U.S. v. Haj-Hamed

• Decision Date: 03 December 2008
• Docket Number: No. 07-6201.,07-6201.
• Citation: 549 F.3d 1020
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ghassan HAJ-HAMED, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

549 F.3d 1020

UNITED STATES of America, Plaintiff-Appellee, v. Ghassan HAJ-HAMED, Defendant-Appellant.

No. 07-6201.

United States Court of Appeals, Sixth Circuit.

Argued: October 28, 2008.

Decided and Filed: December 3, 2008.

ARGUED: Henry Louis Sirkin, Sirkin, Pinales & Schwartz, Cincinnati, Ohio, for Appellant. John Patrick Grant, Assistant United States Attorney, Lexington, Kentucky, for Appellee. ON BRIEF: Henry Louis Sirkin, Scott Ryan Nazzarine, Sirkin, Pinales & Schwartz, Cincinnati, Ohio, for Appellant. John Patrick Grant, Charles P. Wisdom, Jr., Assistant United States Attorneys, Lexington, Kentucky, for Appellee.

Before SILER and McKEAGUE, Circuit Judges; LUDINGTON, District Judge.^*

OPINION

McKEAGUE, Circuit Judge.

Ghassan Haj-Hamed, M.D., pleaded guilty to one count of distributing prescription drugs without a legitimate medical purpose. The district court sentenced him to twenty-seven months of imprisonment, the bottom of the range calculated under the United States Sentencing Guidelines ("Guidelines" or "U.S.S.G."). Dr. Haj-Hamed appeals his sentence. Finding his sentence procedurally and substantively reasonable, we affirm.

I

The facts of the case are undisputed: Dr. Haj-Hamed owned and operated several medical clinics in the Cincinnati-Northern Kentucky area from 1999 through 2002. After receiving complaints that Dr. Haj-Hamed prescribed controlled substances without valid medical reasons, law-enforcement agents conducted surveillance of one of his clinics and made undercover visits to the clinic posing as patients.

The investigation revealed that Dr. Haj-Hamed routinely spoke to patients for a minute or so without conducting any meaningful physical examination. He then prescribed frequently abused controlled substances to the patients in exchange for cash payments. A confidential source told agents that Dr. Haj-Hamed referred to himself as "Dr. Feel Good." Others considered him an easy source of oxycontin and other controlled substances. He told patients to fill their prescriptions in Ohio or Indiana so as to avoid Kentucky's electronic prescription-tracking system.

A federal grand jury indicted Dr. Haj-Hamed on twenty-two counts of distributing prescription drugs without a legitimate medical purpose. On the morning that his federal trial was scheduled to begin, Dr. Haj-Hamed pleaded guilty to Count Six, to wit,

From on or about December, 2001 through on or about March, 2002, in Pendleton County, in the Eastern District of Kentucky, and elsewhere,

GHASSAN HAJ-HAMED

did knowingly and intentionally distribute and dispense a mixture or substance containing oxcycodone, a Schedule II controlled substance, a mixture or substance containing hydrocodone, a Schedule III controlled substance, and a mixture or substance containing diazepam, a Schedule IV controlled substance, to Mike Granger, without a legitimate medical purpose and outside the usual course of medical practice, all in violation of 21 U.S.C. § 841(a)(1).

In exchange for his guilty plea, the Government dismissed the remaining counts against him. The parties also agreed to limit the relevant conduct for sentencing purposes to that occurring from October 2000 to September 2002.

The probation office prepared an initial Presentence Report ("PSR") using the 2001 edition of the Guidelines manual. Dr. Haj-Hamed had a number of objections to that PSR. The probation office revised its PSR in light of those objections. With a base-offense level of twenty less a two-point reduction for acceptance of responsibility, the probation office calculated Dr. Haj-Hamed's adjusted offense level at eighteen. With a criminal history category of I, the office determined a Guidelines range for imprisonment of twenty-seven to thirty-three months.

During the sentencing hearing, the district court asked if Dr. Haj-Hamed had any objections to the final PSR that were not already reflected in that report. He indicated that he did not, and he further acknowledged the correctness of the probation office's calculation of the Guidelines range.

Dr. Haj-Hamed sought a downward departure under the Guidelines or, in the alternative, a downward variance from the applicable range. In support of a more lenient sentence, he relied principally on his family circumstances. At the time of sentencing, Dr. Haj-Hamed was married with eight children. His wife was principally a homemaker, had attained only the equivalent of a seventh-grade education, and did not have strong English-language skills. Three of the children were step-children from his wife's previous marriage to Dr. Haj-Hamed's brother, who had died years before in an automobile accident. The three step-children ranged in age from twenty-one to twenty-five. Since their marriage, the couple had five additional children who ranged in age from five to fifteen. Three of these children had developmental problems. All three were hearing-impaired to varying degrees and used sign-language interpreters at school. One of the three also suffered from significant learning delays as well as congenital cardiac problems, and another had operations on her hands and feet to remove extra fingers and toes. Based on this, Dr. Haj-Hamed argued that his family needed him for emotional, financial, and medical support.

In addition, Dr. Haj-Hamed claimed that his crime was not a typical drug-distribution crime. He argued, rather, that he simply spread himself too thin managing and practicing medicine at his several clinics. As argued by his attorney at sentencing, "Combined with his desire to aid others, his naiveté in certain matters, his different cultural background, and his difficulty in refusing persons who ask for his help, Dr. Haj-Hamed's carelessness caused him to fail to exercise the required proper care and due diligence on his patients." Sent. mem. at 9. Finally, he noted that he had already incurred significant financial penalties as a result of his criminal actions in the form of back taxes, penalties and interest.

The Government opposed a sentence below the Guidelines range. It argued that Dr. Haj-Hamed was a respected member of society who had abused society's trust for a simple purpose: to make money. Thus, a Guidelines sentence was justified, in the Government's opinion. The district court agreed and sentenced him to twenty-seven months of imprisonment.

Dr. Haj-Hamed appealed his sentence.

II

A. Appellate Review of Sentence

"Sentences imposed post-Booker are reviewed for procedural and substantive reasonableness." United States v. Conatser, 514 F.3d 508, 519 (6th Cir.2008) (citing United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Williams, 432 F.3d 621, 623 (6th Cir.2005)). We "must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range." Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). If procedurally sound, we then review the sentence for substantive reasonableness under an abuse-of-discretion standard. Id. at 598; see also Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007).

B. Procedural Reasonableness

Dr. Haj-Hamed argues that the district court failed to consider the relevant § 3553(a) factors and failed to explain adequately the sentence imposed. These are attacks on the procedural reasonableness of the district court's sentence.

We must first determine what standard to apply to Dr. Haj-Hamed's procedural-reasonableness challenge. Although he raises on appeal the same substantive arguments for a lower sentence that he presented to the district court, he did not argue below that the district court had made any procedural errors during sentencing. Near the end of the sentencing hearing, the district court asked the parties whether there were any further matters to resolve that had not yet been addressed, in accordance with this court's holding in United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir.2004). The Defendant failed to raise any objection related to the district court's consideration of the § 3553(a) factors or its explanation of the sentence. Accordingly, we would normally review Dr. Haj-Hamed's procedural challenge for plain error. United States v. Vonner, 516 F.3d 382, 386 (6th Cir.) (en banc), cert. denied, ___ U.S. ___, 129 S.Ct. 68, ___ L.Ed.2d ___ (2008). However, at oral argument, the Government disclaimed any reliance on a plain-error analysis.

Regardless of whether we review the procedural reasonableness of the sentence under an abuse-of-discretion standard or a plain-error standard, the result is the same—the district court did not err in the procedures it followed during sentencing. As Dr. Haj-Hamed concedes, the district court properly calculated the applicable Guidelines range. It is also undisputed that the district court explained to him the advisory nature of the Guidelines during the plea hearing. The district court discussed during sentencing how the parsimony provision of § 3553 applied to Dr. Haj-Hamed's sentence and went through the relevant § 3553(a) factors.¹ Dr. Haj-Hamed maintains that the district court failed to consider his history and characteristics pursuant to § 3553(a)(1). Yet, the final PSR contained all of the unfortunate circumstances facing the family as well as Dr. Haj-Hamed's background and criminal activity, and the district court explained that it had carefully studied that report. The district court acknowledged that Dr. Haj-Hamed's "family circumstances" was the primary argument for a downward variance. The district court discussed his family circumstances at various points during...