[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15114 OCTOBER 12, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 0:10-cr-60007-WPD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALGIRDAS KRISCIUNAS,
Defendant-Appellant.
________________________
No. 10-15214
Non-Argument Calendar
________________________
D.C. Docket No. 0:10-cr-60007-WPD-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARIA TERESA BULICH,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(October 12, 2011)
Before HULL, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Algirdas Krisciunas and Maria Teresa Bulich appeal following their
convictions and sentences for conspiracy to dispense a controlled substance,
oxycodone, without authorization by law, in violation of 21 U.S.C. § 846 (Count
1) and dispensing oxycodone without authorization by law, in violation of
21 U.S.C. § 841(a)(1) (Counts 3-7). Krisciunas appeals his 97-month total
sentence, contending the sentence was substantively unreasonable in light of his
age, health, and otherwise law-abiding history. Maria Teresa Bulich appeals her
convictions and 78-month total sentence, arguing (1) the evidence presented at
trial was insufficient to convict her on the conspiracy or substantive charges, and
2
(2) the district court erred by applying a managerial role enhancement at
sentencing, pursuant to U.S.S.G. § 3B1.1(c). After review, we affirm.
I.
Krisciunas challenges the substantive reasonableness of his total sentence.1
We determine whether the sentence imposed is substantively reasonable in light of
the 18 U.S.C. § 3553(a) factors. Gall v. United States,
552 U.S. 38, 51 (2007).
The sentencing court shall impose a sentence “sufficient, but not greater than
necessary” to comply with the purposes of sentencing, namely, to reflect the
seriousness of the offense, promote respect for the law, provide just punishment
for the offense, deter criminal conduct, protect the public from further criminal
conduct by the defendant, and provide the defendant with needed educational
training, vocational training, medical care, or other correctional treatment in the
most effective manner. 18 U.S.C. § 3553(a)(2). In imposing a particular sentence,
the court must also consider the nature and circumstances of the offense, the
history and characteristics of the defendant, the kinds of sentences available, the
applicable Guidelines range, the pertinent policy statements of the Sentencing
1
By failing to challenge the procedural reasonableness of his sentence, Krisciunas has
abandoned this issue on appeal. See United States v. Jernigan,
341 F.3d 1273, 1283 n.8 (11th
Cir. 2003)
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Commission, the need to avoid unwarranted sentencing disparities, and the need to
provide restitution to victims. 18 U.S.C. § 3553(a)(1), (3)-(7).
Krisciunas has not met the burden of showing that his 97-month total
sentence was substantively unreasonable.2 It was within the applicable Guidelines
range, and we ordinarily expect such a sentence to be reasonable. See United
States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005) (“[W]hen the district court
imposes a sentence within the advisory Guidelines range, we ordinarily will expect
that choice to be a reasonable one.”). Although he asserts the district court failed
to properly consider his age, health, and previous law-abiding history, this
argument is contradicted by the fact the court specifically noted it considered his
age and health before sentencing, questioned the Government about the
sufficiency of a sentence for a man of his age, and accounted for his lack of
criminal history by ascribing him a criminal history category of I. Moreover, the
district court determined that pain clinics–in which unscrupulous doctors such as
Krisciunas prescribed drugs to addicts–were a serious problem in the community,
and it was appropriate to fashion a sentence that would act as a deterrent to others
2
We review the reasonableness of a sentence “under a deferential abuse-of-discretion
standard.”
Gall, 552 U.S. at 41. “[T]he party who challenges the sentence bears the burden of
establishing that the sentence is unreasonable in the light of both [the] record and the factors in
section 3553(a).” United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005).
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who might otherwise commit a similar offense. Consequently, Krisciunas’s
sentence was substantively reasonable and we affirm his 97-month total sentence.
II.
A. Sufficiency of the evidence
Bulich challenges the sufficiency of the evidence with regard to her
convictions. “We review de novo the denial of a motion for acquittal and the
sufficiency of the evidence to sustain a conviction.” United States v. Tampas,
493
F.3d 1291, 1297 (11th Cir. 2007).3 We will uphold a jury’s verdict if a reasonable
jury, viewing the evidence and all reasonable inferences in the light most
favorable to the government, could find the defendant guilty as charged beyond a
reasonable doubt.
Id. at 1297-98. “It is not our function to make credibility
choices or pass upon the weight of the evidence. Instead, we must sustain the
verdict where there is a reasonable basis for it.” United States v. Farley,
607 F.3d
1294, 1333 (11th Cir.), cert.denied,
131 S. Ct. 369 (2010) (quotations and citation
omitted).
The elements of a conspiracy offense under 21 U.S.C. § 846 are: “(1) an
agreement between the defendant and one or more persons, (2) the object of which
is to do either an unlawful act or a lawful act by unlawful means.” United States v.
3
Bulich moved for acquittal at the close of the government’s case, which the district court
denied, and she presented no evidence in her own defense.
5
Toler,
144 F.3d 1423, 1426 (11th Cir. 1998). “To sustain a conviction under an
aiding and abetting theory, the prosecution must show that the defendant
associated [her]self with a criminal venture, participated in it as something [s]he
wished to bring about, and sought by [her] actions to make it succeed.” United
States v. Pantoja-Soto,
739 F.2d 1520, 1525 (11th Cir. 1984) (quotations omitted).
Practitioners, such as doctors and pharmacists, are afforded a limited
exemption to the controlled substances statute. See United States v. Steele,
147
F.3d 1316, 1318 (11th Cir. 1998) (en banc). Practitioners can be prosecuted,
under § 841, however, for dispensing controlled substances “when their activities
fall outside the usual course of professional practice” and are not prescribed “for a
legitimate medical purpose.” United States v. Moore,
423 U.S. 122, 124 (1975)
(usual course of professional practice); see also United States v. Betancourt,
734
F.2d 750, 757 & n.7 (11th Cir. 1984) (legitimate medical purpose).
Bulich’s convictions for conspiracy, Count 1, and aiding and abetting the
unlawful dispensing of oxycodone, Counts 3 through 7, were supported by
sufficient evidence. Bulich worked in a supposed medical clinic teeming with
drug addicts and had employees using drugs on the premises. Witnesses testified
Bulich was specifically informed the clinic’s records were falsified and patients
were addicts. Witnesses testified Bulich began to order a specific brand of
6
oxycodone after being told it was addict-preferred. Based on the evidence, a
reasonable jury could infer an agreement to unlawfully dispense oxycodone from
the fact it occurred so openly. Moreover, the evidence entitled the jury to find that
Bulich shared a community of purpose with Krisciunas, in which she assisted his
criminal actions in the hopes that they would succeed, namely by dispensing the
prescription drugs he prescribed.
Accordingly, the Government established Bulich agreed to and assisted the
unlawful dispensing of oxycodone. Based on overwhelming evidence, Bulich was
not operating the clinic as a legitimate medical office, but instead was acting as a
dispensary for oxycodone to individuals who were not in medical need of it.
Therefore, the Government presented sufficient evidence at trial to convict on
Counts 1 and 3 through 7, and we affirm Bulich’s convictions.
B. Managerial role enhancement
Bulich challenges the district court’s application of a managerial role
enhancement at sentencing. “A defendant's role as an organizer or leader is a
factual finding that we review for clear error to determine if the enhancement
under § 3B1.1 was applied appropriately.” United States v. Ramirez,
426 F.3d
1344, 1355 (11th Cir. 2005). A two-level enhancement is appropriate where “the
defendant was an organizer, leader, manager, or supervisor in any criminal
7
activity.” U.S.S.G. § 3B1.1(c). “The assertion of control or influence over only
one individual is enough to support a § 3B1.1(c) enhancement.” United States v.
Perry,
340 F.3d 1216, 1217 (11th Cir. 2003) (quotations and alteration omitted).
Thus, where the defendant arranges drug transactions, negotiates sales, and hires
others to work for the conspiracy, a managerial-role enhancement is warranted.
United States v. Matthews,
168 F.3d 1234, 1249-50 (11th Cir.1999).
The district court did not clearly err by applying a two-level managerial role
enhancement at sentencing. At trial, evidence was presented that Bulich was the
owner and proprietor of the clinic, had the power to hire and fire employees,
dictated orders to employees including Krisciunas, had sole control over the
oxycodone, and ordered the oxycodone pills. Consequently, she asserted control
and influence over other individuals, arranged drug transactions, and otherwise led
the criminal activity afoot at the clinic. Accordingly, the district court did not err,
clearly or otherwise, by assessing Bulich a managerial role enhancement, and we
affirm.
III.
We conclude Krisciunas’s total sentence was substantively reasonable. We
further conclude Bulich’s convictions were supported by sufficient evidence, and
8
the district court did not err in applying a managerial role enhancement to Bulich
at sentencing.
AFFIRMED.
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