* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-11312

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JUDY A THURMAN

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:07-CR-47-ALL

Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.

PER CURIAM:*

Judy A. Thurman pleaded guilty to one count of theft of assets of a labor

organization affecting commerce. Thurman moved for a sentence below the

recommended range based on her physical, mental, and emotional impairment.

Thurman had undergone several surgeries, had been diagnosed with bipolar

disorder, and was being treated for major depression and anxiety disorder. The

district court denied the motion and sentenced Thurman to 21 months in prison.

United States Court of Appeals

Fifth Circuit

F I L E D

September 26, 2008

Charles R. Fulbruge III

Clerk
No. 07-11312

2

Thurman argues that she received an unreasonable sentence. Thurman

argues that the sentence was greater than necessary to achieve the sentencing

goals set forth in 18 U.S.C. § 3553(a) because her physical ailments “stand to

make prison unusually difficult and costly” and that her “emotional state will

also render prison unusually trying.” See United States v. Nikonova, 480 F.3d

371, 375 (5th Cir.), cert. denied, 128 S. Ct. 163 (2007)). Procedurally sound

sentences imposed inside or outside the Guidelines range are reviewed for

reasonableness under an abuse-of-discretion standard. Gall v. United States,

128 S. Ct. 586 (2007). This court has held that sentences within a properly

calculated Guidelines range should be afforded a rebuttable presumption of

reasonableness, and the Supreme Court has upheld the use ofthis presumption.

Id.; Rita v. United States, 127 S. Ct. 2456, 2462 (2007); United States v. Alonzo,

435 F.3d 551, 554 (5th Cir. 2006).

Although physical condition is not usually relevant in determining

whether a departure is warranted, “an extraordinary physical impairment may

be a reason to impose a sentence below the applicable guideline range.” U.S.S.G.

§ 5H1.4. Although it may be true that Thurman’s physical and mental

impairments could have supported a sentence below the guidelines range, she

cannot show that they would mandate one under the precedent of this circuit.

See United States v. Castillo, 430 F.3d 230, 240-41 (5th Cir. 2005) (holding that

defendant’s HIV-positive status did not constitute an extraordinary medical

condition warranting a departure); United States v. Winters, 105 F.3d 200, 208-

09 (5th Cir. 1997) (holding that defendant’s sarcidosis, a chronic inflammation

of multiple organs, was not an exceptional medical condition requiring a

downward departure); and United States v. Guarjardo, 950 F.2d 203, 208 (5th

Cir. 1991) (holding that a departure was not warranted for a defendant who

suffered from cancer in remission, high blood pressure, a fused right ankle, drug

dependency, and an amputated leftleg). On appeal, Thurman has not presented
No. 07-11312

3

anything to overcome the presumption that the district court imposed a

reasonable sentence. Thurman’s sentence is AFFIRMED.