The opinion of the court was delivered by: Kane, Senior District Judge.
Before HENRY, Circuit Judge, McKAY, Senior Circuit Judge, and KANE, Senior District Judge.*fn1
Mark Fisher appeals from the district court's judgment sentencing him to sixteen (16) months imprisonment following his plea of guilty to Count I charging him with the offense of distribution of a controlled substance, Lysergic Acid Diethylamide (LSD) in violation of 21 U.S.C. § 841(a)(1). Fisher also appeals the district court's ruling on his Motion for Stay of Execution of Sentence and Release of the Defendant Pending Appeal.
On appeal, Fisher argues, in light of his physical infirmities, the district court abused its discretion by (1) failing to depart downward from the sentencing guidelines pursuant to U.S.S.G. § 5H1.4. and (2) failing to rule on his motion for stay of execution and release pending appeal in a timely fashion.
The facts recited here have been gleaned from the briefs on appeal, the presentence report, the transcript of the sentencing proceeding and other documents contained within the criminal docket of the district court.
Mark Fisher was born on October 23, 1970. At age eleven, he fell from a tree, causing loss of movement from his mid-chest down and confining him to a wheelchair. In addition, Fisher suffers from decubitus ulcers and has undergone a colostomy, which periodically results in bouts of infection.
On February 17, 1994, Fisher entered a plea of guilty to one count of a two count indictment charging him with the offense of distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1).
At the sentencing hearing on April 19, 1994, Fisher's counsel requested a six level downward departure pursuant to U.S.S.G. § 5H1.4 on the basis that Fisher is infirm, a paraplegic, and has developed serious complications. Without making reference to the request for downward departure, the district court judge sentenced Fisher to the maximum sixteen months imprisonment, commencing forthwith, to be followed by three years of supervised release.
Fisher filed a notice of appeal on April 25, 1994. Simultaneously Fisher filed a motion for an order staying the execution of his sentence of confinement and releasing him pending appeal. On May 6, 1994, the district court, without findings, denied the motion. The order was entered on May 10, 1994. Meanwhile, Fisher had, on April 29, 1994, been transported to his designated place of confinement.
a. Downward Departure under U.S.S.G. § 5H1.4.
Fisher argues the district court abused its discretion, or, alternatively erred in failing to depart downward as provided for pursuant to U.S.S.G. § 5H1.4.
"[W]e review the application of the sentencing guidelines for errors of law, while factual determinations made by the trial court are reviewed for clear error." United States v. Diggs, 8 F.3d 1520, 1526 (10th Cir.1993). As a general rule, "this court does not have jurisdiction to hear a defendant's appeal from the district court's discretionary refusal to depart downward from the Sentencing Guidelines." Id.; see United States v. Holsey, 995 F.2d 960, 963 (10th Cir.1993). However, "a sentence imposed within the guideline range only because the court erroneously believed that the guidelines did not permit a downward departure is a sentence 'imposed as a result of an incorrect application of the sentencing guidelines,' 18 U.S.C.A. § 3742(a)(2)." United States v. Lowden, 905 F.2d 1448, 1449 (10th Cir.), cert. denied, 498 U.S. 876, 111 S.Ct. 206, 112 L.Ed.2d 166 (1990).
The determinative question here is whether the district judge correctly believed he had the power to depart under U.S.S.G. § 5H1.4 but declined to do so, in which case his decision is not reviewable, or whether he erroneously believed he lacked authority to depart from the guidelines, in which case it is.
At the outset of the sentencing hearing, the judge addressed Fisher's counsel as follows:
You have indicated in a document filed with the Court, and it has been very helpful, that there are factors that warrant departure. And you're indicating the extraordinary physical impairment and that that may be reason to impose a sentence before [sic.] the applicable guideline range. And I have made note of that as I am sure [the Assistant United States Attorney] has.
R.Vol. II at 4 (referring to R. on Appeal, Vol. I, Doc. 23.)
The judge then invited Fisher's counsel "to address the departure along with anything else you want to say about the sentencing generally." R.Vol. II at 4. Fisher's counsel argued, without interruption, that a downward departure was warranted pursuant to U.S.S.G. § ...