                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 09-2359

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                               v.

S UZANNE P OETZ,
                                            Defendant-Appellant.


           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
            No. 07-cr-311—J.P. Stadtmueller, Judge.



   A RGUED S EPTEMBER 10, 2009—D ECIDED O CTOBER 9, 2009




 Before M ANION, S YKES, and T INDER, Circuit Judges.
  S YKES, Circuit Judge. Suzanne Poetz pleaded guilty to
theft of government property in violation of 18 U.S.C.
§ 641. Her advisory sentencing guidelines range was
24 to 30 months, and the district court sentenced her to
imprisonment of a year and a day. Poetz argues on
appeal that her sentence is unreasonable because the
judge did not adequately consider her medical prob-
lems or the impact of incarceration on her family, which
in her view warranted a sentence of home confinement.
2                                              No. 09-2359

  We affirm. The district judge’s failure to specifically
mention the impact of incarceration on Poetz’s family
does not require resentencing. The judge took evidence
and heard argument on this point over the course of
several sentencing hearings, and the totality of the
record demonstrates that the judge implicitly considered
and rejected it. The judge also gave ample consideration
to Poetz’s medical issues in imposing a below-guidelines
prison sentence.


                     I. Background
  Suzanne Poetz was a procurement officer at the United
States Forestry Service in Milwaukee when she began
stealing from her office to support a gambling habit. Her
theft totaled $319,000 over four years. She pleaded guilty
to a scheme of misusing government-issued purchase
cards and “convenience checks” in violation of 18 U.S.C.
§ 641. Poetz did not dispute her advisory guidelines
range of 24-30 months, but instead argued for a sentence of
24 months’ home confinement due to her medical prob-
lems and those of her family members.
  Poetz’s sentencing was delayed for over a year. Her
initial sentencing was rescheduled due to her stomach
surgery, the rescheduled sentencing was adjourned
because she had a seizure in court, and sentencing was
delayed again while the Bureau of Prisons (“BOP”) re-
viewed her medical history at the request of the court.
(Poetz suffers from various gastrointestinal disorders,
seizure disorder, several upper respiratory diseases,
arthritis, and early onset diabetes.) After considering
No. 09-2359                                             3

two sets of Poetz’s medical records, BOP medical staff
informed the court that it was capable of providing Poetz
with the necessary medical care to treat her various
conditions. Among other evidence presented over the
course of several sentencing hearings, Poetz’s husband
and father-in-law wrote to the court and testified
about how they depend on Poetz for supervision and
medical care. (Thomas Poetz, Suzanne’s husband, has
cardiac and back problems. Joseph Poetz, his father, also
has cardiac problems, as well as diabetes, glaucoma, and
cataracts.) They also explained that Poetz helps super-
vise her mentally disabled brother.
  The judge imposed a below-guidelines sentence of a
year and a day in prison and three years of supervised
release. The court stressed the need to promote respect
for the law, Poetz’s abuse of public trust, and her
“unique interrelated medical issues.” The judge men-
tioned Poetz’s family several times, but did not
explicitly mention the impact of incarceration on her
caretaking role within her family. Neither did the judge
explicitly address the possibility of home confinement.
Although the judge noted a concern about the BOP’s
medical facilities, he accepted the BOP’s representations
that it could provide Poetz with appropriate medical care.


                     II. Discussion
  Poetz challenges the reasonableness of her sentence
on the ground that the judge failed to consider her argu-
ments for home confinement. We review the reasonable-
ness of a sentence under an abuse-of-discretion standard.
4                                                  No. 09-2359

Gall v. United States, 128 S. Ct. 586, 591, 597 (2007). A below-
guidelines sentence, like a within-guidelines one, is
presumed reasonable against a defendant’s challenge
that it is too high. United States v. Liddell, 543 F.3d 877, 885
(7th Cir. 2008), cert. denied, 129 S. Ct. 2747 (2009). That we
might have imposed a different sentence is not sufficient
to justify reversal, United States v. Scott, 555 F.3d 605,
610 (7th Cir. 2009) (citing Gall, 128 S. Ct. at 597); reason-
ableness “contemplates a range, not a point,” id. at 608
(citation omitted). We have expressed skepticism about
defense arguments that a below-guidelines sentence is
unreasonable. See United States v. Wallace, 531 F.3d 504,
507 (7th Cir. 2008) (“We have never deemed a below-
range sentence to be unreasonably high.”); United States
v. George, 403 F.3d 470, 473 (7th Cir. 2005) (“It is hard to
conceive of below-range sentences that would be unrea-
sonably high.”).
  Poetz concedes that the district court properly cal-
culated the guidelines range and acknowledges the
general difficulty of challenging a below-guidelines
sentence as unreasonable. The thrust of her appeal is
that the sentencing judge did not consider certain of her
primary arguments that were “not so weak as not to
merit discussion.” United States v. Cunningham, 429 F.3d
673, 679 (7th Cir. 2005) (“We cannot have much con-
fidence in the judge’s considered attention to the
factors in this case, when he passed over in silence
the principal argument made by the defendant even
though the argument was not so weak as not to merit
discussion . . . . A judge who fails to mention a ground of
recognized legal merit (provided it has a factual basis)
No. 09-2359                                               5

is likely to have committed an error or oversight.”).
Specifically, Poetz argues that the district judge abused
his discretion by failing to address (1) the need to
provide her with medical care in the most effective man-
ner; (2) the adequacy of home confinement as an alterna-
tive to incarceration; and (3) the medical needs of her
family.
  We see no abuse of discretion here. The judge demon-
strated his sensitivity to Poetz’s medical issues—and
those of her family—throughout the lengthy and much-
delayed sentencing process. It is true that the judge
did not explicitly mention the impact of incarceration on
Poetz’s family in his sentencing remarks, but the totality
of the record establishes that the judge implicitly con-
sidered this issue in rejecting a sentence of home con-
finement. Poetz accuses the judge of giving short shrift
to her medical and family-based arguments. To the con-
trary, however, the judge received voluminous evidence
and listened carefully to her arguments about her unique
medical issues and family circumstances and in the end
imposed a short prison sentence significantly below the
applicable guidelines range. As we will explain, under
these circumstances Cunningham’s requirement that
the district court specifically address the defendant’s
principal, potentially meritorious sentencing arguments
applies with less force.


A. Poetz’s Medical Issues
  The record in this case belies Poetz’s contention that the
judge did not adequately consider her medical needs.
6                                              No. 09-2359

Under 18 U.S.C. § 3553(a), the judge should consider
(among other things) the need to provide the defendant
with medical care in the “most effective manner.” 18 U.S.C.
§ 3553(a)(2)(D). Section 5H1.4 of the guidelines explains
that while a defendant’s physical condition is not ordi-
narily relevant, an “extraordinary physical impairment”
may be a reason for a below-guidelines sentence. U.S.S.G.
§ 5H1.4 (Policy Statement). Poetz presented abundant
evidence of her medical infirmities to the court. She fails
to acknowledge, however, the obvious care with which
the court addressed her medical issues. Poetz’s health
problems took center stage during this protracted sen-
tencing, and the judge imposed a sentence substantially
below the applicable guidelines range largely because of
her medical condition.
  Significant to our analysis here, Poetz’s sentencing
took place over the course of more than a year and in-
volved five separate hearings. The judge took an active
role in gathering medical records and facilitating com-
munication with the BOP regarding the appropriate level
of care and whether the BOP could adequately meet
Poetz’s needs. At the final sentencing hearing, the judge
acknowledged the “genuineness of [Poetz’s] medical
issues,” and addressed the need for the BOP to provide
the “appropriate levels and regimens of treatment” and
to “monitor Ms. Poetz’s issues” on an ongoing basis.
Although judges may properly reject the BOP’s boiler-
plate assurances that its facilities adequately provide for
a defendant’s medical care, see United States v. Gee, 226
F.3d 885, 902 (7th Cir. 2000), nothing prevents a judge
from accepting the BOP’s nonboilerplate assurances
No. 09-2359                                              7

of adequate care, especially where, as here, the BOP’s
medical staff has reviewed not one but two sets of the
defendant’s medical records. We conclude that the
judge adequately considered Poetz’s medical issues and
the need to provide her with medical care in the “most
effective manner.”


B. Home Confinement
  The district judge did not abuse his discretion by sen-
tencing Poetz to a below-guidelines period of incarcer-
ation instead of home detention. The judge explained
that despite Poetz’s medical issues, a period of incarcera-
tion was “fundamentally required” to promote respect
for the law, provide for deterrence, and hold Poetz ac-
countable for her breach of the trust placed in stewards
of public funds. The judge did not need to mention
home confinement explicitly because he made it clear
why he believed imprisonment was necessary. Explana-
tion is not necessary where “anyone acquainted with
the facts would have known without being told why the
judge had not accepted the argument.” Cunningham,
429 F.3d at 679.
  Poetz leans heavily on a policy statement of the guide-
lines providing that “extraordinary physical impairment
may be a reason to depart downward; e.g., in the case
of a seriously infirm defendant, home detention may be
as efficient as, and less costly than, imprisonment.”
U.S.S.G. § 5H1.4. This statement suggests only that
home confinement may be a cost-effective alternative
to imprisonment for seriously infirm defendants. It does
8                                                   No. 09-2359

not suggest that imprisonment is never appropriate
for infirm defendants or that a judge abuses his dis-
cretion if he sentences a defendant with serious health
problems to prison.1


C. Family Circumstances
  We also reject Poetz’s contention that the judge failed
to consider the effect of incarceration on her family. We
have previously recognized that a defendant’s extra-
ordinary family circumstances may constitute a legiti-
mate basis for a below-guidelines sentence. United States
v. Schroeder, 536 F.3d 746, 755-56 (7th Cir. 2008).
Schroeder, however, did not address the issue of home
confinement in lieu of prison,2 and Poetz has not
identified any case in which a below-guidelines prison
sentence—or even a within-guidelines prison sen-
tence—was held to be unreasonable because the court
refused to impose a home-detention sentence based on


1
  Home detention is an imprisonment substitute and
does not constitute imprisonment. United States v. Elkins,
176 F.3d 1016, 1020 (7th Cir. 1999).
2
   Schroeder is distinguishable on several grounds. The defendant
in Schroeder had received the statutory maximum, and the
judge mistakenly stated at sentencing that the effect incarcera-
tion would have on the defendant’s family could not constitute
a valid basis for imposing a lower sentence. 536 F.3d at 751-55.
In addition, the sentencing judge in Schroeder improperly
precluded defense counsel from contesting the loss calcula-
tion. Id. at 752-55.
No. 09-2359                                                  9

family hardship. Instead, Poetz relies heavily on the
commentary to U.S.S.G. § 5H1.6, which describes the
circumstances under which a below-guidelines sentence
(that is, a departure under the pre-Booker mandatory
guidelines) might be appropriate based on a loss of
family caretaking. The circumstances described in the
commentary are carefully circumscribed, however.3 In
any event, nothing in the commentary to § 5H1.6
requires a court to credit a defendant’s claim of family
hardship due to loss of caretaking.
   More importantly, the totality of the record here estab-
lishes that the district judge implicitly considered Poetz’s
argument relating to her family circumstances before
rejecting her request for home detention. The presen-
tence report contained detailed information about her
family’s reliance on her medical, financial, and psycho-
logical support. Poetz’s father-in-law and husband
both spoke at one of the sentencing hearings about their
medical issues and their family’s reliance on her care. In
addition, the judge’s sentencing remarks are peppered
with references to her family. The judge said he had
focused on medical issues “in [the] mind of the defendant
and her family.” He observed that despite her family’s
multiple health problems, Poetz had not used the stolen


3
  The commentary to § 5H1.6 specifies the following circum-
stances: a “substantial, direct, and specific loss of essential
caretaking”; the loss of caretaking “substantially exceeds the
harm ordinarily incident to incarceration”; and “no effective
remedial or ameliorative programs reasonably are available.”
U.S.S.G. § 5H1.6 cmt. n.1(B).
10                                            No. 09-2359

funds “to provide for the medical care of others in her
family unit.” The judge also specifically said he had con-
sidered “the genuineness of the medical issues that she
presents to her family” and “the defendant’s personal
characteristics.” Though perhaps imprecise, these com-
ments undermine Poetz’s claim that the judge either
overlooked or ignored her family-hardship argument.
  We do not doubt Poetz’s concern for her family’s well-
being during her imprisonment. But it is apparent from
this record that the judge fully understood her argument
on this point and implicitly considered and rejected it
in imposing a lenient, below-guidelines term of impris-
onment. Although we said in Cunningham that the sen-
tencing court must address all defense arguments that are
“not so weak as not to merit discussion,” 429 F.3d at 679,
this principle does not apply mechanically or without
regard to context. Cunningham involved a within-guide-
lines sentence, and it was unclear whether the court
had overlooked or ignored a potentially meritorious
sentencing argument in declining to impose a below-
guidelines sentence. Id. We suppose we could hypothe-
size a case in which a below-guidelines sentence might
run afoul of Cunningham’s prescription to consider all of
the defendant’s primary, potentially meritorious sen-
tencing arguments, but this is not such a case.
  Here, the judge gave qualitative consideration to
Poetz’s sentencing arguments before rejecting her
request for home confinement and imposing a prison
sentence well below the applicable guidelines range. That
Poetz disagrees with the weight the judge gave to her
No. 09-2359                                            11

evidence does not make her below-guidelines sentence
unreasonable. See United States v. Haskins, 511 F.3d 688,
696 (7th Cir. 2007) (“Although Haskins disagrees with
the district court’s assessment of the circumstances sur-
rounding the offense and the amount of weight to be
given to his family situation, that does not in any way
undermine the fact that the court gave meaningful con-
sideration to the section 3553(a) factors, as required for
us to uphold a properly calculated sentence.” (citations
and internal quotation marks omitted)).
                                                A FFIRMED




                          10-9-09
