Appeal from the United States District Court for the Western District of Missouri.
The opinion of the court was delivered by: Wollman, Circuit Judge.
Submitted: November 14, 2007
Before WOLLMAN, JOHN R. GIBSON, and BENTON, Circuit Judges.
This case is before us for the second time. In the first appeal, we affirmed the district court's*fn1 denial of Bueno's motion to suppress and the quashing his subpoena duces tecum, but vacated the sentence and remanded the case for resentencing. United States v. Bueno, 443 F.3d 1017 (8th Cir. 2006). We now affirm the sentence imposed following our remand.
As set forth in our opinion in the first appeal, Bueno pleaded guilty to possessing with intent to distribute five kilograms or more of powder cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). The district court reduced Bueno's United States Sentencing Guidelines (U.S.S.G.) offense level from thirty to twenty-one, which resulted in a sentencing range of thirty-seven to forty-six months, granted a downward departure from the Guidelines, and sentenced Bueno to eighteen months of imprisonment and three years of supervised release.
In reaching our decision to vacate the sentence, we rejected Bueno's contention that the fact that his wife was suffering from lupus and rheumatoid arthritis and that Bueno was her primary caregiver constituted extraordinary family ties and responsibilities that would warrant a downward departure from the Guidelines range under U.S.S.G. § 5H1.6. Noting that this is a disfavored reason for granting a departure, and citing Koon v. United States, 518 U.S. 81, 95 (1996), we distinguished our decision in United States v. Haversat, 22 F.3d 790 (8th Cir. 1994), in which we held that such a departure was warranted because of potentially life-threatening psychiatric problems that the defendant's wife suffered and of whose treatment plan the defendant was an irreplaceable part. Bueno, 443 F.3d at 1023. Rather, we likened Bueno's situation to that which existed in United States v. Van Houten, 307 F.3d 693 (8th Cir. 2002), in which we held that the defendant's failure to present evidence that his mother's condition was life-threatening or that his care was a necessary part of her medical treatment defeated his claim for a downward departure under § 5H1.6. Id. We concluded our analysis of Bueno's claim for § 5H1.6 relief by noting that "Bueno's situation, however, is closer to that in Van Houten than in Haversat. Bueno has offered little evidence that his wife's situation is life threatening, and he has failed to demonstrate that his care is a necessary part of her treatment. Bueno has thus not established that the circumstances warrant a departure on this ground." Bueno, 443 F.3d at 1023-24.
At resentencing, Bueno submitted extensive documentation in support of his claim for downward departure under § 5H1.6, including Mrs. Bueno's fourteen-page declaration describing her physical condition. Among other things, she has suffered from lupus since 1981, a condition that is getting progressively worse. Following Mrs. Bueno's left hip replacement surgery in June of 2006, Bueno was trained by a nurse to administer the twice-daily intravenous injections of antibiotics required to treat the open sore that developed at the surgery site, including the cleaning of the wound site and the flushing of the IV lines. The 2006 hip replacement surgery was the fifth such surgery on Mrs. Bueno's left hip and has left her unable to attend to her post-toilet personal hygiene, to shower or bathe by herself, or to get to the bathroom unassisted. The lupus has rendered her unable to brush her teeth, open or close most medication bottles, to clothe or unclothe herself, or to stand or walk. She has been confined to a wheelchair since 2003. She has difficulty holding things such as eating or kitchen utensils, jars, bottles, or containers. She is subject to falls and cannot rise from the floor without assistance. She suffers from grand mal seizures, during the occurrence of which she loses bowel and bladder control. Her declaration states that she needs her husband's assistance to perform all of the everyday functions required for survival, including the proper administration of the 40 pills that she is required to take each day; that he is her only care provider before and after his working day activities; and that he often comes home from work during the day to care for her when necessary. Further, the declaration states that Mrs. Bueno experiences panic attacks that render her claustrophobic, and that she has been hospitalized 20 to 25 times since Bueno's April 2004 sentencing date. She avers that neither her daughter nor her sixteen-year-old son is able to provide the personal and medical assistance that she requires to cope with her physical and emotional problems.
In addition to Mrs. Bueno's self-description of her physical and emotional problems, Bueno submitted the July 13, 2006, evaluation and consultation report of Allen I. Salick, M.D., a rheumatologist, that corroborated Mrs. Bueno's statements regarding her condition and her dependence upon her husband's assistance in attending to her daily needs. Dr. Salick's report describes the side effects of the medications that Mrs. Bueno is required to take to suppress her lupus, which Dr. Salick characterized as deteriorating. In the comments portion of his report, Dr. Salick states:
[Mrs. Bueno's] condition is life threatening and her long-term prognosis is not good. She is kept alive by her husband. His treatment is irreplaceable and necessary because not only does she require constant attendance to monitor her medication and to help her with all of her disabilities and weaknesses, but he also has a very serious positive effect on her emotions. Without him, in my opinion, she would be severely depressed and probably suicidal.
Her Central Nervous System Lupus has left her with a seizure disorder. Obviously when she has a seizure she loses consciousness and becomes incontinent and she needs somebody with her, someone like her husband, all the time. This lady is incapable of living alone or taking care of herself, not just on the basis of her central nervous system, but also with her muscle disease and her severe inanition.
I tried to keep this discussion in terms that a layperson could understand. [Mrs. Bueno] has a life threatening condition with a very poor long-term prognosis. It is a miracle that she survived to date. I think that she never would have been able to do this without the constant attendance of her husband. I certainly recommend from a humanitarian point of view, that he be allowed to continue this. I am also concerned about her emotions as she is taking psychotropic medications and seeing a psychologist. In my opinion, her husband is providing very significant psychiatric support for this lady.
Bueno also submitted the July 14, 2006, special psychological report prepared by Marge Cohen, Ph.D., a licensed psychologist who had performed a psychological evaluation on Mrs. Bueno earlier that day. In Dr. Cohen's opinion, Mrs. Bueno suffers from severe psychiatric problems. Her mental health issues, including major depressive disorder, single episode -- severe with suicidal ideation and panic disorder without agoraphobia, are life-threatening. Dr. Cohen summarized her evaluation as follows:
In sum, Mayra Bueno's husband, Mario, is emotionally indispensable to her in helping her cope with her emotional symptoms and physical symptoms of Lupus ...