In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3069

United States of America,

Plaintiff-Appellee,

v.

Jerry Crickon,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 126--Harry D. Leinenweber, Judge.


Submitted January 18, 2001--Decided February 16, 2001



       Before Cudahy, Kanne, and Rovner, Circuit Judges.

      Cudahy, Circuit Judge. Sixty-year-old Jerry
Crickon was convicted of possession with intent
to distribute methamphetamine and sentenced to a
151-month term of imprisonment. Crickon appeals
his sentence, arguing that "his advancing age,
debilitated condition, and full and honest
cooperation" call for a sentence that is shorter
than the one he received. Although we are
understanding of his plight, we are constrained
to affirm.

I.   BACKGROUND

      On February 22, 1999, Illinois State Police
stopped Jerry Crickon during his drive from
California to Addison, Illinois. While stopped,
Crickon confessed to transporting methamphetamine
and agreed to make a controlled delivery, thus
helping the police catch Juan Carlos Delatorre,
the man to whom Crickon was bringing his shipment
of methamphetamine. Following his controlled
delivery, Crickon was indicted under 18 U.S.C.
sec. 846 for conspiracy to possess with the
intent to distribute methamphetamine. Crickon
pleaded guilty to this charge, and his case
proceeded to the sentencing phase.

      In response to his presentence report, Crickon
filed a motion--based solely on "his advancing
age, debilitated condition, and full and honest
cooperation"--requesting a downward departure
from not only the 151-181 month sentencing range
prescribed by the Sentencing Guidelines, but also
the 120-month minimum sentence prescribed by 18
U.S.C. sec. 841(b)(1)(A)(viii) (a mandatory
minimum). The district court denied this motion,
and Crickon orally renewed the motion at his
sentencing hearing. There, he argued that, in
light of his advancing age and ill health, he was
entitled to an approximately 60-month sentence.
However, the district court determined that it
could not go below the statutory minimum sentence
unless the government made a motion under 18
U.S.C. sec. 3553(e) based on Crickon’s
substantial cooperation or Crickon qualified for
the "safety valve" provision of 18 U.S.C. sec.
3553(f). Because the district court believed that
neither option was available under the facts of
this case, it refused to go below the 120-month
minimum sentence in sentencing Crickon.

      Next, the district court addressed whether
Crickon’s age and health would allow it to impose
a sentence above the 120-month statutory minimum,
but below the guideline range of 151 to 188
months, applicable to Crickon based on his
criminal history and sentence adjustments. The
district court concluded that it would not depart
downward because, under U.S.S.G. sec. 5H1.1:

[a]ge . . . is not ordinarily relevant in
determining whether a sentence should be outside
the applicable guideline range. Age may be a
reason to impose a sentence below the applicable
guideline range when the defendant is elderly and
infirm and where a form of punishment such as
home confinement might be equally efficient as
and less costly than incarceration.

Similarly, under U.S.S.G. sec. 5H1.4:

[p]hysical condition is not ordinarily relevant
in determining whether a sentence should be
outside the applicable guideline range. However,
an extraordinary physical impairment may be a
reason to impose a sentence below the applicable
guideline range; e.g. in the case of a seriously
infirm defendant, home detention may be as
efficient as, and less costly than, imprisonment.

In considering these provisions, the district
court found that Crickon’s age was not so
advanced as to warrant a downward departure, and
that Crickon had further failed to present any
evidence of an extraordinary physical impairment
that might provide an alternative basis for a
downward departure. Accordingly, the district
court sentenced Crickon to 151 months of
imprisonment, the shortest sentence within his
guideline range. Crickon appeals his sentence,
arguing that the district court misunderstood its
discretion to depart from the guideline range and
that his cooperation with the police, age and
physical condition warrant a sentence that is at,
if not below, the prescribed statutory minimum.
His appellate brief underlines his plea not to be
left to die in prison.

II.   DISCUSSION

      As an initial matter, we note that an appeals
court may review a district court’s refusal to
depart downward only where it is based on the
erroneous belief that the court lacked the
discretion to depart. See United States v.
Williams, 202 F.3d 959, 964 (7th Cir. 2000). When
the district court correctly understands its
discretion to depart downward, the court’s
decision "is a discretionary decision not subject
to the review of this court." United States v.
Johnson, 227 F.3d 807, 816 (7th Cir. 2000).

      Crickon argues that the district court
incorrectly believed that it did not have the
authority to depart downward from the sentence
prescribed by the Sentencing Guidelines because
the court stated that "under the facts of this
case, I don’t see where I have that authority [to
depart downward]," and that "[i]t is not within
my purview to change the law." We do not believe
that these statements reflect a misapprehension
of the district court’s ability to grant a
downward departure under appropriate
circumstances. However, even if these statements
could be read to represent a misunderstanding of
the district court’s discretion, they are
isolated statements, and our review of the entire
sentencing transcript indicates that the district
court fully understood that it had the authority
to depart downward. The court reviewed the record
and concluded that Crickon did not suffer the
kind of extreme infirmity or extraordinary
physical impairment that warrants downward
departure. For example, the court stated:

I don’t mean to make light[,] but [Crickon] does
appear not to have any of the conditions [that
would warrant a downward departure]. [Age or
extraordinary physical impairment] is not
ordinarily relevant, which means that it is
relevant in some cases. But extraordinary
physical impairment, I just do not see anything
in the record to support that.

Thus, the district court chose to adhere to the
Sentencing Guidelines range because the facts of
Crickon’s case did not warrant a departure, not
because the court mistakenly believed that it
could not depart downward when circumstances were
shown to be more compelling. Accordingly, the
district court understood its discretion, and its
decision not to exercise this discretion is not
reviewable by this court.

      However, even if we were to review the district
court’s decision not to depart downward, we
cannot say that its refusal to do so was not
justified. A district court’s application of the
sentencing guidelines is given "due deference."
See United States v. Hammick, 36 F.3d 594, 597
(7th Cir. 1994). Nothing in the record convinces
us that such deference is not due here.

      Crickon argues that, in sentencing him, the
district court should have departed not just
below the guideline range, but also below the
statutory minimum. However, a departure below the
statutory minimum is only permitted under the
"substantial assistance" and "safety valve"
exceptions, neither of which are open to Crickon.
See United States v. DeMaio, 28 F.3d 588, 591
(7th Cir. 1994). A downward departure for
substantial assistance to authorities is only
allowed on the government’s motion, see 18 U.S.C.
sec. 3553(e); U.S.S.G. sec. 5K1.1 (policy
statement). Here, the government made no such
motion, and thus the district court did not err
by refusing to depart downward because of
Crickon’s cooperation with law enforcement. The
"safety valve" departure allowed under 18 U.S.C.
sec. 3553(f) is only available to defendants who
have a criminal history category of I. See 18
U.S.C. sec. 3553(f)(1); U.S.S.G. ch. 5 pt. A.
Because the district court determined that
Crickon had a criminal history category of IV--a
determination that he does not appeal--Crickon is
ineligible for the "safety valve" departure.

      Crickon further argues that, even if his
sentence could not be reduced below the 120-month
statutory minimum, it should have at least fallen
below the 151-188 month range prescribed by the
sentencing guidelines. In support of his
contention, Crickon notes that the Supreme
Court’s decision in Koon v. United States, 518
U.S. 81, 92 (1996), "[a]cknowledg[ed] the wisdom,
even the necessity, of sentencing procedures that
take into account individual circumstances . . .
." However, Crickon does not fully state the
relevant portion of the Court’s discussion, for
in Koon the Court stated more fully that:

Acknowledging the wisdom, even the necessity, of
sentencing procedures that take into account
individual circumstances, see 28 U.S.C. sec.
991(b)(1)(B), Congress allows district courts to
depart from the applicable Guideline range if
"the court finds that there exists an aggravating
or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration
by the Sentencing Commission in formulating the
guidelines that should result in a sentence
different from that described." 18 U.S.C. sec.
3553(b).

Id. Thus, the Court--like the district court
here--recognized that departures are warranted
only under mitigating circumstances of a kind not
adequately taken into account by the guidelines.
Indeed, in order for a district court to grant a
downward departure due to physical disability, we
have held that "[t]he district court . . . ’must
ascertain, through competent medical testimony,
that the defendant needs constant medical care,
or that the care he does need will not be
available to him should he be incarcerated.’"
United States v. Albarran, 233 F.3d 972, 979 (7th
Cir. 2000) (quoting United States v. Sherman, 53
F.3d 782, 787 (7th Cir. 1995)).

       Here, Crickon’s presentence report noted that he
was "usually experiencing good physical health,
suffering from no chronic illnesses other than
flu-like symptoms last August." Crickon presented
absolutely no medical testimony at his sentencing
hearing to contradict this report, and this alone
is sufficient to deny him a downward departure
based upon physical disability. See Albarran, 233
F.3d at 979 ("[T]here was no independent evidence
presented concerning [the defendant’s] medical
condition at the sentencing hearing, therefore it
would have been inappropriate for the district
court to grant a departure on this basis."). In
spite of the paucity of medical evidence, Crickon
relies on his attorney’s contention at sentencing
that he looks older than his 60 years of age due
to his history of drug abuse. But "[d]rug . . .
dependence or abuse is not a reason for imposing
a sentence below the guidelines." U.S.S.G. sec.
5H1.4. At sentencing, Crickon’s counsel also
argued that Crickon would die in prison if his
sentence were not shortened. Again, this factor
would certainly seem important if buttressed by
medical evidence, which was not the case here.
Therefore, the district court correctly concluded
that, without any compelling medical evidence or
even a tenable argument from Crickon, a downward
departure was not warranted under U.S.S.G.
sec.sec. 5H1.1 & 5H1.4. Thus, all of Crickon’s
arguments fail, and Crickon is not entitled to a
downward departure from the sentencing guideline
range.

III.   CONCLUSION

      For the foregoing reasons, the sentence in this
case is

Affirmed.
