United States of America v. Ernest Spiller

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3043
United States of America,
Plaintiff-Appellee,
v.
Ernest Spiller,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 99 CR 30120--William L. Beatty, Judge.
Argued March 1, 2001--Decided August 17, 2001
Before Harlington Wood, Jr., Manion, and
Diane P. Wood, Circuit Judges.
Manion, Circuit Judge. Ernest Spiller
was indicted and found guilty on five
counts relating to his sale of crack
cocaine and possession of firearms.
Spiller appeals his conviction and
sentence, claiming that the district
court committed several errors. We reject
his claims and affirm.
I. Background
On July 1, 1999, at two different times,
a confidential informant purchased 3.3
grams and 1.9 grams of crack cocaine from
Ernest Spiller at his residence in East
St. Louis, Illinois. Based on the
confidential informant’s purchases, the
next day federal agents obtained a search
warrant for the residence. During the
search, the agent recovered numerous
incriminating items, including $6000 cash
(including the marked buy money), an
elaborate home security system, a scale
with crack residue, a cocaine user
handbook and other drug paraphernalia
such as cans with false bottoms, plastic
baggies, bongs, test tubes and beakers.
The agents also found approximately 12
weapons in the home. In addition, the
agents found handwritten ledgers contain
ing words and phrases, such as "I cook
you cook," "powder," "cut," "soda," and
numbers associated with references to

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"grams." However, other than the crack
residue on the scale, the searchers found
no crack cocaine.
In a superseding indictment, Spiller was
charged with five offenses: Count I,
distributing 3.3 grams of crack cocaine
in violation of 21 U.S.C. sec. 841(a)(1);
Count II, distributing 1.9 grams of crack
cocaine in violation of 21 U.S.C. sec.
841(a)(1); Count III, maintaining a place
for the purposes of manufacturing,
distributing and using crack cocaine
between November, 1998 and July 2, 1999,
in violation of 21 U.S.C. sec. 856; Count
IV, possession of a firearm in
furtherance of the drug trafficking crime
charged in Count III, in violation of 18
U.S.C. sec. 924(c); and Count V,
possession of a firearm by a convicted
felon/1 in violation of 18 U.S.C. sec.
922(g)(1).
Spiller pleaded not guilty as to all
five counts and a jury trial commenced on
November 29, 1999. The parties stipulated
that the ledgers were seized at Spiller’s
residence and that certain entries fell
within the time period of the superseding
indictment./2 The seizing officer, Kurt
Eversman, testified that the ledgers
contained "a lot of names with money
owed, money paid. It has a lot of things
that refer to grams, ounces, soda, cook,
just basically different references for
the drug trade and information that shows
that drug sales were going on." Spiller
did not object to this testimony.
However, when the government initially
sought to introduce the ledgers into
evidence, Spiller’s attorney objected,
stating, "Judge, I’m going to object to
the relevancy and that they are
immaterial and uncorroborated at this
time of the admission of these ledgers."
The district court overruled the
objection without explanation and
admitted the ledgers into evidence.
The government then used two expert
witnesses to explain the ledgers. The
first witness, William Storer, a
handwriting expert, testified that the
ledgers contained similar handwriting to
Spiller’s writing samples. Spiller’s
attorney did not object to Storer’s
testimony.
The second witness, Harold Daniel
Clouse, an FBI special agent and Drug
Records Analyst with over nine years

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experience in the field, testified that
the ledgers were the records of an
illicit drug distribution business, and
that during the period from November,
1998 to July 2, 1999, Spiller had
produced a minimum of 28,583 grams of
crack cocaine. Clouse based his
conclusion on the terminology, weights
and price per unit he noted in the
records and the overall appearance of the
documents. Clouse also concluded that the
ledgers reflected sales to numerous
customers during the relevant time
period. On cross-examination, Clouse
admitted that the ledgers were
unintelligible even to people who
normally prosecute and investigate drug
cases. However, he testified that, where
he was unsure as to the meaning of a
notation, he did not include those
figures in his calculation. He also
stated that the records were fairly well
kept and detailed. Clouse did not
interview Spiller or any other witness
regarding the ledgers. Spiller’s attorney
objected only once to Clouse’s
testimony./3 When the government sought
to introduce into evidence a table
reflecting the amount of cooked cocaine
produced each month, she objected,
claiming a lack of materiality, relevance
and corroboration. In response, the
government argued that the evidence was
relevant to whether Spiller was
maintaining a crack house, and therefore
the ledgers were relevant and material.
The district court overruled the
objection and admitted the exhibit.
In addition to the expert witness
testimony, the government produced a
number of witnesses who testified that
they had purchased various amounts of
crack cocaine from Spiller on a regular
basis. Glorina Jackson, known as "Glow,"
testified that during the relevant time
period she purchased crack from Spiller
and his wife, sometimes more than once a
day. She testified that she bought
approximately $300 of crack each month
from Spiller. She also testified that she
never saw Spiller with large amounts of
cocaine and never saw him cook any crack
cocaine. The next witness was Kim Davis,
the informant who made the drug purchases
on July 1, 1999. She testified that she
purchased crack from Spiller and his wife
two to three times per week, spending
approximately $300 per week. Regarding
the ledgers, Davis testified that some of

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the entries may have referenced amounts
Spiller believed she owed him. Another
witness, Samantha Sayles, known as
"Missy," testified that she went to
Spiller’s house approximately five times
per week and spent approximately $150 per
week buying crack from him. She also
testified that she never saw Spiller cook
crack. Finally, Carol Garrett testified
that she spent approximately $100 per
week buying crack from Spiller and went
to his home two to three times per week.
The handwritten ledgers contain numerous
references to "Kim," "Glo," and "Missy."
On December 2, 1999, the jury returned
a verdict, finding Spiller guilty on all
five counts. The government filed a pre-
sentence investigation report suggesting
that Spiller’s offense level should be
38, based on relevant conduct for Counts
I through III of manufacturing 28,000
grams of crack cocaine, as indicated in
the ledgers. Spiller objected to the use
of the handwritten ledgers to establish
relevant conduct, arguing that they were
uncorroborated. Spiller argued that the
charged conduct only involved 5.2 grams
of crack cocaine, which should have put
him at Offense Level 20 for purposes of
sentencing. In response, the government
noted that Offense Level 38 only required
proof of 1,500 grams. Concluding that
there was sufficient proof of 1,500 grams
of crack cocaine, the district court
overruled Spiller’s objections regarding
relevant conduct./4
Spiller also filed a motion for downward
departure based on his age, arguing that
the statutory maximums, 30 years, would
exceed his life expectancy. At the
sentencing hearing, Spiller presented an
offer of proof, arguing that according to
the National Vital Statistics Report for
Tables of Life Expectancy and taking into
consideration his age and race, his life
expectancy is 25.2 years. His expert, a
registered nurse, testified that because
he is a smoker, is probably hypoglycemic,
has a family history of diabetes and,
based on blood tests, has a potential for
coronary artery disease, an additional
8.24 years should be subtracted, for a
total life expectancy of 16.96 years. The
district court rejected Spiller’s request
for a downward departure.
The district court then sentenced
Spiller to the guideline minimums of 292

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concurrent months on each of Counts I and
II, 240 concurrent months on Count III,
60 consecutive months on Count IV, and
120 concurrent months on Count V, for a
total of 352 months (or 29.33 years).
Spiller appeals.
II. Discussion
Spiller presents four arguments on
appeal. First, he argues that the
district court erred in admitting the
handwritten ledgers into evidence at
trial because they are inadmissible
hearsay. Second, he argues that the
district court erred at sentencing by
attributing 28,000 grams of crack cocaine
to him as relevant conduct based on the
ledger testimony. Third, he raises an
Apprendi challenge because the district
court sentenced him based on relevant
conduct, which was not submitted to the
jury and proven beyond a reasonable
doubt. Last, he argues that the district
court erred in sentencing him to a
sentence in excess of his life
expectancy. Spiller requests that his
conviction be reversed, or that his
sentence be vacated and remanded for re-
sentencing. For the reasons stated below,
we affirm.
A. Admission of Handwritten Ledgers
Spiller’s first argument on appeal is
that the district court erred in
admitting the handwritten ledgers into
evidence because they are inadmissible
hearsay. Trial courts have broad
discretion to admit or exclude evidence,
and we review rulings dealing with the
admission of evidence only for an abuse
of discretion. See United States v.
Swanquist, 161 F.3d 1064, 1073 (7th Cir.
1998).
The government argues that the drug
records were initially admissible as
"tools of the trade" for a crack house to
show motive, intent, preparation, plan
and knowledge. See Fed. R. Evid. 404(b).
Such an admission allows the records to
be used to show their existence, which
would clearly be relevant to whether a
defendant was operating a crack house,
here Count III. For example, in United
States v. Nava-Salazar, 30 F.3d 788 (7th
Cir. 1994), this court held that drug
records were properly admitted as tools
of the trade, and were not hearsay, since

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they were not offered to prove the
information they contained. "Their
significance was the fact that they
existed, not the details of what they
showed." Id. at 798. Similarly, the
admission of the drug ledgers in this
case verified their existence and thus
established Spiller’s intent to operate a
crack house. Accordingly, the district
court did not abuse its discretion in
admitting the records for this purpose.
However, Spiller’s argument on appeal
relates to the government’s use of the
ledgers to show that he produced 28,000
grams of crack cocaine. In other words,
he objects to their use to prove the
truth of the information they contained,
a hearsay objection. The government
maintains that since the initial
admission of the records was appropriate
under Rule 404(b), and since Spiller did
not make a continuing hearsay objection,
Spiller forfeited his right to object to
the use of the ledgers. Generally,
[t]o preserve an issue for appellate
review, a party must make a proper
objection at trial that alerts the court
and opposing party to the specific
grounds for the objection. Thus, not just
any objection will save an issue for
review--neither a general objection to
the evidence nor a specific objection on
a ground other than the one advanced on
appeal is enough. Rather, this Court will
consider an argument only if the party
asserting it made a proper, timely and
specific objection on the same ground at
trial, that is, unless plain error is
manifest.
United States v. Linwood, 142 F.3d 418,
422 (7th Cir. 1998) (internal citations
omitted).
Thus, we must decide whether Spiller’s
objections that the ledgers were
"irrelevant, immaterial and
uncorroborated" is sufficient to preserve
the issue that they constitute
inadmissible hearsay. Spiller’s objection
regarding relevance and materiality is
not sufficient to preserve a hearsay
objection for appellate review. In fact,
much hearsay, even inadmissible hearsay,
is relevant and material. However,
Spiller’s objection based on lack of
corroboration is probably sufficient.
Lack of reliability and corroboration go

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to the heart of the hearsay objection.
However, we need not decide the issue
because, as discussed below, the records
were properly admitted as a statement of
a party-opponent.
The government presented evidence that
Spiller wrote the ledgers and that they
were kept in his own bedroom, where he
also kept crack equipment and
proceeds./5 A party’s own statements
offered against him are considered
admissions by a party-opponent, and, as
such, are not hearsay and are admissible
under Fed. R. Evid. 801(d) (2)(A). See
United States v. Harvey, 117 F.3d 1044,
1049-50 (7th Cir. 1997) (finding that if
diaries referring to marijuana production
were written by the defendant, they would
not be inadmissible hearsay "because they
would be statements made by a party-
opponent.")./6
Moreover, even if the records were
improperly admitted, any error was
harmless beyond a reasonable doubt. See
Chapman v. California, 386 U.S. 18
(1967). First, at a minimum, the ledgers
were properly admissible as "tools of the
trade" for a crack house and could be
considered by the jury in that capacity.
Additionally, the evidence against
Spiller, even apart from the ledgers,
persuasively established his guilt.
Without the ledgers, the jury still heard
ample evidence regarding the drug buys on
July 1, 1999, regarding the drug
paraphernalia and marked drug money found
on his premises, and testimony from the
numerous witnesses who purchased crack
cocaine from him on a weekly basis during
the time period in question. This
evidence alone established Spiller’s
guilt on Counts I through III beyond a
reasonable doubt and any error in
admitting the drug ledgers was harmless.
B. Relevant Conduct
Next, Spiller argues that, while Counts
I and II charged him with distributing a
total of 5.2 grams of crack, the district
court erred at sentencing by attributing
28,000 grams of crack cocaine to him
based on the ledger testimony. He argues
that the absence of drugs at his home
during the search, the witnesses’
testimony regarding the small amounts
they purchased, and the inherent
unreliability of the ledgers make it

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impossible for him to have actually been
responsible for the amount of drugs
attributed to him by the government.
Initially, we note that at sentencing,
"the Government must prove the facts
underlying the base offense or an
enhancement by a preponderance of the
evidence. Furthermore, because the
Federal Rules of Evidence do not apply,
the district court may hear evidence that
would not otherwise be admissible, such
as hearsay." United States v. Johnson,
227 F.3d 807, 813 (7th Cir. 2000)
(internal citations omitted). "The
district court’s calculation of the
quantity of drugs attributable to
[Spiller] during both the offense of his
conviction and any other relevant conduct
is reviewed only for clear error." Id. In
calculating the drug quantities, a
district court may "consider a wide range
of information" so long as it has
"’sufficient indicia of reliability to
support its probable accuracy.’" United
States v. Robinson, 164 F.3d 1068, 1070
(7th Cir. 1999) (quoting United States v.
Taylor, 72 F.3d 533, 543 (7th Cir.
1995)).
The district court adopted the factual
findings and guideline application set
forth in the government’s pre-sentence
report. Accordingly, Spiller’s relevant
conduct was based on 28,000 grams of
crack cocaine. This calculation
established his base offense level under
the Sentencing Guidelines at 38, which
only requires proof of 1.5 kilograms. See
U.S.S.G. sec. 2D1.1(c)(1). The district
court heard evidence regarding the amount
of crack cocaine actually purchased from
Spiller on July 1, 1999, regarding the
amounts purchased by the various
witnesses over time and testimony
regarding ledgers found in the
defendant’s home, determined to be in his
handwriting and thoroughly explained by
an expert. All of this evidence had a
sufficient indicia of reliability to
support the district court’s
determination, by a preponderance of the
evidence, that the crack quantities far
exceeded 1.5 kilograms. Moreover, even
without the ledgers, the evidence
described sufficiently demonstrated that
the quantity of drugs had exceeded 1.5
kilograms. Therefore, it was not clear
error to sentence Spiller at an offense
level of 38.

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While it is less than clear, Spiller
also seems to argue that relevant conduct
must be proven to the jury beyond a
reasonable doubt before it can be used to
increase a defendant’s sentence. We have
rejected this argument "as long as that
determination does not result in the
imposition of a sentence that exceeds the
statutory maximum penalty for that
crime." United States v. Jones, 248 F.3d
671, 677 (7th Cir. 2001) (citation
omitted). As discussed below, Spiller was
not sentenced in excess of the statutory
maximum and therefore a jury was not
required to find the quantity of drugs
beyond a reasonable doubt. That being
said, the government’s prosecution in
this case is subject to criticism. The
government sought to attribute 28,000
grams to Spiller as relevant conduct--
over 5000 times the amount for which
Spiller was found guilty. Even the
minimum 1.5 kilograms necessary to apply
base offense level 38 is 1494.8 grams
more than the 5.2 grams for which Spiller
was actually indicted. "[W]e again remind
prosecutors ’not to indict defendants on
relatively minor offenses and then seek
enhancement sentences later by asserting
that the defendant has committed other
more serious crimes for which, for
whatever reason, the defendant was not
prosecuted and has not been convicted.’"
United States v. Bacallao, 149 F.3d 717,
721 (7th Cir. 1998) (quoting United
States v. Fischer, 905 F.2d 140, 142 (7th
Cir. 1990)).
C. Apprendi Claims
Next, Spiller argues that his Fifth and
Sixth Amendment rights were violated when
the district court increased his sentence
based on conduct not submitted to the
jury and proven beyond a reasonable
doubt./7 If a defendant argues that a
sentence was imposed in violation of the
law, our review is de novo. See United
States v. Guy, 174 F.3d 859, 861 (7th
Cir. 1999).
The now oft-cited Apprendi rule states
that "[o]ther than the fact of a prior
conviction, any fact that increases the
penalty for a crime beyond the statutory
maximum must be submitted to a jury, and
proved beyond a reasonable doubt."
Apprendi v. New Jersey, 530 U.S. 466, 490

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(2000). In this case, the superseding
indictment contained the quantities of
crack cocaine in Counts I and II, 3.3
grams and 1.9 grams, respectively, but
the jury instructions contained no
references to drug quantity. For Counts I
and II, Spiller was sentenced under 21
U.S.C. sec. 841(b)(1)(c), which provides
punishment for conviction of an
undetermined amount of crack cocaine. The
maximum sentence under this statute is 30
years’ imprisonment when the defendant
has been previously convicted of a drug
felony (as Spiller has been). See 21
U.S.C. sec. 841(b)(1)(C). For Count III,
maintaining a drug house, the maximum
penalty is 20 years. See 21 U.S.C. sec.
856. Since the sentences Spiller received
(24.33 years on Counts I and II and 20
years on Count III) are less than the
statutory maximums, Apprendi is not
implicated.
Spiller also insinuates that the fact of
his prior convictions improperly elevated
the statutory maximum from 20 to 30
years. The indictment did not refer to
his prior convictions, nor were they
submitted to the jury./8 Although
Spiller did raise an Apprendi argument
regarding drug quantity, he did not do so
for the prior convictions. In fact, he
did not object at all to the use of the
prior convictions at sentencing and
acknowledged at the hearing that the
maximum for Counts I and II was 30 years.
Accordingly, our review is for plain
error. United States v. Robinson, 250
F.3d 527, 529 (7th Cir. 2001). No such
error occurred. The plain language of
Apprendi refutes Spiller’s argument:
"[o]ther than the fact of a prior
conviction, any fact that increases the
penalty for a crime beyond the statutory
maximum must be submitted to a jury and
proved beyond a reasonable doubt."
Apprendi, 530 U.S. at 490 (emphasis
added). Therefore, there was no need to
submit the issue of a prior conviction to
the jury, and the government’s
introduction of certified copies of
Spiller’s prior convictions was
sufficient to support the district
court’s conclusion that the statutory
maximum was 30 years.
D. Length of Sentence in Excess of Life
Expectancy
Lastly, Spiller argues that his Eighth

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Amendment rights/9 were violated when
the district court denied his motion for
downward departure and sentenced him to
352 months (29.33 years), a sentence
exceeding his life expectancy of 16.96
years. We lack jurisdiction to review a
district court’s refusal to make a
downward departure, unless the sentence
is imposed in violation of the law or as
a result of an incorrect application of
the Sentencing Guidelines. See Johnson,
227 F.3d at 816.
Spiller states that he is not making an
age-based downward departure request
(which would preclude our review of the
district court’s decision), but rather
argues that the sentence was imposed in
violation of the law, specifically 21
U.S.C. sec. 841(b)(1)(c), which states
that "a person shall be sentenced to a
term of not . . . more than life."
(emphasis added). Spiller argues that any
sentence in excess of his life expectancy
is more than life and therefore
prohibited under the statute. In support
of his position, Spiller cites to Martin,
63 F.3d at 1434, where this court held
that "where a legislatively enacted
sentencing scheme has expressly deprived
a court of the possibility of imposing a
life sentence, a sentence for a term of
years exceeding the defendant’s
approximate life expectancy would
ordinarily constitute an abuse of
discretion."
The district court rejected Spiller’s
argument, concluding that Martin applied
in only limited circumstances. In Martin,
the court sentenced a 45-year-old
defendant to a 50-year prison term
pursuant to 18 U.S.C. sec. 34, following
his arson conviction under 18 U.S.C. sec.
844(i). At the time of Martin’s trial,
Section 34 provided that imposing a
sentence of life imprisonment (or the
death penalty) must be left to the
discretion of the jury./10 Where the
jury declined to direct life
imprisonment, we found that the district
court abused its discretion in
circumventing that decision by imposing a
sentence so long that it effectively
amounted to a life sentence under another
name. Id. at 1434. Even in the text of
that case, however, we limited its
applicability, noting that the later
amendment to Section 34 "renders this
case something of an historical oddity

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whose precise holding may have a limited
reach." Martin, 63 F.3d at 1432 n.6. See
also United States v. Prevatte, 66 F.3d
840, 844 (7th Cir. 1995) (when sentencing
a defendant under Section 34,
"[d]etermining the life expectancy of the
individual defendant is a matter that
ought to be addressed by the district
court.").
We have since noted the limited scope of
Martin and Prevatte. For example, in
United States v. DiDomenico, 78 F.3d 294,
298 (7th Cir.), cert. denied, 519 U.S.
1006 (1996), the defendants were not
sentenced pursuant to Section 34 and thus
we dismissed their life expectancy
arguments as "frivolous." Even under the
Martin analysis, the sentencing scheme of
21 U.S.C. sec. 841(b)(1)(c) does not
expressly deprive a court of the
possibility of imposing a life sentence.
Consequently, here, the district judge
was free to impose any sentence under the
statutory maximum and within the
guideline range that he deemed to be
appropriate in the proper exercise of his
discretion. Accordingly, we reject
Spiller’s argument that because a
particular sentence would be the
equivalent of a life sentence, he is
entitled to a downward departure. To hold
otherwise would be to require that the
sentencing judge consider in every case a
defendant’s life expectancy and we
decline to impose such an onerous burden
on sentencing judges./11
III. Conclusion
Based on the foregoing reasons, we AFFIRM
the decision of the district court.
FOOTNOTES
/1 The felony charged in Count V of the superseding
indictment was for unlawful use of weapons in St.
Clair County, Illinois in 1996. The parties
stipulated to this felony conviction. A certified
copy of the prior conviction was attached to the
government’s Version of the Offense for consider-
ation at sentencing.
/2 Before trial began, the following exchange took
place.
Antoniou (Spiller’s attorney): "I’m going to have
a running objection to the ledgers in general,
because I think that it’s not obvious that they
are all drug ledgers as they are purporting to

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be."
Clark (prosecutor): "The way I understand, Vanes-
sa, is that we’re stipulating not that they are
admissible, but that they simply fall within the
time period of the superceding indictment."
Court: "I still have to rule whether they’re
admissible or not as far as relevance."
Antoniou: "Exactly. I’m not going to stipulate
that they’re admissible as drug ledgers or admis-
sible otherwise."
/3 This was a separate objection from the objection
to the initial admission of the ledgers into
evidence.
/4 The district court, however, declined to find
that the relevant conduct of 28,000 grams had
been proven beyond a reasonable doubt, believing
it unnecessary to its determination.
/5 Spiller does not object to the records based on
foundation or authentication. The ledgers were
found within Spiller’s home and a handwriting
expert determined that they were in Spiller’s own
hand. No evidence was presented to suggest that
Spiller was not the author of the documents.
These circumstances are sufficient to support a
finding that the ledgers were written by him.
/6 The government also argues that the ledgers fall
under the business records exception to the
hearsay rule. See Fed. R. Evid. 803(6). However,
there was no testimony by a custodian or any
other qualified witness with personal knowledge
establishing that the records had been kept in
the ordinary course of business or that they were
otherwise trustworthy. The expert witnesses were
the only witnesses who testified regarding the
ledgers and they did so convincingly. Neverthe-
less, they did not have personal knowledge of the
specific transactions described in the ledgers.
Without such corroborating testimony, the ledgers
do not fall under the business records exception.
/7 At sentencing, the district court stated, "I’m
not going to say established beyond a reasonable
doubt, but it was certainly ample evidence from
which the Court can find that there was 28,000
grams. Which if you read Clouse’s testimony or
you heard Clouse’s testimony, it was convincing,
and not necessary that the jury or the Court find
beyond a reasonable doubt that it was 28,000
grams, as I understand the law."
/8 These convictions were distinct from the one
listed in the indictment for Count V. The govern-
ment introduced certified copies of these prior

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convictions in its Version of the Offense for use
at sentencing on Counts I and II.
/9 While the heading in Spiller’s brief mentions the
Eighth Amendment, nowhere else in his argument
does he mention the Eighth Amendment. Arguments
not developed on appeal are waived, and therefore
we do not address Spiller’s life expectancy
argument under the Eighth Amendment. See United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991) ("A skeletal ’argument,’ really nothing
more than an assertion, does not preserve a claim
[for appellate review].") In any event, the very
case Spiller relies upon rejected the argument
that a lengthy sentence violated the Eighth
Amendment. See United States v. Martin, 63 F.3d
1422, 1432 (7th Cir. 1995).
/10 This provision was later amended to remove the
jury from sentencing altogether.
/11 The provision for age-based downward departures
is sufficient to allow the district court to
impose more equitable sentences where appropri-
ate. "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 incar-
ceration." U.S.S.G. sec. 5H1.1. As noted, if this
had been a denial of a purely age-based departure
request, we would have no authority to review it.
In any event, Spiller did not produce any evi-
dence that he is elderly or suffering from any
incapacity.

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