U.S. v. Hoffer

• Decision Date: 21 November 1997
• Docket Number: No. 96-4354,96-4354
• Parties: 11 Fla. L. Weekly Fed. C 813 UNITED STATES of America, Plaintiff-Appellant, v. Lee W. HOFFER, M.D., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1196

129 F.3d 1196

11 Fla. L. Weekly Fed. C 813

UNITED STATES of America, Plaintiff-Appellant, v. Lee W. HOFFER, M.D., Defendant-Appellee.

No. 96-4354.

United States Court of Appeals Eleventh Circuit.

Nov. 21, 1997.

William A. Keefer, U.S. Attorney, Debra E. Herzog, Asst. U.S. Atty., Ft. Lauderdale, FL, Dawn Bowen, Harriet R. Galvin, Asst. U.S. Attys., Miami, FL, for Plaintiff-Appellant.

J. David Bogenschutz, Bogenschutz & Dutko, P.A., Ft. Lauderdale, FL, Myles H. Malman, Malman & Weinberg, North Miami, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

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 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 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 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 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, 518 U.S. 81, ----, 116 S.Ct. 2035, 2043, 135 L.Ed.2d 392 (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.

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, 518 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, 518 U.S. at ---- - ----, 116 S.Ct. at 2046-47.

To determine whether a factor which takes a case outside the 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...