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Full Opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 2002 Decided October 25, 2002
No. 01-3020
United States of America,
Appellee
v.
Juan Brooke,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 00cr00190-01)
H. Heather Shaner, appointed by the court, argued the
cause and filed the brief for appellant.
Michael C. Liebman, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, and John R. Fisher and William
B. Wiegand, III, Assistant U.S. Attorneys.
Before: Henderson, Tatel, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: In this appeal, defendant Juan
Brooke challenges the sentence he received after pleading
guilty to a drug conspiracy charge. At sentencing, the dis-
trict court denied Brooke's request to depart downward from
the applicable United States Sentencing Guidelines range
based on his age and physical condition. Because the district
court properly understood the guidelines and its authority to
depart, and did not make clearly erroneous factual findings,
we affirm the court's decision not to grant the defendant a
departure.
I
On April 6, 2000, officers of the Metropolitan Police De-
partment searched Brooke's apartment pursuant to a search
warrant. Upon entering the apartment, the officers found
Brooke in the bedroom, sitting on the bed. In his pants
pocket was a bag containing seventy individually-wrapped
packets of cocaine base, totaling 8.8 grams of the drug. On
the bed next to Brooke were three large plastic bags contain-
ing a total of 63 grams of cocaine base. After negotiation
with the government, Brooke waived indictment and pled
guilty to one count of violating 18 U.S.C. s 371, which pro-
scribes conspiracies to commit offenses against the United
States, by conspiring to distribute and possess with intent to
distribute cocaine base in violation of 21 U.S.C. ss 841(a)(1)
and 841(b)(1)(A)(iii).
Brooke's conviction, at the age of 82, was his third since
coming to the United States in 1980. In 1989, at the age of
70, he was convicted in federal district court of possession
with intent to distribute cocaine base. After serving 60
months in prison, Brooke was placed on supervised release.
In 1997, at the age of 78 and while on supervised release for
the 1989 conviction, Brooke was convicted in District of
Columbia Superior Court on cocaine-related charges. After
serving six months in prison, he was released on probation.
Brooke was still on probation at the time of the April 6, 2000
arrest that led to the sentence that is the subject of the
current appeal.
For a person with Brooke's criminal history, and with
credit for acceptance of responsibility, the amount of drugs
found on his person and on his bed would normally have
generated a guideline sentencing range of 121-151 months.
See Presentence Report p 50. In this case, however, the
government's agreement to charge Brooke with conspiracy
under 18 U.S.C. s 371, rather than with the substantive
offense of distribution under 21 U.S.C. s 841, dictated a
guideline sentence of only 60 months, the statutory maximum
for violations of s 371. See U.S.S.G. s 5G1.1(a) (providing
that where the statutory maximum is less than the minimum
of the applicable guideline range, the guideline sentence is the
statutory maximum).
After his plea, Brooke filed a sentencing memorandum with
the district court, seeking a downward departure from his
guideline sentence based on his age and physical condition.
Brooke's memorandum stated that he was 82 years old, and
that he had the following "serious physical infirmities": (1) a
"markedly swollen right knee" with "obvious joint effusions,
and tenderness and flexion of knee of only 6 degrees with
some pain"; (2) "stiffness in his hands and difficulty holding
objects"; (3) prior evaluations for "chest pains"; and (4)
"respiratory problems and arthritis." Def.'s Sentencing
Mem. at 3. Although the district judge told Brooke that "I
recognize I have discretion" to grant the requested departure,
Tr. at 22, he declined to do so and sentenced the defendant to
60 months' imprisonment.
II
In the ordinary case, a district court must impose a sen-
tence falling within the applicable guideline range. See 18
U.S.C. s 3553(b); Koon v. United States, 518 U.S. 81, 92
(1996). A court may depart from the applicable range, how-
ever, if it "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 formulat-
ing the guidelines that should result in a sentence different
from that described." 18 U.S.C. s 3553(b). According to the
United States Sentencing Commission, the two departure
factors at issue here, age and physical condition, are "not
ordinarily relevant in determining whether a sentence should
be outside the applicable guideline range." U.S.S.G. s 5H1.1
(age); U.S.S.G. s 5H1.4 (physical condition). Under the tax-
onomy set forth by the Supreme Court in Koon, such factors
are termed "discouraged factors." Koon, 518 U.S. at 95. As
the Court explained, where the departure factor at issue is a
discouraged factor, "the court should depart only if the factor
is present to an exceptional degree or in some other way
makes the case different from the ordinary case where the
factor is present." Id. at 96.1
Our standard for reviewing a district court's refusal to
depart downward from an applicable guideline range is by
now well settled. We may review such a decision only to
determine whether the sentence was imposed "in violation of
law" or "as a result of an incorrect application of the sentenc-
ing guidelines." 18 U.S.C. s 3742(a)(1)-(2); see United States
v. Greenfield, 244 F.3d 158, 160 (D.C. Cir. 2001); United
States v. Leandre, 132 F.3d 796, 800 (D.C. Cir. 1998); United
States v. Sammoury, 74 F.3d 1341, 1343 (D.C. Cir. 1996). In
so doing, we must "accept the findings of fact of the district
court unless they are clearly erroneous," and "give due
deference to the district court's application of the guidelines
to the facts." 18 U.S.C. s 3742(e); see Greenfield, 244 F.3d
at 160.
A district court's refusal to depart based on the mistaken
belief that it lacks authority to do so constitutes an incorrect
application of the guidelines. Sammoury, 74 F.3d at 1344.
So, too, does a refusal to depart based on a clearly erroneous
factual finding that a circumstance warranting departure is
__________
1 See U.S.S.G. ch. 5, pt. H, intro. comment. ("[A]lthough these
factors are not ordinarily relevant to the determination of whether a
sentence should be outside the applicable guideline range, they may
be relevant to this determination in exceptional cases."); see also
U.S.S.G. s 5K2.0.
absent. Id. at 1344-45. However, "if the judge correctly
understood the Sentencing Guidelines and the evidence, knew
he could depart, and yet decided to stick to the guideline
range, there has been no incorrect application of the Guide-
lines ... and so the resulting sentence cannot be set aside."
Id. at 1343. In short, a "court's discretionary decision that
the particular circumstances of a given case do not warrant a
departure ... is not reviewable." United States v. Pinnick,
47 F.3d 434, 439 (D.C. Cir. 1995); see United States v.
Draffin, 286 F.3d 606, 609 (D.C. Cir. 2002); United States v.
Washington, 106 F.3d 983, 1016 (D.C. Cir. 1997).
III
Brooke contends that the district court erred by failing to
grant him a departure under policy statements contained in
two sections of the Sentencing Commission's Guidelines Man-
ual, s 5H1.1 and s 5H1.4. Cognizant of our standard of
appellate review, the defendant contends that the court failed
to grant a departure because it misunderstood the guidelines
and its authority to depart under those sections, and because
it made a clear error of fact regarding his physical condition.
We find to the contrary: The district court correctly under-
stood the guidelines, expressly recognized its discretion to
depart, Tr. at 22, and made no clear factual errors.
A
The first section cited by the defendant is s 5H1.1, which is
entitled "Age" and provides:
Age (including youth) is not ordinarily relevant in deter-
mining whether a sentence should be outside the applica-
ble 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. Physical
condition, which may be related to age, is addressed at
s 5H1.4....
U.S.S.G. s 5H1.1 (emphasis added). The district court re-
stated this section verbatim during the sentencing hearing
and then proceeded to consider each of the three elements
italicized above. Tr. at 18-19.
There was, of course, no question that the 82-year-old
defendant was "elderly." Nor did the court dispute that the
defendant was "infirm."2 To the contrary, the court stated
that "I have gone through the medical records which you
have attached, as I've said, as to his age and his disabilities,
and I think his disabilities are there." Tr. at 7. Further, the
court accepted all of Brooke's specific representations regard-
ing his disabilities:
The medical records here indicated ... that you have a
badly swollen right knee; that it's been indicated that it's
causing you terrible pain and suffering that has to be
drained constantly. You also are getting arthritis in
your hands and other joints. You have difficulty holding
objects. You've had respiratory problems and chest
pain.
Tr. at 19-20.
Nor did the court hold that these medical infirmities were
insufficient to permit a departure under s 5H1.1.3 Rather,
the problem the court discerned was with the third element of
s 5H1.1: that an alternative "form of punishment such as
__________
2 Referring to both s 5H1.1 and s 5H1.4, the court did state that
the "case law indicates that these sections do not permit a down-
ward departure for elderly defendants who are in good health." Tr.
at 19. Contrary to the defendant's suggestion, however, the court
was not implying that Brooke was "in good health," but merely (and
correctly) reciting the elements of the two guideline sections. In-
deed, the court's statement was little more than a paraphrase of the
defendant's own sentencing memorandum. See, e.g., Def.'s Sentenc-
ing Mem. at 2 ("s 5H1.1 does not permit a downward departure for
an elderly defendant in good health....").
3 At one point in the hearing, the court did refer to a requirement
of "extraordinary" physical impairment, and found that Brooke did
not meet it. Tr. at 19; see id. at 7, 21. The court's reference,
however, was not to s 5H1.1 but to s 5H1.4, which does contain the
word "extraordinary" and is discussed in the text below. At
another point, the court stated that Brooke's infirmity did not rise
home confinement ... be equally efficient as ... incarcera-
tion." The court concluded that home confinement would not
be effective in restraining the defendant's criminal conduct
because Brooke had a history of drug dealing in his home:
"[I]n your apartment, at least on two separate occasions,
you've been arrested and convicted of dealing drugs...."
Tr. at 20. And whether we regard the court's conclusion
about relative effectiveness as one of fact, which we may set
aside only for clear error, or simply as the court's rationale
for declining to exercise its discretion in Brooke's favor, which
we may not review at all, we have no warrant to reverse it.
See Sammoury, 74 F.3d at 1344; Pinnick, 47 F.3d at 439.
Brooke also contends that the district court erred in declin-
ing to depart under s 5H1.4, which applies to departures
based on "Physical Condition" and states in relevant part:
Physical condition or appearance, including physique, is
not ordinarily relevant in determining whether a sen-
tence should be outside the applicable guideline range.
However, an extraordinary physical impairment may
be a reason to impose a sentence below the guideline
range; e.g., in the case of a seriously infirm defendant,
home detention may be as efficient as, and less costly
than, imprisonment.
U.S.S.G. s 5H1.4 (emphasis added). As with s 5H1.1, the
court read the section verbatim at the sentencing hearing and
explained why it did not regard the section as warranting
departure. Tr. at 19. This time, however, the court conclud-
ed that Brooke's impairment was insufficient to qualify under
the section. Unlike s 5H1.1, s 5H1.4 requires not just "in-
firm[ity]" but "extraordinary physical impairment," and while
the court did not dispute the underlying facts of Brooke's
medical condition, it did not regard them as reflecting an
__________
to the "level under the case law for departing because of serious
physical impairments that would be exacerbated by incarcera-
tion...." Tr. at 21. Again, this was not a reference to s 5H1.1,
but rather to a potential ground for departure set forth in United
States v. Baron, 914 F. Supp. 660, 662-63 (D. Mass. 1995), and
discussed in Part III.B below.
extraordinary impairment. Tr. at 7, 19, 21. Although we are
uncertain whether the district court intended this conclusion
as a finding of fact (i.e., that Brooke's impairment was not
extraordinary by comparison to that of many other defen-
dants),4 or as an expression of its rationale for declining to
exercise discretion (i.e., that the impairment was insufficiently
extraordinary to move the court to exercise its discretion in
Brooke's favor), our disposition of this appeal is again unaf-
fected. If the former, the district court's conclusion was not
clearly erroneous in light of the medical evidence of record; if
the latter, the court's conclusion is unreviewable.
B
In addition to the errors Brooke alleges concerning
ss 5H1.1 and 5H1.4, he suggests that the district court
further erred in thinking itself without discretion to depart
unless the specific elements listed in those sections were
satisfied. Indeed, the court did repeatedly state that it did
not believe a departure was warranted under those sections.5
__________
4 The Supreme Court has suggested that a determination based
on such a comparison is one of fact, or is at least closely intertwined
with factual considerations. Cf. Koon, 518 U.S. at 100 ("What the
district court must determine is whether the misconduct that oc-
curred in the particular instance suffices to make the case atypical.
The answer is apt to vary depending on, for instance, the severity of
the conduct, its timing, and the disruption it causes. These consid-
erations are factual matters."). But even if such a comparison were
instead regarded as an application of the guidelines to the facts, we
would still owe the district court "due deference," 18 U.S.C.
s 3742(e), which on this kind of question would be substantial. Cf.
Koon, 518 U.S. at 98 ("[W]hether a discouraged factor nonetheless
justifies departure because it is present in some unusual or excep-
tional way, [is] ... determined in large part by comparison with the
facts of other Guidelines cases. District courts have an institutional
advantage over appellate courts in making these sorts of determina-
tions, especially as they see so many more Guidelines cases than
appellate courts do.").
5 For example, the court stated that the "case law indicates that
these sections do not permit a downward departure for elderly
But the reason that the court's statements were couched in
terms of the elements of those sections was that the court
was responding to the defendant's own sentencing memoran-
dum, which relied on those sections as the grounds for the
requested departure. See Def.'s Sentencing Mem. at 2. Ac-
cordingly, the court's conclusion that departure was unwar-
ranted "under these sections" expressed nothing more than
its rejection of defendant's request premised on those sec-
tions. It did not reflect a belief that those were the only
possible grounds for departure.
The court's express consideration of additional grounds for
departure belies the claim that it thought itself constrained
by the two guideline sections. For example, exploring a
potential ground for departure not mentioned in s 5H1.4, the
court suggested that "perhaps" it could "depart where there
is serious physical impairment[ ] that can be exacerbated by
incarceration and cannot be adequately treated by the Feder-
al Bureau of Prisons," citing a case from the District of
Massachusetts. Tr. at 19 (citing United States v. Baron, 914
F. Supp. 660 (D. Mass. 1995)). In the end, the court declined
to depart on that ground because it concluded that the
Bureau of Prisons could adequately treat Brooke's maladies
"at least ... as well as any other place can," Tr. at 21, a
factual finding that is not contradicted by anything in the
record.
The court also considered another rationale for departure
not contained in the cited guideline sections: that Brooke
would be vulnerable to physical abuse in prison. The district
court noted this court's holding, in United States v. Graham,
83 F.3d 1466 (D.C. Cir. 1996), that "to qualify for a downward
departure" on that ground, "a defendant's vulnerability must
be so extreme as to substantially affect the severity of the
__________
defendants who are in good health." Tr. at 19 (emphasis added).
In light of the sections' references to a defendant who is "infirm,"
s 5H1.1, or who has "an extraordinary physical impairment,"
s 5H1.4, the court's statement is accurate. Indeed, the defendant's
own sentencing memorandum made the same point. See Def.'s
Sentencing Mem. at 2, quoted supra note 2.
confinement, such as where only solitary confinement can
protect the defendant from abuse." Id. at 1481; see also
Def.'s Sentencing Mem. at 4 ("Defendant Brooke acknowl-
edges that this departure is reserved for extraordinary situa-
tions...."). Concluding that Brooke was not "so [infirm] or
disabled" as to come within the terms of Graham, the district
court denied a departure on that basis. See Tr. at 22. And
whether we regard that conclusion as a finding of fact or as
an application of the rule of Graham to the facts of Brooke's
condition, see generally supra note 4, we have no cause to
overturn it.
The district court went on to consider still two more
departure possibilities, neither of which was even mentioned
in Brooke's own sentencing memorandum. First, it consid-
ered whether the defendant's advanced age alone warranted a
departure, concluding that "in this case, I do not see age as a
reason alone." Tr. at 21 (emphasis added). This was so, the
court explained, because the defendant's age did not appear
to serve as a deterrent to his continuing criminal conduct:
"Even though you're elderly, it's evident that you were a drug
dealer and that's what you decided to do when you were 70
years old and have kept it up." Id. at 22. The court had set
this point out in even greater detail at the outset of the
hearing:
What concerns me regarding his age ... is ... when he
was 70 he was convicted of unlawful possession with
intent to distribute five grams or more of cocaine base
here in this court. And then he was 78 and he was
convicted again in Superior Court. My concern is de-
parting ... and letting him just, because of his age and
health concerns, go back to his apartment here, and it
seems he goes back to a drug life again. I don't know
how I protect society by just letting him out.
Tr. at 8. That explanation, which expressed the district
court's rationale for declining to exercise its discretion, is
unreviewable by this court.6
__________
6 We therefore have no occasion to consider defendant's sugges-
tion that extreme age, even in the absence of infirmities or other
Finally, the court sua sponte considered whether "an accu-
mulation of all" of the factors present in Brooke's case
warranted the exercise of its discretion to depart. Tr. at 22;
see generally U.S.S.G. s 5K2.0, comment. ("The Commission
does not foreclose the possibility of an extraordinary case
that, because of a combination of such characteristics or
circumstances, differs significantly from the 'heartland' of
cases covered by the guidelines...."). Effectively address-
ing the question in terms of the statutory direction to deter-
mine whether factors unconsidered by the Sentencing Com-
mission "should result in a sentence different from" that
specified by the guidelines, 18 U.S.C. s 3553(b), the court
concluded that the defendant's plea bargain had already
reduced his sentence to a level the court regarded as appro-
priate. See Tr. at 22. This expression of an additional
rationale for refusing to exercise the court's discretion is,
once again, unreviewable.
IV
The district court did not misunderstand the sentencing
guidelines or its authority to depart from the applicable
guideline range. Nor did it clearly err in finding the facts
relevant to a potential departure. The court did conscien-
tiously explain to the defendant its rationale for declining to
exercise its discretion in his favor, but that is a decision this
court lacks authority to review. Accordingly, the judgment of
the district court is
Affirmed.
__________
considerations, would be sufficient to justify a departure. Cf.
United States v. Goff, 20 F.3d 918, 921 (8th Cir. 1994) (reversing a
district court's grant of a departure for a 67-year-old defendant in
good health).