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                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 04a0052n.06
                            Filed: October 28, 2004

                                      Case No. 03-6281

                     IN THE UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT



UNITED STATES OF AMERICA,                  )        ON APPEAL FROM THE UNITED
                                           )        STATES DISTRICT COURT FOR
              Plaintiff-Appellant,         )         THE EASTERN DISTRICT OF
                                           )               TENNESSEE
v.                                         )
                                           )
PARKE GOINS,                               )
                                           )
              Defendant-Appellee.          )



Before: BATCHELDER and GIBBONS, Circuit Judges; and STAFFORD, District Judge.*

       STAFFORD, District Judge. Appellant, the United States of America (the

“government”), appeals the sentence given to the defendant, Parke Goins (“Goins”),

following his guilty plea to dealing in firearms without a license to do so. Specifically, the

government appeals the district court’s five-level downward departure from the

sentencing guidelines. We vacate and remand for resentencing.

                                               I.

       On June 5, 2002, Goins was charged with four counts of firearms violations

occurring between May, 2001, and April 17, 2002. In Count One, Goins was charged

with willfully engaging in the unlicensed business of dealing in firearms, including but
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       * The Honorable William Stafford, Senior United States District Judge for the
Northern District of Florida, sitting by designation.
not limited to those firearms identified in the remaining three counts, in violation of 18

U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D). Goins pleaded guilty to Count One on March

26, 2003. The government agreed to move for dismissal of the remaining three counts

at the time of sentencing.

       On September 2, 2003, after filing a motion for downward departure, Goins

appeared before the district court for sentencing. At the time of sentencing, Goins was

69 years old. In 1997, he suffered a heart attack that required quadruple bypass

surgery. He suffers from diabetes and psoriasis; has been diagnosed with coronary

artery disease, congestive heart failure and hypertension; has poor circulation in his legs

which causes him to use a cane to walk at times; and takes daily medication, including

nitroglycerin tablets, for his various conditions. In the district court’s words:

              [Defendant is] 69 years old; he has got congestive heart
              failure, hypertension, coronary artery disease, diabetes,
              psoriasis; he has got all kinds of problems; [he’s] as gray as
              he can be. He looks like he has got some problems with
              circulation just looking at him right now. He doesn’t look well
              at all. He came in here staggering on a cane. He doesn’t
              belong in the penitentiary.

J.A. at 93.

       Pursuant to U.S.S.G. § 2K2.1, the probation officer calculated Goins’s base

offense level to be twelve (12). That base offense level was increased six (6) levels

pursuant to U.S.S.G. § 2K2.1(b)(1)(C) for possession of between twenty-five (25) and

ninety-nine (99) firearms. Taking into account a three-level reduction for acceptance of

responsibility, Goins’s adjusted total offense level was fifteen (15). With a criminal

history category I, Goins’s guideline range for imprisonment was eighteen (18) to twenty-
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four (24) months. Pursuant to U.S.S.G. § 5B1.1(b), Goins was not eligible for a sentence

of probation.

       Rejecting the government’s objections to a downward departure, the district court

sentenced Goins to probation for a term of five (5) years. The district court explained:

                It is felt that this sentence of probation will afford more than
                adequate deterrence and provide just punishment in your
                case, particularly in lieu, in view of the fact that you are in a
                very fragile physical condition, not only by your appearance,
                but by what I have learned about your medical problems.
                You look frail. You look pale; you look sick. I find that that is
                an extraordinary physical impairment. It gives me reason to
                impose a sentence below the applicable guideline range that
                you are seriously infirm. Home detention is as efficient and
                certainly is less costly than prison. You have diabetes,
                psoriasis, coronary artery disease, congestive heart failure,
                hypertension. You are required to use a cane because of
                arthritis of the right hip, poor circulation in your legs. You
                take medication for all these conditions, that you have to use
                nitroglycerin for severe chest pain on a regular basis.

J.A. at 100.

       The government filed a timely notice of appeal on September 29, 2003.

                                                II.

       18 U.S.C. § 3742(e) spells out the standard of review as follows:

                The court of appeals shall give due regard to the opportunity
                of the district court to judge the credibility of the witnesses,
                and shall accept the findings of fact of the district court unless
                they are clearly erroneous and, except with respect to
                determinations under subsection (3)(A) or (3)(B), shall give
                due deference to the district court’s application of the
                guidelines to the facts. With respect to determinations under
                subsection (3)(A) or (3)(B), the court of appeals shall review
                de novo the district court’s application of the guidelines to the
                facts.

Subsection (e)(3)(B) provides that “the court of appeals shall determine whether the
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sentence..is outside the applicable guideline range, and...departs from the applicable

guideline range based on a factor that (i) does not advance the objectives set forth in

section 3553(a)(2); or (ii) is not authorized under section 3553(b); or (iii) is not justified by

the facts of the case.”

       In United States v. Johnson, 71 F.3d 539, 544-45 (6th Cir. 1995), cert. denied,

517 U.S. 1113 (1996), the court explained how to review departures as follows:

              In reviewing departures from the guideline range, we apply a
              three-part test: (1) whether the case is sufficiently unusual to
              warrant departure, a legal question subject to de novo review;
              (2) whether the circumstances, if legally sufficient, are
              actually present, a factual question subject to a clearly
              erroneous standard of review; (3) whether the direction and
              degree of departure is reasonable.

                                               III.

       A sentencing court must impose a sentence within the applicable guideline range

“unless 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.” United States v. Reed, 264 F.3d 640, 646 (6th Cir. 2001), cert. denied,

122 S. Ct. 1374 (2002). The guidelines provide that both age and physical condition

may be valid grounds for a downward departure. Specifically, U.S.S.G. § 5H1.4

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

U.S.S.G. § 5H1.1 provides:
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              Age (including youth) 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.

See also Johnson, 71 F.3d at 545 (noting that,”[l]egally, we find it possible that an aged

defendant with a multitude of health problems may qualify for a downward departure

under § 5H1.4...[but] such downward departures are rare").

       In United States v. Tocco, 200 F.3d 401, 434 (6th Cir. 2000), the defendant was

72 at the time of his original sentencing, and he was suffering from “debilitating health,”

including arterioscleriotic disease, coronary artery disease, hypertension, renal

insufficiency, labrynthitis, and diverticulosis, all of which required periodic monitoring.

The district court granted a four-level downward departure on the basis of the

defendant’s age and health. On appeal, this court remanded the case to the district

court with instructions to “make more specific findings as to whether defendant has ‘an

extraordinary physical impairment,’ or combination of impairments, worthy of departure.”

Id. at 435. The district court was also instructed that its findings should be based upon

“independent and competent medical evidence to determine the extent of Tocco’s

infirmities.” Id. Furthermore, the district court was told to consider “the prison system’s

ability or inability to accommodate” the defendant’s infirmities. Id. On remand, the

district court found that the defendant’s physical infirmities were not so extraordinary as

to warrant a downward departure. See United States v. Tocco, 306 F.3d 279, 295 (6th

Cir. 2002) (explaining that the district court’s refusal--on remand--to depart downward on

the basis of Tocco’s health was unreviewable).
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       In Johnson, the district court granted a departure based on the 65-year-old

defendant’s medical problems, including diabetes, hypertension, hypothyroidism, ulcers,

potassium loss and major depressive disorder, all conditions for which he was receiving

medication. 71 F.3d at 544-45. As in Tocco, this court remanded the case to the district

court for “more thorough fact-finding as to defendant’s medical condition.” Id. at 544.

Specifically, the district court was directed to

              make more specific findings as to whether defendant has ‘an
              extraordinary physical impairment,’ or combination of
              impairments, worthy of departure. Toward this end, more
              evidence than the letters produced by the defendant [one
              from his treating physician and one from his psychiatrist] may
              be necessary to determine the extent of defendant's
              infirmities and the prison system's ability or inability to
              accommodate them.”

Id. at 545.

       In United States v. Bostic, 371 F.3d 865, 869-70 (6th Cir. 2004), the district court

granted the defendant’s motion for a downward departure, departing downward eleven

(11) levels based on the defendant’s age (82) and infirmities (emphysema, anemia, and

coronary artery disease). The United States appealed. This court reviewed the

departure for plain error because the government had failed to make an explicit objection

to the departure at the time of sentencing. Id. at 871. The court of appeals concluded

that the district court indeeed committed plain error by granting an eleven-level

downward departure without complying with the methodology set forth in Johnson and

Tocco. Id. at 877. The defendant’s sentence was accordingly vacated, and the case

was remanded for resentencing. Id.

       Consistent with Tocco, Johnson, and Bostic, when considering a downward
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departure for medical reasons, a district court must determine (1) whether the defendant

has demonstrated, by independent medical evidence, that his or her medical condition is

exceptional or outside the heartland of similar cases; and (2) whether the BOP can

efficiently and economically accommodate the defendant’s medical needs. At the

sentencing hearing in this case, neither Goins nor the district court referred to the

medical records that were attached to Goins’s motion to depart. Those medical records,

moreover, contain very little information about Goins’s medical condition in 2003 when

he was sentenced. They also do not contain a physician’s opinion as to Goins’s current

condition. Indeed, in granting Goins’s departure motion, it appears that the district court

relied not at all on an independent medical evaluation of Goins’s condition. Rather, the

district court relied on its own visual inspection of Goins and on Goins’s testimony about

his various ailments. Furthermore, the district court failed to address whether the BOP

would be able to accommodate Goins’s medical needs. The district court thus failed to

comply with the requirements of Johnson and Tocco, making a remand for resentencing

necessary.

                                             IV.

       For the foregoing reasons, we conclude that the district court erred by granting

Goins’s departure motion without making the findings required by the applicable

caselaw. Accordingly, we VACATE Goins’s sentence and REMAND for resentencing.
