United States v. Tara L. McGavan , 138 F. App'x 241 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 24, 2005
No. 04-14383
THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 03-00059-CR-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TARA L. MCGAVAN,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Northern District of Florida
_________________________
(June 24, 2005)
Before BLACK and HULL, Circuit Judges, and HODGES*, District Judge.
PER CURIAM:
*
Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of
Florida, sitting by designation.
After pleading guilty, Tara L. McGavan appeals her concurrent 24-month
sentences for: (1) conspiracy to distribute, dispense and possess with intent to
distribute and dispense oxycodone, hydrocodone, fentanyl, morphine, methadone
and alprazolam, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), (D), and 846;
and (2) unlawfully dispensing oxycodone, in violation of 21 U.S.C. §
841(b)(1)(C). After review and oral argument, we affirm.
I. BACKGROUND
A. Offense Conduct
The FBI and Bay County, Florida, Sheriff’s Office conducted an
investigation into the medical practice of Dr. Freddy J. Williams. The results of
the investigation revealed that Dr. Williams provided Defendant McGavan and
other patients with prescription medication (“oxycodone”) after only a cursory
medical examination. Dr. Williams did not request the patients’ medical records,
took no x-rays, and did not conduct any tests to determine the patients’ medical
needs. Moreover, Dr. Williams enrolled Defendant McGavan into the Patient
Assistance Program so that she could receive oxycodone at no cost to her.
Defendant McGavan, who was previously addicted to heroin, became addicted to
oxycodone.
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McGavan shared a residence with another patient of Dr. Williams’s, Duane
Oxenham. After Oxenham arranged for Greg and Sommer Miller to become
patients of Dr. Williams’s, the Millers became addicted to oxycodone. Due to the
Millers’ heavy addiction, Defendant McGavan and Oxenham determined that they
should store the Millers’ oxycodone in a lock box at McGavan and Oxhenham’s
residence. By doing this, they could control how much pain medication was
distributed to the Millers and prevent the Millers from overdosing on oxycodone.
A federal grand jury charged McGavan, in a 96-count indictment, with
conspiracy to defraud the United States, in violation of 18 U.S.C. §§ 371 and 1349
(count 1); frauds and swindles, in violation of 18 U.S.C. § 1341 (counts 2-16);
health care fraud, in violation of 18 U.S.C. § 1347 (count 17); fraud by wire, radio,
or television, in violation of 18 U.S.C. § 1343 (counts 18-32); conspiracy to
distribute, dispense and possess with intent to distribute and dispense oxycodone,
hydrocodone, fentanyl, morphine, methadone and alprazolam, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(C), (D), and 846, (count 33); selling, distributing, or
dispensing controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C)
& (D), and 846 (counts 65, 68, 70-71, 77, 83-84); and knowingly distributing
oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), and (b)(1)(C) (count 93).
B. McGavan’s Guilty Plea
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Prior to Defendant McGavan’s guilty plea, the government submitted a
written statement of facts, wherein it stated that McGavan was responsible for
25,700 pills of oxycodone. At her change of plea hearing, McGavan pled guilty,
pursuant to a plea agreement, to counts 33 and 93, and the government agreed to
drop all the remaining charges. During the plea colloquy, McGavan admitted that
the government was correct in stating that she was responsible for 25,700 pills.
However, no mention was made as to the dosage of any of the 25,700 pills.
In the PSR, the probation officer calculated the drug quantity McGavan
would be responsible for based on the prescription records from Dr. Williams’
office issued to her and to the Millers. Based on the number of pills and dosage
amounts reportedly shown in the prescription records, the probation officer
concluded that McGavan was responsible for 36,738 pills of oxycodone with the
following dosage levels:
Pills prescribed to McGavan
1) 13,220 pills of oxycodone at the 5 mg quantity. These pills weigh
100 mg per unit. This calculates to 1,322 grams of oxycodone.
2) 2,304 pills of oxycodone at the 40 mg quantity. These pills weigh
135 mg per unit. This calculates to 311.04 grams of oxycodone.
3) 12,434 pills of oxycodone at the 80 mg quantity. These pills weigh
280 mg per unit. This calculates to 490 grams of oxycodone.
Pills prescribed to the Millers
1) 4,900 pills of oxycodone at the 5 mg quantity. These pills weigh
100 mg per unit. This calculates to 490 grams of oxycodone.
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2) 390 pills of oxycodone at the 40 mg quantity. These pills weigh
135 mg per unit. This calculates to 52.65 grams of oxycodone.
3) 3,430 pills of oxycodone at the 80 mg quantity. These pills weigh
280 mg per unit. This calculates to 960.4 grams of oxycodone.
4) 60 pills of oxycodone at the 160 mg quantity. These pills weigh
520 mg per unit. This calculates to 31.2 grams of oxycodone.
The defendant was held accountable for a total of 6,648.81 grams of
oxycodone. According to the 2002 Guidelines, one gram of oxycodone equals 500
grams of marijuana. Therefore, the defendant was held responsible for 3,324.41
kilograms of marijuana. Based on this drug amount, the PSI calculated a base
offense level of 34, and with a three level reduction for acceptance of
responsibility, McGavan’s total offense level was 31. With a criminal history
category of III, McGavan’s guideline range was 135-168 months’ imprisonment.
McGavan objected to the PSR on the grounds that pursuant to Blakely v.
Washington, 124 S. Ct. 2531 (2004), a jury, not a judge, was responsible for
determining drug quantities, and that she was thus not admitting to the number of
pills or dosages. Specifically, McGavan objected as follows:
In calculating the base offense level in the Pre-Sentence Investigation
Report, the Defendant objects to both the number of pills she is charged
with as well as the dosage amounts. The Supreme Court recently held
that a defendant’s maximum sentence must be based solely on the basis
of the facts reflected in a jury verdict or admitted by the defendant. See
Blakely v. Washington, 124 S. Ct. 2531. In this case, there are not jury
findings relating to the Defendant and the Defendant has only admitted
to an amount of 25,700 pills of unknown dosage as specified in the
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Statement of Facts supporting her Plea and Cooperation Agreement, as
opposed to the 36,738 pills with specific dosages listed in the Pre-
Sentence Report. No admission regarding the weight or milligrams of
any pills was made nor can one be presumed or attributed.
District Court Docket #116.1
C. Sentencing
The district court concluded that Blakely did not apply to the federal
Sentencing Guidelines and “adopt[ed] the factual findings and guideline
application in the Presentence Report.” However, the district court granted the
government’s § 5K1.1 motion, finding that McGavan provided substantial
assistance, and determined that McGavan was entitled to a departure below the
low end of the guidelines. The district court noted that McGavan’s guideline
range was 135-168 months’ imprisonment, but that her substantial assistance
warranted a 24-month sentence on each count to run concurrently. After
sentencing McGavan to 24 months’ imprisonment, the district court stated:
1
The probation officer summarized the objection in the PSR as follows:
Charles Williams and Rhonda S. Clyatt, appointed counsel, have made one objection
to the presentence report in a motion filed on July 27, 2004. The objection relates to
the drug weight accountability for the defendant. The defense contends the defendant
admitted to only 25,700 pills of an unknown dosage. The presentence report lists
36,738 pills at various specified pill weights. The defense states that in light of
Blakely v. Washington, 124 S. Ct. 2531, the defendant should not be held
accountable for the weights established in the presentence report because those facts
were not presented to or established by a jury.
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Although significantly below the minimum of the calculated sentencing
range, I do find that this term of imprisonment is sufficient to punish
you for your conduct, Ms. McGavan, as well as to deter others who
might engage in similar-type conduct. I have carefully considered the
factors set out in 18 U.S.C. § 3553A including the applicable guidelines
and policy statements issued by the Sentencing Commission.
One of the reasons I’ve sentenced you to 24 months is so that you
can participate in a residential drug abuse treatment program that is
offered in the Bureau of Prisons, and I do want you to participate in that.
I do find that you should be eligible for that based on your history, your
substance abuse history, and I do hope that you will participate fully in
that program, take it seriously and if you do, I do believe you will
benefit from that.
McGavan appeals.
II. DISCUSSION
McGavan argues that the district court erred under United States v. Booker,
125 S. Ct. 738 (2005), when it enhanced her sentence based on facts that were not
charged in the indictment and that she did not admit. Specifically, McGavan
points out that she did not admit to either the additional pills of oxycodone or to
the dosage of any of the pills.
In Booker, the Supreme Court concluded that Blakely applied to the
Sentencing Guidelines. United States v. Rodriguez, 398 F.3d 1291, 1297-98 (11th
Cir. 2005), cert. petition filed, 73 USLW 3531 (Feb. 23, 2005) (No. 04-1148).
Under Booker, “there are two kinds of sentencing errors: one is constitutional and
the other is statutory.” United States v. Dacus, 408 F.3d 686, 688 (11th Cir. 2005).
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“[T]he Sixth Amendment right to trial by jury is violated where under a mandatory
guidelines system a sentence is increased because of an enhancement based on
facts found by the judge that were neither admitted by the defendant nor found by
the jury.” Rodriguez, 398 F.3d at 1298. The statutory error occurs when the
district court sentences a defendant “under a mandatory Guidelines scheme, even
in the absence of a Sixth Amendment enhancement violation.” United States v.
Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).
We first conclude that based on the prescription records the district court
correctly determined both drug quantity and guideline range. Nonetheless,
McGavan’s Sixth Amendment rights were violated because McGavan’s sentence
was enhanced, under a mandatory guideline system, based on facts neither found
by a jury nor admitted by her.2 Specifically, the district court held McGavan
responsible for 36,738 pills of oxycodone of various dosages even though
McGavan admitted to only 25,700 pills of oxycodone of an unspecified dosage.
2
As noted earlier, the number of pills and their respective dosages were obtained from
available prescription records from Dr. Williams’s office. The defendant does not contend, either
before the district court or this Court, that the PSR inaccurately described the prescription records
obtained from Dr. Williams’s office. Furthermore, the defendant does not dispute the PSR’s
conversion of oxycodone into an equivalent amount of marijuana.
Nonetheless, the defendant consistently made it clear that she was not admitting to those
amounts. While the amounts in the prescription records were sufficient to sustain the district court’s
fact findings as to drug quantity, McGavan still did not admit those amounts, and thus there remains
a Sixth Amendment violation.
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The Sixth Amendment violation stemmed not from the district court’s extra-
verdict enhancements, but from the district court’s use of those extra-verdict
enhancements in sentencing McGavan in a mandatory guidelines scheme.
Rodriguez, 398 F.3d at 1301.
Because McGavan properly preserved her Booker claim in the district court
by objecting based on Blakely, we review the defendant’s Booker claim de novo
and determine whether the error is harmless. See United States v. Paz, 405 F.3d
946, 948 (11th Cir. 2005). “To find harmless error, we must determine that the
error did not affect the substantial rights of the parties.” Id. (quoting United States
v. Hernandez, 160 F.3d 661, 670 (11th Cir. 1998)). “A constitutional error, such as
a Booker error, must be disregarded as not affecting substantial rights if the error
is harmless beyond a reasonable doubt.” Id. (internal quotation marks,
punctuation and citation omitted).
After reviewing the record, we conclude that the government has met its
burden of showing that the Booker constitutional error was harmless. See Paz,
405 F.3d 948-49. In Paz, which was a Booker-constitutional-error case, we
explained that harmless error analysis puts the burden on the government to show
“beyond a reasonable doubt that the error complained of did not contribute to the
sentence obtained.” Id. at 948 (quotation marks, punctuation, and citation
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omitted). Thus, the government must show beyond a reasonable doubt “that the
mandatory, as opposed to the advisory, application of the guidelines did not
contribute to the defendant’s sentence.” United States v. Davis, 407 F.3d 1269,
1271 (11th Cir. 2005).
In this case, the district court properly: (1) held McGavan responsible for
36,738 pills of oxycodone of specified dosages; and (2) calculated McGavan’s
guideline range. The district court, in selecting a 24-month sentence, specifically
considered the sentencing factors in § 3553(a), and determined that a 24-month
sentence was warranted so that McGavan could participate in drug treatment
programs while in prison.1 Simply put, because the district court granted the
government’s § 5K1.1 motion, it was not constrained by the mandatory guideline
range when it selected a 24-month sentence. Moreover, the magnitude of the
downward departure and the reason the district court chose McGavan’s particular
1
In Davis, 407 F.3d at 1271, this Court concluded that “the sentencing court could not
permissibly consider the sentencing factors announced in 18 U.S.C. § 3553(a) when exercising is
discretion” under § 5K1.1. However, in United States v. Luiz, 102 F.3d 466, 469-70 (11th Cir. 1996),
this Court permitted the sentencing court, when exercising its discretion under § 5K1.1, to consider
the fact that the defendants were charged “leniently” by the government when compared to their
offense conduct described in the PSI. One of the factors listed under 18 U.S.C. § 3553(a) is “the
nature and circumstances of the offense.” 18 U.S.C. § 3553(a)(1). The decision to charge a
defendant leniently could certainly be considered within the ambit of “the nature and circumstances
of the offense.” We need not resolve any arguable tension between Davis and Luiz because it is
clear that under Booker a district court may now consider the factors in § 3553(a) and that the
Booker error in this case was harmless beyond a reasonable doubt.
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sentence demonstrate that any Booker error did not affect the ultimate sentence.
Thus, we easily conclude that the government has established that the Booker-
error in this case was harmless beyond a reasonable doubt.
AFFIRMED.
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