Although Booker had not been decided at the time of the sentencing, the district court deemed the mandatory regime unconstitutional based on the Apprendi/Blakely line of decisions, Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 124 S. Ct. 2531 (2004), and it did not therefore regard itself as bound by the guidelines. The court so ruled after Lata objected that the guidelines were unconstitutional under Apprendi/Blakely, insofar as they permitted enhancement based upon judge-found facts.
Nevertheless, this defendant was sentenced above the guidelines. The court addresses and rejects a number of arguments (relating to the whether the defendant was on notice of the changes in sentencing brought on by Booker), but remands under Antonakopoulos, because he did make the argument Lata is over 60 and that he is suffering from cancer, so that the prospects of recidivism are arguably no longer very great. Under the guidelines, both age and infirmity were discouraged as bases for departure, § 5H1.1, .4; under the statute alone, conceivably they might be afforded more weight in a particular case, especially if they diminished the risk of recurrence. Strangely, “...because the district judge knew most of the pertinent facts and did not regard himself as constrained by the guidelines, it is far from clear that the result would be different on remand. Admittedly, based on defense counsel's proffer, Lata's affliction is possibly much worse than was known at the time of sentencing.” So, I guess his cancer, and deteriorating health give him two bites at the apple.
See SLP coverage here.