United States v. Nomar

Vacated by Supreme Court, January 24, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4770
LOUIS N. NOMAR,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, District Judge.
(CR-02-91)
Submitted: March 31, 2004
Decided: April 15, 2004
Before WIDENER, WILKINSON, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mary Lou Newberger, Federal Public Defender, Edward H. Weis,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Kasey Warner, United States Attorney, L. Anna Crawford,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
2 UNITED STATES v. NOMAR
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Louis N. Nomar pled guilty to conspiracy to commit wire fraud via
the internet, 18 U.S.C. § 371 (2000), and escape, 18 U.S.C. § 751(a)
(2000), and was sentenced to a term of seventy-seven months impris-
onment. He contests on appeal the district court’s determination that
his offense created a risk of serious bodily injury. U.S. Sentencing
Guidelines Manual § 2F1.1(b)(7)(A) (2000). We affirm.
While he was serving a term of supervised release resulting from
prior convictions, Nomar and co-defendant Yolanda Monroe set up an
internet pharmacy and physician’s service. Customers provided gen-
eral information about their medical condition and current prescrip-
tion medication as well as a credit card number, and were required to
complete a disclaimer form posted on the website by which the cus-
tomer "accept[ed] the risk of substantial and serious harm and/or
complications from taking treatments prescribed by Online Physician
Service." Posing as licensed physicians, Nomar or Monroe then gave
a brief telephone consultation for which they charged $120, and for-
warded a new prescription to a legitimate pharmacy which mailed the
prescription to the customer. The majority of the prescriptions they
wrote were for Schedule III and IV drugs, including hydrocodone,
Valium, Xanax, Vicodin, Loritab, and Tylenol with codeine. After
Nomar became the target of a federal investigation, his supervised
release was revoked. He cooperated, but following his indictment for
conspiracy he escaped from custody and was apprehended a few days
later. He subsequently pled guilty to conspiracy and escape.
At Nomar’s first sentencing hearing in August 2002, the court
added two offense levels under § 2F1.1(b)(7)(A), finding that the
fraud conspiracy involved "the conscious or reckless risk of serious
bodily injury" to his customers. A "serious bodily injury" is defined
in the sentencing guidelines as an "injury involving extreme physical
UNITED STATES v. NOMAR 3
pain or the protracted impairment of a function of a bodily member,
organ, or mental faculty; or requiring medical intervention such as
surgery, hospitalization, or physical rehabilitation." USSG § 1B1.1,
comment. (n.1(j)). Nomar acknowledged that the volume of pain-
killing drugs he prescribed indicated that a large number of his cus-
tomers were addicted to the pills they bought. However, he argued
that the enhancement was not warranted because (1) the government
had not produced evidence that any specific patient was in danger of
suffering serious bodily injury from using his prescriptions, (2) there
was no evidence that the drugs he prescribed for any particular patient
created a risk of serious bodily injury if taken as prescribed, and (3)
there was no showing that he was aware of any risk. He argued that
addiction did not qualify as a serious bodily injury. The government
introduced without objection pages from the Physician’s Desk Refer-
ence containing special warnings and precautions pertaining to the
drugs Nomar prescribed.
The district court rejected Nomar’s argument that the enhancement
was not warranted in the absence of proof that any specific customer
was injured and found that Nomar
was fully aware of the serious risk associated with prescrib-
ing medications in the manner described by the Govern-
ment, as demonstrated by the disclaimer posted on the
Physician Online Service’s website. He consciously and
recklessly created the risk because he was fully aware he
was not qualified to prescribe medications and that patients
could be severely harmed as a result of drug interactions,
allergic reactions, and overdose because the victims took
drugs prescribed by an untrained individual.
The court imposed a sentence of sixty months (the statutory maxi-
mum) for the conspiracy count to be followed by a consecutive sen-
tence of seventeen months for the escape conviction.
While Nomar’s appeal was pending, the parties jointly moved to
remand his case to the district court to permit reconsideration of the
amount of restitution and we remanded the case as requested. A sec-
ond sentencing hearing was held in September 2003. At this hearing,
after the district court reduced the amount of restitution, Nomar again
4 UNITED STATES v. NOMAR
contested the enhancement for risk of serious bodily injury. In an
attempt to show that he had not acted with reckless disregard for his
customers, Nomar presented to the court two government exhibits that
had been introduced at Yolanda Monroe’s sentencing. First, an e-mail
from a customer who was unhappy with the effect of the prescription
she had received and was requesting something stronger. Nomar had
written on it, "Do not fill. I am refunding 120 this one. Doc." Second,
an e-mail notification that a payment for hydrocodone had been made
to Nomar’s account. He had written on it, "Put on hold untill (sic)
other Rx is used up." Nomar argued that these exhibits showed that
he prescribed medication appropriately. The district court held to its
previous ruling, finding that two instances of caution on Nomar’s part
did not outweigh the risks he created for hundreds of other customers
for whom he prescribed drugs. The court re-imposed the same sen-
tence of imprisonment.
On appeal, Nomar maintains that the enhancement was error
because it was based on a purely conjectural risk. Nomar alleges that
the customers who were addicts were not seeking medical help from
him, and that the government failed to show either (1) that any partic-
ular customer had a condition that posed a risk of serious bodily
injury through lack of proper treatment or from taking the prescribed
dose of the drugs he prescribed, or (2) that he was aware of any such
condition. He argues that a showing of particularized risk to one or
more of his customers is required by United States v. Vivit, 214 F.3d
908, 920-22 (7th Cir. 2000) (holding that doctor engaged in insurance
fraud created risk of a serious bodily injury by failing to adequately
examine patients who consulted him after automobile accidents,
including one who had extremely high blood pressure, but created
only slight risk to other patients by failing to supervise unlicensed
physical therapist and advising heat therapy for bruised areas). The
district court’s determination that the defendant’s conduct created a
risk of serious bodily injury is a factual finding which is reviewed for
clear error. Vivit, 214 F.3d at 920; United States v. McCord, 143 F.3d
1095, 1099 (8th Cir. 1998).
We conclude that the district court did not clearly err in deciding
that there is an inherent risk of serious bodily injury in having a per-
son with no medical training dispense controlled substances over the
phone. Some fraud schemes "include such obvious risks of serious
UNITED STATES v. NOMAR 5
bodily injury that the criminal recklessness of their perpetrators will
be self-evident." McCord, 143 F.3d at 1098. A finding of particular-
ized risk is necessary only in cases where the risk is "less serious or
less evident." Id. Nomar’s reliance on Vivit is misplaced because that
case makes the same distinction. 214 F.3d at 921. Vivit does not hold
that the government must in every case identify a particular person
who was placed at risk by the defendant’s actions in order for the
enhancement to apply, but rather must show that "the defendant’s
fraudulent course of conduct created a risk that others would suffer
serious bodily injury." Id.At the first sentencing hearing, the district court noted the "warn-
ings, precautions and special risk patient notation" set out in the Phy-
sician’s Desk Reference concerning the drugs Nomar prescribed. For
example, the court noted that, for most of the drugs Nomar dispensed,
"psychic and physical dependence were significant risks," and with
respect to the hydrocodone-based drugs, there was a risk of respira-
tory depression. The same drugs posed a special risk for elderly or
debilitated persons, and an overdose could result in "apnea, circula-
tory collapse, cardiac arrest, and death . . . ." The district court found
that, as a non-physician who had never examined his customers and
did not know their full medical histories, Nomar was not in a position
to be able to judge whether it was safe for any particular person to
take the drugs he prescribed.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED