United States v. Wendy Chriss ( 2011 )


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  •             IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT United States Court of Appeals
    Fifth Circuit
    FILED
    July 12, 2011
    No. 10-30099                         Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee
    v.
    TANDY W. MCELWEE, JR.; AVA CATES MCELWEE,
    Defendants - Appellants
    -------------------------------------------------------------------------------
    Consolidated with 10-30101
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee
    v.
    WENDY KATHLEEN BENSON CHRISS
    Defendant - Appellant
    Appeals from the United States District Court
    for the Western District of Louisiana
    Before JOLLY and HAYNES, Circuit Judges, and VANCE, District Judge.*
    *
    Chief Judge of the Eastern District of Louisiana, sitting by designation.
    No. 10-30099
    E. GRADY JOLLY, Circuit Judge:
    Before the court are three former employees of a private medical practice
    who stand convicted for engaging in a conspiracy to fraudulently obtain large
    amounts of hydrocodone, a controlled dangerous substance. The conspiracy
    involved submission of fabricated prescriptions to local pharmacies and
    falsification of patient medical records to conceal the fraudulence of the
    prescriptions.   Appellants were found guilty of various charges, including
    conspiracy to obtain a controlled substance by fraud, and were sentenced to
    respective terms of imprisonment. All three Appellants challenge their
    sentences, and one Appellant contests the grounds for her conviction as well.
    For the reasons that follow, we AFFIRM on all issues.
    I.
    Appellant Tandy McElwee (“Dr. McElwee”) was an OB/GYN physician who
    maintained a practice in Bossier City, Louisiana. There he supervised 13
    employees including his wife, Appellant Ava McElwee (“Mrs. McElwee”), a nurse
    practitioner, and Appellant Wendy Chriss (“Chriss”), a registered medical
    assistant.   Dr. McElwee was authorized by the U.S. Drug Enforcement
    Administration (“DEA”) to prescribe lawful controlled substances, but he did not
    have a license to dispense controlled substances from the State of Louisiana.
    Over a period of years, employees of the medical practice employed a
    variety of fraudulent means to obtain hydrocodone medications including Lorcet,
    Lortab, Histussin HC, and Histinex HC, all of which are schedule III controlled
    dangerous substances.     To effectuate this conspiracy, Dr. McElwee made
    available to his employees pre-signed prescription pads, which were used to
    request refills of these hydrocodone-containing drugs from various pharmacies.
    Trial testimony suggested that the atmosphere in Dr. McElwee’s office was one
    that accepted and accommodated the daily use of hydrocodone.
    2
    No. 10-30099
    The coconspirators were able to obtain large amounts of hydrocodone
    medication by submitting pre-signed “prescriptions” in the names of fictitious
    persons, other family members, and in one case, even a family dog. For example,
    Chriss ordered hydrocodone using names like Kathleen Benson (her middle and
    maiden name), Eddie Chriss (her husband), Ayden Chriss (her child), Kristina
    Randall (her sister), and Rochelle Petouski (an alias for her sister). Dr. McElwee
    secured hydrocodone for himself and others by having his medical assistant,
    Rebecca Sandifer, go to the pharmacy to pick up prescriptions in the names of
    Sandifer’s children and her ex-husband. He also ordered prescriptions using the
    name of his dog “Brandi” and his daughter-in-law, Conchita McElwee. When
    questioned by a pharmacist, Dr. McElwee represented that “Brandi McElwee”
    was a patient under his care.
    Dr. McElwee authorized Chriss to order hydrocodone via the Internet from
    Moore Medical, LLC, and he testified that he kept a large 500-count bottle in his
    office for personal use and gave another 500-count bottle to Chriss for use by
    office personnel or their family members. Although Mrs. McElwee’s level of
    involvement in these schemes was disputed, many prescriptions—including for
    Lortab and Histussin HC—were filled out in her name, and she often retrieved
    the medications from the pharmacy. Another employee testified that she
    delivered prescriptions to Mrs. McElwee, and the jury apparently credited the
    trial testimony suggesting that Mrs. McElwee knew of and participated in the
    conspiracy.
    Dr. McElwee’s staff frequently submitted prescriptions to QVL Pharmacy
    (which was originally named “Safescript”). In June 2007, the Louisiana State
    Board of Medical Examiners (“LSBME”) issued subpoenas to QVL and to Dr.
    McElwee’s office for approximately 22 patient records, including requests for the
    patient records of Dr. McElwee’s staff and for the family members and fictitious
    “patients” under whose names the prescriptions had been filled. An employee
    3
    No. 10-30099
    of QVL notified Chriss about the LSBME subpoenas and sent Chriss a fax
    containing the details of prescriptions QVL had filled for Dr. McElwee’s office.
    Based on these records from the pharmacy, Chriss and other employees altered
    and falsified patient records to account for the prescriptions filled by QVL.
    Certain patient charts were fabricated wholesale, including those of “Rochelle
    Petouski” and “Missy Davis.” Furthermore, the record indicates that Mrs.
    McElwee participated in the falsification of patient records, specifically with
    respect to Conchita “Brandi” McElwee (the family dog’s name apparently having
    been added to the chart for Dr. McElwee’s daughter-in-law).1 These falsified
    records were submitted in response to the LSBME subpoena. In addition, Chriss
    created a dispensation log book with false names and prescription dates, at Dr.
    McElwee’s request, in order to account for the hydrocodone ordered through
    Moore Medical. Another employee testified that Mrs. McElwee said Chriss was
    “going to save our ass with that book.”
    Appellants were indicted along with five other codefendants in an 88-count
    indictment that included charges for conspiracy to obtain a controlled substance
    by fraud and conspiracy to possess with intent to distribute a controlled
    substance. Under a plea agreement, Chriss pleaded guilty to one count of
    conspiracy to possess with intent to distribute a controlled substance, in
    violation of 
    21 U.S.C. §§ 846
     and 841(a)(1). A jury found Dr. McElwee guilty of
    one count of conspiracy to obtain a controlled substance by fraud, in violation of
    
    21 U.S.C. §§ 846
     and 843(a)(3); nineteen counts of obtaining a controlled
    substance by fraud, in violation of 
    21 U.S.C. § 843
    (a)(3) and 
    18 U.S.C. § 2
    ; one
    1
    The chart for Conchita McElwee is noteworthy in that two witnesses identified Mrs.
    McElwee’s handwriting on an exam note in the chart. The note represents that “Conchita
    Brandi McElwee” came in for a vaginal examination and was prescribed Lortab for menstrual
    cramps, but Conchita—whose full name is actually Conchita Maria Iglesias McElwee—testified
    that she did not go by the name Brandi, that she never had a vaginal examination by Tandy
    or Ava McElwee, that she did not have problems with menstrual cramps, had never been
    prescribed Lortab, and did not use the QVL pharmacy.
    4
    No. 10-30099
    count of conspiracy to possess with intent to distribute; nine counts of possession
    with intent to distribute a controlled dangerous substance, in violation of 
    21 U.S.C. § 841
    (a)(1) and 
    18 U.S.C. § 2
    ; one count of providing false information in
    records required to be kept under Title 21, in violation of 
    21 U.S.C. § 843
    (a)(4)(A)
    and 
    18 U.S.C. § 2
    ; and one count of health care fraud, in violation of 
    18 U.S.C. §§ 1347
     and 2. The same jury found Mrs. McElwee guilty of one count of
    conspiracy to obtain a controlled substance by fraud and one count of obtaining
    or acquiring a controlled substance by fraud.
    At sentencing, the district court adopted the factual findings of the
    Presentence Investigation Report (“PSR”) with respect to Dr. McElwee and
    assessed an offense level of 20 and criminal history category of I. The court
    granted the Government’s motion for an upward variance from the Sentencing
    Guidelines range of 33 to 41 months, noting that points had not been assessed
    for inclusion of false information in a record required to be kept, and that the
    32,000 easily identifiable units of hydrocodone were “probably the tip of the
    iceberg.” Considering his role and the nature of the offense, the court sentenced
    Dr. McElwee to a total of 60 months in prison and a $550,000 fine, up to
    $400,000 of which is to be paid jointly and severally with Mrs. McElwee.
    Mrs. McElwee was assessed an offense level of 8 with a criminal history
    category of I, which yielded a Guidelines range of zero to six months. The court
    ultimately imposed a non-Guidelines sentence of 36 months of imprisonment and
    a $400,000 fine to be paid jointly and severally with Dr. McElwee.
    As to Chriss, the district court adopted the factual findings of the PSR and
    assessed an offense level of 16 with a criminal history category of I, imposing a
    21-month sentence of imprisonment followed by three years of supervised
    release, which was at the bottom of the Guidelines range.
    5
    No. 10-30099
    Dr. McElwee and Chriss timely appeal their sentences, while Mrs.
    McElwee appeals both her conviction and her sentence. We have jurisdiction
    under 
    28 U.S.C. § 1291
    .
    II.
    At the core of Appellants’ complaints on appeal are their challenges to the
    substantive reasonableness of their sentences. We review the reasonableness
    of a defendant’s sentence for abuse of discretion. See United States v. Gall, 
    552 U.S. 38
    , 46, 51 (2007). We “first ensure that the district court committed no
    significant procedural error” and then analyze substantive reasonableness by
    considering “the totality of the circumstances, granting deference to the district
    court’s determination of the appropriate sentence based on the § 3553(a) factors,
    and we may not reverse the district court’s ruling just because we would have
    determined that an alternative sentence was appropriate.” Id. at 51 (internal
    quotation marks, citations, and modifications omitted). We now turn to address
    the issues raised by the Appellants.
    A.
    We first consider the claims of Dr. McElwee, who challenges the
    reasonableness of his prison sentence and the fine imposed by the district court.
    1.
    Dr. McElwee first contests the length of the 60-month sentence imposed
    by the district court. We note, at the outset, that the district court did not
    commit any procedural error such as failure to calculate the Guidelines range
    or failure to consider the § 3553(a) factors.2 As to substantive reasonableness,
    we consider the totality of the circumstances, including the extent of any
    deviation from the Guidelines range, while affording “due deference to the
    district court’s decision that the § 3553(a) factors, on a whole, justify the extent
    2
    Indeed, Dr. McElwee does not allege any procedural error.
    6
    No. 10-30099
    of the variance.” United States v. Diaz, 
    637 F.3d 592
    , 603 (5th Cir. 2011). The
    factors a court shall consider in devising an appropriate sentence include:
    (1) the nature and circumstances of the offense and the history and
    characteristics of the defendant;
    (2) the need for the sentence imposed--
    (A) to reflect the seriousness of the offense, to promote respect for
    the law, and to provide just punishment for the offense;
    (B) to afford adequate deterrence to criminal conduct;
    (C) to protect the public from further crimes of the defendant; and
    (D) to provide the defendant with needed educational or vocational
    training, medical care, or other correctional treatment in the most
    effective manner[.]
    
    18 U.S.C. § 3553
    (a)(1)–(2). Other considerations are “the kinds of sentences
    available,” § 3553(a)(3); the Guidelines, § 3553(a)(4); “any pertinent policy
    statement” issued by the Sentencing Commission, § 3553(a)(5); “the need to
    avoid unwarranted sentence disparities,” § 3553(a)(6); and “the need to provide
    restitution to any victims,” § 3553(a)(7).
    Dr. McElwee argues that the district court did not appropriately weigh all
    the relevant § 3553(a) factors. Specifically, he contends that the court did not
    give adequate weight to his lack of criminal history, that “there was no evidence
    of a widespread distribution network traced back to [his] office,” and that Dr.
    McElwee’s abuse of trust had already been factored into the PSR’s Guidelines
    evaluation. He further argues that the district court’s attempt to send a
    message to the medical profession unduly punished him for his “socioeconomic
    status.”
    After considering these arguments, we nevertheless conclude that the
    district court did not abuse its discretion. Although a 60-month sentence is a
    substantial deviation from the Guidelines range of 33 to 41 months, it is
    “commensurate with the individualized, case-specific reasons provided by the
    7
    No. 10-30099
    district court.” United States v. Herrera-Garduno, 
    519 F.3d 526
    , 531 (5th Cir.
    2008). In justifying its decision, the district court observed that the Guidelines
    offense level did not take into account conduct such as the inclusion of false
    information in a record required to be kept, the fabrication and altering of
    patient medical charts, or health care fraud.3               Dr. McElwee also granted
    unlimited access to employees to obtain hydrocodone, and thus substantially
    more units of the controlled substance could have been attributed to him to
    increase his base offense level. In the light of these and other considerations set
    forth in the extensive colloquy with defense counsel at sentencing, the district
    court observed that the Sentencing Guidelines “did not capture the kind of
    special circumstance . . . presented by the evidence.” We afford due deference to
    this determination, particularly in the light of Dr. McElwee’s failure
    meaningfully to distinguish this case from others in which we have affirmed
    similar, and proportionately greater, upward deviations from the Guidelines.
    See, e.g., Brantley, 
    537 F.3d 347
    ; Herrera-Garduno, 
    519 F.3d 526
    ; United States
    v. Smith, 
    440 F.3d 704
     (5th Cir. 2006).
    2.
    Dr. McElwee next challenges the $550,000 fine assessed by the district
    court. Although he leveled a general objection to his sentence, Dr. McElwee did
    not file a specific objection to the $550,000 fine at sentencing.4 We therefore
    3
    The Government’s sentencing memorandum contained the further observation that
    there had been no enhancement for obstruction of justice despite Dr. McElwee having denied
    many of his actions at trial.
    4
    Counsel for Dr. McElwee claims that he had no notice that the district court was
    contemplating imposing such a large fine. This argument, however, is irrelevant. The
    Government filed a motion for a non-Guidelines sentence in this case and asked the court to
    impose a “substantial fine.” Even where the Government does not move for a non-Guidelines
    sentence, “sentencing courts are not required to give pre-sentencing notice of their sua sponte
    intention to impose a non-Guidelines sentence.” United States v. Mejia-Huerta, 
    480 F.3d 713
    ,
    723 (5th Cir. 2007). Moreover, at the very beginning of the sentencing hearing and well before
    announcing the fine, the district court gave notice that “[t]here is also the possibility of a
    [$250,000-per-count] fine for these particular counts . . . .”
    8
    No. 10-30099
    review the reasonableness of the fine for plain error. See United States v.
    Brantley, 
    537 F.3d 347
    , 351 (5th Cir. 2008); United States v. Neal, 
    578 F.3d 270
    ,
    272 (5th Cir. 2009) (“To preserve error, an objection must be sufficiently specific
    to alert the district court to the nature of the alleged error and to provide an
    opportunity for correction.”). The Guidelines provide that a fine shall be imposed
    “in all cases,” except where the defendant establishes an inability to pay. The
    burden of establishing an inability to pay is on the defendant. United States v.
    Landerman, 
    167 F.3d 895
    , 899 (5th Cir. 1999). The factors a sentencing court
    shall consider when imposing a fine are set forth in U.S.S.G. § 5E1.2(d).5
    Dr. McElwee argues that the $550,000 fine is unreasonable because it far
    exceeds the $75,000 maximum for his offense level of 20, as suggested in the
    Guidelines. The PSR shows that Dr. McElwee’s net worth is $119,477.80, with
    total debt of over $150,000.                Although the PSR does not contain a
    5
    Specifically, these considerations are:
    (1) the need for the combined sentence to reflect the seriousness of the offense
    (including the harm or loss to the victim and the gain to the defendant), to
    promote respect for the law, to provide just punishment and to afford adequate
    deterrence;
    (2) any evidence presented as to the defendant’s ability to pay the fine (including
    the ability to pay over a period of time) in light of his earning capacity and
    financial resources;
    (3) the burden that the fine places on the defendant and his dependents relative
    to alternative punishments;
    (4) any restitution or reparation that the defendant has made or is obligated to
    make;
    (5) any collateral consequences of conviction, including civil obligations arising
    from the defendant’s conduct;
    (6) whether the defendant previously has been fined for a similar offense;
    (7) the expected costs to the government of any term of probation, or term of
    imprisonment and term of supervised release imposed; and
    (8) any other pertinent equitable considerations.
    U.S.S.G. § 5E1.2(d). Furthermore, “[t]he amount of the fine should always be sufficient to
    ensure that the fine, taken together with other sanctions imposed, is punitive.” Id.
    9
    No. 10-30099
    recommendation regarding an appropriate fine amount, Dr. McElwee asserts
    that the PSR shows his “obvious inability . . . to pay anything close to” what was
    assessed, and that the district court erred by failing to make explicit factual
    findings justifying the deviation.
    Dr. McElwee’s argument is unavailing. Although the $550,000 fine is
    above the Guidelines range, the PSR reflects that Dr. McElwee has a monthly
    income of $22,240 through a personal disability policy, and that this policy will
    pay him at least $16,000 per month until his death.6 “Normally, a district court
    does not have to express reasons for imposing a fine as long as it is shown that
    the judge considered the defendant’s ability to pay.” United States v. Voda, 
    994 F.2d 149
    , 155 n.14 (5th Cir. 1993). In this case the district court considered Dr.
    McElwee’s ability to pay and adopted the facts in the PSR, which reflected an
    income on disability that easily covers—indeed, far exceeds—the fine amount,
    even when we limit our consideration to Dr. McElwee’s expected income from
    this policy while serving his prison sentence.7
    As noted above, in granting the Government’s motion for a non-Guidelines
    sentence, the district court explained that the Guidelines offense level did not
    take into account conduct such as the inclusion of false information in a record
    required to be kept, the fabrication and altering of patient medical charts, or
    health care fraud. Moreover, although the fine exceeds the Guidelines range, it
    is well within the statutory maximum fine of $250,000 on each count of Dr.
    McElwee’s conviction. For these reasons, and because Dr. McElwee has failed
    6
    Furthermore, it bears noting that the magnitude of the fine is diminished—and Dr.
    McElwee’s ability to pay correlatively augmented—by the district court’s decision to make Dr.
    McElwee and Mrs. McElwee jointly and severally liable for the $400,000 portion of the fine
    pertaining to the two counts on which they were both convicted.
    7
    Dr. McElwee has made no effort to show that there will be any interruption in his
    receipt of disability payments during his prison term.
    10
    No. 10-30099
    to meet his burden of demonstrating an inability to pay, we conclude that the
    district court did not err in imposing a fine of $550,000.8
    B.
    We next turn to Mrs. McElwee, who contests both her conviction and her
    sentence. She disputes the sufficiency of the evidence for her conviction, the
    instructions given to the jury, and the reasonableness of her sentence.
    1.
    Mrs. McElwee was convicted of conspiracy to obtain and of obtaining or
    acquiring a controlled substance by fraud. She appeals the district court’s denial
    of her motion for judgment of acquittal, arguing that the evidence against her
    was constitutionally insufficient to support a conviction under Jackson v.
    Virginia, 
    443 U.S. 307
     (1979). “A challenge to the sufficiency of the evidence
    that is procedurally preserved, as this challenge was, is reviewed de novo.” Diaz,
    
    637 F.3d at 602
    . “Viewing all the evidence and drawing all inferences and
    credibility determinations in the light most favorable to the verdict, we
    determine whether a rational jury could have found that the evidence
    established the elements of the offense beyond a reasonable doubt.” 
    Id.
     (internal
    quotation marks and citations omitted). Mrs. McElwee asserts “that record-
    keeping in the office was admittedly poor, that Dr. McElwee admitted using his
    wife’s name to get prescriptions for himself, that there was no evidence
    introduced that Ava McElwee’s charts specifically were altered,” and that the
    evidence supporting her role in altering patient records “was inconsistent and
    confusing.”
    As an initial matter, we note that many of the issues Mrs. McElwee raises
    involve credibility determinations that are decidedly matters for the jury. See
    8
    For the same reasons, we alternatively hold—assuming that Dr. McElwee’s objection
    to his sentence was sufficiently specific to alert the district court to the nature of the error
    alleged—that the $550,000 fine was not an abuse of discretion.
    11
    No. 10-30099
    United States v. Dadi, 
    235 F.3d 945
    , 951 (5th Cir. 2000) (“The credibility of
    witnesses is a matter for the jury and its determinations demand deference.”).
    Moreover, the district court clearly set forth the evidence supporting Mrs.
    McElwee’s conviction on both the conspiracy and the fraudulent acquisition
    charges in its memorandum ruling on Mrs. McElwee’s motion. Specifically, the
    court noted the existence of at least ten pharmacy signature logs purporting to
    show that Mrs. McElwee signed for hydrocodone prescriptions, the amounts of
    which were strikingly inconsistent with her own medical charts; evidence
    indicating that she had altered and falsified an exam note in the patient chart
    for Conchita McElwee; testimony from a codefendant suggesting that Mrs.
    McElwee believed Chriss was “going to save our ass with that book” (i.e., the
    falsified dispensary log book); and further testimony indicating that Mrs.
    McElwee told a codefendant to “slow down” the number of prescriptions being
    submitted to local pharmacies after she was alerted by a pharmacist to
    suspicious prescriptions emanating from Dr. McElwee’s office. Given the volume
    of both direct and circumstantial evidence implicating Mrs. McElwee in the
    conduct for which she was convicted, the district court did not err in denying her
    motion for judgment of acquittal.
    2.
    With respect to her claim of defective jury instructions: The district court
    instructed the jury that it could consider evidence of Mrs. McElwee’s deliberate
    ignorance9 as circumstantial proof of her guilty knowledge, to which Mrs.
    McElwee objected. “We review an appellant’s objection to jury instructions
    under an abuse of discretion standard, affording the trial court substantial
    latitude in describing the law to the jurors.” United States v. Santos, 
    589 F.3d 9
    The concept of deliberate ignorance is sometimes characterized as a “charade of
    ignorance.” See United States v. Lara-Velasquez, 
    919 F.2d 946
    , 951 (5th Cir. 1990). The
    deliberate ignorance instruction is included as an optional second paragraph to the definition
    of “knowingly” in the Fifth Circuit Pattern Jury Instructions.
    12
    No. 10-30099
    759, 764 (5th Cir. 2009) (internal quotation marks and citations omitted). We
    begin by noting that the deliberate ignorance instruction “should rarely be
    given,” and “is appropriate only when a defendant claims a lack of guilty
    knowledge and the proof at trial supports an inference of deliberate
    indifference.” United States v. Peterson, 
    244 F.3d 385
    , 395 (5th Cir. 2001)
    (internal quotation marks and citations omitted).       We have also explained,
    however, that “the giving of a deliberate ignorance instruction is harmless error
    where substantial evidence of actual knowledge was presented.” United States
    v. Ricardo, 
    472 F.3d 277
    , 286 (5th Cir. 2006).
    Mrs. McElwee argues that the district court erred in giving a deliberate
    ignorance instruction because the evidence suggested “only that she was aware
    of isolated instances of misconduct by Chriss and that she attempted to correct
    the problem.” We are unpersuaded. Although Mrs. McElwee claimed the
    conspiracy took place without her knowledge, evidence at trial showed
    otherwise—that Mrs. McElwee personally picked up a significant number of the
    hydrocodone prescriptions from local pharmacies, and that other employees
    delivered prescriptions to Mrs. McElwee. In addition, the prosecution elicited
    evidence that Mrs. McElwee took part in the fabrication and falsification of
    patient records, that she knew about invalid prescription orders and was fully
    aware of a fake dispensary log book created by Chriss. In the light of this
    evidence, we need not determine whether the deliberate ignorance instruction
    was error. There was substantial evidence of actual knowledge before the jury,
    such that even an erroneous instruction as to deliberate ignorance was harmless.
    3.
    Mrs. McElwee further appeals the district court’s denial of her request for
    a jury instruction that simple possession of a controlled dangerous substance, 
    21 U.S.C. § 844
    (a), is a responsive verdict to the offense of obtaining a controlled
    substance by fraud, 
    21 U.S.C. § 843
    (a)(3), because it is a lesser-included offense.
    13
    No. 10-30099
    “A defendant is entitled to a lesser-included-offense instruction if (1) the
    elements of the lesser offense are a subset of the elements of the charged offense
    and (2) the evidence at trial is such that a jury could rationally find the
    defendant guilty of the lesser offense yet acquit him of the greater.” United
    States v. Finley, 
    477 F.3d 250
    , 255 (5th Cir. 2007). “We review the district
    court’s determination on the first prong of the above two-part test (whether the
    lesser offense is included in the greater offense) de novo. . . . We review the
    court’s determination on the second prong (whether a jury could rationally
    acquit on the greater offense yet convict on the lesser) for abuse of discretion.”
    
    Id. at 256
     (internal citations omitted).
    Section 843(a)(3) of Title 21 provides that it is unlawful knowingly or
    intentionally to “acquire or obtain possession of a controlled substance by
    misrepresentation, fraud, forgery, deception, or subterfuge.” Section 844(a)
    provides that it is unlawful knowingly or intentionally to “possess a controlled
    substance unless such substance was obtained directly, or pursuant to a valid
    prescription or order, from a practitioner, while acting in the course of his
    professional practice . . . .” It is difficult to conceive of a case in which the former
    offense would not also include the latter. Notwithstanding that observation, in
    this case it is clear that the evidence implicating Mrs. McElwee in the scheme
    to obtain controlled substances by fraud was so substantial that no rational juror
    could convict on possession but acquit on fraudulent acquisition. The record
    reflects that Mrs. McElwee personally picked up large amounts of hydrocodone
    in her name, that she falsified at least one patient’s medical chart, and that she
    knew about other employees’ illicit purchases of hydrocodone as well as the
    attempt to cover it up by creating a fake log book. It would thus defy reason to
    conclude (1) that Mrs. McElwee knowingly possessed hydrocodone without a
    14
    No. 10-30099
    valid prescription but (2) employed no misrepresentation in doing so.10 Having
    reviewed the record, we are convinced that the evidence establishing Mrs.
    McElwee’s knowing participation in the fraudulent scheme was such that no
    rational juror could convict her of illegally possessing hydrocodone yet acquit her
    of fraudulently acquiring it.
    4.
    We turn finally to Mrs. McElwee’s challenge to her sentence. Although
    Mrs. McElwee’s Guidelines range was zero to six months, the district court
    sentenced her to 36 months in prison. We note, as a preliminary matter, that
    notwithstanding some confusion in the record as to whether the Government
    made a motion for a sentence exceeding the Guidelines range, the district court
    clearly imposed a non-Guidelines sentence in this case.11
    The focus of our inquiry is the reasonableness of the sentence in the light
    of the totality of the circumstances. In conducting this review, we begin by
    noting that the district court committed no significant procedural error. The
    district court “correctly calculated the Guidelines range, treated the Guidelines
    as advisory, considered the § 3553(a) factors, allowed both parties to present
    arguments as to what they believed the appropriate sentence should be, did not
    base [Mrs. McElwee’s] sentence on clearly erroneous facts, and thoroughly
    10
    She did not, for example, obtain hydrocodone simply by purchasing it from a third
    party; the evidence indicates that she received hydrocodone directly from pharmacies, in her
    own name even, and that the amount she obtained exceeded the authorization of any valid
    prescription.
    11
    Both parties agree that the Government never filed a written motion requesting an
    upward departure. Moreover, the record is confusing as to whether the Government made
    even an oral motion for an upward departure. The record is clear, however, that during the
    sentencing hearing the district court certainly characterized the Government’s position as a
    request for an upward departure—to which the prosecutor agreed, and to which defense
    counsel made no objection. Ultimately, the district court made clear that the sentence should
    be “characterized as a non-Guideline sentence under Section 3553(a),” and the court checked
    the appropriate box in Section IV of the Statement of Reasons and set forth the facts justifying
    this sentence in Section VI.
    15
    No. 10-30099
    documented its reasoning.” Herrera-Garduno, 
    519 F.3d at
    530 (citing Gall, 
    552 U.S. at
    51–53).
    Mrs. McElwee contests some of the factual findings of the district judge,
    who also presided over the trial and was thus intimately familiar with the
    record. Many of her arguments in this respect border on the conclusory and, in
    any event, they are unavailing. For example, she argues that “[t]here is nothing
    in this record to suggest that Ava McElwee was ‘in the thick’ of the illegal
    activity occurring at the office,” relying on the fact that Mrs. McElwee worked
    in the office only on a part-time basis. There was ample evidence, however,
    before the district court—including Mrs. McElwee’s handwriting on a falsified
    exam note and her comment to another office employee that Wendy Chriss was
    “going to save our ass with that [falsified dispensary log] book”—from which the
    court could quite reasonably conclude that Mrs. McElwee was “in the thick” of
    the conspiracy. As the Supreme Court has explained, “[t]he sentencing judge is
    in a superior position to find facts and judge their import under § 3553(a) in the
    individual case. The judge sees and hears the evidence, makes credibility
    determinations, has full knowledge of the facts and gains insights not conveyed
    by the record.” Gall, 
    552 U.S. at 51
     (internal quotation marks and citation
    omitted). With respect for this institutional advantage, and having reviewed the
    sentencing transcript and the trial record, we perceive no clear error in the
    district court’s factual findings.
    We thus turn to the substantive reasonableness of Mrs. McElwee’s
    sentence. “In reviewing a challenge to the length of a non-Guidelines sentence,
    we may ‘take the degree of variance into account and consider the extent of a
    deviation from the Guidelines.’” Herrera-Garduno, 
    519 F.3d at 530
     (quoting Gall,
    
    552 U.S. at 47
    ). “The farther a sentence varies from the applicable Guideline
    sentence, the more compelling the justification based on factors in section
    3553(a) must be.”      Smith, 
    440 F.3d at 707
    .      “A non-Guideline sentence
    16
    No. 10-30099
    unreasonably fails to reflect the statutory sentencing factors where it (1) does
    not account for a factor that should have received significant weight, (2) gives
    significant weight to an irrelevant or improper factor, or (3) represents a clear
    error of judgment in balancing the sentencing factors.” 
    Id. at 708
    . We must,
    however, “give due deference to the district court’s decision that the § 3553(a)
    factors, on a whole, justify the extent of the variance.” Gall, 
    552 U.S. at 51
    .
    Furthermore, “[t]he fact that the appellate court might reasonably have
    concluded that a different sentence was appropriate is insufficient to justify
    reversal of the district court.” 
    Id.
    Mrs. McElwee argues primarily that the district court improperly relied
    upon her marital relationship with Dr. McElwee as a basis for her level of
    involvement in the conspiracy. During the colloquy at sentencing and in the
    Statement of Reasons, the court did “note[] the heightened duties on behalf of
    [Mrs. McElwee], a licensed nurse practitioner and the spouse of the physician
    involved.” Indeed, the court made several references to the spousal relationship
    in the course of the extensive sentencing colloquy, although the object in doing
    so was apparently to emphasize what Mrs. McElwee likely had knowledge of
    given her relationship to the conspiracy’s “ringleader.” We cannot conclude that
    the court’s inferences about Mrs. McElwee’s knowledge as the spouse of Dr.
    McElwee       constitute      error,    particularly      given    the     substantial      other
    evidence—including her own statements to coconspirators, her falsification of an
    exam note in a patient chart, and her substantial involvement in retrieving
    hydrocodone prescriptions from pharmacies—indicating that Mrs. McElwee had
    knowledge of what was going on in the office.12 Moreover, in discussing her level
    12
    Mrs. McElwee counters by highlighting the fact that she and her husband spent much
    of their office time in separate rooms of the physician’s office. She thus argues that the district
    court erred in assuming that she would know about Dr. McElwee’s hydrocodone addiction. It
    is apparent to us, however, that the court’s statements in this respect must be read in context.
    For example, the district judge observed during the colloquy that Dr. McElwee had a “10-to-12-
    17
    No. 10-30099
    of involvement, the district court seemed to place greatest emphasis on her role
    as a nurse practitioner—a higher position than that of a medical assistant such
    as Wendy Chriss, with substantially greater responsibilities and more
    supervisory authority.          The sentencing court concluded that the higher
    responsibility of a nurse practitioner entails a concomitantly greater abuse of
    trust with respect to patients and the medical profession. He thus sought to
    avoid unwarranted disparities by placing Mrs. McElwee between Dr. McElwee
    and Chriss, a lower-ranking medical assistant, in the order of sentence severity.
    The district court underscored that it was considering acquitted conduct
    and the testimony of other coconspirators in devising an appropriate sentence
    for Mrs. McElwee. He noted that the Guidelines are “woefully inadequate” in
    this case because they “do not appropriately capture the breadth, scope, and
    nature of the conspiracy for drug distribution.” He further explained that, with
    respect to Mrs. McElwee’s role in the conspiracy, “[t]he most telling part of it
    appears to be, to me, the drug dispensary notebook that was put together to
    show false entries, false medical records even; the use of the McElwees’ dog,
    Lortab-a-day habit” and was using the drug while operating on patients. The court explained
    its concerns thus:
    You know, at what point are you supposed to recognize that in terms of
    behavior? She’s not an ordinary nurse. She’s certainly not an administrative
    assistant. She’s a nurse practitioner. It does not appear that she, herself, was
    involved in a substance abuse addiction or in the substance abuse at all. On the
    other hand, her husband’s involvement with it is undeniable. And on a 24/7
    basis with these two that were portrayed as close and doing stuff, with Ms.
    McElwee being in the operating room and everything else, what other
    reasonable conclusions that you can [sic] draw from that in looking at how the
    Guideline is supposed to capture the criminal behavior?
    In the light of statements such as the foregoing, we do not understand the district court
    to have reached the factual conclusion that Dr. and Mrs. McElwee were in each other’s
    presence at all times. On the contrary, the court’s clear point is that given Mrs. McElwee’s
    level of training as a nurse practitioner and her interaction with her husband at home as well
    as at the office, including during some surgical procedures, her position that she knew nothing
    about his Lortab addiction borders on the inconceivable. Again, her position must be viewed
    in the light of all the evidence incriminating Mrs. McElwee, and we owe substantial deference
    to the district court’s conclusions.
    18
    No. 10-30099
    Brand[i], in prescriptions; the use of the daughter-in-law’s name, Conchita
    McElwee, also in multiple forms . . . .” The record contains evidence connecting
    Mrs. McElwee to all of these aspects of the conspiracy. Under these facts, it is
    not our place to second-guess the district court’s conclusion that Mrs. McElwee’s
    culpability requires a significantly greater sentence than the Guidelines
    suggest.13
    Still, we are struck that Mrs. McElwee’s 36-month prison sentence,
    although within the statutory maximum, is fully six times the maximum
    sentence suggested by the Guidelines.              We emphasize that such variance
    demands thorough justification. Here, the district court did just that. The court
    explicitly considered the § 3553(a) factors, Mrs. McElwee’s personal history and
    characteristics, the absence of a prior criminal record, her level of involvement
    and responsibility in the offense, the severity and scope of the conspiracy for
    which she was convicted, and the need to avoid unwarranted sentence
    disparities among similarly situated defendants. We perceive no failure to
    account for a factor that should have received significant weight, reliance on an
    improper factor, or clear error of judgment in balancing the relevant
    considerations.
    In conclusion, it bears remarking that we have upheld substantial
    Guidelines deviations in other post-Booker cases where the district court based
    its upward variance on permissible, properly spelled-out considerations. See,
    e.g., United States v. Key, 
    599 F.3d 469
    , 475–76 (5th Cir. 2010), cert. denied, 
    131 S.Ct. 997
     (2011) (upholding sentence of 216 months where Guidelines maximum
    was 57 months); United States v. Smith, 
    417 F.3d 483
    , 492 (5th Cir. 2005)
    (upholding sentence of 120 months where Guidelines maximum was 41 months);
    United States v. Saldana, 
    427 F.3d 298
    , 312–13 (5th Cir. 2005) (upholding
    13
    In this respect, we note further that Mrs. McElwee put the Government to its burden
    of proof in this case, while Chriss pleaded guilty and accepted responsibility for her conduct.
    19
    No. 10-30099
    sentence four times the Guidelines maximum despite “misgivings about the
    length of th[e] sentence”). Thus, we hold that the district court did not abuse its
    discretion, and consequently we affirm Mrs. McElwee’s non-Guidelines sentence.
    C.
    Finally, we consider Wendy Chriss’s three-part challenge to her sentence.
    Chriss was assessed an offense level of 16 with a criminal history category of I.
    The district court imposed a 21-month sentence of imprisonment followed by
    three years of supervised release. This sentence was at the bottom of the
    Guidelines range of 21 to 27 months.
    1.
    Chriss first argues that the district court erred in denying her the benefit
    of the safety-valve adjustment under the Guidelines. The Guidelines provide
    that a defendant’s offense level must be reduced by two levels if she meets five
    conditions, including the following relevant provision:
    (5) [N]ot later than the time of the sentencing hearing, the
    defendant has truthfully provided to the Government all
    information and evidence the defendant has concerning the offense
    or offenses that were part of the same course of conduct or of a
    common scheme or plan, but the fact that the defendant has no
    relevant or useful other information to provide or that the
    Government is already aware of the information shall not preclude
    a determination by the court that the defendant has complied with
    this requirement.
    U.S.S.G. § 5C1.2(a); see id. § 2D1.1(b)(11). See also 
    18 U.S.C. § 3553
    (f). On
    appeal, the parties dispute whether Chriss met this fifth criterion for the safety-
    valve adjustment. We review a sentencing court’s decision whether to apply the
    safety valve for clear error. See United States v. McCrimmon, 
    443 F.3d 454
    , 457
    (5th Cir. 2006). Chriss bears the burden of establishing that she is entitled to
    the adjustment. 
    Id.
    The Government argues that Chriss failed to truthfully debrief regarding
    several specific instances. For example, she denied ever selling hydrocodone to
    20
    No. 10-30099
    an individual named Trey Jacobe, but Jacobe testified to the contrary at trial.
    The Government further notes that Chriss was less than completely truthful
    about when she stopped working for Dr. McElwee. Moreover, Chriss maintained
    that she acted pursuant to Dr. McElwee’s direction, but the evidence at trial only
    partially supported this proposition. Chriss has failed to rebut these contentions
    and relies on the simple response that she “truthfully disclosed all the
    information she had concerning the offense” and “accepted responsibility for her
    conduct” by pleading guilty. Consequently, by failing to say more than this, she
    has failed to meet her burden of showing that the district court erred.
    2.
    Chriss further argues that the district court erred by denying her the
    benefit of a two-level reduction in her offense level, contending that she was only
    a minor participant in the conspiracy. The Guidelines provide for a two-level
    reduction “[i]f the defendant was a minor participant in any criminal activity.”
    U.S.S.G. § 3B1.2(b). This reduction applies to a defendant “who is less culpable
    than most other participants, but whose role could not be described as minimal.”
    Id. Application Note 5. “It is not enough that a defendant does less than other
    participants; in order to qualify as a minor participant, a defendant must have
    been peripheral to the advancement of the illicit activity.” United States v.
    Villanueva, 
    408 F.3d 193
    , 204 (5th Cir. 2005). Whether Chriss was a minor
    participant is a factual determination reviewed for clear error. 
    Id. at 203
    .
    Chriss argues that she was “clearly less culpable in the offense than
    others,” but her only apparent support for this contention is that she operated
    at the instruction of Dr. McElwee, who “fed” her addiction. Chriss’s argument
    is insufficient to demonstrate clear error, particularly in the light of her failure
    to address the district court’s findings that she was the conduit through whom
    many of the hydrocodone pills were illegally obtained, and that she personally
    placed and signed for many of the orders using false prescriptions.
    21
    No. 10-30099
    3.
    Finally, Chriss disputes the substantive reasonableness of her sentence.
    Again, we review the substantive reasonableness of a sentence for abuse of
    discretion, considering the totality of the circumstances and affording deference
    to the district court’s application of the § 3553(a) factors. See Gall, 
    552 U.S. at 51
    ; Diaz, 
    637 F.3d at 603
    . We start by noting that Chriss’s 21-month sentence
    is at the bottom of the 21-to-27 month Guidelines range for her offense level of
    16 and criminal history category of I. A sentence within the Guidelines range
    is presumptively reasonable. Diaz, 
    637 F.3d at 603
    . Nevertheless, Chriss
    asserts that her sentence is greater than necessary to achieve the goals set forth
    in § 3553(a).
    Chriss submits that she is remorseful for her conduct; that she was
    addicted to hydrocodone at the time of the conspiracy and has sought treatment
    to overcome this addiction; that she does not have a history of criminal behavior;
    that she has two minor children who will be forever harmed by her
    incarceration; and that she has accepted responsibility and desires
    rehabilitation.    These arguments will not rebut the presumption of
    reasonableness that we must attach to her Guidelines sentence.               That
    presumption “is rebutted only upon a showing that the sentence does not account
    for a factor that should receive significant weight, it gives significant weight to
    an irrelevant or improper factor, or it represents a clear error of judgment in
    balancing sentencing factors.” Diaz, 
    637 F.3d at 603
     (internal quotation marks
    and citations omitted).
    Applying these considerations here, Chriss has not pointed to any specific
    errors of judgment in the district court’s balancing of the § 3553(a) factors.
    Moreover, the district court made explicit factual findings justifying the sentence
    in accordance with the § 3553(a) factors. These findings included her role as
    “one of the point people” who facilitated the conspiracy, the length of time during
    22
    No. 10-30099
    which she engaged in the conspiracy, and her willingness to assist others in
    obtaining hydrocodone. The court further took into account her lack of criminal
    history and personal characteristics in devising an appropriate sentence. Chriss
    has presented no evidence to call into question the district court’s factual
    determinations or its balancing of the § 3553(a) factors. Consequently, we hold
    that her Guidelines sentence is substantively reasonable.
    III.
    We conclude by summarizing our holdings in this case: With respect to Dr.
    McElwee, we affirm the 60-month sentence and the $550,000 fine imposed by the
    district court. As to Mrs. McElwee, we conclude that the evidence was sufficient
    to support her conviction, that the district court committed no error affecting her
    substantial rights in its issuance of instructions to the jury, and that the district
    court did not abuse its discretion in sentencing her to a 36-month term of
    imprisonment. Finally, we affirm Wendy Chriss’s 21-month sentence, including
    the district court’s denial of the safety-valve reduction and its refusal to apply
    a reduction for her role in the offense.
    AFFIRMED.
    23