In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4272

United States of America,

Plaintiff-Appellee,

v.

Steven Hirsch,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 96-CR-40094--J. Phil Gilbert, Judge.

Argued October 30, 2001--Decided February 15, 2002



  Before Cudahy, Easterbrook and Williams,
Circuit Judges.

  Cudahy, Circuit Judge. In appealing from
his sentencing for drug and firearms
offenses, Steven Hirsch argues that the
district court erred in concluding that
it had no authority to award a downward
departure based on Hirsch’s medical
condition. We affirm.

I.

  Hirsch was arrested on drug conspiracy
charges on February 11, 1997. On March 6,
1997, upon the request of his attorney,
he was granted a medical transfer from
county jail to the Federal Medical Center
in Springfield, Missouri, for a medical
exam. The medical exam revealed that he
was healthy. Hirsch was then transferred
to the Williamson County Jail in Marion,
Illinois, to await trial. Soon after he
arrived at the Williamson County Jail,
however, Hirsch developed respiratory
problems. On November 1997, his
respiratory problems were diagnosed and
treated as a respiratory infection. In
January 20, 1998, a jury trial began on
the indictment against Hirsch. During
this time, however, Hirsch was diagnosed
with pneumonia. Because he appeared
seriously ill during trial, a mistrial
was declared on February 3, 1998. On
February 4, 1998, Hirsch was admitted to
Lourdes Hospital in Paducah, Kentucky,
where he was diagnosed with Legionnaire’s
Disease. Steven was not discharged from
Lourdes Hospital until March 2, 1998.
During this hospital stay, he developed
an abscess in his right lung that
ruptured and spread into his left lung.
On April 20, 1998, Hirsch was admitted to
Cox Medical Center in Springfield,
Missouri, where he underwent surgery to
remove his right lung.

  On September 4, 1998, Hirsch entered a
plea of guilty to counts of: 1)
Conspiracy to Distribute Methamphetamine
and Marihuana, 2) Conspiracy to
Distribute Cocaine and 3) Carrying a
Firearm During and In Relation to a Drug
Trafficking offense. At the sentencing
hearing on January 29, 1999, defense
counsel moved for a downward departure
based upon Hirsch’s severe illness,
apparently contracted while he was in
prison. The district court ruled that
"unless there is some indication that the
Bureau of Prisons is not capable of
attending to any particular health need
that a defendant may have that’s going to
be incarcerated under the guidelines,
that is not a grounds [sic] for
departure. It makes no difference to this
Court nor to the guidelines that any
illness or ailment was contracted
pretrial or during trial." Later on, in
answer to Hirsch’s question why the
district court did not grant a downward
departure, the district court stated "I
don’t have any authority under the law to
downward depart."

  Hirsch appeals from the amended judgment
and sentence. He argues that the district
court does have authority to downward
depart based upon an illness contracted
while in federal custody and that the
court failed to examine whether his
illness warranted a downward departure.
He seeks to have the case remanded to the
district court for a hearing on whether
the nature of his illness warrants a
downward departure.

II.

A.

  As an initial matter, the government
argues that this Court does not have
subject-matter jurisdiction because the
district court had considered Hirsch’s
illness during sentencing and exercised
its discretion not to award a downward
departure. In United States v. Williams,
202 F.3d 959, 964 (7th Cir. 2000), we
held that a court of appeals has no
jurisdiction to review a district court’s
decision to deny a discretionary sentence
departure. Here, the district court
addressed Hirsch’s illness during
sentencing in light of United States v.
Sherman, 53 F.3d 782 (7th Cir. 1995) and
its progeny. In Sherman, the defendant
had sought a downward departure based
upon his then current physical
impairments of asthma and obesity. This
Court held that "[i]n order to warrant
such a departure, the court must
ascertain, through competent medical
testimony, that the defendant needs
constant medical care, or that the care
he does need will not be available for
him should he be incarcerated." Sherman,
53 F.3d at 787; United States v. Krilich,
257 F.3d 689, 693 (7th Cir. 2001) (same).

  Here, the district court found that the
Bureau of Prisons could provide Hirsch
with the medical regimen needed to treat
his current medical condition. Thus,
since the district court found that
Hirsch could get adequate medical care in
prison, it exercised its discretion to
deny him a downward departure, and we
have no jurisdiction to review the
decision in that context. However, in
Williams, we also held that a district
court’s determination that it lacked
authority to depart presents a question
of law that is reviewed de novo. See 202
F.3d at 964. It is clear from the record
that the district court in sentencing
Hirsch addressed his illness only in
light of Sherman. But the district court
did not consider whether the
circumstances of Hirsch’s illness provide
a ground, other than the rationale of
Sherman, for a downward departure. The
district court’s statement that, "I don’t
have any authority under the law to
downward depart," indicates that the
district court was thinking only about
Sherman. It did not consider the unusual
circumstances of Hirsch’s illness which
is the ground Hirsch is now arguing. We
review that aspect of its determination
de novo.

B.

  In United States v. Koon, the Supreme
Court suggested that a sentencing court
considering a departure should ask the
following questions:

1) What features of this case,
potentially, take it outside the
Guidelines’ ’heartland’ and make it a
special, or unusual, case?

2) Has the Commission forbidden
departures based on those features?

3) If not, has the Commission encouraged
departures based on those features?

4) If not, has the Commission discouraged
departures based on those features?

518 U.S. 81, 95 (1996). If the answers to
these questions suggest that a departure
may be warranted, the district court
should "perform a fact-specific analysis
in light of the Commission’s
consideration of the factor [being
argued] to determine whether it is an
aggravating or 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."
United States v. Meza, 127 F.3d 545, 548
(7th Cir. 1997).

  Here, Hirsch argues that the seriousness
of his illness and the fact that he
contracted it while in federal custody
takes his case outside of the Guidelines’
"heartland." On the seriousness point,
the government argues, on the other hand,
that there is no evidence in the record
that Hirsch really contracted
Legionnaire’s Disease. Although he was
initially diagnosed with Legionnaire’s
Disease, the government contends that the
district court stated at one point that
Hirsch did not have Legionnaire’s
Disease. Although the district court may
have made that statement, by the same
token it did not find that Hirsch had not
contracted Legionnaire’s Disease. However
that issue might play out, it is
undisputed that Hirsch suffered a very
serious illness while in federal custody
that resulted in the loss of his right
lung and other severe and continuing
medical problems. It is also undisputed
that Hirsch did not suffer from this ill
ness prior to being incarcerated at
Williamson County Jail. The severity of
his illness and the circumstances of its
contraction are highly unusual features
of the case that is likely to take it
outside the Guidelines’ "heartland." See
Koon, 518 U.S. at 95. Further, Hirsch’s
illness is not a factor that the
Guidelines have used to encourage or
discourage a departure. See id. But does
Hirsch’s illness warrant a downward
departure? Just because a case has
features that are unusual does not mean
that a departure is warranted. Rather the
unusual features must suggest a rationale
for a difference in the sentence
prescribed by the Guidelines. Otherwise,
all cases with unusual facts would
require a hearing on departure.

  Hirsch’s argument for a downward
departure is that he suffered more from
his illness than he could have suffered
from being in prison. Thus, he is
entitled to a departure as compensation
for the additional punishment of the
illness. The basic problem with this is
the lack of showing that the government
caused the illness (through negligence or
by design). If there had been such
evidence, Hirsch may have been entitled
to a downward departure because he had
already been punished severely prior to
sentencing. For example, if the prison
officials intentionally placed him in a
cell that they knew would likely lead to
his contraction of a serious illness,
this could constitute prior punishment
that may warrant a downward departure.
However, there was no such evidence in
this case. Because Hirsch failed to
provide a persuasive rationale for an
entitlement to a downward departure, his
request for a hearing to explore such a
departure must be denied.

III.

  For the foregoing reasons, we AFFIRM the
judgment and sentence of the district
court.
