United States v. Bach McComb

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 1, 2007
No. 06-11093 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 05-60021-CR-JIC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BACH MCCOMB,

Defendant-Appellant.

________________________

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

(May 1, 2007)

Before BLACK, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
Bach McComb appeals his sentence for causing a misbranded drug to be

introduced into interstate commerce, in violation of 21 U.S.C. § 331(a). McComb,

an osteopathic physician whose license to practice medicine had been suspended,

admitted he injected himself and three others with Botulinum Toxin Type A, a

highly potent toxin that causes a muscle-paralyzing condition, that he knew had not

been approved for use in humans. McComb contends the district court:

(1) erroneously applied a two-level increase to his offense level for a loss amount

exceeding $5,000; (2) based its decision to depart upward on impermissible

factors; and (3) imposed an unreasonable sentence. We affirm his sentence.

I. DISCUSSION

A. Loss Calculation

We review the district court’s loss calculation for clear error. United States

v. Cedeno, 471 F.3d 1193, 1196 (11th Cir. 2006). If a district court commits an

error in calculating the Guidelines range, we must remand unless the district court

“would have likely sentenced [the defendant] in the same way without the error.”

United States v. Scott, 441 F.3d 1322, 1329 (11th Cir. 2005).

The district court calculated a base offense level of 6, pursuant to U.S.S.G.

§ 2B1.1(a)(2), and then added the following specific offense characteristics: (1) a

2-level increase under § 2B1.1(b)(1)(B) for a loss amount exceeding $5,000; (2) a

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2-level increase under § 2B1.1(b)(12) because the offense involved the conscious

or reckless risk of death or bodily injury; and (3) a 2-level increase under

§ 2B1.1(b)(8)(C) because the offense involved a violation of a prior administrative

order that suspended McComb’s medical license and precluded him from

performing injections. Thus, McComb’s offense level totaled 12. The district

court then increased the offense level to 14, in accordance with § 2B1.1(b)(12),

which states that, if the resulting offense level is less than 14, the offense level

should be increased to 14.

McComb challenges only the application of § 2B1.1(b)(1)(B); he does not

challenge the application of § 2B1.1(b)(12). Assuming the district court’s finding

the loss amount exceeded $5,000 was clearly erroneous and that 2-level increase

was therefore improper, McComb’s base offense level of 6, in combination with

the 2 unchallenged 2-level increases, would have resulted in an offense level of 10.

Pursuant to § 2B1.1(b)(12), this would have been increased to level 14, which is

the same level calculated by the district court. Thus, we need not decide whether

the district court’s finding was clearly erroneous. Any possible error by the district

court with respect to the loss calculation is harmless because it did not affect the

district court’s calculation of the Guidelines range. Additionally, the district court

sentenced McComb to the statutory maximum, stating his conduct warranted “the

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most severe penalty available” to the district court. Consequently, the district court

is likely to have imposed the same sentence on McComb regardless of any error in

the loss amount calculation.

B. Upward Departure

The district court’s obligation to calculate the Guidelines range correctly

applies to upward departures. United States v. Jordi, 418 F.3d 1212, 1215 (11th

Cir.), cert. denied, 126 S. Ct. 812 (2005). We review departures from the

Guidelines in three analytical steps: (1) the district court’s interpretation of the

Guidelines is a legal conclusion reviewed de novo; (2) the district court’s factual

basis for a departure is reviewed for clear error; and (3) the extent of the departure

is reviewed for reasonableness. United States v. Maurice, 69 F.3d 1553, 1556

(11th Cir. 1995). Reasonableness is evaluated “in light of the § 3553(a) factors

and the reasons stated by the district court for departing.” United States v. Martin,

455 F.3d 1227, 1236 (11th Cir. 2006).

A district court may depart if “significant physical injury resulted” from the

defendant’s conduct. U.S.S.G. § 5K2.2. According to this provision, “[t]he extent

of the increase ordinarily should depend on the extent of the injury, the degree to

which it may prove permanent, and the extent to which the injury was intended or

knowingly risked.” Id. Thus, in cases where “the victim suffers a major,

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permanent disability and when such injury was intentionally inflicted, a substantial

departure may be appropriate.” Id.

Furthermore, a district court may depart under U.S.S.G. § 5K2.0 if “there is

something atypical about the defendant or the circumstances surrounding the

commission of the crime which significantly differ from the normal or heartland

conduct in the commission of the crime.” United States v. Blas, 360 F.3d 1268,

1273 (11th Cir. 2004) (quotations omitted). The district court’s determination as to

whether a case is “outside the heartland” is entitled to “substantial deference.”

United States v. Melvin, 187 F.3d 1316, 1320 (11th Cir. 1999).

“A guided departure is one based on a factor about an offense or a defendant

that the Guidelines expressly discuss.” United States v. Simmons, 368 F.3d 1335,

1338 (11th Cir. 2004). If a guideline encourages courts to consider a factor that

has not already been taken into account by the specific guideline under which the

defendant is sentenced, that factor may always be used as the basis for an upward

departure. Id. at 1339. If a guideline encourages courts to consider a factor that

has already been taken into account by the guideline under which the defendant is

sentenced, however, that factor may be the basis for an upward departure only if

“the factor is present to an exceptional degree not contemplated by the

Guidelines.” Id. (quotations omitted).

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Both §§ 5K2.0 and 5K2.2 warrant an upward departure. First, with regard to

the application of § 5K2.0, McComb argues the district court improperly based its

decision to depart upward on the fact he administered the injections of Botulinum

Toxin Type A when his medical license was suspended, a factor which had been

taken into account by the two-level increase to his offense level under

§ 2B1.1(b)(8)(C) for violating an administrative order. McComb did not raise this

argument to the district court, so we review it for plain error.1 See Maurice, 69

F.3d at 1556-57.

Under the circumstances of this case, the district court did not commit plain

error by considering McComb’s license suspension as a factor in its decision to

depart upward, even if this factor was accounted for in calculating McComb’s

Guidelines range. First, we note this factor had no effect on McComb’s Guidelines

range because, as explained previously, his offense level would have been 14,

pursuant to § 2B1.1(b)(12), regardless of the 2-level enhancement for violating an

administrative order. Second, in the unique circumstances of this case, “the factor

is present to an exceptional degree not contemplated by the Guidelines.” See

Simmons, 368 F.3d at 1339. A doctor injected a toxin into three of his patients

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Plain error arises where: “(1) there is an error; (2) that is plain or obvious; (3) affecting the
defendant’s substantial rights in that it was prejudicial and not harmless; and (4) that seriously
affects the fairness, integrity, or public reputation of the judicial proceedings.” United States v.
Hall, 314 F.3d 565, 566 (11th Cir. 2002).

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when he knew the toxin was not approved by the Federal Drug Administration for

use in humans, and regardless of the contents of the injection, he was prohibited

from administering any injections because of the suspension of his medical license.

Furthermore, his victims had no knowledge of either of these facts. We agree with

the district court’s conclusion this conduct was “egregious” and “totally

inexcusable,” and the district court did not commit plain error by considering this

factor as a justification for an upward departure.

Additionally, as the district court found, § 5K2.2 provides a basis for an

upward departure because of the significant physical injuries that resulted from

McComb’s offense. To the extent McComb argues in his reply brief this factor

had also already been accounted for in calculating his Guidelines range, he waived

this argument by not raising it in his initial appellate brief. See United States v.

Britt, 437 F.3d 1103, 1104-05 (11th Cir. 2006).

Additionally, we find the extent of the departure, from the advisory

Guidelines range of 12 to 18 months’ imprisonment to the statutory maximum of

36 months’ imprisonment, 21 U.S.C. § 333(a)(2), was reasonable. The victims’

injuries were substantial and included total paralysis, complete incapacitation, and

months of hospitalization, and the testimony at the sentencing hearing established

the victims continued to experience medical complications such as hearing loss and

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respiratory difficulties. Additionally, the district court’s decision reflected

consideration of the following 18 U.S.C. § 3553(a) factors to determine the extent

of the departure: McComb’s history, the nature and circumstances of the offense,

the seriousness of the offense, the need to protect the public, and the need to deter

similar criminal conduct.2 Accordingly, the district court did not err in applying

§§ 5K2.2 and 5K2.0 and the departure to the statutory maximum sentence was

reasonable.

C. Reasonableness

Having determined the Guidelines range was properly calculated, we review

the ultimate sentence imposed by the district court for reasonableness, considering

the final sentence, in its entirety, in light of the § 3553(a) factors. Martin, 455 F.3d

at 1237. The burden to show the sentence is unreasonable is on the party

challenging the sentence. Id.

As previously stated, the district court considered § 3553(a) factors in

sentencing McComb to the statutory maximum. McComb contention the district

court did not sufficiently consider mitigating factors is without merit. The district

court stated that, in determining McComb’s sentence, it considered all of the

2
McComb’s argument the district court improperly considered general deterrence as a
factor is without merit because general deterrence is an appropriate consideration under 18 U.S.C.
§ 3553(a)(2)(B). See Martin, 455 F.3d at 1240.

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arguments and evidence presented, specifically pointing out the letters submitted

on McComb’s behalf and the presentence investigation report, which reflected

McComb’s lack of a criminal history. Additionally, the district court

acknowledged McComb suffered injuries as a result of his conduct. Nonetheless,

after weighing the other § 3553 factors, the district court found the statutory

maximum sentence of 36 months was appropriate due to McComb’s “egregious”

conduct. In light of the district court’s consideration of several of the § 3553(a)

factors, McComb has not met his burden of showing the district court imposed an

unreasonable sentence.

II. CONCLUSION

First, any possible error committed by the district court in calculating

McComb’s Guidelines range was harmless. Additionally, the district court did not

err in applying an upward departure pursuant to U.S.S.G. §§ 5K2.2 and 5K2.0, and

the extent of the departure was reasonable. Third, the final sentence of 36 months’

imprisonment was reasonable. Accordingly, we affirm McComb’s sentence.

AFFIRMED.