                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
           ___________

           No. 01-2937
           ___________

United States of America,              *
                                       *
             Appellee,                 *
                                       *
      v.                               *
                                       *
Melroy Johnson, Sr.,                   *
                                       *
             Appellant.                *

           ___________                     Appeals from the United States
                                           District Court for the
           No. 01-3086                     Northern District of Iowa.
           ___________

United States of America,              *
                                       *
             Appellant,                *
                                       *
      v.                               *
                                       *
Melroy Johnson, Sr.,                   *
                                       *
             Appellee.                 *

                                  ___________

                             Submitted: May 14, 2002

                                 Filed: February 10, 2003
                                  ___________
Before WOLLMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

       Melroy Johnson, Sr. appeals his conviction on two counts of possession with
intent to distribute cocaine base and one count of distribution of cocaine base,
violations of 21 U.S.C. § 841(a)(1). The government cross-appeals from the five-year
downward departure the district court granted based on Johnson’s physical condition.
We affirm the convictions and reverse and remand for resentencing.

                                         I.


      Based on information provided by a confidential informant, the Sioux City
Police Department obtained search warrants for three residences associated with
Johnson. The officers found crack cocaine at two of the residences, as well as drug
paraphernalia and marijuana at one of the residences.

       Johnson, who was born on July 10, 1955, was charged with possession with
intent to distribute crack cocaine and distribution of crack cocaine. Over Johnson’s
objection on grounds of lack of relevancy, evidence regarding the marijuana was
introduced by the government as proof that the drugs and drug paraphernalia
belonged to Johnson. On appeal, Johnson argues that evidence of this small amount
of “personal use” marijuana constituted inadmissible character evidence because it
was admitted solely to show Johnson’s disposition for criminal conduct. In a pro se
brief, Johnson raises some objections to his sentence.




                                        -2-
                                            II.

       We turn first to Johnson’s arguments. We review a district court’s
determination of relevance under an abuse of discretion standard. United States v.
Taylor, 106 F.3d 801, 803 n.2 (8th Cir. 1997). “[E]vidence of prior possession of
drugs, even in an amount consistent only with personal use, is admissible to show
such things as knowledge and intent of a defendant charged with a crime in which
intent to distribute drugs is an element.” United States v. Logan, 121 F.3d 1172,
1178 (8th Cir. 1997). Accordingly, the district court did not abuse its discretion in
admitting the evidence of the marijuana.

      Because it was not raised in the district court, we decline to reach Johnson’s
contention that the marijuana should have been excluded as inadmissible character
evidence under Federal Rules of Evidence 404(b). Dejan v. United States, 208 F.3d
682, 687 (8th Cir. 2000). The arguments raised in Johnson’s pro se brief are without
merit. Accordingly, we affirm the convictions on all three counts.

                                           III.

       On cross-appeal, the government argues that the district court abused its
discretion in granting a five-year downward departure based on Johnson’s physical
condition. Under U.S.S.G. § 5H1.4, a downward departure may be granted if the
defendant suffers from an “extraordinary physical impairment.”1 Physical impairment


      1
          U.S.S.G. § 5H1.4 states, 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

                                           -3-
is, however, a discouraged basis for departure under the analysis set out in Koon v.
United States. 518 U.S. 81, 95 (1996); see also United States v. Orozco-Rodriguez,
220 F.3d 940, 942 (8th Cir. 2000); United States v. LeBlanc, 24 F.3d 340, 348 (1st
Cir. 1994). “The Commission does not view discouraged factors ‘as necessarily
inappropriate’ bases for departure but says they should be relied upon only ‘in
exceptional cases.’” Koon, 518 U.S. at 95 (quoting 1995 U.S.S.G. ch. 5, pt. H, intro.
comment.). We review a district court’s decision to depart under an abuse of
discretion standard. Koon, 518 U.S. at 99.

       Following his conviction by a jury on January 6, 2000, Johnson was
incarcerated pending his sentencing hearing. On March 13, 2000, Johnson was
admitted to the Mercy Medical Center in Sioux City, Iowa, following his complaint
of chest pains. Tests revealed that he had suffered a myocardial infarction, and a stent
was inserted into his right coronary artery. Johnson was admitted to the Federal
Medical Center at Rochester, Minnesota (FMC-Rochester), on March 15, 2000, for
further evaluation of his cardiac problems and management of his diminished left
ventricle function and coronary artery disease. He underwent a coronary angiogram
at the Mayo Clinic on August 9 and on September 6, 2000, was transferred from
FMC-Rochester to the custody of the United States Marshals Service.

      At sentencing, the district court considered a report submitted by Johnson that
was prepared by Arthur S. Leon, M.D., Professor of Exercise Science and Health
Enhancement and Director of Laboratory of Physiological Hygiene and Exercise at
the University of Minnesota. Dr. Leon, who did not examine Johnson personally,
reviewed the medical records from the Mercy Medical Center and the Mayo Clinic.
Based upon that review, Dr. Leon concluded that Johnson suffers from two
potentially life-threatening health problems, i.e., coronary heart disease, with
hypertension a contributing factor, and Hodgkin’s disease. He found that the cardiac


      detention may be as efficient as, and less costly than, imprisonment.

                                          -4-
catheterization that Johnson underwent on August 9, 2000, revealed a marked
improvement in his left ventricular ejection fraction, resulting in a nearly normal
ejection fraction of 49%. As of August 2000, physical examinations and chest x-rays
revealed no evidence of congestive heart failure. Dr. Leon’s report states that
although Johnson clearly has severe coronary artery disease, with extensive
permanent heart damage, thanks to the excellent medical management at the Mayo
Clinic his heart function is currently well compensated. He noted that Johnson’s
cardiologist had recommended that Johnson continue medical therapy, that he could
perform normal physical activities, and that he was not a candidate for any further
revascular procedures at that time. Dr. Leon rated Johnson’s current functional
capacity, based on the New York Heart Association Classification System, “as 2 on
a scale of 1 (no limitations) to 4 (severe incapacitation).” He opined that Johnson has
“an estimated 10% to 20% possibility of a recurrent fatal or nonfatal coronary event
in the next 5 years.” Dr. Leon noted that Johnson “would benefit a great deal in terms
of quality of life, as well as an improved prognosis by a formal, physician-supervised,
cardiac rehabilitation program as described in one of my recent publications.”

        Dr. Leon found that Johnson’s Hodgkin’s disease was currently in remission,
that it had been adequately treated some eight years earlier, and that “he has a good
prognosis with a high probability of a cure.”

      Dr. Leon concluded his report by stating that although Johnson has multiple
medical problems, “[w]ith aggressive medical management at the Mayo Clinic his
cardiac status currently is stable with just moderate functional impairment; however,
his long range prognosis is guarded with a 10 to 20% probability of a recurrent
nonfatal or fatal coronary event in the next five years. Continued regular medical
care by a cardiologist is essential for management of his heart problem.”

       In rebuttal, the government submitted an affidavit from Ronald Ilvedson, M.D.,
a staff physician at FMC-Rochester, in which Dr. Ilvedson stated that the Federal

                                         -5-
Bureau of Prisons provides a full range of medical services at each of its 91
institutions. The affidavit recounted the medical treatment that was provided to
Johnson by the cardiologists at the Mayo Clinic during Johnson’s stay at FMC-
Rochester prior to his sentencing, including the August 9, 2000, coronary angiogram
referred to in Dr. Leon’s report. Dr. Ilvedson stated that the members of the medical
staff at FMC-Rochester routinely encounter patients who present with diagnoses the
same or similar to Johnson’s, that Johnson’s condition is not unlike other inmates
currently situated with the Bureau of Prisons, and that Johnson’s care could be
managed during his incarceration.

       The district court continued the sentencing hearing so as to be able to conduct
a teleconference with personnel at FMC-Rochester to determine what cardiac
rehabilitation services are available at the institutions operated by the Bureau of
Prisons. During the teleconference, the associate warden of medical services at FMC-
Rochester described the cardiac rehabilitation services that are available at that
institution and at the other institutions operated by the Bureau of Prisons. Following
the warden’s presentation, Dr. Ilvedson stated that if Johnson were to be returned to
FMC-Rochester he would be put on a physician-supervised cardiac rehabilitation
program. He stated that when Johnson left FMC-Rochester in September of 2000, he
was doing well with most of his medical problems: his Hodgkin’s disease had not
recurred; his cholesterol and blood pressure were controlled; he was not smoking; and
his most recent coronary angiogram revealed no reason for surgery.

      The district court found that Johnson suffers from an extraordinary physical
impairment. It then addressed the three questions that must be answered for each
defendant who claims the benefit of § 5H1.4: (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



                                         -6-
has any substantial present effect on the defendant’s ability to function. United States
v. Rabins, 63 F.3d 721, 729 (8th Cir. 1995).

      The district court expressed its uncertainty whether all three of these questions
must be answered for each defendant or whether a positive answer to only one or two
of them would suffice to constitute the basis for a § 5H1.4 downward departure.

       The district court then found, agreeing with the government’s position, that
imprisonment would not constitute more than the normal hardship for Johnson even
in light of Johnson’s extraordinary physical impairment.

       Likewise, the district court agreed with the government’s position that
imprisonment would not subject Johnson to more than the normal inconvenience or
danger, alluding to Dr. Ilvedson’s statement that Johnson would be put on supervised
cardiac rehabilitation and observing that there is a greater likelihood that Johnson’s
condition would be monitored and his cardiac rehabilitation regimen complied with
if Johnson were in prison than it otherwise would be.

       With respect to the third Rabins question, whether Johnson’s physical
condition had a substantial present effect on his ability to function, the district court
stated:

      I think it does. While, you know, I think he’s capable of walking,
      brushing his teeth, and those types of things, I think there will be a wide
      range of things even in prison that he’ll probably be unable to do. And
      I just think based on the doctor – Dr. Leon’s report, he indicates that he
      has moderate functional impairment but the long-range prognosis is
      guarded and he has severe coronary artery disease. And I’m willing to
      conclude from that that the defendant does have a substantial present
      effect on his ability to function [sic].



                                          -7-
       The district court found that Johnson’s offense level was 34 and his criminal
history category V, resulting in a guidelines range of 235 to 293 months’
imprisonment (with a 10-year mandatory minimum sentence on the two possession-
with-intent-to-distribute counts). The court departed downward from the guidelines
range and imposed concurrent sentences of 175 months on each of the three counts
on which Johnson had been convicted. We conclude that the court erred in doing so.

       We conclude that the district court’s finding that Johnson suffers from an
extraordinary physical impairment, resulted from an improper application of the law.
As we stated in Rabins, the phrase “extraordinary physical impairment” “should be
interpreted according to its manifest purpose.” 63 F.3d at 729. Thus, rather than
being viewed in the abstract, a defendant’s physical condition must be assessed in the
light of the situation the defendant would encounter while imprisoned. As the
Seventh Circuit has held, “An ailment also might usefully be called ‘extraordinary’
if it is substantially more dangerous for prisoners than non-prisoners. Then
imprisonment would shorten the defendant’s life span, making a given term a more
harsh punishment than the same term for a healthy person.” United States v. Krilich,
257 F.3d 689, 693 (7th Cir. 2001).

       When so assessed, Johnson’s physical impairment, although concededly
serious, is not extraordinary. As the district court found, imprisonment would not
constitute more than normal hardship for Johnson, nor would it subject him to more
than normal inconvenience or danger. With all due respect to the district court’s on-
the-scene opportunity to observe Johnson, we find no support in the record for a
finding that Johnson’s physical impairment would have a substantial present effect
on his ability to function within the confines of a prison environment. Johnson’s
heart problems obviously restrict the scope of his exertional activities, but that will
be no more the case in prison than in the outside world, and it is in the light of the
prison environment that those restrictions must be weighed.



                                         -8-
        Accordingly, we conclude that the district court abused its discretion in
granting a downward departure based on Johnson’s physical condition. The record
simply does not support a finding that Johnson’s physical impairment is so severe that
it falls within the definition set forth in § 5H1.4 and as interpreted in Rabins.

       We do not reach this conclusion lightly, for we are mindful of the broad
discretion that district courts are entitled to exercise in determining whether a
downward departure is warranted under the sentencing guidelines. That discretion
must be exercised on the basis of a finding fairly supported by facts in the record,
however, and when that factual support is lacking we on the appellate courts have a
duty to correct what we perceive to be error.

     The convictions are affirmed, the sentence is reversed, and the case is
remanded to the district court for resentencing.

BRIGHT, Circuit Judge, dissenting.

       I respectfully dissent from the majority’s reversal of the district court’s five-
year downward departure based on Melroy Johnson, Sr.’s extraordinary physical
condition. The majority has substituted its perception of the facts for the thorough
findings of an experienced and able chief district court judge. The district court did
not abuse its discretion; the court made its factual findings with care and discernment.
This panel should afford proper deference to those findings. Furthermore, the
majority fails to clarify the applicability of United States v. Rabins, 63 F.3d 721 (8th
Cir. 1995), despite the district court’s repeated expressions of uncertainty on how to
conduct § 5H1.4 downward departure analysis under Rabins.

       The majority concludes that the district court’s finding that Johnson suffers
from an extraordinary physical impairment “resulted from an improper application
of the law.” However, after cursory citations to Rabins and United States v. Krilich,

                                          -9-
257 F.3d 689 (7th Cir. 2001),2 the majority opinion does not explain what a proper
application of the law would have been. Instead, it conducts its own assessment of
the facts and concludes that “Johnson’s physical impairment, although concededly
serious, is not extraordinary.” This type of determination is precisely the sort that
should be left to the sound discretion of the district court. The distinction between
labeling a physical condition as “serious” or as “extraordinary” is best done by the
finder of fact.

       As the Supreme Court recognized in Koon v. United States, 518 U.S. 81, 98
(1996), “A district court’s decision to depart from the Guidelines . . . will in most
cases be due substantial deference, for it embodies the traditional exercise of
discretion by a sentencing court.” Koon laid out the proper role for the sentencing
court in resolving whether departure is warranted by the facts of an individual case:

      To resolve this question, the district court must make a refined
      assessment of the many facts bearing on the outcome, informed by its
      vantage point and day-to-day experience in criminal sentencing.
      Whether a given factor is present to a degree not adequately considered
      by the Commission, or whether a discouraged factor nonetheless
      justifies departure because it is present in some unusual or exceptional
      way, are matters determined in large part by comparison with the facts
      of other Guidelines cases. District courts have an institutional
      advantage over appellate courts in making these sorts of determinations,
      especially as they see so many more Guidelines cases than appellate
      courts do.


      2
       It is entirely unclear how the majority intends future district courts to conduct
§ 5H1.4 downward departure analysis. The majority does not reconcile the Seventh
Circuit’s analysis in Krilich with the Rabins decision. For example, it does not
explain how Krilich’s focus on whether the “prison medical facilities [can] cope”
with the defendant’s medical problem should be incorporated into the three Rabins
questions. Krilich, 257 F.3d at 693. Simply citing these two decisions does not
provide the type of legal analysis the district court in this matter requested.

                                         -10-
Id.3 It is the job of the district courts, not the appellate courts, to find facts. United
States v. Searcy, 284 F.3d 938, 943 (8th Cir. 2002).

      There can be no valid contention that the district court failed to make a “refined
assessment” of the facts in this case. A review of the sentencing transcript reveals the
thoughtfulness with which the court approached its duty. At the initial sentencing
hearing, Johnson presented the court with a letter from Dr. Diane K. Werth, the doctor
who treated Johnson at the Sioux City emergency room on March 10, 2000. The
government introduced a declaration from Dr. Ronald Ilvedson, staff physician at
FMC Rochester.

       Based upon this initial showing, the district court denied Johnson’s motion for
downward departure. Treating Johnson’s oral allocution as a motion to reconsider,
the district court continued the sentencing in order to give Johnson an opportunity to
present additional medical evidence. At the next sentencing hearing, Johnson offered
a letter from Dr. Arthur S. Leon, a physician at the University of Minnesota. The
government did not dispute the substance of Dr. Leon’s report or Dr. Leon’s
statement that Johnson was “seriously infirm,” in accordance with the use of the term
in the example given in Guideline § 5H1.4.

      Again, the district court continued the sentencing after indicating that it wanted
to know whether cardiac rehabilitation was available in the Bureau of Prisons. A


      3
       The above statement from Koon reminds this writer of a comment made by the
late Chief Justice Warren Burger at New York University’s summer session for
appellate court judges in 1969. Chief Justice Burger, in response to this writer’s
inquiry about federal appellate court judges reviewing sentences imposed by district
courts, stated in substance that appellate court judges know very little about
sentencing and those sort of decisions should remain largely in the purview of
experienced district court judges.

                                          -11-
third sentencing hearing was held on July 26, 2001, during which Dr. Ilvedson and
David Good, the associate warden for medical services at FMC Rochester, testified
via video conference at the district court’s request. Only after hearing arguments at
three separate hearings, receiving the opinions of multiple medical experts, and
applying its own experience in sentencing cases did the court conclude that for the
purposes of Guideline § 5H1.4, Johnson had an “extraordinary physical impairment.”

       Throughout the sentencing transcript, the district court indicates its desire to
proceed cautiously and with a complete understanding of the issues. After initially
denying Johnson’s request for a downward departure, the trial court reconsidered its
position, stating:

      I have some uneasiness that there may be medical testimony out there
      that might change my opinion . . . . [M]y one rule in this job is I do like
      to sleep well at night, and I would not sleep well at night if I didn’t give
      the defendant -- that’s not a legal principle, but that’s a very important
      principle to me, sleeping well at night, and I have sufficient reservation
      which I had when I started reviewing the motion for downward
      departure that there may be medical information there that might change
      my opinion.

(Sentencing Tr. 12/20/00, 52-53).

      During the second sentencing hearing, the court did not have evidence on
whether or not the Bureau of Prisons made cardiac rehabilitation available to
prisoners. Not wanting to simply assume or guess, the court again continued the
hearing in order to take testimony from Bureau of Prisons officials via video




                                         -12-
conference.4 At the third and final hearing, the district court unequivocally found that
Johnson had an extraordinary physical impairment.5

      4
          The court stated:

             On the other hand, you know, I don’t have a crystal ball, and I
      don’t know the answer to the question. And I think the answer to the
      question for me might be dispositive of how I would rule. And because
      this is an important matter, I hate to just take a guess as to what the
      answer is because I think both sides are entitled to something better than
      my best judgment on it when I think there’s an answer.

(Sentencing Tr. 5/26/01, 81).
      5
          The district court stated:

             Well, I find -- first of all, I’m going to adopt as my factual
      findings in the case Defendant’s Exhibit AA, the medical report by Dr.
      Leon, and I basically adopt the entire report as my factual findings, but
      I want to focus on the last page including the summary, and Dr. Leon
      indicates Mr. Johnson has multiple medical problems, the most serious
      of which is severe coronary artery disease which has resulted in two
      heart attacks and a left ventricle of the heart replaced by scar tissue and
      is therefore nonfunctional -- over half of the left ventricle of the heart is
      replaced by scar tissue; and, therefore, the left ventricle is nonfunctional.

             And based on all of the medical findings by Dr. Leon, I find that
      the defendant easily meets the requirement of extraordinary physical
      impairment. To me that’s an easy call.
             Now, whether or not I should depart is a much more difficult
      question. But on the central question of whether he has an extraordinary
      physical impairment, I find that he does. And I find that by -- beyond
      a reasonable doubt in my mind that he has an extraordinary physical
      impairment even though I only have to make the finding by a
      preponderance of the evidence. I find that the evidence is overwhelming
      that this defendant has an extraordinary physical impairment.


                                          -13-
        Despite this careful and thorough factual record, the majority opts to disagree
with the district court by classifying Johnson’s physical condition as serious but not
extraordinary when “assessed in the light of the situation the defendant would
encounter while imprisoned.” The majority concludes that the district court’s finding
of extraordinary medical condition is not fairly supported by facts in the record.
Under that view, according to the majority, the district court abused its discretion in
its role as a finder of fact.

       There are two reasons the majority’s conclusion is particularly troubling. First,
the district court could not have been more certain in its ruling that Johnson suffers
from an extraordinary impairment. It is difficult to imagine what more evidence the
district court could have heard on this matter. The factual record is replete with
medical evidence and specific findings. Second, while the district court expressed
no doubt about its factual conclusions, it expressed great uncertainty about the legal
conclusions it made: “And it’s I think the most difficult departure area that I see
where it seems more unsettled and more ambiguous at least to me. And I hope maybe
if there is an appeal that we do get some clarification.” (Sentencing Tr. 7/25/01,
136).6 The majority does not elucidate exactly how the district court erred in its
application of the law, despite a clear invitation by that court to review its legal
conclusions and clarify the law.


(Sentencing Tr. 7/25/01, 119-20).
      6
          At another point during sentencing the court asked the government:

              And my first question for you, Mr. Deegan, is I’ve never been
      clear as to whether or not the answer has to be yes to all three [Rabins]
      questions, whether you can balance the three. It really doesn’t say that
      -- it just says these questions must be answered for each individual
      defendant . . . . [U]ntil the Eighth Circuit clarifies it, I find it ambiguous.

(Sentencing Tr. 7/25/01, 121).

                                           -14-
        At the first sentencing hearing, the district court presented its understanding
of the downward departure inquiry: first the court determines whether the defendant
has an extraordinary medical condition based on factual information, and then the
court decides whether that condition is present to such an exceptional degree that it
is sufficiently outside the heartland of typical cases. See United States v. Reinke, 283
F.3d 918, 923 (8th Cir. 2002) (explaining the “heartland” analysis under the
Guidelines and Koon). The three questions from United States v. Rabins apply to the
second prong of this analysis. The government agreed with the court’s understanding
of how to conduct its departure inquiry.7

       Having found that Johnson had an extraordinary medical condition, the district
court turned to the “much more difficult question” of whether or not to depart. In this
decision, the court looked to the three questions presented in United States v. Rabins
for guidance. The court proceeded to make findings about whether or not Johnson’s
extraordinary condition fell outside the heartland of typical cases. The district court
was quite frank about its uncertainty regarding the state of the law:

      Well, I’m comfortable with my finding that Mr. Johnson suffers from an
      extraordinary physical impairment. I’m a lot less comfortable about the
      additional rulings I’m going to make now. And I -- you know, I’m not
      sure what the exact test is, and I’ll just be honest about that. I don’t
      know whether the three factors in Rabins survive the Koon decision or
      not. And if they do, I don’t know whether there has to be a yes answer
      to all three to make a departure.



      7
       At the second sentencing hearing the government stated, “[O]nce you find an
extraordinary physical impairment, then you ask those questions that Judge Arnold
laid out to determine whether it’s the type of extraordinary physical impairment that
the guidelines are talking about in 5H1.4.” The court responded, “Okay. That’s my
understanding. We’re on the same wavelength there.” (Sentencing Tr. 5/29/01, 67).


                                         -15-
            I am going to make a departure. And if the Rabins three questions
      survive and there have to be a yes answer to all three, I’ve already
      indicated no to two of the three. So I concede error in my departure.

(Sentencing Tr. 7/25/01, 135).

       Despite the district court’s repeated expressions of uncertainty about this
circuit’s case law on departures for extraordinary physical conditions, the panel
opinion takes no steps to clarify the situation. If anything, it further muddies the
waters by conflating the factual finding prong of the departure analysis with the
heartland analysis prong.

       The majority relies on the three Rabins questions in its assessment of whether
Johnson suffers from an extraordinary physical impairment. However, as the district
court recognized at sentencing and as the government acknowledged, the Rabins
factors are used as a means of measuring whether extraordinary conditions are present
to such an exceptional degree that they fall outside the heartland of typical cases as
a matter of law. The questions are not tools for interpreting medical diagnoses and
prognoses.



       The district court found the first two out of three factors discussed in Rabins,
63 F.3d at 729, weighed against a departure. The district court observed that both
factors addressed Johnson’s physical condition vis-a-vis imprisonment, and that a
high level of care available in the Bureau of Prisons would take care of defendant’s
medical needs. With regard to the third Rabins factor, the court found that Johnson’s
physical condition had a substantial present effect on his ability to function. The
court then made the more general finding that Johnson’s medical condition fell
“outside the heartland of defendants that I see.”



                                         -16-
      The majority notes the district court’s “uncertainty whether all three of these
questions must be answered for each defendant or whether a positive answer to only
one or two of them would suffice.” At the conclusion of the opinion, this is still an
open question. Leaving this matter unresolved in a published opinion is a great
disservice to sentencing courts. At a minimum, the majority should have clarified the
law–a proper function of federal appellate courts.

       In addition to not clarifying the state of the law, the panel opinion indicates that
all three Rabins inquiries are to be evaluated in terms of imprisonment. The
extraordinariness of a physical condition is to be “assessed in the light of the situation
the defendant would encounter while imprisoned.” There is nothing in the Rabins
decision to support this reading. The third question is simply, “Does the physical
condition have any substantial present effect on the defendant’s ability to function?”
Rabins, 63 F.3d at 729. Furthermore, the government does not share this perception
or argue this position before the panel. In its brief, the government described the
third Rabins factor as “a factor which has nothing to do with incarceration.”
(Government’s Br. at 48).

      Finally, the panel opinion does not resolve the difficult matter of how to
measure the “heartland” of typical cases in these types of departures. The majority
intimates that the heartland is to be judged in terms of the overall prison population,
but does not explicitly articulate its view. The district court considered this issue and
ultimately concluded that the heartland is to be assessed based on the sentencing
court’s expertise, i.e., based on the heartland of defendants that it sees. Again, the
sincere uncertainty of the district court has been left unresolved in a case that squarely
presents the matter for review.8

      8
        The following statements by the district court reveal yet another unclear area
in this type of case:

      I think I’ve virtually read all the other Eighth Circuit cases on this

                                           -17-
      As the discussion in this dissent emphasizes, I believe that the sentencing judge
in this case carefully assessed and made findings of facts, including those of
credibility, and applied those facts to the law as it appeared to him.

       In the area of imposing sentences, Congress and the Sentencing Commission
have removed much of the discretion from sentencing judges and have handed it over
to non-judges, such as probation officers and United States attorneys. Nonetheless,
the district court judges retain a critical role in making findings, assessing credibility,
and relying on those findings to impose the sentence. Those duties are important and
even awesome.

      I say to the district court judge in this matter, and to other federal district court
judges who impose sentences: do not surrender those duties and important functions,


      departure as well as a smattering of cases from the other circuits.
              One of the issues I have is there’s kind of a theme that you see in
      these cases which is . . . the fact that the cases talk about whether or not
      somebody can receive adequate treatment for their condition in the
      Bureau of Prisons.
              Here is my kind of overall question for you. I’ve never exactly
      understood what the significance of that is in terms of this downward
      departure. In other words, it doesn’t seem that it’s a prerequisite. In
      other words, you don’t have to find some incredibly obscure condition
      that the Bureau of Prisons has never heard of or doesn’t believe they can
      treat in order to have discretion to grant the downward departure, at least
      that’s my understanding.
              But, on the other hand, this issue about how the Bureau of Prisons
      would deal with the medical condition and their ability to treat it seems
      to come up in virtually every case. So I’m wondering, if it’s not a
      requirement, exactly what is the significance of the ability of the BOP
      to treat the condition?

(Sentencing Tr. 12/20/00, 35-36).


                                           -18-
notwithstanding disagreements with your appellate colleagues, such as in this case.
These functions belong to the district court, need to be in the district court, and
should remain there.

      I respectfully dissent in this matter because the district court’s factual findings
deserve deference from this panel and the majority’s treatment of this case offers far
more questions and ambiguities than resolutions.9

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      9
        It is ironic that the dissent in Rabins notes the district court as saying it would
“be delighted to have some more specific guidance from the Eighth Circuit” on the
issue of whether a deteriorating physical condition due to HIV-positive status can be
a factor considered for downward departure. 62 F.3d at 733. The dissent in Rabins
faults the majority for not providing that requested guidance. Here, too, the
sentencing judge sought guidance on appeal but obtains only apparent rejection of his
careful, thoughtful findings.

                                           -19-
