1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0182P (6th Cir.)

File Name: 04a0182p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

HENRY A. BOSTIC,

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 

Before: MARTIN, RYAN, and MOORE, Circuit Judges.

_________________

COUNSEL

ARGUED: David C. Jennings, ASSISTANT UNITED

STATES ATTORNEY, Knoxville, Tennessee, for Appellant.

John O. Gibson, Loudon, Tennessee, for Appellee.

ON BRIEF: David C. Jennings, ASSISTANT UNITED

STATES ATTORNEY, Knoxville, Tennessee, for Appellant.

John O. Gibson, Loudon, Tennessee, for Appellee.

2 United States v. Bostic No. 02-6437

MOORE, J., delivered 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

government, with the approval of the Solicitor General,

appeals from the sentence imposed by the district court on

Henry Alvin Bostic (“Bostic”). Pursuant to a written plea

agreement, Bostic pleaded guilty to firearms charges. At

Bostic’s sentencing hearing, the district court granted a

downward departure under United States Sentencing

Guideline (“U.S.S.G.”) § 5H1 “[d]ue to the defendant’s age,

infirmity and poor health.” Joint Appendix (“J.A.”) at 28.

On appeal, the government argues that the district court erred

in granting this downward departure because (1) the district

court failed to sentence Bostic in accordance with the

framework of the sentencing guidelines; (2) the district court

failed to determine that Bostic’s age and infirmities made his

case exceptional and would make incarceration inefficient and

costly; 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-sentencing.

I. BACKGROUND

The Bureau of Alcohol, Tobacco and Firearms (“ATF”)

investigated Bostic from June 9, 2000 through June 5, 2002.

During this period, Bostic “regularly and willfully engaged in

the business of selling firearms,” but “did not have, and has

never had a federal firearms license.” J.A. at 46 (Presentence

Report (“PSR”) ¶ 14). Over the course of this investigation,

“ATF special agents and confidential informants purchased a
No. 02-6437 United States v. Bostic 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 firearms 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 was also

“observed selling more firearms than those purchased by the

ATF.” J.A. at 47 (PSR ¶ 16).

“On June 27, 2001, an ATF special agent sent [Bostic] a

certified letter advising [him] of the federal firearms laws,

including the provision prohibiting a person who is not a

federal firearms licensee from engaging in the business of

dealing in firearms.” J.A. at 47 (PSR ¶ 18). On June 30,

2001, Bostic signed a return receipt indicating that he had

received the letter. On July 5, 2001, an informant went to

Bostic’s house and purchased a firearm from Bostic. At that

meeting, Bostic told the informant about the warning letter

that he had received from the ATF regarding his firearms

dealing.

On June 5, 2002, a grand jury returned a nine-count

indictment charging Bostic with various firearms offenses.

Count One of the indictment charges Bostic with willfully

engaging in the business of dealing in firearms without a

license, including but not limited to the guns identified in the

remaining counts of the indictment, “from on or about June 9,

2000, up to and including June 5, 2002,” in violation of 18

U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D). J.A. at 5

(indictment). Count Two of the indictment charges Bostic

with knowingly selling and disposing “of firearms, that is, a

Lorcin .22 caliber pistol and a North American Arms minirevolver,” to a person while knowing that person 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 Three through Nine charge Bostic “with

sales of specific firearms on specific dates to persons whom

[Bostic] knew, or should have known, were convicted felons,

in violation of 18 U.S.C. §§ 922(d)(1) and 924(a)(2).”

Appellant’s Br. at 2.

4 United States v. Bostic No. 02-6437

On June 6, 2002, ATF agents arrested Bostic and searched

his residence pursuant to a warrant. During that search, ATF

agents seized six firearms. Bostic told ATF agents that “he

had bought, sold and traded firearms for approximately 20

years.” J.A. at 47 (PSR ¶ 20). Bostic also told ATF agents

that he had received the warning letter “and understood the

letter to mean he could not buy and sell numerous firearms

without a license.” J.A. at 47 (PSR ¶ 20). According to the

PSR, Bostic “stopped buying firearms that required filling out

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 the government

entered into a written plea agreement whereby Bostic agreed

to plead guilty to Counts One and Two of the indictment, and

the government agreed to dismiss Counts Three through Nine

of the indictment and not to oppose a three-level reduction in

offense level for acceptance of responsibility. On August 19,

2002, Bostic pleaded guilty to Counts One and Two.

On September 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, possibly including home detention, instead of

prison due to his advanced age (eighty-two) and his poor

health (emphysema, anemia, and coronary artery disease). In

support of his motion, Bostic filed a letter from his treating

physician, John D. Arnett, M.D., which states:

At this time [Bostic] remain[s] in stable condition. He,

however, has serious underlying medical problems.

It is my understanding from discussion with [Bostic’s

attorney] that he is facing approximately two years in

prison for selling guns without a license. At this time

imprisonment would adversely affect his life expectancy

and also his health. Due to his coronary artery disease I

would expect him to have more recurrences of his atrial
No. 02-6437 United States v. Bostic 5

fibrillation. He will be under medical therapy for the

remainder of his life and we can reasonably expect that

there will be intermittent periods of hospitalization.

J.A. at 18. This letter is the only medical evidence — indeed

it is the only evidence — that Bostic introduced in support of

his motion.

In Bostic’s PSR, prepared on October 10, 2002, the

probation officer assigned Bostic a base offense level of

fourteen in accordance with U.S.S.G. § 2K2.1(a)(6). The

probation officer recommended a six-level increase pursuant

to U.S.S.G. § 2K2.1(b)(1)(C) because Bostic sold between

twenty-five and ninety-nine firearms, in that Bostic sold

twenty-four firearms to informants and undercover ATF

agents, possessed six firearms at the time of his arrest, and

was observed selling additional firearms over the course of

the investigation. The probation officer recommended an

additional two-level increase pursuant to U.S.S.G.

§ 2K2.1(b)(4) because at least one of the firearms Bostic sold

had an obliterated serial number. The probation officer

recommended a three-level downward adjustment for

acceptance of responsibility. Bostic had no criminal history

points, and thus was assigned a criminal history category of

I. Accordingly, the probation officer recommended a total

offense level of nineteen, and calculated Bostic’s guideline

range to be thirty to thirty-seven months of imprisonment,

with a fine between $6,000 and $60,000, and a special

assessment of $200. Bostic’s guideline range, however, was

located in “Zone D”; therefore, Bostic was not eligible for

probation under U.S.S.G. § 5B1.1(a).

In the “Physical Condition” section of the PSR, the

probation officer reported:

[Bostic] is treated by John D. Arnett, M.D., Knoxville,

Tennessee. [Bostic] has atherosclerotic cardiovascular

disease, anemia, asbestosis, hypertension, type-II

diabetes and chronic obstructive pulmonary disease from

6 United States v. Bostic No. 02-6437

tobacco use. He is prescribed Ranitidine, Combivent,

Serovent, Cordarone, and Hyzaar. The Cordarone is

prescribed for atrial fibrillation. The defendant

underwent left heart catheterization on May 14, 2002.

J.A. at 50 (PSR ¶ 51). Then, in the “Factors that May

Warrant Departure” section of the PSR, the probation officer

noted,

[Bostic] is 82 years old and has numerous health

problems. Pursuant to USSG § 5H1.1, “Age may be a

reason to impose a sentence below the applicable

guideline range when the defendant is elderly and infirm

and where a form of punishment such as home

confinement might be equally efficient as and less 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 sentencing hearing, on November 6, 2002, the

government’s counsel mentioned the defendant’s downwarddeparture motion but failed to make an explicit objection.

After acknowledging that Bostic pleaded guilty to Counts

One and Two, the district judge read the maximum penalties

for those counts. The district court then asked Bostic whether

he had read the PSR and whether the PSR was accurate;

Bostic responded in the affirmative. The court and the

government’s counsel then engaged in a brief exchange,

during which the government’s counsel stated that he would

like to present evidence regarding Bostic’s offense conduct

before the court ruled on Bostic’s downward-departure

motion. The government’s counsel then introduced the ATF

warning letter, played a tape of the conversation during which

Bostic mentioned the letter, and introduced a transcript of that

tape. After introducing this evidence, the government’s
No. 02-6437 United States v. Bostic 7

1

Although it is not reflected in the sentencing hearing transcript,

Bostic contends “that the [Assistant U.S. Attorney] left the Courtroom

before the Judge left the bench.” Appellee’s Br. at 2.

counsel stated that he would like to address the issue of

sentencing after Bostic’s counsel had an opportunity to speak.

Following the government’s introduction of evidence

regarding the offense conduct, Bostic did not introduce any

additional evidence supporting his motion for a downward

departure. When the district judge asked what Bostic’s

medical problems were, Bostic’s counsel stated, “[Bostic] has

emphysema and heart trouble, Your Honor.” J.A. at 36

(Sentencing Hr’g Tr. at 36).

The district court then granted a downward departure and

sentenced Bostic “to five years of probation on each count to

run concurrently” and a $6,000 fine. J.A. at 37. After

explaining the conditions of Bostic’s probation, the district

court accepted the plea agreement, dismissed Counts Three

through Nine, clarified the due date of the fine, and adjourned

the sentencing hearing. The district court did not explicitly

give the government an opportunity to object after it

pronounced Bostic’s sentence, nor did the government’s

counsel interrupt the district judge to object. On

November 13, 2002, the district court entered a Judgment and

Commitment Order detailing Bostic’s sentence.

1

 The

government filed a timely notice of appeal.

II. ANALYSIS

A. Jurisdiction

The district court had jurisdiction pursuant to 18 U.S.C.

§ 3231 because Bostic was charged with offenses against the

laws of the United States. This court has jurisdiction over the

appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b).

8 United States v. Bostic No. 02-6437

B. Standard of Review

The government asserts that, although 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 opportunity to 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 because it

adequately objected or because it was not given the

opportunity to object.

We conclude that the government failed to object

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

downward departure. Bostic filed a motion for a downward

departure on September 28, 2002. The government did not

file any papers opposing that motion. At the sentencing

hearing on November 6, 2002, after questioning Bostic about

the PSR, the district court asked, “Now, what does the U.S.

Attorney have to say about this?” J.A. at 34 (Sentencing H’rg

Tr. at 4). In response, the government’s counsel stated,

Your Honor, as the Court is I am sure aware, Mr.

Gibson [Bostic’s counsel] has filed a motion for

downward departure pursuant to 5K2 based on the

defendant’s age, his health and he has attached several

letters from members of the community asking the Court

not to imprison him. Before the Court rules on that

motion, I have a very brief evidentiary matter I would

like to present to the Court.

J.A. at 34 (Sentencing Hr’g Tr. at 4). The evidentiary matter

to which the government’s counsel was referring concerned

the offense conduct, not Bostic’s motion for a downward

departure. This statement indicated to the district court that

the government was aware of Bostic’s motion, but the

government’s statement did not inform the district court or

defense counsel whether or not the government opposed the

downward-departure motion.
No. 02-6437 United States v. Bostic 9

2We find it somewhat incredible that the government was able

to mention at the sentencing hearing Bostic’s motion for a downward

departure — without stating that it opposed such a departure — and now

claims on appeal that it was not given an opportunity to object to that

motion.

3

Rule 51(b) provides:

A party may preserve a claim of error by informing the

court — when the court ruling or order is made or

sought — of the action the party wishes the court to

After presenting his evidence, the government’s counsel

stated, “I would just like to address the Court on the

government’s view on sentencing after we hear from Mr.

Gibson, Your Honor.” J.A. at 35 (Sentencing Hr’g Tr. at 5).

This statement indicated to the district court that the

government’s counsel wished to speak, but it did not inform

the district court or defense counsel of the government’s

position regarding the downward-departure motion.2

A party “must ‘object with that reasonable degree of

specificity which would have adequately apprised the trial

court of the true basis for his objection.’” United States v.

LeBlanc, 612 F.2d 1012, 1014 (6th Cir.) (quoting United

States v. Fendley, 522 F.2d 181, 186 (5th Cir. 1975)), cert.

denied, 449 U.S. 849 (1980); see also Fed. R. Crim. P. 51(b).

A specific objection provides the district court with an

opportunity to address the error in the first instance and

allows this court to engage in more meaningful review. The

government’s statements to the district court did not

constitute a sufficiently articulated objection.

We hold that the government’s failure to object should not

be excused in this case, and therefore, that we should review

the district court’s judgment for plain error. After reviewing

the applicable procedural rules and circuit precedent, we

conclude that the district court conducted the sentencing

hearing in compliance with our existing precedent. Federal

Rule of Criminal Procedure (“Rule”) 51(b)3 requires a party

10 United States v. Bostic No. 02-6437

take, or the party’s objection to the court’s action and

the grounds for that objection. If a party does not have

an opportunity to object to a ruling or order, the

absence of an objection does not later prejudice that

party.

Fed. R. Crim. P. 51(b) (emphasis added).

4

Rule 32(i)(1) provides:

At sentencing, the court:

. . .

(C) must allow the parties’ attorneys to comment on

the probation officer’s determinations and other

matters relating to an appropriate sentence . . . .

Fed. R. Crim. P. 32.

Rule 32(i)(4)(A) provides:

Before imposing sentence, the court must:

(i) provide the defendant’s attorney an opportunity

to speak on the defendant’s behalf;

(ii) address the defendant personally in order to

permit the defendant to speak or present any

information to mitigate the sentence; and

(iii) provide an attorney for the government an

opportunity to speak equivalent to that of the

defendant’s attorney.

Id. (emphasis added).

to object in order to preserve an issue for review, but excuses

the failure to object if that party had no opportunity to do so.

Rule 32(i)4 requires the court to allow the defendant, counsel

for the defendant, and counsel for the government each an

opportunity to speak. The cases that the government relies

upon to support its argument that its failure to object should

be excused differ from the case at bar in an important respect

— in both of the cases cited by the government, the aggrieved

party did not have notice of the issue prior to district court’s

pronouncement of the sentence, and the district court did not

give the aggrieved party an opportunity to object after it

pronounced the sentence. United States v. Breeding, 109 F.3d

308, 310 (6th Cir. 1997); United States v. Hickey, 917 F.2d
No. 02-6437 United States v. Bostic 11

5

Unlike the concurrence, we view more narrowly the rule

announced in United States v. Hickey, 917 F.2d 901, 906 (6th Cir. 1990),

in that it requires the district court to provide an opportunity for the

parties to object after pronouncing the defendant’s sentence only when the

parties had no prior notice of the action the district court eventually took.

In Hickey, the government had specifically argued “that its failure to

[make an objection] is excused . . . because it had no reason to suspect

that a fine would not be imposed until it was too late, i.e., the sentence

had already been imposed.” Id. Similarly, in Breeding, the defendant had

specifically argued, “The very first time there was mention of the

potential for an additional fine . . . occurred when the court imposed

judgment. It was clear at that time that the time for argument was over.”

United States v. Breeding, 109 F.3d 308, 310 (6th Cir. 1997).

901, 906 (6th Cir. 1990).5 In this case, however, Bostic filed

a motion for a downward departure prior to the sentencing

hearing, and the government had an opportunity to file

opposition papers and to object when the government’s

counsel spoke at the sentencing hearing, yet the government

failed to do either.

In this case, after reviewing the PSR, the district court

asked, “Now what does the U.S. Attorney have to say about

this?” J.A. at 34 (Sentencing H’rg Tr. at 4). Moreover, at the

time the government was invited to speak, it was on notice

that Bostic had moved for a downward departure; therefore,

the district court gave the government a meaningful

opportunity to object to Bostic’s motion for a downward

departure. It is true that the government indicated that it

would like to address the district court later regarding the

departure motion, and thereafter the government was not

explicitly given an opportunity to do so. The district court,

however, gave the government an opportunity to speak

regarding sentencing and never prevented the government

from addressing the departure issue, which is all that our

existing precedent required.

Although we disagree with the concurrence’sreading of our

existing precedent and with its narrow understanding of

“opportunity to object,” we think that the rule our colleague

12 United States v. Bostic No. 02-6437

6

Due to the difficulty of parsing a transcript to determine

whether during a sentencing hearing — which is typically somewhat less

formal than a trial — a party had a meaningful opportunity to object, we

agree with the concurrence that the best approach is for district courts,

after pronouncing the defendant’s sentence but before adjourning the

sentencing hearing, to elicit any objections not previously raised by the

parties. “We can use our supervisory powers to create a procedural rule

so long as the rule does not conflict with the Constitution or a statute.”

United States v. Waters, 158 F.3d 933, 944 (6th Cir. 1998). In United

States v. Jones, 899 F.2d 1097, 1102-03 (11th Cir.), cert. denied, 498 U.S.

906 (1990), overruled on other grounds by United States v. Morrill, 984

F.2d 1136 (11th Cir. 1993), the Eleventh Circuit exercised its supervisory

powers to adopt a rule similar to the one endorsed by the concurrence in

the case at bar.

urges is a wise one. Therefore, we exercise our supervisory

powers over the district courts and announce a new

procedural rule, requiring district courts, after pronouncing

the defendant’s sentence but before adjourning the sentencing

hearing, to ask the parties whether they have any objections

to the sentence just pronounced that have not previously been

raised.6 If the district court fails to provide the parties with

this opportunity, they will not have 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

the grounds upon which the objection is based, when given

this final opportunity speak, then that party will have forfeited

its opportunity to make any objections not previously raised

and thus will face plain error review on appeal. Providing a

final opportunity for objections after the pronouncement of

sentence, “will serve the dual purpose[s] of permitting the

district court to correct on the spot any error it may have

made and of guiding appellate review.” United States v.

Jones, 899 F.2d 1097, 1102 (11th Cir.), cert. denied, 498 U.S.

906 (1990), overruled on other grounds by United States v.

Morrill, 984 F.2d 1136 (1993). Requiring clear articulation

of any objection and the grounds therefor, “will aid the

district court in correcting any error, tell the appellate court

precisely which objections have been preserved and which

have been [forfeited], and enable the appellate court to apply
No. 02-6437 United States v. Bostic 13

7

In a Rule 28(j) letter, dated December 1, 2003, the government

contends that the Prosecutorial Remedies and Tools Against the

Exploitation of Children Today Act of 2003 (“PROTECT Act”), Pub. L.

No. 108-21, 117 Stat. 650 (2003) (“PROTECT Act”) § 401(d)(1)(C),

requires this court to review de novo a district court’s decision to grant a

downward departure. The government did not argue that the PROTECT

Act requires de novo review in a case where the government failed to

object below, and although we doubt that it does, we do not decide that

issue in this appeal because we conclude that the district court committed

plain error.

the proper standard of review to those preserved.” Id. at

1102-03. This rule applies only prospectively, and because

we are remanding to the district court, this rule will apply at

Bostic’s re-sentencing. United States v. Waters, 158 F.3d

933, 945 (6th Cir. 1998).

Because existing precedent did not excuse the

government’s failure to object, and because we conclude that

Bostic’s sentence must be vacated regardless of the scope of

our review, we will review the downward departure for plain

error.

7

See United States v. Barajas-Nunez, 91 F.3d 826, 830

(6th Cir. 1996). “A ‘plain error’ is an error that is clear or

obvious, and if it affects substantial rights, it may be noticed

by an appellate court.” Id.

C. Downward Departure

On appeal, the government contends that the district court

erred by sentencing Bostic to probation without following the

methodology required by the sentencing guidelines and

requests that we vacate Bostic’s sentence and remand this

case for re-sentencing. The government points out that at the

sentencing hearing, the district court did not state the number

of levels it was departing downward or discuss the specific

reasons why it thought probation was reasonable. The

government next argues that the district court erred by failing

to determine whether Bostic’s age and infirmities made his

case exceptional andwouldmake incarceration inefficient and

costly. The government requests that on remand Bostic be

14 United States v. Bostic No. 02-6437

required to support his downward-departure motion with

competent medical evidence, and that the district court be

required to determine whether Bostic’s impairments are

exceptional, whether the Bureau of Prisons (“BOP”) can

accommodate Bostic’s impairments, and “whether home

confinement may be more efficient and less costly.”

Appellant’s Br. at 27. Finally, the government argues that the

district court abused its discretion in granting a downward

departure based upon the present record. The government

points out that Bostic was only hospitalized once in May

2002 for atrial fibrillation, that after hospitalization Bostic

was in stable condition, and that as of sentencing Bostic had

experienced no recurrence of his condition. The government

further notes that Bostic’s age did not limit his criminal

activity, and that the district court’s threat to incarcerate

Bostic for a probation violation indicates that the district court

considered imprisonment a viable sentencing option.

Instead of countering the government’s arguments that the

district court failed to follow the methodology required by the

sentencing guidelines, Bostic argues that the government’s

failure to object to the downward departure indicated to the

district court that the government agreed with the court’s

methodology. Bostic also points out that the district court

made the factual findings that imprisonment would adversely

affect Bostic’s life expectancy due to his age and infirmity

and that Bostic will need medical attention and periodic

hospitalization; Bostic argues that these findings were

reasonable and were permissible bases for departure under the

sentencing guidelines.

The first two factors that an appellant must prove in order

to obtain reversal under plain error review are (1) that the

district court erred and (2) that the error was plain. United

States v. Olano, 507 U.S. 725, 732-34 (1993);see also United

States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998), cert.

denied, 526 U.S. 1030 (1999).
No. 02-6437 United States v. Bostic 15

At sentencing, the district court stated that it was granting

a downward departure, “[b]ecause of [Bostic’s] age and

because of [Bostic’s] infirmity and because of [Bostic’s]

health,” but did not specify the number of levels it was

departing. J.A. at 37 (Sentencing H’rg Tr. at 7). The

calculations in the PSR, which the district court adopted, set

Bostic’s total offense level at nineteen. To sentence Bostic as

it did, to probation without home confinement, the district

court had to reduce Bostic’s offense level to eight, which is an

eleven-level departure. 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 statutory provision:

(1) IN GENERAL. — Except as provided in paragraph

(2), the court shall impose a sentence of the kind, and

within the range [determined by the guidelines] unless

the court finds that there exists 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.

18 U.S.C. § 3553(b). To sentence a defendant outside of the

guideline range, the district court must determine that the 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 proving that a downward departure is

warranted. United States v. Rutana, 932 F.2d 1155, 1159 (6th

Cir.), cert. denied, 502 U.S. 907 (1991). In order to

determine that a case falls outside of the heartland, the district

court must conduct “a refined assessment of the many facts

bearing on the outcome, informed by [the district court’s]

vantage point and day-to-day experience in criminal

sentencing.” Koon, 518 U.S. at 98. Furthermore, the district

court must determine the size of the departure by tying it to

the structure of the sentencing guidelines, and the size of the

departure must be reasonable given the factors sentencing

16 United States v. Bostic No. 02-6437

8

Bostic’s sentence was determined using the 2001 version of the

United States Sentencing Guidelines (“U.S.S.G.”), and neither party

objected on appeal to the use of that version; therefore, we do not address

the propriety of applying that version.

courts are required to consider and the facts of the case.

United States v. Crouse, 145 F.3d 786, 792 (6th Cir. 1998);

see also 18 U.S.C. § 3742(e)(3)(C).

Under the sentencing guidelines, age and health are

disfavored factors that the district court may use as bases for

granting a downward departure only in exceptional

circumstances. See U.S.S.G. §§ 5H1.1 and 5H1.4.8 Section

5H1.1 provides:

Age (including youth) is not ordinarily relevant in

determining whether a sentence should be outside the

applicable guideline range. Age may be a reason to

impose a sentence below the applicable guideline range

when the defendant is elderly and infirm and where a

form of punishment such as home confinement might be

equally efficient as and less costly than incarceration.

(emphasis added). Section 5H1.4 provides:

Physical condition or appearance, including physique, 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.

(emphasis added). As these provisions make clear, age and

physical condition are not prohibited considerations, but they

are discouraged factors that justify a downward departure

only in extraordinary situations. U.S.S.G. §§ 5H1.1, 5H1.4.

Moreover, these provisions require the district court to
No. 02-6437 United States v. Bostic 17

consider the relative costs and efficiency of home

confinement and imprisonment. Id.

In United States v. Johnson, 71 F.3d 539, 544-45 (6th Cir.

1995), cert. denied, 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 findings

regarding whether the defendant’s medical condition was

extraordinary and whether the BOP could accommodate the

defendant. The sixty-five-year-old defendant in Johnson

provided evidence of his medical condition in the form of a

letter from his attending physician, who diagnosed the

defendant “with diabetes, hypertension, hypothyroidism,

ulcers, potassium losing enteropathy, and reactive

depression,” and a letter from his psychiatrist, who diagnosed

the defendant “with major depressive disorder.” Id.

Additionally, both doctors were prescribing medication for

the defendant and believed that incarceration would

detrimentally affect the defendant’s health. We noted “that an

aged defendant with a multitude of health problems may

qualify for a downward departure under § 5H1.4[, but] such

downward departures are rare.” Id. at 545. We also stated

that on remand more evidence than the two doctors’ letters

might be necessary to enable the district court make the

required findings. Id.

Similarly, in United States v. Tocco, 200 F.3d 401, 434-35

(6th Cir. 2000), we vacated the defendant’s sentence upon

another ground, but also directed the district court on remand

to make more specific findings regarding whether the

defendant’s medical condition was extraordinary and whether

the BOP could accommodate the defendant. The seventytwo-year-old defendant in Tocco had “arteriosclerotic disease,

coronary artery disease, hypertension, renal insufficiency,

labrynthitis, and diverticulosis,” and “required ‘periodic

monitoring.’” Id. at 434. We criticized the district court for

relying solely upon the defendant’s PSR when it granted a

four-level departure due to the defendant’s age and health. Id.

Additionally, in Tocco, we noted that the defendant’s “age

18 United States v. Bostic No. 02-6437

9

As in Johnson and Tocco, we think it is appropriate for the

district court to “obtain independent and competent medical evidence to

determine the extent of [defendant’s] infirmities and the prison system’s

ability or inability to accommodate him.” United States v. Tocco, 200

F.3d 401, 435 (6th Cir. 2000) (citing United States v. Johnson, 71 F.3d

539, 545 (6th Cir. 1995)).

alone should not be considered as a basis for a substantial

downward departure,” because the evidence showed that the

defendant remained active in the community. Id.

By way of contrast, in United States v. Sabino, 274 F.3d

1053, 1078-79 (6th Cir. 2001), we upheld a three-level

downward departure that was based upon several factors,

including age. The seventy-two-year-old defendant in Sabino

had “physical deficiencies . . . , particularly ailments with his

eyes and ears.” Id. at 1079. In upholding the downward

departure, we reasoned that the departure was small and based

upon several factors, including “the death of [the defendant’s]

wife a few months before sentencing; [the defendant’s] age

(72) at the time of sentencing; his physical deficiencies . . . ;

the absence of any physical threat to others; the absence of a

risk of flight; and the conclusion that [the defendant] played

a minor role in the conspiracy.” Id.

Here, the district court effectively granted an eleven-level

downward departure based upon Bostic’s age and infirmities.

As Tocco makes clear, age alone cannot justify a substantial

downward departure. Tocco, 200 F.3d at 434. Additionally,

the district court granted the downward departure based only

upon one letter from Bostic’s treating physician and the

Physical Condition section of the PSR. Although numerous

“physical infirmities” might justify a downward departure,

Johnson and Tocco indicate that a doctor’s letter and the

“Physical Condition” section of the PSR are not sufficient

evidence to justify a downward departure.9 Finally, the

district court made no findings regarding whether Bostic’s

case is extraordinary, whether the BOP could accommodate

Bostic, and whether home confinement would be equally
No. 02-6437 United States v. Bostic 19

efficient and less costly. Therefore, the district court erred by

granting an eleven-level departure without sufficient

evidence. If upon remand the evidence shows that Bostic’s

case warrants a departure, the district court must still find that

the reasons justify the magnitude of the departure selected.

Crouse, 145 F.3d at 792. Johnson and Tocco do not foreclose

the possibility that Bostic’s age and infirmities warrant a

departure; however, it seems unlikely that his infirmities

warrant an eleven-level departure. Because the case law

requiring district courts to make the above factual findings

and to justify the magnitude of a departure predates Bostic’s

sentencing, and because the district court utterly failed to do

either, the district court’s error was plain.

The final factors that an appellant must prove in order to

obtain reversal under plain error review are (3) that the error

affected substantial rights and (4) that “the error seriously

affect[ed] the fairness, integrity or public reputation of

judicial proceedings.” Olano, 507 U.S. at 734-37 (quotation

omitted); see also Koeberlein, 161 F.3d at 949. A sentencing

error affects substantial rights when “it affects the outcome of

the case by substantially reducing the defendant’s sentence.”

Barajas-Nunez, 91 F.3d at 833. And a sentencing error that

leads to a substantial departure affects the fairness and

integrity of judicial proceedings because “[p]ermitting

sentencing courts to disregard governing law would diminish

the integrity and public reputation of the judicial system [and]

also would diminish the fairness of the criminal sentencing

system by imposing a significantly smaller sentence on” one

defendant than it would have upon a different defendant who

committed the same crime under similar circumstances. Id.

Moreover, such disparities “would fly in the face of one of the

primary purposes of the sentencing guidelines — the

elimination of disparities in sentencing.” Id.

Here, the district court erred by granting a downward

departure without making the requisite factual findings, and

this error affected the government’s and the United States

citizens’ substantial rights because it drastically reduced

20 United States v. Bostic No. 02-6437

10On remand, the district court should consider whether § 401

of the PROTECT Act, particularly subsections (e) and (g), applies

retroactively and limits its discretion at re-sentencing, and if relevant,

address in the first instance any constitutional problems those limitations

might raise.

Bostic’s sentence from a term of imprisonment to a term of

probation. See id. This error also affected the fairness and

integrity of judicial proceedings because the district court

disregarded the applicable sentencing guidelines and case

law, and because Bostic received a significantly smaller

sentence than might have been imposed upon a different

defendant who committed the same crime under similar

circumstances. See id.

Because the district court imposed Bostic’s sentence in

violation of the methodology required by the sentencing

guidelines and applicable case law, we must vacate and

remand.10 See id. at 834 (noting that district court’s failure to

justify the extent of a departure makes the decision virtually

unreviewable).

III. CONCLUSION

We conclude that the district court committed plain error by

granting an eleven-level downward departure without tying

the departure to the framework of the sentencing guidelines

or making the required findings of fact. Therefore, we

VACATE Bostic’s sentence and REMAND for resentencing.
No. 02-6437 United States v. Bostic 21

____________________

CONCURRENCE

____________________

RYAN, Circuit Judge, concurring. While I agree that the

defendant’s sentence should be vacated, I do not join in the

majority’s holding that the government waived its objection

to the defendant’s sentence. In my view, the sentence should

be vacated and the case remanded for resentencing because

the prosecutor was not given a reasonable opportunity to be

heard at the sentencing hearing in order to articulate his

objection to the radical downward departure the defendant

was seeking and ultimately received. 

At the very outset of the sentencing hearing, the prosecutor

acknowledged that the defendant had filed a motion for a

downward departure and asked that he be allowed to address

the court regarding the government’s position on sentencing.

He was never given that opportunity. Following the

government’s request to be heard, the district court engaged

in a colloquy with the defendant and his attorney. In the

midst of that colloquy, and without affording the Assistant

U.S. Attorney an opportunity to speak, the district judge

granted the motion for a downward departure, imposed the

sentence, and abruptly left the bench. 

My sister has characterized the prosecutor’s request to be

heard as being limited to an evidentiary matter concerning the

defendant’s offense conduct and that the government’s

request gave no indication that it objected to the defendant’s

motion for a downward departure. Respectfully, she is

mistaken. After the government introduced its evidence

concerning the defendant’s offense conduct, the prosecutor

informed the court that he wanted to be heard on yet another

matter, stating as follows: “I would just like to address the

Court on the government’s view on sentencing after we hear

from [defense counsel], Your Honor.” 

22 United States v. Bostic No. 02-6437

Our precedent is clear, that in cases such as this, “where the

district court fails to provide an opportunity for 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 explicit grant of

authority for challenging a sentence and where the

government does not have an opportunity to object following

the pronouncement of sentence, there is no waiver. United

States v. Hickey, 917 F.2d 901, 906 (6th Cir. 1990). In the

case before us, the explicit grant of authority for challenging

the defendant’s sentence is found in 18 U.S.C. § 3742(b)(3),

which states the following: 

The Government may file a notice of appeal in the

district court for review of an otherwise final sentence if

the sentence—

(3) is less than the sentence specified in the applicable

guideline range to the extent that the sentence includes a

lesser . . . term of imprisonment, probation, or supervised

release 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. Because there is an explicit grant of authority for

challenging the defendant’s sentence and because the

prosecutor was not given a reasonable opportunity to object

to the downward departure, the government did not waive its

right to appeal this issue. The prosecutor made it very clear

that he wished an opportunity to address the court in

opposition to defense counsel’s request for leniency. He was

not obligated to reassert his request by repeating himself, by

interrupting the trial judge in the midst of pronouncing

sentence, or by attempting to call the judge back to the bench

as he was leaving. There is no rule of law or practice, of

which I am aware, that requires the prosecutor to repeat his

request to be heard, or face, as in this case, an appellate

adjudication that the issue is waived. 
No. 02-6437 United States v. Bostic 23

With all due respect to my colleagues who see it

differently, the record of this case does not call for the

preparation of a lengthy published opinion, creating a new,

rigid rule of sentencing law that further narrows and restricts

the relatively limited discretion left to trial judges under the

Sentencing Guidelines. The Federal Rules of Criminal

Procedure and our existing case precedent sufficiently set

forth the duties of the district court at sentencing and I

strongly object to the adoption under our “supervisory power”

of still another uncodified “procedural rule” telling district

judges what to incant after sentencing a person. 

This case appears to be nothing more than an

uncharacteristic and inadvertent mistake bya highly respected

district judge, who has conducted more rule-conforming

sentencing proceedings in an exemplary fashion than he or we

can count. Very likely, he simply forgot to do what he

regularly does: ask both counsel if they had anything further

to say. In my view, the prosecutor 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 of discretion. United States v. Tocco, 200

F.3d 401, 432 (6th Cir. 2000). I conclude that the district

court abused its discretion by imposing a sentence without

first giving the prosecutor an opportunity to address the court,

after being earlier advised by the prosecutor that he “would

just like to address the Court on the government’s view on

sentencing . . . .” 

The only appropriate remedy is to vacate the sentence and

remand for resentencing.