a downward departure; therefore, this final opportunity speak, then that party will have forfeited
the district court gave the government a meaningful its opportunity to make any objections not previously raised
opportunity to object to Bostic’s motion for a downward and thus will face plain error review on appeal. Providing a
departure. It is true that the government indicated that it final opportunity for objections after the pronouncement of
would like to address the district court later regarding the sentence, “will serve the dual purpose[s] of permitting the
departure motion, and thereafter the government was not district court to correct on the spot any error it may have
explicitly given an opportunity to do so. The district court, made and of guiding appellate review.” United States v.
however, gave the government an opportunity to speak Jones, 899 F.2d 1097, 1102 (11th Cir.), cert. denied, 498 U.S.
regarding sentencing and never prevented the government 906 (1990), overruled on other grounds by United States v.
from addressing the departure issue, which is all that our Morrill, 984 F.2d 1136 (1993). Requiring clear articulation
existing precedent required. of any objection and the grounds therefor, “will aid the
district court in correcting any error, tell the appellate court
Although we disagree with the concurrence’s reading of our precisely which objections have been preserved and which
existing precedent and with its narrow understanding of have been [forfeited], and enable the appellate court to apply
“opportunity to object,” we think that the rule our colleague

6
5
Due to the difficulty of parsing a transcript to determine
Unlike the concurrence, we view more narrowly the rule whether during a sentencing hearing — which is typically somewhat less
announced in United States v. Hickey, 917 F.2d 901 , 906 (6th Cir. 1990), formal than a trial — a party had a meaningful opportunity to object, we
in that it requires the district court to provide an opportunity for the agree with the concurrence that the best appro ach is for district courts,
parties to ob ject after pronouncing the defendant’s sentence only when the after pronouncing the defendant’s sentence but before adjourning the
parties had no prior notice of the action the district court eventually took. sentencing hearing, to elicit any objections not previously raised by the
In Hickey, the government had specifically argue d “that its failure to parties. “We can use our supervisory p owers to create a procedural rule
[make an ob jection] is excused . . . because it had no reason to suspect so long as the rule d oes not con flict with the Constitution or a statute.”
that a fine wo uld no t be imp osed until it was too late, i.e., the sentence United States v. Wa ters, 158 F.3d 933 , 944 (6th Cir. 1998). In United
had already been imposed.” Id. Similarly, in Breeding, the defendant had States v. Jones, 899 F.2d 109 7, 11 02-0 3 (11th Cir.), cert. denied, 498 U.S.
specifically argued, “The very first time there was mention of the 906 (1990), overruled on other grounds by United States v. Morrill, 984
potential for an additional fine . . . occurred when the court imposed F.2d 1136 (11th Cir. 1993), the Eleventh Circuit exercised its supervisory
judgment. It was clear at that time that the time for argum ent was over.” pow ers to adopt a rule similar to the o ne end orsed by the concurrence in
United States v. Breeding, 109 F.3d 30 8, 310 (6th Cir. 1997). the case at bar.
No. 02-6437 United States v. Bostic 13 14 United States v. Bostic No. 02-6437

the proper standard of review to those preserved.” Id. at required to support his downward-departure motion with
1102-03. This rule applies only prospectively, and because competent medical evidence, and that the district court be
we are remanding to the district court, this rule will apply at required to determine whether Bostic’s impairments are
Bostic’s re-sentencing. United States v. Waters, 158 F.3d exceptional, whether the Bureau of Prisons (“BOP”) can
933, 945 (6th Cir. 1998). accommodate Bostic’s impairments, and “whether home
confinement may be more efficient and less costly.”
Because existing precedent did not excuse the Appellant’s Br. at 27. Finally, the government argues that the
government’s failure to object, and because we conclude that district court abused its discretion in granting a downward
Bostic’s sentence must be vacated regardless of the scope of departure based upon the present record. The government
our review, we will review the downward departure for plain points out that Bostic was only hospitalized once in May
error.7 See United States v. Barajas-Nunez, 91 F.3d 826, 830 2002 for atrial fibrillation, that after hospitalization Bostic
(6th Cir. 1996). “A ‘plain error’ is an error that is clear or was in stable condition, and that as of sentencing Bostic had
obvious, and if it affects substantial rights, it may be noticed experienced no recurrence of his condition. The government
by an appellate court.” Id. further notes that Bostic’s age did not limit his criminal
activity, and that the district court’s threat to incarcerate
C. Downward Departure Bostic for a probation violation indicates that the district court
considered imprisonment a viable sentencing option.
On appeal, the government contends that the district court
erred by sentencing Bostic to probation without following the Instead of countering the government’s arguments that the
methodology required by the sentencing guidelines and district court failed to follow the methodology required by the
requests that we vacate Bostic’s sentence and remand this sentencing guidelines, Bostic argues that the government’s
case for re-sentencing. The government points out that at the failure to object to the downward departure indicated to the
sentencing hearing, the district court did not state the number district court that the government agreed with the court’s
of levels it was departing downward or discuss the specific methodology. Bostic also points out that the district court
reasons why it thought probation was reasonable. The made the factual findings that imprisonment would adversely
government next argues that the district court erred by failing affect Bostic’s life expectancy due to his age and infirmity
to determine whether Bostic’s age and infirmities made his and that Bostic will need medical attention and periodic
case exceptional and would make incarceration inefficient and hospitalization; Bostic argues that these findings were
costly. The government requests that on remand Bostic be reasonable and were permissible bases for departure under the
sentencing guidelines.
7
In a Rule 28(j) letter, dated Decemb er 1, 2003, the government The first two factors that an appellant must prove in order
contends that the Prosecutorial Remedies and To ols Against the to obtain reversal under plain error review are (1) that the
Exploitation of Children Today Act of 2003 (“PROT ECT Act”), Pub. L.
No. 108-21, 117 Stat. 650 (2003) (“P ROT ECT Act”) § 401(d)(1)(C ),
district court erred and (2) that the error was plain. United
requires this court to review de no vo a d istrict court’s decision to grant a States v. Olano, 507 U.S. 725, 732-34 (1993); see also United
downward departure. The governm ent did not argue that the PROTECT States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998), cert.
Act requires de novo review in a case where the government failed to denied, 526 U.S. 1030 (1999).
object below, and although we doubt that it does, we do not decide that
issue in this appeal because we conclude that the district court committed
plain error.
No. 02-6437 United States v. Bostic 15 16 United States v. Bostic No. 02-6437

At sentencing, the district court stated that it was granting courts are required to consider and the facts of the case.
a downward departure, “[b]ecause of [Bostic’s] age and United States v. Crouse, 145 F.3d 786, 792 (6th Cir. 1998);
because of [Bostic’s] infirmity and because of [Bostic’s] see also 18 U.S.C. § 3742(e)(3)(C).
health,” but did not specify the number of levels it was
departing. J.A. at 37 (Sentencing H’rg Tr. at 7). The Under the sentencing guidelines, age and health are
calculations in the PSR, which the district court adopted, set disfavored factors that the district court may use as bases for
Bostic’s total offense level at nineteen. To sentence Bostic as granting a downward departure only in exceptional
it did, to probation without home confinement, the district circumstances. See U.S.S.G. §§ 5H1.1 and 5H1.4.8 Section
court had to reduce Bostic’s offense level to eight, which is an 5H1.1 provides:
eleven-level departure. See U.S.S.G. Ch. 5 Pt. A; U.S.S.G.
§ 5B1.1(a). Age (including youth) is not ordinarily relevant in
determining whether a sentence should be outside the
A district court’s decision to depart downward is controlled applicable guideline range. Age may be a reason to
by the following statutory provision: impose a sentence below the applicable guideline range
when the defendant is elderly and infirm and where a
(1) IN GENERAL. — Except as provided in paragraph form of punishment such as home confinement might be
(2), the court shall impose a sentence of the kind, and equally efficient as and less costly than incarceration.
within the range [determined by the guidelines] unless
the court finds that there exists an aggravating or (emphasis added). Section 5H1.4 provides:
mitigating circumstance of a kind, or to a degree, not
adequately taken into consideration by the Sentencing Physical condition or appearance, including physique, is
Commission in formulating the guidelines that should not ordinarily relevant in determining whether a sentence
result in a sentence different from that described. should be outside the applicable guideline range.
However, an extraordinary physical impairment may be
18 U.S.C. § 3553(b). To sentence a defendant outside of the a reason to impose a sentence below the applicable
guideline range, the district court must determine that the case guideline range; e.g., in the case of a seriously infirm
falls outside of the heartland of cases in the guideline range. defendant, home detention may be as efficient as, and
Koon v. United States, 518 U.S. 81, 98 (1996). The defendant less costly than, imprisonment.
has the burden of proving that a downward departure is
warranted. United States v. Rutana, 932 F.2d 1155, 1159 (6th (emphasis added). As these provisions make clear, age and
Cir.), cert. denied, 502 U.S. 907 (1991). In order to physical condition are not prohibited considerations, but they
determine that a case falls outside of the heartland, the district are discouraged factors that justify a downward departure
court must conduct “a refined assessment of the many facts only in extraordinary situations. U.S.S.G. §§ 5H1.1, 5H1.4.
bearing on the outcome, informed by [the district court’s] Moreover, these provisions require the district court to
vantage point and day-to-day experience in criminal
sentencing.” Koon, 518 U.S. at 98. Furthermore, the district
8
court must determine the size of the departure by tying it to Bo stic’s sentence was determined using the 2001 version of the
the structure of the sentencing guidelines, and the size of the United States Sentencing G uidelines (“U.S .S.G.”), and neither p arty
departure must be reasonable given the factors sentencing objected on appeal to the use of that version; therefore, we do not address
the propriety of applying that version.
No. 02-6437 United States v. Bostic 17 18 United States v. Bostic No. 02-6437

consider the relative costs and efficiency of home alone should not be considered as a basis for a substantial
confinement and imprisonment. Id. downward departure,” because the evidence showed that the
defendant remained active in the community. Id.
In United States v. Johnson, 71 F.3d 539, 544-45 (6th Cir.
1995), cert. denied, 517 U.S. 1113 (1996), we vacated the By way of contrast, in United States v. Sabino, 274 F.3d
defendant’s sentence upon another ground, but also directed 1053, 1078-79 (6th Cir. 2001), we upheld a three-level
the district court on remand to make more specific findings downward departure that was based upon several factors,
regarding whether the defendant’s medical condition was including age. The seventy-two-year-old defendant in Sabino
extraordinary and whether the BOP could accommodate the had “physical deficiencies . . . , particularly ailments with his
defendant. The sixty-five-year-old defendant in Johnson eyes and ears.” Id. at 1079. In upholding the downward
provided evidence of his medical condition in the form of a departure, we reasoned that the departure was small and based
letter from his attending physician, who diagnosed the upon several factors, including “the death of [the defendant’s]
defendant “with diabetes, hypertension, hypothyroidism, wife a few months before sentencing; [the defendant’s] age
ulcers, potassium losing enteropathy, and reactive (72) at the time of sentencing; his physical deficiencies . . . ;
depression,” and a letter from his psychiatrist, who diagnosed the absence of any physical threat to others; the absence of a
the defendant “with major depressive disorder.” Id. risk of flight; and the conclusion that [the defendant] played
Additionally, both doctors were prescribing medication for a minor role in the conspiracy.” Id.
the defendant and believed that incarceration would
detrimentally affect the defendant’s health. We noted “that an Here, the district court effectively granted an eleven-level
aged defendant with a multitude of health problems may downward departure based upon Bostic’s age and infirmities.
qualify for a downward departure under § 5H1.4[, but] such As Tocco makes clear, age alone cannot justify a substantial
downward departures are rare.” Id. at 545. We also stated downward departure. Tocco, 200 F.3d at 434. Additionally,
that on remand more evidence than the two doctors’ letters the district court granted the downward departure based only
might be necessary to enable the district court make the upon one letter from Bostic’s treating physician and the
required findings. Id. Physical Condition section of the PSR. Although numerous
“physical infirmities” might justify a downward departure,
Similarly, in United States v. Tocco, 200 F.3d 401, 434-35 Johnson and Tocco indicate that a doctor’s letter and the
(6th Cir. 2000), we vacated the defendant’s sentence upon “Physical Condition” section of the PSR are not sufficient
another ground, but also directed the district court on remand evidence to justify a downward departure.9 Finally, the
to make more specific findings regarding whether the district court made no findings regarding whether Bostic’s
defendant’s medical condition was extraordinary and whether case is extraordinary, whether the BOP could accommodate
the BOP could accommodate the defendant. The seventy- Bostic, and whether home confinement would be equally
two-year-old defendant in Tocco had “arteriosclerotic disease,
coronary artery disease, hypertension, renal insufficiency,
labrynthitis, and diverticulosis,” and “required ‘periodic 9
As in Johnson and Tocco, we think it is appropriate for the
monitoring.’” Id. at 434. We criticized the district court for district court to “obtain independent and com peten t medical evid ence to
relying solely upon the defendant’s PSR when it granted a determine the extent of [defendant’s] infirmities and the prison system’s
four-level departure due to the defendant’s age and health. Id. ability or inab ility to accommodate him.” United States v. Tocco, 200
F.3d 401, 435 (6th Cir. 2000) (citing United States v. Johnson, 71 F.3d
Additionally, in Tocco, we noted that the defendant’s “age 539, 545 (6th Cir. 1995)).
No. 02-6437 United States v. Bostic 19 20 United States v. Bostic No. 02-6437

efficient and less costly. Therefore, the district court erred by Bostic’s sentence from a term of imprisonment to a term of
granting an eleven-level departure without sufficient probation. See id. This error also affected the fairness and
evidence. If upon remand the evidence shows that Bostic’s integrity of judicial proceedings because the district court
case warrants a departure, the district court must still find that disregarded the applicable sentencing guidelines and case
the reasons justify the magnitude of the departure selected. law, and because Bostic received a significantly smaller
Crouse, 145 F.3d at 792. Johnson and Tocco do not foreclose sentence than might have been imposed upon a different
the possibility that Bostic’s age and infirmities warrant a defendant who committed the same crime under similar
departure; however, it seems unlikely that his infirmities circumstances. See id.
warrant an eleven-level departure. Because the case law
requiring district courts to make the above factual findings Because the district court imposed Bostic’s sentence in
and to justify the magnitude of a departure predates Bostic’s violation of the methodology required by the sentencing
sentencing, and because the district court utterly failed to do guidelines and applicable case law, we must vacate and
either, the district court’s error was plain. remand.10 See id. at 834 (noting that district court’s failure to
justify the extent of a departure makes the decision virtually
The final factors that an appellant must prove in order to unreviewable).
obtain reversal under plain error review are (3) that the error
affected substantial rights and (4) that “the error seriously III. CONCLUSION
affect[ed] the fairness, integrity or public reputation of
judicial proceedings.” Olano, 507 U.S. at 734-37 (quotation We conclude that the district court committed plain error by
omitted); see also Koeberlein, 161 F.3d at 949. A sentencing granting an eleven-level downward departure without tying
error affects substantial rights when “it affects the outcome of the departure to the framework of the sentencing guidelines
the case by substantially reducing the defendant’s sentence.” or making the required findings of fact. Therefore, we
Barajas-Nunez, 91 F.3d at 833. And a sentencing error that VACATE Bostic’s sentence and REMAND for re-
leads to a substantial departure affects the fairness and sentencing.
integrity of judicial proceedings because “[p]ermitting
sentencing courts to disregard governing law would diminish
the integrity and public reputation of the judicial system [and]
also would diminish the fairness of the criminal sentencing
system by imposing a significantly smaller sentence on” one
defendant than it would have upon a different defendant who
committed the same crime under similar circumstances. Id.
Moreover, such disparities “would fly in the face of one of the
primary purposes of the sentencing guidelines — the
elimination of disparities in sentencing.” Id.
10
Here, the district court erred by granting a downward On remand, the district court should consider whether § 401
departure without making the requisite factual findings, and of the PROTE CT Act, particularly subsections (e) and (g), applies
this error affected the government’s and the United States retroactively and limits its discretion at re-sentencing, and if relevant,
address in the first instance any constitutional problems those limitations
citizens’ substantial rights because it drastically reduced might raise.
No. 02-6437 United States v. Bostic 21 22 United States v. Bostic No. 02-6437

____________________ Our precedent is clear, that in cases such as this, “where the
district court fails to provide an opportunity for objections
CONCURRENCE after the pronouncement of a sentence, waiver should not be
____________________ found.” United States v. Breeding, 109 F.3d 308, 310 (6th
Cir. 1997). Moreover, where there is an explicit grant of
RYAN, Circuit Judge, concurring. While I agree that the authority for challenging a sentence and where the
defendant’s sentence should be vacated, I do not join in the government does not have an opportunity to object following
majority’s holding that the government waived its objection the pronouncement of sentence, there is no waiver. United
to the defendant’s sentence. In my view, the sentence should States v. Hickey, 917 F.2d 901, 906 (6th Cir. 1990). In the
be vacated and the case remanded for resentencing because case before us, the explicit grant of authority for challenging
the prosecutor was not given a reasonable opportunity to be the defendant’s sentence is found in 18 U.S.C. § 3742(b)(3),
heard at the sentencing hearing in order to articulate his which states the following:
objection to the radical downward departure the defendant
was seeking and ultimately received. The Government may file a notice of appeal in the
district court for review of an otherwise final sentence if
At the very outset of the sentencing hearing, the prosecutor the sentence—
acknowledged that the defendant had filed a motion for a
downward departure and asked that he be allowed to address (3) is less than the sentence specified in the applicable
the court regarding the government’s position on sentencing. guideline range to the extent that the sentence includes a
He was never given that opportunity. Following the lesser . . . term of imprisonment, probation, or supervised
government’s request to be heard, the district court engaged release than the minimum established in the guideline
in a colloquy with the defendant and his attorney. In the range . . . .
midst of that colloquy, and without affording the Assistant
U.S. Attorney an opportunity to speak, the district judge 18 U.S.C. § 3742(b)(3). There is no dispute that the sentence
granted the motion for a downward departure, imposed the imposed is below “the minimum established in the guideline
sentence, and abruptly left the bench. range.” Id. Because there is an explicit grant of authority for
challenging the defendant’s sentence and because the
My sister has characterized the prosecutor’s request to be prosecutor was not given a reasonable opportunity to object
heard as being limited to an evidentiary matter concerning the to the downward departure, the government did not waive its
defendant’s offense conduct and that the government’s right to appeal this issue. The prosecutor made it very clear
request gave no indication that it objected to the defendant’s that he wished an opportunity to address the court in
motion for a downward departure. Respectfully, she is opposition to defense counsel’s request for leniency. He was
mistaken. After the government introduced its evidence not obligated to reassert his request by repeating himself, by
concerning the defendant’s offense conduct, the prosecutor interrupting the trial judge in the midst of pronouncing
informed the court that he wanted to be heard on yet another sentence, or by attempting to call the judge back to the bench
matter, stating as follows: “I would just like to address the as he was leaving. There is no rule of law or practice, of
Court on the government’s view on sentencing after we hear which I am aware, that requires the prosecutor to repeat his
from [defense counsel], Your Honor.” request to be heard, or face, as in this case, an appellate
adjudication that the issue is waived.
No. 02-6437 United States v. Bostic 23

With all due respect to my colleagues who see it
differently, the record of this case does not call for the
preparation of a lengthy published opinion, creating a new,
rigid rule of sentencing law that further narrows and restricts
the relatively limited discretion left to trial judges under the
Sentencing Guidelines. The Federal Rules of Criminal
Procedure and our existing case precedent sufficiently set
forth the duties of the district court at sentencing and I
strongly object to the adoption under our “supervisory power”
of still another uncodified “procedural rule” telling district
judges what to incant after sentencing a person.
This case appears to be nothing more than an
uncharacteristic and inadvertent mistake by a highly respected
district judge, who has conducted more rule-conforming
sentencing proceedings in an exemplary fashion than he or we
can count. Very likely, he simply forgot to do what he
regularly does: ask both counsel if they had anything further
to say. In my view, the prosecutor adequately put the district
court on notice that the government objected to the motion for
a downward departure. Accordingly, the proper standard of
review is abuse of discretion. United States v. Tocco, 200
F.3d 401, 432 (6th Cir. 2000). I conclude that the district
court abused its discretion by imposing a sentence without
first giving the prosecutor an opportunity to address the court,
after being earlier advised by the prosecutor that he “would
just like to address the Court on the government’s view on
sentencing . . . .”
The only appropriate remedy is to vacate the sentence and
remand for resentencing.