                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-2747
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

MILTON DOWELL,
                                            Defendant-Appellant.

                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
           No. 99 CR 555—Wayne R. Andersen, Judge.
                          ____________
  ARGUED SEPTEMBER 27, 2004—DECIDED OCTOBER 27, 2004
                          ____________



 Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
  KANNE, Circuit Judge. Milton Dowell was convicted by a
jury of two counts of attempted possession with intent to
distribute cocaine. The district court sentenced him to 360
months imprisonment under the United States Sentencing
Guidelines. Dowell requested a downward departure be-
cause of extraordinary physical impairment. The court de-
nied the motion and Dowell appeals. We dismiss for lack of
jurisdiction, and thus his sentence stands.
2                                                    No. 03-2747

                           I. History
  On two occasions in 1998, Milton Dowell attempted to buy
cocaine from an undercover agent of the Drug Enforcement
Administration. Based on these attempts and several re-
corded phone calls between Dowell and an informant, Dowell
was charged with and convicted of knowingly and intention-
ally attempting to possess with the intent to distribute
approximately one kilogram of cocaine. 21 U.S.C. §§ 846,
841(a)(1).
  Dowell does not contest his conviction; he appeals only
the sentence. Because of his criminal history and past drug
convictions, he is considered a career offender under the
Guidelines. Therefore, absent a downward departure, he
will serve 360 months to life in prison. Dowell requested a
downward departure based on his health problems under
U.S.S.G. § 5H1.4, which explains that “an extraordinary
physical impairment may be a reason to depart downward;
e.g., in the case of a seriously infirm defendant, home deten-
tion may be as efficient as, and less costly than, imprison-
ment.” Id. The district court heard evidence relating to
Dowell’s severe heart problems and found that Dowell does
need a heart transplant. The court determined, however,
that Dowell would most likely receive better care if he re-
mains imprisoned than he would if he were on his own in
home detention.1 Therefore, the court exercised its discre-
tion and denied the downward departure. On appeal, Dowell
argues that the sentencing court used an incorrect standard


1
  Dowell provided no evidence to the district court that he would
be able to finance his own health care if he were sentenced to
home detention. It can be presumed that Dowell is indigent be-
cause he required appointed counsel for this appeal. It appears,
then, that the district court properly determined that it would be
difficult for Dowell to pay for adequate care if he were on his own.
Thus, if anything, a downward departure resulting in home de-
tention would be worse for Dowell’s health.
No. 03-2747                                                   3

in denying his motion and that, because the Bureau of
Prisons does not provide organ transplants, incarcerating
him is a violation of his Eighth Amendment right to be free
from cruel and unusual punishment.


                        II. Analysis
  Sentences imposed under the Guidelines are subject to
appellate review in very limited circumstances. See 18
U.S.C. § 3742(a). The sentence may be reviewed if it: “(1)
was imposed in violation of law; (2) was imposed as a result
of an incorrect application of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicable
guideline range . . .; or (4) was imposed for an offense for
which there is no sentencing guideline and is plainly un-
reasonable.” Id.


  A. Discretionary Sentencing Determinations Are Not
     Subject to Review
  This court determined in United States v. Franz, 886 F.2d
973, 977-80 (7th Cir. 1989), that a district court’s refusal to
depart downward may only be reviewed if the sentence was
imposed in violation of the law. See 18 U.S.C. § 3742(a)(1).
Thus, we review the sentence only if there is a legal error
involved. There is “no legal error, and therefore no jurisdic-
tion for appellate review of a district court’s refusal to
depart downward, when the district court understood that
it had the legal authority to depart but, in its discretion,
chose not to do so.” United States v. Aron, 328 F.3d 938, 940
(7th Cir. 2003); see also United States v. Schuh, 289 F.3d
968, 974 (7th Cir. 2002); United States v. Albarran, 233
F.3d 972, 978 (7th Cir. 2000); United States v. Wright, 37
F.3d 358, 360-61 (7th Cir. 1994).
  The sentencing transcript leaves no doubt that the dis-
trict court was aware of its legal authority to depart. In fact,
4                                                No. 03-2747

the Assistant U.S. Attorney wisely made sure that this
understanding was included in the record. This is a pro-
cedure we encourage. The sentencing transcript shows the
following:
     ASSISTANT U.S. ATTORNEY: Judge, just to be sure
     that the record is clear, the Court recognizes it has the
     authority to depart downward but has refused to as a
     matter of its discretion?
     THE COURT: Yes. Yes, I think—that is my decision.
     Obviously, I gave a lot of thought to it beforehand. And
     the judgment isn’t signed yet, but I think that that is
     probably, frankly, the best thing for, not only society
     and the law, but for Mr. Dowell, given the options that
     exist right now.
(Sent. Tr. at 39).
  The court understood that it had the power to depart down-
ward but determined that the Bureau of Prisons was better
suited to give Dowell the care that he needs. The court al-
lowed Dowell to choose a federal medical center in which to
serve his sentence. Because there was no legal error in the
sentence, we do not have jurisdiction to review it.


    B. Dowell’s Eighth Amendment Claim Is Without Merit
   For the first time on appeal, Dowell raises an Eighth
Amendment argument. He claims that the policy of the
Bureau of Prisons is to automatically deny requests for organ
transplants; therefore, because he needs a heart transplant to
live, it is cruel and unusual punishment to sentence him to
any term of imprisonment. Because he did not raise this
issue in the district court, we now review for plain error.
See United States v. Brumley, 217 F.3d 905, 909 (7th Cir.
2000). Plain error review is used “to correct only particularly
egregious errors for the purposes of preventing a miscar-
No. 03-2747                                                  5

riage of justice.” United States v. Kincaid, 212 F.3d 1025,
1030 (7th Cir. 2000) (internal quotations and citation omit-
ted).
  It is true that the government must provide medical care
to inmates. See Snipes v. Detella, 95 F.3d 586, 590 (7th Cir.
1996). It is also true that “deliberate indifference to serious
medical needs of prisoners constitutes the unnecessary and
wanton infliction of pain proscribed by the Eighth Amend-
ment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal
quotations and citation omitted).
   Dowell does not allege that he has received inadequate
medical care while in prison awaiting his trial. He argues
only that his rights have been violated because the Bureau
of Prisons has a general policy against providing organ trans-
plants. The policy that he cites, however, states clearly that
the “Medical Director may make an exception to this rule,
if the medical or other facts of a particular inmate’s case so
warrant.” Bureau of Prisons, Statement of the Federal Bureau
of Prisons (Nov. 18, 1998), at http://www.bop.gov/ipapg/
ipaorg.html. Dowell has presented no evidence to show that
he is a viable candidate for a heart transplant or that he is
being denied the opportunity to receive a new heart by
prison officials. Nor has Dowell shown that there has been
a deliberate indifference to his medical needs. In fact, he has
been and will be receiving care from a federal medical cen-
ter. Therefore, Dowell’s Eighth Amendment claim is without
merit.


                      III. Conclusion
  Dowell’s sentence is not reviewable by this court because
the refusal to depart downward was a matter of the district
court’s discretion. Dowell’s constitutional arguments are not
valid. We therefore DISMISS this claim for lack of jurisdiction
and the sentence imposed by the district court stands.
6                                         No. 03-2747

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—10-27-04
