Sentencing Partners (July) 2013 – Part II

Case Summaries

Offense Conduct (Chapter 2)
United States v. Ihenancho
2013 WL 2939003 (1st Cir 2013)
Offense caused a “loss” within the meaning of guidelines

The defendant owned and operated a pharmacy in Massachusetts. He was convicted of dispensing and shipping drugs to customers pursuant to invalid online prescriptions. Between September 2006 and November 2008, the defendant filled thousands of operations, distributing controlled and non-controlled substances, without valid prescriptions, to persons who ordered them online by filling out questionnaires via these Internet pharmacies. It was determined that many of the customers could not obtain the medications by valid prescriptions and so they chose the defendant’s pharmacy, and that many of the Internet customers had drug addictions that were exacerbated by the easy availability of prescription drugs. It was also determined that the defendant of his designees received a total of $3,234,848.90 from all of the Internet pharmacy operations with which he was involved. The district court used the amount as the amount of loss and imposed a sentence of 63 month. On appeal, the defendant argued that the government failed to show that his customers suffered any loss since the drugs dispensed were not counterfeit and his customers did not expect the drugs dispensed were not counterfeit and his customers did not expect the drugs to be dispensed pursuant to a valid prescription. He furthered argued that using the gross receipts as the loss amount failed to account for the amount paid to drug wholesalers to procure the drugs. The First Circuit rejected the first argument, finding that although the customers received entirely legally prescribed drugs, “it is clear that many of these transactions would never have take place in the absence of the fraud because the patients could not and would not have received a prescription had they seen a legitimate physician.” As for the second argument, the court noted that the issue was “complex because the victims of the scheme got exactly what they wanted – prescription drugs for which they had not received proper prescriptions. They were complicit in the fraud and, in that sense, the drugs were not worthless to them. Nonetheless, we find the loss calculation to be reasonable for two interrelated reasons. To the extent that the drugs had value at all in this context, it was quite limited. There is the dangerous and harmful nature of medications dispensed without valid prescriptions. Here is no reason to think these vials of drugs with labels had an after-sale retail value. Moreover, it is reasonable to think that, but for the existence of these Internet pharmacies allowing customers to obtain drugs without valid prescriptions, these payments (or most of them) would not have been made at all. In general, many customers of Internet pharmacies would be unable to obtain valid prescriptions for the drugs they order. That being so, it was reasonable for the district court to use the $3.2 million figure as a loss amount to determine the guidelines range.”

United States v. Martinez-Flores
2013 WL 3064797 (5th Cir. 2013)
Prior N.J. conviction for third degree aggravated assault not a crime of violence

The defendant pled guilty to illegal reentry into the United States after deportation. Previously, he had been charges with second degree aggravated assault in New Jersey, but had plead guilty to third degree aggravated assault. The district court, relying on United States v. Ramirez 557 F.3d 200 (5th Cir. 2009) (district court did not plainly err in ruling that New Jersey conviction for third degree aggravated assault constituted crime of violence), ruled that the prior conviction was a crime of violence and increased the defendant’s offense level by 16 levels, pursuant to §2Ll.2 (b)(1)(A)(ii). On appeal, the Fifth Circuit explained that in Ramirez, the court reviewed only for plain error and “did not separately analyze the prongs of the plain error test, and thus, it never squarely addressed whether, under the first prong, the district court committed error of any sort.” Reviewing the present case de novo, the court analyzed the difference between “serious bodily injury” and “significantly bodily injury” and determined that the New Jersey legislature carved “out a lesser included offense when it enacted third degree aggravated assault and only required significant bodily injury. Simply put, significant bodily injury does not rise to the level of serious bodily injury. Serious bodily injury is a common aggravating factor that elevates simply assault to aggravated assault and is part of the contemporary, generic meaning of aggravated assault. [W]e are persuaded that causing that causing or attempting to cause significant bodily injury does not fall within the common sense meaning of aggravated assault. Stated another way, the difference between serious bodily injury and significant bodily injury is certainly not a ‘slight imprecision. Indeed, the difference is such that it precludes this Court from finding a sufficient equivalence. Thus, [the defendant’s] third degree aggravated assault conviction does not constitute an enumerated offense.”

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