[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 8, 2008
No. 08-10406
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 07-60245-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID M. BARON,
Defendant-Appellant.
________________________
No. 08-10460
Non-Argument Calendar
________________________
D. C. Docket No. 07-60027-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
M.D. DAVID BARON,
Defendant-Appellant.
_______________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(July 8, 2008)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
In this consolidated appeal, David Baron, M.D., appeals his 25-month
sentence for conspiracy to distribute pharmaceutical controlled substances, in
violation of 21 U.S.C. § 846. Baron argues that: (1) the district court erred in
denying his request for a minor-role reduction because it failed to compare his
conduct with that of his more culpable codefendants; and (2) his within-Guidelines
sentence was unreasonable. We find that Baron played a significant role in the
conspiracy as a physician illegally approving online pharmaceutical requests.
Moreover, his within-Guidelines sentence was reasonable. Accordingly, we
AFFIRM.
I. BACKGROUND
According to the presentence investigation report (“PSI”), Baron pled guilty
to Count One of a 12-count indictment, and a single-count information originating
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in the U.S. District Court for the Eastern District of Pennsylvania,1 both counts
alleging conspiracy to distribute Schedule III and IV pharmaceutical controlled
substances, in violation of 21 U.S.C. § 846. PSI ¶¶ 1-2. Both counts arose out of
an on-line scheme involving the illegal distribution of Schedule III and IV
pharmaceutical substances, in which Baron and two other physicians reviewed
customer questionnaires and approved or denied their on-line orders for
prescription diet and sleeping pills. Id. ¶¶ 9-13. Baron authorized approximately
300 Schedule III prescriptions and 33,990 Schedule IV prescriptions, for which he
received $314,015. Id. ¶¶ 31-32. The PSI noted that Baron had accrued
“significant child support arrearages,” including a balance of $297,402.28, and was
reliant on his 82-year-old mother for full financial support. Id. ¶¶ 100, 104.
The PSI assigned a base offense level of 20, which it reduced by 2 levels, for
meeting the “safety valve” requirements. Id. ¶¶ 54-55. It then applied a two-level
increase for Baron’s use of a special skill in a manner that significantly facilitated
the commission of the offense, and a three-level reduction for acceptance of
responsibility. Id. ¶¶ 57, 61-62. Accordingly, the PSI assigned a total offense
level of 17 and a criminal history category of I, yielding a guideline range of 24-30
months’ imprisonment. Id. ¶¶ 63, 66, 106. Baron objected to, inter alia, the lack of
1
The case was transferred to the Southern District of Florida. R1-1.
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a minor-role reduction and requested a downward variance, yielding a probationary
sentence, based on consideration of the nature of the offenses, his personal
characteristics, and the need for the sentence imposed to reflect the seriousness of
the offenses, promote respect for the law, afford adequate deterrence, and protect
the public. PSI Addendum; R1-9 at 1-8. Baron submitted various letters from
family members and a coworker, attesting to his good character and work as a
neurosurgeon, and a newspaper article featuring his work as a surgeon. See R1-9,
Exhs. A-F.
At sentencing, Baron renewed his objection to the lack of a minor-role
reduction, arguing that his role—reviewer of online requests for prescription
drugs—was less than the roles played by the scheme’s owners and operators,
pharmacies, and pharmacy managers because he did not participate in the overall
planning, decision-making, supervision, or recruiting, and he did not supply or
distribute any drugs. R3 at 4-6. The government argued that the offenses could
not have occurred but for his status as a licensed physician with a Drug
Enforcement Administration (“DEA”) registration, and a minor-role reduction
would ignore the facade of legitimacy that he gave the illegal scheme. Id. at 6-7.
Baron asserted that the government’s “but for” analysis had been rejected by the
courts. Id. at 8-9. The district court overruled Baron’s objection, finding that
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Baron occupied more than a minor role in the overall scheme. Id. at 9-10. In so
doing, the court stated that it was adopting the statements of the prosecutor. Id. at
10.
Baron next argued that he truthfully admitted his conduct to DEA agents in
2004 and provided specific information about the scheme, which demonstrated his
desire “to make amends.” Id. at 12. Regarding his history and characteristics,
Baron stated that he was 61 years old, had never been convicted of a crime, was
divorced with 3 living children and 1 deceased child, and was caring, dedicated,
hard working, and trustworthy, as demonstrated by the letters that he submitted.
Id. at 13. He stated that he was living with his 82-year-old mother, who depended
upon him on a daily basis. Id. at 13-14. Baron stated that he found himself before
the court because he was “financially desperate” after losing his medical license in
Florida and closing his practice. Id. at 15-16. He stated that he was depressed,
unable to secure full-time employment, and dependent upon his elderly mother. Id.
at 16. Baron requested a sentence of probation. Id. at 17.
The district court stated that it had considered the parties’ statements, the PSI,
the advisory guideline computation and range, and “all of the statutory factors.” Id.
at 23. It found that Baron met the safety-valve criteria, and, thus, imposed a
sentence “in accordance with the advisory guideline range without regard to any
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statutory minimum sentence.” Id. at 24. The court then sentenced Baron to 25
months’ imprisonment and 3 years’ supervised release as to each count, to be
served concurrently. Id. It stated that Baron’s objection to the minor-role issue was
renewed and its previous ruling remained the same. Id. at 26. When asked whether
he had any objections to the court’s findings of facts or conclusions of law, Baron
replied that he did not, other than the renewed minor-role issue. Id. When asked
whether he had any objection to the manner or procedure in which the sentence was
imposed, he stated that he did not. Id. at 27.
II. DISCUSSION
On appeal, Baron argues that the district court’s cursory adoption of the
government’s arguments regarding the minor-role issue was insufficient because it
failed to compare his conduct with that of his more culpable codefendants. He
asserts that he: (1) had no equity interest in the overall scheme; (2) had no decision-
making authority; (3) did not purchase and mail the drugs; and (3) did not recruit
any participants.
A court’s finding regarding a defendant’s role in the offense is reviewed for
clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en
banc). The proponent of the reduction always bears the burden of proving a
mitigating role in the offense by a preponderance of the evidence. Id. at 939.
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Pursuant to U.S.S.G. § 3B1.2(b), a defendant may receive a two-level reduction in
his base offense level where his role in the offense was minor. See U.S.S.G.
§ 3B1.2(b). The district court’s ultimate determination of the defendant’s role in
the offense should be informed by: (1) the defendant’s role in the relevant conduct
for which he has been held accountable at sentencing; and (2) his role as compared
to that of other participants in his relevant conduct. De Varon, 175 F.3d at 940.
“[W]here the relevant conduct attributed to a defendant is identical to her actual
conduct, she cannot prove that she is entitled to a minor role adjustment simply by
pointing to some broader criminal scheme in which she was a minor participant but
for which she was not held accountable.” Id. at 941. “In making the ultimate
determination of the defendant's role in the offense, the sentencing judge has no
duty to make any specific subsidiary factual findings. . . [and, s]o long as the district
court's decision is supported by the record and the court clearly resolves any
disputed factual issues, a simple statement of the district court's conclusion is
sufficient.” Id. at 939.
The district court was not required to articulate specific factual findings; its
simple statement of its conclusion that Baron was not eligible for a minor-role
reduction was sufficient. See De Varon, 175 F.3d at 939. The record supports the
district court’s conclusion, as the relevant conduct for which he was held
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accountable was only the drugs that he illegally prescribed—not the broader
criminal scheme, and he and the other physicians played a indispensable and
significant role in the conspiracy by providing the illegal scheme with a facade of
legitimacy that a non-doctor could not provide. See id. at 940-41; PSI ¶¶ 28-31, 45.
Thus, we find no error in the district court’s determination.
While conceding that the district court need not explicitly discuss each of the
§ 3553(a) factors, Baron asserts that the district court gave no specific reasons for
imposing a within-Guidelines sentence and failed to address any of the “unique
facts” of his case, despite his argument that the guideline sentence was greater than
necessary to achieve the purposes of sentencing and his discussion of the facts of
his case. Baron argues that a sentence within the guideline range was unreasonable,
considering his personal characteristics and the nature of his crime. Specifically, he
states that he: (1) had no criminal history; (2) was a respected neurosurgeon for
many years who treated patients without regard for their ability to pay; (3) cares for
his elderly mother; and (4) suffers from several medical conditions. Regarding the
nature of the offense, he states that “he was not peddling more serious drugs,” such
as cocaine or heroin. Appellant’s Brief at 16. Baron contends that he showed
remorse, is unlikely to commit further crimes, and cooperated fully with law
enforcement.
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As an initial matter, we need not resolve whether Baron’s failure to raise a
reasonableness objection after his sentence was imposed mandates plain error
review because, as discussed below, Baron cannot demonstrate any error by the
district court, or that his sentence was unreasonable. After United States v. Booker,
543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a district court, in
determining a reasonable sentence, must correctly calculate the sentencing range
under the Guidelines and then consider the factors set forth in § 3553(a). See
United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). The Court has held
that appellate courts must review all sentences under a deferential abuse-of-
discretion standard. Gall v. United States, __ U.S. __, 128 S. Ct. 586, 591, 169 L.
Ed. 2d 445 (2007). Although the district court must be guided by the § 3553(a)
factors, we have held that “nothing in Booker or elsewhere requires the district
court to state on the record that it has explicitly considered each of the § 3553(a)
factors or to discuss each of the § 3553(a) factors.” United States v. Scott, 426
F.3d 1324, 1329 (11th Cir. 2005). “[A]n acknowledgment by the district court that
it has considered the defendant’s arguments and the factors in section 3553(a) is
sufficient under Booker.” Talley, 431 F.3d at 786.
The district court, in sentencing Baron, stated that it had considered the
parties’ statements, the PSI, the advisory guideline computation and range, and “all
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of the statutory factors.” See R3 at 23. These acknowledgments were sufficient
under Booker. See Talley, 431 F.3d at 786. Regarding Baron’s discussion of
specific factors, the guideline range took into account that he had no criminal
history and that his offense involved “lesser” drugs, as the range was computed by
assigning a criminal history category of I and basing the offense level on the type
and amount of drugs involved. See U.S.S.G. § 2D1.1(a)(3), (c); PSI ¶¶ 54, 66.
Moreover, his personal characteristics, consisting of his status as a formerly
respected neurosurgeon who currently suffers medical conditions and cares for his
elderly mother, are not so weighty or of a character that the district court’s decision
not to vary below the Guideline range after considering them could constitute error
or abuse of discretion. Accordingly, Baron’s sentence was reasonable.
III. CONCLUSION
The district court’s sentence in this case is due to be affirmed based upon a
thorough review of the record. Baron, a licensed physician holding a DEA
registration, played a significant role in the conspiracy to distribute online
pharmaceutical requests illegally. Also, his sentence was within the applicable
Guidelines range. Accordingly, we AFFIRM.
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