        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.
