                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0165n.06
                            Filed: March 3, 2005

                                           No. 03-6493

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
DAVID WILLIAMS,                                  )   WESTERN DISTRICT OF TENNESSEE
                                                 )
       Defendant-Appellant.                      )




       Before: RYAN and COOK, Circuit Judges; BELL, District Judge.*


       COOK, Circuit Judge. David Williams appeals the district court’s denial of a downward

sentencing departure for an “extraordinary physical impairment” under United States Sentencing

Guidelines § 5H1.4. In light of the Supreme Court’s decision in United States v. Booker, 125 S. Ct.

738 (2005), we vacate Williams’s sentence and remand for resentencing.


                                                 I


       Williams pleaded guilty to possessing false federal identification documents. At sentencing,

Williams objected to the Presentence Investigation Report, arguing he should receive a § 5H1.4



       *
       The Honorable Robert Holmes Bell, United States District Judge for the Western District
of Michigan, sitting by designation.
No. 03-6493
United States v. Williams

“downward departure”—the option of home detention —because he suffered from numerous health

problems, thus making home detention less costly and more efficient than incarceration in a Bureau

of Prisons medical center.1


       The district court denied Williams’s departure request, comparing Williams to two other

defendants who received departures under § 5H1.4 and deciding that though Williams suffered from

serious ailments, his health problems were less severe than those of the other two and thus did not

constitute an extraordinary physical impairment under § 5H1.4. The court also considered whether

Williams’s ailments were so severe as to prevent him from engaging in criminal conduct and

determined they were not; this too, it found, demonstrated that his physical condition did not rise

to the level required for a § 5H1.4 departure.


       The district court sentenced Williams before the Supreme Court rendered its decisions in

Blakely v. Washington, 124 S. Ct. 2531 (2004) and United States v. Booker, 125 S. Ct. 738 (2005).

When the Supreme Court decided Blakely, Williams moved this court to vacate his sentence and

remand for resentencing, arguing that Blakely implicitly rendered the Guidelines advisory. We

denied the motion in light of our decision in United States v. Koch, 383 F.3d 436 (6th Cir. 2004) (en

banc). Then, when the Supreme Court issued its decision in Booker, Williams again moved this

court to vacate his sentence and remand for resentencing.




       1
        Section 5H1.4 provides “[A]n extraordinary physical impairment may be a reason to depart
downward; e.g., in the case of a seriously infirm defendant, home detention may be as efficient as,
and less costly than, imprisonment.”

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No. 03-6493
United States v. Williams

                                                  II


       On appeal, Williams primarily contends that the district court incorrectly applied § 5H1.4

because it created a new “requirement” that, to warrant a § 5H1.4 departure, a defendant’s physical

condition must prevent him from engaging in criminal behavior. We need not address this

argument, however, because we believe the Supreme Court’s recent decision in Booker requires us

to vacate Williams’s sentence.


       In a motion to this court and at oral argument, Williams requested remand for resentencing

in light of Booker. Acknowledging the absence of a Sixth Amendment violation in his sentencing,

Williams seeks sentencing relief premised only on the ground that the altered regime post-Booker

warrants reconsideration by the sentencing judge.


       This court in United States v. Barnett recently held, under circumstances materially

indistinguishable from those here (including plain-error review), that a defendant meets the first,

second, and fourth prongs of the plain-error test when sentenced under mandatory Guidelines. See

United States v. Barnett, ___ F.3d ___, 2005 WL 357015, at *8, 12 (6th Cir. 2005). As regards the

third prong, Barnett requires panels of this circuit to presume prejudice unless record evidence exists

to rebut the presumption. Barnett, 2005 WL 357015, at *12.


       A review of the sentencing-hearing transcript shows the district court here struggled with the

decision to commit Williams to a prison setting instead of home confinement. The court called this

a “fairly close case” and recognized that Williams suffers from “a very significant physical

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No. 03-6493
United States v. Williams

impairment.” The court, however, concluded that the Guidelines contemplated “something more”

for § 5H1.4 relief and thus denied the departure. The record lacks “clear and specific evidence”

demonstrating that the district court would not have granted the departure under advisory

Guidelines.


                                                III


       Williams’s case meets the Barnett standard for exercising our discretion to notice the error.

We vacate his sentence and remand to the district court for resentencing under the new rubric

established by Booker.




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