United States v. Hoffer , 129 F.3d 1196 ( 1997 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 96-4354
________________________
D.C. Docket No. 94-6113-CR-FERGUSON
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
LEE W. HOFFER, M.D.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 21, 1997)
Before ANDERSON, DUBINA and CARNES, Circuit Judges.
CARNES, Circuit Judge:
The defendant, Lee Hoffer, pleaded guilty to violating 21
U.S.C. § 846 by conspiring to dispense controlled substances in
violation of 21 U.S.C. § 841(a)(1), and to tampering with a witness
in violation of 18 U.S.C. § 1512. After a sentencing hearing, the
district court determined that Hoffer had an adjusted offense level
of thirty-one and a criminal history category of I, which under the
United States Sentencing Guidelines resulted in a sentencing range
of 108 to 135 months. However, the district court departed
downward four levels to an offense level of twenty-seven, which
resulted in a guidelines range of 70 to 87 months. The court
imposed a sentence of seventy months imprisonment, a $10,000 fine,
and three years of supervised release.
The district court justified its downward departure on two
grounds. The first was that, as part of his plea agreement, Hoffer
“los[t] [the] privilege to practice medicine.” The second basis
for the departure was that, also as part of his plea agreement,
Hoffer “voluntar[ily] disgorged” $50,000 in proceeds from his
illegal activities. The government has appealed the district
court's decision to depart downward. Because we conclude that the
district court abused its discretion in departing downward for the
two stated reasons, we vacate and remand for resentencing.
I. FACTS AND PROCEDURAL HISTORY
Lee Hoffer is a physician who, until recently, was licensed to
practice medicine in Florida. In 1987, he opened a medical office
in Coral Springs, Florida. In 1992, after a routine pharmacy
2
inspection revealed that Hoffer had written an excessive number of
prescriptions for controlled substances, agents from the DEA and
the Broward County Sheriff's Office began investigating him. The
investigation revealed evidence that Hoffer regularly provided an
accomplice with controlled substance prescriptions. The accomplice
would fill the prescriptions, sell them on the street, and return
half the proceeds to Hoffer. Hoffer provided his accomplice with
a pager to maintain their “business” relationship, and he met with
him an average of twice a week, collecting around $1,000 at each
meeting. Hoffer's controlled substance distribution “business”
lasted at least a year.
In 1994, the United States Attorney presented Hoffer's case to
a federal grand jury in the Southern District of Florida. The
grand jury subpoenaed a number of witnesses including the wife of
Hoffer's accomplice. Before his accomplice's wife testified,
Hoffer attempted to persuade her to lie to the grand jury. The
government tape recorded that attempt.
The grand jury returned a seven-count indictment. Count I
charged Hoffer with a violation of 21 U.S.C. § 841(a)(1),
conspiracy to distribute and dispense controlled substances. Count
II charged him with a violation of 18 U.S.C. § 1512, corruptly
persuading another person with the intent to influence the
testimony of that person in an official proceeding. Counts III -
VII charged Hoffer with additional drug distribution crimes.
Hoffer entered into a plea agreement with the government.
Pursuant to the agreement, Hoffer entered a plea of guilty to
3
Counts I and II and stipulated that he would: (1) voluntarily
relinquish his license to practice as a physician in Florida and in
all other states, territories and districts of the United States;
(2) never again apply to be licensed as a physician; (3) execute
agreements of voluntary withdrawal from practice as a physician in
Florida and in all other states, territories and districts of the
United States; and (4) not contest the civil forfeiture of
$50,000.00 he had acquired as proceeds from the sale of drugs. In
exchange, the government dismissed Counts III - VII of the
indictment and stipulated to the amount of drugs Hoffer had
dispensed and distributed.
Prior to his sentencing hearing, Hoffer filed a motion,
pursuant to 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0, for downward
departure from the applicable sentencing guideline. In his motion,
Hoffer contended that he was entitled to a downward departure on
the following grounds: (1) exceptional acceptance of
responsibility; (2) high prospects of rehabilitation; (3) aberrant
behavior; (4) voluntary disgorgement of proceeds of criminal
activity; (5) the “safety valve” provision, U.S.S.G. § 5K1.1; (6)
loss of occupational licensure; and (7) the totality of these
factors.
At Hoffer's sentencing hearing, the district court determined
that under U.S.S.G. § 2D1.1 (the guideline section applicable to
drug manufacturing and trafficking offenses), Hoffer had a base
4
offense level of thirty.1 To that base offense level, the district
court added, pursuant to § 3B1.3, two levels for abusing a position
of trust. The district court also added, pursuant to § 3C1.1, two
levels for obstructing the administration of justice. Finally, the
court subtracted, pursuant to § 3E1.1, three levels for acceptance
of responsibility. The net result was an adjusted offense level of
thirty-one.
After the court determined Hoffer's adjusted offense level,
Hoffer argued, in accordance with his earlier motion, that he
should receive a downward departure from the sentencing guidelines.
The government responded that Hoffer was not entitled to a downward
departure for exceptional acceptance of responsibility, that he did
not qualify for the “safety valve” provision, that voluntary
disgorgement of proceeds from criminal activity was not an
appropriate basis for departure, and that a downward departure for
loss of occupation or license was not warranted.
After hearing testimony from Hoffer, his witnesses, and the
government's witnesses, the district court noted that case law did
not support a downward departure on the basis of exceptional
acceptance of responsibility. However, the court went on to find
that Hoffer's loss of privilege to practice medicine and voluntary
disgorgement of proceeds made his case “atypical,” warranting a
downward departure of four levels. After adjusting his offense
1
In making that determination, the district court relied on
the parties' stipulation in the plea agreement that Hoffer had
dispensed and/or distributed an amount of Schedule II controlled
substances which, under the guidelines, was equivalent to more than
700 kilograms, but less than 1000 kilograms, of marijuana.
5
level to twenty-seven, the court sentenced Hoffer to imprisonment
for a term of seventy months on both Count I and Count II, to be
served concurrently. Additionally, the court imposed a fine of
$10,000 and ordered three years of supervised release at the
conclusion of Hoffer's term of imprisonment.
Following the pronouncement of sentence, the district court
asked, “did the defendant or counsel object to any finding made or
the manner in which the sentence has been pronounced?” The court
did not ask the government whether it had any objections to the
sentence. At that point neither Hoffer nor the government stated
any objections to the sentence, although the government had
previously stated its position opposing the downward departure.
The government has appealed the sentence imposed by the district
court.
II. STANDARD OF REVIEW
In Koon v. United States, ___ U.S. ___, ___, 116 S. Ct. 2035,
2043 (1996), the Supreme Court held that an appellate court
reviewing a district court's departure from the sentencing
guidelines should ask “whether the sentencing court abused its
discretion.” The Court explained that while an abuse of discretion
review standard preserves the sentencing court's “traditional
discretion,” it does not render appellate review an empty exercise.
Id. at ___, 116 S. Ct. at 2046. A sentencing court's factual
findings continue to be afforded substantial deference, but a
mistake of law is, by definition, an abuse of discretion. Id. at
___, 116 S. Ct. at 2047.
6
Whether to depart from the sentencing guidelines is a decision
which requires a district court to make both factual and legal
findings. Under 18 U.S.C. § 3553(b), a district court may depart
from the applicable guideline range if “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 that should result in a
sentence different from that described.” Thus, to depart from the
sentencing guidelines, a district court must make two fundamental
determinations: (1) what, if any, factor makes the case “atypical”
(i.e., unlike the typical case found under the applicable
sentencing guideline), and (2) should that factor result in a
different sentence. The first of these determinations is factual
in nature, see Koon, ___ U.S. at ___, 116 S. Ct. at 2046-47, while
the second involves both legal and factual considerations, see id.at ___, 116 S. Ct. at 2047.
Cases implicating a factor not adequately taken into
consideration by the Sentencing Commission are said to fall outside
the “heartland” of typical cases embodying the conduct described in
the applicable guideline. See U.S.S.G. ch.1, pt. A, intro.
comment. 4(b). A district court determines whether a case falls
outside the heartland by making a refined assessment of the facts
of the case, comparing those facts to the facts of other cases
falling within the guideline's heartland. See Koon, ___ U.S. at
___, 116 S. Ct. at 2046-47.
To determine whether a factor which takes a case outside the
7
heartland should result in a different sentence, a district court
must first decide whether the factor is forbidden, encouraged,
discouraged, or unaddressed by the guidelines as a potential basis
for departure. See id. at ___, 116 S. Ct. at 2045. If a factor is
forbidden, see, e.g., U.S.S.G. § 5H1.10 (race, sex, national
origin, creed, religion and socio-economic status), a district
court cannot use it to depart from the applicable guideline; to do
so would be a per se abuse of discretion. See Koon, ___ U.S. at
___, ___, 116 S. Ct. at 2045, 2047. If a factor is encouraged,
see, e.g., § 5K2.1 (causing death), a court is authorized to depart
from the applicable guideline if the guideline does not already
take that factor into account. See Koon, ___ U.S. at ___, 116 S.
Ct. at 2045. If a factor is discouraged, see, e.g., § 5H1.2
(education and vocational skills), or is an encouraged factor
already taken into account by the applicable guideline, a district
court may depart only if the factor is present to an exceptional
degree or in some other way makes the case distinguishable from an
ordinary case where the factor is present.2 See Koon, ___ U.S. at
2
The guidelines provide the following examples to illustrate
the use of encouraged and discouraged factors in the departure
decision:
[D]isruption of a governmental function, § 5K2.7, [an
encouraged factor], would have to be quite serious to
warrant departure from the guidelines when the applicable
offense guideline is bribery or obstruction of justice.
When the theft offense guideline is applicable, however,
and the theft caused disruption of a governmental
function, departure from the applicable guideline range
more readily would be appropriate. Similarly, physical
injury would not warrant departure from the guidelines
when the robbery offense guideline is applicable because
the robbery guideline includes a specific adjustment
8
___, 116 S. Ct. at 2045.
Finally, a district court may depart on the basis of a factor
not addressed by the Sentencing Commission if it finds, “after
considering the 'structure and theory of both the relevant
individual guidelines and the Guidelines taken as a whole,'” that
the factor takes the case out of the applicable guideline's
heartland. Id. at ___, 116 S. Ct. at 2045 (quoting United States
v. Rivera, 994 F.2d 942, 949 (1st Cir. 1993)). However, a district
court departing on the basis of an unenumerated factor should bear
in mind the Commission's expectation that such departures will be
“highly infrequent.” Id. at ___, 116 S. Ct. at 2045 (citing
U.S.S.G. ch. 1, pt. A, intro. comment. 4(b)).
We note that a district court is required to perform the
foregoing analysis only when its decision to depart is not based on
specific guidance contained within the guidelines. If the district
court's departure is based upon a suggestion within the applicable
guideline(s), this analysis is unnecessary. See U.S.S.G. ch. 1,
pt. A., intro. comment. 4(b).
On appeal, our review of a district court's decision to depart
from the sentencing guidelines is a three-step process. First, we
deferentially review the district court's determination of whether
the facts of a case take it outside the heartland of the applicable
based on the extent of any injury. However, because the
robbery guideline does not deal with injury to more than
one victim, departure would be warranted if several
persons were injured.
U.S.S.G. § 5K2.0.
9
guideline. See Koon, ___ U.S. at ___, 116 S. Ct. at 2047(“District Courts have an institutional advantage over appellate
courts in making these sorts of determinations, especially as they
see so many more Guidelines cases than appellate courts do.”).
Second, we independently determine whether the departure factor
relied upon by the district court has been categorically
proscribed, is encouraged, encouraged but taken into consideration
within the applicable guideline, discouraged, or not addressed by
the Commission. See id. at ___, 116 S. Ct. at 2047 (stating that
an appellate court need not defer to the district court on
questions of law). If the district court has relied upon a
forbidden factor, it necessarily has abused its discretion. If the
factor relied upon is not forbidden, we reach the third step of our
review process. We review with deference the remaining factually
sensitive findings of the district court, e.g., whether a
discouraged factor is present to such an extraordinary degree that
departure is warranted. See id. at ___, ___, 116 S. Ct. at 2047,
2050.3
3
In United States v. Taylor, 88 F.3d 938 (11th Cir. 1996), our
first post-Koon review of a district court's decision to depart
from the sentencing guidelines, we recognized that Koon had changed
the standard of review and the analysis that applies when reviewing
departure decisions. See id. at 945-46. We consistently applied
the Koon standard of review and analysis in the next three
guideline departure cases that followed. See United States v.
Bernal, 90 F.3d 465, 467-68 (11th Cir. 1996); United States v.
Santos, 93 F.3d 761, 763 (11th Cir. 1996), cert. denied, ___ U.S.
___; 117 S. Ct. 1437 (1997); United States v. Bristow , 110 F.3d
754, 757-59 (11th Cir. 1997).
However, in United States v. Gunby, 112 F.3d 1493 (11th Cir.
1997), we stated that when reviewing a district court's decision to
depart upward from the sentencing guidelines we should ask the
10
following three questions:
(1) Was the aggravating circumstance cited by the
district court adequately taken into consideration by the
Sentencing Commission in formulating the guidelines?
(2) If adequate consideration was not given to the
circumstance, was consideration of the circumstance
consistent with the goals of the sentencing guidelines?
(3) If the circumstance was properly taken into account,
was the extent of the departure from the guideline range
reasonable?
112 F.3d at 1499 (citing United States v. Shuman , 902 F.2d 873,
875-76 (11th Cir. 1990)). We stated that this three-part inquiry
from pre-Koon case law was consistent with Koon. Id. at 1499 n.8.
A close examination of the second Gunby question reveals that
it may well be inconsistent with the Supreme Court's decision in
Koon and with our pre-Gunby decisions utilizing the Koon analysis
to review departure decisions. In none of our pre- Gunby, post-Koon
decisions did we inquire whether the factor relied upon by the
district court as a basis for departure was consistent with the
goals of the Guidelines. See Taylor, 88 F.3d at 945-46; Bernal, 90
F.3d at 467-68; Santos, 93 F.3d at 763; Bristow, 110 F.3d at 757-
59. Nor have we done so in any of our post- Gunby guideline
departure decisions. See United States v. Lewis, 115 F.3d 1531,
1538-39 (11th Cir. 1997); United States v. White, 118 F.3d 739,
741-42 (11th Cir. 1997); United States v. Phillips, 120 F.3d 227,
230-32 (11th Cir. 1997). Moreover, in Koon itself, the Supreme
Court expressly rejected the government's suggestion that courts
should test potential departure factors against broad sentencing
goals and reject those factors that are inconsistent with these
goals. ___ U.S. at ___, 116 S. Ct. at 2051. The Court stated: “We
conclude, then, that a federal court's examination of whether a
factor can ever be an appropriate basis for departure is limited to
determining whether the Commission has proscribed, as a categorical
matter, consideration of the factor.” Id. at ___, 116 S. Ct. at
2051.
Because the second Gunby question appears to be inconsistent
with Koon and our pre-Gunby decisions applying the Koon analysis,
we do not utilize the Gunby analysis. Instead, we adhere to the
analysis set forth in Koon, which was adopted by this Court in
Taylor, and which we have expounded upon in the text previously.
In United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993), we
held that “it is the firmly established rule of this Circuit that
each succeeding panel is bound by the holding of the first panel to
address an issue of law, unless and until that holding is overruled
11
Having set forth the standard by which we review a sentencing
court's decision to depart from the guidelines, we turn now to the
merits in this case.
III. DISCUSSION
The district court granted Hoffer a four-level downward
departure on the grounds that Hoffer's loss of privilege to
practice medicine and his voluntary disgorgement of proceeds from
his criminal activity made his case atypical and warranted a
departure. On appeal, the government contends that it was improper
for the district court to depart from the sentencing guidelines on
these grounds.
A. THE “WAIVER” ISSUE
As a preliminary matter, we address Hoffer's contention that
the government waived its objections to the sentence imposed by the
district court because it did not state its objections at the
conclusion of Hoffer's sentencing hearing. In United States v.
Jones, 899 F.2d 1097, 1103 (11th Cir. 1990), overruled on other
grounds, United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993)
(en banc), we held that a party who, at the conclusion of the
imposition of sentence, fails to articulate the grounds for
objection or remains silent, waives any objection to the sentence
unless such waiver would result in manifest injustice. However, in
United States v. Weir, 51 F.3d 1031, 1033 (11th Cir. 1995), we
en banc, or by the Supreme Court.” The first panel to interpret
and apply the Koon standards was the Taylor panel, not the Gunby
panel.
12
clarified Jones by explaining that so long as a party states its
objection to the sentence at some point during the sentencing
hearing, its failure to repeat the objection at the conclusion of
the imposition of sentence will not result in a waiver of that
objection. That clarification of the Jones rule is particularly
applicable where, as in this case, the district court after
imposing sentence did not ask the appellant if it had any
objections to the sentence.
Prior to the imposition of sentence, Hoffer had argued that
the court should grant him a downward departure from the applicable
sentencing guideline because, among other things, he had
voluntarily disgorged $50,000 in proceeds from his illegal
activities and he had voluntarily given up his medical license.
Hoffer maintained that those factors removed his case from the
heartland of cases pertinent to the applicable guideline and,
therefore, justified a downward departure from that guideline.
In response to Hoffer's loss of medicine license contention,
the government countered that the legal authority cited by Hoffer
did not support a downward departure, and that such a departure
would be inappropriate under the circumstances of this case. The
government concluded that objection by stating: “There is
absolutely nothing, nothing about the facts of this case or about
the personality of this man that would warrant a departure in any
manner or form, your Honor.” The government then went on to object
that voluntary disgorgement was not an appropriate basis for the
court to grant Hoffer a downward departure, either.
13
To preserve an issue for appeal, an objection must be
sufficiently detailed to allow the trial court an opportunity to
correct any arguable errors before an appeal is taken. See
Christopher v. Cutter Lab., 53 F.3d 1184, 1192 (11th Cir. 1995).
The government's objections were sufficient to allow the district
court to correct any errors. See Davis v. Attaway, 757 F.2d 1227,
1242 (11th Cir. 1985) (appellate court may consider whether grounds
of objection are apparent from the context). Accordingly, we hold
that the government did not waive its objections to the district
court's departure decision and the resulting sentence by failing to
reiterate these objections after the sentence was imposed.
B. THE “VOLUNTARY DISGORGEMENT” ISSUE
As part of his plea agreement, Hoffer agreed not to contest
the government's subsequent civil forfeiture action seeking $50,000
from Hoffer as the proceeds of his illegal activities. The
“voluntary disgorgement” the district court relied upon was, in
fact, a civil forfeiture. The district court, at the government's
request and with Hoffer's consent, specifically termed the
disgorgement a forfeiture. Moreover, the voluntariness of the
forfeiture must be considered in the context of the plea agreement:
Hoffer traded his right to contest the forfeiture for what the
government gave him in the bargain, which included dismissing five
counts of the indictment.
We turn now to the issue of whether civil forfeiture,
contested or uncontested, is a prohibited, encouraged, discouraged
or unmentioned factor for departing from the sentencing guidelines.
14
While this issue is a question of first impression in our circuit,
a number of other circuits have concluded that civil forfeiture
cannot be used by a district court as a basis for departure from
the sentencing guidelines. See United States v. Weinberger , 91
F.3d 642, 644-45 (4th Cir. 1996); United States v. Hendrickson, 22
F.3d 170, 175-76 (7th Cir. 1994); United States v. Crook, 9 F.3d
1422, 1425-26 (9th Cir. 1993); United States v. Shirk, 981 F.2d
1382, 1397 (3d Cir. 1992), vacated on other grounds, 510 U.S. 1068,
114 S. Ct. 873 (1994). No circuit has held otherwise.
Section 5E1.4 of the sentencing guidelines provides:
“Forfeiture is to be imposed upon a convicted defendant as provided
by statute.” We agree with the Third, Fourth, Seventh and Ninth
Circuits that § 5E1.4 indicates that the Commission viewed
forfeiture as a wholly separate sanction, which, if imposed, was
intended to be in addition to, not in lieu of, imprisonment. See
Weinberger, 91 F.3d at 644; Hendrickson, 22 F.3d at 175; Crook, 9
F.3d at 1426; Shirk, 981 F.2d at 1397. This view is supported by
the Commission's decision to include forfeiture as a relevant
factor when setting fines, see U.S.S.G. § 5E1.4(d)(5), while
leaving it out as a factor which may support a reduction in
sentence. See Crook, 9 F.3d at 1426. The Commission's decision
indicates that civil forfeiture is relevant only to the possible
monetary sanctions which may flow from a criminal conviction, but
it has no bearing on a convicted defendant's term of incarceration.
Moreover, it would make little sense for forfeiture to serve
as a basis for departure from the guidelines. Forfeited assets or
15
property are frequently the proceeds of criminal activities. See,
e.g., 21 U.S.C. § 853(a)(1) (mandating forfeiture of property which
constitutes proceeds of certain criminal activities). The more
successful a criminal is, the more likely he or she is to
accumulate significant assets or property from the criminal
activity. Allowing a departure from the sentencing guidelines
based on forfeiture would, in essence, reward criminals for their
proficiency or success in committing crimes. Surely, the
Commission never intended such a result.
Whether a forfeiture is contested or uncontested makes no
difference to our holding. In either case, forfeiture lacks the
quality of voluntariness which some courts have held may arguably
make restitution a potential basis for departure. See, e.g.,
United States v. Hairston, 96 F.3d 102, 107-08 (4th Cir. 1996),
cert. denied, ___ U.S. ___, 117 S. Ct. 956 (1997) (holding that
payment of restitution can, in exceptional circumstances, be basis
for departure from sentencing guidelines); Hendrickson, 22 F.3d at
176 (comparing forfeiture to voluntary payment of restitution and
concluding that, unlike the payment of restitution, under no
circumstances can forfeiture be the basis of a departure from the
sentencing guidelines).4
For the reasons set forth above, we hold that civil forfeiture
can never be the basis for a downward departure from the sentencing
4
This case does not raise the question of whether voluntary
payment of restitution can constitute “extraordinary acceptance of
responsibility,” supporting a departure from the sentencing
guidelines, see Hairston, 96 F.3d at 107-08, and we intimate no
view on the subject.
16
guidelines; it is a prohibited factor. Therefore, the district
court abused its discretion by relying on Hoffer's “voluntary
disgorgement” as a basis to depart from the guidelines. See Koon,
___ U.S. at ___, 116 S. Ct. at 2047 (“A district court by
definition abuses its discretion when it makes an error of law.”).
C. LOSS OF PRIVILEGE TO PRACTICE MEDICINE
The district court's second basis for departing from the
sentencing guidelines was that Hoffer lost the privilege to
practice medicine. Hoffer characterizes his loss of medical
license as a “voluntary” act on his part, but that is a
questionable characterization for two reasons. First, to the
extent the matter was subject to his control, Hoffer used it to
bargain for something in return from the government. Hoffer no
more voluntarily gave up his medical license than the government
voluntarily dismissed Counts III through VII of the indictment.
Both actions were part of the overall trade reflected in the plea
agreement. Second, if Hoffer had not relinquished his license, it
likely would have been revoked by the Florida Board of Medicine,
anyway. See Fla. Stat. Ann. § 458.331(1)(c) and (q).
Whether characterized as “voluntary” or not, we do not think
that Hoffer's loss of medical license is a valid basis for
departure. In Koon, the Ninth Circuit held that the district court
had erred by granting the defendants a downward departure from the
sentencing guidelines on the ground that the defendants'
convictions resulted in negative collateral employment
consequences. See United States v. Koon, 34 F.3d 1416, 1454 (9th
17
Cir. 1994). The Ninth Circuit expressed concern that collateral
employment consequences could be used as a proxy for socio-economic
status, a factor the Commission has stated is never a permissible
basis for departure. See id. (citing U.S.S.G. § 5H1.10). The
Supreme Court rejected that reasoning stating, “[while] a
defendant's career may relate to his or her socio-economic status,
[] the link is not so close as to justify categorical exclusion of
the effect of conviction on a career.” ___ U.S. at ___, 116 S. Ct.
at 2052. The clear implication of the Supreme Court's statement is
that collateral employment consequences could, under some set of
circumstances, serve as a basis for a departure from the sentencing
guidelines. The Court did not specify what those circumstances
were. We will not speculate about all of the possibilities,
either. It is enough for present purposes that the Koon Court did
not indicate that the loss of an employment or career position
could be a basis for departure where that loss was the direct
result of the defendant abusing the trust inherent in that very
position, an abuse of trust for which the guidelines require an
enhancement.
Hoffer received a two-level sentence enhancement under
U.S.S.G. § 3B1.3 for using his special skills as a physician to
facilitate the commission of his crimes and for abusing the
position of trust he held as a physician. Hoffer betrayed
society's trust by using his prescription writing privileges to
distribute controlled substances outside the legitimate practice of
medicine. It was because Hoffer was a physician, and was entrusted
18
as a physician with prescription writing authority, that he was
able to commit the crimes for which he was convicted.
The Commission, in § 3B1.3, stated that circumstances such as
these warrant a sentence enhancement. In the background notes to
§ 3B1.3, the Commission explained that persons who abuse their
positions of trust or use their special skills to facilitate or
conceal the commission of a crime “generally are viewed as more
culpable.” Yet, the district court's treatment of the position of
trust Hoffer enjoyed, his medical license and physician status,
netted out to a lesser sentence for him. The court gave Hoffer a
four-level downward departure for losing his position of trust,
which more than wiped out the two-level enhancement mandated by §
3B1.3 for Hoffer's abuse of that position of trust.
Society, employers, and licensing authorities usually view
abuse of a position of trust to commit or facilitate crimes as
misconduct warranting loss of that position of trust. As a result,
in virtually every case in which a § 3B1.3 enhancement is
warranted, there will also be a loss of a position of trust. The
two sanctions or results are inextricably intertwined. Allowing
downward departures for loss of professional or employment position
in cases in which that loss flows from an abuse of trust that
warrants a § 3B1.3 enhancement would nullify the mandate of §
3B1.3. The Commission cannot have intended such a result.
During the sentencing hearing, the district court suggested
that United States v. Aguilar, 994 F.2d 609 (9th Cir.), opinion
withdrawn, 11 F.3d 124 (9th Cir. 1993), supports its decision to
19
depart downward on the basis of Hoffer's loss of the privilege to
practice medicine. In Aguilar, the district court granted the
defendant, a federal judge, a downward departure from the
sentencing guidelines because the defendant would suffer
“additional punishment” through the course of potential impeachment
and disbarment proceedings. A panel majority affirmed the district
court's departure on these grounds, distinguishing the “additional
punishment” the defendant suffered from the ordinary collateral
consequences resulting from a criminal conviction. Emphasizing
that the district court had not departed on the basis of the
defendant's “loss of position,” id at 645, the majority held that
the burden and humiliation the defendant would suffer in the
public, quasi-judicial adversarial proceedings that would follow
was a permissible basis for the district court to depart from the
sentencing guidelines. See id. at 643-45.
There was, however, a “vigorous dissent” by Judge Hall from
the holding on this issue. She believed that the district court
had erred in departing because, “[t]he kind of humiliation and
suffering [the defendant] will suffer, while not common, is not
'atypical.'” Id. at 623. Additionally, Judge Hall found the
departure contrary to the intent of the Commission:
The Guidelines' policy is that “persons who abuse their
position of trust . . . generally are viewed as more
culpable.” U.S.S.G. § 3B1.3 comment. (backg'd). We must
assume that the Sentencing Commission has adequately
considered the special circumstances of defendants who
hold high office, and rejected any notion that such
persons should receive more lenient treatment. The
district court's departure on the basis of consequences
flowing from [the defendant's] breach of the public trust
flies in the face of the Guidelines' policy.
20
Id. Consequently, she concluded that the collateral consequences
of the defendant's conviction are not a permissible basis for
departure. Id.
Hoffer, while recognizing that the original opinion in Aguilar
has been withdrawn, nevertheless urges us to adopt the majority's
reasoning. Even if the original opinion in Aguilar had not been
withdrawn, we do not believe it supports Hoffer's position. In
Aguilar, the district court had based its departure on the long,
humiliating, and burdensome adversarial proceedings the defendant
would face as the result of impeachment and disbarment. It was
that “additional punishment” which led the panel majority to affirm
the district court. In affirming the district court, it emphasized
that the district court had not departed from the guidelines on the
basis of the defendant's loss of employment or the foreclosure of
career opportunities. See id. at 645.
By contrast, in this case, the district court based its
departure on the very grounds the Aguilar Court emphasized were not
involved in that case: Hoffer's loss of employment and the
foreclosure of career opportunities, i.e., his loss of the
privilege to practice medicine. In contrast to the defendant in
Aguilar, the process through which Hoffer lost his privilege to
practice medicine was not long, burdensome or humiliating. The
license forfeiture process Hoffer went through involved nothing
more than the signing of a few documents. His experience simply
does not compare to the “additional punishment” of protracted
adversarial proceedings facing the defendant in Aguilar.
21
Therefore, the reasoning of the Aguilar majority does not support
the district court's downward departure.
Moreover, we agree with Judge Hall's dissenting opinion in
Aguilar. Because the guidelines contain a section specifically
addressing those defendants who abuse the public trust to
facilitate the commission of their crimes, the Commission certainly
considered the potentially substantial collateral employment
consequences this class of defendants face. With those potential
consequences in mind, the Commission nonetheless chose to make
abuse of a position of trust the basis of a sentence enhancement.
Having done so, we believe the Commission indicated that a
defendant who receives a § 3B1.3 enhancement for abusing a position
of trust cannot then receive a downward departure from the
sentencing guidelines for losing that same position of trust.
Stated generally, we hold that a factor which is inextricably
intertwined with a basis for enhancement under the guidelines will
ordinarily be a prohibited basis for downward departure from the
guidelines. Accordingly, we hold that, under the circumstances of
this case, the district court abused its discretion by granting
Hoffer a downward departure based upon loss of his privilege to
practice medicine.
IV. CONCLUSION
For the reasons set forth above, Hoffer's sentence is VACATED
and the case is REMANDED for resentencing in accordance with this
opinion.
22