                                                        United States Court of Appeals
                                                                 Fifth Circuit

                     REVISED DECEMBER 14, 2005
                                                              F I L E D
                                                             November 3, 2005
               IN THE UNITED STATES COURT OF APPEALS
                                                          Charles R. Fulbruge III
                         FOR THE FIFTH CIRCUIT                    Clerk



                             No. 03-20944



UNITED STATES OF AMERICA

                Plaintiff - Appellee - Cross-Appellant

     v.

RICARDO ANGEL CASTILLO

                Defendant - Appellant - Cross-Appellee



       Appeal from the United States District Court for the
                Southern District of Texas, Houston



Before KING, Chief Judge, and BARKSDALE and CLEMENT, Circuit
Judges.

KING, Chief Judge:

     The United States, Plaintiff-Appellee and Cross-Appellant in

this matter, appeals the district court’s decision to depart

downwardly from the sentencing range established by the UNITED

STATES SENTENCING GUIDELINES (“U.S.S.G.” or the “Guidelines”) on the

grounds that: (1) the defendant’s HIV-positive status constituted

an extraordinary medical condition warranting a downward

departure under U.S.S.G. § 5H1.4; and (2) comments made by the

prosecutor at sentencing about the defendant’s HIV-positive

                                   1
status were malicious and endangered the defendant’s safety,

thereby justifying a departure under § 5K2.0.1        For the following

reasons, we find that the district court abused its discretion

when it departed downwardly on these bases, VACATE the district

court’s sentence, and REMAND this case for resentencing.

                   I. FACTUAL AND PROCEDURAL BACKGROUND

       On November 12, 2002, United States Customs agents, who had

previously received a tip that Defendant Ricardo Castillo would

receive two kilograms of heroin from a seaman within the next

several days, initiated surveillance on Castillo’s Houston

apartment and on his boat, the CEC MIRAGE, which was docked at

the San Jacinto Port of Houston.         On the evening of November 13,

the surveillance team followed Castillo to a Wal-Mart store,

where they observed him talking on his cellular telephone.        At

approximately the same time, the surveillance team at the CEC

MIRAGE observed Geronimo Lipit, the CEC MIRAGE’s chief cook,

disembark the boat while carrying a white shopping bag.        Shortly

thereafter, the surveillance team at Wal-Mart observed Castillo

meet Lipit in the Wal-Mart parking lot and get into Castillo’s

car.       Houston police officers then stopped Castillo’s vehicle.



       1
          As explained below, Castillo’s attorney filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), in which
he stated that, although a notice of appeal originally had been
filed on behalf of Castillo, in his estimation an appeal would
present no legally nonfrivolous questions. The government
subsequently cross-appealed, challenging the district court’s
downward departure.

                                     2
     After his vehicle was stopped by the police, Castillo

consented in writing to a search of the car.    The police found

two kilograms of heroin sewn inside a pair of men’s athletic

shorts in the white bag that Lipit had been carrying, which had

been placed behind the driver’s seat.    After waiving his rights,

Lipit informed the police that additional heroin was sewn into

athletic shorts underneath his jeans.    He further stated that the

heroin belonged to Castillo, and he informed the police that he

and Castillo were going to deliver it to a third party.    The

total amount of the seized heroin was 3.8 kilograms.

     On December 4, 2002, Lipit, in a debriefing with Customs

agents, explained how he acquired the heroin.    According to

Lipit, while the CEC MIRAGE was docked in Colombia, a Colombian

man told him that he could earn $5000 by delivering heroin to

Castillo.    Lipit agreed to this arrangement, picked up the

heroin, and delivered it to Castillo after the CEC MIRAGE arrived

in Houston.    According to Lipit, Castillo was supposed to pay him

his $5000 fee after the delivery occurred.

     On December 11, 2002, Castillo and Lipit were charged in a

two-count indictment with: (1) conspiracy to possess with intent

to distribute one kilogram or more of heroin, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A)(i), and 846; and (2) aiding and

abetting possession with intent to distribute one kilogram or

more of heroin, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A).    On February 3, 2003, Castillo pleaded guilty to the

                                  3
indictment without a plea agreement.

     Prior to sentencing, the parties were provided with a copy

of the probation officer’s presentence investigation report

(PSR), which recommended a total offense level of twenty-nine, a

criminal history category of I, and a Guideline sentencing range

of 87-108 months imprisonment.   Castillo subsequently filed

written objections to the PSR regarding factual matters that did

not affect the Guidelines calculation.    On May 9, 2003, Castillo

filed an “unopposed motion to continue sentencing and motion to

file this motion and corresponding order under seal.”   In this

motion, Castillo stated that he had provided information to law

enforcement and expected that it would lead to a motion for a

downward departure from the government.   He asked that the motion

be filed under seal “due to the sensitive nature of the

information contained herein.”   The same day, the district court

granted Castillo’s request for a sixty-day continuance and sealed

the motion and order.

     On September 9, 2003, five days before Castillo was

scheduled to be sentenced, Castillo filed a “sentencing

memorandum and motion to file this pleading under seal.”    In this

memorandum, Castillo argued that the district court should depart

downward from the sentencing range established by the Guidelines

for two reasons.   First, he contended that the district court

should depart downward because of a disparity between how the

government rewarded him for his cooperation versus how it

                                 4
rewarded Lipit for his cooperation.    According to Castillo, both

he and Lipit cooperated with the government, but only Lipit stood

to receive a motion for downward departure by the government as a

result of that cooperation.    Second, Castillo moved for a

downward departure under U.S.S.G. § 5H1.4 because he was HIV-

positive, which, in his view, constituted an extraordinary

physical impairment.    The sentencing memorandum noted that

Castillo had been HIV-positive since 1993, had Hepatitis C, and

suffered from muscle soreness and a groin rash.     Castillo also

noted in his sentencing memorandum that “[t]he probation officer

had submitted to the Court a confidential document describing Mr.

Castillo’s condition.”    In fact, the PSR’s Second Addendum noted

that “a confidential page to the PSR” describing Castillo’s

condition had been submitted to the court under FED. R. CRIM. P.

32(c)(3)(A).2    Specifically, in a sealed envelope attached to


     2
            FED. R. CRIM. P. 32(c)(3)(A) refers to the 2002 revised
edition of the Federal Criminal Code and Rules. See FEDERAL
CRIMINAL CODE AND RULES 154 (West 2002 2d revised ed.). FED. R. CRIM.
P. 32(d)(3), from the 2005 edition, is the corresponding rule for
information that must be excluded from the presentence report.
FED. R. CRIM. P. 32(d)(3) states:

     (3)   Exclusions. The presentence report must exclude
           the following:

           (A)   any diagnoses that, if disclosed, might
                 seriously disrupt a rehabilitation program;
           (B)   any sources of information obtained upon a
                 promise of confidentiality; and
           (C)   any other information that, if disclosed, might
                 result in physical or other harm to the defendant
                 or others.

                                  5
Castillo’s sentencing memorandum was a two-page document entitled

“Information Excluded From the Presentence Report Pursuant to

Rule 32(c)(3)(A) F.R.C.P.”   According to the government, this

document was never disclosed to it.

     On September 15, 2003, the day of sentencing, the government

filed its response to Castillo’s sentencing memorandum.     The

government did not file its response under seal.   In its

response, it stated that Castillo had not provided the government

with substantial assistance, and it argued that Castillo’s HIV-

positive status was not, in and of itself, an appropriate basis

for a downward departure under U.S.S.G. § 5H1.4.   Unbeknownst to

the government, its response to Castillo’s sentencing memorandum,

along with Castillo’s sentencing memorandum, were both sealed by

the district court.   Although the district court had issued a

separate order sealing Castillo’s motion for continuance based on

cooperation, it did not issue an order sealing either his

sentencing memorandum or the government’s response.   According to

the government, it never knew that either its response or

Castillo’s sentencing memorandum was filed under seal.

     Later in the day on September 15, the district court held

its sentencing hearing for Castillo.   The court, adopting the

PSR, first found that Castillo’s total offense level was twenty-

nine, his criminal history category was I, and the applicable

Guidelines range was 87-108 months imprisonment.   The district

court then asked Castillo’s lawyer to speak on her client’s

                                 6
behalf.    She replied that she wanted to discuss the issues raised

in her sentencing memorandum but did not want to “go into all the

detail that’s in there, given that I filed it under seal.”    Then,

after discussing Castillo’s cooperation with the government, she

began to discuss Castillo’s “condition.”    The court inquired if

drugs were available at the detention center for Castillo, and

Castillo’s lawyer, citing her sentencing memorandum, responded

that “the very nature of jail conditions is dangerous for a

person in his situation.”    The court then asked whether Castillo

was “currently ill or not currently ill.”    Castillo’s attorney

replied that Castillo’s medical records were “pretty vague,” that

Castillo had “muscle aches and the persistent rash that may or

may not be related to his condition,” and then said “I don’t

know.”    She also told the court that “I can’t say to the court

that he qualifies.”    The court then asked additional questions

about the availability of medications for Castillo, and

Castillo’s lawyer once again said that “my real argument is that

in his current condition, he should qualify for a downward

departure given his increased susceptibility in the jail.”    After

Castillo’s counsel finished discussing Castillo’s medical

condition, Castillo addressed the court and asked for

forgiveness.

     After Castillo addressed the court, the prosecutor began his

presentation, stating first that Castillo had not yet provided

the government with substantial assistance.    The court then told

                                  7
the prosecutor that it did not understand the government’s

written response to the motion for downward departure on health

grounds and asked for clarification on the government’s position.

The following exchange ensued:

     [The prosecutor]: My entire point--and she’s right, I
     couldn’t find any Fifth Circuit law on this particular
     point and so basically what I did was I went to the other
     circuits, as did she, and in my citation to the United
     States v. Johnson [sic United States v. Rabins], the
     Eighth Circuit case--it’s cold and it’s difficult for me
     to stand beside Mr. Castillo knowing his physical
     condition and the sympathy that I have for him, but the
     fact of the matter is, this isn’t the first time in the
     country that this has happened and they use terms like
     “full-blown AIDS” and “advanced AIDS” literally in the
     cases--

     THE COURT: Well, you’re the first person who said that
     and you know this is filed under seal. So, why would you
     do that in this courtroom?

     [The prosecutor]: My apologies.   I did not know that.

     THE COURT: Yes, you did know that.

     [The prosecutor]: Well, I received a faxed copy from--

     THE COURT: No one has said that except for you today.    No
     one has said that except for you.

     [The prosecutor]: My apologies.      It was not--it was
     thoughtless and--

     THE COURT: It was completely unnecessary, thoughtless,
     and rude. Y’all have a seat. I’m going to come back to
     you.

A forty-five minute recess was then held.   When the court

returned to Castillo’s case, the following exchange occurred:

     THE COURT: All right. United States of America versus
     Ricardo Angel Castillo. We were in the middle of this
     sentencing in which we were discussing the defendant’s
     sentencing memorandum and specifically the issues that

                                 8
     had been raised by [defense counsel] related to the item
     that was filed under seal that the Court and the lawyers
     only had permission to know about and review with the
     specific written permission of the defendant, which we
     obtained today, specifically the defendant’s HIV status
     and whether or not he had AIDS.

     Counsel all are aware of the fact that this information
     was provided to the Court as a specific separate sealed
     piece of information that could only be disclosed to the
     Court under seal with confidence, with the defendant’s
     specific signature.      Despite the fact that [the
     prosecutor] was aware of that, he deliberately in open
     court, in the presence of many other people, including
     fellow prisoners of this defendant, disclosed the
     defendant’s status, indicating even the possibility that
     he might have full-blown AIDS, which is a direct
     violation of the confidential nature of this type of
     disclosure.

     I can only determine from that action that the counsel
     acted out of stupidity or maliciously and deliberately to
     try to disclose that information in front of other
     prisoners in an effort to create harm or danger for this
     defendant. [The United States Attorney] assures me that
     [the prosecutor] is a bright and able attorney, which
     leaves me with only the choice of it being a deliberate
     act on counsel’s part. And I am going to be taking that
     into consideration in determining the--counsel’s action
     in determining the appropriateness of departure in this
     case. I just want counsel to know that.

The court then asked Castillo’s lawyer if she had anything to

add, and she declined to say anything further.   The prosecutor

also declined to add anything further.   The court, however, was

not finished admonishing the prosecutor, and the following

exchange then took place:

     THE COURT: Okay. Did you know that you weren’t supposed
     to discuss stuff that’s under seal, particularly where
     the only reason that we have it is by virtue of written
     permission from the prisoner?

     [The prosecutor]: Your Honor, I have never received
     material under seal from defense counsel. I saw--no, I

                                9
got them in this case.     This is the very first time
that’s ever happened, that I’ve ever done that in my
career. When I got them, I thought that meant they’re no
longer under seal. It is not my intention to flaunt the
Court’s order. I honestly--it was an honest mistake. I
regret   more  than   you   could   possibly  know   any
embarrassment that I caused the defendant. It was not my
intention.

THE COURT: It’s not embarrassment.       You put him in
potential danger, physical danger by saying that in front
of other prisoners.    You know that.     You can’t even
imagine that there could be any other outcome of you
blurting that out, screaming it out when [defense
counsel] and I were specifically careful. You noticed
that neither one of us said HIV or AIDS, didn’t you?

[The prosecutor]: Honestly, Your Honor--

THE COURT: Did you think there was anything sort of
strange about the fact that we were both sort of dancing
around the nature of the illness?

[The prosecutor]: I apologize. I don’t know what else I
can tell you. I’ve dealt with HIV positive prisoners
before in state practice, and it’s never done under seal.

THE COURT: Did you know that this is information that’s
specifically excluded from the presentence investigation
report?

[The prosecutor]: No, ma’am.

THE COURT: Nobody told you that?

[The prosecutor]: When I got--my involvement as to the
defendant’s HIV status began Thursday evening when I
received a fax from defense counsel. Prior to that, I
didn’t know anything about it.

THE COURT: It’s not even allowed to be included in the
presentence investigation report, which is why you just
got it on Thursday evening when you probably got her
sentencing memorandum. It can’t even be included and
given to the Court period, unless the defendant gives me
specific written permission to know the information at
the time of sentencing which I got this morning, his
specific written permission for me to have this
information and to consider it in the context of

                           10
     sentencing. It has to be done under seal. It comes in
     a separate sealed envelope. It’s not part of the PSI.
     It’s not supposed to be disclosed publicly.

     [Defense counsel] and I went to great lengths to try to
     make sure that it wasn’t--that the exact nature of the
     illness was not discussed. And you just like thumbed
     your nose at the whole deal. I was like what’s he--I
     mean, you leave me with only--I can’t believe that you
     would not have understood or known that this was
     information that was specifically excluded, because you
     read the presentence investigation report and you saw
     that it wasn’t in there. I mean, did you not surmise
     that that was there for some reason--that it wasn’t in
     there for a reason?

     [The prosecutor]: All I can tell you, Your Honor, is that
     from my former practice in the state of Ohio, I have
     dealt with HIV defendants and it was never under seal.
     It was never my intention to flaunt the Court’s order.
     It was never my intention to violate any rule.          I
     honestly did not know.

The court then granted Castillo’s request for a downward

departure and sentenced him to fifty-seven months imprisonment.

The court stated the following as the basis for its departure:

     Although it is not clear to the Court the exact current
     medical status of [Castillo’s] condition, that is,
     whether he is HIV positive or he has AIDS, the Court is
     taking that condition into consideration specifically in
     this case in determining that a downward departure should
     be granted for two reasons. One, the Court is departing
     downward under 5H1.4 based on the Court’s finding that he
     has an extraordinary medical condition.

     The Court is additionally departing downward under 5K2.0,
     finding that counsel’s action this morning deliberately
     placed the defendant in danger of--in possible danger and
     repercussions from fellow prisoners, in that counsel
     disclosed in the presence of other persons incarcerated
     with this defendant the nature of the defendant’s HIV
     status, suggesting even the possibility that he might
     have full-blown AIDS, in a manner that the Court believes
     is designed to potentially impact his Eighth Amendment
     rights.     And that could place the defendant in
     unnecessary danger and subject him to needing additional

                                11
     protection, and that a departure on that basis is
     warranted to avoid any failure to protect issues that
     might arise from the unauthorized disclosure of his
     medical condition to other prisoners who were in the
     courtroom this morning.

Subsequently, the court attached a written statement of reasons

to its judgment, noting the following as the grounds for its

downward departure:

     The Court finds the defendant has an extraordinary
     physical condition which warrants a departure pursuant to
     USSG § 5H1.4. In addition, the Court downwardly departs
     pursuant to USSG § 5K2.0 and finds counsel for the
     Government was malicious and deliberate in disclosing the
     defendant’s confidential medical information to the
     public during sentencing proceedings putting the
     defendant in danger and repercussion from fellow
     prisoners which warrants special prisoner protection.

     At no time did the government object to the district court’s

decision to depart downwardly under U.S.S.G. § 5K2.0.   Prior to

sentencing, the district court advised counsel for both parties

that “[t]he lawyers will have a final opportunity to make any

objections before the sentence is finally imposed.”   Immediately

following sentencing, the district court gave counsel that

opportunity, yet the government made no such objection:

     THE COURT: [D]o you know of any reason why the sentence
     should not be imposed as stated?

     [The prosecutor]:   No, Your Honor.

     THE COURT:   Then the sentence will be imposed as stated.

     On March 22, 2004, counsel for Castillo filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), in which

he stated that, although a notice of appeal had been filed on


                                 12
behalf of Castillo, he believed that an appeal would present no

legally nonfrivolous questions.    Accordingly, he moved to

withdraw from the case.   On September 10, 2004, before the court

ruled on the motion to withdraw, the government cross-appealed,

challenging the district court’s decision to grant Castillo’s

request for a downward departure.      Castillo’s attorney responded

by submitting a brief arguing that the district court did not

commit reversible error by downwardly departing based on

Castillo’s medical condition and the prosecutor’s comments.      On

March 9, 2005, the court requested counsel for Castillo to file,

in light of United States v. Booker, --- U.S. ----, 125 S. Ct.

738 (2005), either a supplemental Anders brief explaining why his

appeal was still frivolous or a motion for leave to withdraw his

Anders brief and to substitute a brief on the merits of the

appeal.   Castillo’s attorney responded by filing another Anders

brief stating that, despite Booker, he still believed that no

meritorious issues for appeal exist in this case.



                      II. STANDARD OF REVIEW

     Castillo was sentenced on September 15, 2003, well before

the Supreme Court decided Booker on January 12, 2005.      See

Booker, 125 S. Ct. at 738.   In United States v. Smith, 417 F.3d

483, 488-93 (5th Cir. 2005), we discussed the standard of review

that we now use post-Booker when reviewing a district court’s


                                  13
decision to depart from the sentencing range established by the

Guidelines.   We held that Booker directed us to return

essentially to the abuse-of-discretion standard employed prior to

2003, stating:

     Prior to 2003, our review of departure decisions was for
     abuse of discretion, pursuant to § 3742(e). In April
     2003, Congress amended § 3742(e), altering our standard
     of review with respect to the departure decision to de
     novo. Under this scheme, while the decision to depart
     was reviewed de novo, the degree of departure was still
     reviewed for abuse of discretion. Then, in January 2005,
     the Supreme Court in Booker excised § 3742(e), leaving
     the   appellate   courts   to   review   sentences   for
     reasonableness.     The Court explained that it was
     essentially returning to the standard of review provided
     by the pre-2003 text, which directs us to determine
     whether the sentence is unreasonable with regard to
     § 3553(a). Section 3553(a) remains in effect, and its
     factors guide us in determining whether a sentence is
     unreasonable.

Smith, 417 F.3d at 489-90.   Subsequently, in United States v.

Simkanin, 420 F.3d 397, 416 (5th Cir. 2005), we re-stated this

abuse-of-discretion standard for reviewing departures from the

sentencing range established by the Guidelines.

     Additionally, after Booker, we continue to review a district

court’s findings of fact in relation to the Guidelines for clear

error.   United States v. Creech, 408 F.3d 264, 270 n.2 (5th Cir.

2005).   “A factual finding is clearly erroneous when although

there is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction

that a mistake has been committed.”   United States v. Cooper, 274

F.3d 230, 238 (5th Cir. 2001) (internal quotation marks omitted);


                                14
see also United States v. United States Gypsum Co., 333 U.S. 364,

395 (1948).   “A district court ‘abuses its discretion if it bases

its decision on an error of law or a clearly erroneous assessment

of the evidence.’”   Smith, 417 F.3d at 486-87 (quoting United

States v. Mann, 161 F.3d 840, 860 (5th Cir. 1998)); see also

United States v. Brady, 417 F.3d 326, 332-33 (2d Cir. 2005)

(noting that after Booker a district court exceeds or abuses its

discretion in exercising departure authority when “its decision

rests on an error of law . . . or a clearly erroneous factual

finding, or . . . its decision--though not necessarily the

product of a legal error or a clearly erroneous factual finding--

cannot be located within the range of permissible decisions”)

(internal quotation marks and alterations omitted).

                          III. DISCUSSION

     The government challenges both of the district court’s

reasons for downwardly departing at sentencing.   First, the

government contends that the district court erred in downwardly

departing under U.S.S.G. § 5H1.4 based on its finding that

Castillo, who is HIV-positive, had an extraordinary physical

impairment justifying a departure.   According to the government,

Castillo’s medical condition does not warrant a downward

departure under § 5H1.4, the departure is unjustified by the

facts, and the departure does not advance the objectives of 18




                                15
U.S.C. § 3553(a)(2).3   Second, the government contends that the

district court erred in downwardly departing under U.S.S.G.

§ 5K2.0 based on its finding that the prosecutor’s comments about

Castillo’s HIV-positive status at sentencing placed Castillo in

danger.   According to the government, a departure under § 5K2.0

on this ground is wholly unsupported by the record and does not

advance § 3553(a)’s objectives.

     Castillo responds by arguing that most of the government’s

claims on appeal were not made in the district court and should,

therefore, be reviewed for plain error.   Castillo then states, in

a short and cursory fashion, that the district court did not err

when it downwardly departed.   The government replies that it

preserved its challenge to the district court’s departure under

§ 5H1.4 by filing prior to sentencing a written memorandum

challenging this ground for departure.    The government concedes

that it did not object at sentencing to the district court’s

downward departure under § 5K2.0, but it argues that an objection

was not required under the circumstances because the decision to

depart was a surprise and making an objection would have been

futile.


     3
          The government additionally argues that the district
court’s departure on both of its stated grounds is impermissible
under § 3553(b)(1). In Booker, however, the Supreme Court
excised § 3553(b)(1) of the Guidelines. Booker, 125 S. Ct. at
764-65. Accordingly, while § 3553(a) still remains in effect,
§ 3553(b)(1) is no longer in effect, and we will not consider the
government’s arguments that rely solely on that provision.

                                  16
A.   Downward Departure Under U.S.S.G. § 5H4.1

     We first address the district court’s downward departure on

the basis of § 5H1.4.   As an initial matter, we note that the

government preserved its objection to a downward departure on

this ground.   First, prior to sentencing, in its written response

to Castillo’s sentencing memorandum, the government clearly set

forth the basis for its objection to a departure under § 5H1.4.

Under FED. R. CRIM. P. 51, the prosecutor did not have to

reiterate orally this written objection at sentencing or state an

exception to the court’s ruling in order to preserve the

objection for appeal.   See FED. R. CRIM. P. 51 (“Exceptions to

rulings or orders of the court are unnecessary. . . . A party may

preserve a claim of error by informing the court--when the court

ruling or order is made or sought--of the action the party wishes

the court to take . . . .”).   Second, at sentencing, the

prosecutor attempted to reiterate orally the objection contained

in the government’s response to Castillo’s sentencing memorandum,

explaining that this circuit has not recognized a defendant’s

HIV-positive status as a ground for departure and that in all

cases from other circuits where an HIV-positive defendant

received a downward departure under § 5H1.4, the defendant was

not only HIV-positive but also had “full-blown AIDS” or “advanced

AIDS.”   It was at this point in the proceedings that the district

court interrupted the prosecutor and accused him of maliciously



                                17
endangering the defendant.   Under this unique set of

circumstances, the fact that the prosecutor did not fully state

his objection does not render the objection inadequate.     See FED.

R. CRIM. P. 51 (“If a party does not have an opportunity to object

to a ruling or order, the absence of an objection does not later

prejudice that party.”); United States v. Bernal, 814 F.2d 175,

182-83 (5th Cir. 1987) (holding that an objection was adequate

when the judge cut short the objection and the “defendant was not

afforded the opportunity to explain his objection fully”).

     Having concluded that the government preserved its objection

to a downward departure under § 5H1.4, we turn to whether the

district court’s departure on this basis was appropriate.

Section § 5H1.4 states:

     Physical condition or appearance, including physique, is
     not ordinarily relevant in determining whether a
     departure may be warranted. However, an 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.

While this court has never addressed the precise issue of whether

a defendant who is HIV-positive can be said to suffer from the

sort of extraordinary physical impairment that would justify a

downward departure under § 5H1.4, our circuit precedent suggests

that, without more, being HIV-positive is not a sufficient ground

for a departure.

     In United States v. Winters, 105 F.3d 200, 208 (5th Cir.

1997), we held that the defendant’s “sarcoidosis, a chronic

                                18
inflammation of multiple organs[,]” did not constitute a physical

impairment warranting a departure.        In reaching this conclusion,

we stated that the district court had failed to explain why the

defendant’s medical condition “should be treated as an

exceptional one.”        Winters, 105 F.3d at 208.   Additionally, we

cited our decision in United States v. Guajardo, 950 F.2d 203,

208 (5th Cir. 1991), in which we held that a departure was not

warranted for a defendant who suffered from “cancer in remission,

high blood pressure, a fused right ankle, an amputated left leg,

and drug dependency.”        Id. (citing Guajardo, 950 F.2d at 208).

In the present case, the district court, like the district court

in Winters, failed to offer any explanation for why the

defendant’s medical condition should be treated as an exceptional

one.       See id.   Instead, the district court merely noted that

Castillo was HIV-positive, stated that it was “not clear” if he

had AIDS, and then, without explanation, summarily granted

Castillo’s request for a downward departure on the basis that he

suffered from an extraordinary medical condition.4        Because the

district court never stated its reasons for granting a downward

departure on this ground, we do not know why it felt that a

departure was appropriate.       In fact, following the logic of cases

       4
          Castillo’s counsel also admitted that nothing in the
record indicated that Castillo was suffering from full-blown
AIDS. Additionally, Castillo’s counsel admitted that while
Castillo suffered from a groin rash and muscle soreness, she
could not say that these symptoms were related to his HIV-
positive status.

                                     19
like Winters and Guajardo, we cannot see how a defendant’s HIV-

positive status alone constitutes an extraordinary medical

condition in light of the fact that, e.g., a drug-addicted

individual with cancer, hypertension, no left leg, and a damaged

right ankle did not, in our view, suffer from an extraordinary

medical condition warranting a departure.   See Guajardo, 950 F.2d

at 208.   Moreover, other circuits that have addressed this issue

have found that a defendant’s HIV-positive status alone is

insufficient to justify a departure under § 5H1.4.     See, e.g.,

United States v. Hernandez, 218 F.3d 272, 281 (3d Cir. 2000);

United States v. Rivera-Maldonado, 194 F.3d 224, 235-36 (1st Cir.

1999); United States v. Rabins, 63 F.3d 721, 729 n.15 (8th Cir.

1995); United States v. Woody, 55 F.3d 1257, 1275-76 (7th Cir.

1995); United States v. Thomas, 49 F.3d 253, 260-61 (6th Cir.

1995); see also United States v. DePew, 751 F. Supp. 1195, 1199

(E.D. Va. 1990), aff’d 932 F.2d 324 (4th Cir. 1991).    We also

note that 18 U.S.C. § 3553(a)(2), which is still in effect post-

Booker, states that a sentencing court shall consider the need

for the sentence imposed:

     (A) to reflect the seriousness of the offense, to promote
     respect for the law, and to provide just punishment for
     the offense;

     (B) to afford adequate deterrence to criminal conduct;

     (C) to protect the public from further crimes of the
     defendant; and

     (D) to provide the defendant with needed educational or
     vocational training, medical care, or other correctional

                                20
     treatment in the most effective manner . . . .

In the present case, the district court’s downward departure

under § 5H1.4 did not advance the objectives of § 3553(a)(2)(A),

(B), or (C).   Moreover, in light of the fact that both the

district court and defense counsel stated that the Bureau of

Prisons could adequately treat Castillo’s medical condition, the

downward departure also failed to advance the objectives of

§ 3553(a)(2)(D).   Accordingly, following the logic of Winters,

Guajardo, and our sister circuits, we conclude that a defendant’s

HIV-positive status alone does not constitute an extraordinary

medical condition warranting a downward departure under § 5H1.4,

and we find that the district court’s departure on this basis,

which did not advance the goals of § 3553(a)(2), constituted an

abuse of discretion.



B.   Downward Departure Under U.S.S.G. § 5K2.0

     We turn next to whether the district court abused its

discretion when it downwardly departed under § 5K2.0 based on the

prosecutor’s comments about Castillo’s HIV-positive status.5   We


     5
          Section 5K2.0 permits a district court to depart
downwardly “if the court finds that there exists a[] . . .
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.” U.S.S.G. § 5K2.0 (internal
quotation marks omitted). The Supreme Court has held that a
district court may grant a downward departure based on an
individual’s susceptibility to abuse in prison. See Koon v.

                                21
begin by addressing Castillo’s contention that we must review the

government’s objection to this departure for plain error because

the government did not object below.

     FED. R. CRIM. P. 51, which governs the preservation of error

in the sentencing context, states that “[i]f a party does not

have an opportunity to object to a ruling or order, the absence

of an objection does not later prejudice that party.”      The

advisory committee notes to FED. R. CRIM. P. 51 state that “[t]his

rule is practically identical with rule 46 of the Federal Rules

of Civil Procedure” and state that these rules are construed in

the same manner, thus making civil cases regarding the

preservation of error authoritative with respect to the

interpretation of FED. R. CRIM. P. 51.   See FED. R. CRIM. P. 51

advisory committee’s notes (1944 adoption).     With respect to the

preservation of error, this court has held that the purpose of a

contemporaneous objection is to enable the district court to

correct its error in a timely manner.     See Hartford Lloyd’s Ins.

Co. v. Teachworth, 898 F.2d 1058, 1060 (5th Cir. 1990); see also

United States v. Mendiola, 42 F.3d 259, 260 n.2 (5th Cir. 1994).

Generally, if a party fails to timely raise an issue in district

court, we will review it for plain error unless the party made

its position clear to the district court and to have objected

would have been futile.   Russell v. Plano Bank & Trust, 130 F.3d



United States, 518 U.S. 81, 111-12 (1996).

                                 22
715, 720 (5th Cir. 1997) (“A party may be excused from the

requirement of making a specific objection only where the party’s

position previously has been made clear to the trial judge and it

is plain that a further objection would be unavailing.” (internal

quotation marks omitted)); see also Taita Chem. Co. v. Westlake

Styrene, LP, 351 F.3d 663, 667-68 (5th Cir. 2003).

     In the present case, Castillo never requested a downward

departure under § 5K2.0, and the district court never suggested

that it would downwardly depart, sua sponte, under § 5K2.0 until

the end of the sentencing hearing.    Accordingly, the prosecutor

had no reason to know that an objection to a departure under

§ 5K2.0 would be appropriate until the district court began

berating him for his comments.   Moreover, once the district court

began berating him, the prosecutor attempted at least nine times

to apologize to the court and to explain his actions, stating

that he never meant to harm the defendant.   The district court,

however, was unmoved by the prosecutor’s protestations,

interrupted him on several occasions, and clearly did not believe

his explanations.   Additionally, the district court effectively

called the prosecutor a liar, stated that he was “rude” and

“thoughtless,” and found that he “deliberately” and

“intentionally” attempted to harm the defendant.   In the words of

the district court:

     I can only determine from that action that [the
     prosecutor] acted out of stupidity or maliciously and
     deliberately to try to disclose that information in front

                                 23
     of other prisoners in an effort to create harm or danger
     for this defendant. [The United States Attorney] assures
     me that [the prosecutor] is a bright and able attorney,
     which leaves me with only the choice of it being a
     deliberate act on counsel’s part. . . . You put him in
     potential danger, physical danger, by saying that in
     front of other prisoners. You know that. You can’t even
     imagine that there could be any other outcome of you
     blurting that out, screaming it out . . . .

(emphasis added).   The district court then stated:

     This Court is additionally departing downward under
     § 5K2.0, finding that counsel’s actions this morning
     deliberately placed the defendant in danger of--in
     possible danger and repercussions from fellow prisoners,
     that counsel disclosed in the presence of other persons
     incarcerated with this defendant the nature of the
     defendant’s HIV status, suggesting even the possibility
     that he might have full-blown AIDS, in a manner that the
     Court believes is designed to potentially impact his
     Eighth Amendment rights.

(emphasis added).   These sentiments were restated in a written

statement of reasons attached to the district court’s judgment,

which read:

     [T]he Court downwardly departs pursuant to USSG § 5K2.0
     and finds counsel for the Government was malicious and
     deliberate in disclosing the defendant’s confidential
     medical information to the public during sentencing
     proceedings putting the defendant in danger and
     repercussion from fellow prisoners which warrants special
     prisoner protection.

(emphasis added).   In light of the district court’s evident

anger, its unusual hostility toward the prosecutor (including its

attacks on his personal integrity and truthfulness), its

unwavering opinion that the prosecutor had maliciously endangered

the defendant, and the prosecutor’s protestations to the

contrary, requiring a formal objection by the prosecutor--above


                                24
and beyond his repeated protestations--would have been futile,

would not have served the purposes behind requiring

contemporaneous objections, and would have clearly “exalt[ed]

form over substance.”    See FED. R. CIV. P. 51; Taita Chem. Co.,

351 F.3d at 667-68; Russell, 130 F.3d at 720; Teachworth, 898

F.2d at 1060; 3B CHARLES ALAN WRIGHT,   ET AL.,   FEDERAL PRACTICE   AND

PROCEDURE, § 842 (2d ed. 2004) (“The general rule requiring

counsel to make clear to the trial court what action they wish

taken should not be applied in a ritualistic fashion.                If the

problem has been brought to the attention of the court, and the

court has indicated in no uncertain terms what its views are, to

require an objection would exalt form over substance.”).

Accordingly, we find that, under the unique set of circumstances

presented by this case, the government did not waive its

objection to the downward departure under § 5K2.0 by failing to

object formally to it at sentencing.

     Having concluded that the government did not waive its

objection to the district court’s downward departure under

§ 5K2.0, we turn to whether the district court abused its

discretion in departing on this ground.           We conclude that the

district court’s factual finding--that the prosecutor

deliberately and maliciously made comments that endangered the

defendant’s safety--is wholly unsupported by the record and is

clearly erroneous.   To begin with, nothing in the record suggests

that the defendant was ever endangered.           To the contrary, the

                                  25
government, in its brief on appeal, argues that the public

disclosure of Castillo’s HIV-positive status would make him less

likely to be the victim of a physical attack in prison because

other inmates would want to avoid possible exposure to his bodily

fluids.

     Regardless of whether the government’s argument is correct,

the fact remains that the record contains not a shred of evidence

suggesting that the disclosure of Castillo’s HIV-positive status

would endanger his safety, and the district court never explained

how it knew that the prosecutor’s comments would lead to such

danger.   The district court also did not order the Bureau of

Prisons to take any special security precautions with respect to

Castillo’s incarceration, which suggests that it was not overly

concerned about his safety.   Accordingly, because the district

court’s factual finding that the prosecutor endangered Castillo

leaves us with a definite and firm conviction that a mistake has

been made, it is clearly erroneous.    See Cooper, 274 F.3d at 238.

     The district court’s factual finding that the prosecutor

deliberately and maliciously disclosed Castillo’s HIV-positive

status is also clearly erroneous.    No rule in the Southern

District of Texas prohibits a prosecutor from disclosing or

discussing a defendant’s HIV-positive status at sentencing.

Furthermore, the district court never ordered confidentiality at

sentencing or took any steps to preserve confidentiality at

sentencing (such as holding an in camera sentencing hearing or

                                26
sealing the courtroom).   Likewise, the district court never

ordered that the parties refrain from mentioning Castillo’s HIV-

positive status.   The only rule pertaining to the disclosure of

Castillo’s HIV-positive status that is potentially applicable to

the present case is FED. R. CRIM. P. 32(d)(3), which prohibits the

probation officer from including certain confidential information

in the PSR.   In accordance with this rule, the probation officer

filed information about Castillo’s medical condition under seal.

This rule, however, imposed no obligations whatsoever on what the

prosecutor could say at sentencing.   Moreover, the prosecutor in

the present case claims that he did not even know about the

sealed information from the probation officer.   When the

prosecutor filed his response to Castillo’s sentencing memorandum

(discussing Castillo’s HIV-positive status), he did not file it

under seal, and the district court did not issue an order sealing

it.   Finally, certain statements made by the district court

relating to its factual finding that the prosecutor acted

deliberately and maliciously--e.g., its statement that the

prosecutor said that Castillo “might have full-blown AIDS, which

is a direct violation of the confidential nature of this type of

disclosure”--are factually false (e.g., the prosecutor never said

that Castillo might have full-blown AIDS).

      In short, the prosecutor acted appropriately and did not

violate any rule or court order by mentioning the word “AIDS” at



                                27
sentencing.6   The prosecutor cannot be said to have acted

maliciously or deliberately simply because he failed to

understand the impromptu, implicit code system that apparently

existed between the district court and defense counsel.

Accordingly, based on our review of the record, the district

court’s finding that the prosecutor acted deliberately and

maliciously leaves us with a firm conviction that a mistake has

been committed and is, therefore, clearly erroneous.     See Cooper,

274 F.3d at 238; see also Creech, 408 F.3d at 270 n.2.    Because

the factual findings supporting the district court’s downward

departure under § 5K2.0 are clearly erroneous, the district court

abused its discretion by downwardly departing under § 5K2.0.     See

Smith, 417 F.3d at 486-87; see also Brady, 417 F.3d at 332-33.7

     Accordingly, we find that the district court abused its

discretion when downwardly departing under § 5H1.4 and § 5K2.0.

Because § 5H1.4 and § 5K2.0 were the sole bases for the district

court’s downward departure, we vacate Castillo’s sentence and

remand for resentencing.

C.   Counsel’s Anders Motion


     6
          In fact, we note that although the prosecutor first
mentioned the word “AIDS” at sentencing while discussing relevant
case law, it was the district court, not the prosecutor, who
first disclosed that Castillo had AIDS.
     7
          We also note that the district court’s downward
departure under § 5K2.0, like its downward departure under
§ 5H1.4, does not appear to have advanced the goals of
§ 3553(a)(2). See 18 U.S.C. § 3553(a)(2).

                                28
     Because of our disposition of the government’s claims on

cross-appeal, as discussed supra, Castillo’s counsel now has new

obligations to represent Castillo on remand of this case for

resentencing.   Accordingly, we deny counsel’s motion to withdraw.

See Anders v. California, 386 U.S. 738 (1967).

                          IV. CONCLUSION

     For the foregoing reasons, we VACATE the sentence imposed by

the district court and REMAND this case for resentencing.




                                29
