Submitted: September 28, 2018
from United States District Court for the Eastern District of
Missouri - St. Louis
COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
GRUENDER, CIRCUIT JUDGE
Patino appeals after the district court 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.
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.
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.
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
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.
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.
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 ...