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United States v. Patino

United States Court of Appeals, Eighth Circuit

January 8, 2019

United States of America Plaintiff - Appellee
v.
George Patino, also known as Giorgio Paticciano Patino Defendant-Appellant

          Submitted: September 28, 2018

          Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.

          GRUENDER, CIRCUIT JUDGE

         George Patino appeals after the district court[1] admitted evidence of a 1998 conviction at trial and sentenced him to 40 months' imprisonment and 3 years' supervised release following his conviction on three counts relating to a conspiracy to distribute human growth hormone ("HGH") for unauthorized purposes and to smuggle HGH into the United States. We affirm.

         I.

         Patino operated a clinic and wholesale drug distribution business in Mexico that sold HGH to purchasers in the United States. He obtained HGH from Mexico and Asia and shipped it into the United States via mailed packages. He operated several English-language websites advertising HGH for sale, marketing himself as "an accredited Physician and Surgeon" and a "leader in the field of Human Growth Hormone Therapy" though he did not have a medical license from any state. Between April 2014 and June 2015, Patino sent more than ninety-five HGH packages to the Men's Medical Institute ("MMI"), a medical clinic in St. Louis County, Missouri. In exchange, Patino received a total of $67,720. Patino shipped HGH to other addressees in the United States through December 2015.

         In February 2016, a grand jury indicted Patino on three counts: 1) conspiracy to distribute or possess with intent to distribute HGH in violation of 21 U.S.C. § 333(e)(1) and 18 U.S.C. §§ 2 & 371; 2) distribution or possession with intent to distribute HGH in violation of 21 U.S.C. § 333(e)(1) and 18 U.S.C. § 2; and 3) smuggling goods into the United States in violation of 18 U.S.C. §§ 2 & 545. A jury convicted Patino on all three counts.

         Among other evidence at trial, the district court admitted the fact of Patino's 1998 conviction for possession of HGH with intent to distribute as well as statements Patino made at the time of his arrest for that crime to a special agent of the Food and Drug Administration's ("FDA") Office of Criminal Investigations. In particular, Patino stated that he was a medical doctor in Mexico but not the United States, that he was distributing HGH to medical doctors, and that he was aware that it was illegal to bring Mexican HGH into the United States.

          After the guilty verdict, the United States Probation Office prepared a presentence investigation report ("PSR"), which concluded that the offense involved sophisticated means. See United States Sentencing Guidelines ("U.S.S.G.") § 2T3.1(b)(1). This resulted in an advisory sentencing guidelines range of 21 to 27 months. The Government moved for a sentence above the guidelines range, and the district court sentenced Patino to 40 months' imprisonment.

         Patino now appeals the admission at trial of his 1998 conviction pursuant to Fed. R. Evid. 404(b), the application of the sophisticated means enhancement at sentencing, and the district court's alleged failure properly to determine or explain its rationale for the upward departure for understated criminal history at sentencing.

         II.

         A.

         Before trial, the Government timely filed notice under Fed. R. Evid. 404(b) that it planned to admit evidence of Patino's 1998 conviction for knowingly possessing HGH with intent to distribute for unauthorized use by humans. The Government argued that this conviction and Patino's statements to the FDA were relevant to prove Patino's intent, knowledge, and absence of mistake in joining the conspiracy to distribute HGH. Patino objected to the admission of the conviction based on its age and irrelevance and argued that it was more unfairly prejudicial than ...


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