* District Judge of the Western District of Texas, sitting by designation.

1 " " Allen ' refers to Allen v. United States, 164 U.S. 492, 501-02, 17 S.Ct. 154, 157, 41 L.Ed.

528 (1896). The term describes supplemental instructions urging jurors to forego their

differences and reach a unanimous verdict." United States v. Heath, 970 F.2d 1397, 1406 n. 2

(5th Cir.1992), cert. denied, 507 U.S. 1004, 113 S.Ct. 1643, 123 L.Ed.2d 265 (1993).

1 

### REVISED

United States Court of Appeals,

Fifth Circuit.

No. 95-60093.

UNITED STATES of America, Plaintiff—Appellee-Cross-Appellant, Appellant—CrossAppellee,

v.

Terry Lynn WINTERS, Defendant—Appellant-Cross-Appellee,

and

David Edward Johns, Defendant—Appellee-Cross-Appellant.

Jan. 23, 1997.

Appeals from the United States District Court for the Northern District of Mississippi.

Before JONES and WIENER, Circuit Judges, and FURGESON, * District Judge.

FURGESON, District Judge:

Appellant-Cross Appellee Terry Lynn Winters ("Winters") appeals from his conviction in the

court below on the grounds (1) that the district court's modified Allen 1 charge was a misstatement

of law and (2) that his conviction was against the weight of the evidence. Appellant-Cross Appellee

David Edward Johns ("Johns") appeals on the ground that count nine of his indictment was

duplicitous in violation of Fed.R.Crim.P. 8(a). Appellee-Cross-Appellant United States appeals on

the ground that the district court incorrectly departed downward from the guidelines established by

the United States Sentencing Commission in connection with the sentences for Winters and Johns.

For the reasons set forth below, we affirm the convictions of Winters and Johns, but we vacate their2

sentences and remand for resentencing in compliance with the United States Sentencing Guidelines.

BACKGROUND

In November 1991, Winters and Johns were lieutenants at the Mississippi State Penitentiary

("MSP"). On November 17, 1991, Larry Floyd ("Floyd"), a minimum security inmate at MSP,

escaped from the prison facilit y. He disguised himself in wo men's clothing, scaled a fence topped

with razor wire, and stole a vehicle from the prison grounds. Rounding a turn in the vicinit y of the

prison, Floyd lost control of the vehicle and rolled it into a ditch. Later investigation of the accident

scene revealed a considerable amount of blood in and around the vehicle, apparently from the injuries

Floyd sustained in the accident.

Floyd continued his escape on f oot, ultimately hiding in an abandoned house near the prison.

Upon his capture the following day, Floyd was handcuffed and then beaten by several officers despite

the absence of any resistance on his part. Floyd was then placed on his back in a truck for return to

MSP. Robert McKnight ("McKnight"), a fellow guard at MSP, testified that during the ride back to

the prison, Winters squatted down over Floyd and, while holding his service revolver, rapidly raised

and lowered his arm towards Floyd's head. McKnight was prevented from seeing the blows delivered

because Winters was between him and the vict im. McKnight did, however, testify that Floyd was

knocked unconscious by the blows. In fact, the injury was so severe that Winters had the truck

stopped to determine whether Floyd was still alive. McKnight further testified that although Floyd

did not appear to be bleeding when placed in the truck, he was laying in a small pool of blood upon

arrival at the prison. Another prison officer, Rogers, also testified that he saw Winters strike Floyd

with his service revolver.

After reaching MSP, Floyd was examined by Dr. John Dial ("Dr. Dial"), who found several

wounds to the head and mult iple scratches and bruises on Floyd's lower body. The wounds to the

head included a large knot above Floyd's right eye, a split lower lip, and a sevethe h ead. The

laceration had severed a small artery and was bleeding profusely. Dr. Dial testified that this wound

appeared to be very recent in nature. He further testified that, had the wound occurred the previous3

day as a result of Floyd's automobile accident, as argued by Winters, Floyd would almost certainly

have bled to death unless he had applied pressure to the wound continuously throughout the night.

Dr. Dial noted that the absence of blood found in the abandoned house where Floyd spent the night

was also inconsistent with the assertion that such a serious wound occurred the previous day. Finally,

Dr. Dial testified that the wound sustained by Floyd was consistent with the type of wound that might

result from a blow by a gun barrel.

During the grand jury hearings regarding the incident, McKnight was called to testify. In all

his previous statements, he had said nothing happened in connection with the apprehension and return

of Floyd. On the evening before McKnight was to testify to the grand jury, Winters and Johns visited

McKnight's home. Winters, who was McKnight 's superior, told McKnight that, if he stuck to his

story that nothing had happened, everything would be all right. On the following day, Johns asked

McKnight whether he had se en Winters strike Floyd. McKnight responded in the affirmative.

However, later the same day, Johns told FBI Special Agent Mike Beaver that he had not discussed

the assault with McKnight and that McKnight had not told him that McKnight saw Winters assault

Floyd.

The grand jury indicted five defendants, including Winters and Johns, of various federal

crimes. Winters was named in three counts: counts four, five, and nine. Johns was named in count

nine. The case was tried for seven days and then went to the jury. After the jury had deliberated for

seven hours, the court called it into the courtroom to inquire on its progress. The foreman informed

the court that the jury had voted on all but one defendant. Thirty minutes later, the foreperson sent

a no t e st at ing that the jury was hung on every defendant except for Johns, whom they had found

guilty. The court then summoned the jury t o t he co urtroom and delivered a supplemental A llen

charge. After once again retiring, the jury returned with a conviction of Winters. All other

defendants were acquitted.

The jury found Winters guilty of deprivation of rights under color of law in violation of 18

U.S.C. § 242 (count four), use of a firearm during and in relation to a crime in violation of 18 U.S.C.4

§ 924(d) (count five), and obstruction of justice in violation of 18 U.S.C. § 1503 (count nine). The

district court imposed concurrent, 12-month terms of imprisonment for counts four and nine and a

consecutive, 60-month term o f imprisonment on count five; concurrent, three-year terms of

supervised release; a special assessment of $150; and a fine in the amount of $2,000. The district

court supported the downward departure from the guideline range on the basis that Winters's crime

was a single act of aberrant behavior.

The jury found Johns guilty of influencing and impeding the due administration of justice in

violation of 18 U.S.C. § 1503 (count nine). In a downward departure, the district court sentenced

Johns to probation for a term of three years and a special assessment of $50. As special conditions

of probation, Johns was ordered to participate in a mental health treatment program and to be placed

on home confinement with electronic monitoring for six months. The court supported the downward

departure because Johns had adverse physical and mental conditions and had a history of decorated

military service and distinguished service at the Mississippi Department of Corrections. The court

also declared the guideline punishment did not fit the crime. The Government, Winters, and Johns

filed timely notices of appeal.

DISCUSSION

1. Winters's Argument as to the Allen Charge

Winters contends that the district court's modified Allen charge was a misstatement of the

facts and the law and led the jury to believe that it must reach a verdict or there would be another

expensive trial. This court reviews a district court's decision to instruct a deadlocked jury pursuant

to Allen for abuse of discretion. In order to uphold an A llen charge, (1) the semantic deviation from

approved Allen charges cannot be so prejudicial as t o require reversal and (2) the circumstances

surrounding the giving of an approved Allen charge must not be coercive. See U.S. v. Heath, 970

F.2d 1397, 1406 (5th Cir.1992), cert. denied, 507 U.S. 1004, 113 S.Ct. 1643, 123 L.E d.2d 265

(1993).

Winters complains that the district court coerced the jury into finding him guilty by stating that5

"[i]f you should fail to agree on a verdict as to the remaining counts the case is left open and must

be tried again." Winters asserts this claim despite ackno wledging t hat the modified A llen charge

given by the court in this case has been explicitly approved by the Fifth Circuit. U .S. v. Kimmel, 777

F.2d 290, 294-295 & n. 4 (5th Cir.1985). Winters further argues that the A llen charge was improper

because it was given after the jury had deliberated seven and one half hours and had reached a guilty

verdict with respect to defendant Johns. Winters therefore argues that t he jury was coerced into

finding him guilty because it deliberated only an additional 30 minutes after the A llen charge was

given to find him guilty.

We reject Winters's claim. First, as he acknowledges, the language of the A llen charge used

by the district court is virtually identical to the language this Circuit has repeatedly approved in the

past. Id. Furthermore, there is no support for the proposition that the reading of the Allen charge

coerced the jury into reaching a unanimous verdict on the counts against Winters. The timing of the

Allen charge and the duration of the deliberation after the reading of the charge do not demonstrate

coercion. S ee United States v. Scruggs, 583 F.2d 238, 241 (5th Cir.1978). The fact that the jury in

this case returned with a guilty verdict against Winters shortly after the Allen charge was given does

not alone indicate that the charge was coercive. In fact, the charge obviously did not coerce the jury

because at the same time it found Winters to be guilty, it also found the remaining defendants, upon

whom it had also been hung, to be not guilty. S ee e.g., U.S. v. Heath, 970 F.2d at 1406. Since the

Allen charg e issued by the district court is consistent with other A llen charges approved by this

Circuit and since there is no evidence suggesting that the charge was coercive, the claim is denied.

2. Winters's Argument as to Weight of Evidence

Winters also contends that the verdict of the jury was contrary to the overwhelming weight

of the evidence. The standard of review in determining whet her t here was sufficient evidence to

convict a defendant is w het her the evidence, when viewed in the light most favorable to the

government with all reasonable inferences and credibility choices made in support of a conviction,

allows a rational fact finder to find every element of the offense beyond a reasonable doubt. S ee U.S.2 Count Nine read in relevant part:

On or about April 20-22, 1994, in the Northern District of Mississippi, defendant

TERRY LYNN WINTERS, aided and abetted by defendant DAVID JOHNS, did

corruptly endeavor to influence and impede the due administration of justice by attempting

to influence the testimony of Robert "Bubba" McKnight before a Federal Grand Jury

sitting in Oxford, Mississippi, which was investigating November 1991 assaults on inmate

Larry Floyd, in order to conceal and cover up evidence of the assaults on Floyd, that is:

On the night of April 20, 1994, DAVID JOHNS and TERRY WINTERS drove to

the house of Robert McKnight and told him that if he testified before a federal grand jury

in Oxford he should "stick to his story" and that "perjury is hard to prove;"

On April 22, 1994, after Robert McKnight told DAVID JOHNS that he saw

TERRY WINTERS assault Larry Floyd on the back of a prison truck on November 18,

1991, DAVID JOHNS told FBI agent Mike Beaver that Robert McKnight had

never told DAVID JOHNS that McKnight saw TERRY WINTERS assault Floyd. DAVID

JOHNS told agent Beaver that JOHNS and McKnight had not even discussed the assault on

Floyd in the last two weeks; all in violation of Title 8, United States Code, Section 1503.

6 v. Flores-Chapa, 48 F.3d 156, 161 (5th Cir.1995).

Fellow prison officer Rogers testified at trial that he saw Winters strike Floyd with his service

revolver while Floyd was not resisting arrest. McKnight, another officer, testified that he saw

Winters squat over Floyd and raise and lower his arm at least twice while holding his service revolver.

Finally, Dr. Dial testified that the wound sustained by Floyd was consistent with being struck by the

edge of a gun barrel and that it was unlikely that Floyd could have sustained the wound more than

12 hours before as a result of his automobile crash. Viewing all the evidence in the light most

favorable to the government and drawing all reasonable inferences and credibility choices in support

of a conviction, it is clear that there was more than enough evidence before the jury to support the

conviction of Winters for assaulting Floyd. This claim is also denied.

3. Johns's Argument as to Duplicity

Johns argues that count nine of his indictment was impermissibly duplicitous and created the

possibility of nonunanimity by the jury because it could find him guilty of one but not all of the acts

alleged in the count. 2 Therefore, he argues that each charge should have been rendered in a separate

count. Johns, ho wever, did no t raise this claim below. Failure to raise a claim of duplicity in the

indictment prior to trial constitutes a waiver of the claim pursuant to Fed.R.Crim.P. 12(f). United7

States v. Razo-Leora, 961 F.2d 1140, 1146 n. 3 (5th Cir.1992). Defendants are required to make an

objection on the basis of duplicity prior to trial precisely so that such error can be corrected prior to

the trial and the entire case need not be retried.

Having failed to object to the charges as duplicitous, Johns might also be heard to object that

the trial court failed to give a spe cial unanimity instruction. Johns, however, made no request for

such an instruction and made no objection to the court's failure to g ive such an instruction. To

preserve error, an objection is necessary under Rule 30 of the Criminal Rules of Federal Procedure,

unless the court's action constitutes "plain error" which is error "so fundamental as to have resulted

in a miscarriage of justice." U nited States v. Yamin, 868 F.2d 130, 132 (5th Cir.1989) (citing United

States v. Hernandez-Palacios, 838 F.2d 1346, 1350 (5th Cir.1988)). In light of the circumstances

here, we review the failure to give a special instruction on unanimity under the narrow "plain error"

standard. U

nited States v . Baytank (Houston), Inc., 934 F.2d 599, 609-610 (5th Cir.1991).

Employing that standard, we note that Johns has raised no arguments on appeal that would warrant

relief; accordingly, his claim is rejected.

4. The Government's Arguments as to Sentencing

We have deep respect for the difficult tas k district courts face in arriving at sentencing

decisions. We also understand that, especially after viewing a protracted jury trial, a district court

may gain a certain perspective about a case and a defendant that seems to justify a departure from the

Sentencing Guidelines, regardless of whether the Guidelines permit the departure. In such cases and,

indeed, in most cases, jury trial or otherwise, a district court's decision to depart from the Guidelines

is due substantial deference, for it embodies the traditional exercise of discretion by a sentencing

court. K oon v. United States,

--- U.S.

----, ----, 116 S.Ct. 2035, 2046, 135 L.Ed.2d 392 (1996). "To

ignore the district court's special competence—about the ordinariness or unusualness of a particular

case—would risk depriving the Sentencing Commission of a n important source of information,

namely, the reactions of the trial judge to the fact-specific circumstances of the case." K oon,

--- U.S.

at ----, 116 S.Ct. at 2047 (quotations and citations omitted).8

Nevertheless, "[b]efore a departure is permitted, certain aspects of the case must be found

unusual enough for it to fall outside the heartland of cases in the Guideline." Koon,

--- U.S. at ----,

116 S.Ct. at 2046. Accordingly, a district court considering a departure from the sentencing

Guidelines is required to make the following inquiry:

(1) What features of this case potentially tak e t he case outside of 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 on those features?

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

Koon, --- U.S. at ----, 116 S.Ct. at 2045.

Discouraged factors

... are those not o r dinarily relevant to the determination of whether a

sentence should be outside the applicable guideline range. Examples include the defendant's

family ties and responsibilities, his or her education and vocational skills, and his or her

milit ary, civic, charitable, or public service record. The Commission does not view

discouraged factors as necessarily inappropriate for departure but says they should be relied

upon only in exceptional cases.

Koon, --- U.S. at ----, 116 S.Ct. at 2045 (citations and quotations omitted).

If a factor is unmentioned in the Guidelines, the court must, after considering the "structure

and theory of both relevant individual guidelines and the Gui delines t aken as a whole,"

( United States v. Rivera, 994 F.2d 942, 949 (1st Cir.1993)) decide whether it is sufficient to

take it out of the heartland of cases. The court must bear in mind t he Co mmissio n's

expectation that departures based on grounds not mentioned in the Guideline will be "highly

infrequent."

1995 U.S.S.G. ch. 1, pt. A. Koon, --- U.S. at ----, 116 S.Ct. at 2045.

"[W]hether a factor is a permissible basis for departure under any circumstances is a question

of law, and the court of appeals need not defer to the district court's resolution of the point." K oon,

--- U.S. at ----, 116 S.Ct. at 2047.

a. Winters's Sentence

If the district court had not departed from the Guidelines in thi s case, Winters would have

received a sentence of 108-135 months of imprisonment for violation of 18 U.S.C. §§ 242 and 1503,

to which the mandatory consecutive 60 months imprisonment for firearms violations under 18 U.S.C.

§ 924(c) would have been added. As it stands, however, he received 12 months of prison time for3 Indeed, we are completely satisfied that the district court viewed such a pernicious code of

conduct in a prison system with the same indignation as does this court. We trust that no such

culture or code continues to exist at Parchman or any other prison or jail within our jurisdiction.

But if so much as a vestige does subsist today, let this be a "zero tolerance" warning that no

semblance of such an insidious culture will be abided, and that failure to endeavor vigorously to

eradicate any lingering manifestations of such a code or culture may render one accountable for

9 the § 242 and 1503 violations, before adding the 60 months under § 924(c). In sentencing Winters,

the court referred to his conduct as being "one pa rt icular single act of aberrant behavior by this

defendant,

... totally unlike his past respect for the law" and then explained that aberrance as follows:

[Winters's] steady employment, his s upport of his family, and the institutional culture or

accepted code of conduct that existed at Parchman[ ] may well have led this defendant and

others to believe that the beating of a prisoner would be condoned and accepted. Indeed, this

defe ndant crossed the l i ne, so to speak, but i t i s a factor, a pri

or code of conduct, or

institutional conduct that this court feels it is justified in considering in t he totality

of

circumstances surrounding the downward departure.

The government construes the district court's sentencing colloquy as proffering three separate

reasons for its downward dep arture: (1) an accepted code of conduct or institutionalized culture

allowing for inmates who had escaped to be beaten upon recapt ure; (2) a single act of aberrant

behavior; and (3) the defendant's steady emplo yment record and his support of family. The

government misconstrues the asserted basis for the court's downward departure.

We read the sentencing colloquy to express but one ground for downward departure, being

a single act of aberrant behavior, the aberrance of which the court goes on to explain as being wholly

inconsistent with Winters's unblemished prior history of respect f o r t he law and family virtues,

coupled with a previously existing (but certainly unwritten and invidi ous) "code of conduct" for

guards and other custodial personnel in the Mississippi prison system, under which the brutalizing of

recapt ured escapees was condoned if not encouraged. The court implied that this "institutional

culture" appeared to have created a subconscious mind set in the defendant (and ot hers wit h like

employment histories) sufficient to nullify the usual constraints of conscience which otherwise might

well have prevented his perpetrating such miscreant acts. We see this as a far cry from the

government's implication that the sentencing court in so me way considered such a reprehensible

"institutional culture" to be a mitigating circumstance. 3violating the clearly-established constitutional right of every arrestee, detainee, and convicted

prisoner to be free from such unlawful punishment.

10 Although we have yet to explicitly define aberrant behavior, we have stated that "we are most

certain that it requires more than an act which is merely a first offense or "out of character' for the

defendant." U

nited States v. Williams, 974 F.2d 25, 26 (5th Cir.1992), cert. denied, 507 U.S. 934,

113 S.Ct. 1320, 122 L.Ed.2d 706 (199 3) (affirming a refusal to depart downward because the

robbery involved planning). In reaching our conclusion, we cited the Seventh Circuit with approval,

ho lding that there must be "some element of abnormal or exceptional behavior" such as "a

spontaneous and seemingly t h oughtless act rather than one which was the result of substantial

planning." I

d.; United States v. O'Brien, 18 F.3d 301, 303 (5th Cir.1994) cert. denied

--- U.S.

----,

115 S.Ct. 199, 130 L.Ed.2d 130 (1994) (qu oting United States v. Carey, 895 F.2d 318, 325 (7th

Cir.1990) (aberrant behavior contemplates a spontaneous, seemingly thoughtless act)). The Third,

Fourth, and Eighth Circuits have followed the Seventh Circuit's view. U nited States v. Marcello, 13

F.3d 752, 761 (3rd Cir.1994) ("there must be some element of abnormal or exceptional behavior");

United States v. Glick, 946 F.2d 335, 338 (4th Cir.1991) (reversed a downward departure because

the transport of stolen trade secrets across state lines occurred on several occasion); United States

v. Garlich, 951 F.2d 161, 164 (8th Cir.1991) (bank fraud scheme over a one year per iod lacked

spontaneity and thoughtlessness).

Under certain circumstances, if this were but one isolated assault upon a prisoner, it might

very well h ave been an act of aberrant behavior. A single act of aberrant behavior can be an

appropriate basis for a downward departure. United States v. O'Brien, 18 F.3d at 303. However,

such a single act is not implicated by Winters's conduct. For example, Winters's subsequent efforts

to conceal his wrongdoing remove his actions from consideration as a single act of aberrant behavior.

He did not act spontaneously and thoughtlessly when he endeavored to have McKnight continue to

lie about the illegal assault. Winters's offense thus cannot be deemed a single act of aberrant behavior

because he committed mult iple infractions, one in assaulting the prisoner and a second in attempting11

to coerce a witness into altering his testimony. As such, Winters's course of criminal conduct is not

a proper ground for a downward departure.

Neither can Winters's course of criminal behavior somehow be converted into a si ngle

aberrant act by viewing it in the context of his history of lawful behavior, his support of family,

and—especially—his being under the influence of the above-said institutional culture or accepted

code of co nduct . First, the Commission has specifically addressed and incorporated within the

Guidelines punishment for crimes that involve the abuse of the public position, see U.S.S.G. § 3B1.3

(allowing an increase of two levels for a defendant who committed an offense by abusing a position

of public o r privat e trust) and has considered such circumstances to be aggravating rather than

mitigating. Therefore, it would be entirely inconsistent to support aberrance of actions for purposes

of departing downward by giving consideration to a crime that was not only committed "under color

of law" but was allegedly encouraged by an arm of the government. The theory of the Guidelines

punishes criminal acts committed under color of law precisely because the Commission considered

criminal acts committed by government agents to require a firmer response in order to prevent them.

To decide here that either encouraging or condoning such an activity by the branch itself somehow

establishes a framework that could convert such behavior into a single instance of aberrant behavior

would be entirely inconsistent with the structure and theory of the Guidelines.

The same holds true for Winters's steady employment record and his support of family. First,

the Guidelines provide that an offender's "[e]mployment record is not ordinarily relevant in determine

whether a sentence should be set outside the applica ble Guideline range." U.S.S.G. § 5H1.5.

Similarly, the Guidelines provide th at "[f]amily ties ... are not ordinarily relevant in determining

whether a sentence should be outside the applicable Guideline range." U.S.S.G. § 5H1.6.

Additionally, 28 U.S.C. § 994(e) provides, in relevant part, tnd Policy Statement, in recommending

a term of imprisonment or length of a term of imprisonment, reflect the general inappropriateness of

considering the

... employment record

... [and] family ties

... of the defendant." 28 U.S.C. § 994(e).

The Commission considered and expressly discouraged sentencing courts from departing from the12

Guidelines on the basis of either employment records or family ties. As the Supreme Court noted in

Koon, such factors may be relied upon only "in exceptional cases." See Koon, --- U.S. at

----, 116

S.Ct. at 2045. However, in regard to crimes committed under color of law, it would be inconsistent

with the theory and structure of the Guidelines to use these factors in aid of classifying a course of

criminal conduct as a single aberrant act.

We realize that the district court had unique perspective concerning the sentence to give

Winters and that the court gave its sentencing decision its most lengthy consideration. Still, unless

the court's reasons were ones permitted by the Guidelines, the departure cannot stand. We conclude

that such is the case here. It was incumbent on the district court to articulate relevant facts and valid

reasons why the circumstances of this case were of a kind or degree not adequately considered by the

Guidelines and thus sufficient to take it outside the heartland of relevant cases. See Koon, --- U.S.

at ----, 116 S.Ct. at 2045. In failing to do so, the district court abused its discretion when it departed

downward from the Guidelines as applied to Winters.

This is not to say that, on remand, there can be no possibility of a downward departure based

on family ties or responsibilities or the defendant's employment. S ee Koon,

--- U.S. at ----, 116 S.Ct.

at 2050. (Congress did not grant courts authorit y t o decide what sentencing considerations are

inappropriate in every case.) But the district court's reasoning fails to cite the compelling facts

necessary to satisfy the very high standard for this type of departure from the Guidelines.

b. Johns's Sentence

If the court had not departed from the Guidelines, Johns would have received 37-46 months

of imprisonment. Instead, he received three years o f probation conditioned upon him serving six

months of in-home detention. In sentencing Johns, the court gave the following reasons for departing

from the Guidelines:

(1) Johns's physical and mental condition;

(2) his decorated military service in Vietnam;

(3) his distinguished service at the prison; and13

(4) the court's belief that the punishment under the Guidelines did not fit the crime.

Although it is true that the district court gave the sentencing decisio n regarding Johns lengthy

consideration, the departure cannot stand because, again, the court's reasons for departure are not

permitted by the Sentencing Guidelines.

Johns suffers from sarcoidosis, a chronic inflammation of multiple organs. According to a

letter from the VA Center, Johns's condition does not need any particular type of treatment and

requires only follow-up observation. The Guidelines provide "[m]ental and emotional conditions are

not ordinarily relevant in determining whether a sentence should be outside the applicable guideline

range ..." U.S.S.G. § 5H1.3. The Guidelines also provide that "[p]hysical condition ... is not

ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.

However, an extraordinary physical impairment may be a reason to impose a sentence below the

applicable guideline range, e.g., in the case of a seriously infirm defendant, home detention may be

as efficient as, and less costly than, imprisonment." U.S.S.G. § 5H1.4.

By way of example, this Circuit has ruled that an offender who suf fers from cancer in

remission, high blood pressure, a fused right ankle, an amputated left leg, and drug dependency does

not justify a downward d eparture. S ee U.S. v. Guajardo, 950 F.2d 203, 208 (5th Cir.1991), cert.

denied, 503 U.S. 1009, 112 S.Ct. 1773, 118 L.Ed.2d 432. In relying on Johns's medical and physical

conditions, t he district court should have expressed why Johns's case should be treated as an

exceptional one and taken out of the heartland of cases. S ee Koon,

--- U.S. at ----, 116 S.Ct. at 2045.

It did not do so . Co nsidering the medical conditions that previously have been held to be

inappropriate as factors for departing downward in sentencing, Johns's medical condition also does

not appear t o rise to the level necessary to make it an exceptional one and justify a downward

departure in sentencing.

The Guidelines provide that "[m]ilitary

... service

... [is] not ordinarily relevant in determining

whether a sentence should be outside the applicable guideline range." U.S.S.G. § 5H1.11. In making

a downward departure, the district court relied on the fact that Johns had two purple hearts and14

described his service as "distinguished." However, this Circuit has determined that an offender's prior

receipt of two purple hearts and a distinguished f lying cro ss did not justify a departure from the

Guidelines. S ee U.S. v. Peters, 978 F.2d 166, 171 (5th Cir.1992). Again, the district court does not

address why Johns's milit ary service is so extraordinary as to take the case out of the heartland of

cases and to justify departing downward from the Guidelines. Therefore, the district court once again

abused its discretion in making a departure from the Guidelines based on Johns's service in t he

milit ary.

Similar to Winters, and discussed supra, the district court's reliance on Johns's employment

record is not an appropriate reason to deviate from the Guidelines, without some compelling

statement that would indicate how this case is outside the normal heartland of cases.

Finally, in sentencing Johns, the court stated that "the punishment, certainly in this instance,

do es not fit the crime." The fact that the district court believed that the punishment met ed o ut

pursuant to the Guidelines did not fit the crime is no t eno ugh, without additional articulation, to

justify a sentenc e outside the Guideline range. This Circuit has consistently held that the district

court's disagreement with the mandates of the Guidelines is not justifica, U.S. v. Barbontin, 907 F.2d

1494, 1497 (5th Cir.1990). "The goal of the Sent encing Guidelines is, of course, to reduce

unjustified disparities and so reach towards the eve nhandedness and neutrality that are the

distinguishing marks of any principled system of justice. In this respect, the Guidelines provide

uniformity, predictability, and a degree of detachment lacking in our earlier system." K oon,

--- U.S.

at ----, 116 S.Ct. at 2053. The di stri ct court abused its discretion in basing its decision on the sole

ground that the Guidelines inappropriately punished this particular defendant.

CONCLUSION

For these reasons, the Appellants' convictions are AFFIRMED while the sentences imposed

areVACATED and REMANDED for resentencing in the compliance with the Guidelines.