UNITED STATES OF AMERICA, Plаintiff-Appellee, v. MILTON DOWELL, Defendant-Appellant.
No. 03-2747
United States Court of Appeals For the Seventh Circuit
Argued September 27, 2004—Decided October 27, 2004
Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 CR 555—Wayne R. Andersen, Judge.
On two occasions in 1998, Milton Dowell attempted to buy cocaine from an undercover agent of the Drug Enforcement Administration. Based on these attempts and several recorded phone calls between Dowell and an informant, Dowell was charged with and convicted of knowingly and intentionally attempting to possess with the intent to distribute approximately one kilogram of cocaine.
Dowell does not contest his сonviction; he appeals only the sentence. Because of his criminal history and past drug convictions, he is considered a career offender under the Guidelines. Therefore, absent a downward departure, he will serve 360 months to life in prison. Dowell requested a downward departure based on his health problems under U.S.S.G. § 5H1.4, which explains that “an extraordinary physical impairment may be a reason to deрart downward; e.g., in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment.” Id. The district сourt heard evidence relating to Dowell‘s severe heart problems and found that Dowell does need a heart transplant. The cоurt determined, however, that Dowell would most likely receive better care if he remains imprisoned than he would if he were on his own in home detention.1 Therefore, the court exercised its discretion and denied the downward departure. On appeal, Dowell argues that the sentencing court used an incorrect standard
II. Analysis
Sentences imposed under the Guidelines are subject to appellate review in very limited circumstances. See
A. Discretionary Sentencing Determinations Are Not Subject to Review
This court determined in United States v. Franz, 886 F.2d 973, 977-80 (7th Cir. 1989), that a district court‘s refusal to depart downward may only be reviewed if the sentence was imposed in violation of the law. See
The sentencing transcript leaves no doubt that the district court was aware of its legal authority to depart. In fact,
ASSISTANT U.S. ATTORNEY: Judge, just to be sure that the record is clear, the Court reсognizes it has the authority to depart downward but has refused to as a matter of its discretion?
THE COURT: Yes. Yes, I think—that is my decision. Obviously, I gave a lot of thought to it beforehand. And the judgment isn‘t signed yet, but I think that that is probably, frankly, the best thing for, not only society and the law, but for Mr. Dowell, given the options that exist right now.
(Sent. Tr. at 39).
The court understood that it had the power to depart downward but determined that the Bureau of Prisons was better suited to give Dowell the care thаt he needs. The court allowed Dowell to choose a federal medical center in which to serve his sentence. Becausе there was no legal error in the sentence, we do not have jurisdiction to review it.
B. Dowell‘s Eighth Amendment Claim Is Without Merit
For the first time on appeal, Dowell raises an Eighth Amеndment argument. He claims that the policy of the Bureau of Prisons is to automatically deny requests for organ transplants; therefore, because he needs a heart transplant to live, it is cruel and unusual punishment to sentence him to any term of imprisonment. Because he did not raise this issue in the district court, we now review for plain error. See United States v. Brumley, 217 F.3d 905, 909 (7th Cir. 2000). Plain error review is used “to correct only particularly egregious errors for the purposes of preventing a miscar-
It is true that the government must provide medical care to inmates. See Snipes v. Detella, 95 F.3d 586, 590 (7th Cir. 1996). It is also true that “dеliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain prosсribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal quotations and citation omitted).
Dowell does not allege that he has received inadequate medical care while in prison awaiting his trial. He argues only that his rights have been violated because the Bureau of Prisons has a general policy against providing organ transplants. The policy that he cites, however, states clearly that the “Medical Director may make an exception to this rule, if the medical or other facts of a particular inmate‘s case so warrant.” Bureau of Prisons, Statement of the Federal Bureau of Prisons (Nov. 18, 1998), at http://www.bop.gov/ipapg/ipaorg.html. Dowell has prеsented no evidence to show that he is a viable candidate for a heart transplant or that he is being denied the opportunity to rеceive a new heart by prison officials. Nor has Dowell shown that there has been a deliberate indifference to his medical needs. In fact, he has been and will be receiving care from a federal medical center. Therefore, Dowell‘s Eighth Amendment claim is without merit.
III. Conclusion
Dowell‘s sentence is not reviewable by this court because the refusal to depart downward was a matter of the district court‘s discretion. Dowell‘s constitutional arguments are not valid. We therefore DISMISS this claim for lack of jurisdiction and the sentence imposed by the district court stаnds.
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—10-27-04