United States v. Sipsy , 287 F. App'x 270 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4243
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LONNIE KEITH SIPSY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin, Chief
District Judge. (2:07-cr-00189-JRG-1)
Submitted: July 14, 2008 Decided: July 29, 2008
Before MICHAEL and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Wilmer Parker, III, Agne Krutules, MALOY JENKINS PARKER, Atlanta,
Georgia, for Appellant. Charles T. Miller, United States Attorney,
Monica K. Schwartz, Assistant United States Attorney, Charleston,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lonnie Keith Sipsy, a medical doctor, pled guilty to
knowingly and intentionally obtaining hydrocodone, a Schedule III
controlled substance, by deception and subterfuge, in violation of
21 U.S.C. § 843(a)(3) (2000). During his Rule 11 hearing, Sipsy
admitted that he issued prescriptions for hydrocodone in the names
of four different people with the understanding that some or all of
the pills would be returned to him for his own use and for the
purpose of feeding his addiction. The district court sentenced
Sipsy to 12 months’ imprisonment in conformity with his advisory
guidelines range. On appeal, Sipsy argues the district court
clearly erred in enhancing his advisory guidelines range four
levels pursuant to U.S. Sentencing Guidelines Manual (“U.S.S.G.”)
§ 3B1.1 for being an organizer or leader of criminal activity that
involved five or more participants. We affirm the judgment of the
district court.
A district court is authorized to enhance a defendant’s
advisory guidelines range four levels if the defendant was an
organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive. U.S.S.G. § 3B1.1(a).
A district court need only find the facts supporting a § 3B1.1(a)
enhancement by a preponderance of the evidence. See United States
v. Urrego-Linares, 879 F.2d 1234, 1238 (4th Cir. 1989). A district
court’s determination that a defendant was a leader or organizer
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of criminal activity is a factual issue that is reviewed for clear
error. United States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002).
This deferential standard of review requires reversal only if this
court is “left with the definite and firm conviction that a mistake
has been committed.” United States v. Stevenson, 396 F.3d 538, 542
(4th Cir. 2005) (quoting Anderson v. Bessemer City, 470 U.S. 564,
573 (1985)).
We have reviewed the record and cannot conclude that the
district court clearly erred in enhancing Sipsy’s advisory
guidelines range four levels pursuant to § 3B1.1(a). During his
Rule 11 hearing, Sipsy confessed to writing false prescriptions for
hydrocodone for Kerri Cyphers, Rick Combs, and Christy Workman, who
would then obtain the pills and bring them back to Sipsy. Sipsy
would share some of the pills with his accomplices but wrote the
false prescriptions to feed his own addiction to hydrocodone. As
the district court found, Sipsy and Dr. Jeffrey Bates exercised
decision making authority over the other three in that only Sipsy
and Bates had the power to write prescriptions. Moreover, as Sipsy
had the ability to prescribe the medication, he could control which
of his three accomplices to use, when the hydrocodone would be
prescribed, and in what quantity and strength.
While Sipsy argues there is no evidence he recruited his
accomplices into his criminal activity, Sipsy’s argument defines
“recruit” too narrowly. Also, Sipsy’s suggestion that he was
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recruited by Cyphers, Combs, Workman, or Dr. Bates is implausible
in light of his admissions in the district court that he was
addicted to hydrocodone and wrote false prescriptions to feed his
own addiction. Finally, the cases relied on by Sipsy to support
his argument that § 3B1.1(a) was improperly applied in his case are
unavailing.
Sipsy next argues the two-level enhancement he received
pursuant to § 3B1.3 resulted in double counting as his ability to
write prescriptions was already accounted for in his enhancement
pursuant to § 3B1.1. Sipsy’s argument is based on the false
premise that the district court applied the § 3B1.3 enhancement
because of his “special skill” or ability to prescribe medication.
The record indicates that the district court applied the § 3B1.3
enhancement because of Sipsy’s abuse of a position of trust and not
because of his ability to prescribe medication. Sipsy abused his
position of trust when he continued to treat patients while
illegally acquiring and abusing hydrocodone and when insurance
providers were billed for the false prescriptions.
Sipsy next argues that the district court clearly erred
in finding that he was “a common drug dealer.” Sipsy appears to
argue that, because he was addicted to hydrocodone and because he
was not distributing drugs in exchange for money, the district
court should not have compared him to a “common drug dealer.”
During his Rule 11 hearing, Sipsy admitted to using his accomplices
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to distribute drugs to himself and then back to his accomplices.
That he received drugs instead of money for his efforts is
immaterial, and his third argument is without merit. We likewise
reject Sipsy’s argument that even assuming he was a common drug
dealer, such a finding does not warrant a four-level leadership
enhancement under § 3B1.1(a). See Sayles, 296 F.3d at 225.
Sipsy’s final argument is that the district court erred
in applying the § 3B1.1 enhancement because his accomplice, Dr.
Bates, engaged in similar conduct but did not receive an
enhancement under § 3B1.1. Sipsy’s argument is without merit.
Accordingly, we affirm the judgment of the district court.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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