United States of America v. Henry A. Bostic

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.
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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.
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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

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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 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.
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

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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 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

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No. 02-6437 United States v. Bostic 7
1Although it is not reflected in the sentencing hearing transcript,
Bo stic 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.

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No. 02-6437 United States v. Bostic 9
2W e find it somewhat incredible that the governm ent 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 give n an oppo rtunity to object to that
motion.
3Rule 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 p arty 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 do es not later prejudice that
party.
Fed. R. Crim. P. 51(b) (emphasis added ).
4Rule 32 (i)(1) provid es:
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) pro vides:
Before imposing sentence, the court must:
(i) provide the defendant’s attorney an opp ortunity
to speak on the defendant’s behalf;
(ii) address the defendant personally in order to
perm it the defendant to speak or present any
information to mitigate the sentence; and
(iii) provide an attorney for the government an
opp ortun ity 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

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No. 02-6437 United States v. Bostic 11
5Unlike 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 ob ject 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 argue d “that its failure to
[make an ob jection] is excused . . . because it had no reason to suspect
that a fine wo uld no t be imp osed 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 argum ent was over.”
United States v. Breeding, 109 F.3d 30 8, 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’s reading 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
6Due 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 appro ach 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 p owers to create a procedural rule
so long as the rule d oes not con flict with the Constitution or a statute.”
United States v. Wa ters, 158 F.3d 933 , 944 (6th Cir. 1998). In United
States v. Jones, 899 F.2d 109 7, 11 02-0 3 (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
pow ers to adopt a rule similar to the o ne end orsed 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

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No. 02-6437 United States v. Bostic 13
7In a Rule 28(j) letter, dated Decemb er 1, 2003, the government
contends that the Prosecutorial Remedies and To ols Against the
Exploitation of Children Today Act of 2003 (“PROT ECT Act”), Pub. L.
No. 108-21, 117 Stat. 650 (2003) (“P ROT ECT Act”) § 401(d)(1)(C ),
requires this court to review de no vo a d istrict court’s decision to grant a
downward departure. The governm ent 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 and would make 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).

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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
8Bo stic’s sentence was determined using the 2001 version of the
United States Sentencing G uidelines (“U.S .S.G.”), and neither p arty
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

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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 seventy-
two-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
9As in Johnson and Tocco, we think it is appropriate for the
district court to “obtain independent and competent medical evid ence to
determine the extent of [defendant’s] infirmities and the prison system’s
ability or inab ility 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

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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 PROTE CT 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 re-
sentencing.

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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.

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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 by a 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.

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