1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0182P (6th C ir.) File Name: 04a01 82p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA , Plaintiff- Appellant

,

v.

H ENRY A. B OST IC , Defendant-Appellee. X

- - - -
> , - - N No. 02-6437

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 02-00068—James H. Jarvis, District Judge.

Argued: January

28, 2004
Decided and Filed: June 17, 2004

Befor e: MARTI

N, RYAN, a

nd MOORE, C ircuit Judg es.

_________________ COUNSEL

ARGUED: David C. Jennings, ASSISTANT UNI TED STATES ATTORNEY, Knoxville, Tennessee, for A ppella nt. John O. Gibson, Loudon, Tennessee, for Appellee. ON BRI E F: David C. Jennings, ASSISTANT UNI TED STATES ATTORNEY, Knoxville, T enness ee, for Appellan t. John O. Gibson, Loudon, Tennessee, for Appellee

. 2 United Sta tes v. Bos tic No. 02-6437

MOORE, J., deli vered the opinion of the court, in which MARTIN, J., joined. RYAN, J . ( pp. 21-23), delivered a separate concurring opinion.

_________________ OPINION

_________________ KAREN NELSON MOORE , Circuit Judge. The gover nment, with the approval of the Solicitor Gene ral
, appeals from the s entence

imp osedby the district court on Henry Alvin Bo s tic (“Bostic”). Pursuant to a written plea agree ment, Bostic pleaded guilty to firearms charges. At Bostic’s sentencing hearing, the di strict court granted a downward

departure unde r United States Sentencing Guideline (“U.S.S.G.”) § 5H1 “[d]ue to the defendant’s age, infirmit y and poor health.” Joint Appendix (“J.A.”) at 28. Onappeal, the government arg ues that the district

court erred ingranting this downward departure because ( 1) the district court failed to sentence B ost ic in accordance with the framework

of the sentencing guidelines; (2) the district court failed to determine that

Bostic’s age a

nd infirmi ties made his
c ase exceptional and would make incarc eration inefficient an d
co st ly; and (3) the district court erred in granting a departure based upon the present record.

For the following reasons, we VACATE Bostic’s sentence and REMAND for re- sente ncing.

I. BACKGROUND

The Bureau of Alcohol, Tobacco and F ire arms (“ATF”) investigated

Bostic from June 9, 2000 through June 5, 2002. Duringthis perio d, Bostic “regu larly and willf ully engag ed in the business of selling firearms,” but “did not have, and h a s never had a federal firearms license .” J.A. at 46 (Presentence Report (“PSR”) ¶ 14). Ov er the c ourse of this investigation, “ATF special

agents and confidential informants purchased aNo. 02-6437 United Sta tes v. Bos tic 3

total of 24 firearms from [Bostic] on 20 different occasions.” J.A. at 46 (PSR ¶ 15). Most of these transactions took place at Bostic’s residence. Bostic “sold firea rms to convicted felons and to a resident of a state other than the state in which [Bostic] resides .” J.A. at 47 (PSR ¶ 16). Bostic w as also “observed

selling more firearms than those purchased by the ATF.” J.A. at 47 (PSR ¶ 16).

“On June 27, 200 1, an ATF

special agent s e nt [Bo stic] a certified letter a dvising [h

im] of the f

ederal firear ms laws, i ncluding the provision prohibiting a person who i s not a fe deral firear

ms license e from e

ngag ing in the

businesso f dealingin firea

rms.” J.A. a

t 47 (PSR ¶

18). On June 30, 2001, Bostic signed a return rece ipt indi catin g that he had received the letter. On July 5 , 2001, an informan t went to Bostic’s houseand purchased a firearm from B ostic. At that meeti ng, Bostic told the informant about the warn ing letter that he had re ceived f

rom the ATF reg arding

his firea rms deali ng.
On June 5, 2002, a grand jury returned a nine-count indictment charg ing Bostic with va rious fir earms of fenses. Count One of the indictment charges Bostic with willful l y engaging in the busi

ness of de aling in

fir ea rms withou

t a license, including but not limited to the guns identified in the remainingcounts of the indictment, “from on or about June 9, 2000, up to and including June 5, 2002,” in vi o lation of 18 U. S.C. §§ 922(a)(1)(A) and 924(a)(1) (D). J.A. at 5 (indictment). Count Two o f the in dictme nt charg es Bostic with knowi ngly sell ing and disp osin g “ o f firearms, that is, a Lorc in

. 22 caliber

pistol and

a North A

mericanArms minirevolve r, ” to a pers on while k nowing t hat pers on was a convicted felon, “on or about October 3, 2000,” in violation of 18 U.S.C. §§ 922(d)(1) and 924(a)(2). J.A. at 5 (indictment). Counts Thr

ee throu gh Nine charg e Bostic

“with sales of speci fic fire arms on sp ecific dates to persons whom [Bostic] knew, or should have know n, were convicte d felons, inviolation of 18 U. S.C. §§ 922(d)(1) and 924(a)(2).” Appellant’s Br. at 2. 4 United Sta tes v. Bos tic No. 02-6437

OnJune 6, 2002, ATF agents arrested Bostic and

searched his residen

ce pursu ant to a wa

rrant. During that

search, ATF agents seized six firearms. Bostic told ATF agents that “he had bought, sold and traded fire arms fo r approximately 20 y ears.” J. A. at 47 (PSR ¶ 20). B ostic also told ATF a

gents that he had re ceived the warning letter “a nd understood the letter to mean he c o uld not buy and sell n

umerous f

irearms withouta licens e.” J.A. a t 47 (PSR ¶

20). According

to the PSR, Bostic “stopped buying firearms that

required fillingout paperwork, but thought he could still trade guns and make occasional sales.” J.A. at 47 (PSR ¶ 20).

Also on June 6, 2002, Bostic was released on a $ 20 ,000 unsecured

bond. Thereafter, Bostic and t he gov ernment entered into a wri

tten plea agree ment wher

eby Bosticagreed to plead g uilty to Counts One and Two of the indictment, and the government agree d

to di smis s Cou nts T hree th rough Nine of the indictment and

notto oppose a

three- level re duction in offense level for acceptance of re sponsibility. On August 19, 2002, Bostic pleaded guilty to Counts One and Two.

OnSeptember 28, 2002, prior to sentencing, Bostic filed a motion for

a downward departure pursuant to U.S.S.G. §§ 5K2.0, 5H1.1, and 5H1.4, requesting that he be sentenced to probation, pos sibl y including home de tention, instead of prisondue to his adv anced ag e (eighty-two) and his poor health (em phys ema , an emi a, a nd c oro nar y art ery d is eas e). In support of his motion, Bostic f

iled a le tter from his treating phy sician, Joh

n D. Arne tt, M.D., w

hich state s:
At this time [B ostic] remain[s] in stab le condit i on. He, however, has ser

ious under

lyin g medic al proble

ms.
It is my understa nd ing from discussion with [Bostic’s attorne y] th at he is fa

cing ap proximatel

y two ye ars in prisonfor selli

ng gun s without a

li cense . At this time imprisonmentwould adversely affect his life expectancy and also his health. Due to his coronary artery disease I would expect him t

o have more recurrence s of his atrialNo. 02-6437 United Sta tes v. Bos tic 5

fibrillation. He will be under medical therapy for the remainder

of his life and we can re asonably expect that there will be intermittent periods of hospitalization.

J.A. at 18. This lette

r is the on ly medical evidence — indeed it is the only evidence

— that Bostic introduced in support of his motion.

InB o stic’s PSR, prepared on October 10, 2002, the probationofficer assigned Bostic a ba se offense leve l o f fourteen in accordancew ith U.S.S.G. § 2K2.1(a)(6). The probationofficer

recommended a

six-level increase pursuant to U .S.S.G. § 2K2.1(b)(1)(C) because Bostic sold between t went y-five

and ninet

y- nine fire arms, in that Bostic sold twenty-four

f ire arms to informants and undercover ATF agents , possessed six firearms at the time of his arrest, and
was observed selling additional firearm s ove r the course of t he investigation. The probation officer recommende d an additional two -level increase pur suant to U.S.S.G. § 2K2.1(b)(4) because at least one of the firear

ms Bostic sold had an oblite

rated se ria l number. The probation officer recommended

a three-level downward adj ustment for acceptanceof

re sp on si bi li ty. Bostic had no criminal history points, and thus was assigned a criminal hi story category of I. Accordingly , the pro bat ion officer recommended a total
o ffen se level of nineteen, and calculated Bostic’ s guideline range to be thirt

y to thirty -seven months of imp

riso nme nt,
w ith a f ine between $6,000 and $60,000, and a special assessment

of $200. Bostic’s guideline range, however, was loca ted in “Zone D”; therefore, B ostic was not eligibl e fo r probation under U.S.S.G. § 5B1.1(a).

Inthe “Physical Condition” section of the PSR, the probation officer reported: [Bostic] is treated by John D. Arne t t, M.D., Knoxville, Tennes s ee. [Bostic] has atherosclerotic cardiovascular di sea se, ane mi a, a sbe st osi s, h yper ten si on, type -II diabetes and chronic obstructive pulmonar y di sease from 6 United Sta tes v. Bos tic No. 02-6437

t obacco use. He i s prescr ibed Ranit

idine, Comb iv ent , Serovent , C ordarone, and Hy zaar. The

Cordarone is prescribe d f

or atrial fibrillation. The defendant underwent left heart catheterization on May 14, 2002.

J.A. at 50 (PSR ¶

51). The

n, in the “Facto rs that May Warrant Departure” section of the PSR, the probation officer noted, [Bostic] is 82 y

ears old and has n

umerous health problems

. Pu rs ua nt to US SG § 5 H1 .1 , “ Ag e m ay b e a reason to impose a sentence below th e applic able guideline range when the

defenda nt is elder ly and infirm and wher e a f

orm of pun

ishment suc

h as home confinement

might be equally

efficie nt as and l ess costly than incarceration.”

J.A. at 54 (PSR ¶ 70). The probation officer, however, stated that she was not necessarily

making a recommendation for departure. Each party

filed a notice of no objection to the PSR.

At the sente

ncin g he aring, on November 6, 2002, the government’s counsel mentioned the defendant’s downwardd eparture motion but f

ailed to ma

ke an expli cit objecti on

. Af ter acknowl edging

that Bost

ic plead ed guilt y to Counts One and Two, the district judge read the maximum penalties for those cou nts. The district court then asked Bostic whether he had read the PSR and whether the PSR was accurate; Bosticresponded in the affirmative. The court and the gove rnment’s couns el the n engaged in a br ief ex change
, during which the government’s counsel stated that

he would like to present ev idence regarding Bo stic ’s offense conduct before the cour

t rul ed on Bostic’s downward-departure motion. The government’s counsel then introduced the ATF warningletter, played a ta pe of the conversation during which Bosticmentioned the letter, and introduced a transcript of that tape. After introducing this eviden ce , the government’sNo. 02-6437 United Sta tes v. Bos tic 7

1 Although it i s not refl ected in the sentencing heari ng transcr ipt, Bo stic contends “that t he [Ass ist ant U.S. At

torn ey] lef

t t he Court room befor e th e Judge lef

t t he benc h.” Appell ee’s Br. at 2. counsel stated tha

t he wou ld like to address the issue of sentencingafter Bostic’s counsel had an opportunity to speak. Following the government’s int rodu ction of evidence regarding the off ens e conduct, Bostic did not introduce any additional evide nce su pport ing his mo tion for a downward departure. When the di strict jud ge ask ed what B osti c’ s medical problems were, B ostic’s counsel stated, “[Bostic] has emphy se ma

and heart trouble, Your Honor.” J.A. at 36 (Sentencing Hr’g Tr. a

t 36).

The distric t court then granted a downward de parture and sentenced Bostic “ to five y ears of probation on each count to
runconcurrently

” and a $6,000 fine. J.A. at 37. After explaining the conditions of Bostic’s probation, the district court accepted the plea agr

eement, dis missed Counts Three throu gh Nine, clarified

the due date of the fine, and adjourned the se ntencing

hearing . The distr

ict cour t did not expli citl y give the gov ernment

an oppor

tunity to object

a f ter it pronounced

Bostic’ s sentenc e, nor did th e government’s
counsel interrupt the district judge to object. On November

13, 2002, the district

court entered a Judgment and C ommitment

Order detailing Bostic’s sentence

. 1 The gover nment file d a timely

notice of appeal.

II. ANALY SIS

A. Jurisdiction

The district c ourt had j urisdicti on pursua nt to 18 U.S. C. § 3231 because Bostic was charg ed with offenses against the laws of the United States. This court has jurisdictionover the appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b). 8 United Sta tes v. Bos tic No. 02-6437

B. Standard of Review

The gover

nment ass erts that , alth ou gh it did not make a specific objection, it noted its opposition to Bostic’s motion for a downward departure at the outset of the sentencing hearing and was not given an opportun ity t o argue its opposition either before or after the district court pronounced Bostic’s sentence. The government argues that it should not be required to demonstrate plain error either be ca u se it adequatel y

objected or because it was not given the opportuni ty to object.

We conclude that the government failed to ob jec t ade quately

in the district court to Bostic’s motion for a downward

departu re. Bos tic filed a motionfor a downward departure on September 28, 2002. The government did not file any paper s opposing that motion. At the sentencing hearing onNovember 6, 2002, after questioning Bostic about t he PSR, the distri ct court asked, “ Now, wha

t does the U.S. Attorney have to say a

bout this?” J.A. at 34 (Sentencing H’rg Tr. at 4). In response, the government’s counsel stated,

Your Honor, a s the Court

is I a m sure awar e, Mr. Gibson[Bostic’ s counsel ] has file d a motion for downward

departure pursuant to 5K2 based on t he defen dant’s age, his health and he has attache d several letters from

members o f the com

munity asking the Court notto imprison him. Bef ore the Court rules on that motio n, I ha

ve a ver y br ief evid entiary matter I would like to pre sent to the

Court.

J.A. at 34 (Sentencing Hr’g Tr. at 4). The evidentiary matter to which the go vernment’s counsel was referring concerned the offense conduct, not Bostic’s motion for a downwa r d departure. This statement indicat ed to the district court that th e government was aware of Bostic’s motion, but the government’s statement did n ot in form the district court or defense counsel whether

or not the government opposed the downward-departure motion.No. 02-6437 United Sta tes v. Bos tic 9

2 We fi nd it

somewh at i ncredi

ble th at the go vernm ent was able to mention at the sente ncing hearing Bostic’ s motion for a downward departure — withou t stating that it opposed such a depart ure — and now cla ims on app eal that it wa s not give n an o ppo rtunity to o bjec t to th a t motion.

3 Rule 51 (b) pro vides: A party may pr eser

ve a cl aim of

error by informing t

he

cou rt — when the court r uli ng or order i s made or sought — of the ac tion the p arty wishe s the co urt to After p rese nting his evidence, the government’s c ounsel stated, “I would just lik e to address the Court on the government’s vi ew on sentencing after we hea r from Mr. Gibson, Your Honor.” J.A. at35 (Sentencing Hr’g Tr. a t 5). This statement indicated t o the district court that the gover nment’s c ounsel wished to speak, b ut it did not inform the d istrict c ourt or de fense c ounsel of the gov ernment ’ s position regarding the downward-de parture motion. 2

A party “must ‘objec

t with that rea son able degree of specific ity whi ch would have adequately apprised the trial court of the tru

e basis for hi s objection.’” United States v. L eBlanc
, 612 F. 2d 101 2, 101 4 (6th Cir. ) (quo ting Unit e d State s v. Fendley , 522 F.2d 181, 186 (5th Cir. 1975)), cert

. denied
, 449 U.S. 849 (1980 ); see alsoFed. R. Cr im. P. 51(b). A specific objection provides the district court with an opportuni ty to addre ss the er

ror in th e first

instance and allows thi s court to

engage in more meaning ful review. The gov e rnment’s statements to the district court did not constitute a sufficiently a rticulated objection.

We hold that the government’s failure to object should not be excused in this case, and therefore, that weshould review the district court’s judgment for plain error. After reviewing the applicable procedural rul es andcircuit precedent, we conclude that th e dis trict court conducted the sentencing hearing in compliance with our existing preced en t. Federal Rule of Criminal Procedure (“Rule”) 51(b) 3 requires a party 10 United Sta tes v. Bos tic No. 02-6437

take, or the part y’s objection t o the court’s act ion and the groun ds f

or that objection. If

a party does not have

an opportunity to object to a rul ing or o rder, the absence of an o bjec tion do es no t late r pre judice t hat party. Fed. R. Crim. P. 51(b) (emphasis added ).

4 Rule 32 (i)(1) provid es: At sen tencing , the co urt:

. . . (C) must all ow th e part ies ’ at torn eys to comment on the probat ion offi cer’s determi nati ons and other matters relati ng to an a ppr opr iate sente nce . .

. . Fed. R. Crim. P. 32.

Rule 32 (i)(4)(A) pro vides: Be fore im pos ing sente nce, the cour t must: (i) provi de the de fenda nt’s att orney an opp ortun ity to spe ak on the de fenda nt’s beh alf; (ii) addre ss the de fenda nt pers ona lly in orde r to perm it the defendant to speak or p rese nt any information t o mitigate t he sentence; and (iii) provi de a n attorn ey for the gove rnme nt an opp ortun ity to s peak equ ival ent to t hat of th e defen dan t’s attorne y. Id . (emphasis added). to object in order to preserve an issue for review, but excuses the failure to object

if that pa rty had no opp ortunity

to do so. Rule 32(i) 4 requires the court to allow the defendant, counsel for the defe ndant, an d counse l f

or the g overnment each an opportuni ty to speak. T he case s that the government relies upon to supportits argument that its failure to object should be excused di ffer fr

om the ca se at bar in

an important respect

— in both of the cases cited

by the g overnment, the aggrieved party did not have notice of the issue prior to district court’s pronouncement

of the sentence, and thedistrict c ourt did not give the agg

rieved p arty

an oppor

tunity to object

after it pronounced

the sentence. United States v. Breeding , 109 F.3d 308, 3 10 (6th C ir. 1997) ; United States v. Hickey , 917 F.2dNo. 02-6437 United Sta tes v. Bos tic 11

5 U nlike the concurrence, we view more narrowl y the rul e announced in United States v. Hick ey , 917 F.2d 901 , 906 (6th Cir. 1990), in that i t requires t

he distri ct court to provide an opport unit y for the parti es to ob ject after pro noun cing the defen dan t’s sentenc e only when the parti es had no pr ior n oti ce of the act ion the distr ict court event ually t ook. In Hicke y , th e g ove rnme nt had spec ifically argue d “that its failure to [make an ob jectio n] is exc used

. . . beca use it had no reason t o suspect thata fine wo uld no t be imp osed until it was too late, i.e. , th e sen tenc e had already

been imposed.” Id . Similarly, in Breedi ng , the defendanthad spec ific ally arg ued, “The very first time there was menti on of the potenti al f

or a n additi onal f

ine .

. . occurred when the court imposed judg men t. It was clear at that ti me th at t he t ime f or argum ent was over .” United Stat es v. Breedi ng , 109 F.3d 30 8, 310 (6th Cir. 1997). 901, 906 (6th

Cir. 1990). 5 In thi s case, however, Bostic filed
a motio n for adownward departure prior to the sentencing hearin g, and th e gove rnment ha d an oppor

tunity to file opposition papers and to object when the government’s
couns el spo ke at t he sen tenci ng heari ng, yet the government failed to do either.

Inthis case , after

reviewi ng th e PSR, t he district court asked, “Now what do es the U.S. Attorney have to say about thi s?”J.A. at 34 (Sentencing H’rg Tr. at 4). Moreover, at the time the gov ernmen t was invited to speak, it was on notice that Bostic had moved for a downward depar ture; therefo re , the dist rict c ourt ga v e the government a meaningf ul opportuni ty to object to Bostic’s motion for a downward departure. It is tr

ue that the gove

rnme nt indic ated tha

t it would like to ad

dress the d istrict court later regarding the departure motion, and thereafter the gover nment was not explicitly given a n opportun

ity t o do so. The

district c ourt, however, gave the government an opportunity to speak regarding sentencing and never preve nted the gove rnment fromaddressing the departure issue, wh ich is all that our existing precedent required.

Alth ough we disagree with the concurr en ce’s re ading of our existing precedent and with its narrow unders tandin g of “opp ortunity

to object,” we think that the rule our colleague 12 United Sta tes v. Bos tic No. 02-6437

6 Due to the d ifficulty o f pa rsing a tr anscript to determine whether during a sent encing hearin g — which is typically somew hat less formal than a t

rial — a party had a meani ngfulopportunit y to object , we agree with

the c oncurrence that the best appro ach is for district courts, aft er pr onouncing the defendant’s sent ence but before adjourning the sentencing heari ng, t o elici t anyobjec ti ons not previously rai sed by the parties. “We can use our supe rvisory p owe rs to cre ate a p roce dura l rule

so long a s the rule d oes n ot con flic t with the C onstitutio n or a statute.” United States v. Wa ters , 158 F.3d 933 , 944 (6th Cir. 1998). In United States v. Jones, 899 F.2d 109 7, 11 02-0 3 (1 1th C ir.), cert. denied , 498 U.S. 906 (19 90)
, overruled on ot her grounds by United Stat es v. M orrill , 984 F.2d 1136 (11th Cir. 1993), the Eleventh Circuit exerci sed its supervi sory pow ers to ado pt a rule simila r to the o ne end orsed by the c onc urren ce in the case at bar. urges is a wise o ne. T herefore, we exercise our super visory powers over the di str ict courts and announce a new proceduralrule, requi ring district courts, after pronouncing the defendant’s sentence but beforeadjourning the sentencing h earin g, to ask the parties whether they have any objections to the sente

nce just pronounced that have not previously been raised. 6 If the district court fa ils to provi de the pa

rties with this opportunity, they

will nothave forfeited their objections and thus will not be required to demonstrate plain error on appeal. If a party

does not clearly

articulate any

objection and t he ground s upon whic

h the obje ction is ba sed, whe n giv e n this final opp ortunity

speak, then that party will have f orfeited its op po rt un it y to ma ke an y o bj ections not previously raised and thus will face plain error review on app eal. P rovid ing a final opportunity for objection s after the pronouncement of sentence, “wil l se rve the dual purpose[s] of permitting the distric tco ur t t o c or re ct on th e s po t a ny e rr or it ma y h av e made and of g

uidin g ap pellate review.” United States v. Jones , 899 F.2d 1097, 1102 (11th Cir.), cert. denied, 498 U.S. 906 ( 1990), overrule

d on other g

rounds by United Sta tes v

. Mo rrill
, 984 F.2d 1136 (1993). Requiring clear ar ticulat io n of any objection and the

groun d s therefor, “will aid the districtcourt in c o rrecting any error, tell the appellate court precisel y whic h objections have been preserved and whic h have been [forf eite d], and ena

ble the a ppellate court to a pplyNo. 02-6437 United Sta tes v. Bos tic 13

7 In a Rule 28(j) letter, dated Decemb er 1, 2003, the government

co nten ds that t

he Prosecutorial Remedies and To ols Against t he Exploi tat ion of Children Today Act of 2003 (“PROT ECT Act”), Pub. L. No. 108-21, 117 Stat . 650 ( 20 03) (“P ROT ECT Act”) § 401(d)(1)(C ), require s this court

to review de no vo a d istrict cou rt’s dec ision to g rant a downward dep arture. The governm ent did notarg ue t hat th e PROTECT A ct requi res de novo r evie w in a cas e wher e th e gover nment fai led t o object below , and al though we doubt that it does, we do not

decide th at issue in thi s appeal because we conc lude that t he dist rict court commit

ted plain error. the proper standard of review to those preser ved.” Id . a t 1102-03. This rule

applies only

prospectively , and bec ause we are re manding to the distr

ict cour t, this rule will apply at Bostic’s re-sentencing. United Sta tes v. W aters , 158 F.3d 933, 945 (6th Cir. 1998).

Becau se exis t ing precedent did not excuse the government’s failure to object, and because we conc lude that Bostic’s sentence must be vacated regardless of the

scope of
our review, we will review thedownwar d depart ure for plain
error. 7 See United States v. Barajas-Nunez
, 91 F.3d 826, 830 (6th Cir. 1996) . “A ‘pla

in error ’ is an er

ror th at is clear or obvious, and if it affects substantial rights, it may be noticed by an appe llate court.” Id

. C. Downward Departure

Onappeal, the government contends that the district court erred by s entenci

ng Bost ic to probation withoutfollowing the metho dolo gy

require d by

the se nte ncing guidelines and request s that

we vac ate Bos tic’s sen

tence a nd reman d this
casefor re- sente ncing. The gov ernment points out that at the sentencinghearing, the district court did not state the number of level s it w as dep artin g do wnward or discuss the spec ific
reaso ns why it thought probation wa s reasonable. The government

next argues that the district court erred by failing to determine whether Bostic’s ag e and inf irmi ties made

his
caseexc eptional and would make i ncarceration inefficient and
co st ly. The government

requests that on remand Bostic be 14 United Sta tes v. Bos tic No. 02-6437

required to support his downward-de partu re motion w

ith competent

medical evidence, and that the district court be required to determine whe ther Bostic’s impairments are exceptional, w hethe r the Bureau of Prisons (“BOP”) c an accommo date Bostic’s impa irm ents, and “whethe r home confinement

may be more effic ient and less costly.” Appellant’s Br. at 27. Finally, the g overnment argues that the districtcourt abused its discre tion in granting a downward depar ture based upon the present record. The g overnment points out that Bostic was only hospitalized once in May 2002 for atrial fibrillation, that after hospi tali zation Bostic
was in stable

condition, and that as of sentencing Bostic had experienced

no recurr ence of his condition. The government further notes that Bostic’s ag e d id not limit his criminal
ac ti vi ty, and that t

he distric t court’s threat to incarc erate Bosticfor a probation violation indicates that the district court considered imprisonment a viable sentencing option.

Instead of countering the government’s arguments that the districtcourt failed to follow the methodology required by the sentencingguidelines, Bostic a rgues that the government’s failure to object to the do wnw ard departure indicated to the districtcourt that the government agre ed with the court’s
me th od ol og y. Bostic a

lso points o

ut that the

dis t rict court made the factual findings that imprisonme

nt would a

dversel y affect Bost ic’s li fe expectancy due to his a

ge and infirmity and that Bost

ic will n eed medi cal atte

ntion and p eriodic hospitalization; Bosti c argu es that these findings were
reasona ble and w ere permissible bases for departure unde r the sentenc ing gu

idelines.

The firs t two factors that a n appella nt must prove in order to obtain reversal under plain error re view are (1) tha t the districtcourt er

red an d (2) that the error was plain. United States v. Olano , 507 U.S. 7 25, 732-3 4 (1993); see also United States v. Koeberle in , 161 F.3d 946, 949 (6th Cir. 1998), cert. denied , 526 U.S. 1030 (1999).No. 02-6437 United Sta tes v. Bos tic 15

At sentencing, the district court stated that it was granting
a downward departure, “[b]e cause of [Bostic’s] age and because of [Bostic’s] infirmity and because of [Bos ti c’s] health,” but did not specify the number of levels it was depart ing. J.A. at 37 (S e ntenc ing H’rg Tr. at 7). The calculations inthe PSR, which the district court adopted, set Bostic’s total off

ense level at nineteen. To sentence Bostic as it did, to probation without home co nfinem ent, the district court had to reduce Bostic’s offense leve l to eight, which is an eleven-leveldeparture. See U.S.S.G. Ch. 5 Pt. A; U.S.S.G. § 5B1.1(a).

A district court’s decision to depart downward is controlled by the following sta

tutory provision: (1) IN GENERAL

. — Exc ept as provided in paragraph (2), the court shall impose a sentence of the k ind, and within th e r an ge [d et er mi ne d b y t he guideli nes] unles s the court finds that there exists an aggrava ting o r mitigating circumst

ance of a kind, or to a degree, not adequa tely taken int o c onsideration by the Sentenc ing Commission in for mulat ing t he gu idelines t hat should result in a sentence different from that descr ibed.

18 U.S.C. § 3553(b). To sentence a defendant outside of the guideline range, thedistrict court must deter

mine that t

he case falls outside of the heartland of cases in the guideline range

. Koon v. United States , 518 U.S. 81, 98 (1996). The defendant has the burden of

pr oving tha

t a downwa

rd depar ture is warranted. United States v. Rutana , 932 F.2d 1155, 1159(6th Cir.), cert. denied, 502 U.S. 9 07 (1991) . In order to determine that a

case falls outside of

the heartland, the district court mus t conduct “a r

efined a ssessmen

t of the ma

ny f acts be aringon the outcome, informed by [the district co urt’s ] vanta ge po in t a nd da y-t o- da y expe rience in criminal sentencing.” Koon , 518 U.S. at 98. Furthermore, the district
co u rt must deter

mine the size of the d

epartur e by tyin g it to the structure of

the sentencing guidelines, and the size of the departu re must be reasonable given the factors se ntencing 16 United Sta tes v. Bos tic No. 02-6437

8 Bo stic’s sent ence w as det ermi ned us ing the 2001 vers ion of the United States Sentencing G uidelines ( “U.S .S.G .”), and neither p arty objected on appeal to t

he us e of t

hat vers ion; the ref

ore, we do not

addre ss the propriety of applying that versi on. courtsare re quired to

consider and the f

acts of th e case. United States v. Crous e , 145 F.3d 786, 792 (6th Cir. 1998); see also 18 U.S.C. § 3742(e)(3)(C).

Under the sent encin g guidelines, age a nd health are disfavored

factors that the district court may use as ba ses for granting a downw ard departure only in exceptional circumst ances. See U.S.S.G. §§ 5H1.1 and 5H1.4. 8 Section 5H1.1 provides: Ag e (includin

g y outh) is no t ordinar

ily r elevant i n determiningwhether a sentenc e shou ld be outside the applica ble guideli

ne rang e. Age

may be a

reason t o impose a s entence

below the

applica ble guidel ine ran ge when the defe

ndant i s el derly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration

. (emphas is added) . Section 5 H1.4 prov ides: Physical condition or appearance, including physique, is notordinarily rele

vant in determining whether a sentence should be outside the app li cable guideline range

. However, an extraordinary phy sical impairment may be
a reason to impose a sentence below the applicabl e guideline range ; e.g. , in the cas e of a seriously infirm defendan t, home det

ention ma y be as effici ent as, and less costly than, imprisonment

. (emphas is added). As these provisi ons make clear, age and physical condition are not prohibited considerations, but they
are disco urage d f

actors that justify a downward departure only in extraor

dinary situations

. U.S.S.G. §§ 5H1.1, 5H1.4. Moreover, the se provision s requir e the distr

ict cour t toNo. 02-6437 United Sta tes v. Bos tic 17

consider the rela

ti ve costs a

nd effic iency

of home confinement and imprisonment. Id

. In United States v. Johnson , 71 F.3d 5 39, 544-4 5 (6th Cir. 1995), cert. d

enie d , 517 U.S. 1113 (1996), we vacated the defendant’s sentence upon another ground, but also directed the district court on remand to make more specific findi ngs regarding whether the defe ndant’s medical c ondit ion was extraordinary

and whet her the B OP coul d accommodate the defenda nt. The sixty-five-y

ear-old defenda

nt i n Johnson provided evidenc e of his me dical condit ion in the form of a letter from his a

ttending phy sician, w

ho diag nose d th e d efendant “with dia

betes, hy pertens ion, hy

pothy roidis m , ulcer s, potassium l osing en teropat hy, and reactiv e depression,” and a letter from his psychiatrist, whodiagnosed the defendant “wi t h major depressive disorder.” Id

. Ad di ti on al ly, both doctors were prescr i bing medication for the defendant an d b elieved that inca

rcera tion would detrimen tally affect the defendant’s health. We noted “that an aged defendant with a multitude of health probl em s may qualify for a downward departure und e r § 5H1.4[, but] such downward

departures arer are.” Id . at 545. We also stated that o n reman d more evidence than the two doctors’ letters

m igh tbe necessary

to enable the district court make the required findings. Id

. Si mi la rl y, in United States v. Tocco , 200 F.3d 401, 434-35 (6th Cir. 2000), we vacated the defendant’s sen tence upon another ground, but also directed the district court on remand to make more specific findings reg arding whether the defendant’s medic al conditi on wa s ext raor dinary and whe

ther the BOP could

ac co mm od at e t he de fe nd an t. Th e s ev en tytwo-y ear-ol d defendant in Tocco had “arter io sclerotic disease, coronary artery disease , hy

pertens ion, rena

l in su ff ic ie nc y, labry nthitis, and diver

ticulosis, ” and “r

equired ‘period ic monitoring.’” Id . at 434. We criticized the district court for relying solely upon the defe

ndant’s PSR whenit gran ted a four-level departu

re due to the defendant’s age and he alth. Id

. Ad di ti on al ly, in Tocco , we noted that the defe ndant ’s “age 18 United Sta tes v. Bos tic No. 02-6437

9 As in Johnson and Tocco , we think it is appr opriate for the dist rict cour t to “ob tain independent and com peten t med ical evid ence to determine the extent of [defendant’s] infi rmities and t he pris on system’s ability or inab ility to accommodate him. ” United States v. Tocco , 200 F.3d 401, 435 (6th Cir. 2000) (citi ng United Stat es v. John son , 71 F.3d 539, 545 (6th Cir. 1995)). alone should not be considered as a basis for a substantial downward

departure,” because the evide nce showed

that the defendant remained active in the community

. Id

. By way of c ontrast, in United Sta tes v . Sabino
, 274 F.3d 1053, 1078-79 (6th Cir. 2001), we upheld a thre e-level down ward

departu re that w as based

upon seve

ral facto rs , including age. The seventy -two-yea r-old defendant

in Sabino had “physical def

iciencies . . . , partic

ularly ailments w

ithhis eyes and ears.” Id . at 1079. In uphol d ing the downward departure, we reasoned that the departure was small and

based uponseveral factors, including “thedeath of [the defe ndant’s] wife a few mon

ths befor e senten cin g; [the defend ant’s ] age (72) at the time of sentencing; his physical deficiencies . . . ; the absence of

any phy sical threat to others; the absenceof a risk of flight; and

the conclusion that [the defendant] playe d a minor role in the conspiracy .” Id

. Here, the dist

ric t court effectively

granted an eleven-leve l downward

departu re base d upon Bo stic’s age and inf irmities. As Tocco makes clear, age alone cannot justify a substantial downward

departure. Tocco , 200 F.3d at 43 4. Ad di ti on al ly, the district c ourt gr

anted the downwar d depart ure base d only uponon e l et te r f

ro m B os ti c’ s t re at in g p hys icia n and the Physical Condition section of the PSR. Although numerous “ph ysi cal infirmities” might justify a downwa rd departure, Johnson and Tocco indicate that a doctor’s letter and th e “Physical Condition” section of

t he PSR are not sufficient evidence to justify a downward de parture. 9 Finally , the d i strict court made no findings regar ding whether Bostic’s
caseis extraor

dinary, whethe

r the BO P could ac commodat e B ostic, and whether home confinement would be eq uall yNo. 02-6437 United Sta tes v. Bos tic 19

efficient and less costly. There fore, the district court erred by granting an eleven-level departure without suf fici ent evidence. If upon remand t he evidence shows that Bostic’s
casewarran

ts a departure, the district court must still find that the reasons justify the mag nitude of the departure selected. Crouse , 145 F.3d at 792. Johnson and Tocco do not fore close the possibility that Bostic’s age and infirmities war

ranta departure; how ever, it seems unlikely that his infirmities warrant an eleven-level departure. Be cause the case law requiringdistrict c ourts to make the above factua l find ings and to justify the mag

nitude of a departure predates B ostic’s sentenc ing, and becau se the district cou rt utterl y failed to do either, the district court’s error was plain.

The final fac tors that a

n appella nt must prove in orde

r to obtain reversal under plain error review are (3) that the error affected substan ti al righ

ts and (4) that “the error s eriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Olano
, 507 U.S. at 734-37 (quotation omitted); see also Ko eberlei n , 161 F.3d

at 949. A sentencing
error affects substantial rights when “it affects the outcome of the case by

substantia

lly reducing the defendant’s sentenc e.” Barajas-N

unez , 91 F.3d at 833. And a sentencing error that leads to a substantial departure affects the fairne s s an d int egrity of judicial proceedings because “ [p]ermitting sentencingcourts to

disreg ard governing

law would

diminish the integrity a

nd public reputation of the judicial system [and] also would diminish the fairness of the c riminal sentencing system by imposing

a significantly smaller

sentence on” one defendant than it would have upon a different defendant who
co mmitted the same crime under similar circumstances. Id

. Moreover, suchdispariti es “woul d fly in the fac e of one of the primary purposes of the sentencing guidelines — the elimination of disparities in sentencing.” Id

. Here, the dist

rict c ourt erred by

granting a downward departure without making the req uisi te factual findings, and thi s error affected the government’ s and the United States citizens’ substanti a l rights because it drastically reduced 20 United Sta tes v. Bos tic No. 02-6437

10 On remand, the distri ct court should consider whe ther § 401 of the PROTE CT Act, parti cularly subse ctions (e) and ( g), appl ies ret roac tively and limits its di scretion at r e-sentencing, and if releva nt , addre ss in the fir st i nstan ce any cons tit uti onal problems those limitat ions might rais e. Bostic’s sentence from a term of imprisonment to a te rm of probation. See id. This erro r al so affected the fairness and integr ity of judicial proceedings becau s e the district court disregarded

the appli cable se

nte n cing g

uideline s and cas e law, an d b ec au se Bo st ic re ce iv ed a s ig ni fi ca nt ly sma ller senten ce than might have been imposed upon a different defendant who committed the same crime under similar circumstances. See id

. Becau se the distri ct court imposed B ostic’s se

ntence i n violation of the m ethodology r equired by the se

ntencing g uid elines and applicable case law, we must vaca te and remand. 10 See id

. at 834 (noting that district court’s failure to justify the extentof a departuremakes the decision virtually unreviewable).

III. CONCL USION

We conclude that the district court committed plain error by granting an eleven-l eve l downward departure without ty ing the departure to the framework of the sente ncing guidelines
or mak ing th e required findings of fact. Ther efore, we VA CATE Bostic’s sentence and REMAND for re

sente ncing.No. 02-6437 United Sta tes v. Bos tic 21

____________________ CONCURRENCE

____________________ RYAN, Ci rcu it Ju dge , co ncu rri ng. Wh il e I agree that the defendant’s sentenc e sh ould be vacated, I do not join in the majority’sholding t

hat the g overnme

nt waived its objection to the defe

ndant’s s entence . In my

view, the sentenc e should be vacate d and th e caseremande d for re sentenc ing bec ause the prosecutor was not given a reasona ble op port unity to be heard at t he sente

ncing hearing

in order to articu late his objectionto the radical downward departure the de fendant was seeking and ultimately received.

At the very outset

of the sentencing hearing, the prose cutor acknowledged

that the def

endant had filed a motion for a downward

departure and asked that

he be allowed

to addre ss the court regarding the government’s positionon sen tenci ng. He was never g iven that opportunity. Following the government’s request to be heard, the district co urt engaged ina colloqu

y with th e defen dant and his attorney. I n the midst of that colloquy, and without affor ding the Assistant U.S. Attorney

an oppor

tunity to speak, the distri ct j udge granted the motion for a downward departure, impose d the sentence, and abruptly

left the bench. My sister has characterized the prosecutor’s r equest to be heard as being limited to an evidentiary matter concerning the defendant’s offense conduct and that the gov ernment’s request gave no indication that it objected to the defendant’s motion for a d ownward departu re. Resp ectfully

, she is mistaken. After

the governm ent introduced its evidence
conce rn ing the defendant’s offense conduct, the prose cutor informed the court that he wanted to be heard on y et another matter, stating

as follo ws: “I would just like to address the Courton the government’s view on sentencing a fter we hear from [defense counsel], Your Honor.” 22 United Sta tes v. Bos tic No. 02-6437

Our preced ent is cle ar, that

incases such

as this, “where the districtcourt fails to provide an opportun it y f or objections after the pronouncement of a sentence, waiver should not be found. ” United States v. Breeding , 109 F.3d 308, 310 ( 6th Cir. 1997). Moreover, where there is an e xplicit grant of authority for challeng ing a sentence and where the government

does not have an oppor

tunity to object following the pr onouncement of sentence, there is no waiver. United States v. Hickey , 917 F.2d 901, 906 (6th Cir. 1990). In th e casebefore

us, the explicit grant of authority f or challenging the defendant’s sentence is found in 18 U.S.C. § 3742(b)(3), which sta tes the fo llowing:

The Government may f

ile a notice of a

p peal in the districtcourt for revie

w of an ot herwise final sen tence if the sentence— (3) is less than the sentence specified in the applica

ble guideline range

to the extent thatthe sente nce incl udes a lesser . . . term of imprisonment, probation, or supervised releas e than the minimum established in the guideline range . . . .
18 U.S.C. § 3742(b)(3). There is no dispute that the sentence imposed is below “the minimum established in the guideline range.” Id. Becau se there is an explicit grant of authority for challenging

the defendant’s sentence and bec ause the prosecutor

was no t given a reasonable opportunity to object to the downward departure, the government did not wa

ive its right to appeal this issue. The pro sec utor made it very c lear that he wishe d an oppor

tunity to addre ss t

he court in opposition to defen se counsel’s request for leniency . He was not obligated to reassert his request by repeating himself, by interruptingthe trial

judge in

th e midst

of pronouncing sentence, or by atte mpti ng to ca ll th e judge back to the bench
as he was leaving. There is no rule of law or practice , o f whichI am aware , tha t require s the pros ecutor t o repea t his request to be heard, or face, a s in this ca se, an ap pellate adjudication that the issue is waived.No. 02-6437 United Sta tes v. Bos tic 23

Withall due r

esp ec t to my

colleag ues who se e it di ff er en tl y, the rec ord of thi s case do es not call for the preparation

of a lengthy

published opinion, creating a new, rigid rule of sentencing law

that further narrows and

restricts the relative ly li

mite d discretion left to trial judges under the SentencingGuidelines. Th e Federal Rules of Criminal Procedure and our existin g case precedent sufficiently set forth the duti es of the district court at sentencing and I strongl y object to the adoption under our “supervisory power” of still another uncodified “procedural rule” telling district judges w hat to inc ant after

sentencing a person.

This case appears to be nothing more than a n unchara cteristi c and inadvertent mistak e by a highl y respec ted districtjudge, who has cond uct ed more rule-conforming sentencingproceedings in an exemplary

fashion than he or we
can co un t. Ve ry l ikely, he simply forgot to do what he regula rly does: ask

both counsel if they

had anything

further to say. I n my view, the prosec

utor adequately

put the district court on notice that the government objected to the motion for
a downward departure. Accordingly, the proper standard of review is abuse o f disc reti on. United States v. Tocco , 200 F.3d 401 , 432 (6 th Cir. 2000). I conclude that the district court abused its discretion by imposing a sentenc e w ithout first givingthe prosecutor

an oppor tunity to addre ss the cou

rt, after beingearlier

advised by the prosec

utor that he “would just lik e to address the Court on the government’s view on sentencing . . . .” The only appropr

iate remedy

is to vaca te the sentence and remand for resentencing.