U.S. v. WILLIS

322 F.Supp.2d 76 (2004) | Cited 1 time | D. Massachusetts | June 23, 2004

SENTENCING MEMORANDUM

The defendant, Donald A. Willis (hereinafter "Willis"), is a69-year-old man, who is obliged to take several medications totreat multiple, serious, and deteriorating medical problems.Defendant moved for a downward departure because of: 1. Ill health, pursuant to U.S.S.G. § 5H1.4; 2. Age, pursuant to U.S.S.G. § 5H1.1; and, 3. Good works, pursuant to U.S.S.G. §§ 5H1.6 and 5H1.11.

While I had no doubt of Willis' strong background of commitmentto family, church, and community — a 37-year marriage, voluntaryservice in the Air Force Reserves during the Cuban Missile Crisis— given the rigid case law in this area, I had no choice but toconclude that there was no basis for a departure on that groundhere. Cf. United States v. Mehta, 307 F. Supp.2d 270 (D. Mass.2004). However, as described below, I did depart based on Willis'physical condition and age.

The government also argued that Willis deserved a sentencingenhancement under U.S.S.G. § 3B1.1(c) because of his role in theoffense. Both defendant and probation disagree; I adopted theirposition. I sentenced Mr. Willis to probation, six months of which is tobe served in home detention with electronic monitoring, whichwould enable him to continue to see his doctors and continue thecourse of treatment he has begun for his various ailments. Inaddition, I ordered Mr. Willis to pay substantial restitution,$362,368.00, and to cooperate with the Internal Revenue Serviceto determine his prior tax liability. This memorandum reflects myfindings.

I. INTRODUCTION

A. Facts

Willis pled guilty to failing to report income derived from hisillegal gambling business on his individual tax return, andfailing to have tax returns prepared or filed for the gamblingbusiness.1 Willis accomplished the evasion by arrangingto have the proceeds from his business deposited in his personalbank account, so that they could not be traced by the InternalRevenue Service. George Chute [hereinafter "Chute"],2 themanager of Willis' business, collected most of the cash, and madesmall deposits into Willis' personal bank account. At no time did Chutecause 1099 or W2 tax forms to be issued.

In order to have some modest income to report to the IRS and tohelp Willis qualify for Social Security benefits, Willis arrangedfor Martin Hanley [hereinafter "Hanley"],3 an individualwho had borrowed money from him, to make payments to him as ifthey were legitimate salary payments and to issue 1099 forms tohim and later, to his wife. Willis then reported the 1099 incomeand Hanley deducted Willis' phantom salary from his business.When the amounts exceeded the debt owed, Willis would reimburseHanley in cash.

The felony information to which Willis pled did not chargeparticipation in a gambling enterprise, pursuant to18 U.S.C. § 1084(a). Nevertheless, the government provided Probation with thefollowing information for the "offense conduct" portion of thepre sentence report: Willis was the principal of an illegalgambling business that operated for ten years out of an office at250 Prospect Street in Waltham, Massachusetts. He was assisted inthe operation of the business by Chute, who was his primarymanager, and also by his brother, Paul Willis, who supervisedwhen the defendant was away. The defendant claimed that he wasnot responsible for the day-to-day operation of the business because for the past decade he was living in Florida either sixmonths of the year, or the entire year. Since the gamblingbusiness was not "relevant conduct" in the tax offense (seebelow), the issue of Willis' role in it was not litigated.

II. THE GUIDELINE COMPUTATION

Willis' plea yields a base offense level of 17, pursuant toU.S.S.G. § 2T1 (for a tax loss between $325,000 and $500,000).Two points were added because the source of the income exceeded$10,000 in a given year, and derived from criminal activity,pursuant to (U.S.S.G. § 2T1.1(b)(1)). Three points were deductedfor acceptance of responsibility (U.S.S.G. § 3E1.1(a) and (b)),yielding a Category 16. Since Willis had no criminal record, hisGuideline range was 21-27 months.

III. ROLE IN THE OFFENSE

The parties agreed that defendant's illegal gambling businessshould not be considered when determining "role in the offense."That conduct was plainly not "relevant conduct" in a sentencingfor the offense of filing false returns.

Nevertheless, the government argued for a two-point enhancement— looking only at the tax return offense. Willis, the governmentmaintained, supervised Hanley, by directing him to pay Willisback for Hanley's loan in checks issued on Hanley's business, for which Hanley issued 1099 forms to Willis and hiswife.4

I disagreed. The "role" guideline increases the sentencingscore depending upon the number of participants in the offense,and the defendant's role vis-a-vis those participants. The moreparticipants the defendant organizes or leads, the higher thescore. See U.S.S.G. § 3B1.1.5 In effect, § 3B1.1 boilsdown to a simple observation, that an individual in a leadershipposition in a larger organization will make higher profits, posea greater danger to the public, and a greater danger ofrecidivism. See Background Note to § 3B1.1; United States v.Footman, 66 F. Supp.2d 83, 93 (D. Mass. 1999). As such, theconcept loses significance in small scale criminal offenses.See Background Note to § 3B1.1. Cf. United States v.Payton, 2003 WL 264705, *4 (4th Cir. 2003) (unpublished);United States v. Treadwell, 2001 WL 599709, *10 (6th Cir. 2001)(unpublished). It is especially problematic in the offense of taxevasion committed by a single taxpayer. In any event, I concluded that Hanley and Willis were equalparticipants in a tax evasion scheme, rather than one in asubordinate position and one in a managerial role. Hanleyborrowed from Willis and paid him back in a form that not onlyhelped Willis deal with his tax and social security problems — theform of the repayment also helped Hanley with his own taxes.Hanley filed false tax returns that benefitted his own businesson multiple occasions.

With respect to Chute, the government's theory that Willissupervised Chute because Chute made payments to Willis in cash,made no sense. It is inconceivable that Chute had to be directedby anyone, much less Willis, to distribute the proceeds of anillegal gambling operation in cash. Indeed, by the government'slogic, every time a putative tax evader asks for a blank receiptfrom a cab driver for the cash he has paid, he would beexercising supervisory authority over the driver.

The question was not only — Did the defendant go through themotions of directing someone else to do something, assuming thatsomeone else is a "participant" under § 3B1.1.? The question waswhether the defendant is somehow more culpable for having done so— more culpable than an ordinary criminal in a small scaleoperation. Nothing about the defendant's relationship to eitherChute or Willis qualified for this treatment. IV. WILLIS' PHYSICAL CONDITION

Willis, at age 69, suffers from the following medicalconditions, all confirmed by reports from various specialistswhose care of Willis predated his legal problems: 1. A history of phlebitis (According to the medical report, "can and will be life threatening without medical attention" and Willis needs to be seen on a "chronic" basis. If a blood clot got lose, it would cause death by going to the heart.) 2. A significant risk for deep venous thrombosis with pulmonary emboli. (This is also potentially lifethreatening as pulmonary emboli can break off, pass to and obstruct the arteries of the lung.) 3. A one or two block claudication (Atherosclerosis causes the arteries in the legs to become narrow since fatty material has attached itself to the walls of the artery. Then, not enough blood flows to a muscle. This causes extreme pain to Don Willis's calf or thigh muscles if he even walks one block.) 4. Severe varicose veins with inflammation (This can be very painful, lead to more serious problems and may also signal a higher risk of other disorders of the circulatory system.) 5. Chronic lymophocytic leukemia (Although he, frankly, is in the early stages of this cancer of the blood and its progression typically moves slowly, it could suddenly begin to progress rapidly. Willis was told to check his lymph nodes daily and be regularly checked by his physician until chemotherapy is needed.) 6. Hypertension (abnormally high arterial blood pressure which is currently under control with medication). 7. Benign prostatic hypertrophy (an enlarged prostate). 8. Hematuria (This is, in other words, blood in the urine, which is usually the sign of a more serious disease such as disease of the kidneys or prostate.) 9. Colon polyps (This is extra tissue growing in the large intestine section of the digestive tract which are more often than not benign at the beginning, but can turn cancerous if they are not removed.) 10. Hypercholesterolemia (excessive levels of cholesterol in the blood). 11. Heart murmur (His cardiologist has just recommended an echocardiogram to evaluate his heart valves and chambers to determine whether there are any tumors in the upper chamber of his heart.) 12. Degenerative joint disease (Osteoarthritis). 13. Rhinitis (This is a reaction that occurs in the eyes, nose and throat when airborne irritants (allergens) trigger the release of histamine. Histamine causes inflammation and fluid production in the fragile linings of nasal passages, sinuses, and eyelids.) 14. Irritable colon syndrome (This disorder of the intestine features chronic lower abdominal pain and frequency of defecation.) 15. Persistent hypopharyngeal irritation and dyspepsia (an irritation at the bottom part of the throat and burning sensations in the upper part of the gastrointestinal system). 16. Considerable irritation of the endolarynx postcricoid region (This area is the cartilage in the lower part of the organ in the neck that plays a crucial role both for breathing and as the voice box, that works in conjunction with the thyroid and arytenoid cartilages.) 17. History of impaired carotid circulation (This is the principal artery, found on each side of the neck, that carries blood from the heart to the brain and the tissues of the head and neck.) 18. Laryngopharyngeal reflux (This is a backflow of acid from the stomach into the esophagus and then throat and voice box.) 19. Esophageal polyps. 20. Chest pains. 21. Extensive degeneration in the cervical spine, cervical spasm (In other words, he has a bad back.) 22. Calcified plaque within the left carotid artery within the neck. 23. Possible pulmonary air trapping (This is the retention of excess gas in all or part of the lungs, at any stage of expiration. It is a finding characteristic of obstruction of the airways.) 24. Reports also indicate that Willis has chronic difficulty clearing his throat and had an amputation of part of his big toe. (Approximately a dozen years ago, a biopsy led doctors to believe that it was cancerous. Although they were about to amputate the entire toe, it was decided that if they only amputated part of it, they could do a much more conclusive test on it. It turned out not to be malignant.)

The sentencing hearing took place over two days. At the October28, 2003, hearing, counsel for the defendant submitted numerousmedical records of physicians and specialists who treated Willisover the past several years. These reports were replete withwarnings by physicians of his need to be constantly monitored andtested for many of the ailments. Dr. Edward Geller, a specialistin veins, stated: "The repeated phlebitic episodes that [Willis]has can and will certainly be life threatening without medicalattention, and I will need to see him on a chronic basis everytwo-to-three months probably for the near and far future." Dr.Geller referred to the "severity" of his case and said he was at"significant risk." Dr. Carl Spirazza, who is Willis' primarycare physician, stated, "[h]is medications do require frequentlaboratory monitoring as well as office visits." Dr. FrederickNorthrop wrote about Willis' problems with hypertension, and elevated cholesterol and noted,"If those conditions cannot be treated in prison with propermonitoring, it would be adverse to his health." See pp. 10, 11and 12, ¶¶ 1-24 of the Sentencing Memorandum by defendant DonaldA. Willis [document #9].

The government rightfully pointed out that many of theserecords were over a year to 18 months old. At that point, Isuspended the sentencing hearing and asked for updated medicalrecords from the doctors, and specifically asked the followingquestion: "If Mr. Willis were separated from the numbers ofphysicians now treating and monitoring his numerous medicalproblems in order to go to prison, what would be the impact onhis health?" The physicians produced updated reports for Willis'counsel, which underscored the themes of the earlier ones — forexample, that the disruption of treatment and follow up couldvery well be life threatening," and "that incarceration will. . . result in a deterioration of his currently stable healthstatus," which will impact his "life span." (Dr. Spirazza,December 18, 2003); that Willis suffers from an "inordinatenumber of medical problems," none of which is currentlylifethreatening, but each of which would result in an "acutemedical crisis," especially his phlebitis "which could result inblood clots and pulmonary emboli." (Dr. Olson.)

The government went further, conducting phone interviews withthe doctors, with an agent listening in on the line. The agents wrote up their notes and the doctors were asked to verifywhether the interviews were accurate.

In January of 2004, the government argued that the firstversion of Mr. Willis' condition, presented at the Octoberhearing, which predicted onerous consequences were Willis to goto prison, was based on faulty information about the Bureau ofPrisons [hereinafter the "BOP"] and its capacity to treatoffenders. (Many of the doctors took their view of prisons fromtelevision shows or movies, the government reported.) The secondversion, rendered on the telephone, after the Assistant UnitedStates Attorney apprised these doctors of the wide-rangingcapacity of the BOP to deal with a host of medical conditions,was arguably more accurate.6 As a result, each doctormodified his or her opinion about the impact of Willis'incarceration on his health, suggesting they were less concernedabout it after hearing the government's recitation. In addition,the government submitted a letter from the BOP indicating that ithad received Willis' medical records and could adequately treathis condition were he incarcerated.

Neither side offered actual witnesses to be examined.

V. DEPARTURES FOR EXTRAORDINARY PHYSICAL CONDITION AND AGE The Sentencing Reform Act ("SRA"), 18 U.S.C. § 3661 provides: [N]o limitations shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.This statute predates the Sentencing Guidelines and wasrecodified by Congress as part of the Sentencing Reform Act(SRA). In addition, 18 U.S.C. § 3553(a) lists the factors to beconsidered in sentencing, which include, "the nature andcircumstances of the offense, and the history and characteristicsof the defendant." The sentencing court must also weigh the needfor the sentence in the light of the purposes listed in the SRA,to "reflect the seriousness of the offense," to deter futurecriminality, protect the public, and provide the defendant withneeded training, medical care, or other correctional treatment.18 U.S.C. § 3553(a)(1).

To be sure, the Guidelines that were promulgated by theSentencing Commission narrowed judicial discretion to consideroffender characteristics, particularly with age and physicalcondition, even beyond what the SRA mandated. U.S.S.G. § 5H1.4suggests that while "physical condition" is not "ordinarilyrelevant" in determining a departure, "extraordinary physicalimpairment may be a reason to depart downward." Indeed, theGuideline goes on to suggest "in the case of a seriously infirm defendant, home detention may be as efficient as, and less costlythan, imprisonment."

Although the Guideline does not define what is "extraordinary"and what is "ordinary," there are several significant themes.First, although the Guideline drafters speak of "extraordinaryphysical impairment," the remainder of the Guideline seems toembody a less severe standard, "seriously infirm." Second, theGuideline drafters suggest that with respect to the latter, acourt is to balance infirmity and cost, allowing for a departurewhen home detention may be as efficient and less costly thanimprisonment.

The same themes are repeated in U.S.S.G. § 5H1.1 with respectto age. While the Guideline notes "age" is "not ordinarilyrelevant" in determining a departure, "age" may be a reason toimpose a sentence below the applicable Guideline range when thedefendant is "elderly and infirm and where a form of punishmentsuch as home confinement might be equally efficient as and lesscostly than incarceration." Again, the Guideline does not speakin terms of extraordinary age or extraordinary infirmity, butsimply "elderly and infirm." And, again, the Guideline invitesthe Court to balance infirmity and costs, where home confinementmay be less costly than incarceration.

Plainly, the Commission did not define "extraordinary" here orelsewhere, precisely so that courts on the front line ofsentencing could define its parameters. A court is supposed to look at the continuum of medical problems in the cases it seesand draw lines as to what fits within this departure and whatdoes not. The task is not an easy one — how to define a peckingorder of "extraordinariness" when one person's view of what isextraordinary will not be the same as another's, as I noted inUnited States v. Lacarubba, 184 F. Supp.2d 89, 93 (D. Mass.2002).7 Nor can the concept of "extraordinary" age orinfirmity in the opening sentences of each provision be easily reconciledwith the words "seriously infirm," in the second sentence of oneGuideline, and "elderly and infirm" in the other.

I used the following principles of interpretation:8

First, I looked to the purposes of the Guidelines as embodiedin the SRA. The Guidelines are concerned about recidivism: Whatare the chances that a defendant of this age or medical conditionwould be a recidivist? The physical and mental capacity to engagein criminal activity plainly lessens as the offender gets older.See Sol Chaneles, Growing Old Behind Bars: The Aging of OurConvict Population Brings With It Special Needs and Problems thatFew of Our Prisons are Ready to Handle, Psychol. Today, October1987, at 47, 49, quoted in Jason S. Ornduff, Note: Releasing theElderly Inmate: A Solution to Prison Overcrowding, 4 Elder LawJournal 173, 181, n. 67 (Spring 1996). The statute addressesincapacitation: With respect to an elderly defendant, what arethe chances that incarceration would be a death sentence?Retribution (concern for the seriousness of the offense) counselsin both directions, for and against a departure. The harm tosociety remains the same whether this offense is committed by ayoung person or an old one. Arguably, with respect to certainoffenses, a lesser sentence depreciates the seriousness of the defendant's crime. By the same token, agiven sentence may be uniquely disproportionate to the elderlyoffender; elderly criminals will lose a greater percentage oftheir lives than younger criminals and may suffer more from thesame sentence.9 Considering the latter, I must look tothe BOP's ability to handle an offenders' situation.10 And any line that I draw must be consistent with theGuidelines' goal of uniformity: The standard should not amount toa "get out of jail free" card for defendants of a certain age orwith certain conditions.11 Nor should the departure bereserved for only those "at death's door."12

Finally, I need to reconcile the definitions of extraordinaryage and extraordinary physical impairment with the themes of theremainder of the section — that somehow one must balance thecosts of incarceration against home detention in the case of aseriously infirm, or an elderly and infirm defendant. One way ofreconciling these concepts is this: The defendant must first bein the range of physical impairments and/or age which couldtrigger a departure. Then the court is to balance the costs ofhome detention vs. incarceration.

I defined the zone of extraordinary physical characteristics inUnited States v. Baron, 914 F. Supp. 660 (D.Mass 1995), whichwas the only other occasion that I departed on account of age andinfirmity in ten years. Baron was a 76-year-old man withpituitary tumors. I noted that physical impairments could be considered as a basis for departure if they met the standard ofbeing "a) a serious and imminent medical threat; b) which wouldbe made worse by incarceration; and/or c) which the FederalBureau of Prisons ("BOP") could not adequately treat." Id. at662-663.

Extraordinary cannot mean — only those conditions which the BOPcannot handle. It cannot be that if the BOP can accommodate agiven medical condition, it is by definition not extraordinary.If that were so, there would be no need for the second sentence,balancing costs of home detention and incarceration. Nor wouldthere be any need for the modifier, "adequately." The Bureau ofPrisons can take care of a given individual, but at a cost thatmakes no sense given the other purposes of sentencing. Moreover,that care may not be "adequate" to the task.

Mr. Willis has come forward with a number of doctors whoindicate he has serious and substantial health problems, which,combined with his age, would put him at risk were he to go tojail. In the first hearing they were emphatic — he will be injeopardy if he goes to jail. In the second, they were less so —having been told by the government that the BOP is more thancapable of caring for a man with Willis' health problems.

In a sense, the doctor's response — that Willis would be harmedby going to jail — is a truism. No doctor would say that thiselderly and infirm defendant would be better off in jail, or thatjail is as adequate as private care. At the same time, the government produces evidence to suggestthat the Bureau of Prisons could adequately care for Mr. Willis.I have never had a case before me in which the Bureau of Prisonssuggested that it did not have the capacity to care for adefendant.

The issue is one of degree. Willis has an inordinate number ofpotentially serious medical conditions. It seems imminentlylogical the Willis is at an age where these medical conditionswill invariably get worse. It seems logical that being away fromhis support structure, both family and doctors, will invariablyexacerbate his conditions. It seems logical that were he to go tojail for three years between the ages of 69 and 71 that he willemerge in substantially worse shape than he is now, if he doesnot die before completing his sentence. It seems logical thatwhile the BOP can care for him, the costs of that care are boundto escalate. Finally, it seems logical that his conditions atleast put him in the zone that enables me to balance the cost ofhome detention vs. jail, whether home confinement will be"equally efficient as and less costly than incarceration,"U.S.S.G. § 5H1.1, or whether "home detention may be as efficientas, and less costly than, prison" as it is described in U.S.S.G.§ 5H1.4.

Incarceration of a single inmate costs the tax payer $22,519.32per year, as Probation reported. Community confinement of one person costs $17,708 per year. Home detention,needless to say, costs much less.

Mr. Willis is not likely to be a recidivist; incapacitation athis age, with these conditions, could be a death sentence.Retribution does not justify his incarceration. The offense isnot a crime of violence; the victim, the IRS, will be repaid. Noris there any danger that this departure will open an exceptionthrough which many defendants will seek to pass. There are notmany defendants like Mr. Willis.

Accordingly, I concluded that this was an appropriate sentencefrom which to depart. I departed from a level 17 to a level 10,in order to give Mr. Willis a sentence of probation. I sentencedhim to two years' probation, six months of which was to be inhome detention with electronic monitoring. Mr. Willis must paythe daily cost of the electronic monitor. As part of Probation,Mr. Willis must pay $362,398.00 to the IRS, notwithstandingcounsel's protestations that Mr. Willis had little or no money.

At the conclusion of the sentencing, the government asked for astay pending the appeal and particularly asked for a stay of homeconfinement in particular. I indicated that I would give thegovernment an opportunity to consider whether it seeks a stay.Accordingly, I will sign the Judgment five days after theissuance of this Memorandum. SO ORDERED.

1. On June 12, 2003, a four-count felony Information was filedin U.S. District Court, charging Donald Willis with filing afalse tax return, in violation of 26 U.S.C. § 7206(1). Count Icharged failure to file taxes on or about April 10, 1997; CountII — on or about April 4, 1998; Count III — April 19, 1999; CountIV — April 2, 2000.

2. Chute pled guilty to interstate transmission of wagering,18 U.S.C. § 1084(a), and three counts of Filing False TaxReturns, 26 U.S.C. § 7206(1). At age 54, Chute received 15months' imprisonment, $400 special assessment, restitution in theamount of $53,981 and a fine of $4,000. The defense did not movefor a departure on any grounds.

3. Hanley pled guilty to a one-count Information charging himwith Filing a False Tax Return, 26 U.S.C. § 7206(1). On November25, 2002, Hanley was sentenced to three years' probation andrestitution of $43,802. He received a downward departure forsubstantial assistance under U.S.S.G. § 5K1.1.

4. The Presentence Report indicated that Willis arranged forHanley to issue 1099 forms to Willis until 1997 when Willisreached retirement age. At that point he had Hanley make thechecks payable to his wife to help her qualify for SocialSecurity Benefits. These payments continued after Hanley's loanhad been repaid, with Donald Willis reimbursing him in cash forthe fictitious checks.

5. A "participant" is defined in the Guidelines Applicationnote as follows: "a person who is criminally responsible for thecommission of the offense, but need not have been convicted."U.S.S.G. § 3B1.1, comment. (n. 1). "`Criminal responsibility' isa term of art in the criminal law, connoting a certain culpablestate of mind." United States v. Ribot, 97 F. Supp.2d 74, 80(D. Mass. 1999).

6. Ellis, Henderson and Sumon, Federal Prison Guidebook(2002).

7. The only conclusion one can draw [from the Commission's failure to define `extraordinary'] is this: Congress and the Commission wanted courts to interpret these provisions as they sought to individualize sentences, to create a common law of sentencing defining the boundaries of typicality and atypicality. How does a court go about this task? The enterprise is in part empirical. How does this human being compare to others the trial court has seen? But it necessarily involves more than simply counting noses. How atypical does he or she have to be — one in a million, five in a million, five percent of all defendants, etc.? This kind of line-drawing involves the exercise of normative judgments: What kind of punishment do human beings facing these situations deserve given the purposes of the SRA? Where ought the line between typical and atypical be? No bright line rule was announced by the Commission; none can be announced by a court.Lacarubba, 184 F. Supp. at 93. And in evaluating hardship in connection with familyobligations, I wrote: I see a continuum of cases representing the adverse impact of a defendant's incarceration can have on innocent dependants, from the `ordinary burdens' to `significantly' more burdens than usual. The issue is at what point on that continuum burdens are imposed on innocent dependents that are simply not justified by our legitimate need to punish the wrongdoer, that are cruel and unnecessary.Id. at 98.

8. See Paul J. Hofer & Mark H. Allenbaugh, The Reason Behindthe Rules: Finding and Using the Philosophy of the FederalSentencing Guidelines, 40 Am. Crim. L. Rev. 19, 73 (2003).

9. Again, as I noted in Lacarubba, 184 F. Supp. at 92: While it is popular to stress one goal of the Sentencing Reform Act, uniformity, to the exclusion of all others, in fact the drafters endorsed other sentencing goals — notably, proportionality. In its introduction, the Commission described the difficulties of creating guidelines that met both goals. Too much uniformity would create a system easy to administer but would threaten proportionality, while a guideline system that accounted for every conceivable relevant offender and offense characteristic would destroy uniformity and surely be unworkable. U.S.S.G. §§ 1A.4(b), 1A.3.In Lacarubba I went on to note: The Sentencing Reform Act refers to `certainty and fairness' in sentencing. 28 U.S.C. § 991(b)(1). Fair sentencing policies must not only avoid `unwarranted disparities' among defendants similarly situated with respect to the offense, but also `maintain[] sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices.' 28 U.S.C. § 991(b)(1)(B).Id. at 92 n. 6.

10. As the court noted in United States v. Kloda,133 F. Supp.2d 345, 348 (S.D.N.Y. 2001): [P]unishment must not be draconian; the judge who sentences must be sensitive to both the goals of society reflected by the efforts of the government, and special circumstances of those awaiting sentence. The judge must sentence in a manner that reflects his role as the implementer of society's search for justice, as reflected by due and timely punishment of those who transgress, without ever being indifferent to a defendant's plea for compassion, for compassion is also a component of justice.

11. Obviously, there is no particular age that qualifies for"elderly" much less "elderly and infirm." But there is plainly acorrelation between age and infirmity. Conditions notlife-threatening in a younger defendant may be life threateningin an older one. See U.S. v. Baron, 914 F. Supp. 660, 662 (D.Mass. 1995).

12. The U.S. Attorney suggested that this language thatbalances incarceration versus home confinement is for someoneconfined to a bed and arguably at death's door, needing constantmonitoring for which the disruption of treatment and follow upwould have imminent and dire consequences. Nothing in thelanguage of the Guidelines suggests that point.

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