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.
129 F.3d 1196
We caution, however, that our holding should not be read to mean that the only accounts that can be disclosed are those actually reflecting the unusual movements of money. There could be instances in which unusual movements or other suspicious activity in an account provides a reasonable basis for disclosing other accounts. We will not attempt to list circumstances in which there could be a good faith basis for believing that a nexus existed between the suspicious activity in one account and other accounts. It is enough for present purposes that no such basis is apparent in the complaint.
BankAtlantic also argues that its disclosure falls within
Because we conclude that BankAtlantic‘s disclosures are not protected by
III. CONCLUSION
The district court‘s dismissal of Lopez‘s complaint is REVERSED, and the case is REMANDED for further proceedings consistent with this opinion.
The district court‘s dismissal of Coronado‘s complaint is REVERSED, and the case is REMANDED for further proceedings consistent with this opinion.
J. David Bogenschutz, Bogenschutz & Dutko, P.A., Ft. Lauderdale, FL, Myles H. Malman, Malman & Weinberg, North Miami, FL, for Defendant-Appellee.
Before ANDERSON, DUBINA and CARNES, Circuit Judges.
CARNES, Circuit Judge:
The defendant, Lee Hoffer, pleaded guilty to violating
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 returned a seven-count indictment. Count I charged Hoffer with a violation of
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
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 gov
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 91, 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 100, 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
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 98-100, 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 potential basis for departure. See id. at 95-96, 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, 518 U.S. at 95-96, 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, 518 U.S. at 96, 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, 518 U.S. at 96, 116 S. Ct. at 2045.
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.3 First, we deferentially review the district court‘s determination of whether the facts of a case take it outside the heartland of the applicable guideline. See Koon, 518 U.S. at 98-100, 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 100, 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 100, 112, 116 S. Ct. at 2047, 2050.
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 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.
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 govern
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. 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, 127 L. Ed. 2d 70 (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
Moreover, it would make little sense for forfeiture to serve as a basis for departure from the guidelines. Forfeited assets or property are frequently the proceeds of criminal activities. See, e.g.,
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, 519 U.S. 1114, 117 S. Ct. 956, 136 L. Ed. 2d 843 (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
For the reasons set forth above, we hold that civil forfeiture can never be the basis for a downward departure from the sentencing 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, 518 U.S. at 100, 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
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 had 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 Cir. 1994). The Ninth Circuit expressed concern that collateral employment consequences could be used as a proxy for socioeconomic 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.” 518 U.S. at 109-111, 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
The Commission, in
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
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 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.
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 on 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
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
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.
UNITED STATES of America, Plaintiff-Appellee, v. Carlos Humberto LOPEZ-IRAETA, Defendant-Appellant.
No. 96-3515.
United States Court of Appeals, Eleventh Circuit.
Nov. 21, 1997.
129 F.3d 1206
Notes
[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 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.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 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. 518 U.S. at 106-107, 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 109, 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 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.