IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

 :

v. : No. 4:CR-04-332

 :

 : (Judge Muir)

 :

MICHAEL J. BLOOM :

ORDER

May 23, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On January 22, 2004, an Indictment was returned by a

Federal Grand Jury charging Michael J. Bloom and 14 others with 

conspiracy to possess with intent to distribute in excess of 100

grams of heroin. That case was assigned Docket No. 4:04-CR-026. 

On October 7, 2004, an Information was filed to Docket

No. 4:CR-04-332 charging Bloom with Use of a Communication

Facility to Facilitate Drug Felonies. On October 13, 2004, Bloom

entered a plea of guilty to the Information. The plea of guilty

was entered pursuant to a plea agreement which provided, inter

alia, that Bloom was responsible for at least 10 grams but less

than 20 grams of heroin and that at the time of sentencing the

Government would move for the dismissal of the charges filed

against him in case number 4:CR-04-026.

A presentence report and addendum thereto were prepared

and submitted to the court on March 7, 2005. Probation Officer

Drew Thompson determined that the total offense level is 13, the

criminal history category is I and the advisory guideline

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imprisonment range is 12 to 18 months. 

A presentence conference was held on March 9, 2005,

attended by assistant United States attorney Rocktashel, defense

counsel Zeigler and Probation Officer Thompson at which time

counsel reported that there were no objections to the presentence

report. However, attorney Zeigler recommended that the court

impose a sentence of probation in light of Bloom’s extraordinary

physical impairments. In light of that assertion, we directed

attorney Zeigler to obtain and provide us with a statement from

Bloom’s physician by March 23, 2005, detailing Bloom’s physical

impairments. The Court also scheduled sentencing for April 1,

2005, at 4:15 p.m. and noted that Bloom would not have to report

for service of any sentence of imprisonment imposed until 3 weeks

after the imposition of the sentence.

Shortly after the conclusion of the presentence

conference, the Court reviewed the case and determined that

certain additional steps should be taken before sentence is

imposed in this case. 

By order of March 9, 2005, we required Bloom to file a

motion for downward departure pursuant to U.S.S.G. § 5H1.4 which

states in relevant part that “[p]hysical condition or appearance,

including physique, is not ordinary relevant in determining

whether a departure may be warranted. However, an extraordinary

physical impairment may be reason to depart downward; e.g., in

the case of a seriously infirm defendant, home detention may be

as efficient as, and less costly than, imprisonment.” 

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We further stated in our order of March 9th that once

we determined whether or not a such departure is warranted, Bloom

may still argue that a sentence of probation is reasonable in

light of all of the 18 U.S.C. § 3553 factors that the court is

required to consider under United States v. Booker, 125 S.Ct. 738

(Jan. 12, 2005).

On April 2, 2005, Bloom filed a medical appraisal from

his treating physician. On April 15, 2005, Bloom filed a motion

for downward departure pursuant to U.S.S.G. § 5H1.4. On May 2,

2005, the Government filed a brief in opposition. The motion

became ripe for disposition on May 19, 2005, when Bloom elected

not to file a reply brief. 

As noted above, the total offense level as calculated

by the Probation Officer is 13 and the guideline imprisonment

range is 12 to 18 months. However, on May 20, 2005, the

Government and Bloom filed a stipulation which reduced Bloom’s

total offense level by 2 levels because he was a minor

participant in the criminal activity. That reduction results in

a guideline imprisonment range of 8 to 14 months.

We have the authority under § 5H1.4 of the Guidelines

to depart downward for extraordinary physical impairments. The

letter from James W. Redka, M.D., Bloom’s physician states in

relevant part as follows:

 Michael Bloom is a patient here at Cornerstone Family

Health. It is medically unacceptable for him to be

placed in a correctional facility due to a number of

medical problems requiring very frequent medical 

visits and reevaluations as well as numerous chronic

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medications.

 He has had severe disabling back pain for a number 

of years. This has required gradual escalation of

pain medication, including at the present time 

quite a large dose of narcotics in the form of 

OxyContin with breakthrough pain treated with

only partial success with Percocet. He has been

evaluated by several pain centers and neurosurgery,

and there is no apparent ability to help him 

resolve this problem without the use of chronic

narcotics.

 In addition, he has developed some imflammatory

arthritis of both his legs, and then some chronic

cellulitis with abscess formation off and on in both

his feet. He has venous insufficiency as well. This

leaves him with continually swollen legs which can 

only be partially helped with elevation of his legs

most of the time.

 His other disorders, including hypertension, edema,

morbid obesity, prolonged depression, and sleep

disturbance, could be accommodated in the correctional

facility.

 The patient does see me on a monthly or bimonthly

basis to reevaluate and re-prescribe his medication. .

. .

 Mr. Bloom is a very large man at 6 feet 8 inches

tall, and weighs 355 lbs. This has also resulted

in him having sleep apnea syndrome, for which he

benefits from a CPAP machine. 

 The patient has limited mobility and a difficult

ambulatory gait. He has a limited ability to stand

or sit in any one position for any length of time.

. . . . 

 I do believe that incarcerating Mr. Bloom would be

unwise, in particular because of his required use of

narcotic analgesics, as well as his very severe leg

infections. . . . .

The Government in its brief in opposition did not contest the

opinion expressed by Dr. Redka regarding the severity of Bloom’s

physical impairments. The Government argues, however, that it

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would not be fair to depart based on § 5H1.4 because “[o]ther

co-defendants in this case had been incarcerated and suffered

with equally serious if not more serious physical infirmities

than defendant Bloom.” Doc. 21, Government’s Brief In Opposition,

page 1. 

In order for physical impairment to be relevant under

U.S.S.G. § 5H1.4 they must be extraordinary. See United States

v. Sweeting, 213 F.3d 95, 100-101 (3d Cir. 2000). We are not

convinced that Bloom’s physical impairments are so extraordinary

as to warrant a departure under § 5H1.4. We will, however,

consider Bloom’s physical impairments under 18 U.S.C. § 3553 when

imposing sentence.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Bloom’s motion for downward departure pursuant to

U.S.S.G. § 5H1.4 is denied.

2. Bloom’s guideline imprisonment range is 8 to 14

months.

3. Sentence will be imposed on Bloom in Courtroom No.

1, Williamsport, Pennsylvania, on June 13, 2005, at 2:30 p.m.

 s/Malcolm Muir 

 ______________________________ MUIR, U.S. District Judge

MM:gs

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