Sentencing with the stars

"[I]it does not matter that the district court relied on a number, even a large number, of relevant facts in its sentencing, if it also relied on facts that it could not properly consider. Thus we would not hesitate to reverse a sentence if a judge relied on numerous relevant facts but also relied, for instance, on the morning's horoscope."

- 6th U.S. Circuit Court of Appeals Judge John M. Rogers, explaining in United States v. Hunt, that a doctor convicted of health-care fraud would have to be resentenced because the district court apparently ignored the jury's finding of fraudulent intent when sentencing the doctor to probation instead of prison.

A Tennessee doctor was nailed because he signed, for $10 a piece, after-the-fact authorizations for diagnostic tests performed by a mobile diagnostic test center, which made the rounds at senior citizen centers and corporate health fair events. The district court sentenced the doctor (Hunt) to probation, instead of the guidelines range of 27 to 33 months in prison, on the apparent belief that the test center operator (Noble) had pulled the wool over the doctor's eyes.

From Judge Rogers' opinion:

"The following give an indication that the district court relied in part on the defendant's not having had an intent to defraud in this case, a conclusion contrary to the jury verdict.

"The court stated an 'overarching impression' that defendant 'might well have not been convicted by a jury' had it not been for the presence of Mr. Noble in the case. ...

"The court also stated that Hunt 'first of all, was hoodwinked by Mr. Noble, second of all was naive, third of all was trusting, fourth of all was unknowledgeable about the business part of the practice like many, many doctors and other healthcare professionals are, but most of all was motivated to do this because he thought it was a good test, and he thought that it would detect some things that would be helpful for people to detect.' ... While this excerpt could be read as limited to a consideration solely of Hunt's motives for the crime, there is an unmistakable conveyance of the idea that Hunt did not have the intent to defraud.

"The court also stated, 'There were many things that Dr. Hunt testified gave him a measure of comfort about what Mark Noble was doing, that militated against his having fraudulent intent. The jury found he had fraudulent intent, but the court can certainly consider those things in sentencing despite the jury's finding.' ... (emphasis added).

"The court also stated that Hunt's 'background would not lead one to believe that he would jeopardize his medical license by knowingly committing a fraud from which he made very little money.'"

Judge Rogers continued:

"These statements, in the context of the general tenor of the district court's remarks ... certainly permit - if they do not require - the conclusion that in sentencing the district court relied in part on the absence of fraudulent intent on the part of the defendant. It is true that the district court also relied on a number of factors that were either proper or arguably proper, such as how little money the defendant made off the scheme, the allegedly limited amount of harm to patients, the personal circumstances of the defendant, the effect on the defendant of losing his license, and how valuable the defendant was to the community. But such arguably proper reliance does not cure actual reliance on the perceived innocence of the defendant, any more than in the horoscope example above."