U.S. v. Sherman, 94-2414

• Decision Date: 20 June 1995
• Docket Number: No. 94-2414,94-2414
• Citation: 53 F.3d 782
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Raymond Keith SHERMAN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 782

53 F.3d 782

UNITED STATES of America, Plaintiff-Appellant, v. Raymond Keith SHERMAN, Defendant-Appellee.

No. 94-2414.

United States Court of Appeals Seventh Circuit.

Argued Nov. 8, 1994.

Decided April 17, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied June 20, 1995.

Thomas Edward Leggans (argued), Office of the U.S. Atty., Crim. Div., Fairview Heights, IL, for plaintiff-appellant.

Andrea L. Smith (argued), Office of the Federal Public Defender, East St. Louis, IL, for defendant-appellee.

Before COFFEY and RIPPLE, Circuit Judges and SKINNER, District Judge. ^*

COFFEY, Circuit Judge.

Defendant-appellee Raymond Keith Sherman pleaded guilty to possessing a sawed-off shotgun in violation of 26 U.S.C. Sec. 5861(d). The Probation Office determined that his adjusted offense level was 15 and that he had a criminal history category of I, which carried with it an 18 to 24 month prison sentence. The court reasoned that the defendant suffered from an extraordinary physical impairment because of the degree to which he suffered from obesity and asthma, and decided to depart downward 5 levels, pursuant to U.S.S.G. Sec. 5H1.4. ¹ After departure, Sherman's guideline range mandated 6 to 12 months incarceration. The court sentenced Sherman to two years probation, with the first twelve months to be spent in home confinement. The government appeals the sentence. ² We VACATE the sentence and REMAND this case to the district court for re-sentencing consistent with this opinion.

I. FACTUAL BACKGROUND

Raymond Keith Sherman pleaded guilty to possessing a sawed-off shotgun, and signed a stipulation of fact in which he admitted that he sold the unregistered shotgun to an undercover Illinois State Police Officer who served as an agent on the Southern Illinois Drug Task Force. ³ The Probation Office calculated the defendant's base offense level at 18, but because Sherman accepted responsibility for his crime in a timely manner, the Probation Office recommended that he be granted a three level reduction, pursuant to U.S.S.G. Sec. 3E1.1, which set his adjusted offense level at 15. Sherman also had a criminal history category of I. ⁴ The defendant's guideline range mandated 18 to 24 months incarceration.

At his sentencing hearing, Sherman requested a downward departure from the sentencing guidelines pursuant to U.S.S.G. Sec. 5K2.11 ⁵ and U.S.S.G. Sec. 5H1.4 because of his "extraordinary physical impairment" of asthma and obesity. The district court had limited evidence before it in support of Sherman's claim of an "extraordinary physical impairment," almost all of which came from the defendant's own testimony. Sherman stated that he is 6 foot 3 inches tall, and that he weighs approximately 420 to 450 pounds. The probation officer who prepared the Presentence Investigation Report attempted to confirm Sherman's weight, but he was unable to do so because the defendant's weight exceeded the limit of traditional scales.

Sherman further testified that due to the fact that he was overweight and suffered from asthma, he has difficulty breathing whenever he undertakes the slightest type of physical activity, such as rising from a chair. It is interesting to note that the defendant did not take medication, nor had he seen a doctor during the year prior to sentencing because he stated that he could not afford to pay for health care. Sherman also suffers from arthritis in his ankles and knees and he claimed that this condition, exacerbated by his weight and asthma, made it impossible for him to exercise. Furthermore, he stated that if he were to become involved in an altercation while incarcerated, he would be unable to defend himself.

The Social Security Administration (SSA) verified for the Probation Office that Sherman had been receiving Supplemental Security Income (SSI) from the Social Security Administration for his "obesity" since December 1, 1991. The probation officer attempted to obtain documentation from the SSA about the precise medical condition that qualified the defendant for SSI, but stated that he was unable to obtain any records or documentation about the defendant's condition from the SSA. ⁶

After observing the defendant and listening to his testimony, the district court granted Sherman's motion for a downward departure. The court concluded that because Sherman's weight was "well over 400 pounds," it was "extraordinary in light of the weight of other people that usually appear before this court." The court additionally expressed concern about the possibility of Sherman having "an acute asthma attack in a prison setting" because the judge felt that from the "several prisoner rights cases ... involving asthmatics" that he had seen, the "prison officials seem not to be concerned about" the health needs of asthmatics. The court also stated:

[W]hen you look at the defendant and consider and look at his weight--and I can just imagine how hard his heart's pumping to get all that blood through his body--if he were ever to have an acute asthma attack in a prison setting in which was [sic] not attended to quickly, the government would find themselves defending a lawsuit, and for failure to provide immediate and necessary medical attention.

Finally, the judge noted that he too suffered from asthma and that he was well aware of the effects that it can have on an individual.

From the original offense level of 15, the district court made a downward departure of five levels, because of the "appearance and condition of this defendant" and sentenced Sherman to two years probation, the first year of which was to be spent in home confinement. Sherman was also ordered to pay a special assessment of $50. The government appeals the sentence (downward departure).

II. DISCUSSION

The issue before this court is whether the district court, in the exercise of judicial discretion, has made a record sufficient to establish that the defendant is entitled to receive a downward departure based on an extraordinary physical impairment. We review a district court's departure from the Sentencing Guidelines to see if it was reasonable, "in light of the factors dictated by the Guidelines, and the district court's explanations for its departure." United States v. Carey, 895 F.2d 318, 322 (7th Cir.1990) (citing 18 U.S.C. Sec. 3742(e)). " 'Reasonableness implies that a sentencing judge must provide articulable reasons, of a type contemplated by the Act and the Guidelines, and based on a sufficiently sound factual foundation to justify a departure from the Guidelines.' " Id. (quotation omitted).

We have developed a three part test to facilitate this analysis:

First, we must determine whether the district court has stated adequate grounds for departure. This is a question of law and is reviewed de novo. Second, we must determine whether the facts which underlie the grounds for the departure actually exist. This determination is reviewed using the clearly erroneous standard of review. Third, we must determine whether the degree of departure is linked to the structure of the Guidelines. The district court's findings on what degree of departure is appropriate are given deference.

United States v. Hendrickson, 22 F.3d 170, 175 (7th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 209, 130 L.Ed.2d 138 (1994) (citing United States v. Gaddy, 909 F.2d 196, 198-99 (7th Cir.1990)). A finding is clearly erroneous when we are left "with the definite and firm conviction that a mistake has been committed." United States v. Cojab, 978 F.2d 341, 343 (7th Cir.1992) (citation omitted).

A.

The determination of adequate grounds for departure is the threshold analysis for our review of Sherman's sentence. The United States Sentencing Guidelines specifically state that "extraordinary physical impairment" can be a basis for a downward departure, U.S.S.G. Sec. 5H1.4, but we have doubts about whether there is sufficient evidence in this record to establish that this defendant's physical condition constitutes an adequate ground for a downward departure. Because the analysis of when adequate grounds exist is inextricably interwoven with the determination of whether there is a factual basis for the departure, we immediately turn to the next element of our review of Sherman's sentence.

B.

We now review whether there are sufficient facts which underlie the grounds for the departure. In order to support a downward departure, the district court is required to make "particularized findings," for without them, we cannot fulfill our proper function as an appellate tribunal and determine whether the departure was "reasonable." Carey, 895 F.2d at 324 (the summary conclusion that a 62 year old man suffering from a brain tumor was entitled to a departure was not a sufficient finding, in and of itself, to support a departure for "extraordinary physical impairment").

Just as the court's reasoning that the defendant's "age and physical condition" in Carey were insufficient, in and of themselves, to support a downward departure, Sherman's "appearance and condition," by themselves, are inadequate findings of fact to support the conclusion that he was extraordinarily physically impaired. Aside from the defendant's self-serving statements and the district court's observation of the defendant in court, the only factors which supported Sherman's request for a departure were that the SSA verified that he received SSI because of his "obesity," and the trial judge's belief that the Bureau of Prisons is not sensitive to the medical needs of prisoners with asthma. The record is barren of any explanation on the part of the judge as to how he came to the conclusion that the Bureau is not sensitive to the needs of asthmatics, other than his summary statement that he has seen "several prisoner rights cases before this Court involving asthmatics," and that "prison officials seem not to be too concerned about, and some prisoners have had a difficult time getting inhalers[.]" He at no place...