United States v. Linda Cheek

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4838
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LINDA SUE CHEEK,
Defendant - Appellant.
No. 13-4841
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LINDA SUE CHEEK,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, Chief
District Judge. (7:08-cr-00012-GEC-1; 7:12-cr-00040-GEC-1)
Submitted: September 30, 2014 Decided: November 20, 2014
Before KEENAN, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dana R. Cormier, DANA R. CORMIER, P.L.C., Staunton, Virginia,
for Appellant. Daniel Steven Goodman, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C.; Jennie L.M. Waering, Assistant
United States Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Linda Sue Cheek appeals
her convictions of multiple counts of distribution of controlled
substances using a Drug Enforcement Administration (“DEA”)
registration number issued to another and using her own revoked
DEA registration number, in violation of 21 U.S.C. §§ 841, 843
(2012); the twenty-seven-month sentence imposed for these
convictions; and the twelve-month sentence imposed following
revocation of her probation for a prior conviction. On appeal,
defense counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal but questioning whether the
district court (1) erred in denying Cheek’s motion for judgment
of acquittal because the Government failed to present adequate
evidence of her intent, (2) erred in its relevant conduct
determinations, (3) improperly applied an upward enhancement for
leadership role under the Sentencing Guidelines, (4) improperly
imposed a Guidelines enhancement for obstruction of justice, and
(5) imposed a procedurally and substantively unreasonable
sentence for her new convictions. * For the reasons that follow,
we affirm.
*
Cheek raises no specific challenge to her probation
revocation or related sentence.
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We review de novo the district court’s denial of a
Fed. R. Crim. P. 29 motion for judgment of acquittal. United
States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). We will
affirm if, viewing the evidence in the light most favorable to
the Government, “the conviction is supported by substantial
evidence.” United States v. Hickman, 626 F.3d 756, 763-64 (4th
Cir. 2010) (internal quotation marks omitted). “Substantial
evidence” is defined as such “evidence that a reasonable finder
of fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
United States v. Green, 599 F.3d 360, 367 (4th Cir. 2010)
(internal quotation marks omitted). A defendant challenging
evidentiary sufficiency “faces a heavy burden.” United
States v. Foster, 507 F.3d 233, 244-45 (4th Cir. 2007).
Section 841(a)(1) provides that, “[e]xcept as
authorized by this subchapter, it shall be unlawful for any
person knowingly or intentionally . . . to . . . distribute, or
dispense . . . a controlled substance.” 21 U.S.C. § 841(a)(1);
see United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005)
(identifying elements of distribution offense). To dispense is
“to deliver a controlled substance to an ultimate user . . . by,
or pursuant to the lawful order of, a practitioner, including
the prescribing and administering of a controlled substance.”
21 U.S.C. § 802(10) (2012). A practitioner is “a physician . .
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. or other person licensed, registered, or otherwise permitted,
by the United States or the jurisdiction in which [s]he
practices . . . to distribute, [or] dispense . . . a controlled
substance in the course of professional practice.” 21 U.S.C.
§ 802(21) (2012). Under this definition, Cheek did not qualify
as a practitioner at the time of the charged offenses, and
therefore her conduct in issuing controlled substances is not
protected by this statutory exception. See United States v.
Blanton, 730 F.2d 1425, 1429-30 (11th Cir. 1984) (holding that
individuals who lack a valid DEA registration are not authorized
to dispense controlled substances).
Viewing the evidence in the light most favorable to
the Government, we conclude that the district court did not err
in denying Cheek’s Rule 29 motion. As to Counts 1 through 10,
the Government established that Cheek wrote controlled substance
prescriptions under her own name and revoked DEA registration
number. As to Counts 11 through 91, the Government proved that
Cheek called into pharmacies prescriptions for Schedule III
through V controlled substances under another doctor’s DEA
registration number outside the usual course of professional
practice. While Cheek contended that her actions were the
result of accident or mistake, the evidence supports a finding
of intent. See United States v. Martin, 523 F.3d 281, 289 (4th
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Cir. 2008) (finding circumstantial evidence sufficient to
establish intent).
Cheek next raises three challenges to the court’s
Guidelines calculations. We review the district court’s factual
findings for clear error and its legal conclusions de novo.
United States v. Alvarado Perez, 609 F.3d 609, 612 (4th Cir.
2010). The Government is required to prove a defendant’s drug
quantity under the Guidelines by a preponderance of the
evidence, United States v. Carter, 300 F.3d 415, 422 (4th Cir.
2002), but the defendant bears the burden to demonstrate that
the information contained in the PSR is unreliable or
inaccurate. United States v. Kiulin, 360 F.3d 456, 461-62 (4th
Cir. 2004).
Cheek first challenges the court’s relevant conduct
determination. In the context of a controlled substance
offense, relevant conduct is defined to include “all acts and
omissions committed, aided, abetted, counseled, commanded,
induced, procured, or willfully caused by the defendant . . .
during the commission of the offense of conviction” as well as
those acts “that were in the same course of conduct or common
scheme or plan as the offense of conviction.” USSG
§ 1B1.3(a)(1)-(2); see USSG § 3D1.2(d) (providing for grouping
of counts under USSG § 2D1.1). We conclude that the district
court did not clearly err in determining that Cheek’s unilateral
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alterations to patients’ Schedule II prescriptions constituted
part of the same course of conduct as the offenses of conviction
and in calculating the drug weight on this basis. See Kiulin,
360 F.3d at 461 (recognizing that drug quantity calculation is
factual determination reviewed for clear error).
Cheek next appeals the court’s application of a
sentencing enhancement for her managerial role in the offense.
The Guidelines provide for a two-level upward adjustment when
the defendant acted as “an organizer, leader, manager, or
supervisor” in criminal activity that did not involve five or
more participants and was not otherwise extensive. USSG §
3B1.1(c). The defendant must have supervised “one or more other
participants,” that is, “a person who is criminally responsible
for the commission of the offense” but who was not necessarily
convicted. USSG § 3B1.1 cmt. n.1, 2; see United States v.
Steffen, 741 F.3d 411, 414 (4th Cir. 2013) (recognizing that
enhancement requires that defendant was manager, supervisor,
organizer, or leader of people). Based on Cheek’s relationship
with Dr. Kathleen Schultz, we conclude that the court did not
clearly err in imposing this enhancement.
Cheek also argues that the court improperly applied a
sentencing enhancement for obstruction of justice. The
Guidelines provide for a two-level enhancement when “the
defendant willfully obstructed or impeded, or attempted to
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obstruct or impede, the administration of justice with respect
to the . . . sentencing of the instant offense of conviction.”
USSG § 3C1.1. Examples of covered conduct include “threatening,
intimidating, or otherwise unlawfully influencing a . . .
witness, . . . or attempting to do so,” and suborning or
attempting to suborn perjury. USSG § 3C1.1 cmt. n.4(A), (B).
In view of the testimony presented both at trial and in the
sentencing hearing, the district court did not clearly err in
imposing this enhancement.
Finally, Cheek challenges the reasonableness of her
twenty-seven-month sentence for her new convictions. In
conducting a reasonableness review, we apply “a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41 (2007). The court first “ensur[es] that the district
court committed no significant procedural error,” including
improper calculation of the Guidelines range, insufficient
consideration of the 18 U.S.C. § 3553(a) (2012) factors, and
inadequate explanation of the sentence imposed. United States
v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010) (internal quotation
marks omitted).
Upon finding no procedural error, we examine the
substantive reasonableness of the sentence under “the totality
of the circumstances.” Gall, 552 U.S. at 51. The sentence
imposed must be “sufficient, but not greater than necessary,” to
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satisfy the goals of sentencing. See 18 U.S.C. § 3553(a). A
below-Guidelines sentence is presumed reasonable on appeal.
United States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). The
defendant bears the burden to rebut the presumption by showing
“that the sentence is unreasonable when measured against the
§ 3553(a) factors.” United States v. Montes-Pineda, 445 F.3d
375, 379 (4th Cir. 2006) (internal quotation marks omitted).
We discern no unreasonableness in Cheek’s sentence. The
district court properly calculated the Guidelines range and
considered its applicability to Cheek, finding the range
inappropriate to the unique circumstances of her offense. The
court conducted a thorough assessment of Cheek’s circumstances
and sentencing considerations, grounded in the § 3553(a)
factors, before imposing a sentence substantially below the
Guidelines range. Cheek fails to rebut the presumption of
reasonableness accorded this sentence. See Susi, 674 F.3d at
289; Montes-Pineda, 445 F.3d at 379.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal as
to either Cheek’s convictions and resulting sentence, or as to
the revocation of supervised release and the sentence imposed
upon revocation. We therefore affirm Cheek’s convictions and
sentences. This Court requires that counsel inform Cheek, in
writing, of the right to petition the Supreme Court of the
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United States for further review. If Cheek requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this Court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Cheek.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this Court and argument would not aid the decisional
process.
AFFIRMED
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