United States v. Hoffer

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________
No. 96-4354
________________________

D.C. Docket No. 94-6113-CR-FERGUSON

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

versus

LEE W. HOFFER, M.D.,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 21, 1997)

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

2
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

3
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

4
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

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.

5
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 (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.

6
 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

7
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

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

8
___, 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, 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 ___, 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

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.

9
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 (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

10
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
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

11
 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

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.

12
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.

13
 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 Davis 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.

14
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 (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

15
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 (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

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.

16
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,

___ 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

17
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

18
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

19
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.

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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.

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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.

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