United States v. Goodwin , 617 F. App'x 12 ( 2015 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 14-1165
UNITED STATES,
Appellee,
v.
ADAM GOODWIN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Howard, Chief Judge,
Torruella and Barron, Circuit Judges.
Edward S. MacColl and Thompson, Bull, Furey, Bass & MacColl,
LLC, P.A., on brief for appellant.
Margaret D. McGaughey, Appellate Chief, and Thomas E.
Delahanty II, United States Attorney, on brief for appellee.
July 21, 2015
TORRUELLA, Circuit Judge. Defendant-Appellant Adam
Goodwin pled guilty to conspiracy to possess with intent to
distribute Oxycodone, and to aiding and abetting the commission of
healthcare fraud. He now challenges his 108-month prison sentence
on the grounds that: (1) the four-level role enhancement was
unsupported by the evidence before the district court; (2) his
sentence is unreasonable because of the disparity with other co-
defendants; and (3) he is entitled to a reduction from a post-
sentencing retroactive change in the Sentencing Guidelines.
Finding no errors, we affirm.
I. Background
Because Goodwin's conviction is the result of a guilty
plea, we glean the facts from the plea colloquy, the Presentence
Investigation Report ("PSR"), and the transcripts of the
presentence conference and sentencing hearing. See United States
v. Arbour, 559 F.3d 50, 51 (1st Cir. 2009) (citing United States v.
Graciani, 61 F.3d 70, 72 (1st Cir. 1995). Although Goodwin
objected to several sections of the PSR -- to which reference is
made in this opinion -- the facts relevant to our analysis are not
in controversy.
Early in 2010, Goodwin became involved in a conspiracy to
distribute prescription pain medication, including the controlled
substance Oxycodone. The conspiracy had been orchestrated for
several years by Dr. John Perry, the owner of Atlantic Foot &
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Ankle, a podiatry clinic in Portland, Maine. Dr. Perry devised a
scheme by which he would issue hundreds of prescriptions for a
variety of controlled substances to individuals who had no real
medical need. In the process, Dr. Perry fabricated medical charts
and patient files that contained false information in an effort to
make it appear that those individuals were legitimate patients who
required the medication. Goodwin referred to Dr. Perry at least
some of these false patients. The prescriptions were then filled
at pharmacies throughout southern Maine, and some were paid for
through the Maine Care and Medicare health insurance programs. The
pills were delivered to third parties who would sell them
illegally, and the cash proceeds were in turn delivered to members
of the conspiracy, including Goodwin. Goodwin kept part of the
proceeds to finance a night club that he planned to open in
Westbrook, Maine.
During Goodwin's participation in the conspiracy, between
February and November 2010, Dr. Perry issued at least 150
prescriptions totaling over 10,000 pills to Goodwin, co-defendant
Neil Laverriere, and a group of six other participants. On some
occasions, it was Goodwin who was in charge of delivering cash --
usually $400.00 -- to Dr. Perry in compensation for the
prescriptions.
On November 28, 2012, Goodwin was charged with conspiracy
to possess with intent to distribute Oxycodone in violation of 21
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U.S.C. §§ 841(a)(1) and 846 ("Count 1"), and healthcare fraud in
violation of 18 U.S.C. § 1347 ("Count 2"). Goodwin pled guilty to
both charges on July 29, 2013.
The PSR recommended a base offense level of thirty two
for the drug conspiracy charge and a four-level enhancement for his
aggravating role as an "organizer or leader of a criminal activity
that involved five or more participants," pursuant to section
3B1.1(a) of the United States Sentencing Commission Guidelines
Manual ("USSG"). Goodwin documented his objections to this
recommendation, asserting that he should not receive a four-level
enhancement because "he did not recruit some of the identified
individuals; many of those individuals did not play an active role
in carrying out the instant offense, and their roles were so modest
that they were not charged with committing a crime. . . ."
At the presentence conference, the district judge asked
about Goodwin's objections to the recommendations in the PSR. The
defense counsel explained: "[w]e think that the enhancement is too
high. We are not saying there shouldn't be an enhancement, but
that enhancement is too high." The Government argued that it
favored the four-level enhancement and the district court responded
"It's your burden," signaling that the Government would have to
prove Goodwin's status as an organizer or leader of the conspiracy.
During the sentencing hearing, however, when this issue
arose, the Government presented no evidence of Goodwin's
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participation as an organizer or leader. Yet, the district court
still found that the four-level enhancement was justified. It
calculated the base offense level for Count 1 at thirty two and
added the four levels corresponding to the enhancement, for a total
of thirty six. For Count 2, it found a base offense level of six
and added the same four-level enhancement, for a total of ten.
Because Goodwin accepted responsibility, the district court reduced
the thirty six levels for Count 1, for a total offense level of
thirty three. Given Goodwin's Criminal History Category of III,
the calculation resulted in an advisory Guidelines range of 168 to
210 months. The district court granted the Government's request
for a twenty-five percent downward departure and additionally
issued a downward variance, and sentenced Goodwin to a below-the-
range total term of 108-month imprisonment on each of the counts,
to be served concurrently.
This appeal followed.
II. Discussion
A. The Four-Level Enhancement for Goodwin's Aggravating Role
The aggravating role enhancement of § 3B1.1(a) requires
that the district court find that "the defendant was an organizer
or leader of a criminal activity that involved five or more
participants or was otherwise extensive." USSG § 3B1.1(a). That
is, the district court must make two separate findings: (1) the
scope of the criminal activity involved five or more participants
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or was otherwise extensive; and (2) the status of the defendant was
that of an organizer or a leader of the criminal activity. Arbour,
559 F.3d at 53 (citing United States v. Tejada-Beltrán, 50 F.3d
105, 111 (1st Cir. 1995)). These findings are subject to a
preponderance of the evidence standard. Id. (citing United States
v. Pierre, 484 F.3d 75, 89 (1st Cir. 2007)); see also United States
v. Carrero-Hernández, 643 F.3d 344, 350-51 (1st Cir. 2011).
These scope-and-status determinations supporting the role
enhancement are reviewed for clear error. United States v.
Martínez-Medina, 279 F.3d 105, 123 (1st Cir. 2012) ("We review
role-in-the-offense [enhancements] . . . for clear error.");
Arbour, 559 F.3d at 53; United States v. Colón-Muñoz, 318 F.3d 348,
364 (1st Cir. 2003); see also Tejada-Beltrán, 50 F.3d at 110("Assessing a defendant's role in the offense is a fact-specific
task, suggesting by its very nature 'that considerable respect be
paid to the views of the nisi prius court.'" (quoting United States
v. McDowell, 918 F.2d 1004, 1011 (1st Cir. 1990))). Such a
conclusion will not be set aside unless we are "left with the
definite and firm conviction that a mistake has been committed" by
the district court. United States v. González-Meléndez, 594 F.3d
28, 35 (1st Cir. 2010) (quoting Arbour, 559 F.3d at 53); see also
United States v. Wright, 873 F.2d 437, 443-44 (1st Cir. 1989)
(explaining the rationale for applying clear error review).
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As to the district court's scope determination, Goodwin
argues on appeal that while he conceded at the sentencing hearing
that the conspiracy included more than five participants, this does
not mean that he recruited as many as five participants. In order
to meet the scope requirement to support a role enhancement the
district court only needs to find that the criminal enterprise is
extensive or that it included more than five participants. See
United States v. Lucena-Rivera, 750 F.3d 43, 50 (1st Cir. 2014)
(holding that a scope determination only requires finding "'that
the criminal activity met either the numerosity or the
extensiveness benchmarks established by the guideline'" (quoting
Carrero-Hernández, 643 F.3d at 350)); Arbour, 559 F.3d at 53 ("The
disjunctive language of § 3B1.1(a) is important -- a criminal
activity may be extensive even if [it] does not involve five or
more participants.").
Who is considered a member of the conspiracy for purposes
of the numerosity criterion is to be broadly construed, and all
persons involved in the conspiracy -- including outsiders -- can be
counted towards considering the conspiracy "extensive." See id.
(quoting USSG § 3B1.1 cmt. 3). Courts may look beyond the number
of participants to evaluate whether a conspiracy was "extensive" by
considering "the totality of the circumstances, including . . . the
width, breadth, scope, complexity, and duration of the scheme."
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Pierre, 484 F.3d at 89 (quoting United States v. Dietz, 950 F.2d
50, 53 (1st Cir. 1991)).
Based on the broad factors for considering a conspiracy
extensive, the district court did not clearly err in determining
that this conspiracy met the scope requirement under § 3B1.1(a).
According to Goodwin's own counsel's statements at the sentencing
hearing, "the four-point enhancement is a mistake not supported by
the evidence. . . . A two-or three-point enhancement would be
appropriate." He also stated that "[t]his was an ongoing scheme
that involved others over an extended period of time with which Mr.
Goodwin had no involvement." Then, he went on to acknowledge that
"we don't dispute that there were five people involved in this but
that Mr. Goodwin recruited or solicited the participation of five
folks, that is disputed." Based on this and the amended PSR, the
district court found that it was an extensive conspiracy,
"involving . . . more than a hundred prescriptions that were
filled in various pharmacies." Further, the district court
expressly concluded that "this criminal conspiracy . . . involved
five or more individuals and was extensive."
Goodwin claims that the Government's reliance on facts
contained in the PSR, which he timely objected to, is unavailing
because the government did not present additional corroborating
evidence. We note, however, that Goodwin's statements alone
clearly support a finding that this conspiracy either involved five
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or more people, or was extensive. Furthermore, even when a
defendant objects to facts in a PSR, the district court is entitled
to rely on the objected-to facts if the defendant's objections "are
merely rhetorical and unsupported by countervailing proof."
United States v. Prochner, 417 F.3d 54, 66 (1st Cir. 2005) (quoting
United States v. Cyr, 337 F.3d 96, 100 (1st Cir. 2003) (internal
quotation marks omitted). Goodwin admitted to the size of the
conspiracy in his objections to the PSR. His objections can be
reduced to the fact that he did not bring all of the people
mentioned in the PSR into the conspiracy. That is, he admits to
recruiting some but not all five co-conspirators. But, that is
irrelevant to this role enhancement. What matters is that the
conspiracy was extensive or included five or more participants.
Goodwin does not really object to the facts contained in the PSR;
in essence, his argument is that those facts do not trigger the
role-enhancement. Because the test for the scope of the conspiracy
was met, we conclude that the district court did not err. We now
examine Goodwin's claims regarding his status an organizer or
leader.
As to the status determination, Goodwin argues that he
did not design or engineer the illegal scheme, which was simply
presented to him, and that he did not coerce others into joining
the conspiracy. Admitting that he did invite others to join the
conspiracy and gave their names to Dr. Perry to issue prescriptions
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or create false records, he concedes that he "did ask some others
to lend their names and play a role." But, since imposing the
aggravating role enhancement requires a factual record, and the
Government failed to provide any evidence during the sentencing
hearing, Goodwin claims that there exists no evidence to support
the conclusion that he was an organizer or leader. As we explain
below, Goodwin's own admissions provided sufficient evidence on
which the district court could base its determination.
Goodwin argues that the district court did not make
adequate findings concerning his control over the conspiracy so as
to allow appellate review; and his "role" -- as reflected by the
record and even as described by the Government -- simply did not
involve the required degree of control.1 However, the inquiry over
a defendant's role in the conspiracy as an organizer or leader
requires an analysis of many factors, including:
the exercise of decision making authority, the nature of
participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the
1
In his Reply Brief, Goodwin stresses that Lucena-Rivera
established a requirement for an "element of control" over other
members of the conspiracy that he never had. Lucena-Rivera, 750
F.3d at 50. However, whether there was an "element of control"
over other co-conspirators is met as further explained therein.
Id. ("[I]t is not enough that the defendant merely controlled,
organized, or managed criminal activities[; he] must instead
control, organize, or manage criminal actors." (alteration in
original) (emphases added) (quoting United States v. Jones, 523
F.3d 31, 43 (1st Cir. 2008))).
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nature and scope of the illegal activity, and the degree
of control and authority exercised over others.
USSG § 3B1.1(a) cmt. n.4. And, when evaluating these, "there need
not be proof of each and every factor before a defendant can be
termed an organizer or leader." United States v. Rivera Calderón,
578 F.3d 78, 103 (1st Cir. 2009) (quoting Tejada-Beltrán, 50 F.3d
at 111); Tejada-Beltrán, 50 F.3d at 111 ("This list is intended to
be representative rather than exhaustive." (citing United States v.
Talladino, 38 F.3d 1255, 1260 (1st Cir. 1994)). Indeed, "the
guideline commentary makes plain that a defendant needs only to
have led or organized one criminal participant, besides himself of
course, to qualify as a leader or organizer under § 3B1.1(a)."
Arbour, 559 F.3d at 56 (emphasis in original). But there is no
need for a leadership role in the sense of having "some degree of
dominance or power in a hierarchy . . . . One may be classified as
an organizer, though perhaps not as a leader, if he coordinates
others so as to facilitate the commission of criminal activity."
Tejada-Beltrán, 50 F.3d at 112 (citing United States v. Rodríguez
Alvarado, 985 F.2d 15, 20 (1st Cir. 1993)). Thus, a defendant who
brings others into the criminal organization can be "the very
prototype of an organizer, serving as a magnet to bring others
together and thereby lend feasibility to the commission of the
crime." Id. at 113.
There can also be more than one member of a conspiracy
who qualifies as a leader or organizer, and "the mere fact that
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someone was [subordinate] to a conspirator does not establish,
without more, that the defendant was not an organizer or leader."
United States v. Appolon, 695 F.3d 44, at 71 (1st Cir. 2012)
(alterations omitted) (internal quotation marks omitted) (quoting
United States v. Casas, 356 F.3d 104, 109 (1st Cir. 2004)).
Here, Goodwin argues that the only claim made by the
Government related to his control over other participants was that
he provided names to Dr. Perry and that he asked those persons to
visit Dr. Perry for him to generate fake medical charts in their
names. He further asserts that to ask someone to "take a step" is
not the same as having "control" over that person. Again,
Goodwin's arguments on appeal are wrong in light of his admissions
before the district court. At the sentencing hearing, Goodwin
conceded that "he did ask some others to lend their names and play
a role." His argument at that hearing was that, in terms of the
hierarchy of the conspiracy, there were others with more
involvement and control. His attorney also explained that
Dr. Perry approached someone known to Goodwin and Goodwin got
involved when he saw this as an easy financial opportunity, but
Goodwin was not the leader. As to Goodwin's involvement in
bringing people into the conspiracy he added that "[m]any
participants who Mr. Goodwin did ask to be involved weren't
prosecuted at all." Finally, when Goodwin spoke at the sentencing
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hearing he added that he "did ask others to be involved and I
regret that."
According to the amended PSR, there were at least eight
other individuals on whose names Dr. Perry issued prescriptions
during the conspiracy and it was Goodwin who "recruited most of
these individuals." His specific objection to that language --
included in the PSR -- reads "[Goodwin] did not recruit some of the
identified individuals; many of those individuals did not play an
active role in carrying out the instant offense, and their roles
were so modest that they were not charged with committing a crime."
Because the status determination only requires that the
defendant served as an organizer of only one other participant,
which in turn includes bringing people into the conspiracy, the
fact that other participants had a higher degree of control over
the criminal enterprise does not help Goodwin. Thus, we do not
find clear error in the district court's determination that Goodwin
was an organizer of this conspiracy. See United States v. Díaz-
Díaz, 433 F.3d 128, 138-39 (1st Cir. 2005) (finding organizer
enhancement under § 3B1.1(a) for a defendant that recruited two
people into the conspiracy); see also United States v. Olivier-
Díaz, 13 F.3d 1, 5 (1st Cir. 1993).
B. The Sentence is Reasonable Despite Disparities
As a second issue on appeal, Goodwin argues perfunctorily
that he is entitled to resentencing because his co-conspirators
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received shorter sentences. Goodwin claims that 18 U.S.C.
§ 3553(a)(6) requires the court to consider "the need to avoid
unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct . . . ." He
asks for an even wider downward variance from his below-Guidelines
sentence (which the district court already both departed and varied
downward for a total reduction of sixty months from his
corresponding range) because the district court imposed upon him a
higher sentence compared to other allegedly more culpable
defendants, including Dr. Perry. Furthermore, Goodwin's sentence,
he adds, is unreasonable because it is three-times higher than co-
defendant Mr. Laverriere's -- who actually filled the illegal
prescriptions, sold the drugs to a third party who then sold them
on the street, and collected the cash.
We review the substantive reasonableness of a criminal
sentence for abuse of discretion. United States v. Trinidad-
Acosta, 773 F.3d 298, 308-09 (1st Cir. 2014). In doing so, we
first ask whether there were any procedural flaws in the
sentencing, and then determine whether there are any substantive
concerns.2 United States v. Vega-Salgado, 769 F.3d 100, 103 (1st
2
Goodwin's arguments seem only intended to be a substantive
challenge predicated on the disparity with his co-conspirators. In
any event, the district court did not commit any procedural errors,
such as "failing to calculate [] the Guidelines range, treating the
Guidelines as mandatory, failing to consider the section 3553(a)
factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence -- including an
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Cir. 2014). Avoiding disparities between co-defendants may be
considered in analyzing the reasonableness of a sentence, but "a
party is not entitled to a lighter sentence merely because his co-
defendants received lighter sentences". United States v. Dávila-
González, 595 F.3d 42, 50 (1st Cir. 2010) (quoting United States v.
Wallace, 573 F.3d 82, 97 (1st Cir. 2009) (internal quotation marks
omitted)). Instead, "[w]e afford the district court 'wide
discretion' in sentencing decisions." Wallace, 573 F.3d at 97(quoting United States v. Marceau, 554 F.3d 24, 33 (1st Cir. 2009).
The district judge detailed his grounds for the
sentencing determinations. He explained that he took "into account
the written presentence investigation report, everything I've heard
from counsel today, the evidence presented at this hearing, all of
the written submissions made by the defendant, the Government's
motion for a [§ 5K.1] with supporting information, and obviously
the allocution of this defendant." Then, he explained the
Guidelines range calculation, to which the defense assented.
Notably, the district court also stated that it considered all the
factors from § 3553(a), "most important in this case the nature and
circumstances of the offense, the history of the defendant, the
seriousness of this offense, the need for just punishment and the
need for deterrence." Additionally, the district court considered
explanation for any deviation from the Guidelines range."
Trinidad-Acosta, 773 F.3d at 309 (quoting United States v. Rivera-
Moreno, 613 F.3d 1, 8 (1st Cir. 2010).
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the "scourge of Oxycontin addiction in the state of Maine," the
"motivation of the defendant," and Goodwin's considerable criminal
record "involving some issues of violence and [Goodwin's]
noncriminal arrests, many of them involving assaults, [which
resulted in] accusations but not convictions . . . but [are
nonetheless] troubling." After considering those factors, the
district court still granted the Government's request for a twenty
five percent downward departure, and the court further varied
downwards from the Guidelines range and reached the 108-month
prison sentence it imposed.
A sentence is found to be substantively reasonable if it
is based on a "plausible sentencing rationale and [is] a defensible
result." United States v. Pol-Flores, 644 F.3d 1, 4-5 (1st Cir.
2011) (quoting United States v. Martin, 520 F.3d 87, 96 (1st Cir.
2008)). When a sentence falls within the Guidelines, a defendant
challenging it must "carry a heavy burden." United States v.
Maisonet-González, 785 F.3d 757, 762 (1st Cir. 2015) (quoting
United States v. Battle, 637 F.3d 44, 51 (1st Cir. 2011)). But,
for a sentence that is below-the-range to be found unreasonable is
even rarer. See United States v. Merritt, 755 F.3d 6, 12 (1st Cir.
2014); United States v. Madera-Ortiz, 637 F.3d 26, 30 (1st Cir.
2011) (holding that an appellant's argument must "adduce fairly
powerful mitigating reasons" to persuade the court of appeals that
the discretion afforded to the district court was abused) (quoting
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United States v. Navedo-Concepción, 450 F.3d 54, 59 (1st Cir.
2006))). This burden is to be analyzed based on the totality of
the circumstances. Rivera-Moreno, 613 F.3d at 8 (citing Gall v.
United States, 552 U.S. 38, 51 (2007)).
Looking at the totality of the circumstances, the
district court did not abuse its discretion in this analysis.
Goodwin's below-the-range sentence is substantively reasonable. He
challenges his sentence because of the disparity against his co-
conspirators, but the district court compared his personal factors,
including his extensive criminal record -- which the court
expressly recognized contained non-charged offenses -- as well as
the rest of the § 3553(a) factors. In so doing, the court issued
a sentence that is both plausible and defensible. Furthermore,
Goodwin does not show why his co-defendants were "identically
situated" to him. See Wallace, 573 F.3d at 97. The principle
behind avoiding disparities is to minimize disparities among
defendants nationally, not among co-defendants. United States v.
Torres-Landrúa, 783 F.3d 58, 69 (1st Cir. 2015) (quoting Dávila-
González, 595 F.3d at 49.
C. The Post-Sentencing Retroactive Amendment to the Sentencing
Guidelines
Goodwin's third and final argument is that we should
remand this case so that his sentence can take into account
Amendment 782 to the Sentencing Guidelines, which became effective
on November 1, 2014, and retroactively reduced most drug quantity
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base offense levels by two levels. See USSG App. C Supp.,
Amendment 782 (Nov. 1, 2014). According to 18 U.S.C. § 3582(c)(2)
"[d]istrict courts 'may' reduce prison terms if the defendant's
sentence was 'based on a sentencing range that has subsequently
been lowered by the Sentencing Commission . . . if such a reduction
is consistent with applicable policy statements issued by the
Sentencing Commission.'" United States v. Alejandro-Montañez, 778
F.3d 352, 362 (1st Cir. 2015) (quoting 18 U.S.C. § 3582(c)(2)).
The Sentencing Commission made this amendment retroactive, provided
that no potential sentencing reduction takes effect before November
1, 2015. See id. (citing USSG § 1B1.10(a)(1)). The Government
responds that we need not grant this request since Goodwin can file
a motion seeking that relief from the district court directly. It
adds that there is no need for an immediate ruling on this issue
because any relief granted by the district court will not be
effective until November 1, 2015.
We note that the district court attempted to initiate --
on its own motion -- the sentence modification proceedings allowed
under 18 U.S.C. § 3582(c)(2), but opted against continuing when
Goodwin filed a motion stating that it should wait until this
appeal was resolved. While the district court lacks the authority
to act on a § 3582(c)(2) motion during the pendency of an appeal,
once a mandate issues that bar is removed. See United States v.
Maldonado-Ríos, --- F.3d ---, 2015 WL 3652600 at *2 (1st Cir. June
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15, 2015). Accordingly, remand is not required. Upon issuance of
the mandate, the district court will be free to determine what, if
any, modification to Goodwin's sentence may be appropriate in light
of Amendment 782.
III. Conclusion
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED.
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