                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                       File Name: 08a0151p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                      X
                Plaintiff-Appellee/Cross-Appellant, -
 UNITED STATES OF AMERICA,
                                                       -
                                                       -
                                                       -
                                                           Nos. 06-6300/6301
          v.
                                                       ,
                                                        >
 RUSSELL WAYNE HUNT,                                   -
             Defendant-Appellant/Cross-Appellee. -
                                                      N
                        Appeal from the United States District Court
                     for the Middle District of Tennessee at Nashville.
                   No. 04-00135—Aleta Arthur Trauger, District Judge.
                                  Argued: November 28, 2007
                               Decided and Filed: April 11, 2008
                    Before: MARTIN, SILER, and ROGERS, Circuit Judges.
                                       _________________
                                           COUNSEL
ARGUED: Kimberly S. Hodde, HODDE & ASSOCIATES, Nashville, Tennessee, for Appellant.
Jimmie Lynn Ramsaur, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for
Appellee. ON BRIEF: Kimberly S. Hodde, HODDE & ASSOCIATES, Nashville, Tennessee,
Richard J. Braun, BRAUN & CROTWELL, PLLC, Nashville, Tennessee, for Appellant. Jimmie
Lynn Ramsaur, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.
       ROGERS, J., delivered the opinion of the court, in which SILER, J., joined. MARTIN, J.
(pp. 12-15), delivered a separate opinion concurring in part and dissenting in part.
                                       _________________
                                           OPINION
                                       _________________
        ROGERS, Circuit Judge. Following a jury trial, Russell Wayne Hunt was convicted of
health care fraud in violation of 18 U.S.C. § 1347, conspiracy to commit health care fraud in
violation of 18 U.S.C. § 371, and making false statements relating to health care fraud in violation
of 18 U.S.C. § 1035. He was sentenced to five years of probation, a $6,000 fine, a $1,200 special
assessment, and restitution in the amount of $151,161.78, to be paid jointly and severally with his
co-conspirators. Hunt now argues that his convictions should be overturned because: (1) his Sixth
Amendment right to present his own witnesses and establish his defense was violated by the
Government’s ensuring that two primary defense witnesses would not be available to testify at trial;
(2) the district court erred by refusing to admit exculpatory hearsay statements made by a co-
defendant; and (3) there was insufficient evidence to support his convictions. In the alternative,

                                                 1
Nos. 06-6300/6301                   United States v. Hunt                                     Page 2


Hunt contends that the restitution order must be modified because the district court incorrectly
calculated the amount owed. For its part, the Government, in a cross-appeal, contends that the
sentence imposed by the district court is substantively unreasonable. Hunt’s arguments are
unavailing, but the Government is correct that his sentence is substantively unreasonable. Therefore,
we affirm Hunt’s convictions while vacating his sentence and remanding the case for resentencing.
                                                  I.
        At the times relevant to this case, Russell Wayne Hunt was a physician licensed to practice
medicine in the state of Tennessee. This case revolves around his involvement with mobile
diagnostic testing companies owned by Mark Noble, who pled guilty to making false statements
related to health care matters. From 1999 until 2001, Noble was the operator and part owner of a
mobile diagnostic testing company called Vascular Check, Inc. (“VCI”), and between 2002 and
2003, he was the owner and operator of an identical company known as Health Tech Screenings
(“HTS”). Those companies performed carotid artery ultrasound tests, which allow doctors to
determine whether there is blockage in the carotid artery that could lead to a stroke. The tests were
performed throughout the state of Tennessee, typically at places like senior citizens’ centers and
trade shows. VCI and HTS both billed Medicare and Blue Cross/Blue Shield for the services.
Medicare and private insurance only pay for diagnostic tests that have been determined to be
medically necessary by a treating physician or a nurse practitioner or physician’s assistant working
under the license of a treating physician.
        Hunt became acquainted with Noble in 1999, shortly after Hunt had opened his own private
practice. Noble informed Hunt about the health fairs and corporate events that Noble’s company
attended, and Hunt decided that setting up a booth at such events would be a good way to market
his new practice. Hunt’s attendance at those events allowed him to become more familiar with
Noble’s enterprises by observing them. Eventually, Noble asked if Hunt would be willing to
evaluate patients on behalf of Noble’s company at those events. Hunt’s role was to review a medical
history questionnaire filled out by a patient, perform an examination on the patient, and then make
a determination as to whether the carotid artery ultrasound test was medically necessary.
        At some point in 2001, Hunt informed Noble that he was too busy in his private practice to
continue seeing patients on behalf of Noble’s company. Hunt provided Noble with a list of nurse
practitioners and suggested that Noble hire someone off that list to see patients under Hunt’s medical
license. Noble never hired a nurse practitioner though. Instead, Noble simply began bringing the
medical history questionnaires and the unsigned orders to Hunt after the tests had already been
performed, and Hunt would then sign the orders without having seen the patients. After Hunt signed
the orders without having seen or examined the patients, Noble would submit claims to Medicare
in order to receive payment for the tests. For his trouble, Hunt received $10 per signature from
Noble. If a particular patient had private insurance through Blue Cross/Blue Shield, Noble would
submit a claim to that company for the test, and Hunt would also submit a claim for his
“consultation” with the patient. In the claims that he submitted to Blue Cross/Blue Shield, Hunt
billed under a consultation code that requires a face-to-face examination of the patient.
       In 2002, the government began investigating Noble and his companies on suspicion of
Medicare fraud. During the investigation, Hunt told special agents from the Department of Health
and Human Services that he was not paid $10 per signed order, and that all of the tests had been
ordered before they were performed. Neither statement was true. In addition, Hunt claimed that a
nurse practitioner working under his license was examining the patients, although he admitted that
he had never met that person, did not know that person’s name, and had not confirmed that person’s
credentials.
Nos. 06-6300/6301                         United States v. Hunt                                               Page 3


        As a result of the investigation, Hunt, Noble, and Patricia Reed, one of Noble’s employees,
were indicted in August of 2004 for health care fraud, conspiracy to commit health care fraud, and
making false statements relating to health care matters. Noble subsequently pled guilty to making
false statements relating to health care matters, and he was sentenced to 37 months in prison, three
years of supervised release, and payment of restitution in the amount of $242,738. Reed pled guilty
to assisting in making a false statement involving a federal health care program, and she was
sentenced to four years of probation and ordered to pay restitution in the amount of $19,000. Dr.
Bartee, another physician who signed orders for Noble’s companies, negotiated a pretrial diversion
agreement with the Government. Unlike Hunt, Dr. Bartee appears to have physically examined
patients before ordering the tests, and he stopped signing orders for Noble in 2002 after becoming
suspicious about the legality of Noble’s conduct.
        A superseding indictment of Hunt was issued on July 20, 2005. Hunt maintained his
innocence and proceeded to trial. During the trial, he sought to have admitted into evidence two
hearsay statements from an affidavit made by Noble during the investigation. In those statements,
Noble said, “I don’t feel Doctor Russell Hunt, Dr. Moore, Dr. Bartee1did anything wrong,” and “Dr.
Hunt does not know that RN Haines [sic] is represented as a PA.” The district court ruled both
statements inadmissible. Hunt also sought to elicit testimony from Noble and Dr. Bartee, but they
both refused to testify on Fifth Amendment grounds. Dr. Bartee refused to testify because of
concerns about how his testimony might affect his diversion agreement, which had not been
finalized by the time of trial, and Noble refused to testify because of his exposure to potential
prosecution in other districts.
         After the jury convicted Hunt on all counts, his sentencing hearing was held on September
1, 2006. Although the Guidelines Range was from 27 to 33 months of imprisonment, the district
court sentenced Hunt to five years of probation. In reaching that decision, the district court engaged
in a lengthy discussion of the evidence that it believed to be indicative of a lack of fraudulent intent
on Hunt’s part. Ultimately, the district court concluded that Hunt had been “hoodwinked” by Noble.
The district court also expressed great concern about the fact that several individuals whom the court
considered to be equally culpable had not been prosecuted. The district court also appears to have
given weight to the fact that Hunt would probably lose his medical license, as well as the fact that
the carotid artery ultrasound tests performed on the patients did not hurt anyone and may have
significantly helped many individuals. The district court also considered that Hunt was a well-liked
and well-respected physician who worked hard to break out of his humble background. In addition
to probation, the district court ordered Hunt to pay a $6,000 fine, a $1,200 special assessment, and
restitution in2 the amount of $151,161.78, which he would owe jointly and severally with the other
defendants. Hunt was further ordered to pay $50,000 of the restitution within 60 days.
                                                          II.
        The Government did not violate Hunt’s Sixth Amendment right to present his own witnesses
and establish a defense because there were no prosecutorial “actions aimed at discouraging defense
witnesses from testifying . . . .” United States v. Emuegbunam, 268 F.3d 377, 400 (6th Cir. 2001)
(citing Webb v. Texas, 409 U.S. 95, 98 (1972); United States v. Thomas, 488 F.2d 334, 336 (6th Cir.


         1
          The latter statement refers to Diane Haynes, a registered nurse who worked for Noble. She was occasionally
represented to patients as a physician’s assistant.
         2
            Hunt received $7,678.88 from Blue Cross/Blue Shield for the “consultations” that he billed, and he was paid
a total of $3,710 by Noble’s companies. Therefore, Hunt’s profits were at least $11,388.88. Noble’s companies were
paid a total of $113,247.85 from Medicare for the tests ordered by Hunt, and Noble’s companies were also paid a total
of $30,235.05 from Blue Cross/Blue Shield for tests ordered by Hunt. Altogether, the total loss sustained by Medicare
and Blue Cross/Blue Shield as a result of Hunt’s actions was $151,161.78. Hunt does not dispute these calculations.
Nos. 06-6300/6301                           United States v. Hunt                                                  Page 4


1973)). It is true that two potential defense witnesses — Mark Noble and Dr. Bartee — refused to
testify on Fifth Amendment grounds, but the Government did nothing to discourage or inhibit them
from testifying. Indeed, the Government was not even the cause-in-fact of their refusals to testify.
         Hunt argues that the Government deprived him of his rights by intentionally placing Noble
and Dr. Bartee in positions where they would be likely to assert their Fifth Amendment rights not
to testify. Specifically, Hunt points out that the Government continued Noble’s sentencing hearing
until after Hunt’s trial and that the Government had failed to reach a diversion agreement with Dr.
Bartee prior to Hunt’s trial. This argument, however, ignores key facts. First, the Government said
at the pretrial hearing that it had no objection to sentencing Noble before the trial. Noble’s lawyer,
however, indicated to the court that his client would refuse to testify regardless of whether or not
he had been sentenced    because there was a chance that he might be prosecuted for related conduct
in other districts.3 Second, the Government and Dr. Bartee failed to reach an agreement on pretrial
diversion prior to Hunt’s trial not because of any fault on the part of the Government, but because
Dr. Bartee himself was delaying the process so that he could determine how best to structure the
agreement in order to avoid disciplinary issues with the Tennessee Board of Medical Examiners.
Thus, because the facts indicate that the Government did not do anything to ensure that Noble and
Dr. Bartee would be unavailable to testify at trial, the Government did not interfere
unconstitutionally with Hunt’s right to present his own witnesses and establish his defense.
                                                           III.
       There was also no error in the district court’s refusal to admit the two hearsay statements
from Noble’s affidavit. Hunt alleges that the statements are admissible under Rule 804(b)(1) or Rule
807 for the truth of the matter asserted, or in the alternative, under Rule 806 for the purpose of
impeachment. We review such admissibility determinations for abuse of discretion. United States
v. Ganier, 468 F.3d 920, 925 (6th Cir. 2006). Because neither statement is admissible under any of
the Federal Rules of Evidence, it cannot be said that the district court abused its discretion in
excluding them.
        Preliminarily, we question whether the affidavit statements satisfy the general requirements
for admissibility. The statement that “Dr. Hunt does not know that RN Haines [sic] is represented
as a PA,” is arguably not admissible as not based on the witness’s personal knowledge. Fed. R.
Evid. 602. Noble’s statement that “I don’t feel Doctor Russell Hunt, Dr. Moore, Dr. Bartee did
anything wrong,” is arguably not admissible as an opinion by a lay witness that is not “helpful to
a clear understanding of the witness’ testimony or the determination of a fact in issue.” Fed. R.
Evid. 701; see also Torres v. County of Oakland, 758 F.2d 147, 150 (6th Cir. 1985) (a lay opinion
is not helpful if it “would merely tell the jury what result to reach . . . .”).




         3
           Noble was exposed to further prosecution in the Eastern District of Tennessee because he committed some
of the same criminal acts in that district as he did in the Middle District. Therefore, his assertion of the Fifth Amendment
was valid because he had reasonable cause to apprehend a real danger of incriminating himself if he were to be
prosecuted in the Eastern District. See In re Morganroth, 718 F.2d 161, 167 (6th Cir. 1983). Hunt contends, however,
that Noble’s assertion of his Fifth Amendment right was not valid because the policies expressed in the U.S. Attorney
Manual made it highly unlikely that Noble would actually be prosecuted in the Eastern District. That argument ignores
the fact that the U.S. Attorney Manual is intended only for internal guidance and does not affect the rights of parties.
See U.S. Attorney Manual, § 9-2.031(F). Therefore, Hunt cannot force Noble to testify simply because the Manual
expresses a general policy against prosecuting him in another district. Aside from that fact, however, the Manual
provides that the general policy can be disregarded in certain situations. It is possible that Noble’s testimony could
uncover new facts or paint his conduct in a new manner so as to place him in one of those scenarios. Moreover, Noble’s
situation could have fit within one of those scenarios even without any new information arising from his testimony. As
a result, Noble had reasonable cause to apprehend a real danger of incriminating himself.
Nos. 06-6300/6301                    United States v. Hunt                                        Page 5


        Assuming, however, that the affidavit statements meet the general admissibility requirements
of Rules 602 and 701, they are nonetheless not admissible because they are hearsay. First, the prior
testimony exception is not applicable. Rule 804(b)(1) permits hearsay to be received into evidence
if the declarant is unavailable to testify as a witness and the hearsay was given as testimony “at
another hearing of the same or a different proceeding, or in a deposition taken in compliance with
law in the course of the same or another proceeding . . . .” Fed. R. Evid. 804(b)(1). The affidavit
in question was not given at a hearing or in a deposition. Instead, it was made during an interview
with government agents. A hearing connotes some kind of adversarial proceeding presided over by
an impartial third party, while “deposition” is a term of art referring to the out-of-court adversarial
questioning of a witness under oath. Writing and signing a narrative affidavit during an interview
with Government officers plainly is not the same as testimony given during a hearing or deposition.
        Furthermore, the statements fail Rule 804(b)(1)’s additional requirement that the party
against whom the former testimony is offered have had “an opportunity and similar motive to
develop the testimony by direct, cross, or redirect examination.” Id. Although Hunt is required to
show that the Government had a similar motive to develop the testimony at trial as it had at the time
the affidavit was made, see United States v. Salerno, 505 U.S. 317, 322 (1992), he has presented no
argument on that issue. Indeed, it is unlikely that he could demonstrate that the Government agents
who were conducting the investigation had a similar motive to develop the statements as the
prosecution had at trial. The motives of Government agents who are talking to a suspect during an
investigation are different from the motives of prosecutors at trial. In the former situation, the
Government agents desire to obtain information from the suspect without revealing the information
that they already have. Therefore, it is not necessarily in their best interest to cross examine the
declarant or to try to paint a picture of the truth as they understand it. At trial, however, it is in the
Government’s best interest to lay all of its cards on the table so that the unvarnished truth can be
presented publicly to the jury. Because Hunt has not demonstrated that the Government had a
similar motive, and because the statements were not given at a hearing or deposition, the statements
are not admissible under Rule 804(b)(1).
         Additionally, the statements are not admissible under Rule 807, the residual hearsay
exception. Rule 807 allows for the admission of hearsay statements that are not specifically covered
by Rule 803 or 804 so long as: (1) they have equivalent circumstantial guarantees of trustworthiness,
(2) they are offered as evidence of a material fact, (3) they are more probative on the point for which
they are offered than any other evidence which the proponent can procure through reasonable
efforts, and (4) their admission will best serve the general purposes of the Rules of Evidence and the
interests of justice. Fed. R. Evid. 807. The district court in this case made a finding that the hearsay
statements at issue lack trustworthiness, and Hunt has not demonstrated that finding to be clearly
erroneous. Hunt argues that it is reasonable to conclude that the statements are truthful because they
tend to incriminate the declarant, Noble, while exculpating Hunt. However, it is at least equally
reasonable to conclude that the statements are not trustworthy. It would not be bizarre for an
individual to lie in order to protect another individual with whom he has a business relationship.
More importantly, a statement is not rendered trustworthy simply by the fact that it tends to
exculpate one other than the declarant. This principle is seen clearly in Rule 804(b)(3), which says
that a statement that exposes the declarant to criminal liability while exculpating the accused is not
admissible unless corroborating circumstances indicate its trustworthiness. The absence of such
corroborating circumstances in this situation indicates that the affidavit statements lack
circumstantial guarantees of trustworthiness equivalent to those found in Rule 803 or 804. Thus,
it is not clear that the statements bear the requisite trustworthiness. The district court accordingly
made a reasonable decision to exclude the statements on the basis of untrustworthiness. The
reasonableness of that decision leads to the conclusion that it was not an abuse of discretion.
       The statements are also not admissible under Rule 806 for the purpose of impeachment. Rule
806 allows for the impeachment of hearsay evidence in any manner that would be allowed if the
Nos. 06-6300/6301                   United States v. Hunt                                       Page 6


hearsay declarant had testified as a witness, and Hunt argues that the two statements at issue should
be admitted to impeach certain statements made by Noble on an undercover video that was made
by the Government during its investigation and shown to the jury at trial. At one point on the video,
Noble states that Hunt sometimes examines the patients himself and sometimes sends a physician’s
assistant under his license. Hunt argues that this statement is inconsistent with Noble’s affidavit
statement about RN Haynes, and that the affidavit statement could therefore be introduced to
impeach the videotaped statement. The argument fails because there does not appear to be any
inconsistency between the two statements. It is entirely possible for Hunt to send a physician’s
assistant under his license while also being unaware that RN Haynes is sometimes represented as
a physician’s assistant. In any event, the district court’s determination that there were no
inconsistencies between the statements was neither a clearly erroneous determination nor an abuse
of discretion. Because it is not clear that the statements are inconsistent, the district court properly
determined that the affidavit statement about RN Haynes was not admissible under Rule 806. Hunt
also alleges that Noble’s statement that Hunt did not do anything wrong is inconsistent with various
statements on the videotape concerning Hunt’s knowledge, but he fails to point out any particular
inconsistencies. We therefore uphold the district court’s ruling on that issue as well.
        Finally, the Confrontation Clause does not compel the admission of the affidavit statements
for the purpose of impeachment. Although Hunt is correct that the purpose of the Confrontation
Clause is to guarantee defendants an opportunity to cross-examine and attack the credibility of
witnesses and hearsay declarants, it is also true that the Confrontation Clause leaves the trial judge
with authority to place reasonable limits on cross-examination. See Delaware v. Van Arsdall, 475
U.S. 673, 679 (1986). What is important is that the defendant have “an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to whatever extent,
the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam). Hunt had
ample opportunity throughout the trial, particularly during his own testimony, to engage in the
effective impeachment of Noble’s credibility. Therefore, the district court’s exclusion of the
inadmissible affidavit statements was not a violation of Hunt’s confrontation rights.
                                                  IV.
       Hunt’s sufficiency-of-the-evidence argument also fails because a “rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979). In reviewing the sufficiency of the evidence, this court must view the
evidence in the light most favorable to the prosecution. See id. A defendant faces a very heavy
burden in challenging the sufficiency of the evidence, see United States v. Garrido, 467 F.3d 971,
984 (6th Cir. 2006) (citing United States v. Tocco, 200 F.3d 401, 424 (6th Cir. 2000)), and an
analysis of Hunt’s three offenses shows that he has not met that burden.
                                        A. Health Care Fraud
        There is sufficient evidence to support Hunt’s conviction of health care fraud because
circumstantial evidence allows a rational trier of fact to find beyond a reasonable doubt that Hunt
caused bills to be submitted to Medicare and Blue Cross/Blue Shield for patients that he had never
seen and tests that had not been determined to be medically necessary. To obtain a conviction for
health care fraud under 18 U.S.C. § 1347, the Government must prove that Hunt: “(1) knowingly
devised a scheme or artifice to defraud a health care benefit program in connection with the delivery
of or payment for health care benefits, items, or services; (2) executed or attempted to execute this
scheme or artifice to defraud; and (3) acted with intent to defraud.” United States v. Raithatha, 385
F.3d 1013, 1021 (6th Cir. 2004), vacated on other grounds, 543 U.S. 1136 (2005). Additionally,
one who aids and abets another in committing an offense is punishable as a principal. 18 U.S.C. § 2.
Aiding and abetting requires: “(1) an act by a defendant which contributes to the execution of a
crime; and (2) the intent to aid its commission.” United States v. Davis, 306 F.3d 398, 409 (6th Cir.
Nos. 06-6300/6301                   United States v. Hunt                                       Page 7


2002) (quoting United States v. Lowery, 60 F.3d 1199, 1202 (6th Cir. 1995)). Thus, regardless of
whether Hunt was actually the person who devised the fraudulent scheme, he is still guilty of health
care fraud because the evidence is sufficient to support a finding that he contributed to the execution
of the scheme with the intent to defraud.
        Medicare and private insurance will only pay for diagnostic tests that have been ordered as
medically necessary by a treating physician or a nurse practitioner or physician’s assistant working
under such a physician. There is ample evidence that Hunt defrauded Medicare and Blue Cross/Blue
Shield by causing claims to be submitted for tests that had not been determined to be medically
necessary. The Government’s expert testified at trial that a determination as to medical necessity
could not have been made solely based on the questionnaires filled out by the patients. Therefore,
an in-person examination would have been required to make that determination. Hunt does not
dispute that he did not examine the patients, but instead he claims that he lacked the requisite intent
to defraud because he had a good-faith — albeit erroneous — belief that the patients were being
examined on-site by a nurse practitioner. A rational trier of fact, however, could be convinced
beyond a reasonable doubt that Hunt’s claim is a sham. Tennessee law requires the relationship
between a nurse practitioner and supervising physician to be governed by a written protocol, and
both parties are required to review the protocol and sign a form saying that they understand it. In
his trial testimony, Hunt admitted that he never went over any such protocol with the nurse
practitioner who was allegedly seeing patients on his behalf. Because he never reviewed the
protocol with the nurse practitioner — or even interacted with the alleged nurse practitioner in any
way — a rational jury could infer that Hunt knew that the nurse practitioner did not exist. That
conclusion is also supported by Hunt’s unbelievable assertion that he submitted a list of names to
Noble and believed on blind faith that Noble had hired a nurse practitioner from that list. It is highly
unlikely that a physician would allow a nurse practitioner to practice under his license without ever
having checked the credentials — or the identity, for that matter — of the nurse practitioner. In
other words, a jury could rationally conclude that Hunt was not concerned about the identity or
credentials of the nurse practitioner because he knew that the nurse practitioner did not exist.
Therefore, a rational jury could conclude that Hunt ordered tests with knowledge that the patients
had never been examined by him or a nurse practitioner or physician’s assistant working under his
license. It follows that there is sufficient evidence to conclude that Hunt intentionally contributed
to the commission of health care fraud by causing claims to be submitted on the false pretenses that
they had been determined to be medically necessary by a qualified medical professional.
        The conclusion that Hunt acted with intent to defraud Blue Cross/Blue Shield is further
buttressed by the fact that he submitted claims under a consultation code requiring a face-to-face
examination of the patients. Julie Davis, Hunt’s billing clerk, testified that it was Hunt who decided
which codes to bill under. When Davis’s testimony is combined with the rational conclusion that
Hunt knew that neither he nor a nurse practitioner had seen the patients, a rational trier of fact could
easily come to the conclusion that Hunt knowingly submitted improper billing codes in order to be
paid for work that he had not actually performed. Hunt, however, claims that he was
unknowledgeable about billing matters, that he relied completely on Davis, and that he made the
innocent mistake of billing for a “consultation” when he should have billed for a “remote office
visit.” He further argues that the innocence of the mistake is demonstrated by the fact that the
consultation code pays slightly less money than the remote office visit code. There is no evidence,
however, to demonstrate that Hunt would have been entitled to receive payment even under the
remote office visit code. There is no proof that a face-to-face examination is not required under the
remote office visit code. On its face, the term “remote office visit” implies that the billing physician
visited with the patient. The fact that the remote office visit code pays more than the consultation
code is meaningless if Hunt was not entitled to bill for either code because he did not conduct a face-
to-face examination of the patients. Thus, the evidence indicates that Hunt’s fraudulent bills to
BlueCross/Blue Shield were not simply innocent mistakes.
Nos. 06-6300/6301                   United States v. Hunt                                      Page 8


         The absence of innocent mistake in Hunt’s conduct is further confirmed by a phone call that
he made to Laura Jarrell in the spring of 2005, which was after his indictment, but before trial.
Jarrell testified that she received a strange and agitated answering machine message from Hunt and
that when she returned the call, his office said that he just wanted to know if Jarrell remembered
seeing Hunt at the 2002 Southern Women’s Show, where Jarrell had received a carotid artery
ultrasound test from HTS. Hunt’s call to Jarrell could reasonably be interpreted as displaying
consciousness of guilt and as an attempt to conceal unlawful activity by convincing Jarrell that she
had seen Hunt in person. Such an interpretation constitutes valid circumstantial evidence of intent
to defraud because this court has held that intent can be inferred “from efforts to conceal the
unlawful activity . . . .” See United States v. Davis, 490 F.3d 541, 549 (6th Cir. 2007).
       Finally, a critical consideration in weighing the sufficiency of the evidence on the health care
fraud conviction is the fact that the case against Hunt essentially boils down to the jury’s choice
between believing Hunt’s claims to have made innocent mistakes and the Government’s
circumstantial proof that he knowingly committed fraud. After witnessing Hunt’s demeanor and
testimony, the jury decided that it simply did not believe his excuses. The jury found the
Government’s story to be more credible, and that decision is entitled to a high degree of deference.
See United States v. Latouf, 132 F.3d 320, 330-31 (6th Cir. 1997). Hunt has not presented an
argument persuasive enough to overcome that deference.
                           B. Conspiracy to Commit Health Care Fraud
         Hunt’s conspiracy conviction is supported by sufficient evidence because there was
circumstantial evidence that Hunt and Noble tacitly agreed to defraud Medicare and private
insurance. A conspiracy charge requires the Government to “prove an agreement between two or
more persons to act together in committing an offense, and an overt act in furtherance of the
conspiracy.” United States v. Crossley, 224 F.3d 847, 856 (6th Cir. 2000) (quoting United States
v. Milligan, 17 F.3d 177, 182 (6th Cir. 1994)). The Government need not show a formal written
agreement. See id. Instead, it is sufficient to demonstrate a tacit or mutual understanding among
the parties. See id. (quoting United States v. Ables, 167 F.3d 1021, 1031 (6th Cir. 1999)).
Likewise, direct evidence of the conspiracy is not necessary. It is enough to present “[c]irumstantial
evidence which a reasonable person could interpret as showing participation in a common plan . . . .”
Id. (citing Ables, 167 F.3d at 1031).
        A chain of reasonable inferences leads to the rational conclusion that Hunt tacitly agreed to
sign orders for patients he had never examined so that he and Noble could submit bills for their
services to Medicare and private insurance. First, the evidence supports a finding that Hunt knew
Noble was billing Medicare and private insurance and that the orders needed to be signed by a
physician in order for those bills to be paid. Hunt explicitly admitted that he knew that Noble was
billing private insurance, and he also admitted that he saw the Medicare patients’ Medicare cards
because they were attached to the forms that the patients had filled out. It is hard to imagine what
Hunt thought Noble was doing with the patients’ Medicare cards if not billing for the tests. Based
on the previously reached conclusion that a rational jury could determine that Hunt knew that neither
he nor a nurse practitioner had examined the patients, it is rational to conclude that Hunt understood
that his role was to sign the orders so that Noble could get paid for tests that had not been validly
ordered. Therefore, a rational trier of fact could come to the conclusion that Hunt tacitly agreed to
a fraudulent scheme and then committed an overt act in furtherance of it by ordering the tests.
Hunt’s membership in the conspiracy is supported by the fact that he signed the orders after the tests
had been performed, and by the fact that Noble paid him $10 per signature.
Nos. 06-6300/6301                    United States v. Hunt                                        Page 9


                        C. False Statements Relating to Health Care Matters
        To establish guilt under 18 U.S.C. § 1035 for making false statements relating to health care
matters, the Government must prove that the defendant knowingly and willfully made false
statements or representations “‘in connection with the delivery of or payment for health care
benefits, items, or services’ and in a ‘matter involving a health care benefit program.’” United States
v. Canon, 141 F. App’x 398, 405 (6th Cir. 2005) (quoting 18 U.S.C. § 1035(a)(2)). As the foregoing
analysis demonstrates, a rational jury could conclude that Hunt knowingly and willfully made false
representations of the medical necessity of the tests by signing orders without actually examining
the patients or truly determining that the tests were medically necessary. Moreover, the jury could
reasonably conclude that he made those misrepresentations so that Noble’s company could receive
payment. Thus, it would be reasonable for a jury to find that the misrepresentation occurred in
connection with the payment for health care benefits. The foregoing analysis also demonstrates that
Hunt fraudulently submitted claims to Blue Cross/Blue Shield under a consultation code requiring
a face-to-face examination of the patient when no such examination had occurred. Therefore, a
rational jury could also find that Hunt knowingly and willfully made false statements in order to
obtain payment from Blue Cross/Blue Shield for services that he did not perform.
                                                   V.
         The district court’s restitution order was not an abuse of discretion in this case. Hunt argues
that the district court erroneously calculated the amount of restitution that he owes. We review such
a challenge for abuse of discretion. See United States v. Guardino, 972 F.2d 682, 686 (6th Cir.
1992). An abuse of discretion occurs when the reviewing court is left with the “definite and firm
conviction that the trial court committed a clear error of judgment.” Dubay v. Wells, 506 F.3d 422,
431(6th Cir. 2007) (quoting Revis v. Meldrum, 489 F.3d 273, 280 (6th Cir. 2007)).
         The district court properly ordered Hunt to pay restitution in the full amount of the losses that
he caused Medicare and Blue Cross/Blue Shield to suffer. District courts are required to order
restitution in the full amount of each victim’s loss. See 18 U.S.C. § 3664(f)(1)(A). The term
“victim” is defined as “a person directly and proximately harmed” by a defendant’s offense.” 18
U.S.C. § 3663A(a)(2). Because Medicare and Blue Cross/Blue Shield would not have paid for the
tests but for the presence of Hunt’s signature on the orders, Hunt was the direct and proximate cause
of the harm suffered by those entities. The district court was therefore correct to order Hunt to pay
restitution to those entities in the full amount of the losses that he caused. Hunt does not question
the district court’s calculation of the losses sustained by Medicare and Blue Cross/Blue Shield, nor
does he argue that he should not have to pay restitution at all. Instead, he claims that he should only
have to make restitution for the $7,678.88 that he personally received from Blue Cross/Blue Shield.
That argument is plainly wrong because the statute says that Hunt must pay restitution for all of the
losses that he caused, not simply the losses that wound up in Hunt’s own pocket.
         In addition, the district court was within its discretion to order Hunt to pay $50,000 of the
restitution within 60 days. Section 3664(f)(2) provides that once the amount of restitution has been
determined, the district court shall specify “the manner in which, and the schedule according to
which, the restitution is to be paid . . . .” Section 3664(f)(2)(A) requires the district court in making
that determination to take into account the financial resources of the defendant. Therefore, it was
not, as Hunt contends, an abuse of discretion for the district court to order him to pay $50,000 within
60 days based on the fact that he has substantial financial resources.
       Moreover, the district court did not abuse its discretion by ordering joint and several liability.
In cases involving multiple defendants, § 3664(h) explicitly gives district courts discretion as to
whether they should apply joint and several liability or whether liability should be apportioned
among the defendants based on their economic circumstances and their respective contributions to
Nos. 06-6300/6301                    United States v. Hunt                                      Page 10


the victims’ losses. There is nothing to suggest that the district court abused its discretion by
ordering joint and several liability in this case.
                                                  VI.
        Lastly, although the question is close because of the limited abuse-of-discretion review
prescribed by Gall v. United States, __ U.S. __, 128 S. Ct. 586, 597 (2007), the Government is
correct that Hunt’s sentence is substantively unreasonable. A district court imposes a substantively
unreasonable sentence, and thereby abuses its discretion, when it bases the sentence on
impermissible factors, see United States v. Brown, 501 F.3d 722, 724 (6th Cir. 2007), and it appears
that the district court may have done that in relying on indications that Hunt was not guilty as found
by the jury.
         The district court appears to have relied in substantial part on its doubt that Hunt intended
to commit fraud. If the district court did so rely, then it is necessary for us to remand under the
abuse-of-discretion scope of review. This is because it would be improper for the judge in
sentencing to rely on facts directly inconsistent with those found by the jury beyond a reasonable
doubt. Indeed, we have stated repeatedly, albeit outside the sentencing context, that a district court
abuses its discretion when it relies on clearly erroneous facts. See Black Law Enforcement Officers
Ass’n v. City of Akron, 824 F.2d 475, 479 (6th Cir. 1987) (citing Christian Schmidt Brewing Co. v.
G. Heileman Brewing Co., 753 F.2d 1354, 1356 (6th Cir. 1985)). And a factual determination is
necessarily clearly erroneous where a jury has previously found to the contrary beyond a reasonable
doubt. Nothing in § 3553(a) suggests that Congress intended that sentencing judges should rely on
a defendant’s innocence when the defendant has already been found guilty beyond a reasonable
doubt. Moreover, 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.
       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. J.A. 809.
        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.
J.A. 811. 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.
Nos. 06-6300/6301                   United States v. Hunt                                      Page 11


               The jury found he had fraudulent intent, but the court can certainly consider
       those things in sentencing despite the jury’s finding.
J.A. 816-17 (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.” J.A. 818.
        These statements, in the context of the general tenor of the district court’s remarks, see J.A.
813-18, 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.
         The defendant here has been excused from any imprisonment, despite a Guidelines range of
27 to 33 months. That fact alone, as the Supreme Court’s recent holding in Gall makes clear, is not
enough to conclude that the sentence is unreasonable. The Court in Gall moreover directs us to
accord great deference to district court sentencing determinations under the abuse of discretion
standard. But if the standard of review is to have any teeth, it has to require at least a remand where
the district court appears to have relied upon factors that cannot be legitimately relied upon. This
case is unlike the particular facts of Gall because Gall’s lenient sentence was not based on the
district court’s consideration of Gall’s lack of culpability. Instead, the district court in Gall merely
considered numerous facts indicating that Gall had redeemed himself since the time of his offense.
See Gall, 128 S. Ct. at 593. The district court in Gall did not appear to rely on a consideration that
Gall was innocent of the crime for which he stood convicted.
                                                 VII.
      For the foregoing reasons, Russell Wayne Hunt’s convictions are AFFIRMED, his sentence
is VACATED, and the case is REMANDED.
Nos. 06-6300/6301                   United States v. Hunt                                      Page 12


                    _______________________________________________
                     CONCURRING IN PART, DISSENTING IN PART
                    _______________________________________________
        BOYCE F. MARTIN, JR., Circuit Judge, concurring in part and dissenting in part. I concur
in the majority with respect to everything but the reversal of Hunt’s sentence. Because I believe the
majority is in conflict with the Supreme Court’s recent decision in Gall v. United States, 128 S. Ct.
586 (2007), I respectfully dissent from its reversal of Hunt’s sentence.
                                                   I.
         The majority holds that it was substantively unreasonable for the district court to rely on an
impermissible factor in determining Hunt’s sentence. The impermissible factor the majority hangs
its hat on is what it has termed Hunt’s “innocence.” This is the majority’s mis-labeling of the fact
that the district court found Hunt to be less culpable than other defendants involved in the fraudulent
scheme and that the evidence against him was objectively weaker than that against other defendants.
The district court did not rely on his “innocence;” Hunt was found guilty by a jury and that
conviction will stay with him for the rest of his life. Instead, after a thorough and thoughtful
analysis of the § 3553(a) factors, the district court found Hunt less culpable and sentenced him
accordingly. That is not impermissible, and tellingly, the majority is unable to point to a single
sentencing case in support of its holding.
        The majority’s mischaracterization of the district court’s reasoning avoids the Supreme
Court’s holding in Gall, and this Court’s own recent decision in United States v. Grossman, --- F.3d
----, No. 06-2310 slip op., 2008 WL 160612, at *4 (6th Cir. Jan. 18, 2008), both of which mandate
that we give due deference to reasoned and reasonable sentencing decisions of district courts even
when we, as an appellate court, may have chosen a different sentence. Instead of abiding by this
clear standard of review, the majority has concocted a new impermissible factor which renders
Hunt’s sentence substantively unreasonable. But this mischaracterization of the district court’s
reasoning does not stand up to careful scrutiny.
        The Supreme Court recently laid out the proper manner in which a district court should
sentence a defendant. Gall, 128 S. Ct. at 596-97. Procedurally, the district court must properly
calculate the guidelines range, id. at 596, give “both parties the opportunity to argue for whatever
sentence they deem appropriate,” id., and consider “all of the § 3553(a) factors to determine
whether they support the sentence requested by the parties,” id. A district court must then “make
an individualized assessment based on the facts presented,” id. at 596-97, regardless of whether the
sentence is above, below, or within the guidelines, id. After Gall, the calculation and analysis of the
correct guidelines range is merely one of the several factors to be considered, id.; see also 18 U.S.C.
§ 3553(a), and is not controlling or determinative of the sentence given. Finally, after deciding on
a sentence, a district court is required “to adequately explain the chosen sentence,” Gall, 128 S. Ct.
at 597, “[r]egardless of whether the sentence imposed is inside or outside the Guidelines range . . . ,”
id.
        Because the majority has focused on the district court’s reliance of what it has termed an
impermissible factor under § 3553(a), I will carefully lay out the analysis undertaken by the district
court under the § 3553(a) factors in reaching its sentencing decision. After doing so, I believe it is
patently obvious that the district court did not rely on an impermissible factor, but rather merely
found Hunt less culpable than other defendants and sentenced him accordingly.
        I begin with the first factor under § 3553(a), “the nature and circumstances of the offense and
the history and characteristics of the defendant.” The district court found that Hunt’s prosecution
Nos. 06-6300/6301                   United States v. Hunt                                     Page 13


and conviction was driven by his co-defendant who pled guilty and whose actions were far more
egregious. The district court struggled with Hunt’s motive for the crime given the dearth of
evidence regarding his criminal intent. He made very little money ($11,000) off of the scheme when
compared to his overall practice which made several hundred thousand dollars a year. The district
court found that Hunt was hoodwinked by his co-defendant Mark Noble, the ring-leader of the
fraudulent scheme who the court termed “a snake-oil salesman, a medicine man.” The district court
found Hunt to be naive, overly trusting, and unknowledgeable about the business part of the practice.
The district court also found that the evidence was very weak regarding Hunt’s fraudulent intent.
The district court also found that Hunt’s actions caused no harm to any patients, and in fact may
have been beneficial to several patients. The district court took into account Hunt’s history and
found he had a humble background, was the first person in his family to attend college, and that he
had developed a successful practice. The district court took into account his character and found
that his patients and other doctors have a very high opinion of him. The district court also found
helpful several letters from members of the community written on Hunt’s behalf stating that he was
a holistic preventive doctor who believed in the tests at issue and thought they were beneficial.
        With regard to the second factor under § 3553(a), the district court stated the sentence must
reflect the seriousness of the offense, must promote respect for the law, must provide a just
punishment, must protect the public from further crimes, and it must provide the defendant with
needed education or vocational training. The district court then took into account that Hunt would
not be able to practice medicine in the foreseeable future. The district court found that losing his
license alone provided a just punishment, promoted respect for the law, and protected the public
from further crimes.
        The district court also satisfied § 3553(a)(3) - (5) by correctly calculating the recommended
guidelines range. The district court then stated that “[t]he court under the present system takes into
account the sentencing guideline. The sentencing guideline in this case in the context of all the
factors that I have said is not an appropriate sentence for Dr. Hunt.”
        The district court also took into account § 3553(a)’s admonition that district court’s “avoid
unwarranted sentence disparities among defendants,” finding that other doctors conducting the same
activities as Hunt received pretrial diversion in one instance (Dr. Bartee) and received nothing in
other instances (Dr. Moore and Dr. Adams). The district court noted that several other more
culpable individuals were not prosecuted at all, including individuals who profited much more from
the enterprise than Hunt.
         The district court stated that it felt it was important that Dr. Hunt practice medicine again
because he was an asset to the community and provided a valuable resource to his patients. The
district court stated that while his twelve felony convictions may preclude him from ever practicing
again, the probationary sentence may help.
        I fail to see, in all of the above reasoning given by the district court in its analysis of the
§ 3553(a) factors, where the district court took into account Hunt’s “innocence.” In fact, the district
court explicitly stated that despite Hunt’s “explanations for his behavior, . . . there’s no excuse for
the behavior.” The district court went further, stating that “[t]here were enough violations . . . that
the court cannot find that [Hunt] was totally innocent of any knowledge.” These statements indicate
that the district court did not impermissibly consider Hunt’s “innocence.” What the district court
did do was take into account several mitigating factors and settle upon an individualized sentence,
something that has been done in sentencing for more than three centuries. See United States v.
Phinazee, --- F.3d ----, No. 06-5730 Slip op., 2008 WL 320774, at *13 (6th Cir., Feb. 7, 2008)
(Merritt, J., dissenting).
Nos. 06-6300/6301                    United States v. Hunt                                      Page 14


        When the majority’s mis-labeling of the district court’s reasoning is set aside, I believe that
the Supreme Court’s decision in Gall, and this Court’s recent holding in United States v. Grossman,
--- F.3d ----, No. 06-2310 slip op., 2008 WL 160612, at *4 (6th Cir., Jan. 18, 2008), directly control
and require that this Court affirm Hunt’s sentence. The similarities between Gall and the present
case are striking. In both cases, a district court exercised its legal authority to sentence outside the
recommended guidelines range, and in both cases, sentenced the defendant well below the guidelines
range to probation. Gall v. United States, 128 S. Ct. 586, 593 (2007). In both cases, the district
court committed no significant procedural errors. Both correctly calculated the applicable guidelines
range, allowed both parties to present arguments in support of what they believed to be appropriate
sentences, considered all of the § 3553(a) factors, and thoroughly documented their reasoning behind
the sentence imposed. Id. at 598.
         In Gall, the district court sentenced the defendant to a term of probation after he pled guilty
to being a part of a conspiracy to distribute ecstasy, cocaine, and marijuana. Gall’s plea agreement
stipulated that he was “responsible for, but did not necessarily distribute himself, at least 2,500
grams of [ecstasy], or the equivalent of at least 87.5 kilograms of marijuana.” Id. at 592. The
presentence report recommended a guidelines range of 30 to 37 months’ imprisonment. The district
court decided to depart from the guidelines range and sentenced Gall to 36 months of probation. In
support of this sentence, the district court stated that “considering all the factors under [§ 3553(a)],
the Defendant’s explicit withdrawal from the conspiracy almost four years before the filing of the
indictment, the Defendant’s post-offense conduct, especially obtaining a college degree and the start
of his own successful business, the support of family and friends, lack of criminal history, and his
age at the time of the offense conduct, all warrant the sentence imposed, . . . .” Id. at 593. The
district court emphasized that Gall had voluntarily withdrawn from the conspiracy after seven
months and that two of his co-conspirators, who had been sentenced 30 and 35 months’
imprisonment respectively, had not withdrawn from the conspiracy. The fact that he was less
culpable than his co-conspirators, despite his guilty plea, coupled with the overwhelming evidence
in support of mitigation, led the district court to sentence Gall to probation. I fail to see how the
district court’s determination in Gall is any different than the district court’s decision in this case
that Hunt be sentenced to a term of probation given his minor role in the fraudulent scheme and the
similarly overwhelming evidence in support of mitigation.
        The most damning similarity between this case and Gall is the fact that a circuit court of
appeals has substituted what it believes to be the appropriate sentence instead of giving “due
deference to the District Court’s reasoned and reasonable decision that the § 3553(a) factors, on the
whole, justified the sentence.” Id. at 602. The Eighth Circuit reversed the district court in Gall,
holding, among other things, that the district court gave too much weight to Gall’s withdrawal from
the conspiracy. Id. at 594. This sort of reasoning sounds eerily similar to that used by the majority
in the present case: “A district court imposes a substantively unreasonable sentence, . . . when it
bases the sentence on impermissible factors, . . . and the district court appears to have done just that
in relying on indications that Hunt was not guilty as found by the jury.” The majority obviously
disagrees with the weight the district court gave to the sparsity of evidence concerning Hunt’s intent
to defraud. But it was exactly this type of appellate review that the Supreme Court attempted to
stamp out in Gall. The Supreme Court explicitly stated that even where “[t]he Court of Appeals
clearly disagree[s] with the District Judge’s conclusion that consideration of the § 3553(a) factors
justified a sentence of probation, . . . it is not for the Court of Appeals to decide de novo whether the
justification for a variance is sufficient or the sentence reasonable.” Id. at 602. Our own Circuit has
re-emphasized this deferential standard of review in Grossman, holding that we must give “due
deference to the sentencing judge’s on-the-scene assessment of the competing considerations, which
is to say, not just abuse-of-discretion review to the reasonableness of a sentence but
abuse-of-discretion review to the district court’s determination that there is a legitimate correlation
between the size of the variance and the reasons given for it . . . .” 2008 WL 160612, at *3.
Nos. 06-6300/6301                   United States v. Hunt                                     Page 15


       The majority has ignored the proper deferential standard of review and invented a new
impermissible factor, “innocence,” which will now allow appellate courts to reverse sentencing
decisions regardless of whether an analysis of the § 3553(a) factors indicates that a defendant is less
culpable than others and that a sentence outside the guidelines is more appropriate. On remand, I
hope the district court makes clear that it was not relying on Hunt’s “innocence” when it sentenced
him to probation, but was instead making a “reasoned and reasonable” decision that a term of
probation was “sufficient, but not greater than necessary, to comply with the purposes” of § 3553(a),
and imposes the same sentence, supported by the same detailed analysis.
                                                  II.
        This case is an example of the perfect storm developing over the sentencing judges in this
Circuit. As I have pointed out repeatedly, the struggle we have in the review of sentencing is to
determine what was intended by the district court. All too often insufficient explanation is given
to allow us to adequately review a district court’s sentencing decision. In the present case, the
sentencing judge gave us an extensive explanation of her reasoning, yet the majority not only rejects
the district court’s reasonable explanation as unreasonable, but finds that the sentence in this case
was an abuse of discretion. Such a holding completely disregards this Circuit’s decisions in
Grossman and Vonner, and also disregards the Supreme Court’s decisions in Gall. I am unhappy
to report that we have once again begun the slippery slope of agreeing with district court’s who
depart upward on the basis that they were reasonable and did not abuse their discretion, but when
a judge decides to sentence below the non-binding guidelines, then we reverse and remand. In my
view, this not only does not make sense, but is unprincipled. I am haunted by the words of the 19th
century poet Matthew Arnold which sums up so much of the problems we face today with
sentencing:
       “For the world which seems
       to lie before us like a land of dreams,
       so various, so beautiful, so new,
       Hath really neither joy, nor love, nor light,
       Nor certitude, nor peace, nor help for pain;
       And we are here as on a darkling plain
       Swept with confused alarms of struggle and flight,
       while ignorant armies clash by night.”
Dover Beach, 1851.
       Based on the foregoing reasons, I respectfully dissent from the majority’s reversal of Hunt’s
sentence.
