United States v. Coughlin

BYE, Circuit Judge,

dissenting.

The district court did not err when it found Coughlin suffers from an extraordinary physical impairment. The district court did not abuse its discretion when it determined it was appropriate to downward depart, pursuant to U.S.S.G. § 5H1.4. Furthermore, a sentence of five years probation with twenty-seven months of home detention, a $50,000 fine, and $411,218 in restitution is not unreasonable.

A

Whether Coughlin has an extraordinary physical impairment for the purpose of a § 5H1.4 departure is a question of fact we review for clear error. United States v. Rabins, 63 F.3d 721, 728-29 (8th Cir.1995). The district court must ask three questions when determining whether a defendant has an extraordinary physical impairment: (1) whether the defendant’s physical condition is such that the defendant would find imprisonment more than the normal hardship; (2) whether imprisonment would subject the defendant to more than the normal inconvenience or danger; and (3) whether the defendant’s physical condition has any substantial present effect on the defendant’s ability to function. United States v. Johnson, 318 F.3d 821, 825 (8th Cir.2003) (citing Rabins, 63 F.3d at 729).

As the majority indicates, the first and third questions are not in dispute. Both the BOP expert, Dr. Ballom, and Cough-lin’s expert, Dr. Carver, agree Coughlin is “at very high risk cardiac and pulmonary wise.” Dr. Ballom testified Coughlin is in the highest risk category, his condition being more than serious. Both medical experts agree, Coughlin’s physical condition has a substantial present effect on his ability to function and will cause Coughlin to find imprisonment more than the normal hardship.

The majority concludes the record does not establish imprisonment would subject Coughlin to more than the normal inconvenience or danger, and holds the district court clearly erred when it so found. I disagree. Dr. Carver, a respected cardiologist whose credentials the government does not dispute, testified unequivocally Coughlin meets every one of the Rabins factors for an extraordinary medical impairment.

Coughlin has an unusual heart condition in that he has suffered multiple life-threatening cardiac episodes as a result of stress. The majority incorrectly concludes, however, Coughlin’s only evidence regarding how imprisonment would adversely affect his health is Dr. Carver’s testimony that life in prison is more stressful than life outside of prison. While the record does detail how strip searches, the risk of physical assault from younger aggressive inmates, overcrowding, sleep disturbance, unnerving noise, the threat of disciplinary sanctions, separation from loved ones, and limited access to health care would likely elevate Coughlin’s stress to dangerous levels,6 life-*821endangering stress is not the only adverse medical consequence that could result from Coughlin’s incarceration.

Dr. Carver testified specifically, “incarceration would place [Coughlin] in a position of danger” and may well cause his death. First, Dr. Carver testified a change in Coughlin’s prescription regime would be very detrimental to his physical condition. Dr. Ballom admitted during her testimony she could not guarantee Coughlin would receive his currently prescribed drugs.7 Second, Dr. Ballom admitted she does not know whether Coughlin will be assigned to a level-three or level-four detention facility, and cannot say how far from a hospital Coughlin will be housed. Third, the record does not show Coughlin will have adequate cardiac monitoring at the BOP facility to which he is assigned. Dr. Ballom testified she did not know how often a cardiologist would visit and admitted there was at least one period of a year when patients at a level-four facility were denied access to a specialist because the detention facility did not have such a consulting specialist.- Fourth, the record shows Coughlin’s life depends on complicated medical equipment and, in the event of an emergency, Dr. Ballom conceded Coughlin would be reliant on the ability of ordinary prison staff to quickly notice and notify a doctor or emergency response team.8

The government argues if we grant Coughlin a downward departure based on an extraordinary medical impairment, it will open the floodgates for everyone to argue prison is too stressful. In other words, it asks, who will go to prison if Coughlin does not? The framing of this argument minimizes the gravity of Cough-lin’s medical condition. The record is replete with evidence of Coughlin’s — in the words of the government’s own expert— “very high risk” condition. A respected cardiologist testified, and four to five inches of medical records confirmed, incarceration would “significantly increase [Coughlin’s] risk of another heart attack or death” and -“place him in a position of danger.” In light of the overwhelming medical evidence in this case, a more prescient concern is who will be granted, a departure for an extraordinary physical impairment if not Coughlin? Indeed, the district court wondered, “why even have a provision in the Guidelines [ ] that it can be departed from if you can show an extraordinary physical impairment if the Bureau of Prisons takes the [ ] stance we can treat everybody and can and will and provide good care?”

In my judgment, the district court did not clearly err when it concluded imprisonment would subject Coughlin to more than the normal inconvenience or danger and ruled Coughlin has an extraordinary physical impairment. Furthermore, the district court departed downward only to the extent needed to allow it to substitute home detention for incarceration. The district *822court’s decision to impose twenty-seven months of home detention, instead of the six to twelve months prescribed for an offense level of ten, further satisfies me that the court did not abuse its discretion in sentencing Coughlin.

B

Section 3553(a) requires a district court to “impose a sentence no greater than necessary to account for the nature and seriousness of the offense and the defendant’s history and characteristics, as well as to provide just punishment, to protect the public, and to avoid unwanted sentencing disparities.” United States v. Tabor, 439 F.3d 826, 831 (8th Cir.2006). This court recognizes “[sentences varying from the guidelines range ... are reasonable so long as the judge offers appropriate justification under the factors specified in 18 U.S.C. § 3553(a).” United States v. Lazenby, 439 F.3d 928, 932 (8th Cir.2006) (citation and quotations omitted).

The variance in this case is substantial in that it resulted in no incarceration where the Guidelines called for at least twenty-seven months imprisonment. Nevertheless, I find the sentence was reasonable because the district court offered appropriate justification, taking into account the 18 U.S.C. § 3553(a) factors when deciding to substitute home detention for incarceration.

The district court believed the circumstances of Coughlin’s case were extraordinary, describing it as “the most unusual case that this Court’s handled or probably ever will handle,” and felt strongly home detention was the appropriate sentence for Coughlin.9 The district court stated, “even if I’m incorrect in what I have determined about 5H1.4 and my comments concerning 5H1.6, 1.11, and 5K.2, I restate and adopt all of my findings under 3553 [(a)] and make them my factors in imposing a reasonable sentence on Coughlin.” The majority claims this statement shows the district court alternatively relied on factors set forth in §§ 5H1.6 and 5H1.11, which are ordinarily not relevant in determining a departure.10 On the contrary, the court did not state it would rely on §§ 5H1.6, 5H1.11 and 5K2.0 for a downward departure, in the event its § 5H1.4 finding was found to be incorrect. Instead, the court stated it would impose a variance, relying on 18 U.S.C. § 3553(a) and the mandate that its sentence be reasonable.

The majority claims the district court did not state with enough specificity its reasons for the imposition of a non-guidelines sentence and did not properly balance the considerations of 18 U.S.C. § 3553(a). I disagree. This court “do[es] not require district courts to make ‘robotic incantations’ that each § 3553(a) factor has been considered.” United States v. McMannus, 436 F.3d 871, 874 (8th Cir.2006) (citing United States v. Lamoreaux, 422 F.3d 750, 756 (8th Cir.2005)). Where a matter is conceptually simple and the record makes clear the sentencing judge considered the evidence and arguments, *823the law does not require a judge to write extensively about the reasons for its imposition of a particular sentence. Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2469, 168 L.Ed.2d 203 (2007). The law leaves much to the professional judgment of a judge to decide, under the circumstances, the appropriateness of brevity or length, conciseness or detail, in delivering its explanation. Id. at 2468.

In this case, the record shows the district court considered: (1) the extraordinary need to provide the defendant with adequate medical care;11 (2) the exemplary citizenship of the defendant measured by his history of good civic and charitable contributions as well as public service;12 (3) the importance of adequate deterrence, acknowledging the “worldwide exposure and ridicule” the defendant had already experienced;13 (4) the need for the sentence to reflect the’ seriousness of the offense, promote respect for the law, and provide just punishment,' taking into account the defendant has admitted responsibility and faces substantial civil liability and other financial consequences as a result of his crime;14 and (5) the need to provide restitution to the victims, by ordering the defendant pay full restitution.15

Furthermore, the district court carefully considered the .advisory Guidelines sentencing range of twenty-seven to thirty-three months imprisonment.16 By imposing a sentence of five years probation, with twenty-seven months of home detention, the district court imposed the length of sentence prescribed by the Guidelines; the district court varied only in its substitution of home detention for incarceration.

Sentencing courts have the unique ability to appraise the evidence and personally assess a defendant. The district court had the discretion to decide it would be more efficient; effective and less costly for Coughlin' to receive treatment from his current physician and serve his sentence at home. The other § 3553(a) factors do not weigh strongly against the variance in this case, and some support the variance. Our court’s obligation is to give the district court’s determination the same amount of deference whether the resulting sentence is greater than, or less than, the guidelines range. Given the district court’s careful consideration of the evidence and arguments contained in this full record, I do not find the court abused its discretion in imposing a sentence of home detention rather than incarceration. I would therefore affirm.

For the above reasons, I dissent.

. Dr. Carver relied on the report of Phillip S. Wise, Assistant Director of BOP (retired), which described in detail the situations listed above as prison realities that would likely produce stress in older inmates; in her testimony, Dr. Ballom conceded the same. Despite the majority's assertion, Dr. Carver did not base his medical opinion about Coughlin's health in the BOP only on "common sense.” Dr. Carver consulted Wise — both through *821Wise’s written report and through a telephone conversation — on issues of prison environment, the National Formulary, and Coughlin’s necessary medical equipment.

. Dr. Ballom testified Coughlin would have to seek approval for six of his medications, because they are not on the National Formulary. She testified each approval process could take up to a week, and up to thirty percent of patient requests for such medications are denied.

. Furthermore, the record shows the district court considered the costs associated with housing and medicating Coughlin when it asked Dr. Ballom directly about each of these expenses, which are relevant considerations under the Guidelines (“E.g., in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment.” (emphasis added)).

. The district court actively participated in the questioning of the experts, indicating concern for Coughlin’s safety. The court asked Dr. Ballom if she would be involved in determining in which facility Coughlin would be placed, indicating it was concerned prisoners may not always be placed in appropriate facilities.

. The majority misinterprets the district court. The district court stated specifically it was not granting a departure based on §§ 5HI.6 and 5HI.] 1 factors, though it noted Coughlin may qualify for the departure under the § 5K2.0(c) exception. Section 5K2.0(c) allows the consideration of characteristics or other circumstances, even if not ordinarily relevant to a determination of whether a departure is warranted, if such characteristics or circumstances are present to a substantial degree, and if taken together they make the case an exceptional one.

.18 U.S.C. § 3553(a)(2)(D).

. 18 U.S.C. § 3553(a)(1)..

. 18 U.S.C. § 3553(a)(2)(B).

. 18 U.S.C. § 3553(a)(2)(A).

. 18 U.S.C. § 3553(a)(7).

. 18 U.S.C. § 3553(a)(4).