United States v. Melroy Johnson, Sr., United States of America v. Melroy Johnson, Sr.

WOLLMAN, Circuit Judge.

Meiroy Johnson, Sr. appeals his conviction on two counts of possession with intent to distribute cocaine base and one count of distribution of cocaine base, violations of 21 U.S.C. § 841(a)(1). The government cross-appeals from the five-year downward departure the district court granted based on Johnson’s physical condition. We affirm the convictions and reverse and remand for resentencing.

I.

Based on information provided by a confidential informant, the Sioux City Police Department obtained search warrants for three residences associated with Johnson. The officers found crack cocaine at two of the residences, as well as drug paraphernalia and marijuana at one of the residences.

Johnson, who was born on July 10, 1955, was charged with possession with intent to distribute crack cocaine and distribution of crack cocaine. Over Johnson’s objection on grounds of lack of relevancy, evidence regarding the marijuana was introduced by the government as proof that the drugs and drug paraphernalia belonged to Johnson. On appeal, Johnson argues that evidence of this small amount of “personal use” marijuana constituted inadmissible character evidence because it was admitted solely to show Johnson’s disposition for criminal conduct. In a pro se brief, Johnson raises some objections to his sentence.

II.

We turn first to Johnson’s arguments. We review a district court’s determination of relevance under an abuse of discretion standard. United States v. Taylor, 106 F.3d 801, 803 n. 2 (8th Cir.1997). “[Ejvidence of prior possession of drugs, even in an amount consistent only with personal use, is admissible to show such things as knowledge and intent of a defendant charged with a crime in which intent to distribute drugs is an element.” United States v. Logan, 121 F.3d 1172, 1178 (8th Cir.1997). Accordingly, the district court did not abuse its discretion in admitting the evidence of the marijuana.

Because it was not raised in the district court, we decline to reach Johnson’s contention that the marijuana should have been excluded as inadmissible character evidence under Federal Rules of Evidence 404(b). Dejan- v. United States, 208 F.3d 682, 687 (8th Cir.2000). The arguments raised in Johnson’s pro se brief are without merit. Accordingly, we affirm the convictions on all three counts.

III.

On cross-appeal, the government argues that the district court abused its discretion in granting a five-year downward departure based on Johnson’s physical condition. Under U.S.S.G. § 5H1.4, a downward departure may be granted if the defendant suffers from an “extraordinary physical impairment.”¹ Physical impairment is, however, a discouraged basis for departure under the analysis set out in Koon v. United States, 518 U.S. 81, 95, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); see also United States v. Orozco-Rodriguez, 220 F.3d 940, 942 (8th Cir.2000); United States v. LeBlanc, 24 F.3d 340, 348 (1st Cir.1994). “The Commission does not view discouraged factors ‘as necessarily inappropriate’ bases for departure but says they should be relied upon only ‘in exceptional cases.’ ” Koon, 518 U.S. at 95, 116 S.Ct. 2035 (quoting 1995 U.S.S.G. ch. 5, pt. H, intro, comment.). We review a district court’s decision to depart under an abuse of discretion standard. Koon, 518 U.S. at 99, 116 S.Ct. 2035.

Following his conviction by a jury on January 6, 2000, Johnson was incarcerated pending his sentencing hearing. On March 13, 2000, Johnson was admitted to the Mercy Medical Center in Sioux City, Iowa, following his complaint of chest pains. Tests revealed that he had suffered a myocardial infarction, and a stent was inserted into his right coronary artery. Johnson was admitted to the Federal Medical Center at Rochester, Minnesota (FMC-Rochester), on March 15, 2000, for further evaluation of his cardiac problems and management of his diminished left ventricle function and coronary artery disease. He underwent a coronary angio-gram at the Mayo Clinic on August 9 and on September 6, 2000, was transferred from FMC-Rochester to the custody of the United States Marshals Service.

At sentencing, the district court considered a report submitted by Johnson that was prepared by Arthur S. Leon, M.D., Professor of Exercise Science and Health Enhancement and Director of Laboratory of Physiological Hygiene and Exercise at the University of Minnesota. Dr. Leon, who did not examine Johnson personally, reviewed the medical records from the Mercy Medical Center and the Mayo Clinic. Based upon that review, Dr. Leon concluded that Johnson suffers from two potentially life-threatening health problems, i.e., coronary heart disease, with hypertension a contributing factor, and Hodgkin’s disease. He found that the cardiac catheterization that Johnson underwent on August 9, 2000, revealed a marked improvement in his left ventricular ejection fraction, resulting in a nearly normal ejection fraction of 49%. As of August 2000, physical examinations and chest x-rays revealed no evidence of congestive heart failure. Dr. Leon’s report states that although Johnson clearly has severe coronary artery disease, with extensive permanent heart damage, thanks to the excellent medical management at the Mayo Clinic his heart function is currently well compensated. He noted that Johnson’s cardiologist had recommended that Johnson continue medical therapy, that he could perform normal physical activities, and that he was not a candidate for any further revascular procedures at that time. Dr. Leon rated Johnson’s current functional capacity, based on the New York Heart Association Classification System, “as 2 on a scale of 1 (no limitations) to 4 (severe incapacitation).” He opined that Johnson has “an estimated 10% to 20% possibility of a recurrent fatal or nonfatal coronary event in the next 5 years.” Dr. Leon noted that Johnson “would benefit a great deal in terms of quality of life, as well as an improved prognosis by a formal, physician-supervised, cardiac rehabilitation program as described in one of my recent publications.”

Dr. Leon found that Johnson’s Hodgkin’s disease was currently in remission, that it had been adequately treated some eight years earlier, and that “he has a good prognosis with a high probability of a cure.”

Dr. Leon concluded his report by stating that although Johnson has multiple medical problems, “[w]ith aggressive medical management at the Mayo Clinic his cardiac status currently is stable with just moderate functional impairment; however, his long range prognosis is guarded with a 10 to 20% probability of a recurrent nonfatal or fatal coronary event in the next five years. Continued regular medical care by a cardiologist is essential for management of his heart problem.”

In rebuttal, the government submitted an affidavit from Ronald Ilvedson, M.D., a staff physician at FMC-Rochester, in which Dr. Ilvedson stated that the Federal Bureau of Prisons provides a full range of medical services at each of its 91 institutions. The affidavit recounted the medical treatment that was provided to Johnson by the cardiologists at the Mayo Clinic during Johnson’s stay at FMC-Rochester prior to his sentencing, including the August 9, 2000, coronary angiogram referred to in Dr. Leon’s report. Dr. Ilvedson stated that the members of the medical staff at FMC-Rochester routinely encounter patients who present with diagnoses the same or similar to Johnson’s, that Johnson’s condition is not unlike other inmates currently situated with the Bureau of Prisons, and that Johnson’s care could be managed during his incarceration.

The district court continued the sentencing hearing so as to be able to conduct a teleconference with personnel at FMC-Rochester to determine what cardiac rehabilitation services are available at the institutions operated by the Bureau of Prisons. During the teleconference, the associate warden of medical services at FMC-Rochester described the cardiac rehabilitation services that are available at that institution and at the other institutions operated by the Bureau of Prisons. Following the warden’s presentation, Dr. Ilvedson stated that if Johnson were to be returned to FMC-Rochester he would be put on a physician-supervised cardiac rehabilitation program. He stated that when Johnson left FMC-Rochester in September of 2000, he was doing well with most of his medical problems: his Hodgkin’s disease had not recurred; his cholesterol and blood pressure were controlled; he was not smoking; and his most recent coronary angiogram revealed no reason for surgery.

The district court found that Johnson suffers from an extraordinary physical impairment. It then addressed the three questions that must be answered for each defendant who claims the benefit of § 5H1.4: (1) whether the defendant’s physical condition is such that the defendant would find imprisonment more than the normal hardship; (2) whether imprisonment would subject the defendant to more than the normal inconvenience or danger; and (3) whether the defendant’s physical condition has any substantial present effect on the defendant’s ability to function. United States v. Rabins, 63 F.3d 721, 729 (8th Cir.1995).

The district court expressed its uncertainty whether all three of these questions must be answered for each defendant or whether a positive answer to only one or two of them would suffice to constitute the basis for a § 5H1.4 downward departure.

The district court then found, agreeing with the government’s position, that imprisonment would not constitute more than the normal hardship for Johnson even in light of Johnson’s extraordinary physical impairment.

Likewise, the district court agreed with the government’s position that imprisonment would not subject Johnson to more than the normal inconvenience or danger, alluding to Dr. Ilvedson’s statement that Johnson would be put on supervised cardiac rehabilitation and observing that there is a greater likelihood that Johnson’s condition would be monitored and his cardiac rehabilitation regimen complied with if Johnson were in prison than it otherwise would be.

With respect to the third Rabins question, whether Johnson’s physical condition had a substantial present effect on his ability to function, the district court stated:

I think it does. While, you know, I think he’s capable of walking, brushing his teeth, and those types of things, I think there will be a wide range of things even in prison that he’ll probably be unable to do. And I just think based on the doctor — Dr. Leon’s report, he indicates that he has moderate functional impairment but the long-range prognosis is guarded and he has severe coronary artery disease. And I’m willing to conclude from that that the defendant does have a substantial present effect on his ability to function [sic].

The district court found that Johnson’s offense level was 34 and his criminal history category V, resulting in a guidelines range of 235 to 293 months’ imprisonment (with a 10-year mandatory minimum sentence on the two possession-with-intent-to-distribute counts). The court departed downward from the guidelines range and imposed concurrent sentences of 175 months on each of the three counts on which Johnson had been convicted. We conclude that the court erred in doing so.

We conclude that the district court’s finding that Johnson suffers from an extraordinary physical impairment, resulted from an improper application of the law. As we stated in Rabins, the phrase “extraordinary physical impairment” “should be interpreted according to its manifest purpose.” 63 F.3d at 729. Thus, rather than being viewed in the abstract, a defendant’s physical condition must be assessed in the light of the situation the defendant would encounter while imprisoned. As the Seventh Circuit has held, “Am ailment also might usefully be called ‘extraordinary’ if it is substantially more dangerous for prisoners than non-prisoners. Then imprisonment would shorten the defendant’s life span, making a given term a more harsh punishment than the same term for a healthy person.” United States v. Krilich, 257 F.3d 689, 693 (7th Cir.2001).

When so assessed, Johnson’s physical impairment, although concededly serious, is not extraordinary. As the district court found, imprisonment would not constitute more than normal hardship for Johnson, nor would it subject him to more than normal inconvenience or danger. With all due respect to the district court’s on-the-scene opportunity to observe Johnson, we find no support in the record for a finding that Johnson’s physical impairment would have a substantial present effect on his ability to function within the confines of a prison environment. Johnson’s heart problems obviously restrict the scope of his exertional activities, but that will be no more the case in prison than in the outside world, and it is in the light of the prison environment that those restrictions must be weighed.

Accordingly, we conclude that the district court abused its discretion in granting a downward departure based on Johnson’s physical condition. The record simply does not support a finding that Johnson’s physical impairment is so severe that it falls within the definition set forth in § 5H1.4 and as interpreted in Rabins.

We do not reach this conclusion lightly, for we are mindful of the broad discretion that district courts are entitled to exercise in determining whether a downward departure is warranted under the sentencing guidelines. That discretion must be exercised on the basis of a finding fairly supported by facts in the record, however, and when that factual support is lacking we on the appellate courts have a duty to correct what we perceive to be error.

The convictions are affirmed, the sentence is reversed, and the case is remanded to the district court for resentencing.

1 . U.S.S.G. § 5H 1.4 states, in relevant part: 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.