United States v. Nancy Sadler ( 2014 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0087p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
│ Nos. 12-4450/4458
v. │
>
│
LESTER SADLER (12-4450) and NANCY SADLER (12- │
4458), │
Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati
No. 1:10-cr-00098-1—Sandra S. Beckwith, District Judge.
Argued: March 13, 2014
Decided and Filed: April 24, 2014
Before: DAUGHTREY, SUTTON and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Robert Dietrick, DUANE MORRIS LLP, Washington, D.C., for Appellant in 12-
4450. William G. Brown, THE PICKRELL LAW GROUP, P.C., Nashville, Tennessee, for
Appellant in 12-4458. Timothy S. Mangan, UNITED STATES ATTORNEY’S OFFICE,
Cincinnati, Ohio, for Appellee. ON BRIEF: Robert Dietrick, DUANE MORRIS LLP,
Washington, D.C., for Appellant in 12-4450. William G. Brown, THE PICKRELL LAW
GROUP, P.C., Nashville, Tennessee, for Appellant in 12-4458. Dale Ann Goldberg, UNITED
STATES ATTORNEY’S OFFICE, Cincinnati, Ohio, for Appellee.
1
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OPINION
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SUTTON, Circuit Judge. A jury convicted Lester and Nancy Sadler, husband and wife,
of various crimes associated with the operation of several pain-management clinics in central and
southern Ohio. They each appeal their convictions, and Nancy challenges her sentence as well.
We affirm on all grounds save one: Nancy’s conviction for wire fraud.
I.
In 2001, Nancy and Lester opened a pain-management clinic, “First Care,” in Garrison,
Kentucky. Nancy was the owner, but employees at the clinic considered both Nancy and Lester
to be “in charge.” R. 205 at 8–9. The clinic closed after the Drug Enforcement Agency
investigated it and confiscated the license of the clinic’s doctor for overprescribing narcotics.
In 2002, they moved the clinic to Waverly, Ohio. In 2004, the Sadlers renamed the clinic
“Ohio Medical and Pain Management.” Sometime after February 2008, Ohio Medical opened a
second office in Columbus, Ohio. Unlike at the previous clinics, Lester (not Nancy) was Ohio
Medical’s owner and statutory agent.
The evidence introduced at trial showed that these were not conventional pain clinics. At
the Waverly clinic, patients would arrive well before it opened, filling the clinic’s parking lot and
the lots of nearby businesses. While waiting for the clinic to open, the patients used drugs and
traded prescription forms for cash in the parking lots. The patients often traveled long distances
(and in large groups) to come to the Sadlers’ shops, sometimes as much as 316 miles in a
roundtrip, even though most of the patients lived much closer to other clinics.
Matters did not improve once the patients entered the Sadlers’ clinics. After paying their
$150 appointment fee (cash only), they met an “assessor” who would review the patients’ health-
facts “day sheet” and hand the patients an already completed prescription form. Clinic staff
sometimes filled out these day sheets and prescription forms weeks in advance, pulling the
content from the patients’ last day sheet and prescription and altering them slightly to make sure
they didn’t look the same. Patients then stepped into an office, where they met the doctor for a
No. 12-4450 United States v. Sadler et al. Page 3
minute or two. After that, they left the clinic (some “almost skipping,” reported one witness, R.
325 at 81) with a signed prescription for a fresh supply of hydrocodone, oxycodone or other pain
medications in hand. As many as 100 people per day completed this “five minute[]” process of
assessment and prescription, R. 317 at 69, a tall order, the evidence showed, for a clinic
committed to practicing medicine responsibly.
The clinics also treated phantom patients. Each month, Nancy would announce to the
clinic staff that “it was time to do the charts,” meaning it was time to update the medical
treatment files for a long list of people who had never set foot in the clinics. R. 326 at 35. The
Sadlers used the names of family members for these charts. Lester’s dad had a chart, as did two
of the Sadlers’ children, Kyle and Levi, though none of them ever needed the clinics’ services.
Staff members would then write prescriptions for these non-existent patients, the doctor would
sign the prescriptions, and clinic staff would fill the prescriptions at a local pharmacy. The pain
pills found their way to David Michael Journey, a relative of the Sadlers and an occasional clinic
employee, who sold the pills on the street at a significant profit.
The Sadlers’ real and make-believe patients generated a remarkable number of pill
prescriptions. Dr. Brenda Banks, a doctor hired by the Sadlers to work at Ohio Medical, was the
state’s number one prescriber of hydrocodone in 2006 and 2007. And by a wide margin: In
2006, she prescribed 147,000 dosage units of the drug, almost 107,000 more units than Ohio’s
next most prolific prescriber. In 2007, Dr. Banks prescribed 62,400 dosage units, while the
second-place prescriber doled out 19,650.
Nor did the clinics limit themselves to pain prescriptions. The clinics also ordered
hydrocodone and other drugs directly from pharmaceutical companies. None of the clinics,
however, ever obtained a license to dispense controlled substances. See R. 316 at 10, 25B26
(The clinics never obtained “a terminal distributor license.”) To get around that problem, Nancy
would order the drugs by using the clinic doctor’s DEA registration number, Lester would pay
for the drugs, and the drugs would arrive at the clinic. Two witnesses described where the pills
went next. One said that she saw Nancy take a handful of pills to Dr. Banks, who apparently was
addicted to consuming as well as distributing painkillers. Another said that he sold some of
these pills to addicts outside of the clinic and split the proceeds with Nancy.
No. 12-4450 United States v. Sadler et al. Page 4
A grand jury charged Lester and Nancy with several crimes, including conspiring to
distribute controlled substances illegally, maintaining a premises for distributing the substances,
and distributing drugs to phantom patients. It also charged Nancy with wire fraud and money
laundering. After a fourteen-day trial, the jury found Lester and Nancy guilty of the conspiracy
and maintaining-a-premises charges, Nancy guilty of wire fraud and money laundering, and the
couple not guilty of the individual distribution charges. The district court sentenced Lester to
151 months and Nancy to 210 months.
II.
The Sadlers argue that the government produced insufficient evidence to convict them on
several charges. When reviewing sufficiency-of-the-evidence claims, it (almost) goes without
saying that we “view [the evidence] . . . in the light most favorable to the government,” United
States v. Arnold, 486 F.3d 177, 180 (6th Cir. 2007) (en banc) (internal quotation marks omitted),
asking whether “any rational trier of fact could have found the elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Wire fraud. Nancy challenges the sufficiency of the evidence supporting her wire fraud
conviction. The statute prohibits individuals from using interstate communications to carry out
“any scheme or artifice to defraud, or for obtaining money or property by means of false or
fraudulent pretenses, representations, or promises.” 18 U.S.C. § 1343. While on a first reading
one might think the statute contains two distinct crimes—a “scheme to defraud” or a “scheme
. . . for obtaining money or property”—that is not the case. See Cleveland v. United States,
531 U.S. 12, 25–26 (2000); McNally v. United States, 483 U.S. 350, 357–59 (1987). The statute
instead punishes one kind of scheme—schemes intended “to deprive [people] of their money or
property.” Cleveland, 531 U.S. at 19 (internal quotation marks omitted). In this instance, that
meant the government had to prove Nancy knowingly used an interstate wire communication to
further a scheme to defraud the distributors of their money or property. See United States v.
Faulkenberry, 614 F.3d 573, 581 (6th Cir. 2010).
To these ends, the government showed that Nancy lied to pharmaceutical distributors
when she ordered pills for the clinic by using a fake name on her drug orders and by falsely
telling the distributors that the drugs were being used to serve “indigent” patients. R. 320 at 96–
No. 12-4450 United States v. Sadler et al. Page 5
97. The government also proved that she used faxes, phone calls and other interstate wire
communications to facilitate her purchases. Through it all, however, the government never
showed that Nancy intended to deprive anyone of property. All that the evidence shows is that
Nancy paid full price for all the drugs she purchased and did so on time. How, then, did Nancy
deprive the distributors of property?
The government’s opening bid offers this answer: Nancy deprived the distributors of
their pills. Well, yes, in one sense: The pills were gone after the transaction. But paying the
going rate for a product does not square with the conventional understanding of “deprive.”
Cleveland, 531 U.S. at 19; Webster’s Third New International Dictionary 606 (2002). Stealing
the pills would be one thing; paying full price for them is another. Case law reinforces that the
conventional meaning of “deprive” applies in the fraud context. To be guilty of fraud, an
offender’s “purpose must be to injure,” Horman v. United States, 116 F. 350, 352 (6th Cir.
1902), a common-law root of the federal fraud statutes, see Neder v. United States, 527 U.S. 1,
21–25 (1999); Restatement (Second) of Torts § 531 (“One who makes a fraudulent
misrepresentation is subject to liability . . . for pecuniary losses suffered.”). Nancy may have had
many unflattering motives in mind in buying the pills, but unfairly depriving the distributors of
their property was not one of them. As to the wire-fraud count, she ordered pills and paid the
distributors’ asking price, nothing more.
As an alternative, the government offers another potential deprivation: Nancy’s lies
convinced the distributors to sell controlled substances that they would not have sold had they
known the truth. Nancy in other words deprived the companies of what might be called a right
to accurate information before selling the pills. To support this theory, the government points to
the testimony of one distributor’s representative, who said she would have been “concern[ed]”
had she known more about Nancy’s operation. R. 320 at 58. But the statute is “limited in scope
to the protection of property rights,” and the ethereal right to accurate information doesn’t fit that
description. McNally, 483 U.S. at 360 (emphasis added). Nor can it plausibly be said that the
right to accurate information amounts to an interest that “has long been recognized as property.”
Cleveland, 531 U.S. at 23 (internal quotation marks omitted).
No. 12-4450 United States v. Sadler et al. Page 6
United States v. Murphy illustrates the point. 836 F.2d 248, 253–54 (6th Cir. 1988). The
government charged the defendant with mail fraud because he lied on his application for a state
bingo permit. The state argued it had a “right to control” the permits and a “right to accurate
information” regarding their issuance. True or not, these were not the kind of “property” rights
safeguarded by the fraud statutes, we held. Id. at 254. Just the same here: Until the government
proves that Nancy intended to deprive the distributors of “money” or “property,” it must look
elsewhere for a conviction.
Even when Congress amended the fraud statutes to cover some intangible rights, it did
not stretch the statute to cover the right to accurate information before making an otherwise fair
exchange. Before 1987, “numerous [courts had] interpreted the [fraud] statute broadly [to]
affirm[] convictions involving schemes to defraud” victims of all kinds of intangible rights,
including a right to privacy and honest elections. Id. at 250. The Supreme Court stopped this
expanding universe of intangible-right protections, limiting the fraud statutes’ scope to rights that
sounded in property. See Carpenter, 484 U.S. at 25; McNally, 483 U.S. at 360. Congress
responded to Carpenter and McNally in 1988, but its response was limited. Instead of reinstating
the universe of previously protected intangible rights, it embraced just one of them: “the
intangible right of honest services,” which protects citizens from public-official corruption.
18 U.S.C. § 1346. Congress’s reverberating silence about other intangible interests tells us all
we need to know. Nancy’s fabrications, objectionable though they may be and punishable under
other laws though they may be, fall outside this statute.
This congressional silence counts against the government’s theory for other reasons as
well. Lightly equating deceptions with property deprivation, even when the full sales price is
paid, would occupy a field of criminal jurisdiction long covered by the States, a consideration
that has prompted the Court to resist like-minded readings of “scheme to defraud” before. The
government prosecuted Carl Cleveland and others under the mail-fraud statute (with materially
identical language to the wire-fraud statute) for making false statements in the course of applying
for licenses to operate video poker machines. Cleveland, 531 U.S. at 15. In rejecting the
government’s theory, the Court held that this interpretation of the statute would “invite[] us to
approve a sweeping expansion of federal criminal jurisdiction in the absence of a clear statement
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by Congress.” Id. at 24. The same goes for this case: Finding a property deprivation based on
Nancy’s lies “would subject to federal [wire] fraud prosecution a wide range of conduct
traditionally regulated by state and local authorities.” Id. Ohio already regulates the use of
“deception” to “procure . . . the dispensing of[] a dangerous drug.” Ohio Rev. Code
§ 2925.22(A). And the State’s definitions of “deception,” “dispense” and “dangerous drug”
easily capture Nancy’s pill-buying behavior. Id. at §§ 2913.01(A), 3719.01(E), 4729.01(F).
“[U]nless Congress conveys its purpose clearly,” we cannot—indeed the Court tells us we should
not—upset the “federal–state balance in the prosecution of crimes” to hold Nancy accountable
for these misdeeds. Jones v. United States, 529 U.S. 848, 858 (2000) (internal quotation marks
omitted).
That silence also requires us to pick the more lenient reading of the wire-fraud law.
“[W]hen there are two rational readings of a criminal statute, one harsher than the other, we are
to choose the harsher only when Congress has spoken in clear and definite language.” McNally,
483 U.S. at 359–60. “Money,” “property” and “the intangible right of honest services” clearly
and definitely fall within the fraud statutes’ scope, 18 U.S.C. §§ 1343, 1346, but other interests—
such as the right to accurate information—do not. Without more, we must conclude that the
distributors’ truth-in-purchasing concerns do not support a federal criminal conviction.
Maintaining a drug premises. Both Nancy and Lester challenge their convictions for
maintaining a drug-involved premises. See 21 U.S.C. § 856(a)(1). To support this charge, the
government had to show that the couple knowingly maintained their clinics for the purpose of
distributing a controlled substance. See United States v. Russell, 595 F.3d 633, 644 (6th Cir.
2010). What counts as “maintenance”—“control, duration, acquisition of the site, renting or
furnishing the site, repairing the site, [and] supervising,” id.—fits the Sadlers’ job activities to
the letter. Lester owned Ohio Medical, he had been involved in the management of pain clinics
since at least 2001, he signed Ohio Medical’s lease and rent checks, he was the office repairman,
and he was considered the boss of the clinic by the employees. Nancy meanwhile owned and
managed various incarnations of the clinics, and the lessees of the clinic properties considered
Nancy a point of contact for complaints, payments and other issues. More, the purpose of the
clinics was to distribute drugs, including through illegal drug purchases from distributors,
No. 12-4450 United States v. Sadler et al. Page 8
assembly-line distribution of pain-medication prescriptions, and distribution of controlled
substances to individuals without proper prescriptions.
For her part, Nancy counters that the government failed to show that she maintained the
clinics “for the purpose of . . . distributing . . . any controlled substance,” 21 U.S.C. § 856(a)(1)
(emphasis added), because the “drug-related purpose . . . [was not a] significant or important”
part of the clinics’ operation, Russell, 595 F.3d at 643 (internal quotation marks omitted)
(emphasis added). As Nancy tells it, distributing drugs was a minor side business, a theory
partly corroborated by the jury’s decision to acquit her of the individual drug distribution
charges. But this argument reads too much into the verdict. The jury acquitted Nancy of
distribution charges related to two individuals, but the jury convicted her on the general
conspiracy count, based on evidence about her involvement in the distribution of pain narcotics
to many others. Nancy placed her first illegal, unlicensed order for a controlled substance in
2003. These orders continued until 2007, when the drug distributors became suspicious and
stopped shipping pills to the clinic. In the interim, Nancy ordered 216,620 dosage units of
controlled substances, which found their way into the pockets of doctors, patients and addicts on
the street. Drug distribution need not be the primary purpose of a premises, so long as it is a
“significant” one. See Russell, 595 F.3d at 642; see also United States v. Johnson, 737 F.3d 444,
447–48 (6th Cir. 2013). A rational trier of fact could conclude that Nancy’s clinics met this
requirement.
For his part, Lester argues that his presence at the clinics “did not endow knowledge or
intent upon him.” Lester Reply Br. at 14. But as shown he was not merely hanging out biding
his time at the clinics. He set daily patient quotas, paid the clinics’ drug bills, fielded complaints
from neighbors about the unsavory character of the clinics’ patients, and the like. And he
continued to do all of this after learning that the DEA was investigating the clinics. Plenty of
evidence supported his conviction.
Conspiracy. Lester claims that the government produced insufficient evidence to convict
him of conspiring to distribute pain pills. To sustain the conspiracy charge, the government had
to prove an agreement to violate the drug laws, that Lester knowingly joined the conspiracy, and
that he participated in it. See United States v. Gardner, 488 F.3d 700, 710 (6th Cir. 2007).
No. 12-4450 United States v. Sadler et al. Page 9
Ample evidence supported this charge. As for the agreement, Lester owned and operated several
pain-management clinics with Nancy. As for knowledge, he continued to operate Ohio
Medical’s two branches after previous clinics had been shut down and after the DEA searched
his home and office in 2008. As for participation, he supported the conspiracy in several ways:
paying bills, handing out paychecks to clinic employees, hiring doctors, and shuffling pre-
completed day sheets and other documents between the clinics and his home office.
Lester claims that these were all “innocent” tasks and that there was no “direct evidence”
connecting him to the drug operation. But this is factually incorrect and legally irrelevant to
boot. Factually: Lester paid the distributors’ bills for hydrocodone and other controlled
substances, meaning he was directly involved in the delivery and distribution of drugs that the
clinics were not licensed to distribute; and multiple witnesses testified that Lester set a treatment
“quota” of at least forty patients per day even though the evidence showed that seeing twenty to
twenty-five patients is a difficult task. R. 217 at 51. A jury could rationally think that this was
not innocent behavior. Legally: The government had no obligation to produce “direct evidence”
against Lester, as “guilty knowledge and voluntary participation may be inferred from
surrounding circumstances.” United States v. Hodges, 935 F.2d 766, 773 (6th Cir. 1991)
(internal quotation marks omitted). Those circumstances all pointed in one direction—that this
pain-treatment operation was a charade, and Lester played a critical part in facilitating the
charade.
III.
Nancy challenges her 210-month prison sentence on procedural and substantive
reasonableness grounds.
Drug quantity. She challenges the amount of drugs that the district court attributed to her
conduct, a number that helps to set the base offense level for the guidelines range. See U.S.S.G.
§ 2D1.1(a)(5), (c). So long as a preponderance of the evidence supports the district court’s
finding, an estimate will do. United States v. Jeross, 521 F.3d 562, 570 (6th Cir. 2008); see also
U.S.S.G. § 2D1.1 n.5. The district court found Nancy responsible for more than 1,900 grams of
hydrocodone and 85 grams of oxycodone, a determination we will second-guess only if the court
clearly erred. Jeross, 521 F.3d at 570.
No. 12-4450 United States v. Sadler et al. Page 10
To calculate Nancy’s base offense, the court aggregated the drug quantities from three
sources: the hydrocodone Nancy ordered directly from drug distributors; the pain medication
prescribed to phantom patients (members of her family); and the oxycodone prescribed to Erin
Baldridge, a known drug addict. Considerable evidence supports each measurement as well as
Nancy’s role in the illegal activity.
Counting drugs prescribed to her family members was improper, Nancy argues, because
she was acquitted of the individual counts of drug distribution to two other patients. Contrary to
her intimation, the district court did not rely on acquitted conduct. The jury found Nancy not
guilty of distribution charges regarding two phantom patients (James and Jackie Journey), but the
jury said nothing about other, uncharged phantoms (such as family members James and Kyle
Sadler and Sharon Crowder). Lots of evidence established these other transactions, and Nancy
does not argue otherwise.
Nancy adds that Erin Baldridge’s prescriptions should not have been added to the mix
because she “lied to assessors and doctors in order to receive prescriptions” and it would be
unreasonable to sentence her based on “the conduct of other clinic employees.” Nancy Br. at 33,
35. That Baldridge lied to get pills cuts against Nancy. Baldridge’s story illustrated how the
Sadlers’ scheme worked: A “dope sick” drug addict could walk into Nancy’s clinic, hand over
some cash, get no “real pain assessment,” tell an obvious lie, and walk (or skip) out of the clinic
minutes later with a drug prescription in her pocket. R. 312 at 13–19. That Dr. Banks and other
conspirators wrote these prescriptions does not absolve Nancy of responsibility. “Where there
exists ‘jointly undertaken criminal activity,’ the base offense level is determined not only by acts
committed by the defendant but also ‘all reasonably foreseeable acts and omissions of others in
furtherance of the jointly undertaken criminal activity.’” United States v. Wilson, 168 F.3d 916,
922 (6th Cir. 1999) (quoting U.S.S.G. § 1B1.3(a)(1)(B)).
Leadership-role enhancement. Section 3B1.1(a) of the Sentencing Guidelines calls for a
four-point enhancement when the defendant “was an organizer or leader of a criminal activity
that involved five or more participants.” Plenty of evidence supports the district court’s finding
that Nancy was a leader. The conspiracy involved at least five participants. Everyone involved
in the conspiracy considered Nancy the pain clinics’ “boss.” And she acted the part by opening
No. 12-4450 United States v. Sadler et al. Page 11
the clinics, managing day-to-day operations, hiring employees, encouraging employees to see
more and more patients, requiring employees to produce fake medical files for phantom patients,
ordering pills she had no business ordering, and splitting profits from street sales of the pills.
Such acts of decision making, recruitment and profit taking are the hallmarks of an “organizer or
leader.” See U.S.S.G. 3B1.1 n.4.
Instead of disclaiming the propriety of any such enhancement, she argues that four points
were too much. She was, she says, at most a “manager or supervisor,” deserving only a three-
point enhancement because other conspirators—including Dr. Banks and David Michael
Journey—were the ringleaders. As the guidelines tell us, however, “[t]here can, of course, be
more than one person who qualifies as a leader or organizer of a criminal . . . conspiracy.” Id.
Although her husband, her doctors and her relatives all played important roles in the operation,
that does not exonerate her from a sentencing enhancement premised on her leadership actions.
Probation enhancement. The guidelines also direct courts to add two points to a
defendant’s criminal history score “if the defendant committed the instant offense while under
any criminal justice sentence, including probation.” U.S.S.G. § 4A1.1(d). The district court
found that Nancy’s offense overlapped with her probation period for a previous crime, a decision
that must stand unless clearly wrong. Wilson, 168 F.3d at 922–23.
No error, clear or otherwise, occurred. Nancy pled guilty to wire fraud in 2003 in
connection with activities at another pain-management clinic. The punishment for this offense
kept Nancy on probation until July 2005, a date well after several of Nancy’s drug-conspiracy
acts. She opened the Ohio Medical clinic in 2004, and that year she also ordered large amounts
of hydrocodone from drug distributors, despite the fact that Ohio Medical was not licensed to
keep or dispense the drugs. That means Nancy committed “the instant offense”—here,
conspiracy—“while under . . . probation.”
To all of this, she rejoins that the only evidence of criminal conduct presented at trial
concerned her sale of pills to David Michael Journey in 2006. But this argument fails to come to
grips with the scope of her conspiracy conviction and the § 4A1.1(d) enhancement. The two-
point increase applies “if the defendant committed any part of the instant offense (i.e., any
relevant conduct) while under . . . probation.” U.S.S.G. § 4A1.1(d) n.4 (emphasis added). As
No. 12-4450 United States v. Sadler et al. Page 12
shown, plenty of “relevant” probationary-period conduct exists: She opened a clinic that offered
patients assembly-line “treatment,” and she bought pills illegally.
Substantive reasonableness. A sentence should not be “greater than necessary to achieve
the sentencing goals set forth in 18 U.S.C. § 3553(a).” United States v. Tristan-Madrigal, 601
F.3d 629, 632–33 (6th Cir. 2010). The district court imposed a sentence within Nancy’s
recommended guidelines range, meaning the sentence comes with a rebuttable presumption of
reasonableness. United States v. Vonner, 516 F.3d 382, 389 (6th Cir. 2008) (en banc).
Nancy argues that her sentence is more onerous than it ought to be because the court
considered “unrelated criminal enterprise[s]” when choosing her sentence. Nancy Br. at 51–52.
But she is mistaken. At Nancy’s sentencing hearing, a government lawyer noted that the
Sadlers’ clinics were, like other pill mills, “well-known” among local addicts. R. 334 at 48.
Nothing in the record suggests that the district court paid this offhand comparison to other clinics
any heed. The court instead considered the nature and circumstances of Nancy’s offense,
including the fact that her clinic “was a primary source for illegal distribution of pain medication
in Southern Ohio, [an] area . . . saddled with high rates of prescription drug abuse and addiction.”
Id. at 58. No error was shown.
IV.
For these reasons, we affirm in part, vacate in part and remand for proceedings consistent
with this opinion.