who “would be 64 or 65 when he got out of prison”; our court held, inter alia, “a defendant’s age is an improper basis for departure unless the defendant is ‘elderly and infirm’ at the time of sentencing”), cert. denied, 514 U.S. 1051, 115 S.Ct. 1431, 131 L.Ed.2d 312 (1995). Post -Booker, our court has not ruled on, in the light of § 5Hl.l’s policy statement, a district court’s focus on age in imposing a non-Guidelines (“reasonable”) sentence. Other circuits, however, have held such consideration not inappropriate. See, e.g., United States v. Davis, 458 F.3d 491, 498 (6th Cir.2006) (“[A] trial court ... has a freer hand to account for the defendant’s age in its sentencing calculus under § 3353(a) than it had before Booker”.); United States v. Smith, 445 F.3d 1, 5 (1st Cir.2006) (<HOLDING>). But see United States v. Lee, 454 F.3d 836,
holding that trial court did not err holding that comment on defendants silence was not reversible error because inter alia it did not have the effect of being probative on guilt or innocence holding inter alia that common law claims were preempted holding district court did not err inter alia by considering age because that a factor is discouraged or forbidden under the guidelines does not automatically make it irrelevant holding district court did not err by considering a contract central to the dispute without converting the motion to a motion for summary judgment