United States of America v.  James M. Shortt

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-4774 
JAMES M. SHORTT,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., Chief District Judge.
(3:05-cr-01011-JFA)
Argued: February 2, 2007
Decided: May 10, 2007
Before NIEMEYER, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Williams and Judge Gregory joined.
COUNSEL
ARGUED: Allen Bethea Burnside, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Columbia, South Carolina, for Appellant. Winston David Holliday,
Jr., Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee. ON
BRIEF: Reginald I. Lloyd, United States Attorney, Jane B. Taylor,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Columbia, South Carolina, for Appellee.

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OPINION
NIEMEYER, Circuit Judge:
Dr. James M. Shortt pleaded guilty to one count, of a 43-count
indictment, charging him with participating in a seven-year conspir-
acy to distribute and dispense and to cause to be distributed and dis-
pensed anabolic steroids and human growth hormone, in violation of
21 U.S.C. §§ 841(a)(1), 333(e), and 846. The 2004 version of the Sen-
tencing Guidelines, which contained no provision to address the ille-
gal distribution of human growth hormone and certain forms of
anabolic steroids, provided for an offense level of 6, for a sentencing
range of zero to six months’ imprisonment. Considering this defi-
ciency in the Sentencing Guidelines, as well as factors listed in 18
U.S.C. § 3553(a), the district court imposed a variance sentence of
imprisonment of 12 months and 1 day.
On appeal, Shortt challenges his sentence as unreasonable, arguing
principally that the factors the district court considered were already
accounted for in the sentence recommended by the Sentencing Guide-
lines or otherwise should not have been considered. Concluding that
the district court, in the circumstances of this case, did not abuse its
discretion in imposing a variance sentence, we affirm.
I
Dr. Shortt, a physician licensed in South Carolina and Wisconsin,
practiced medicine in Columbia, South Carolina, since at least 1998.
As a regular and substantial part of his practice, Shortt prescribed and
dispensed anabolic steroids and human growth hormone to athletes
solely to enhance their performance. For bodybuilders not subject to
testing, Shortt prescribed injectable steroids. For athletes subject to
testing, he designed programs, drugs, and testing to avoid discovery
of the athletes’ use of such steroids and human growth hormone. Pro-
fessional athletes relying on Shortt flew into Columbia "from all over
the country," and they included more than one-half dozen profes-
sional football players from the National Football League’s Carolina
Panthers.
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To hide the athletes’ use of steroids and human growth hormone,
Shortt prescribed substances in forms that carried fewer detectable
chemical by-products. He also monitored athletes’ testosterone levels
to be sure that they remained within ranges that aroused no suspicion
— "blew no whistles," as he repeatedly said. Typifying his counseling
is the following excerpt from an audiotape recording of Shortt’s con-
versation with a football player:
And for you guys [professional football players], what I am
looking for is nondetectable performance enhancement. So,
immune modulation is always a good thing. Natural testos-
terone is always a good thing. And when we get to it in a
minute — get to it in a minute, you could probably do well
with a little bit of growth hormone. Actually, you could do
with a medium amount of growth hormone.
So that’s — that’s all I would do with you right there. A
small amount of DHEA, not enough to blow any whistles,
and testosterone. USP testosterone.
Now, ways to deliver it. Don’t use a shot, because that’s
always got a carrier molecule on it. A cream, a gel, or a buc-
cal. Now, you can’t swallow it, your stomach will degrade
it. But you can get troches [lozenges], put them between
your cheek and your gum. And in you guys’ cases, I would
probably use the cream. And the reason for that is, it
wouldn’t take much of a stretch for somebody to say, okay,
spit in the cup. And if you do, you will come up sky high
on it, should somebody test it. Nobody has, you know. It’s
in their best interest to level the playing field, but it’s not in
their best interest to bust the whole damn team, you know.
I mean, really. So, they’re not going to want to do that. So,
a little bit of testosterone will probably start you out.
Following an undercover investigation of Dr. Shortt’s medical
practice, Shortt was indicted by a grand jury for participating in a
seven-year conspiracy (1998-2005) to dispense anabolic steroids and
human growth hormone "not for legitimate medical purposes and out-
side the usual course of professional practice," in violation of 21
U.S.C. §§ 841(a)(1), 333(e), and 846. He was also charged in 42
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counts alleging overt acts over a period of three and one-half years
(2001 through mid-2004) during the course of the conspiracy.
Pursuant to a plea agreement, Shortt pleaded guilty to the conspir-
acy count, and during the course of pleading guilty, he admitted to the
facts proffered by the government, including the facts and drug quan-
tities alleged in the 42 counts of overt acts.
The presentence report recommended a sentencing offense level of
6, pursuant to U.S.S.G. § 2D1.1(c)(17) (2004). The report also recom-
mended a two-level enhancement under U.S.S.G. § 3B1.3 for Shortt’s
use of a special skill as a doctor and a two-level reduction under
§ 3E1.1(a) for acceptance of responsibility. The final offense level of
6, combined with a criminal history category I, yielded a sentencing
range of zero to six months’ imprisonment. In setting forth these cal-
culations, the presentence report noted that the Guidelines do not
address steroids "in cream form" or in the form of "a troche, which
is similar to a lozenge and is taken orally and sucked until it is dis-
solved." The report pointed out that a troche is distinguishable from
a pill, capsule, or tablet, which is addressed in the Guidelines. The
presentence report also observed that the Sentencing Commission had
"not promulgated a guideline for violations of 21 U.S.C. § 333(e),"
which prohibits the distribution of human growth hormone.1 In the
absence of an explicit guideline, the probation officer determined the
offense level for distribution of human growth hormone by reference
to the "amount paid by the user of the substance," but this reference
did not increase the sentence as calculated solely for the distribution
1By an emergency amendment adopted in 2006, following Congress’
enactment of the Anabolic Steroid Control Act of 2004, Pub. L. No. 108-
358, 118 Stat. 1661, the Sentencing Commission prescribed new conver-
sion ratios for anabolic steroids distributed as topical creams or lozenges,
filling the gap left for steroids in those forms in the prior version of the
Sentencing Guidelines. See U.S. Sentencing Comm’n, Supplement to the
2005 Guidelines Manual (2006). The Sentencing Commission also
boosted the drug equivalency ratio of anabolic steroids to "units," deem-
ing a "unit" to equal 0.5 ml. of steroids — a 20-fold increase from the
preexisting ratio. See id. § 2D1.1(c) n.F. The amendment, however, still
left human growth hormone unaddressed, and to date, there is no applica-
ble guideline for the illegal distribution of this hormone.
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of steroids. At the conclusion of the report, the probation officer noted
that he had no information "concerning the offense or the offender
which would warrant a departure from the prescribed Sentencing
Guidelines." He did note, however, that the U.S. Attorney indicated
"he will file a motion for a variance prior to sentencing in which he
will request that the court sentence a defendant outside the applicable
guideline range, pursuant to 18 U.S.C. § 3553(a)(2)(A) and (B)."
The district court conducted a lengthy sentencing hearing, receiv-
ing the testimony of witnesses and the arguments of counsel. The
court then observed that neither party had objected to the presentence
report and accepted its recommendations as accurate calculations
under the Sentencing Guidelines. After considering the factors con-
tained in 18 U.S.C. § 3553(a), however, the court decided to impose
a variance sentence because "a sentence within the zero to six-month
range [as recommended by the Sentencing Guidelines] does not serve
the factors of § 3553(a)." It sentenced Shortt to 12 months and 1 day’s
imprisonment. As the court stated, "By ordering a sentence of 12
months and 1 day [Shortt] will be eligible to earn good time credit
and can thereby reduce his sentence by 15 percent." The court identi-
fied two § 3553(a) factors that were not adequately served by the
Guidelines’ recommended sentence: (1) the nature and circumstances
of the offense, see § 3553(a)(1); and (2) "the need for the sentence
imposed to reflect the seriousness of offense, to promote respect for
the law, and to provide just punishment for the offense," see
§ 3553(a)(2)(A). The court then gave seven reasons that prompted it
to select the variance sentence that it imposed.
First, Shortt made elaborate efforts to conceal his wrongdoing. As
the court stated, "The bodybuilders, who were not tested, were given
straight injectable anabolic steroids, whereas the athletes were treated
with methods designed to conceal the use of contraband."
Second, the court was troubled by the defendant’s "cavalier atti-
tude" toward the use of steroids, referring to how Dr. Shortt and the
professional football players joked about being caught.
Third, the court pointed to the scope of the offense. During the
three and one-half year period for which the government had records
of Shortt’s conduct, Shortt made "139 dispensations of anabolic ste-
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roids, either for prescriptions or refills. And these include[d] 1217
milliliters of injectable anabolic steroids, 1110 milliliters of anabolic
steroid cream, 225 troches or lozenges, and 225 anabolic steroid tab-
lets. By the defendant’s own admission he had athletes, ‘flying from
all over,’ to receive his services."
Fourth, the court observed that because human growth hormone
was not specifically addressed by the Sentencing Guidelines, the
Guidelines’ recommended sentence did not reflect the seriousness of
the offense. The court stated, "The end result is there is no penalty
imposed at all because of the use of prescriptions for the human
growth hormone."
Fifth, the court referred to the fact that Shortt dispensed steroids to
an overweight teenager (15 years old) — a particularly vulnerable
victim. The court recognized that it was not clear whether there might
have existed a medical need for the treatment, but nonetheless
observed that dispensing steroids to convert the teenager’s fat into
muscle was consistent with Shortt’s other illegal conduct in this case.
Sixth, the court concluded that it could not ignore the fact that the
steroids were dispensed to professional athletes. As the court stated:
Performance-enhancing drugs such as human growth hor-
mone and steroids irreparably tarnish the career achieve-
ments of many athletes whose records and accomplishments
are called into question. In that sense then the victims of
crimes such as the one at issue here include not only the ath-
letes themselves, but also sports fans in living rooms all
over the country.
Seventh and finally, the court pointed to Shortt’s lack of remorse.
Even during allocution, Shortt stated that he considered the dispensa-
tion of steroids and human growth hormone "somewhat equivalent to
healing and repairing."
From the district court’s judgment, Shortt filed this appeal, raising
the single question of whether the district court imposed an unreason-
able sentence by improperly applying the § 3553(a) factors.
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II
Following United States v. Booker, 543 U.S. 220 (2005), our pro-
cedure for sentencing has become established. A sentencing court
must begin by properly calculating the sentencing range under the
Sentencing Guidelines. It must then determine "whether a sentence
within that range . . . serves the factors set forth in § 3553(a) and, if
not, select a sentence [within statutory limits] that does serve those
factors." United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006)
(quoting United States v. Green, 436 F.3d 449, 456 (4th Cir. 2006)).
When a district court concludes that a "variance" sentence — one out-
side the recommended Guideline range, see Moreland, 437 F.3d at
432 — better serves the purposes of sentencing as stated in
§ 3553(a)(2), we review the district court’s sentencing judgment for
abuse of discretion. See Green, 436 F.3d at 457.
Applying the 2004 version of the Sentencing Guidelines, the pre-
sentence report in this case recommended an offense level of 6 for a
sentencing range of zero to six months’ imprisonment and identified
no grounds for a departure. Neither the government nor the defendant
challenged this conclusion, and the district court accepted the recom-
mendation as a correct application of the Sentencing Guidelines.
Likewise, on appeal, neither party challenges the application of the
Sentencing Guidelines or the Guidelines’ recommended sentence of
zero to six months’ imprisonment.
Because the court found, however, that a sentence within the range
of zero to six months would not adequately serve the sentencing pur-
poses mandated by Congress in 18 U.S.C. § 3553(a), it imposed a
variance sentence of 12 months and 1 day’s imprisonment. The issue
of reasonableness raised on this appeal thus depends on whether the
district court properly applied the § 3553(a) factors.
Section 3551 of Title 18 mandates that defendants be sentenced for
federal offenses "in accordance with the provisions of this chapter so
as to achieve the purposes set forth in subparagraphs (A) through (D)
of Section 3553(a)(2) to the extent that they are applicable in light of
all the circumstances of the case." (Emphasis added). That specific
mandate is repeated in the first sentence of § 3553(a), which provides:
"The court shall impose a sentence sufficient, but not greater than
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necessary, to comply with the purposes set forth in paragraph (2) of
this subsection." (Emphasis added); see also 18 U.S.C. § 991(b)(1).
Section 3553(a) then provides that in determining a particular sen-
tence, a sentencing court must consider seven enumerated factors.2
2Section 3553(a) of Title 18 provides in full:
(a) Factors to be considered in imposing a sentence. The court
shall impose a sentence sufficient, but not greater than necessary,
to comply with the purposes set forth in paragraph (2) of this
subsection. The court, in determining the particular sentence to
be imposed, shall consider —
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed —
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defen-
dant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional treat-
ment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for
—
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the guide-
lines —
(i) issued by the Sentencing Commission pursuant to sec-
tion 994(a)(1) of title 28, United States Code, subject to
any amendments made to such guidelines by act of Con-
gress (regardless of whether such amendments have yet to
be incorporated by the Sentencing Commission into
amendments issued under section 994(p) of title 28); and
(ii) that, except as provided in section 3742(g), are in
effect on the date the defendant is sentenced; or
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Thus, § 3553(a) serves two functions. First, it prescribes that every
sentence comply with the four announced purposes for sentencing.
Second, it lists seven factors that a court must consider in determining
a particular sentence, and included as one of the factors is the list of
announced purposes for sentencing in § 3553(a)(2).
A sentence that does not serve the announced purposes of
§ 3553(a)(2) is unreasonable. See Moreland, 437 F.3d at 434; Green,
436 F.3d at 456-57. Likewise, a sentence that is greater than neces-
sary to serve those purposes is unreasonable. See 18 U.S.C. § 3553(a)
(requiring the imposition of a sentence "sufficient, but not greater
than necessary"). Because the Sentencing Guidelines were designed
to achieve the § 3553(a)(2) purposes, see 28 U.S.C. § 991(b), 994(a);
U.S.S.G. § 1A1.1 cmt. (historical review of original introduction), a
sentence selected from the range recommended by the Sentencing
Guidelines is presumptively reasonable. See United States v. Johnson,
(B) in the case of a violation of probation or supervised
release, the applicable guidelines or policy statements issued
by the Sentencing Commission pursuant to section 994(a)(3)
of title 28, United States Code, taking into account any
amendments made to such guidelines or policy statements by
act of Congress (regardless of whether such amendments
have yet to be incorporated by the Sentencing Commission
into amendments issued under section 994(p) of title 28);
(5) any pertinent policy statement —
(A) issued by the Sentencing Commission pursuant to sec-
tion 994(a)(2) of title 28, United States Code, subject to any
amendments made to such policy statement by act of Con-
gress (regardless of whether such amendments have yet to be
incorporated by the Sentencing Commission into amend-
ments issued under section 994(p) of title 28; and
(B) that, except as provided in section 3742(g), is in effect
on the date the defendant is sentenced.
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the offense.
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445 F.3d 339, 342-43 (4th Cir. 2006); Green, 436 F.3d at 457. Of
course, the presumption is rebuttable, and therefore a variance sen-
tence is not presumptively unreasonable. But a variance sentence
must, to be reasonable, serve the four sentencing purposes of
§ 3553(a)(2).
The sentencing purposes identified in § 3553(a)(2)(A) to (D) are
the four foundational purposes of sentencing that have long prevailed
throughout our jurisprudence — (1) punishment, (2) deterrence, (3)
incapacitation, and (4) rehabilitation. See generally Ilene H. Nagel,
Structuring Sentencing Discretion: The New Federal Sentencing
Guidelines, 80 J. Crim. L. & Criminology 883 (1990). Although still
relevant, the fourth purpose, rehabilitation, was recognized by Con-
gress and the Sentencing Commission to be insufficient, standing on
its own, to justify a particular sentence. S. Rep. No. 98-225, at 38
(1984), as reprinted in 1984 U.S.C.C.A.N. 3182, 3221. The Sentenc-
ing Reform Act of 1984 came about in response to widespread dissat-
isfaction with the existing system of indeterminate sentencing, which
was "characterized by unwarranted disparity and by uncertainty about
the length of time offenders will serve in prison." Id. at 49, as
reprinted in 1984 U.S.C.C.A.N. at 3232. This existing system was
"largely based on an outmoded rehabilitation model" (emphasis
added), which led to inconsistent terms of imprisonment without suc-
cess in rehabilitating prisoners. Id. at 38, as reprinted in 1984
U.S.C.C.A.N. at 3221. While Congress did not, in the 1984 Act, aban-
don rehabilitation as a sentencing purpose, it nonetheless intended
that purpose to have a reduced importance. To reform the system, it
elevated the other three purposes — just punishment, deterrence, and
incapacitation. Indeed, the Senate Committee drafting the Act placed
special emphasis on the first stated purpose (§ 3553(a)(2)(A)) — the
need "to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense." Id. at 75, as
reprinted in 1984 U.S.C.C.A.N. at 3258. As it observed, the first pur-
pose "should be reflected clearly in all sentences." Id. (emphasis
added).
The proper application of § 3553(a) therefore requires a sentencing
court to focus on the four purposes of sentencing, as applicable in a
particular case, and to consider, in determining a sentence that
achieves those purposes, the seven factors listed in § 3553(a)(1)-(7).
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A sentence that fails to fulfill the purposes cannot be saved, even if
it is supported by consideration of the six other factors.
In this case, the district court recognized that the last two purposes
— § 3553(a)(2)(C) (the need to incapacitate) and § 3553(a)(2)(D) (the
need to rehabilitate) — were not implicated by the circumstances.
Rather, at the heart of the sentencing court’s concern was the question
whether a zero to six months’ sentence of imprisonment properly
reflected the seriousness of Shortt’s offense and provided a just pun-
ishment for it (§ 3553(a)(2)(A)). The court correctly understood that
a failure to recognize the seriousness of the offense would promote
disrespect for the law.
Reviewing the circumstances of this case in light of the stated pur-
poses for sentencing, we conclude that the district court’s concerns
were well founded and that it acted within its discretion in imposing
the variance sentence.
A doctor’s illegal dispensing of steroids and human growth hor-
mone has a particularly pernicious effect. In the name of enhancing
athletic performance, a doctor dispensing steroids and human growth
hormone exposes an athlete to numerous health risks, including
extreme mood swings, liver and kidney tumors, liver and prostate
cancer, heart attacks, high blood pressure, and infertility. See H.R.
Rep. No. 108-461(I), at 5. The perversion of the doctor’s professional
responsibility to prescribe drugs for the health of his patients is at the
core of the violation’s seriousness. Indeed, it was this seriousness of
conduct that had drawn the attention of Congress, even at the time of
the conspiracy in this case, prompting it to direct the Sentencing
Commission to increase penalties for the illicit dispensing of anabolic
steroids. See Anabolic Steroids Control Act of 2004, Pub. L. 108-358,
118 Stat. 1661.
The maximum sentence for such violations — under either 21
U.S.C. § 841(a)(1) or 21 U.S.C. § 333(e) — is five years’ imprison-
ment. Yet, the Sentencing Guidelines applicable to Shortt’s conduct
recommended a sentence of only zero to six months’ imprisonment.
The district court concluded, and we agree, that this sentence, in the
circumstances of this case, failed, for several reasons, to reflect the
severity of Shortt’s offense.
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First, Shortt’s illegal conduct lasted almost seven years, and the
charged overt acts, which were found as sentencing facts by the dis-
trict court, have been detailed over a period of three-and-a-half years.
Shortt illegally prescribed steroids and human growth hormone at
least 139 times during that three-and-a-half-year period. Moreover,
Shortt’s conduct was not localized to Columbia, South Carolina, but
was national in scope. By Shortt’s own admission, athletes were "fly-
ing in from all over." This crime was not a single passing aberration,
but a premeditated, extensive course of conduct that had far-reaching
consequences.
Second, the district court was legitimately concerned with the
aggressive state of mind, the contumacy with which Shortt violated
the law. As the court observed, Shortt and the athletes were "cavalier"
about the violations, joking about being caught. Even at sentencing,
Shortt rationalized that the substances were "healing and repairing,"
not injuring, the athletes. The court was particularly moved by the
conniving nature of the enterprise. As the district court explained:
I heard three of [these audiotapes] with three professional
football players, and it was — I don’t want to say it was a
cockiness, but it was a kind of an almost a flaunting of the
NFL drug testing. And I don’t think I can say he was coach-
ing them on how to avoid detection, but he said we give it
to you in this fashion, they won’t pick it up as much, and
then you come back and we will test you again, if we need
to bump it up or down to avoid detection. I mean, it was a
give and take with the athlete on how to skirt the rules.
Third, the conspiracy reflected a protracted perversion of Shortt’s
medical expertise, as reflected by his extensive planning and by the
efforts he made to conceal his scheme. As the district court noted,
Shortt treated his athletes with "methods designed to conceal the use
of the contraband. And these included things such as monitoring the
ratios of testosterone for precursor and by-product chemicals, avoid-
ing certain anabolic steroids specifically tested for, prescribing non-
detectable human growth hormone."
Fourth, as the district court noted, Shortt’s conspiracy subverted
professional sports as an institution and the roles that professional ath-
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letes play in this country. While Shortt might be correct in placing
fault on that institution and the players, doing so does not excuse his
own contributions. Because professional sports have a special signifi-
cance in our culture and the players serve as role models for the
young, any illegal conduct that has the effect of undermining profes-
sional sports is more serious than illegal conduct with merely local
effects. As the district court stated, "None of us can deny that steroids
in professional sports is a big, big issue in this country right now";
"the victims of crimes such as the one at issue here include not only
the athletes themselves, but also sports fans in living rooms all over
the country."
Fifth and finally, the Sentencing Guidelines’ recommended sen-
tence failed to account for the illegal distribution of human growth
hormone and the distribution of some forms of steroids that were
involved in this case. After reviewing the recommended Guidelines
range, the district court concluded that "the end result is there is no
penalty imposed at all because of use of prescriptions for human
growth hormone."
When considering that Congress provided a maximum sentence of
60 months’ imprisonment for the conduct here, we conclude that the
district court acted reasonably in concluding that Shortt should not be
sentenced at a minimal level. Indeed, one could reasonably conclude
that even 12 months’ imprisonment — a sentence in the bottom 20%
of the statutory range — was inadequate for Shortt’s violations. There
can be little doubt that the sentencing purposes stated in § 3553(a)(2)
of recognizing the seriousness of Shortt’s criminality and promoting
respect for the law are better served by a 12-month sentence than a
6-month sentence.
Our conclusion that the district court’s variance sentence was rea-
sonable is reinforced by the Sentencing Commission’s current judg-
ment about the same offense for which Shortt stands convicted. Under
the current version of the Sentence Guidelines, Shortt would be sen-
tenced within the range of 15 to 21 months’ imprisonment. Moreover,
even this longer recommended sentence still would not take into
account Shortt’s prescriptions for human growth hormone. See
U.S.S.G. § 2N2.1 cmt. n. 4 (2006). The current Sentencing Guide-
lines’ conversion ratio of anabolic steroids to "units" is 20 times
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higher than the 2004 Guidelines. See id. § 2D1.1, cmt. n.F. The cur-
rent Guidelines also provide specific enhancements for using a mask-
ing agent to conceal the use of anabolic steroids and for distributing
steroids to an athlete. See id. §§ 2D1.1(b)(6), (b)(7). Moreover, the
Sentencing Commission’s readjustment of the Sentencing Guidelines
is consistent with Congress’ views, as demonstrated by its enactment
of the Anabolic Steroid Control Act of 2004.
In sum, the sentence of 12 months 1 day imposed by the district
court was not unreasonable, and the district court did not abuse its
discretion in entering a variance sentence in accordance with
§ 3553(a).
Shortt argues that these factors advanced to justify his variance
sentence are inappropriate either because they are already taken into
account in computing the recommended Guideline sentence or they
are inappropriate to consider at all. For instance, he notes:
If concealment of wrongdoing is a basis for a non-guideline
sentence, then virtually every defendant should expect an
upward variance. From the bank robber who wears a mask
to the drug dealer using an alias, concealment of the wrong-
doing is inherent in criminal activity.
This observation is surely true. But it does not address what troubled
the district court. The district court was not focused on the conceal-
ment that attends crime generally but on Shortt’s development of an
unusually extensive program that involved sophisticated forms of
drug delivery, flexible methods of drug application, and precautionary
testing — all aimed at avoiding discovery. The program for avoidance
of discovery was so pervasive that it perverted Shortt’s licit medical
practice, his medical records, and even his employees. It also enlisted
his patients to become participants in the concealment effort. We
believe that these matters were appropriately considered for a vari-
ance sentence and go to the nature of the offense and its seriousness,
factors recognized as appropriate for consideration under § 3553(a).
As a practical matter, extensive efforts to conceal demand greater
punishment, because they make it less likely that authorities will
detect the scheme. Proper deterrence thus requires longer sentences
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for those less likely to get caught. See 18 U.S.C. § 3553(a)(2)(B)
(stating sentencing purpose of deterrence).
Likewise, Shortt argues that the district court inappropriately con-
sidered the quantities of drugs and the number of prescriptions as a
basis for increasing his sentence. He contends that "[t]he court failed
to note that every single one of [the] anabolic steroids is already
accounted for in the defendant’s underlying guidelines." To adjust a
sentence based on a disagreement with the severity of punishment
recommended by the Guidelines for a given quantity of drugs would,
in Shortt’s view, be inappropriate. While we have, indeed, held that
a sentencing court may not second-guess the Sentencing Commis-
sions’ policy judgment of the proper punishment for particular drug
quantities, see United States v. Eura, 440 F.3d 625, 632-33 (4th Cir.
2006), this case presents unique circumstances. The Guidelines’ range
did not reflect the Sentencing Commissions’ considered judgment
because the Commission exercised no judgment on aspects presented
in this case. First of all, while steroids were addressed in the 2004
version of the Sentencing Guidelines, certain forms of steroids were
not, such as creams and lozenges. Even though some form of conver-
sion could be attempted, it necessarily would overlook the different
ways that these various steroid forms function. Second, coupled with
this imperfection in the treatment of steroids, the Sentencing Guide-
lines provided — and continue to provide — no guideline for viola-
tions of 21 U.S.C. § 333(e) (prohibiting the distribution of human
growth hormone). In the absence of a Guideline, the district court ref-
erenced an analogous Guideline, which defined the quantity as a
"loss" paid by the user of the substance. The district court correctly
noted that in this case, however, that method of applying the Guide-
lines provided no enhancement to the sentence, leaving the distribu-
tion of human growth hormone unpunished. Finally, the fact that the
Commission increased the conversion ratios for steroids following the
enactment of the Anabolic Steroid Control Act of 2004 gave the dis-
trict court reason to believe that the 2004 version of the Sentencing
Guidelines for steroids was inadequate.
In addition, we recognize that the Sentencing Guidelines’ recom-
mended range is only one factor among others that must be consid-
ered in determining a sentence under § 3553(a). See 18 U.S.C.
§ 3553(a)(4). In most cases, the Guidelines range adequately weighs
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the particular circumstances of the defendant and the offense. But a
fact that is taken into account in computing a Guidelines range is not
excluded from consideration when determining whether the Guideline
sentence adequately serves the four purposes of § 3553(a)(2). See,
e.g., United States v. Scherrer, 444 F.3d 91, 94-95 (1st Cir. 2006)
(approving a variance sentence justified by the especially heinous
nature of the defendant’s fraudulent schemes, which exploited rela-
tionships of trust); United States v. Williams, 425 F.3d 478, 481-82
(7th Cir. 2005) (approving a variance sentence justified by the defen-
dant’s extremely violent behavior at a young age). At bottom, the sen-
tence must be "sufficient, but not greater than necessary, to comply
with the [four] purposes set forth" in § 3553(a)(2). See 18 U.S.C.
§ 3553(a).
Furthermore, the district court did not focus on quantities as such
but rather on the pervasiveness of Shortt’s entire scheme over time
and geography. Shortt had appeared on HBO to describe his national
practice and stated that athletes came to him from all over the coun-
try. The court also noted that Shortt’s efforts were not just a single,
short-term, out-of-the-trunk venture that ended when the drugs were
gone. Rather, this was an extended, ongoing conspiracy that was inad-
equately measured simply by the drug quantity.
Finally, Shortt argues that consideration of the fact that many of
Shortt’s patients were professional athletes was inappropriate: "With
all due respect to the district court, this factor has absolutely no place
in the sentencing equation. Whether Barry Bond’s home run record
is accorded the same respect as the achievements of Babe Ruth, has
no relevance to the appropriate punishment for Dr. Shortt’s conduct."
In addition, Shortt argues that the athletes were not victims, as the dis-
trict court suggested, but were participants. As Shortt argues:
Each of them was a coconspirator. They sought out Dr.
Shortt for steroids or HGH knowing that their league pro-
hibited their use. Most of their medical records reflect that
their reason for seeking these medicines was for "perfor-
mance enhancement." They willingly used the drugs and
made obscenely large sums of money in the process.
Again, we do not suggest that Shortt’s observations are incorrect;
rather, they miss the point. The district court focused on the fact that
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professional sports draw intense public attention and are an inextrica-
ble part of our national culture. Professional athletes have extraordi-
nary influence on admiring and aspiring young athletes. Shortt’s
destructive influence on our national games is a social consideration
which is both important to the sentencing determination and unac-
counted for in the Sentencing Guidelines. Indeed, this was one of the
very reasons for which Congress enacted the Anabolic Steroid Con-
trol Act, see H.R. Rep. No. 108-461(I), at 4-6 (2004), and the Sen-
tencing Commission amended these particular Sentencing Guidelines,
enhancing the offense level if the defendant distributes the steroids to
an athlete, see U.S.S.G. § 2D1.1(b)(7) (2006). Simply stated, both
Shortt’s criminal conduct and his sentence are public affairs, and the
district court was legitimately concerned that an overly lenient sen-
tence would understate the "seriousness of the offense" and under-
mine "respect for the law." The public visibility of this case also
reenforced the need to stress the "just punishment" purpose of sen-
tencing and its deterrence. See 18 U.S.C. § 3553(a)(2)(A), (B).
The district court considered a properly calculated Sentencing
Guidelines range and, using care and reason, concluded that it did not
adequately serve the primary sentencing purpose stated in
§ 3553(a)(2)(A). We conclude that the district court’s analysis and
detailed findings demonstrate the reasonableness of its variance sen-
tence. Accordingly, its judgment is
AFFIRMED.
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