eLaws | Code of Federal Regulations | United States Code |
 All Courts
 Federal Courts
 US Court of Appeals Cases
 Court of Appeals for the Fifth Circuit
 2008-09

United States v. Thurman , 294 F. App'x 149 ( 2008 )


Menu:
 
  •          IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
September 26, 2008
No. 07-11312
Summary Calendar             Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUDY A THURMAN
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:07-CR-47-ALL
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Judy A. Thurman pleaded guilty to one count of theft of assets of a labor
organization affecting commerce. Thurman moved for a sentence below the
recommended range based on her physical, mental, and emotional impairment.
Thurman had undergone several surgeries, had been diagnosed with bipolar
disorder, and was being treated for major depression and anxiety disorder. The
district court denied the motion and sentenced Thurman to 21 months in prison.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 07-11312
Thurman argues that she received an unreasonable sentence. Thurman
argues that the sentence was greater than necessary to achieve the sentencing
goals set forth in 18 U.S.C. § 3553(a) because her physical ailments “stand to
make prison unusually difficult and costly” and that her “emotional state will
also render prison unusually trying.” See United States v. Nikonova,
    480 F.3d 371
    , 375 (5th Cir.), cert. denied,
    128 S. Ct. 163 
    (2007)). Procedurally sound
sentences imposed inside or outside the Guidelines range are reviewed for
reasonableness under an abuse-of-discretion standard. Gall v. United States,
    128 S. Ct. 586 
    (2007). This court has held that sentences within a properly
calculated Guidelines range should be afforded a rebuttable presumption of
reasonableness, and the Supreme Court has upheld the use of this presumption.
Id.; Rita v. United States,
    127 S. Ct. 2456
    , 2462 (2007); United States v. Alonzo,
    435 F.3d 551
    , 554 (5th Cir. 2006).
Although physical condition is not usually relevant in determining
whether a departure is warranted, “an extraordinary physical impairment may
be a reason to impose a sentence below the applicable guideline range.” U.S.S.G.
§ 5H1.4.   Although it may be true that Thurman’s physical and mental
impairments could have supported a sentence below the guidelines range, she
cannot show that they would mandate one under the precedent of this circuit.
See United States v. Castillo,
    430 F.3d 230
    , 240-41 (5th Cir. 2005) (holding that
defendant’s HIV-positive status did not constitute an extraordinary medical
condition warranting a departure); United States v. Winters,
    105 F.3d 200
    , 208-
09 (5th Cir. 1997) (holding that defendant’s sarcidosis, a chronic inflammation
of multiple organs, was not an exceptional medical condition requiring a
downward departure); and United States v. Guarjardo,
    950 F.2d 203
    , 208 (5th
Cir. 1991) (holding that a departure was not warranted for a defendant who
suffered from cancer in remission, high blood pressure, a fused right ankle, drug
dependency, and an amputated left leg). On appeal, Thurman has not presented
2
No. 07-11312
anything to overcome the presumption that the district court imposed a
reasonable sentence. Thurman’s sentence is AFFIRMED.
3