Full opinion text
RICHARD S. ARNOLD, Chief Judge. Marc David Rabins appeals his convictions in the United States District Court for the Southern District of Iowa on one count of conspiracy to distribute methamphetamine, three counts of use of a communications facility to distribute methamphetamine, and one count of distribution of methamphetamine. A.L. Johnson, a co-conspirator who pleaded guilty to one count of conspiracy to distribute methamphetamine, appeals his sentence of 96 months’ imprisonment. Rabins’s and Johnson’s appeals are consolidated for our review. We affirm both Rabins’s convictions and Johnson’s sentence. I. This case involves a conspiracy to sell methamphetamine in the Des Moines area. In July of 1992, Charles Brooks, a Des Moines tavern owner, hired Johnson to work as a bartender in his tavern, the Barbell Athletic Club. The two men began a friendship and discovered a mutual enjoyment of methamphetamine. Together they purchased the drug from local suppliers for personal use and for occasional sale to other users. Over time, Brooks’s and Johnson’s personal usage and sales increased. In February of 1993, Brooks and Johnson encountered problems with their local source of methamphetamine. Johnson then suggested a friend in California, Rabins, as a possible supplier. Johnson contacted Ra-bins, who indicated an interest in supplying the drug. The first transaction between Johnson, Rabins, and Brooks occurred in April of 1993. Johnson and Brooks wired cash to Rabins in California, and Rabins mailed methamphetamine to Iowa. Several similar transactions followed — an estimated 27 in all — with drug shipments ranging from 1 kilogram to 3 kilograms. The conspiracy was foiled on August 13, 1993, when the Des Moines Police Department arrested Brooks after he sold methamphetamine to an informant. The officers seized 191 grams of methamphetamine from his apartment and recovered $3,000 from a safety deposit box. Shortly thereafter, Brooks became a cooperating witness. Ra-bins and Johnson were later arrested. On February 18, 1994, the government filed a seven-count indictment against Rabins and Johnson in the Southern District of Iowa. Count I charged Rabins and Johnson with conspiracy to distribute methamphetamine. Count II through Count VI charged both men with conspiracy to distribute methamphetamine and use of a communications facility to distribute methamphetamine. Count VII charged Rabins individually with distribution of methamphetamine. Shortly before Rabins’s trial, Johnson entered into a plea agreement with the government whereby he pleaded guilty to one count of conspiracy to distribute methamphetamine and became a cooperating witness. Following a jury trial, Rabins was found guilty of Counts I through IV and Count VII. Rabins appeals from his convictions. Johnson appeals his sentence. II. Rabins A. First, Rabins argues that the District Court erred by denying his motion for judgment of acquittal based upon a variance of proof between the single conspiracy charged in the indictment and evidence of multiple conspiracies presented at trial. As support for this argument, Rabins cites agreements between Brooks and several other suppliers of methamphetamine. In order to prevail on a motion for acquittal based on a fatal variance between the single conspiracy charged and the proof offered at trial, Rabins must establish that a variance exists, and that the variance affected his substantial rights. See United States v. Anderson, 618 F.2d 487, 490 (8th Cir.1980). The question in this ease is whether the evidence is sufficient to demonstrate an overall conspiracy to obtain and sell methamphetamine and that Rabins “knowingly joined such conspiracy and participated in furthering its objectives.” Hayes v. United States, 329 F.2d 209, 214 (8th Cir.), cert. denied, 377 U.S. 980, 84 S.Ct. 1883, 12 L.Ed.2d 748 (1964). We view the evidence and all reasonable inferences arising from the evidence in the light most favorable to the jury’s verdict. United States v. Willis, 967 F.2d 1220, 1225 (8th Cir.1992). The record is replete with evidence from which the jury could conclude that a single conspiracy to distribute methamphetamine existed which involved Brooks, Johnson, and later Rabins. Brooks and Johnson testified that they agreed to purchase and distribute methamphetamine. The government presented evidence, including telephone records and mailing receipts, demonstrating that Rabins entered into an agreement with Brooks and Johnson to supply methamphetamine. In addition, the fact that Johnson had other means of obtaining methamphetamine does not support Rabins’s claim that multiple conspiracies existed. As we read the record, the change in suppliers over time, simply demonstrates the varied phases of one basic plan to obtain and distribute illegal drugs. See United States v. Davis, 882 F.2d 1334, 1342 (8th Cir.1989), cert. denied, 494 U.S. 1027, 110 S.Ct. 1472, 108 L.Ed.2d 610 (1990). The jury certainly could have drawn the same conclusions from the evidence presented. Therefore, the District Court did not err by denying Rabins’s motion for judgment of acquittal. B. Next, Rabins contends that the District Court abused its discretion by denying his motion for a new trial based on the government’s failure to disclose evidence that Johnson tested positive for methamphetamine during the period that he was under home arrest. Rabins claims that the failure to disclose Johnson’s test results violated his due-process rights and his Sixth Amendment right of confrontation. First, we consider Rabins’s due-process argument. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), the Supreme Court stated that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” There is no question that the prosecution knew that Johnson tested positive for methamphetamine prior to trial, or that the test results were somewhat favorable to the defense. Under the circumstances, the government had a duty to disclose this information. Thus, the conviction “‘must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’ ” United States v. Duke, 50 F.3d 571, 577 (8th Cir.1995) (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 2397, 49 L.Ed.2d 342 (1976)). Despite our dismay at the prosecutor’s failure to reveal that Johnson may have given perjured testimony when he said he was not using drugs, we conclude that there is no reasonable likelihood that Johnson’s false testimony affected the jury’s judgment. We note initially that Johnson was not an exemplary witness. Johnson admitted that he had been a methamphetamine user and distributor. He was unable to remember details regarding the conspiracy. On cross-examination, Johnson admitted that he had entered into a plea agreement with the government in exchange for his testimony. Thus, the jury was given full information regarding Johnson’s credibility, previous drug use, and possible bias. We also note that Johnson’s testimony was cumulative for the most part. Both Johnson and Brooks testified with regard to the details of the conspiracy. Because it is unlikely that presenting Johnson’s test results would have affected the jury’s verdict, the District Court did not abuse its discretion by denying Rabins’s motion for a new trial. In a related argument, Rabins maintains that his Sixth Amendment right of confrontation was violated when the government suppressed Johnson’s test results. An accused’s right to confrontation is violated when he is “ ‘prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.’ ” United States v. Boykin, 986 F.2d 270, 276 (8th Cir.), cert. denied, — U.S. —, 114 S.Ct. 241, 126 L.Ed.2d 195 (1993) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1435-36, 89 L.Ed.2d 674 (1986)). In the past, we have recognized a Sixth Amendment violation where the positive drug test of an “apparently blameless witness” was withheld from the defense. United States v. Simmons, 964 F.2d 763, 770 (8th Cir.), cert. denied, — U.S. —, 113 S.Ct. 632, 121 L.Ed.2d 563 (1992). Johnson was far from an apparently blameless witness. He admitted to drug use and distribution. He also admitted that his plea agreement called for him to plead guilty to distribution of methamphetamine. Moreover, the defense had the opportunity to cross-examine Johnson thoroughly. These facts persuade us that Rabins’s Sixth Amendment right to confrontation was not abridged. C. Rabins next maintains that the District Court abused its discretion by limiting FBI Agent Kenneth Moore’s testimony. The Court limited the testimony under Fed. R.Evid. 403, citing unfair prejudice and confusion. Rule 403 grants the trial court the discretion to exclude relevant evidence when its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury. Fed.R.Evid. 403. We accord great deference to the District Court’s application of the Rule 403 balancing test, and will reverse only if the Court committed a clear abuse of discretion. United States v. Mitchell, 31 F.3d 628, 631 (8th Cir.1994). After a careful review of the record, we cannot say that the Court abused its discretion in this case. D. Finally, Rabins contends that the District Court erred by denying his supplemental motion for new trial based on newly discovered evidence. Rabins claims that after the trial he discovered that Johnson and Brooks were supplied methamphetamine by John Brooks, Charles Brooks’s nephew. He alleges that John Brooks’s involvement in the conspiracy was Brady information, and failure to disclose it violated his due-process right to a fair trial and his Sixth Amendment right of confrontation. To succeed on a motion for new trial based on newly discovered evidence, the new evidence must be of such a nature that a new trial would likely produce an acquittal. United States v. Jones, 34 F.3d 596, 600 (8th Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 1701, 131 L.Ed.2d 563 (1995) (citing United States v. Page-Bey, 960 F.2d 724, 727 (8th Cir.1992). Whether the evidence rises to this level is initially left to the discretion of the trial court, and this Court will reverse the trial court’s decision only when there has been a clear abuse of discretion. Ibid. We find no abuse of discretion, because the evidence of Charles Brooks’s involvement in the conspiracy is not likely to produce an acquittal. See ibid. It is also not material, and thus Brady does not mandate a new trial in this case. See Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. Furthermore, Rabins’s Sixth Amendment right of confrontation was not violated, since Rabins exercised his right to cross-examine Brooks on issues of motive and bias. Cf. Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986). III. Johnson On April 29, 1994, Johnson pleaded guilty to one count of conspiracy to distribute methamphetamine. At his July 15, 1994 sentencing hearing, the sentencing court calculated Johnson’s guideline range at 97 to 121 months, with a mandatory minimum sentence of 120 months. In recognition of Johnson’s substantial assistance, the government moved for a departure under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). The Court granted the government’s motion, departing to a sentence of 96 months, a 20 per cent reduction from the statutory mandatory minimum. Johnson filed a motion for further downward departure under U.S.S.G. § 5H1.4, U.S.S.G. § 5K2.0, and 18 U.S.C. § 3553(b), based on the fact that he has Acquired Immunodeficiency Syndrome (AIDS), or, more specifically, AIDS-related Complex (ARC). The sentencing court denied his motion, reasoning that Johnson’s condition did not present an extraordinary physical impairment under § 5H1.4. On appeal, Johnson asserts that the Court erred by refusing to depart further based on his physical condition. Johnson’s argument must fail because Johnson is subject to a statutorily mandated minimum sentence of 120 months. At the time of sentencing, a motion by the government under § 3553(e) for substantial assistance was “the only authority for [a] district court to depart below the statutorily mandated minimum sentence....” United States v. Rodriguez-Morales, 958 F.2d 1441, 1444 (8th Cir.), cert. denied, — U.S. —, 113 S.Ct. 375, 121 L.Ed.2d 287 (1992); see also United States v. Polanco, 53 F.3d 893 (8th Cir.1995); United States v. Stockdall, 45 F.3d 1257, 1259 (8th Cir.1995). Such a departure could be based “‘only [on] factors relating to a defendant’s cooperation,’ ” Stockdall, 45 F.3d at 1261 (quoting United States v. Thomas, 930 F.2d 526, 529 (7th Cir.), cert. denied, 502 U.S. 857, 112 S.Ct. 171, 116 L.Ed.2d 134 (1991)), not on a defendant’s physical condition. Thus, a “desire to dictate the length of a defendant’s sentence for reasons other than his or her substantial assistance is not a permissible basis” for departure under § 3553(e). Ibid. In a supplemental brief, Johnson asserts that once the sentencing court departed below the mandatory minimum on the basis of the government’s § 3553(e) motion, it was then free to depart below the mandatory minimum for any reason allowed by the guidelines or policy statements, including an extraordinary physical impairment. This argument must fail also. Section 3553(b) and § 5H1.4 provide for a departure from the guideline range only, not from the mandatory minimum. When a guideline “by its plain terms makes no mention of departure below mandatory minimums,” Rodriguez-Morales, 958 F.2d at 1444, such departure is not appropriate. Id. at 1445. A motion of the government to depart below the mandatory minimum under § 3553(e) for substantial assistance does not open the door for a departure under § 3553(b) and § 5H1.4 based on an extraordinary physical impairment. What we have said so far is sufficient to dispose of this appeal. The issue argued by the parties is whether the defendant Johnson had an “extraordinary physical impairment.” As we have explained, Johnson would not be entitled to consideration for a reduction in his sentence even if he wins this issue. In the particular circumstances of this case, however, we believe we should go on and decide the merits, as an alternative ground for affirmance. When the case was before the District Court, the United States, Johnson, and the Court all proceeded on the premise that Johnson would be entitled to consideration for a further departure below the mandatory-minimum sentence if he could demonstrate an “extraordinary physical impairment” within the meaning of U.S.S.G. § 5H1.4. The Court found against Johnson on the merits of this argument. The government did not claim in the District Court, nor did it claim in its main brief submitted on this appeal, that success on this argument would avail Johnson nothing because of the effect of the mandatory-minimum statute. The issue of the effect of the statute on the availability of a § 5H1.4 reduction came into the case only after this Court entered an order requesting the parties to address it. In response to this order, Johnson made the point, among others, that it would not be fair to him to affirm on a ground that was not only not raised below, but was inconsistent with the position taken by all parties in the District Court. For this reason — not directly contradicted by the government — we agree that we should proceed to address the merits of Johnson’s physical-impairment argument. Even if the courts had the authority to depart below a statutory mandatory minimum on the basis of § 5H1.4, however, departure would not be appropriate in Johnson’s case. Certainly AIDS is a basis for a departure under § 5H1.4 when it “has progressed to such an advanced stage that it could be characterized as an ‘extraordinary physical impairment.’ ” United States v. Woody, 55 F.3d 1257, 1275 (7th Cir.1995). Whether a defendant has an extraordinary physical impairment under § 5H1.4 is a question of fact to be decided by the sentencing court. Cf. United States v. Behr, 33 F.3d 1033, 1037 (8th Cir.1994). We will not disturb the Court’s conclusion unless it is clearly erroneous. Id. at 1037. The sentencing court considered Johnson’s medical records, Johnson’s testimony concerning his physical condition, the representations of Johnson’s attorney concerning his physical condition, and Johnson’s physical appearance. After weighing each of these factors, the Court concluded that, at the time of sentencing, Johnson’s condition was not serious enough to justify a departure. The sentencing hearing transcript supports the Court’s conclusion. Johnson was not taking medication for any AIDS-related ailments. In addition, he offered no evidence that imprisonment would worsen his condition or that he required special care. United States v. LeBlanc, 24 F.3d 340, 348-49 (1st Cir.), cert. denied, — U.S. —, 115 S.Ct. 250, 130 L.Ed.2d 172 (1994). Moreover, Johnson’s attorney stated unequivocally that his client was not seriously ill. Cf. United States v. Long, 977 F.2d 1264 (8th Cir.1992) (an extraordinary physical impairment which results in extreme vulnerability is a legitimate basis for departure). On these facts, we can not say that the sentencing court committed clear error. To some extent, both sides have argued this case as if it presented the abstract question whether someone with an HIV infection, or with ARC, or with AIDS, is suffering from an “extraordinary physical impairment.” No doubt there is a sense in which an affirmative answer would be proper in all three of these situations. Certainly any condition which is or will in all likelihood become life-threatening is a serious physical impairment, and the attendant circumstances of AIDS and its precursors can justly be described as “extraordinary.” We think, however, that the phrase in the Guidelines should be interpreted according to its manifest purpose. Is the particular defendant’s physical condition such that he or she would find imprisonment more than the normal hardship? Would imprisonment subject him or her to more than the normal inconvenience or danger? Does the physical condition have any substantial present effect on the defendant’s ability to function? These questions must be answered for each individual defendant who claims the benefit of § 5H1.4. They do not have an all-purpose answer fitting every situation. We can agree that Johnson’s condition is tragic, that it will probably, as his counsel said below, lead to very serious physical difficulties within four years, and that it will almost certainly cause his death. It was the District Court’s duty, despite these sad facts, to assess Johnson’s condition at the time of sentencing. The Court performed this duty properly under the law, and its findings are not clearly erroneous. ■ III. We affirm Rabins’s convictions and Johnson’s sentence. . The Hon. Ronald E. Longstaff, United States District Judge for the Southern District of Iowa. . Johnson had previously purchased methamphetamine from Rabins in October of 1992 while vacationing in California. Upon his return to Des Moines he gave some of this methamphetamine to Brooks as a gift. . Rabins alleges that Brooks and Johnson maintained distinct drug sources during the period charged in the indictment. He states that from November of 1992 until February of 1993, Brooks’s sources were Jimmy John and Michael Guy Williams (Wilbur). He also alleges that Brooks was later supplied by Jimmy John and Ron Fulcaro. . Rabins filed a motion under Rule 10(e) of the Federal Rules of Appellate Procedure to correct or modify the appellate record to include the transcript of Johnson's plea proceeding. The motion is granted. . The government maintains that Johnson's test result was believed to be a false positive due to medication which Johnson was taking for the HIV virus. This is not a sufficient excuse. The government should have revealed all the facts. It could then have argued, perhaps persuasively, that the test was a false positive. In his Rule 10(e) motion, Rabins alleges that the government's failure to disclose that Johnson had AIDS was also a Brady violation. We do not reach this issue because it was not raised below. Moreover, we cannot say that this evidence is likely to produce a different verdict. . The District Court precluded testimony on the following topics: 1. The FBI investigation of Michael Guy Williams and Williams’s arrest for possession of methamphetamine by the Warren County Sheriff's Department; 2. Williams's receipt of drugs from California by Federal Express and UPS; 3. The arrest of Brad Payne and Jimmy Sparks in Las Vegas, Nevada, on February 2, 1993; and 4. The FBI’s inability to confirm a legitimate source of income for Williams. . AIDS is defined as: [A] secondary immunodeficiency syndrome resulting from HIV infection and characterized by opportunistic infections, malignancies, neu-rologic dysfunction, and a variety of other syndromes. The Merck Manual 77 (Robert Berkow, M.D., et al. eds., 1992). . ARC is defined as: [A] constellation of chronic symptoms and signs manifested by HIV-infected persons who have not had the opportunistic infection or tumors that define AIDS. These symptoms, signs, and laboratory abnormalities include generalized lymphadenopathy, weight loss, intermittent fever, malaise, fatigue, chronic diarrhea, leukopenia, anemia, immune-mediated thrombocytopenia, oral hairy leukoplakia, and oral thrush (candidiasis). Id. at 80-81. . Section 3553(e) of Title 18, United States Code provides: Limited authority to impose a sentence below a statutory minimum. — Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code. . Congress has since enacted 18 U.S.C. § 3553(f), which allows the sentencing court to depart from the statutory minimum under specified circumstances. Section 3553(f) applies to sentences imposed after September 23, 1994. The circumstances specified in the new law, however, do not include physical impairment. . Section 5H1.4 provides in relevant part: "an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range.” . Judge Longstaff made the following comments: So I recognize that there is at least a viable argument that AIDS with a deteriorating condition would provide grounds for departure. However, I am forced to view Mr. Johnson as he is today and with the medical records I have, and I must reluctantly find that Mr. Johnson, as of today, does not presently have an extraordinary physical impairment that would constitute grounds for departure under 5H1.4. I make that determination after reviewing the medical records you've submitted to me. Sent. Tr. 32. . When asked if he was currently receiving treatment for AIDS, Johnson testified: I am under treatment for some anxiety, of course, and stress related to this case, but I’m not under any medication for HIV. Your body builds up a tolerance to the drugs used to treat HIV and AIDS, and it's best — they found it’s best to wait and avoid taking it until you have to so your body builds up a tolerance and then it doesn't do you any good later on. Sent. Tr. 19. .Johnson’s attorney stated: Now, we’re hampered by the fact that A.L. at this point — I feel strange arguing this way. I’m glad that A.L. is not experiencing any serious illness, such that he has to be, you know, hospitalized or treated with AZT or other very strong drugs. In that respect, I'm glad that we’re not at that situation. But on the other hand, it's almost a certainty that he will get to that position in four years or less. Maybe four years, you know, will be the extent of his life expectancy. If he were in that situation where A.L. [was] experiencing serious illness, I'd ask the Court to depart all the way down to home detention so that he could live the final portion of his life in the care of his parents and his friends and so on, but we're not at that point. Sent. Tr. 24. . In the event that Johnson’s condition does deteriorate and he requires extraordinary medical care, the Director of the Bureau of Prisons may move the Court to make a sentence reduction under 18 U.S.C. § 3582(c)(1).
WILSON, District Judge, dissenting. I concur in the Court’s opinion in United States v. Marc David Rabins. In United States v. A.L. Johnson, I respectfully dissent. A.L. Johnson appeals from a 96-month sentence imposed by the Honorable Ronald E. Longstaff, District Court for the Southern District of Iowa. On April 29, 1994, Mr. Johnson pled guilty to one count of an indictment charging him with conspiracy to distribute methamphetamine. On May 15,1994, Judge Longstaff recognized Mr. Johnson’s substantial assistance to the prosecution, pursuant to a motion for a departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3558(e), and thus departed from the minimum mandatory sentence of 120 months to a sentence of 96 months. Defendant asked the District Court to depart further on the authority of the “extraordinary physical impairment” provision of U.S.S.G. § 5H1.4 or the general provisions of U.S.S.G. § 5K2.0 and 18 U.S.C. § 3553(b). Appellant has the virus that causes Acquired Immune Deficiency Syndrome (AIDS) and has evidence of physical deterioration. Appellee asserts that the District Court correctly found that this was not an “extraordinary physical impairment.” Appellant argues that the District Court erred in finding that he only had authority to depart in the cases of persons afflicted with Human Immunodeficiency Virus (HIV) who manifest the dramatic conditions associated with the final stage of the disease. I believe the appellant is correct. The District Court suggested that appellant’s counsel appeal this matter because the Court needed guidance from the Eighth Circuit Court of Appeals on this issue. For the reasons stated below, I believe that the District Corut should be reversed and the case should be remanded, with guidance, for additional findings. 18 U.S.C. § 3553(e) AND SECTION 5K1.1 As the opinion for this Court points out at page 9, “the government moved for a departure under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e).” The latter statute provides limited authority for imposing a sentence below a statutory minimum: Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to Section 994 of title 28, United States Code. Title 28 of U.S.C. § 994(n) provides that the Sentencing Commission: shall assure that the guidelines reflect the general appropriateness of imposing a lower sentence than would otherwise be imposed, including a sentence that is lower than that established by statute as a minimum sentence, to take into account a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. The Sentencing Commission promulgated Section 5K1.1 of the guidelines, which provides in part: Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines, [emphasis added] As an initial matter, it might be pointed out that the District Court and the parties agreed that at the time of the sentencing hearing, after the filing of motions under § 3553(e) and § 5K1.1, the door would be opened for consideration of grounds for departure in addition to substantial assistance. The statutory minimum was 120 months, and the guideline range was 97-121 months. Judge Longstaff stated that there were three issues regarding departure, including substantial assistance and extraordinary physical impairment: “The Court finds that the motion [pursuant to § 3553(e) and § 5K1.1] can be filed at this time. I think with the motion being filed, we then are able to talk about reductions or a sentence below the 120-month minimum. And I guess I would just as well hear arguments on all three [bases for departure].” (Transcript of sentencing hearing, at 8, cited in appellant’s April 10, 1995 response to the Court’s letter of March 21, 1995). The government did not object. The section of the plea agreement regarding downward departures expressly stated that the reasons for such departures and their amount of reduction would not be limited to substantial assistance. (Plea agreement, pages 6-7, cited in appellant’s April 10, 1995 response). The prosecution understood that defendant would ask the Court to depart for extraordinary physical impairment under § 5H1.4; defendant made that statement in its response to the presentence report. The Court’s opinion in the instant case does not question these conclusions about the District Court’s view; as the opinion states, “When the case was before the District Court, the United States, Johnson, and the Court all proceeded on the premise that Johnson would be entitled to consideration for a further departure below the mandatory minimum sentence if he could demonstrate an ‘extraordinary physical impairment’ within the meaning of U.S.S.G. § 5H1.4.” The ap-pellee and appellant did not change their positions in their briefs on appeal. This issue entered this case only after this Court issued an order asking the parties to address it. The Court’s opinion in the instant case relies, in part, on United States v. Rodriguez-Morales, 958 F.2d 1441, 1444 (8th Cir.), cert. denied, — U.S. —, 113 S.Ct. 375, 121 L.Ed.2d 287 (1992). However, Rodriguez-Morales did not deal with the issue presented in Johnson’s case. As the Eighth Circuit stated in Rodriguez-Morales, the issue in that ease was whether “a sentencing judge can depart below the statutory minimum sentence when the government has moved for a downward departure for substantial assistance pursuant to United States Sentencing Guidelines section 5K1.1, and not pursuant to 18 U.S.C. section 8553(e).’’ Rodriguez- Morales, 958 F.2d at 1442-1443. (emphasis added). The underlying question in Rodriguez-Morales was whether § 5K1.1 and § 3553(e) provided for two different types of departure, as the government contended, or whether they are intended to perform the same function, as the appellant asserted. Id. The Rodriguez-Morales Court cited the Eighth Circuit’s decision in United States v. Coleman, 895 F.2d 501 (8th Cir.1990), in which the Court stated: “although the two sections can have different effects, their requirement of a government motion before departure in recognition of a defendant’s substantial assistance is identical; the requirement is clear and unambiguous.” Citing Coleman, the Rodriguez-Morales Court observed that “section 3553(e) specifically refers to mandatory minimum statutory sentences, while 5K1.1 refers to departure below the guideline range.” Rodriguez-Morales, at 1443, citing Coleman, at 504 n. 5. That Rodriguez-Morales is inapposite here is clearly indicated by the Court’s statement that “In this case, the government specifically filed a section 5K1.1 motion under the Guidelines, and expressly refused to file a motion under section 3553(e).” Rodriguez-Morales, at 1444. In A.L. Johnson’s ease, the government filed motions both under § 5K1.1 and § 3553(e) — this presents an undeniable difference. The Rodriguez-Morales Court concluded that a distinction exists between the motion under the statute and the motion under the Guidelines, and this was critical. Id. Section 994(n) requires that the Guidelines reflect the “general appropriateness” of imposing lower sentences for substantial assistance, including those below the statutory minimum. Id. Section 5K1.1 “authorizes departure from the Guidelines range,” and the Court rejected the argument that a motion under § 5K1.1 should be equated with one under § 3553(e). Id. The Court’s opinion in the ease at bar cites the statement in Rodriguez-Morales that “the only authority for the district court to depart below the statutorily mandated minimum sentence exists in the plainly stated limitation in section 3553(e).” Id. As noted above, this statement was made in a case in which there was a § 5K1.1 motion by the government but not a § 3553(e) motion. The general analytical directive of Rodriguez-Morales — in stating that “3553(e) specifically refers to mandatory minimum statutory sentences, while § 5K1.1 refers to departure below the guideline range” — is certainly applicable to this case. In A.L. Johnson’s case, the § 3553(e) motion gave the Court the authority to depart from the statutory minimum, and the § 5K1.1 motion then addressed the question of departure below the guideline range and opened the door for the § 5H1.4 motion. Had the government only filed a motion under § 5K1.1, under Rodriguez-Morales the Court would not have had any authority to depart below the statutory minimum. Since, however, the government here filed motions under both sections, this ease presents a different issue. The Rodriguez-Morales Court devoted substantial attention to the issue of “undue discretion in the hands of district attorneys.” The Court conceded that, under the relevant sections “as drafted,” the government could “set the parameters of the district court’s discretion.” The Court held that “the sentencing judge may not depart below the statutory minimum pursuant to a motion under Section 5K1.1 alone. Only a section 3553(e) motion allows for such a departure.” Id. at 1445. Here, the prosecutor did not “set the parameters of the district court’s discretion,” because he filed motions under both § 5K1.1 and § 3553(e). The Court’s opinion cites the statement in United States v. Stockdall, 45 F.3d 1257 (8th Cir.1995) that “only factors relating to a defendant’s cooperation should influence the extent of a departure for providing substantial assistance under Section 3553(e);” (the majority’s opinion then adds, “not on a defendant’s physical condition,” but Stockdall did not address any issues regarding the defendant’s physical condition). So, again, the issue presented in Stockdall was different. The Stockdall Court concluded that § 3553(e) “authorizes the government to make a separate substantial assistance motion decision for each mandatory minimum sentence to which a defendant is subject.” Stockdall, at 1260. In Stockdall, the prosecution filed different motions for the different offenses involved: it recommended reducing the statutory minimum for Lori Stockdall for engaging in a continuing criminal enterprise and relied on both 18 U.S.C. § 3553(e) and § 5K1.1 in that motion, but the government did not file a § 3553(e) motion to reduce Ms. Stockdall’s drug and firearm offenses. Id. at 1258. Similarly, the government relied on both sections to reduce the statutory minimum for defendant Floyd Stockdall’s firearm offense, but did not file a § 3553(e) motion for Floyd Stoekdall’s continuing criminal enterprise conviction. Id. Unlike the case at bar, Stockdall involved multiple mandatory minimum prison sentences for engaging in a continuing criminal enterprise, firearm offenses, and possession with intent to distribute and conspiracy to manufacture methamphetamine. As the Stockdall Court stated the issue, “For each defendant, the government then filed a § 3553(e) motion limited to only one applicable mandatory minimum sentence ... The issue is whether the government may so limit its § 3553(e) motions.” Id. In deciding the question whether the phrase “a sentence” in § 3553(e) refers to each offense of conviction when multiple mandatory mínimums are involved, or to the total sentence imposed by the conviction, the Court in Stockdall ruled that “a sentence” is imposed for each offense of conviction, so the government’s limitation of its § 3553(e) motions was proper. Id. at 1260. A.L. Johnson faced only one statutory minimum for the offense of conspiracy to distribute methamphetamine, not multiple mandatory sentences as in Stockdall. In United States v. Calle, 796 F.Supp. 853, 859 (D.Maryland, 1992), the Court dealt with “the proper interpretation of the scope of its authority under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e).” The Court found that after the government filed a motion under these two sections, the Court could consider “grounds for departure in addition to the defendant’s substantial assistance.” Calle, at 859. In Calle, the Court took into consideration not only the defendant’s substantial assistance, but also duress, unusual family circumstances and “totality of circumstances” in reducing one of the defendants’ sentence from a 10-year minimum in a drug case to a 24-month sentence. The Court pointed out that § 3553(e) expressly provides for a sentence “computed under guidelines issued pursuant to the general statutory mandate of 28 U.S.C. § 994, on which all guidelines are based.” Id. at 860. Once the government moves for a downward departure, “the most sensible interpretation of the statute is that the Court is restored to its function as a full guideline sentencing Court.” Id. at 860-861. The District Court’s granting of the substantial assistance motion reduced Johnson’s sentence below the statutory minimum and took the statutory minimum out of this case under 18 U.S.C. § 3553. A full guideline sentencing Court, after the government moves for a downward departure under § 3553(e) and § 5K1.1, then would have the discretion to grant a downward departure for an “extraordinary physical impairment” under § 5H1.4. At the conclusion of its discussion regarding the threshold issue of the availability of a § 5H1.4 departure, the Court finds that such a departure is not available and then states: “What we have said so far is sufficient to dispose of this appeal.” While I disagree, of course, with the majority’s conclusion on this issue, it is clear that if the appellant loses on the threshold issue, then the Court should not reach the merits of the § 5H1.4 argument. The last section of the Court’s opinion (pages 727-729) is not necessary to the resolution of this appeal. Nonetheless, since I think a § 5H1.4 departure is available, and since the majority discussed the merits of this issue, I will address the substance of the “extraordinary physical impairment” question. THE DISTRICT COURT HAD AUTHORITY TO DEPART UNDER § 5H1.4, OR, ALTERNATIVELY, UNDER § 3553(B) AND § 5K2.0 At the July 15, 1994 District Court sentencing hearing, Judge Longstaff stated that he would “be delighted to have some more specific guidance from the Eighth Circuit” on this issue when he asked Mr. Johnson’s counsel to give serious consideration to an appeal. This Court should provide that guidance, especially since this is a case of first impression. We should advise the District Court that an HIV-positive affliction with a deteriorating physical condition is a factor to be considered by the District Court in determining whether a downward departure is warranted. The District Court needs to set forth adequate factual findings explaining its position on the status of appellant’s condition. The transcript of the sentencing hearing contains only a eonclusory reference to the District Court’s review of the medical records and a rejection of the request for a § 5H1.4 departure, without any specific factual findings or explanation as to why the Court arrived at that conclusion. The relevant section (5H1.4) states: Physical condition or appearance, including physique, is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. However, an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range; e.g., in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment. As the appellee correctly states, the issue of whether an HIV-positive condition would constitute an extraordinary physical impairment has not been previously addressed by the Eighth Circuit. The Third Circuit recently explored this question in a decision handed down after Judge Longstaff held the hearing in the instant ease; in United States v. Schein, 31 F.3d 135, 138 (3d Cir.1994), the Court considered the case of an appellant who was HIV-positive and “may have a related serious physical complication. Thus, there may be a reason to grant a downward departure in his case.” Clearly, the Schein Court answered the question involved in this case: does an HIV positive person with a serious physical complication have an extraordinary physical impairment so that the District Court has the authority to depart downward under Section 5H1.4? The answer was “yes” in Schein, and I find that decision persuasive. (As I will discuss later in this opinion, there is now a split in the circuit courts on this question, since the Sixth Circuit recently handed down United States v. Thomas, 49 F.3d 253 (6th Cir.1995)). The HIV-positive person does not have to be in the “final” stage of the disease. The Schein Court remanded the case to the District Court for specific factual findings regarding Mr. Sehein’s health. Schein, supra, at 138. The District Court would use its discretion, of course, in deciding how much of a downward departure to give, after reasonably specific factual findings. Since Schein and Thomas were decided after the hearing in this case, the District Court relied upon the Sixth Circuit’s decision in United States v. Streat, 22 F.3d 109, 113 (6th Cir.1994), which expressly declined to reach the issue of “whether AIDS alone, or AIDS accompanied by the physical deterioration characterizing the latter stages of the disease, warrants a downward departure ... Upon remand, the district court will have the opportunity to exercise its discretion as permitted under the guidelines.” Although Streat did not provide the specific guidance that an HIV positive person with complications could gain a downward departure, as did Schein, it nonetheless provided other statements tending to support downward departure in such circumstances. First noting that there is little authority “specifically addressing the circumstances under which AIDS is a proper ground for a downward departure,” the Sixth Circuit went on to conclude that sections of the guidelines — specifically § 5H1.4 — “could justify a downward departure under certain circumstances.” Streat, at 112. The Streat Court cited several other decisions that had granted downward departures. For example, in United States v. Velasquez, 762 F.Supp. 39, 40 (E.D.N.Y.1991), the Court ruled that the defendant’s metastasized cancer was “a serious, life-threatening illness, which constitutes an extraordinary physical impairment as that term is defined in the guidelines.” The Court in Velasquez departed from 151-188 months to 60 months. Velasquez, at 40. Similarly, in United States v. Ghannam, 899 F.2d 327, 329 (4th Cir.1990), the Fourth Circuit held that Section 5H1.4 allows downward departures “any time a sentencing court is presented with sufficient evidence of impairment.” Courts have frequently given downward departures for physical impairments that are not terminal, and hence are certainly no more “extraordinary” than Mr. Johnson’s affliction. In United States v. Greenwood, 928 F.2d 645, 646 (4th Cir.1991), the Court upheld a departure for a defendant who had lost the lower part of both legs. In Greenwood, the defendant received probation (for a conviction for felon in possession of a firearm) rather than imprisonment, because his medical condition required continuing medical treatment at the Veterans Administration Hospital and incarceration would jeopardize his treatment. Id., at 646. The Fourth Circuit upheld a downward departure based on a “failing physical condition” in United States v. Tillem, 906 F.2d 814 (2d Cir.1990). Similarly, in United States v. Little, 736 F.Supp. 71 (D.New Jersey), aff'd, 919 F.2d 137 (3d Cir.1990), the Third Circuit affirmed a departure based on a defendant’s chronic pulmonary disease. In United States v. McClean, 822 F.Supp. 961, 962 (E.D. New York, 1993), the Court sentenced a defendant who was convicted of smuggling 100 grams of heroin into the United States; defendant based his request for a downward departure on the fact that his left leg had been crippled by polio when he was a child. Judge Weinstein ruled that “A departure downward is required on the grounds of this defendant’s poor health and vulnerability.” McClean, at 962, citing United States v. Gonzalez, 945 F.2d 525, 526-527 (2d Cir.1991) (vulnerability to physical abuse as basis for downward departure). This Court has previously held that an extraordinary physical impairment that results in physical vulnerability can constitute a legitimate basis for departure. United States v. Long, 977 F.2d 1264, 1277 (8th Cir.1992). The Second Circuit also considered this same question under 18 U.S.C. § 3553(b), concluding that “extreme vulnerability of criminal defendants is a factor that was not adequately considered by the Commission and a proper ground for departure under Section 3553(b).” United States v. Lara, 905 F.2d 599 (2d Cir.1990). Certainly an HIV positive defendant with a deteriorating immune system could suffer from vulnerability to physical abuse; upon remand, succinct findings from the District Court on this question would be appropriate. The Thomas Court grappled with the question of whether the Sentencing Commission “adequately considered the impact, proportionately speaking, of the sentencing guidelines on persons who are HIV positive.” Thomas, at 259. Although the Sixth Circuit ultimately did not accept appellant’s argument, the Court conceded that Thomas was correct that “many of the statistics concerning the life expectancies of people who are HIV positive, as well as the cost of caring for those people, are only recently becoming known.” Id. Under 18 U.S.C. § 3553(b), the Court shall impose a sentence within the guideline range, “unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines, policy statements and official commentary of the Sentencing Commission.” The Thomas Court held that § 5H1.4 adequately addressed the HIV problem. There are two problems with the conclusion in Thomas: first, as the Schein Court cogently pointed out, an HIV-positive person with a deteriorating condition may be considered by the Court as having an extraordinary physical impairment, after development of an adequate record; and second, even assuming arguendo that § 5H1.4 should not be interpreted that way, 18 U.S.C. § 3553(b) and § 5K2.0 provide independent bases for a downward departure under the circumstances of a deteriorating HIV patient. Section 5K2.0 cited § 3553(b) and then emphasized that courts must use their judgment in deciding such cases: “Circumstances that may warrant departure from the guidelines pursuant to this provision cannot, by their very nature, be comprehensively listed and analyzed in advance. The controlling decision as to whether and to what extent departure is warranted can only be made by the courts.” It is beyond dispute that the Commission has not taken into consideration the issue of HIV: information about the disease and its costs (and § 5H1.4 explicitly states that cost may be taken into consideration) has only recently become more reliable and widespread. HIV differs markedly from the other diseases discussed in the cases cited in this opinion, and it is clear that if § 5H1.4 is not an applicable guideline, then there is no applicable guideline. Section 3558(b) states that “in the absence of an applicable sentencing guideline,” the Court shall impose an appropriate sentence relying on the factors stated in § 3553(a)(2). The latter provision states that the court in imposing sentence shall consider a variety of factors, including deterrence of criminal conduct under § (a)(2)(B); protection of the public from further crimes of the defendant § (a)(2)(C) (this provision would obviously preclude downward departures for dangerous defendants, but Mr. Johnson does not fall into this category, as will be discussed below); and providing the defendant with needed “medical care” § (a)(2)(D). The medical care for deteriorating HIV patients should be provided, in some instances, at home, although this question must be determined at the discretion of the District Court after developing an adequate factual record. In Johnson’s case, it appears that his deterioration had not, at the time of sentencing, reached the stage where home detention during his entire sentence would be justified, and the only issue is whether an additional downward departure would be justified. Mr. Johnson did not rely solely upon § 5H1.4, since he also argued that § 5K2.0 and 18 U.S.C. § 3553(b) provided bases for a downward departure. In United States v. Arize, 792 F.Supp. 920 (E.D.New York, 1992), the Court sentenced a defendant convicted of smuggling heroin, but found a downward departure because, unknown to the defendant at arrest, she was pregnant and gave birth before sentencing. “An unknown pregnancy of the defendant and the potential permanent loss of custody is a proper grounds for departure,” the Arize Court concluded. Id., at 921. The Court departed from a guideline range of 41 to 51 months down to 23 months (custody would have permanently been lost where the sentence is more than two years), relying upon 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0 to depart where there are aggravating or mitigating circumstances of a kind or degree not adequately taken into consideration by the Sentencing Commission in its guidelines. Id. The District Court in the case at bar did not address this argument, although it could do so upon remand if it feels that the '‘vulnerability” factor discussed by the Second Circuit in Lara, supra, was not adequately considered by the Commission in the guidelines; in addition, the Commission did not consider, in formulating the guidelines, the unique problems presented by the HIV epidemic in the prisons. While it seems clear that the “extraordinary physical impairment” provision in § 5H1.4 is applicable in this case (in the context of the motion filed under § 3553(e) and § 5K1.1), another alternative grounds for a downward departure is based upon § 5K2.0 and § 3553(b). Appellant contends that Arize is an example of a case where a defendant with less severe problems than Mr. Johnson still received a substantial departure. In any event the other cases cited by appellant — Greenwood, McGlean, etc., discussed above — amply demonstrate that courts have often granted substantial departures on the basis of conditions less serious— in the sense that they were not incurable and terminal — than that from which Mr. Johnson suffers. The majority opinion states that the District Court found against Mr. Johnson on the merits of the § 5H1.4 argument, but I respectfully disagree, because Judge Longstaff apparently concluded that it was uncertain as to whether he had the authority to depart downward, thus prompting his request for “guidance” from this Court. (Transcript of July 15, 1994 sentencing hearing, at 32). An explicit refusal to depart downward as an exercise of the District Court’s discretion is not reviewable. United States v. Johnson, 908 F.2d 396 (8th Cir.1990); United States v. Harrison, 970 F.2d 444 (8th Cir.1992); United States v. Bayerle, 898 F.2d 28 (4th Cir.1990); United States v. Colon, 884 F.2d 1560 (2d Cir.1989). In United States v. Slater, 971 F.2d 626, 634 (10th Cir.1992), the Tenth Circuit stated that its review was premised upon the District Court’s belief that it lacked authority under 5H1.4 to depart from the guidelines, (citing United States v. Belden, 957 F.2d 671, 676 (9th Cir.1992)). In the context of discussing the Sixth Circuit’s ruling in Streat, the District Court here recognized that “there is at least a viable argument that AIDS with a deteriorating condition would provide grounds for departure,” but obviously regarded the question as unsettled, since he requested guidance from the Eighth Circuit and indicated that “I wouldn’t be upset if you get me reversed;” the latter statement is relevant because the indication that a reversal was possible reveals that the District Court was not making a refusal to depart downward. Under Johnson, Harrison, Bayerle and progeny, such a refusal would not be appealable and of course a reversal would be impossible. Johnson, Bayerle, supra. Regarding the District Court’s statement that “there is at least a viable argument that AIDS with a deteriorating condition would provide grounds for departure,” it is clear that after Schein there is much more than just a “viable argument” for that position. In fact, the most soundly reasoned cases even before Schein tended to support the Third Circuit’s analysis in that case. See Ghannam, 899 F.2d 327; Slater, 971 F.2d 626; Velasquez, 762 F.Supp. 39, supra. Judge Longstaff stated that he was “reluctant” to refuse the request for a downward departure and was “sympathetic” to Mr. Johnson’s situation. These statements, and his request for Eighth Circuit guidance, lead to the conclusion that Judge Longstaff felt that he did not have any discretion to depart downward unless the HIV positive person suffered from the “final” stage of the disease. At the time of sentencing the Court noted that Mr. Johnson obviously was not in the “final” stage. In United States v. Evidente, 894 F.2d 1000, 1004-1005 (8th Cir.1990), cert. denied, 495 U.S. 922, 110 S.Ct. 1956, 109 L.Ed.2d 318 (1990), the Court stated that a claim that the District Court did not believe it had clear authority to depart from the guideline range “presents a cognizable claim on appeal.” In such an appeal, “we would have jurisdiction either to confirm or reject the sentencing court’s conclusion that it lacked authority to depart. If we determined that the sentencing court had such authority, we would remand the case to that court and direct it to consider whether on the facts of the case the Court wishes to exercise its discretion in favor of a departure.” Evidente, at 1005. Evidente differed from the case at bar, for the District Court in that ease was certain that it had the authority to depart downward. Id. Circuit courts have emphasized that the District Court should state the reasons behind its decision regarding a downward departure. The Schein Court remanded for specific factual findings on the “extent” of Schein’s physical maladies. Schein, at 138. The Tenth Circuit in Slater, supra, found that a chronic depressive disorder and physical disabilities could provide the basis for a downward departure, and remanded to the District Court for factual findings as to whether the appellant’s disabilities constituted an extraordinary physical impairment. If the District Court found such an impairment upon remand, “it should then consider whether that condition warrants a shorter term of imprisonment or an alternative to confinement. [citing United States v. Carey, 895 F.2d 318, 324 (7th Cir.1990)]. The court should set forth its reasoning in support of its decision.” Slater, supra, at 635. Many of the cases regarding § 5H1.4 address the issue of whether a reduction of a sentence or home detention should be imposed, but even in cases of less serious physical afflictions than those suffered by Mr. Johnson, downward departures have frequently been granted. Ghannam, at 328; (defendant was given a departure due to cancer, on appeal defendant unsuccessfully argued that the District Court’s downward departure should have led to a sentence that involved no imprisonment; the Court simply upheld the original downward departure.) The First Circuit has ruled that “A sentene-ing court is not faced with an all-or-nothing choice between the guideline sentencing range imprisonment or no imprisonment, but may lawfully decide to impose a reduced prison sentence below the guideline sentencing range. Of course, the extent of departure must be reasonable in light of the circumstances of the particular case.” United States v. Hilton, 946 F.2d 955, 958 (1st Cir.1991); quoted in Slater, supra, at 635. In Mr. Johnson’s case, apparently there was not an issue at the sentencing hearing as to whether he would fall under the language in § 5H1.4 stating that “in the ease of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment.” Judge Longstaff commended Mr. Johnson’s lawyers for their candor: “They’re not in here telling me that I should let you spend the rest of your life at home.” (Hearing, at 31). Mr. Johnson is apparently not yet so “seriously infirm” as to require home detention. The issue upon remand should focus — since Mr. Johnson apparently concedes that he must serve at least some time in prison — upon the downward departure question. Although I believe that the Third Circuit’s Schein decision provides the correct approach to this issue, there is now a split in the circuits. In United States v. Thomas, 49 F.3d 253 (6th Cir.1995), the Sixth Circuit recently ruled that “a defendant who has not yet developed AIDS cannot obtain a departure based on ‘extraordinary physical impairment.’ ” The Thomas Court — as well as ap-pellee — cited a District Court’s decision in U.S. v. DePew, 751 F.Supp. 1195, 1199 (E.D., Virginia 1990), aff'd on other grounds, 932 F.2d 324 (4th Cir.), cert. denied, 502 U.S. 873, 112 S.Ct. 210, 116 L.Ed.2d 169 (1991). The Thomas Court commended the DePew decision as a “well-reasoned statement discussing the relationship between § 5H1.4 and a defendant with AIDS.” Actually, the Sixth Circuit in Thomas failed to make one crucial distinction: DePew ruled that not only was an HIV-positive person who had not yet developed AIDS unable to gain a departure under § 5H1.4, but even AIDS itself “is not such an [extraordinary] physical impairment; nor is cancer or various other terminal or life-threatening conditions.” DePew, at 1198. This statement baldly contradicts the numerous decisions in which cancer and other serious maladies have been classified as “extraordinary physical impairments.” See Velasquez, Ghannam, McClean, Little, Lara, Tillem, Greenwood, supra. There is simply no precedent for the conclusion in DePew that AIDS is not an extraordinary physical impairment — nor does it square with common knowledge (perhaps subject to judicial notice). The Thomas Court, despite its commendation of the Court’s opinion in DePew, did not go so far as to state that AIDS is not sufficient for a § 5H1.4 departure; it modified the DePew language to rule that a defendant “would only be entitled to a departure if his HIV had progressed into advanced AIDS.” Thomas, at 261; (See also United States v. Woody, 55 F.3d 1257 (7th Cir.1995)). “Advanced AIDS” is a non sequitur, because AIDS is the advanced, terminal phase of the virus. Both the Thomas and DePew courts