In the

United States Court of Appeals

For the Seventh Circuit

No. 00-4272

United States of America,

Plaintiff-Appellee,

v.

Steven Hirsch,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 96-CR-40094--J. Phil Gilbert, Judge.

Argued October 30, 2001--Decided February 15, 2002

 Before Cudahy, Easterbrook and Williams,

Circuit Judges.

 Cudahy, Circuit Judge. In appealing from

his sentencing for drug and firearms

offenses, Steven Hirsch argues that the

district court erred in concluding that

it had no authority to award a downward

departure based on Hirsch’s medical

condition. We affirm.

I.

 Hirsch was arrested on drug conspiracy

charges on February 11, 1997. On March 6,

1997, upon the request of his attorney,

he was granted a medical transfer from

county jail to the Federal Medical Center

in Springfield, Missouri, for a medical

exam. The medical exam revealed that he

was healthy. Hirsch was then transferred

to the Williamson County Jail in Marion,

Illinois, to await trial. Soon after he

arrived at the Williamson County Jail,

however, Hirsch developed respiratory

problems. On November 1997, his

respiratory problems were diagnosed and

treated as a respiratory infection. In

January 20, 1998, a jury trial began on

the indictment against Hirsch. During

this time, however, Hirsch was diagnosed

with pneumonia. Because he appeared

seriously ill during trial, a mistrial

was declared on February 3, 1998. On

February 4, 1998, Hirsch was admitted to
Lourdes Hospital in Paducah, Kentucky,

where he was diagnosed with Legionnaire’s

Disease. Steven was not discharged from

Lourdes Hospital until March 2, 1998.

During this hospital stay, he developed

an abscess in his right lung that

ruptured and spread into his left lung.

On April 20, 1998, Hirsch was admitted to

Cox Medical Center in Springfield,

Missouri, where he underwent surgery to

remove his right lung.

 On September 4, 1998, Hirsch entered a

plea of guilty to counts of: 1)

Conspiracy to Distribute Methamphetamine

and Marihuana, 2) Conspiracy to

Distribute Cocaine and 3) Carrying a

Firearm During and In Relation to a Drug

Trafficking offense. At the sentencing

hearing on January 29, 1999, defense

counsel moved for a downward departure

based upon Hirsch’s severe illness,

apparently contracted while he was in

prison. The district court ruled that

"unless there is some indication that the

Bureau of Prisons is not capable of

attending to any particular health need

that a defendant may have that’s going to

be incarcerated under the guidelines,

that is not a grounds [sic] for

departure. It makes no difference to this

Court nor to the guidelines that any

illness or ailment was contracted

pretrial or during trial." Later on, in

answer to Hirsch’s question why the

district court did not grant a downward

departure, the district court stated "I

don’t have any authority under the law to

downward depart."

 Hirsch appeals from the amended judgment

and sentence. He argues that the district

court does have authority to downward

depart based upon an illness contracted

while in federal custody and that the

court failed to examine whether his

illness warranted a downward departure.

He seeks to have the case remanded to the

district court for a hearing on whether

the nature of his illness warrants a

downward departure.

II.

A.

 As an initial matter, the government

argues that this Court does not have

subject-matter jurisdiction because the

district court had considered Hirsch’s
illness during sentencing and exercised

its discretion not to award a downward

departure. In United States v. Williams,

202 F.3d 959, 964 (7th Cir. 2000), we

held that a court of appeals has no

jurisdiction to review a district court’s

decision to deny a discretionary sentence

departure. Here, the district court

addressed Hirsch’s illness during

sentencing in light of United States v.

Sherman, 53 F.3d 782 (7th Cir. 1995) and

its progeny. In Sherman, the defendant

had sought a downward departure based

upon his then current physical

impairments of asthma and obesity. This

Court held that "[i]n order to warrant

such a departure, the court must

ascertain, through competent medical

testimony, that the defendant needs

constant medical care, or that the care

he does need will not be available for

him should he be incarcerated." Sherman,

53 F.3d at 787; United States v. Krilich,

257 F.3d 689, 693 (7th Cir. 2001) (same).

 Here, the district court found that the

Bureau of Prisons could provide Hirsch

with the medical regimen needed to treat

his current medical condition. Thus,

since the district court found that

Hirsch could get adequate medical care in

prison, it exercised its discretion to

deny him a downward departure, and we

have no jurisdiction to review the

decision in that context. However, in

Williams, we also held that a district

court’s determination that it lacked

authority to depart presents a question

of law that is reviewed de novo. See 202

F.3d at 964. It is clear from the record

that the district court in sentencing

Hirsch addressed his illness only in

light of Sherman. But the district court

did not consider whether the

circumstances of Hirsch’s illness provide

a ground, other than the rationale of

Sherman, for a downward departure. The

district court’s statement that, "I don’t

have any authority under the law to

downward depart," indicates that the

district court was thinking only about

Sherman. It did not consider the unusual

circumstances of Hirsch’s illness which

is the ground Hirsch is now arguing. We

review that aspect of its determination

de novo.

B.

 In United States v. Koon, the Supreme
Court suggested that a sentencing court

considering a departure should ask the

following questions:

1) What features of this case,

potentially, take it outside the

Guidelines’ ’heartland’ and make it a

special, or unusual, case?

2) Has the Commission forbidden

departures based on those features?

3) If not, has the Commission encouraged

departures based on those features?

4) If not, has the Commission discouraged

departures based on those features?

518 U.S. 81, 95 (1996). If the answers to

these questions suggest that a departure

may be warranted, the district court

should "perform a fact-specific analysis

in light of the Commission’s

consideration of the factor [being

argued] to determine whether it is 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."

United States v. Meza, 127 F.3d 545, 548

(7th Cir. 1997).

 Here, Hirsch argues that the seriousness

of his illness and the fact that he

contracted it while in federal custody

takes his case outside of the Guidelines’

"heartland." On the seriousness point,

the government argues, on the other hand,

that there is no evidence in the record

that Hirsch really contracted

Legionnaire’s Disease. Although he was

initially diagnosed with Legionnaire’s

Disease, the government contends that the

district court stated at one point that

Hirsch did not have Legionnaire’s

Disease. Although the district court may

have made that statement, by the same

token it did not find that Hirsch had not

contracted Legionnaire’s Disease. However

that issue might play out, it is

undisputed that Hirsch suffered a very

serious illness while in federal custody

that resulted in the loss of his right

lung and other severe and continuing

medical problems. It is also undisputed

that Hirsch did not suffer from this ill

ness prior to being incarcerated at

Williamson County Jail. The severity of
his illness and the circumstances of its

contraction are highly unusual features

of the case that is likely to take it

outside the Guidelines’ "heartland." See

Koon, 518 U.S. at 95. Further, Hirsch’s

illness is not a factor that the

Guidelines have used to encourage or

discourage a departure. See id. But does

Hirsch’s illness warrant a downward

departure? Just because a case has

features that are unusual does not mean

that a departure is warranted. Rather the

unusual features must suggest a rationale

for a difference in the sentence

prescribed by the Guidelines. Otherwise,

all cases with unusual facts would

require a hearing on departure.

 Hirsch’s argument for a downward

departure is that he suffered more from

his illness than he could have suffered

from being in prison. Thus, he is

entitled to a departure as compensation

for the additional punishment of the

illness. The basic problem with this is

the lack of showing that the government

caused the illness (through negligence or

by design). If there had been such

evidence, Hirsch may have been entitled

to a downward departure because he had

already been punished severely prior to

sentencing. For example, if the prison

officials intentionally placed him in a

cell that they knew would likely lead to

his contraction of a serious illness,

this could constitute prior punishment

that may warrant a downward departure.

However, there was no such evidence in

this case. Because Hirsch failed to

provide a persuasive rationale for an

entitlement to a downward departure, his

request for a hearing to explore such a

departure must be denied.

III.

 For the foregoing reasons, we AFFIRM the

judgment and sentence of the district

court.