US v. Linda Cheek, No. 13-4838 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4838 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. LINDA SUE CHEEK, Defendant - Appellant. No. 13-4841 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. LINDA SUE CHEEK, Defendant - Appellant. Appeals from the United States District Court for the Western District of Virginia, at Roanoke. Glen E. Conrad, Chief District Judge. (7:08-cr-00012-GEC-1; 7:12-cr-00040-GEC-1) Submitted: September 30, 2014 Decided: November 20, 2014 Before KEENAN, DIAZ, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Dana R. Cormier, DANA R. CORMIER, P.L.C., Staunton, Virginia, for Appellant. Daniel Steven Goodman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Jennie L.M. Waering, Assistant United States Attorney, Roanoke, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: In these consolidated appeals, Linda Sue Cheek appeals her convictions of multiple counts of distribution of controlled substances using a Drug Enforcement Administration (“DEA”) registration number issued to another and using her own revoked DEA registration number, in violation of 21 U.S.C. §§ 841, 843 (2012); the convictions; twenty-seven-month and sentence the twelve-month imposed sentence for imposed these following revocation of her probation for a prior conviction. On appeal, defense Anders counsel has California, 386 meritorious issues filed U.S. 738 for a brief (1967), appeal pursuant stating but that questioning to there are whether v. no the district court (1) erred in denying Cheek’s motion for judgment of acquittal because the Government failed to present adequate evidence of her intent, (2) erred in its relevant conduct determinations, (3) improperly applied an upward enhancement for leadership role under the Sentencing Guidelines, (4) improperly imposed a Guidelines enhancement for obstruction of justice, and (5) imposed a procedurally and sentence for her new convictions. * substantively unreasonable For the reasons that follow, we affirm. * Cheek raises no specific revocation or related sentence. 3 challenge to her probation We review de novo the district court’s denial of a Fed. R. Crim. P. 29 motion for judgment of acquittal. States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). United We will affirm if, viewing the evidence in the light most favorable to the Government, “the conviction is supported by substantial evidence.” United States v. Hickman, 626 F.3d 756, 763-64 (4th Cir. (internal 2010) quotation marks omitted). “Substantial evidence” is defined as such “evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.” United States (internal v. Green, quotation evidentiary 599 marks sufficiency F.3d 360, omitted). “faces a A 367 (4th defendant heavy Cir. 2010) challenging burden.” United States v. Foster, 507 F.3d 233, 244-45 (4th Cir. 2007). Section authorized by this 841(a)(1) provides subchapter, it shall that, be “[e]xcept unlawful for as any person knowingly or intentionally . . . to . . . distribute, or dispense . . . a controlled substance.” 21 U.S.C. § 841(a)(1); see United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005) (identifying elements of distribution offense). To dispense is “to deliver a controlled substance to an ultimate user . . . by, or pursuant to the lawful order of, a practitioner, including the prescribing and administering of a controlled substance.” 21 U.S.C. § 802(10) (2012). A practitioner is “a physician . . 4 . or other person licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which [s]he practices . . . to distribute, [or] dispense . . . a controlled substance in the course of professional practice.” 21 U.S.C. § 802(21) (2012). Under this definition, Cheek did not qualify as at a practitioner the time of the charged offenses, and therefore her conduct in issuing controlled substances is not protected by this statutory exception. See United States v. Blanton, 730 F.2d 1425, 1429-30 (11th Cir. 1984) (holding that individuals who lack a valid DEA registration are not authorized to dispense controlled substances). Viewing the evidence in the light most favorable to the Government, we conclude that the district court did not err in denying Cheek’s Rule 29 motion. As to Counts 1 through 10, the Government established that Cheek wrote controlled substance prescriptions under her own name and revoked DEA registration number. Cheek As to Counts 11 through 91, the Government proved that called through V registration practice. into pharmacies controlled number While prescriptions substances outside Cheek the under usual contended that for Schedule III another doctor’s DEA course her of professional actions were the result of accident or mistake, the evidence supports a finding of intent. See United States v. Martin, 523 F.3d 281, 289 (4th 5 Cir. 2008) (finding circumstantial evidence sufficient to establish intent). Cheek next raises Guidelines calculations. findings for clear three challenges to the court’s We review the district court’s factual error and its legal conclusions de novo. United States v. Alvarado Perez, 609 F.3d 609, 612 (4th Cir. 2010). The Government is required to prove a defendant’s drug quantity under the Guidelines by a preponderance of the evidence, United States v. Carter, 300 F.3d 415, 422 (4th Cir. 2002), but the defendant bears the burden to demonstrate that the information inaccurate. contained in the PSR is unreliable or United States v. Kiulin, 360 F.3d 456, 461-62 (4th Cir. 2004). Cheek first determination. In challenges the the context court’s of a relevant controlled conduct substance offense, relevant conduct is defined to include “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant . . . during the commission of the offense of conviction” as well as those acts “that were in the same course of conduct or common scheme or plan as the offense of conviction.” USSG § 1B1.3(a)(1)-(2); see USSG § 3D1.2(d) (providing for grouping of counts under USSG § 2D1.1). We conclude that the district court did not clearly err in determining that Cheek’s unilateral 6 alterations to patients’ Schedule II prescriptions constituted part of the same course of conduct as the offenses of conviction and in calculating the drug weight on this basis. See Kiulin, 360 F.3d at 461 (recognizing that drug quantity calculation is factual determination reviewed for clear error). Cheek next appeals the court’s application of a sentencing enhancement for her managerial role in the offense. The Guidelines provide for a two-level upward adjustment when the defendant acted as “an organizer, leader, manager, or supervisor” in criminal activity that did not involve five or more participants 3B1.1(c). and was not otherwise extensive. USSG § The defendant must have supervised “one or more other participants,” that is, “a person who is criminally responsible for the commission of the offense” but who was not necessarily convicted. USSG § 3B1.1 cmt. n.1, 2; see United States v. Steffen, 741 F.3d 411, 414 (4th Cir. 2013) (recognizing that enhancement requires that defendant organizer, or leader of people). was manager, supervisor, Based on Cheek’s relationship with Dr. Kathleen Schultz, we conclude that the court did not clearly err in imposing this enhancement. Cheek also argues that the court improperly applied a sentencing enhancement Guidelines provide defendant willfully for for obstruction a two-level obstructed or 7 of justice. enhancement impeded, or when The “the attempted to obstruct or impede, the administration of justice with respect to the . . . sentencing of the instant offense of conviction.” USSG § 3C1.1. Examples of covered conduct include “threatening, intimidating, or witness, . . . otherwise or unlawfully attempting to attempting to suborn perjury. influencing do so,” and a . . suborning . or USSG § 3C1.1 cmt. n.4(A), (B). In view of the testimony presented both at trial and in the sentencing hearing, the district court did not clearly err in imposing this enhancement. Finally, Cheek twenty-seven-month conducting a challenges sentence for reasonableness the her review, abuse-of-discretion standard.” reasonableness new we of convictions. apply “a her In deferential Gall v. United States, 552 U.S. 38, 41 (2007). The court first “ensur[es] that the district court no committed improper significant calculation of the procedural Guidelines error,” range, including insufficient consideration of the 18 U.S.C. § 3553(a) (2012) factors, and inadequate explanation of the sentence imposed. United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010) (internal quotation marks omitted). Upon finding no procedural error, we examine the substantive reasonableness of the sentence under “the totality of the circumstances.” Gall, 552 U.S. at 51. The sentence imposed must be “sufficient, but not greater than necessary,” to 8 satisfy the goals of sentencing. below-Guidelines sentence is See 18 U.S.C. § 3553(a). presumed reasonable on A appeal. United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). The defendant bears the burden to rebut the presumption by showing “that the sentence is unreasonable when measured against the § 3553(a) factors.” United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks omitted). We discern no unreasonableness in Cheek’s sentence. district court considered its properly calculated applicability to the Guidelines Cheek, finding range the The and range inappropriate to the unique circumstances of her offense. The court conducted a thorough assessment of Cheek’s circumstances and sentencing factors, before Guidelines considerations, imposing range. Cheek a grounded sentence fails to in the substantially rebut reasonableness accorded this sentence. the § 3553(a) below presumption the of See Susi, 674 F.3d at 289; Montes-Pineda, 445 F.3d at 379. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal as to either Cheek’s convictions and resulting sentence, or as to the revocation of supervised release and the sentence imposed upon revocation. We therefore affirm Cheek’s convictions and sentences. This Court requires that counsel inform Cheek, in writing, the of right to petition 9 the Supreme Court of the United States for further review. If Cheek requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this Court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on Cheek. We dispense with oral argument because the facts and legal before contentions this Court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 10

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