Even a sick old man not entitled to downward departure from guidelines

In U.S. v. Hayes, the Fourth Circuit in a per curiam opinion for the panel of Judges Michael, Motz, and Traxler affirmed the defendants' sentences, even as to one defendant in particular who claimed the following:

"Greeson was 82 years old when he was sentenced. Two months earlier, in May 2002, he had a cancerous tumor removed from his colon. A letter to the probation officer from his doctor stated that he suffered from chronic obstructive pulmonary disease, degenerative disc disease, and diabetes which was controlled by diet. The district court was plainly troubled about Greeson’s age and health and mentioned the reversal of the downward departure in Coble, adding, 'I don’t find any separation between this case and Mr. Coble’s case. If I could, I would, but I simply can’t find any, and I think that I’m bound to follow what the Court has said.' After Greeson further alleged that he suffered from skin cancer on his head and arms, had been treated by surgery for glaucoma on his left eye, and needed the same surgery on his right eye, the court stated, 'This is a very, very difficult case. . . . I think that judges ought to have some grounds, and if I had any, I would depart downward. I don’t see any basis to do that here.' Greeson argues that the district court mistakenly believed that it was bound by the outcome in Coble and thus without authority to depart downward."

Of this argument, the appeals court said:

"We note that the sentencing court’s authority to depart based on any factor that is not forbidden is well established. The policy statements that deal with age and physical condition as potential factors for departure each state that these factors are 'not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range,' thus leaving open the possibility that a departure may be warranted in an unusual case. USSG §§ 5H1.1, p.s. (Age), 5H1.4, p.s. (Physical Condition). These factors are 'discouraged' bases for departure, but may be the basis of a departure in an exceptional case. United States v. Rybicki, 96 F.3d 754, 758 (4th Cir. 1996). Because the law is settled in this area, we interpret the court’s comments in this case to mean that the court was unable to find that Greeson’s case was an exceptional one which justified departure. We cannot conclude from the court’s statement that it would prefer a wider latitude to depart that it mistakenly believed it lacked authority to depart. Therefore, we conclude that the court understood its authority to depart and exercised its discretion not to depart."

Mr. Greeson was sentenced to 46 months in prison.