United States v. Monroe

106 F. App'x 604

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 9, 2004
• Docket: No. 03-30408; D.C. No. CR-02-00061-DWM
• Status: Published

Opinions

MEMORANDUM

**

Rodney Roy Monroe appeals from his sentence following a guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and possession of a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Monroe challenges the district court’s failure to depart downward pursuant to U.S.S.G. § 5H1.4, which provides that although physical condition is not ordinarily a permitted basis for departure, “an extraordinary physical impairment may be a reason to depart downward.” The district court first made the factual finding that Monroe’s kidney disease did not constitute an extraordinary physical impairment. See United States v. Martinez-Guerrero, 987 F.2d 618, 620 (9th Cir.1993) (to analyze departure request under § 5H1.4, first step is factual finding of extraordinary impairment). We review that factual finding for clear error. See id.

The court considered the testimony of Monroe and his mother, as well as his medical records. The evidence showed that although intermittent flare-ups of Monroe’s disease made him gain weight and feel tired, he largely controlled it with medication. The district court did not clearly err in concluding that his illness was not extraordinary. Because it did not find an extraordinary physical impairment, the court did not have the discretion to depart downward. Id.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.