                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 05-4370
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Northern District of Iowa.
Michael Washington,                    *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: September 28, 2006
                                Filed: November 8, 2006
                                 ___________

Before RILEY and COLLOTON, Circuit Judges, and KYLE, District Judge.1
                           ___________

RILEY, Circuit Judge.

      Michael Washington (Washington) appeals his sentence of 168 months’
imprisonment, arguing the district court2 erred in denying his motion for downward
departure. Finding no error, we affirm.

I.    BACKGROUND

      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, sitting by designation.
      2
        The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
       Washington pled guilty to managing or controlling property for the purpose of
storing, distributing, and using a controlled substance, specifically cocaine base, in
violation of 21 U.S.C. § 856(a)(2), (b). Before sentencing, Washington filed a motion
for downward departure based on an extraordinary physical impairment and an
overstated criminal history, pursuant to U.S.S.G. §§ 5H1.4 and 4A1.3(b)(1).

       Washington first argued it was unclear whether the Bureau of Prisons (BOP)
could care for his medical needs, most of which related to Washington’s morbid
obesity–Washington weighed approximately 800 pounds at the time of his arrest, but
was down to 574 pounds at the time of his sentencing. Washington’s other medical
conditions include hypertension, seizures, migraine headaches, and mild mental
retardation.

       The district court submitted Washington’s medical documentation to the BOP
to determine whether the BOP could meet Washington’s medical needs. The BOP’s
Regional Health Systems Administrator concluded:

      Based on the provided information, I conclude the BOP has the
      necessary staff and resources to properly manage Mr. Washington’s
      medical needs. His conditions (individually or in combination) are not
      uncommon among our inmate population. If sentenced to a period of
      incarceration, Mr. Washington will be carefully assessed for assignment
      to the appropriate BOP care level (1-4). His care level, custody level,
      and security level will determine the institution to which he is
      designated.

     During his sentencing hearing, Washington moved for a continuance because
Dr. Mark Louviere (Dr. Louviere), a family practitioner who reviewed Washington’s
medical records, was unavailable to testify. The district court allowed Washington to
make a proffer of Dr. Louviere’s testimony, but denied the motion to continue



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concluding, “even if [Dr. Louviere] were to tell me everything that you told me, it still
would not change my mind that this sentencing needs to go forward.”

      Washington next argued his criminal history was overstated pointing out that
twelve of his fifteen criminal history points were assessed for driving offenses.
Washington contended his driving behavior did not correlate with recidivism in other
criminal behavior or indicate a criminal livelihood.3

       After considering the arguments and exhibits presented by the parties, the
district court denied Washington’s motion for downward departure. Based on a total
offense level of 30 and a criminal history category of VI, the district court calculated
an advisory Guidelines range of 168 to 210 months’ imprisonment. The district court
then sentenced Washington to 168 months’ imprisonment, reasoning a sentence at the
bottom of the Guidelines range satisfied all of the factors set forth in 18 U.S.C.
§ 3553(a) and therefore was reasonable. This appeal followed.

II.   DISCUSSION
      The discretionary denial of a downward departure under sections 5H1.4 and
4A1.3 is unreviewable unless the district court failed to recognize its authority to
depart. United States v. Andreano, 417 F.3d 967, 970 (8th Cir. 2005) (citation
omitted), cert. denied, 126 S. Ct. 1118 (2006); United States v. Orozco-Rodriguez,
220 F.3d 940, 942 (8th Cir. 2000).




      3
        Washington also contested two criminal history points assessed pursuant to
section 4A1.1(c). Washington accumulated seven criminal history points under
section 4A1.1(c), but the maximum point assessment allowed under section 4A1.1(c)
is four points. See U.S.S.G. § 4A1.1(c). Because the exclusion of the two contested
points would not change Washington’s criminal history computation, the resolution
of these issues is unnecessary.
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       A.     Extraordinary Physical Impairment
       Washington first contends the district court abused its discretion in determining
his health concerns did not merit a downward departure. Washington argues the
district court, at a minimum, should have heard additional evidence before making its
determination.

       As an initial matter, we find the district court did not abuse its discretion in
refusing to continue Washington’s sentencing hearing due to the unavailability of Dr.
Louviere. See United States v. Thurmon, 368 F.3d 848, 851 (8th Cir. 2004) (“We will
reverse a district court’s decision to deny a motion for continuance only if the court
abused its discretion and the moving party was prejudiced by the denial.” (quotation
omitted)). By the morning of his sentencing hearing, Washington had already been
granted four continuances. The pivotal issue at sentencing was whether the BOP
could manage Washington’s medical condition. The district court submitted that
question to the BOP’s Regional Health Systems Administrator, who answered in the
affirmative. The district court indicated it reviewed Washington’s ample medical
records and accepted Washington’s proffer as to what Dr. Louviere would say if
called to testify. Because the BOP was better situated than Dr. Louviere to determine
its own ability to manage Washington’s medical condition, Washington’s inability to
present Dr. Louviere’s live testimony did not prejudice Washington.

      As to Washington’s motion for downward departure based on an extraordinary
physical condition, the district court recognized its discretionary authority to grant a
departure under section 5H1.4, stating that while “the physical condition of a
defendant under the advisory guidelines is not ordinarily relevant . . . an extraordinary
physical ailment may take a case out of the heartland of cases such that departure is
appropriate.” In determining whether Washington’s condition qualified as an
extraordinary physical ailment, the district court reviewed Washington’s medical
records, including those records relating to his morbid obesity, and acknowledged
Washington’s multiple medical problems. The district court took into account the

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section 5H1.4 factors, and questioned whether Washington’s “condition is such that
he would find imprisonment more than the normal hardship; whether imprisonment
would subject [Washington] to more than normal inconvenience or danger; [and]
third, whether [Washington’s] physical condition has any substantial present effect on
his ability to function.” The district court then determined (1) Washington was mobile
at the time of his arrest despite weighing 800 pounds, and continued to be mobile at
the time of his sentencing at his then-weight of 574 pounds; (2) Washington could
walk, ride in a car, and go about his daily business; and (3) the BOP’s letter verified
the BOP’s ability to manage Washington’s medical conditions and assured the court
the BOP would notify the court if a problem occurred. The district court concluded
it was more likely Washington would “receive better medical management in the BOP
because they’ll make sure that he’s compliant with the doctor’s orders.” The district
court did not abuse its discretion.

       B.     Criminal History
       Washington also contends the district court erred in failing to grant his motion
for downward departure based on an overstated criminal history. We disagree. The
district court acknowledged its discretion under section 4A1.3(b)(1) to grant a
downward departure for overstated criminal history “where the facts support it,” but
determined Washington “has not proved . . . he is entitled to this departure or
variance.” While the district court recognized most of Washington’s criminal history
points were based on driving offenses, the district court reasoned that by repeatedly
driving a vehicle without a valid license, Washington demonstrated “his disrespect for
the law, his incorrigibility, and his likely recidivism.” The district court further noted
Washington’s criminal history also displayed convictions for other types of more
serious offenses, and concluded Washington’s “criminal history is not outside the
heartland of cases such that a departure is warranted.” The district court concluded,
although it had the authority to depart downward, the facts did not support such a
departure.



                                           -5-
III.  CONCLUSION
      On this record, we find the district court clearly recognized its discretionary
authority to depart under sections 5H1.4 and 4A1.3(b)(1), but declined to do so.
Accordingly, the district court’s denial of the downward departure is unreviewable.
Washington does not argue, nor do we find, Washington’s sentence, which is within
the advisory Guidelines range, is unreasonable. See United States v. Lincoln, 413
F.3d 716, 717 (8th Cir.), cert. denied, 126 S. Ct. 840 (2005) (holding a sentence within
the advisory Guidelines range is presumptively reasonable).

       For the reasons stated, we affirm Washington’s sentence.
                        ______________________________




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