United States v. George Patino
Opinion
George Patino appeals after the district court 1 admitted evidence of a 1998 conviction at trial and sentenced him to 40 months' imprisonment and 3 years' supervised release following his conviction on three counts relating to a conspiracy to distribute human growth hormone ("HGH") for unauthorized purposes and to smuggle HGH into the United States. We affirm.
I.
Patino operated a clinic and wholesale drug distribution business in Mexico that sold HGH to purchasers in the United States. He obtained HGH from Mexico and Asia and shipped it into the United States via mailed packages. He operated several English-language websites advertising HGH for sale, marketing himself as "an accredited Physician and Surgeon" and a "leader in the field of Human Growth Hormone Therapy" though he did not have a medical license from any state. Between April 2014 and June 2015, Patino sent more than ninety-five HGH packages to the Men's Medical Institute ("MMI"), a medical clinic in St. Louis County, Missouri. In exchange, Patino received a total of $67,720. Patino shipped HGH to other addressees in the United States through December 2015.
In February 2016, a grand jury indicted Patino on three counts: 1) conspiracy to distribute or possess with intent to distribute HGH in violation of
Among other evidence at trial, the district court admitted the fact of Patino's 1998 conviction for possession of HGH with intent to distribute as well as statements Patino made at the time of his arrest for that crime to a special agent of the Food and Drug Administration's ("FDA") Office of Criminal Investigations. In particular, Patino stated that he was a medical doctor in Mexico but not the United States, that he was distributing HGH to medical doctors, and that he was aware that it was illegal to bring Mexican HGH into the United States.
After the guilty verdict, the United States Probation Office prepared a presentence investigation report ("PSR"), which concluded that the offense involved sophisticated means. See United States Sentencing Guidelines ("U.S.S.G.") § 2T3.1(b)(1). This resulted in an advisory sentencing guidelines range of 21 to 27 months. The Government moved for a sentence above the guidelines range, and the district court sentenced Patino to 40 months' imprisonment.
Patino now appeals the admission at trial of his 1998 conviction pursuant to Fed. R. Evid. 404(b), the application of the sophisticated means enhancement at sentencing, and the district court's alleged failure properly to determine or explain its rationale for the upward departure for understated criminal history at sentencing.
II.
A.
Before trial, the Government timely filed notice under Fed. R. Evid. 404(b) that it planned to admit evidence of Patino's 1998 conviction for knowingly possessing HGH with intent to distribute for unauthorized use by humans. The Government argued that this conviction and Patino's statements to the FDA were relevant to prove Patino's intent, knowledge, and absence of mistake in joining the conspiracy to distribute HGH. Patino objected to the admission of the conviction based on its age and irrelevance and argued that it was more unfairly prejudicial than probative. The district court overruled Patino's objection, and the Government presented Patino's conviction and statements to the FDA during trial.
" Rule 404(b) prohibits the admission of other bad acts that are offered to prove the character of a person in order to show action in conformity therewith."
United States v. Hill
,
Patino argues on appeal that his 1998 conviction was irrelevant and too remote and that its prejudicial effect outweighed any probative value. We conclude that the admission of Patino's 1998 conviction was not an abuse of discretion. It was used to prove intent and knowledge and was well supported by evidence. Because Patino pleaded not guilty to the charged offenses and contested their mens rea elements, evidence of his prior conviction for distributing HGH was relevant to his intent and knowledge.
See
United States v. Logan,
Also, the Government successfully demonstrated that Patino's prior crime was "similar in kind and not overly remote in time to the charged crime."
See
United States v. Williams
,
B.
Patino also argues that the district court improperly applied the sophisticated-means enhancement in determining his advisory sentencing guidelines range.
See
U.S.S.G. § 2T3.1(b)(1). At sentencing, Patino objected only to the PSR's application of the sophisticated means enhancement, but he raised no objections to any facts in his PSR. We review
de novo
whether the district court correctly applied the guidelines when it determined that these facts constituted sophisticated means.
United States v. Finck
,
The proper application of the sophisticated-means enhancement for smuggling under U.S.S.G. § 2T3.1(b)(1) is a matter of first impression in this circuit, but the definition found in the fraud and tax contexts is similar and offers useful guidance here.
See
United States v. Redman
,
Here, the unchallenged facts in the PSR and evidence at trial show sophisticated means. Patino engaged in repetitive and coordinated conduct, shipping more than ninety-five packages of HGH from Mexico to the United States for approximately forty patients over the course of more than a year and a half.
See
United States v. Fiorito
,
C.
Patino's PSR calculated a total offense level of 16 and a criminal history category of I, resulting in an advisory guidelines range of 21 to 27 months. The Government filed a motion requesting a sentence above the guidelines range based in part upon Patino's understated criminal history. The district court imposed a sentence of 40 months' imprisonment for each count, to run concurrently. The district court pointed to Patino's understated criminal history as one reason for its sentence above the guidelines range. See U.S.S.G. § 4A1.3. Patino argues on appeal that the district court did not properly determine or explain its rationale for the extent of its upward departure based on understated criminal history. 2
A district court's sentence above the advisory guidelines range is reviewed for abuse of discretion.
United States v. Walking Eagle
,
The PSR assessed zero criminal history points to Patino, but as the Government pointed out, he had five uncounted prior convictions, including two for international drug distribution. We conclude that the district court did not abuse its discretion in
imposing a sentence above the advisory guidelines range and sufficiently explained why Patino's understated criminal history justified an upward departure to 40 months.
See
United States v. Olson
,
III.
For the foregoing reasons, we affirm.
The Honorable Henry E. Autrey, United States District Judge for the Eastern District of Missouri.
The district court also explained that it was varying under
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff - Appellee v. George PATINO, Also Known as Giorgio Paticciano Patino, Defendant - Appellant
- Cited By
- 1 case
- Status
- Published