                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-4011
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Keith Allen Sjolie,                     *
                                        * [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: March 12, 2007
                                Filed: June 5, 2007
                                 ___________

Before COLLOTON, BEAM, and GRUENDER, Circuit Judges.
                           ___________

PER CURIAM.

      Keith Sjolie pled guilty to conspiracy to possess with intent to distribute more
than 500 grams of methamphetamine, and the district court1 sentenced him to a term
of 262 months’ imprisonment, the bottom of the advisory guideline sentencing range.
He appeals the sentence, arguing that the district court erred by declining to grant a
downward departure under USSG § 5H1.4, or a variance under 18 U.S.C. § 3553(a),
based on his medical conditions.


      1
         The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.
       Even after United States v. Booker, 543 U.S. 220 (2005), “[a] district court’s
refusal to grant a downward departure is generally unreviewable on appeal, unless the
district court had an unconstitutional motive or erroneously believed that it was
without authority to grant the departure.” United States v. Frokjer, 415 F.3d 865, 874-
75 (8th Cir. 2005) (internal quotation omitted). The district court here expressly
recognized its authority to depart downward in determining the advisory guideline
range, (S. Tr. 10), and its decision not to depart is thus unreviewable.

      We do review, however, whether the ultimate sentence was unreasonable with
regard to 18 U.S.C. § 3553(a). See Booker, 543 U.S. at 261; United States v.
Mickelson, 433 F.3d 1050, 1052-55 (8th Cir. 2006). Here, the sentence imposed was
within the advisory guideline range, but Sjolie argues that his serious medical
conditions made it unreasonable for the district court to impose such a lengthy
sentence.

      The Sentencing Commission recommends that a sentence be reduced below the
otherwise applicable advisory range based on physical condition only when a
defendant suffers from an “extraordinary physical impairment.” USSG § 5H1.4. In
considering whether that circumstance is present, “a defendant’s physical condition
must be assessed in the light of the situation the defendant would encounter while
imprisoned.” United States v. Johnson, 318 F.3d 821, 826 (8th Cir. 2003). We
reversed, for example, a downward departure based on a serious heart condition,
where “imprisonment would not constitute more than normal hardship” for the
defendant, “subject him to more than normal inconvenience or danger,” or have a
substantial present effect on his ability to function in the prison environment, as
opposed to the outside world. Id. After Booker, a sentencing court may consider
characteristics of the defendant beyond those identified by the Sentencing
Commission as grounds for departure, 18 U.S.C. § 3553(a)(1), but the court must still
consider the Commission’s policy statements as advice, § 3553(a)(5), and also heed



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the congressional direction to avoid unwarranted sentence disparities.               Id.
§ 3553(a)(6).

       Explaining its decision in this case, the district court found that Sjolie’s
“medical needs will be well taken care of” by the Bureau of Prisons (BOP), noting
that “[w]e have extraordinarily fine medical facilities, including access to the Mayo
Clinic.” (S. Tr. at 16-17). Sjolie contends on appeal that the BOP will not
accommodate a re-fitting of his prosthetic leg, but he has not shown that a re-fitting
is medically necessary, or that the BOP cannot arrange for this procedure if it becomes
medically necessary. Sjolie offered no persuasive evidence that he will face unusual
hardship or danger in prison. Under those circumstances, we do not think it was
unreasonable for the district court to impose a sentence comparable to that
recommended for other similarly-situated defendants.

      Other sentencing factors also support the district court’s decision. An
appropriate sentence should afford adequate deterrence to criminal conduct and
protect the public from further crimes of the defendant. 18 U.S.C. § 3553(a)(2)(B),
(C). The record shows that Sjolie continued to distribute drugs despite his medical
problems, even trafficking nine pounds of methamphetamine several months after he
pled guilty to the original indictment while awaiting sentencing. (S. Tr. 4, 5). The
evident need to deter this conduct and to protect the public from additional crimes
undermines Sjolie’s suggestion that little or no prison term is appropriate in his case.
These considerations support the reasonableness of the district court’s decision to
sentence within the advisory guideline range.

      For the foregoing reasons, we affirm the judgment of the district court.
                      ______________________________




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