U.S. v. Bostic

• Decision Date: 17 June 2004
• Docket Number: No. 02-6437.,02-6437.
• Citation: 371 F.3d 865
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Henry A. BOSTIC, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

371 F.3d 865

UNITED STATES of America, Plaintiff-Appellant, v. Henry A. BOSTIC, Defendant-Appellee.

No. 02-6437.

United States Court of Appeals, Sixth Circuit.

Argued: January 28, 2004.

Decided and Filed: June 17, 2004.

COPYRIGHT MATERIAL OMITTED

David C. Jennings (argued and briefed), Asst. U.S. Attorney, Knoxville, TN, for Plaintiff-Appellant.

John O. Gibson (argued and briefed), Loudon, TN, for Defendant-Appellee.

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

OPINION

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 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 mini-revolver," 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.

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 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 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 downward-departure 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 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...