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. 2 UNITED STATES v. SHORTT 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. UNITED STATES v. SHORTT 3 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 4 UNITED STATES v. SHORTT 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 1 By 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. UNITED STATES v. SHORTT 5 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- 6 UNITED STATES v. SHORTT 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. UNITED STATES v. SHORTT 7 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 8 UNITED STATES v. SHORTT 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 2 Section 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 UNITED STATES v. SHORTT 9 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. 10 UNITED STATES v. SHORTT 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). UNITED STATES v. SHORTT 11 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. 12 UNITED STATES v. SHORTT 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- UNITED STATES v. SHORTT 13 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 14 UNITED STATES v. SHORTT 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 UNITED STATES v. SHORTT 15 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 16 UNITED STATES v. SHORTT 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 UNITED STATES v. SHORTT 17 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.