                                                         [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                JUL 10, 2006
                                No. 05-15697                  THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                       D. C. Docket No. 05-20229-CR-JEM

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

GREGORY CHRISTOPHER WAUGH,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________

                                  (July 10, 2006)

Before TJOFLAT, CARNES and WILSON, Circuit Judges.

PER CURIAM:

      Gregory Waugh pleaded guilty to (1) conspiracy to import 100 grams or

more of heroin in violation of 21 U.S.C. § 963; (2) importation of 100 grams or
more of heroin in violation of 21 U.S.C. §952(a); (3) conspiracy to possess with

intent to distribute 100 grams or more of heroin in violation of 21 U.S.C. § 846;

and (4) possession with intent to distribute 100 grams or more of heroin in

violation of 21 U.S.C. § 841(a)(1). He was sentenced to 135 months imprisonment

and appeals the sentence.

      Waugh contends that the record is ambiguous regarding whether the district

court recognized that it had authority to depart downward from the guidelines

range based on Waugh’s medical condition, and thus, we should remand the case

for resentencing. He relies on our decision in United States v. Sanchez-Valencia,

148 F.3d 1273, 1274 (11th Cir. 1998) for the proposition that a district court must

clearly state on the record whether it believed it had authority to depart downward.

      We lack jurisdiction to review a district court’s decision to deny a downward

departure unless the court incorrectly believed that it lacked authority to grant the

departure. United States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005). We

have noted that “it would facilitate review if sentencing judges would state on the

record that they believe they have or do not have the authority to depart,”

Sanchez-Valencia, 148 F.3d at 1274, but we have never said that such a statement

is required. Instead, we have held that “when nothing in the record indicates

otherwise, we assume the sentencing court understood it had authority to depart



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downward.” United States v. Chase, 174 F.3d 1193, 1195 (11th Cir. 1999). In this

case, the district court did have authority to depart downward because while

physical impairment is a discouraged basis for departure, an extraordinary physical

impairment may warrant departure. United States Sentencing Guidelines § 5H1.4

(2000); United States v. DeVegter, 439 F.3d 1299, 1306 (11th Cir. 2006).

      The district court did not believe it lacked authority to depart downward

based on Waugh’s illness, and so we lack jurisdiction to review the district court’s

decision denying the departure. The court stated that Waugh’s sickle cell anemia is

not “something that would require a downward departure on the basis of illness.”

This indicates that the court understood it had authority to depart on the basis of

illness, but believed that Waugh’s illness did not warrant departure. Likewise,

contrary to Waugh’s contention, the court’s statement that it did not believe

Waugh’s sickle cell anemia was a “basis for a downward departure” does not

reveal ambiguity as to whether the court believed it had authority to depart. That

statement came after the court explained that Waugh’s condition is common in the

federal prison system and that he could be properly cared for in prison. Read in

context, the statement shows that the court did not believe that Waugh’s condition

merited departure.

      Because nothing in the record indicates otherwise, we will assume that the



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district court understood it had authority to depart downward. Chase, 174 F.3d at

1195. Thus, we affirm Waugh’s sentence.

      AFFIRMED.




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