United States v. Spiller, Ernest

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3043

United States of America,

Plaintiff-Appellee,

v.

Ernest Spiller,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 99 CR 30120--William L. Beatty, Judge.

Argued March 1, 2001--Decided August 17, 2001

Before Harlington Wood, Jr., Manion, and

Diane P. Wood, Circuit Judges.

Manion, Circuit Judge. Ernest Spiller

was indicted and found guilty on five

counts relating to his sale of crack

cocaine and possession of firearms.

Spiller appeals his conviction and

sentence, claiming that the district

court committed several errors. We reject

his claims and affirm.

I. Background

On July 1, 1999, at two different times,

a confidential informant purchased 3.3

grams and 1.9 grams of crack cocaine from

Ernest Spiller at his residence in East

St. Louis, Illinois. Based on the

confidential informant’s purchases, the

next day federal agents obtained a search

warrant for the residence. During the

search, the agent recovered numerous

incriminating items, including $6000 cash

(including the marked buy money), an

elaborate home security system, a scale

with crack residue, a cocaine user

handbook and other drug paraphernalia

such as cans with false bottoms, plastic

baggies, bongs, test tubes and beakers.

The agents also found approximately 12

weapons in the home. In addition, the

agents found handwritten ledgers contain

ing words and phrases, such as "I cook

you cook," "powder," "cut," "soda," and

numbers associated with references to

"grams." However, other than the crack

residue on the scale, the searchers found

no crack cocaine.

In a superseding indictment, Spiller was

charged with five offenses: Count I,

distributing 3.3 grams of crack cocaine

in violation of 21 U.S.C. sec. 841(a)(1);

Count II, distributing 1.9 grams of crack

cocaine in violation of 21 U.S.C. sec.

841(a)(1); Count III, maintaining a place

for the purposes of manufacturing,

distributing and using crack cocaine

between November, 1998 and July 2, 1999,

in violation of 21 U.S.C. sec. 856; Count

IV, possession of a firearm in

furtherance of the drug trafficking crime

charged in Count III, in violation of 18

U.S.C. sec. 924(c); and Count V,

possession of a firearm by a convicted

felon/1 in violation of 18 U.S.C. sec.

922(g)(1).

Spiller pleaded not guilty as to all

five counts and a jury trial commenced on

November 29, 1999. The parties stipulated

that the ledgers were seized at Spiller’s

residence and that certain entries fell

within the time period of the superseding

indictment./2 The seizing officer, Kurt

Eversman, testified that the ledgers

contained "a lot of names with money

owed, money paid. It has a lot of things

that refer to grams, ounces, soda, cook,

just basically different references for

the drug trade and information that shows

that drug sales were going on." Spiller

did not object to this testimony.

However, when the government initially

sought to introduce the ledgers into

evidence, Spiller’s attorney objected,

stating, "Judge, I’m going to object to

the relevancy and that they are

immaterial and uncorroborated at this

time of the admission of these ledgers."

The district court overruled the

objection without explanation and

admitted the ledgers into evidence.

The government then used two expert

witnesses to explain the ledgers. The

first witness, William Storer, a

handwriting expert, testified that the

ledgers contained similar handwriting to

Spiller’s writing samples. Spiller’s

attorney did not object to Storer’s

testimony.

The second witness, Harold Daniel

Clouse, an FBI special agent and Drug

Records Analyst with over nine years

experience in the field, testified that

the ledgers were the records of an

illicit drug distribution business, and

that during the period from November,

1998 to July 2, 1999, Spiller had

produced a minimum of 28,583 grams of

crack cocaine. Clouse based his

conclusion on the terminology, weights

and price per unit he noted in the

records and the overall appearance of the

documents. Clouse also concluded that the

ledgers reflected sales to numerous

customers during the relevant time

period. On cross-examination, Clouse

admitted that the ledgers were

unintelligible even to people who

normally prosecute and investigate drug

cases. However, he testified that, where

he was unsure as to the meaning of a

notation, he did not include those

figures in his calculation. He also

stated that the records were fairly well

kept and detailed. Clouse did not

interview Spiller or any other witness

regarding the ledgers. Spiller’s attorney

objected only once to Clouse’s

testimony./3 When the government sought

to introduce into evidence a table

reflecting the amount of cooked cocaine

produced each month, she objected,

claiming a lack of materiality, relevance

and corroboration. In response, the

government argued that the evidence was

relevant to whether Spiller was

maintaining a crack house, and therefore

the ledgers were relevant and material.

The district court overruled the

objection and admitted the exhibit.

In addition to the expert witness

testimony, the government produced a

number of witnesses who testified that

they had purchased various amounts of

crack cocaine from Spiller on a regular

basis. Glorina Jackson, known as "Glow,"

testified that during the relevant time

period she purchased crack from Spiller

and his wife, sometimes more than once a

day. She testified that she bought

approximately $300 of crack each month

from Spiller. She also testified that she

never saw Spiller with large amounts of

cocaine and never saw him cook any crack

cocaine. The next witness was Kim Davis,

the informant who made the drug purchases

on July 1, 1999. She testified that she

purchased crack from Spiller and his wife

two to three times per week, spending

approximately $300 per week. Regarding

the ledgers, Davis testified that some of

the entries may have referenced amounts

Spiller believed she owed him. Another

witness, Samantha Sayles, known as

"Missy," testified that she went to

Spiller’s house approximately five times

per week and spent approximately $150 per

week buying crack from him. She also

testified that she never saw Spiller cook

crack. Finally, Carol Garrett testified

that she spent approximately $100 per

week buying crack from Spiller and went

to his home two to three times per week.

The handwritten ledgers contain numerous

references to "Kim," "Glo," and "Missy."

On December 2, 1999, the jury returned

a verdict, finding Spiller guilty on all

five counts. The government filed a pre-

sentence investigation report suggesting

that Spiller’s offense level should be

38, based on relevant conduct for Counts

I through III of manufacturing 28,000

grams of crack cocaine, as indicated in

the ledgers. Spiller objected to the use

of the handwritten ledgers to establish

relevant conduct, arguing that they were

uncorroborated. Spiller argued that the

charged conduct only involved 5.2 grams

of crack cocaine, which should have put

him at Offense Level 20 for purposes of

sentencing. In response, the government

noted that Offense Level 38 only required

proof of 1,500 grams. Concluding that

there was sufficient proof of 1,500 grams

of crack cocaine, the district court

overruled Spiller’s objections regarding

relevant conduct./4

Spiller also filed a motion for downward

departure based on his age, arguing that

the statutory maximums, 30 years, would

exceed his life expectancy. At the

sentencing hearing, Spiller presented an

offer of proof, arguing that according to

the National Vital Statistics Report for

Tables of Life Expectancy and taking into

consideration his age and race, his life

expectancy is 25.2 years. His expert, a

registered nurse, testified that because

he is a smoker, is probably hypoglycemic,

has a family history of diabetes and,

based on blood tests, has a potential for

coronary artery disease, an additional

8.24 years should be subtracted, for a

total life expectancy of 16.96 years. The

district court rejected Spiller’s request

for a downward departure.

The district court then sentenced

Spiller to the guideline minimums of 292

concurrent months on each of Counts I and

II, 240 concurrent months on Count III,

60 consecutive months on Count IV, and

120 concurrent months on Count V, for a

total of 352 months (or 29.33 years).

Spiller appeals.

II. Discussion

Spiller presents four arguments on

appeal. First, he argues that the

district court erred in admitting the

handwritten ledgers into evidence at

trial because they are inadmissible

hearsay. Second, he argues that the

district court erred at sentencing by

attributing 28,000 grams of crack cocaine

to him as relevant conduct based on the

ledger testimony. Third, he raises an

Apprendi challenge because the district

court sentenced him based on relevant

conduct, which was not submitted to the

jury and proven beyond a reasonable

doubt. Last, he argues that the district

court erred in sentencing him to a

sentence in excess of his life

expectancy. Spiller requests that his

conviction be reversed, or that his

sentence be vacated and remanded for re-

sentencing. For the reasons stated below,

we affirm.

A. Admission of Handwritten Ledgers

Spiller’s first argument on appeal is

that the district court erred in

admitting the handwritten ledgers into

evidence because they are inadmissible

hearsay. Trial courts have broad

discretion to admit or exclude evidence,

and we review rulings dealing with the

admission of evidence only for an abuse

of discretion. See United States v.

Swanquist, 161 F.3d 1064, 1073 (7th Cir.

1998).

The government argues that the drug

records were initially admissible as

"tools of the trade" for a crack house to

show motive, intent, preparation, plan

and knowledge. See Fed. R. Evid. 404(b).

Such an admission allows the records to

be used to show their existence, which

would clearly be relevant to whether a

defendant was operating a crack house,

here Count III. For example, in United

States v. Nava-Salazar, 30 F.3d 788 (7th

Cir. 1994), this court held that drug

records were properly admitted as tools

of the trade, and were not hearsay, since

they were not offered to prove the

information they contained. "Their

significance was the fact that they

existed, not the details of what they

showed." Id. at 798. Similarly, the

admission of the drug ledgers in this

case verified their existence and thus

established Spiller’s intent to operate a

crack house. Accordingly, the district

court did not abuse its discretion in

admitting the records for this purpose.

However, Spiller’s argument on appeal

relates to the government’s use of the

ledgers to show that he produced 28,000

grams of crack cocaine. In other words,

he objects to their use to prove the

truth of the information they contained,

a hearsay objection. The government

maintains that since the initial

admission of the records was appropriate

under Rule 404(b), and since Spiller did

not make a continuing hearsay objection,

Spiller forfeited his right to object to

the use of the ledgers. Generally,

[t]o preserve an issue for appellate

review, a party must make a proper

objection at trial that alerts the court

and opposing party to the specific

grounds for the objection. Thus, not just

any objection will save an issue for

review--neither a general objection to

the evidence nor a specific objection on

a ground other than the one advanced on

appeal is enough. Rather, this Court will

consider an argument only if the party

asserting it made a proper, timely and

specific objection on the same ground at

trial, that is, unless plain error is

manifest.

United States v. Linwood, 142 F.3d 418,

422 (7th Cir. 1998) (internal citations

omitted).

Thus, we must decide whether Spiller’s

objections that the ledgers were

"irrelevant, immaterial and

uncorroborated" is sufficient to preserve

the issue that they constitute

inadmissible hearsay. Spiller’s objection

regarding relevance and materiality is

not sufficient to preserve a hearsay

objection for appellate review. In fact,

much hearsay, even inadmissible hearsay,

is relevant and material. However,

Spiller’s objection based on lack of

corroboration is probably sufficient.

Lack of reliability and corroboration go

to the heart of the hearsay objection.

However, we need not decide the issue

because, as discussed below, the records

were properly admitted as a statement of

a party-opponent.

The government presented evidence that

Spiller wrote the ledgers and that they

were kept in his own bedroom, where he

also kept crack equipment and

proceeds./5 A party’s own statements

offered against him are considered

admissions by a party-opponent, and, as

such, are not hearsay and are admissible

under Fed. R. Evid. 801(d) (2)(A). See

United States v. Harvey, 117 F.3d 1044,

1049-50 (7th Cir. 1997) (finding that if

diaries referring to marijuana production

were written by the defendant, they would

not be inadmissible hearsay "because they

would be statements made by a party-

opponent.")./6

Moreover, even if the records were

improperly admitted, any error was

harmless beyond a reasonable doubt. See

Chapman v. California, 386 U.S. 18

(1967). First, at a minimum, the ledgers

were properly admissible as "tools of the

trade" for a crack house and could be

considered by the jury in that capacity.

Additionally, the evidence against

Spiller, even apart from the ledgers,

persuasively established his guilt.

Without the ledgers, the jury still heard

ample evidence regarding the drug buys on

July 1, 1999, regarding the drug

paraphernalia and marked drug money found

on his premises, and testimony from the

numerous witnesses who purchased crack

cocaine from him on a weekly basis during

the time period in question. This

evidence alone established Spiller’s

guilt on Counts I through III beyond a

reasonable doubt and any error in

admitting the drug ledgers was harmless.

B. Relevant Conduct

Next, Spiller argues that, while Counts

I and II charged him with distributing a

total of 5.2 grams of crack, the district

court erred at sentencing by attributing

28,000 grams of crack cocaine to him

based on the ledger testimony. He argues

that the absence of drugs at his home

during the search, the witnesses’

testimony regarding the small amounts

they purchased, and the inherent

unreliability of the ledgers make it

impossible for him to have actually been

responsible for the amount of drugs

attributed to him by the government.

Initially, we note that at sentencing,

"the Government must prove the facts

underlying the base offense or an

enhancement by a preponderance of the

evidence. Furthermore, because the

Federal Rules of Evidence do not apply,

the district court may hear evidence that

would not otherwise be admissible, such

as hearsay." United States v. Johnson,

227 F.3d 807, 813 (7th Cir. 2000)

(internal citations omitted). "The

district court’s calculation of the

quantity of drugs attributable to

[Spiller] during both the offense of his

conviction and any other relevant conduct

is reviewed only for clear error." Id. In

calculating the drug quantities, a

district court may "consider a wide range

of information" so long as it has

"’sufficient indicia of reliability to

support its probable accuracy.’" United

States v. Robinson, 164 F.3d 1068, 1070

(7th Cir. 1999) (quoting United States v.

Taylor, 72 F.3d 533, 543 (7th Cir.

1995)).

The district court adopted the factual

findings and guideline application set

forth in the government’s pre-sentence

report. Accordingly, Spiller’s relevant

conduct was based on 28,000 grams of

crack cocaine. This calculation

established his base offense level under

the Sentencing Guidelines at 38, which

only requires proof of 1.5 kilograms. See

U.S.S.G. sec. 2D1.1(c)(1). The district

court heard evidence regarding the amount

of crack cocaine actually purchased from

Spiller on July 1, 1999, regarding the

amounts purchased by the various

witnesses over time and testimony

regarding ledgers found in the

defendant’s home, determined to be in his

handwriting and thoroughly explained by

an expert. All of this evidence had a

sufficient indicia of reliability to

support the district court’s

determination, by a preponderance of the

evidence, that the crack quantities far

exceeded 1.5 kilograms. Moreover, even

without the ledgers, the evidence

described sufficiently demonstrated that

the quantity of drugs had exceeded 1.5

kilograms. Therefore, it was not clear

error to sentence Spiller at an offense

level of 38.

While it is less than clear, Spiller

also seems to argue that relevant conduct

must be proven to the jury beyond a

reasonable doubt before it can be used to

increase a defendant’s sentence. We have

rejected this argument "as long as that

determination does not result in the

imposition of a sentence that exceeds the

statutory maximum penalty for that

crime." United States v. Jones, 248 F.3d

671, 677 (7th Cir. 2001) (citation

omitted). As discussed below, Spiller was

not sentenced in excess of the statutory

maximum and therefore a jury was not

required to find the quantity of drugs

beyond a reasonable doubt. That being

said, the government’s prosecution in

this case is subject to criticism. The

government sought to attribute 28,000

grams to Spiller as relevant conduct--

over 5000 times the amount for which

Spiller was found guilty. Even the

minimum 1.5 kilograms necessary to apply

base offense level 38 is 1494.8 grams

more than the 5.2 grams for which Spiller

was actually indicted. "[W]e again remind

prosecutors ’not to indict defendants on

relatively minor offenses and then seek

enhancement sentences later by asserting

that the defendant has committed other

more serious crimes for which, for

whatever reason, the defendant was not

prosecuted and has not been convicted.’"

United States v. Bacallao, 149 F.3d 717,

721 (7th Cir. 1998) (quoting United

States v. Fischer, 905 F.2d 140, 142 (7th

Cir. 1990)).

C. Apprendi Claims

Next, Spiller argues that his Fifth and

Sixth Amendment rights were violated when

the district court increased his sentence

based on conduct not submitted to the

jury and proven beyond a reasonable

doubt./7 If a defendant argues that a

sentence was imposed in violation of the

law, our review is de novo. See United

States v. Guy, 174 F.3d 859, 861 (7th

Cir. 1999).

The now oft-cited Apprendi rule states

that "[o]ther than the fact of a prior

conviction, any fact that increases the

penalty for a crime beyond the statutory

maximum must be submitted to a jury, and

proved beyond a reasonable doubt."

Apprendi v. New Jersey, 530 U.S. 466, 490

(2000). In this case, the superseding

indictment contained the quantities of

crack cocaine in Counts I and II, 3.3

grams and 1.9 grams, respectively, but

the jury instructions contained no

references to drug quantity. For Counts I

and II, Spiller was sentenced under 21

U.S.C. sec. 841(b)(1)(c), which provides

punishment for conviction of an

undetermined amount of crack cocaine. The

maximum sentence under this statute is 30

years’ imprisonment when the defendant

has been previously convicted of a drug

felony (as Spiller has been). See 21

U.S.C. sec. 841(b)(1)(C). For Count III,

maintaining a drug house, the maximum

penalty is 20 years. See 21 U.S.C. sec.

856. Since the sentences Spiller received

(24.33 years on Counts I and II and 20

years on Count III) are less than the

statutory maximums, Apprendi is not

implicated.

Spiller also insinuates that the fact of

his prior convictions improperly elevated

the statutory maximum from 20 to 30

years. The indictment did not refer to

his prior convictions, nor were they

submitted to the jury./8 Although

Spiller did raise an Apprendi argument

regarding drug quantity, he did not do so

for the prior convictions. In fact, he

did not object at all to the use of the

prior convictions at sentencing and

acknowledged at the hearing that the

maximum for Counts I and II was 30 years.

Accordingly, our review is for plain

error. United States v. Robinson, 250

F.3d 527, 529 (7th Cir. 2001). No such

error occurred. The plain language of

Apprendi refutes Spiller’s argument:

"[o]ther than the fact of a prior

conviction, any fact that increases the

penalty for a crime beyond the statutory

maximum must be submitted to a jury and

proved beyond a reasonable doubt."

Apprendi, 530 U.S. at 490 (emphasis

added). Therefore, there was no need to

submit the issue of a prior conviction to

the jury, and the government’s

introduction of certified copies of

Spiller’s prior convictions was

sufficient to support the district

court’s conclusion that the statutory

maximum was 30 years.

D. Length of Sentence in Excess of Life

Expectancy

Lastly, Spiller argues that his Eighth

Amendment rights/9 were violated when

the district court denied his motion for

downward departure and sentenced him to

352 months (29.33 years), a sentence

exceeding his life expectancy of 16.96

years. We lack jurisdiction to review a

district court’s refusal to make a

downward departure, unless the sentence

is imposed in violation of the law or as

a result of an incorrect application of

the Sentencing Guidelines. See Johnson,

227 F.3d at 816.

Spiller states that he is not making an

age-based downward departure request

(which would preclude our review of the

district court’s decision), but rather

argues that the sentence was imposed in

violation of the law, specifically 21

U.S.C. sec. 841(b)(1)(c), which states

that "a person shall be sentenced to a

term of not . . . more than life."

(emphasis added). Spiller argues that any

sentence in excess of his life expectancy

is more than life and therefore

prohibited under the statute. In support

of his position, Spiller cites to Martin,

63 F.3d at 1434, where this court held

that "where a legislatively enacted

sentencing scheme has expressly deprived

a court of the possibility of imposing a

life sentence, a sentence for a term of

years exceeding the defendant’s

approximate life expectancy would

ordinarily constitute an abuse of

discretion."

The district court rejected Spiller’s

argument, concluding that Martin applied

in only limited circumstances. In Martin,

the court sentenced a 45-year-old

defendant to a 50-year prison term

pursuant to 18 U.S.C. sec. 34, following

his arson conviction under 18 U.S.C. sec.

844(i). At the time of Martin’s trial,

Section 34 provided that imposing a

sentence of life imprisonment (or the

death penalty) must be left to the

discretion of the jury./10 Where the

jury declined to direct life

imprisonment, we found that the district

court abused its discretion in

circumventing that decision by imposing a

sentence so long that it effectively

amounted to a life sentence under another

name. Id. at 1434. Even in the text of

that case, however, we limited its

applicability, noting that the later

amendment to Section 34 "renders this

case something of an historical oddity

whose precise holding may have a limited

reach." Martin, 63 F.3d at 1432 n.6. See

also United States v. Prevatte, 66 F.3d

840, 844 (7th Cir. 1995) (when sentencing

a defendant under Section 34,

"[d]etermining the life expectancy of the

individual defendant is a matter that

ought to be addressed by the district

court.").

We have since noted the limited scope of

Martin and Prevatte. For example, in

United States v. DiDomenico, 78 F.3d 294,

298 (7th Cir.), cert. denied, 519 U.S.

1006 (1996), the defendants were not

sentenced pursuant to Section 34 and thus

we dismissed their life expectancy

arguments as "frivolous." Even under the

Martin analysis, the sentencing scheme of

21 U.S.C. sec. 841(b)(1)(c) does not

expressly deprive a court of the

possibility of imposing a life sentence.

Consequently, here, the district judge

was free to impose any sentence under the

statutory maximum and within the

guideline range that he deemed to be

appropriate in the proper exercise of his

discretion. Accordingly, we reject

Spiller’s argument that because a

particular sentence would be the

equivalent of a life sentence, he is

entitled to a downward departure. To hold

otherwise would be to require that the

sentencing judge consider in every case a

defendant’s life expectancy and we

decline to impose such an onerous burden

on sentencing judges./11

III. Conclusion

Based on the foregoing reasons, we AFFIRM

the decision of the district court.

FOOTNOTES

/1 The felony charged in Count V of the superseding

indictment was for unlawful use of weapons in St.

Clair County, Illinois in 1996. The parties

stipulated to this felony conviction. A certified

copy of the prior conviction was attached to the

government’s Version of the Offense for consider-

ation at sentencing.

/2 Before trial began, the following exchange took

place.

Antoniou (Spiller’s attorney): "I’m going to have

a running objection to the ledgers in general,

because I think that it’s not obvious that they

are all drug ledgers as they are purporting to

be."

Clark (prosecutor): "The way I understand, Vanes-

sa, is that we’re stipulating not that they are

admissible, but that they simply fall within the

time period of the superceding indictment."

Court: "I still have to rule whether they’re

admissible or not as far as relevance."

Antoniou: "Exactly. I’m not going to stipulate

that they’re admissible as drug ledgers or admis-

sible otherwise."

/3 This was a separate objection from the objection

to the initial admission of the ledgers into

evidence.

/4 The district court, however, declined to find

that the relevant conduct of 28,000 grams had

been proven beyond a reasonable doubt, believing

it unnecessary to its determination.

/5 Spiller does not object to the records based on

foundation or authentication. The ledgers were

found within Spiller’s home and a handwriting

expert determined that they were in Spiller’s own

hand. No evidence was presented to suggest that

Spiller was not the author of the documents.

These circumstances are sufficient to support a

finding that the ledgers were written by him.

/6 The government also argues that the ledgers fall

under the business records exception to the

hearsay rule. See Fed. R. Evid. 803(6). However,

there was no testimony by a custodian or any

other qualified witness with personal knowledge

establishing that the records had been kept in

the ordinary course of business or that they were

otherwise trustworthy. The expert witnesses were

the only witnesses who testified regarding the

ledgers and they did so convincingly. Neverthe-

less, they did not have personal knowledge of the

specific transactions described in the ledgers.

Without such corroborating testimony, the ledgers

do not fall under the business records exception.

/7 At sentencing, the district court stated, "I’m

not going to say established beyond a reasonable

doubt, but it was certainly ample evidence from

which the Court can find that there was 28,000

grams. Which if you read Clouse’s testimony or

you heard Clouse’s testimony, it was convincing,

and not necessary that the jury or the Court find

beyond a reasonable doubt that it was 28,000

grams, as I understand the law."

/8 These convictions were distinct from the one

listed in the indictment for Count V. The govern-

ment introduced certified copies of these prior

convictions in its Version of the Offense for use

at sentencing on Counts I and II.

/9 While the heading in Spiller’s brief mentions the

Eighth Amendment, nowhere else in his argument

does he mention the Eighth Amendment. Arguments

not developed on appeal are waived, and therefore

we do not address Spiller’s life expectancy

argument under the Eighth Amendment. See United

States v. Dunkel, 927 F.2d 955, 956 (7th Cir.

1991) ("A skeletal ’argument,’ really nothing

more than an assertion, does not preserve a claim

[for appellate review].") In any event, the very

case Spiller relies upon rejected the argument

that a lengthy sentence violated the Eighth

Amendment. See United States v. Martin, 63 F.3d

1422, 1432 (7th Cir. 1995).

/10 This provision was later amended to remove the

jury from sentencing altogether.

/11 The provision for age-based downward departures

is sufficient to allow the district court to

impose more equitable sentences where appropri-

ate. "Age may be a reason to impose a sentence

below the applicable guideline range when the

defendant is elderly and infirm and where a form

of punishment such as home confinement might be

equally efficient as and less costly than incar-

ceration." U.S.S.G. sec. 5H1.1. As noted, if this

had been a denial of a purely age-based departure

request, we would have no authority to review it.

In any event, Spiller did not produce any evi-

dence that he is elderly or suffering from any

incapacity.