                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0177n.06

                                           No. 09-5259

                          UNITED STATES COURT OF APPEALS                                 FILED
                               FOR THE SIXTH CIRCUIT                                 Mar 22, 2010
                                                                               LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )         ON APPEAL FROM THE
                                                         )         UNITED STATES DISTRICT
               v.                                        )         COURT FOR THE MIDDLE
                                                         )         DISTRICT OF TENNESSEE
WILLIAM HENRY HUGHES,                                    )
                                                         )
       Defendant-Appellant.                              )




BEFORE: MOORE, CLAY, and ROGERS, Circuit Judges.

       ROGERS, Circuit Judge. William Hughes was convicted of bank fraud and sentenced to

fourteen months’ imprisonment. Hughes now appeals, arguing that this sentence is substantively

unreasonable. Because Hughes’s sentence was not arbitrary or based on impermissible factors, and

because the district court considered and balanced reasonably all of the relevant sentencing factors,

Hughes’s sentence is substantively reasonable.

       William Hughes is a urologist practicing in Nashville, Tennessee.1 Hughes rented a post

office box at the Brentwood post office. A clothing company with a neighboring post office box

routinely received checks in its box. In August of 1999, Hughes deposited twenty-nine checks

totaling $15,452.10 addressed to the clothing company into his bank account. The PSR does not


       1
        These facts are taken from the Presentence Investigation Report (PSR), to which Hughes did
not object.
No. 09-5259
United States v. Hughes


disclose how Hughes came to possess the checks. The clothing company notified the bank of the

missing checks, and the bank traced the funds to Hughes’s account. After attempts to contact

Hughes proved unsuccessful, the bank debited the $15,452.10 from Hughes’s account and

reimbursed the clothing company in November of 1999. Hughes did not inquire about the

$15,452.10 debit from his account.

       In October of 1999, Hughes obtained a check for $155,794.20 addressed to the clothing

company and deposited it into his bank account. In August of 2000, the clothing company and the

bank determined that the check had been erroneously deposited into Hughes’s bank account. The

bank reimbursed the clothing company for the wrongly deposited check, and the bank was able to

debit only $12,000 from Hughes’s checking account. In later discussions with a bank investigator,

Hughes initially claimed that one of Hughes’s employees had mistakenly deposited the check into

Hughes’s account. When told that the bank had surveillance video of him personally depositing the

check, Hughes then claimed that he had mistaken the check for an insurance reimbursement check.

Hughes agreed to pay restitution to the bank. In October of 2002, Hughes paid restitution with a bad

check. In June of 2004, Hughes gave the bank a promissory note for the remainder of the debt

without informing the bank that he had just filed for bankruptcy. In August of 2004, Hughes gave

the bank a $10,000 counterfeit check.

       A grand jury indicted Hughes for bank fraud in violation of 18 U.S.C. § 1344, and a jury

found Hughes guilty. Hughes’s base offense level was seven. See U.S.S.G. § 2B1.1(a) (2005

edition). Ten points were added because the offense involved a loss greater than $120,000. See id.


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No. 09-5259
United States v. Hughes


§ 2B1.1(b)(1)(F). Based on Hughes’s Total Offense Level of seventeen and Criminal History

Category of I, Hughes’s Guideline range is twenty-four to thirty months’ imprisonment.

       The district court held a sentencing hearing in October of 2006. Hughes’s pastor testified

that Hughes was a loyal church member and that Hughes had done workshops and seminars on

prostate cancer and other medical issues relevant to African-American males for the church and the

community. A national church official testified that Hughes was a loyal member of the church, the

chief architect of the church’s health program, and a caring physician. Hughes testified that he had

never lied, and that he had made his best efforts to repay the funds. He also commented on the

reasons for his financial difficulties, including tardy reimbursement by medical insurance companies,

his poor supervision of his employees, and his need to pay child support. Hughes also submitted

evidence that he served in the army during Desert Storm, and that he was the only African-American

urologist in Nashville. The district court noted that Hughes’s conviction was a great embarrassment

to him and suggested that the conviction might have ramifications for his medical license. The court

also commented that this was not a normal bank fraud case in that the bank had only reported the

crime when Hughes failed to pay restitution.        The district court concluded that one day’s

imprisonment followed by five years of supervised was a sufficient sentence.

       This court reversed that sentence as substantively unreasonable. United States v. Hughes,

283 F. App’x 345 (6th Cir. 2008) (unpublished). We concluded that the district court had given

Hughes’s attempts to repay the bank unreasonable weight, particularly in light of Hughes’s tendering

of a bad check and a counterfeit check, and his failure to notify the bank of his bankruptcy in the


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United States v. Hughes


course of his claimed repayment attempts. Id. at 351-53. This court further noted that the United

States’s motivation for prosecuting the case was speculative. Id. at 353-55. We vacated and

remanded the case for resentencing. Id. at 356.

       At his second sentencing hearing in February of 2009, Hughes testified about his military

service, his professional background, and his continued medical service after his conviction. Hughes

testified that he was the only urologist serving patients from TennCare—Tennessee’s version of

Medicaid—in the Nashville area. Hughes also acknowledged that he had deposited the clothing

company’s checks in his account knowing they were not intended for him. The district court varied

downward from the Guidelines and sentenced Hughes to fourteen months’ imprisonment and three

years of supervised release. The court balanced the seriousness of Hughes’s offense, as well as

Hughes’s misconduct during his claimed repayment attempts, against what the court called the

“many mitigating factors in the background of Dr. Hughes,” including Hughes’s military service and

his service to under-served medical populations. The district court concluded that these mitigating

factors justified a downward variance, but nonetheless imposed a custodial sentence in light of the

seriousness of Hughes’s offense and the need to avoid unwarranted sentencing disparities. Hughes

now appeals, arguing that his sentence is substantively unreasonable.

       Hughes’s sentence is substantively reasonable. In evaluating substantive reasonableness,

“[t]he touchstone for our review is whether the length of the sentence is reasonable in light of the

[18 U.S.C.] § 3553(a) factors.” United States v. Tate, 516 F.3d 459, 469 (6th Cir. 2008). “A

sentence is substantively unreasonable if the district court selects a sentence arbitrarily, bases the


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No. 09-5259
United States v. Hughes


sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an

unreasonable amount of weight to any pertinent factor.” United States v. Camiscione, 591 F.3d 823,

832 (6th Cir. 2010) (quoting United States v. Lapsins, 570 F.3d 758, 772 (6th Cir. 2009)). In

imposing a substantially below-Guideline sentence, the district court carefully considered Hughes’s

mitigation arguments, considered only permissible factors, and imposed a custodial sentence after

explicit reference to factors that justified that sentence under § 3553(a). In light of this, Hughes’s

sentence is reasonable.

        Hughes argues that his sentence is unreasonable because (1) similar evidence was available

at both sentencing hearings, such that the greater sentence imposed at the second hearing was

unjustified, (2) the district court did not consider a non-custodial sentence, and (3) the district court

did not consider the impact of Hughes’s incarceration on the population of patients Hughes serves.

The first of these arguments fails given this court’s conclusion that the sentence imposed at Hughes’s

first sentencing hearing was substantively unreasonable. The other two arguments are not supported

by the record. The district court recognized Hughes’s arguments for a non-custodial sentence, but

concluded that “there must be the slam of a prison door behind Dr. Hughes in order to serve the other

purposes of sentencing and to avoid unwarranted sentencing disparities.” The district court stated

that a custodial sentence was necessary to serve the § 3553(a) factors despite the court’s recognition

that “Dr. Hughes is providing very important services to this community and has a very important

medical practice that will be missed when he goes off to serve some time.” The district court thus




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United States v. Hughes


imposed Hughes’s sentence after considering the necessity of a custodial sentence under § 3553(a)

and the impact of Hughes’s imprisonment on under-served medical patients in Nashville.

       For these reasons, we AFFIRM the sentence imposed by the district court.




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