*

The Honorable Thomas L. Ludington, United States District Judge for the Eastern District of Michigan, sitting

by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0437p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GHASSAN HAJ-HAMED,

Defendant-Appellant.

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No. 07-6201

Appeal from the United States District Court

for the Eastern District of Kentucky at Covington.

No. 05-00078—William O. Bertelsman, District Judge.

Argued: October 28, 2008

Decided and Filed: December 3, 2008 

Before: SILER and McKEAGUE, Circuit Judges; LUDINGTON, District Judge.*

_________________

COUNSEL

ARGUED: Henry Louis Sirkin, SIRKIN, PINALES & SCHWARTZ, Cincinnati, Ohio, for

Appellant. John Patrick Grant, ASSISTANT UNITED STATES ATTORNEY, Lexington,

Kentucky, for Appellee. ON BRIEF: Henry Louis Sirkin, Scott Ryan Nazzarine, SIRKIN,

PINALES & SCHWARTZ, Cincinnati, Ohio, for Appellant. John Patrick Grant, Charles P.

Wisdom, Jr., ASSISTANT UNITED STATES ATTORNEYS, Lexington, Kentucky, for Appellee.

_________________

OPINION _________________

McKEAGUE, Circuit Judge. Ghassan Haj-Hamed, M.D., pleaded guilty to one count of

distributing prescription drugs without a legitimate medical purpose. The district court sentenced

him to twenty-seven months of imprisonment, the bottom of the range calculated under the United

States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”). Dr. Haj-Hamed appeals his sentence.

Finding his sentence procedurally and substantively reasonable, we affirm.

1
No. 07-6201 United States v. Haj-Hamed Page 2

I

The facts of the case are undisputed: Dr. Haj-Hamed owned and operated several medical

clinics in the Cincinnati-Northern Kentucky area from 1999 through 2002. After receiving

complaints that Dr. Haj-Hamed prescribed controlled substances without valid medical reasons, lawenforcement agents conducted surveillance of one of his clinics and made undercover visits to the

clinic posing as patients.

The investigation revealed that Dr. Haj-Hamed routinely spoke to patients for a minute or

so without conducting any meaningful physical examination. He then prescribed frequently abused

controlled substances to the patients in exchange for cash payments. A confidential source told

agents that Dr. Haj-Hamed referred to himself as “Dr. Feel Good.” Others considered him an easy

source of oxycontin and other controlled substances. He told patients to fill their prescriptions in

Ohio or Indiana so as to avoid Kentucky’s electronic prescription-tracking system.

A federal grand jury indicted Dr. Haj-Hamed on twenty-two counts of distributing

prescription drugs without a legitimate medical purpose. On the morning that his federal trial was

scheduled to begin, Dr. Haj-Hamed pleaded guilty to Count Six, to wit,

From on or about December, 2001 through on or about March, 2002, in

Pendleton County, in the Eastern District of Kentucky, and elsewhere,

GHASSAN HAJ-HAMED

did knowingly and intentionally distribute and dispense a mixture or substance

containing oxcycodone, a Schedule II controlled substance, a mixture or substance

containing hydrocodone, a Schedule III controlled substance, and a mixture or

substance containing diazepam, a Schedule IV controlled substance, to Mike

Granger, without a legitimate medical purpose and outside the usual course of

medical practice, all in violation of 21 U.S.C. § 841(a)(1).

In exchange for his guilty plea, the Government dismissed the remaining counts against him. The

parties also agreed to limit the relevant conduct for sentencing purposes to that occurring from

October 2000 to September 2002.

The probation office prepared an initial Presentence Report (“PSR”) using the 2001 edition

of the Guidelines manual. Dr. Haj-Hamed had a number of objections to that PSR. The probation

office revised its PSR in light of those objections. With a base-offense level of twenty less a twopoint reduction for acceptance of responsibility, the probation office calculated Dr. Haj-Hamed’s

adjusted offense level at eighteen. With a criminal history category of I, the office determined a

Guidelines range for imprisonment of twenty-seven to thirty-three months.

During the sentencing hearing, the district court asked if Dr. Haj-Hamed had any objections

to the final PSR that were not already reflected in that report. He indicated that he did not, and he

further acknowledged the correctness of the probation office’s calculation of the Guidelines range.

Dr. Haj-Hamed sought a downward departure under the Guidelines or, in the alternative, a

downward variance from the applicable range. In support of a more lenient sentence, he relied

principally on his family circumstances. At the time of sentencing, Dr. Haj-Hamed was married

with eight children. His wife was principally a homemaker, had attained only the equivalent of a

seventh-grade education, and did not have strong English-language skills. Three of the children

were step-children from his wife’s previous marriage to Dr. Haj-Hamed’s brother, who had died

years before in an automobile accident. The three step-children ranged in age from twenty-one to

twenty-five. Since their marriage, the couple had five additional children who ranged in age from
No. 07-6201 United States v. Haj-Hamed Page 3

five to fifteen. Three of these children had developmental problems. All three were hearingimpaired to varying degrees and used sign-language interpreters at school. One of the three also

suffered from significant learning delays as well as congenital cardiac problems, and another had

operations on her hands and feet to remove extra fingers and toes. Based on this, Dr. Haj-Hamed

argued that his family needed him for emotional, financial, and medical support.

In addition, Dr. Haj-Hamed claimed that his crime was not a typical drug-distribution crime.

He argued, rather, that he simply spread himself too thin managing and practicing medicine at his

several clinics. As argued by his attorney at sentencing, “Combined with his desire to aid others,

his naiveté in certain matters, his different cultural background, and his difficulty in refusing persons

who ask for his help, Dr. Haj-Hamed’s carelessness caused him to fail to exercise the required

proper care and due diligence on his patients.” Sent. mem. at 9. Finally, he noted that he had already

incurred significant financial penalties as a result of his criminal actions in the form of back taxes,

penalties and interest.

The Government opposed a sentence below the Guidelines range. It argued that Dr. HajHamed was a respected member of society who had abused society’s trust for a simple purpose: to

make money. Thus, a Guidelines sentence was justified, in the Government’s opinion. The district

court agreed and sentenced him to twenty-seven months of imprisonment.

Dr. Haj-Hamed appealed his sentence.

II

A. Appellate Review of Sentence

“Sentences imposed post-Booker are reviewed for procedural and substantive

reasonableness.” United States v. Conatser, 514 F.3d 508, 519 (6th Cir. 2008) (citing United States

v. Booker, 543 U.S. 220, 261 (2005); United States v. Williams, 432 F.3d 621, 623 (6th Cir. 2005)).

We “must first ensure that the district court committed no significant procedural error, such as

failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen sentence—including an explanation for any

deviation from the Guidelines range.” Gall v. United States, 128 S. Ct. 586, 597 (2007). If

procedurally sound, we then review the sentence for substantive reasonableness under an abuse-ofdiscretion standard. Id. at 598; see also Rita v. United States, 127 S. Ct. 2456, 2465 (2007).

B. Procedural Reasonableness

Dr. Haj-Hamed argues that the district court failed to consider the relevant § 3553(a) factors

and failed to explain adequately the sentence imposed. These are attacks on the procedural

reasonableness of the district court’s sentence.

We must first determine what standard to apply to Dr. Haj-Hamed’s proceduralreasonableness challenge. Although he raises on appeal the same substantive arguments for a lower

sentence that he presented to the district court, he did not argue below that the district court had

made any procedural errors during sentencing. Near the end of the sentencing hearing, the district

court asked the parties whether there were any further matters to resolve that had not yet been

addressed, in accordance with this court’s holding in United States v. Bostic, 371 F.3d 865, 872-73

(6th Cir. 2004). The Defendant failed to raise any objection related to the district court’s

consideration of the § 3553(a) factors or its explanation of the sentence. Accordingly, we would

normally review Dr. Haj-Hamed’s procedural challenge for plain error. United States v. Vonner, 516

F.3d 382, 386 (6th Cir.) (en banc), cert. denied, 129 S. Ct. 68 (2008). However, at oral argument,

the Government disclaimed any reliance on a plain-error analysis.
No. 07-6201 United States v. Haj-Hamed Page 4

1

As there were no co-defendants nor any specific victims, the district court did not discuss the factors in

§ 3553(a)(6) or (7). Nor did the district court identify any pertinent statement issued by the Sentencing Commission

under § 3553(a)(5). Dr. Haj-Hamed raises no claim of error with respect to any of these factors. 

Regardless of whether we review the procedural reasonableness of the sentence under an

abuse-of-discretion standard or a plain-error standard, the result is the same—the district court did

not err in the procedures it followed during sentencing. As Dr. Haj-Hamed concedes, the district

court properly calculated the applicable Guidelines range. It is also undisputed that the district court

explained to him the advisory nature of the Guidelines during the plea hearing. The district court

discussed during sentencing how the parsimony provision of § 3553 applied to Dr. Haj-Hamed’s

sentence and went through the relevant § 3553(a) factors.1 Dr. Haj-Hamed maintains that the district

court failed to consider his history and characteristics pursuant to § 3553(a)(1). Yet, the final PSR

contained all of the unfortunate circumstances facing the family as well as Dr. Haj-Hamed’s

background and criminal activity, and the district court explained that it had carefully studied that

report. The district court acknowledged that Dr. Haj-Hamed’s “family circumstances” was the

primary argument for a downward variance. The district court discussed his family circumstances

at various points during the hearing. Thus, it is clear that the district court was aware of and

considered the doctor’s history and circumstances.

Moreover, the district court adequately explained why it selected a sentence at the bottom

of the Guidelines range. As the Supreme Court and this court have explained, a district court will

not normally need to provide a lengthy explanation of a within-Guidelines sentence. Rita, 127 S. Ct.

at 2468 (“[W]hen a judge decides simply to apply the Guidelines to a particular case, doing so will

not necessarily require lengthy explanation.”); United States v. Gale, 468 F.3d 929, 940-41 (6th Cir.

2006), cert. denied, 127 S. Ct. 3065 (2007).

Here, the district court noted that the Defendant had already received a considerable break

when the Government agreed to dismiss twenty-one of the twenty-two counts against him and

agreed to restrict the relevant criminal conduct. The district court explained that this was the main

factor in its analysis. Had Dr. Haj-Hamed been convicted on all of the counts, he could have faced

considerably more time in prison.

The district court went on to find that Dr. Haj-Hamed breached the trust given to him as a

physician by selling prescriptions “to the most vulnerable in our population,” sent. tr. at 15, “for his

own profit,” id. at 16. The district court explained that the breach of trust weighed in favor of

imprisonment under both the “nature and circumstances of the offense” factor (§ 3553(a)(1)) as well

as the “seriousness of the offense” factor (§ 3553(a)(2)(A)). The district court further explained that

white-collar crimes like this one required imprisonment so as to deter other professionals from

engaging in similar criminal activity (§ 3553(a)(2)(B)).

While Dr. Haj-Hamed contends that the district court should have discussed certain matters

more in-depth and placed greater weight on other aspects, it is evident that the district court did not

fail to explain why it gave him the sentence it did, which is all it was required to do. See Gale, 468

F.3d at 940 (“When a district court adequately explains why it imposed a particular sentence,

especially one within the advisory Guidelines range, we do not further require that it exhaustively

explain the obverse—why an alternative sentence was not selected—in every instance.” (emphasis

in original)). It is clear, rather, that Dr. Haj-Hamed’s primary argument is that the district court did

not give sufficient weight to his arguments for mitigation. This calls into question the substantive

reasonableness of the sentence, which we consider next.
No. 07-6201 United States v. Haj-Hamed Page 5

C. Substantive Reasonableness

“A sentence may be considered substantively unreasonable when the district court selects

a sentence arbitrarily, bases the sentence on impermissible factors, fails to consider relevant

sentencing factors, or gives an unreasonable amount of weight to any pertinent factor.”

Conatser, 514 F.3d at 520 (citing United States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005)). The

applicable Guidelines range represents the starting point for substantive-reasonableness review

because it is one of the § 3553(a) factors and because the Guidelines purport to take into

consideration most, if not all, of the other § 3553(a) factors. Gall, 128 S. Ct. at 596. While a district

court may not presume that the range is reasonable, United States v. Foreman, 436 F.3d 638, 644

n.1 (6th Cir. 2006), a properly calculated within-Guidelines sentence will be afforded a rebuttable

presumption of reasonableness on appeal, United States v. Williams, 436 F.3d 706, 708 (6th Cir.

2006), cert. denied, 127 S. Ct. 3043 (2007); see also Rita, 127 S. Ct. at 2462.

The presumption applies if the district court acknowledged that the Guidelines are advisory,

discussed the relevant § 3553(a) factors, explained its reasons for imposing a within-Guidelines

sentence, and did not act arbitrarily or rely on impermissible factors. United States v. Madden, 515

F.3d 601, 613 (6th Cir. 2008). As noted above, the district court acknowledged the advisory nature

of the Guidelines; discussed the relevant sentencing factors; and explained its reasons for imposing

a within-Guidelines sentence. The Defendant has not argued, and there is nothing in the record to

suggest, that the district court acted arbitrarily.

Dr. Haj-Hamed does argue, however, that the district court relied upon an impermissible

factor, unproven relevant conduct. Specifically, he contends that the district court erred when it

found that he had received consideration for his family circumstances as part of the plea deal to

dismiss twenty-one of the twenty-two criminal counts. He points out that the Government did not

put on any separate evidence of relevant conduct during the sentencing hearing, and, thus, the only

relevant conduct that should have been considered for sentencing was that conduct included in the

final PSR.

In general, a district court can consider uncharged or dismissed conduct for sentencing

purposes. United States v. Mendez, 498 F.3d 423, 426-27 (6th Cir. 2007). In order to do so, the

district court must make findings by a preponderance of the evidence before it. United States v.

Wittingen, 519 F.3d 633, 636-39 (6th Cir. 2008). Here, Dr. Haj-Hamed is correct that the

Government did not call any witnesses or submit any written evidence to broaden the factual record

beyond the unobjected facts set forth in the final PSR. Yet, Dr. Haj-Hamed mischaracterizes what

the district court did in this instance. It did not purport to make factual findings with respect to the

twenty-one dismissed counts. Instead, the district court commented on an uncontested aspect of the

parties’ plea agreement—that one basis for the Government’s decision to dismiss all but one of the

counts and to narrow the relevant conduct was concern for Dr. Haj-Hamed’s family circumstances.

Dr. Haj-Hamed has not identified any decision, nor are we aware of any decision holding that

a sentencing court is precluded from considering an uncontested aspect of a plea agreement when

going through the factors of § 3553(a). It is clear that had the Government expressly stated in

writing or during the plea hearing that one basis for the reduction in charges and relevant conduct

was the hardship to the doctor’s family, the district court could have considered that when crafting

an appropriate sentence. Cf. Webb, 403 F.3d at 382 (stating that a defendant “merely received what

he had bargained for” when sentenced in accordance with terms of a plea agreement). While there

was nothing stated during the plea hearing about Dr. Haj-Hamed’s family, this court has previously

looked to the “broader ‘context and record’” of the criminal proceedings when considering whether

a sentence was reasonable. Madden, 515 F.3d at 611. It is clear from the record that the parties and
No. 07-6201 United States v. Haj-Hamed Page 6

2

“THE COURT: All right. We had the discussion when we were in chambers and we discussed this [i.e., Dr.

Haj-Hamed’s reasons for a lesser sentence] with the probation officer. It was my understanding that the relevant conduct

has already been adjusted to give him a substantial break for these family factors. . . . I’ve carefully studied the

Presentence Report and listened to the remarks of counsel, both here and essentially the same thing in chambers, with

everybody present, I hasten to add.” Sent. tr. at 13-14.

the district court discussed the matter before sentencing.2 The district court believed that the

Government consented to the plea agreement in part out of consideration for the Defendant’s family;

when given an opportunity to object at the end of the sentencing hearing, defense counsel offered

nothing to draw this belief into question.

 What the district court did here, in essence, was to find that the parties’ plea agreement

resulted in a Guidelines range which sufficiently took into consideration the Defendant’s unfortunate

family circumstances. The district court need not go on and address all of the doctor’s family

circumstances in detail or give additional weight to them. See Rita, 127 S. Ct. at 2464 (noting that

the Guidelines “seek to embody the § 3553(a) considerations, both in principle and in practice”); id.

at 2468 (“Circumstances may well make clear that the judge rests his decision upon the

Commission’s own reasoning that the Guidelines sentence is a proper sentence . . . .”). Accordingly,

Dr. Haj-Hamed has not shown that the district court relied upon an impermissible factor and, thus,

a presumption of reasonableness applies to the within-Guidelines sentence.

Dr. Haj-Hamed next tries to rebut the presumption. As with his procedural challenge, the

doctor relies principally on his family circumstances. In general, though, district courts are

discouraged from departing or varying from the Guidelines because of family circumstances. As

explained in United States v. Carter, the Sentencing Commission has issued a general policy

statement regarding the relevance of family circumstances to sentencing determinations. 510 F.3d

593, 602 (6th Cir. 2007) (citing 18 U.S.C. § 3553(a)(5); U.S.S.G. § 5H1.6). Courts are discouraged

from reducing a defendant’s sentence based on family circumstances unless those circumstances rise

to the level of “exceptional.” U.S.S.G. § 5H1.6.

It is correct that, “post-Booker, a district court may vary a sentence to account for a factor

discouraged by the Sentencing Commission.” Carter, 510 F.3d at 602. However, “the totality of the

circumstances” do not favor Dr. Haj-Hamed’s appeal for a sentence below the Guidelines range. Id.

As explained above, the district court determined that Dr. Haj-Hamed had already received

significant consideration for his family when the Government agreed to dismiss all but one of the

criminal counts, saving him from a potentially much longer term of imprisonment.

Dr. Haj-Hamed directs our attention to United States v. Husein, 478 F.3d 318 (6th Cir. 2007).

In that case, the district court granted the defendant a downward departure from the advisory

Guidelines range based on her family circumstances. The defendant’s father relied upon around-theclock healthcare from the defendant and the defendant’s mother. Moreover, the defendant and her

mother were the sole sources of financial support for the family, which included several minor

siblings, and only the defendant had a valid driver’s license. Finding “that there [was] no one else

available to fill Defendant’s role if she were incarcerated,” the district court gave her a noncustodial

sentence on her drug-distribution charge. Id. at 324. On the government’s appeal, this court

affirmed. In doing so, the court relied heavily on the discretion given to district courts to fashion

an appropriate sentence under § 3553. The court explained that it might have come to a different

conclusion had the sentence been before it de novo. Id. at 328. But, under the abuse-of-discretion

standard, the court “defer[ed] to the district court, which possesses a ‘special competence’ because

of its ‘vantage point and day-to-day experience in criminal sentencing’ to determine whether the

facts are sufficiently extraordinary to warrant a departure.’” Id. (quoting Koon v. United States, 518

U.S. 81, 98, 99 (1996)). Similarly, in United States v. Baker, the court affirmed a district court’s

downward variance, concluding that there was little to distinguish the case from Husein. 502 F.3d
No. 07-6201 United States v. Haj-Hamed Page 7

465, 469 (6th Cir. 2007). The principle underlying both Husein and Baker, thus, is that an appellate

court should generally defer to the “special competence” of the district court in determining whether

family circumstances are so extraordinary as to justify a departure or a variance from a Guidelines

sentence.

There is little doubt that Dr. Haj-Hamed’s imprisonment will impose a hardship on his

family. The district court did not abuse its discretion, however, when it concluded that the dismissal

of twenty-one of his twenty-two counts adequately alleviated the much greater hardship that could

have been imposed. See Carter, 510 F.3d at 602.

Dr. Haj-Hamed also argues that other circumstances justified a lesser sentence. Before the

district court, he characterized his crime as one primarily of omission—his resources were stretched

too thin and, through a lack of oversight and management, he began to cut corners in his painmanagement practice. He also noted that his medical licenses were either suspended or revoked,

and that he already incurred significant financial penalties flowing from his criminal activity.

Yet, the district court clearly disagreed with the Defendant’s rather benign gloss on his

criminal activity. Instead, the district court placed the blame squarely on the Defendant’s shortsighted greed for more money. The district court noted that the doctor preyed on the weaknesses

of those patients who could least avoid the temptations of drugs, thereby abusing society’s trust in

him as a physician. Because of this, and in order to deter other physicians who might be tempted

to engage in similar activity, the district court concluded that imprisonment was warranted. Finally,

the district court declined to impose a penalty (the maximum it could have imposed was $1 million)

because of Dr. Haj-Hamed’s strained resources. While Dr. Haj-Hamed has offered several

mitigating factors for a lesser sentence, he has simply failed to show that the district court erred by

placing greater emphasis on the nature of the doctor’s crime and the need to deter future criminal

activity by similar professionals. As he has not established “that the district court made sufficient

errors in applying (or failing to apply)” the non-Guidelines sentencing factors, we affirm his withinGuidelines sentence. Gale, 468 F.3d at 937.

D. Motion for Downward Departure

“[A] district court’s decision to deny a downward departure is unreviewable unless the lower

court incorrectly believed that it lacked the authority to grant such a departure.” Madden, 515 F.3d

at 610; see also Carter, 510 F.3d at 600 (“[T]his court has no discretion to review the district court’s

denial of the downward departure.”). The district court denied Dr. Haj-Hamed’s request for a

downward departure on the merits, not because of an erroneous belief that it lacked the authority to

grant such relief. Dr. Haj-Hamed acknowledges this on appeal, and raises the matter only to

preserve it for possible further appellate review. 

III

For the reasons provided above, we AFFIRM Dr. Haj-Hamed’s sentence.