United States v. Hoffer

United States Court of Appeals,

Eleventh Circuit.

No. 96-4354.

UNITED STATES of America, Plaintiff-Appellant,

v.

Lee W. HOFFER, M.D., Defendant-Appellee.

Nov. 21, 1997.

Appeal from the United States District Court for the Southern District of Florida. (No. 94-6113-CR-
FERGUSON), Wilkie D. Ferguson, Jr., Judge.

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

1
In making that determination, the district court relied on the parties' stipulation in the plea
agreement that Hoffer had dispensed and/or distributed an amount of Schedule II controlled
substances which, under the guidelines, was equivalent to more than 700 kilograms, but less than
1000 kilograms, of marijuana.
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, --- U.S. ----, ----, 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, --- 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, --- 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 potential basis for departure. See id. at ----, 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, --- U.S. at ----, ----, 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, --- U.S. at ----, 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, --- U.S. at ----, 116 S.Ct. at 2045.

Finally, a district court may depart on the basis of a factor not addressed by the Sentencing

Commission if it finds, "after considering the "structure and theory of both the relevant individual

guidelines and the Guidelines taken as a whole,' " that the factor takes the case out of the applicable

guideline's heartland. Id. at ----, 116 S.Ct. at 2045 (quoting United States v. Rivera, 994 F.2d 942,

2
The guidelines provide the following examples to illustrate the use of encouraged and
discouraged factors in the departure decision:

[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.
949 (1st Cir.1993)). However, a district court departing on the basis of an unenumerated factor

should bear in mind the Commission's expectation that such departures will be "highly infrequent."

Id. at ----, --- U.S. at ----, 116 S.Ct. at 2045 (citing U.S.S.G. ch. 1, pt. A, intro. comment. 4(b)).

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. 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, --- U.S. at ----,

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 ----, 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 ----, ----, 116 S.Ct. at 2047, 2050.3

3
In United States v. Taylor, 88 F.3d 938 (11th Cir.1996), our first post-Koon review of a
district court's decision to depart from the sentencing guidelines, we recognized that Koon had
changed the standard of review and the analysis that applies when reviewing departure decisions.
See id. at 945-46. We consistently applied the Koon standard of review and analysis in the next
three guideline departure cases that followed. See United States v. Bernal, 90 F.3d 465, 467-68
(11th Cir.1996); United States v. Santos, 93 F.3d 761, 763 (11th Cir.1996), cert. denied, --- U.S.
----, 117 S.Ct. 1437, 137 L.Ed.2d 544 (1997); United States v. Bristow, 110 F.3d 754, 757-59
(11th Cir.1997).

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. --- U.S. at ----, 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 ----, 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
 Having set forth the standard by which we review a sentencing court's decision to depart

from the guidelines, we turn now to the merits in this case.

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

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.
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 government's objections were sufficient to

allow the district court to correct any errors. See Wilson v. Attaway, 757 F.2d 1227, 1242 (11th

Cir.1985) (appellate court may consider whether grounds of objection are apparent from the

context). Accordingly, we hold that the government did not waive its objections to the district

court's departure decision and the resulting sentence by failing to reiterate these objections after the

sentence was imposed.
 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 U.S.S.G. § 5E1.4(d)(5), while leaving it out as a factor which may support a
reduction in sentence. See Crook, 9 F.3d at 1426. The Commission's decision indicates that civil

forfeiture is relevant only to the possible monetary sanctions which may flow from a criminal

conviction, but it has no bearing on a convicted defendant's term of incarceration.

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.,

21 U.S.C. § 853(a)(1) (mandating forfeiture of property which constitutes proceeds of certain

criminal activities). The more successful a criminal is, the more likely he or she is to accumulate

significant assets or property from the criminal activity. Allowing a departure from the sentencing

guidelines based on forfeiture would, in essence, reward criminals for their proficiency or success

in committing crimes. Surely, the Commission never intended such a result.

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, --- U.S. ----, 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 of a departure from the sentencing guidelines).4

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

4
This case does not raise the question of whether voluntary payment of restitution can
constitute "extraordinary acceptance of responsibility," supporting a departure from the
sentencing guidelines, see Hairston, 96 F.3d at 107-08, and we intimate no view on the subject.
the guidelines. See Koon, --- U.S. at ----, 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 Fla. Stat. Ann. §

458.331(1)(c) and (q).

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 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 socio-economic 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." --- U.S. at ----, 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 U.S.S.G. § 3B1.3 for using his

special skills as a physician to facilitate the commission of his crimes and for abusing the position

of trust he held as a physician. Hoffer betrayed society's trust by using his prescription writing

privileges to distribute controlled substances outside the legitimate practice of medicine. It was

because Hoffer was a physician, and was entrusted as a physician with prescription writing

authority, that he was able to commit the crimes for which he was convicted.

The Commission, in § 3B1.3, stated that circumstances such as these warrant a sentence

enhancement. In the background notes to § 3B1.3, the Commission explained that persons who

abuse their positions of trust or use their special skills to facilitate or conceal the commission of a

crime "generally are viewed as more culpable." Yet, the district court's treatment of the position of

trust Hoffer enjoyed, his medical license and physician status, netted out to a lesser sentence for him.

The court gave Hoffer a four-level downward departure for losing his position of trust, which more

than wiped out the two-level enhancement mandated by § 3B1.3 for Hoffer's abuse of that position

of trust.

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 § 3B1.3 enhancement is warranted, there will also be a loss of a
position of trust. The two sanctions or results are inextricably intertwined. Allowing downward

departures for loss of professional or employment position in cases in which that loss flows from

an abuse of trust that warrants a § 3B1.3 enhancement would nullify the mandate of § 3B1.3. The

Commission cannot have intended such a result.

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 from 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 the defendant in Aguilar.

Therefore, the reasoning of the Aguilar majority does not support the district court's downward

departure.

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 § 3B1.3 enhancement for abusing a position of trust cannot then receive

a downward departure from the sentencing guidelines for losing that same position of trust. Stated

generally, we hold that a factor which is inextricably intertwined with a basis for enhancement under

the guidelines will ordinarily be a prohibited basis for downward departure from the guidelines.

Accordingly, we hold that, under the circumstances of this case, the district court abused its

discretion by granting Hoffer a downward departure based upon loss of his privilege to practice

medicine.

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.