Unpublished Disposition, 905 F.2d 1541 (9th Cir. 1990)

MEMORANDUM^* 

We determine here if the district court properly departed downward from the Sentencing Guidelines.

BACKGROUND

John Springer pleaded guilty in August 1988 to the manufacture of more than 100 marijuana plants in violation of 21 U.S.C. § 841(a) (1). He was first sentenced to three years probation on the condition that he serve six months at a correctional facility with work release privileges. The court later modified its judgment and substituted house arrest in lieu of work release confinement.

On the government's appeal, we remanded for resentencing under the Sentencing Reform Act of 1984 in light of Mistretta v. United States, 488 U.S. 361 (1988). The district court then departed downward from the guidelines and again sentenced him to three years probation and six months of house arrest. Again, the government appeals.

ANALYSIS

Springer contends that, because he has acquired a reasonable expectation of finality in his sentence, the double jeopardy clause prohibits the district court from resentencing him on remand. We disagree.

"The double jeopardy clause prevents multiple trials on the same charge and multiple punishments for the same offense." United States v. Kane, 876 F.2d 734, 736 (9th Cir. 1989) (citations omitted). Sentencing may, however, be altered by an appeal, even if the sentence is enhanced and even if the defendant has begun to serve the sentence. Id. Double jeopardy precludes further enhancement when a defendant acquires a reasonable expectation of finality in the severity of a sentence. Id.

"The defendant ... is charged with knowledge of the statute and its appeal provisions, and has no expectation of finality in his sentence until the appeal is concluded or the time to appeal has expired." United States v. DiFrancesco, 449 U.S. 117, 136 (1980); Massie v. Hennessey, 875 F.2d 1386, 1388 (9th Cir. 1989). Because the Sentencing Reform Act specifically authorizes government appeals under 18 U.S.C. § 3742(b), Springer has not obtained a reasonable expectation of finality in his sentence.

The guideline range for Springer based on an offense level of 26 and no criminal history was 63 to 78 months. The court departed downward and sentenced him to three years probation and six months house arrest. It found that the guidelines did not adequately take into account that (1) the defendant's job would be lost and rehabilitation after release would be difficult because of his inability to obtain work; (2) his health would suffer in prison; and (3) his post-crime rehabilitation would be jeopardized by prison. Order at 10.

The government argues that the court departed improperly from the Sentencing Guidelines. It contends that it should not have considered Springer's role in the offense, his medical problems, his financial difficulties and socio-economic status, his employment record and the possibility of rehabilitation.¹ 

We will not as a general rule consider an argument raised for the first time on appeal. United States v. Rubalcaba, 811 F.2d 491, 493 (9th Cir. 1987). This rule applies to sentencing proceedings. United States v. Prichett, 898 F.2d 130, 131 (11th Cir. 1990); United States v. Garcia-Pillado, 898 F.2d 36, 39 (5th Cir. 1990); United States v. Houston, 892 F.2d 696, 706-07 (8th Cir. 1989).

Our review of the record satisfies us that the government has waived its right to contest Springer's sentence on all grounds except for its objection to departure based on his physical condition. Neither at the sentencing hearing nor in response to the court's order did the government raise these objections. In its order imposing sentence, the court requested specifically that if either party had significant objections or believed additional authorities should be considered, supplemental materials could be submitted within 20 days.² 

The government's failure to raise its objections is fatal to much of its appeal. "There is no reason whatever for the government to have failed to call this matter to the district court's attention while that court still had the case under its jurisdiction." Garcia-Pillado, 898 F.2d at 39. Requiring litigants to raise issues below will provide incentives for them to call alleged errors promptly to the district court's attention. Id. at 39-40.

We may, however, "notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings." United States v. Atkinson, 297 U.S. 157, 160 (1936); see also United States v. Ross, 886 F.2d 264, 266 (9th Cir. 1989). This rule applies to the imposition of erroneous sentences. United States v. Anderson, 850 F.2d 563, 566 n. 2 (9th Cir. 1988); United States v. Morris, 827 F.2d 1348, 1352 (9th Cir. 1987); see also United States v. Colon, No. 89-1249, slip op. at 3877-78 (2d Cir. May 18, 1990) (failure to raise constitutional challenge to role of probation officer under Guidelines); United States v. Ebertowski, 896 F.2d 906, 907 (5th Cir. 1990) (failure to object to use of criminal history category); United States v. White, No. 89-1598, slip op. at 17-18 (7th Cir. May 24, 1990) (failure to challenge two level increase under Guideline Sec. 3A1.3).

Because we do not find the government's allegations to be "obvious" errors or ones that "seriously affect the fairness, integrity or public reputation of judicial proceedings," we do not find plain error.

C. Departure Based on the Defendant's Physical Condition

The government did not waive its right to appeal the court's downward departure based on Springer's physical condition. It objected at sentencing, arguing that Sec. 5H1.4 ordinarily precludes the district court from departing downward based on the defendant's physical condition.

We review departures from the Sentencing Guidelines under 18 U.S.C. § 3553(b) according to a five step process explained in United States v. Lira-Barraza, 897 F.2d 981, 983 (9th Cir. 1990).

STEP ONE

A district court must specifically identify the aggravating or mitigating circumstance upon which it relied and make a clear finding that the Commission did not adequately consider the circumstance. Id. Here, the court adequately identified the circumstance upon which he relied, noting Springer's physical condition, and stated clearly that the Commission had not adequately considered the health of defendant. Order at 10.

STEP TWO

To depart from the guidelines, the district court must rely on a circumstance that truly exists, and reviewing for clear error, we determine if it does. Lira-Barraza, 897 F.2d at 984. There was evidence that Springer suffered from chronic hypertension, a peptic ulcer and a ruptured disc. We find no error.

STEP THREE

An aggravating or mitigating circumstance must be "of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." Id. (citing 18 U.S.C. § 3553(b)). In determining if a circumstance was adequately considered by the Commission, the district court shall consider the Sentencing Guidelines, policy statements and official commentary of the Commission. Lira-Barraza, 897 F.2d at 984 (citing 18 U.S.C. § 3553(b)).

We consider whether the Commission adequately considered a defendant's physical condition. Section 5H1.4, a policy statement, says:

Physical condition is not ordinarily relevant in determining whether a sentence should be outside the guidelines or where within the guidelines a sentence should fall. However, an extraordinary physical impairment may be a reason to impose a sentence other than imprisonment. (emphasis added)

A defendant's physical condition should affect time in custody only in the exceptional case. Before considering departure on the basis of physical condition, the court must find that the defendant's condition is so out of the ordinary that departure rather than any other measure is required, and state the reasons why a shorter period of incarceration is appropriate. See United States v. Richison, No. 89-10080, slip op. 3345, 3351-52 (9th Cir. April 20, 1990) (question whether alcohol and cocaine abuse was adequately considered by Commission under Sec. 5H1.4).

The court found that Springer suffered from a panoply of medical problems including chronic hypertension, a peptic ulcer and a ruptured disc, but did not find that his physical condition was extraordinary nor tell us why a shorter period of incarceration was appropriate.³  We cannot determine if a downward departure on this basis was appropriate because the court failed to make the necessary findings.

We remand to the district court to make these findings. If it finds that Springer did not suffer from an extraordinary physical condition, then it may not depart on these grounds and should resentence him in accordance with the Guidelines. We retain jurisdiction over any further appeals.

VACATED AND REMANDED.