                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1278
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                               Patrick Lloyd Hofstad

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                    for the District of North Dakota - Bismarck
                                   ____________

                             Submitted: March 12, 2018
                                Filed: June 25, 2018
                                   [Unpublished]
                                  ____________

Before GRUENDER, BEAM, and KELLY, Circuit Judges.
                          ____________

PER CURIAM.

       Patrick Hofstad was indicted for several drug offenses related to a conspiracy
to distribute methamphetamine. During his pretrial confinement, Hofstad was
brutally assaulted by another inmate. He suffered a skull fracture from the incident,
and doctors inserted a metal plate and screws into his head to repair the damage.
Hofstad subsequently pleaded guilty to one count of conspiracy to distribute and to
possess with intent to distribute a controlled substance. See 21 U.S.C. §§ 841(a)(1)
& 846. The district court1 then granted Hofstad’s motion for pre-sentencing release
on the basis of his ongoing medical needs related to the attack. See 18 U.S.C.
§ 3145(c) (authorizing the release of detainees where “exceptional reasons” are
clearly shown).

       At sentencing, Hofstad argued for a downward departure under United States
Sentencing Guidelines § 5H1.4, which allows courts to consider a defendant’s
“extraordinary physical impairment” in fashioning a sentence. The district court
denied the requested departure, concluding that Hofstad’s physical condition was not
sufficiently “extraordinary” to warrant a lower sentence. The court did, however,
vary downward from Hofstad’s advisory guidelines range of 188 to 235 months,
sentencing him to 156 months’ imprisonment. Hofstad now appeals his sentence,
arguing that the district court clearly erred in finding that his condition was not
“extraordinary” in light of its earlier determination that his injuries were sufficiently
“exceptional” to warrant his pre-sentencing release.

      “Under the advisory guidelines, we generally will not review the district court’s
refusal to grant a downward departure unless the district court had an unconstitutional
motive or erroneously thought that it was without authority to grant the departure.”
United States v. Varner, 678 F.3d 653, 658 (8th Cir. 2012) (internal quotation marks
omitted). Hofstad identifies no unconstitutional motive, nor does the record betray
any. Further, the district court expressly acknowledged its authority to grant a
departure under § 5H1.4, but it chose not to do so because Hofstad’s undisputed
physical impairments were not “so extraordinary and so unusual” as to justify a




      1
        The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.

                                          -2-
departure. That determination fell within the district court’s discretion. See Varner,
678 F.3d at 659.

      Accordingly, Hofstad’s sentence is affirmed.
                     ______________________________




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