United States v. Candice Rosenberg

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3373
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C ANDICE R OSENBERG ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 07 CR 145 C—Barbara B. Crabb, Chief Judge.
A RGUED S EPTEMBER 14, 2009—D ECIDED O CTOBER 26, 2009
Before E ASTERBROOK, Chief Judge, and B AUER and
E VANS, Circuit Judges.
E VANS, Circuit Judge. This appeal, like many others
we see, involves a squabble over what constitutes
properly considered “relevant conduct” under the
federal sentencing guidelines. Candice Rosenberg, a 60-
year-old nurse practitioner working in the area around
Rhinelander (Wisconsin), was charged in an 82-count
indictment with prescribing a variety of controlled sub-
2 No. 08-3373
stances—including oxycontin, vicodin, and fentanyl—to
nine people, each of whom she knew did not have a
legitimate need for the medications. In other words, the
indictment claimed that Rosenberg’s prescriptions were
“not written in the usual course of professional practice”
as required by the Controlled Substances Act. One of the
nine recipients of Rosenberg’s prescriptions died after
allegedly overdosing on fentanyl.
Rosenberg pled guilty to one count (#35) of the indict-
ment and, pursuant to a written plea agreement, the
other counts were dismissed. Although the dismissed
counts were gone, they were not forgotten. Their in-
clusion as part of Rosenberg’s “relevant conduct” resulted
in an ultimate guideline range (after taking into account
a number of adjustments—up for using “special skill,” as
only properly licensed medical professionals can write
prescriptions for controlled substances, and down for
timely acceptance of responsibility) of 70 to 87 months.
Rosenberg argued that only the facts in the count to
which she offered her plea should be considered,
which would have put her in a modest 6- to 12-month
guideline range. The district court rejected her claim
and imposed a 70-month sentence. Rosenberg appeals
from that result.
A nurse practitioner is a registered nurse with an ad-
vanced degree in nursing. Nurse practitioners typically
work in a variety of settings, including hospitals, clinics,
health maintenance organizations, and nursing homes.
Rosenberg, the evidence suggests, was not your typical
nurse practitioner. Beginning in 2001, she maintained
No. 08-3373 3
her own private practice. Instead of having her own office,
she made house calls, or met patients in a variety
of unusual settings including a used-clothing store and
a Wal-Mart parking lot. She prescribed pain medication
to patients, sometimes without a physical examination
and often with no more than scant knowledge of their
medical history. Patients paid for prescriptions in cash,
and she charged a higher price for narcotic medications
than she did for nonnarcotic medications. Word ap-
parently got out—if you need a drug that requires a
prescription, Rosenberg is the person to see.
In April 2005, Rosenberg’s rather unusual medical
practice came to the attention of law enforcement officers.1
One month later, the U.S. Attorney’s Office informed
her that she was the target of a federal investigation.
During the investigations, law enforcement used an
undercover officer and a confidential informant to pur-
chase prescriptions from Rosenberg. They also inter-
viewed Rosenberg several different times between April
and July. Using the information obtained through these
sources, a grand jury indictment was handed up a little
over two years later.
At sentencing, Rosenberg made three objections to the
presentence investigation report, only one of which she
maintains on appeal—the inclusion of the prescriptions
1
The “officers” were from a number of offices: the Oneida
County sheriff’s department, the federal Drug Enforcement
Administration (DEA), and the Wisconsin Department of
Regulation and Licensing.
4 No. 08-3373
written to four patients (which covered 52 of the counts
in the indictment) as relevant conduct under the federal
sentencing guidelines. The sentencing hearing began
with the government’s expert witness testifying that all
of the prescriptions Rosenberg wrote, especially the
prescriptions she objected to as relevant conduct, were
written outside the usual course of professional practice.
Rosenberg testified in her defense and explained how
and why she wrote the prescriptions in question. The
government then recalled its expert, and she testified
that Rosenberg’s explanation did not change her opinion.
Finding Rosenberg’s testimony to be “very frightening”
and not truthful, the district court overruled her objec-
tions and sentenced her to 70 months.
On appeal, Rosenberg contends that the district court
erred in finding the evidence sufficient to prove the
prescriptions to which she objected were relevant
conduct because the government did not show by a
preponderance of the evidence that each was unlawful.
In order for a prescription to be unlawful it must not
have a legitimate medical purpose and must be dispensed
outside the usual course of medical practice. United States
v. Chube, 538 F.3d 693, 702 (7th Cir. 2008). Further, she
argues that the evidence was not sufficient because
the district court conflated the civil and criminal
standards of liability. Neither argument is persuasive.
Rosenberg relies on a strained reading of Chube for the
proposition that judges must specifically address every
prescription they include in their relevant conduct deter-
mination. In Chube, two doctors were convicted of
No. 08-3373 5
unlawful distribution of controlled substances. At sen-
tencing, the district court found that every prescription
in the 98 patient files in evidence was relevant conduct
by primarily relying on a spreadsheet that simply de-
scribed the name and dosage of each drug and expert
testimony that the prescriptions failed to meet the civil
standard of care. Furthermore, the court only specifically
mentioned 10 of the 98 files when imposing its sentence.
On appeal, we upheld the convictions but remanded
for resentencing, explaining that: “[w]hen the district
court revisits relevant conduct on remand, it must
explain its findings with respect to each patient and
make a reasoned determination whether or not the Gov-
ernment has carried its burden of establishing that each
prescription was dispensed outside the scope of medical
practice and without a legitimate medical purpose.” Chube,
538 F.3d at 705-06.
Chube requires the government to at least address
every patient to whom a medical professional defendant
has written an allegedly unlawful prescription. It is not
necessary, however, for the government to systematically
discuss every single prescription that every single
patient received. That would be a duplicitous and mean-
ingless procedural requirement. A district court may not,
however, as it did in Chube, only discuss some of the
patient files and extrapolate that, because some of the
patients received prescriptions that had no legitimate
medical purpose and were outside the usual course
of medical practice, all of the prescriptions written to all
of the patients had no legitimate medical purpose and
were outside the usual course of medical practice.
6 No. 08-3373
Although the government did not systematically
address every prescription Rosenberg wrote to the four
patients, it presented ample evidence to prove that the
prescriptions had no legitimate medical purpose and
were written outside the usual course of appropriate
medical practice. In fact, the prescriptions Rosenberg
wrote to those four patients were the primary focus of a
two-day sentencing hearing. The government’s expert
witness, Mary Jo Willis, a retired professor from the
University of Wisconsin-Madison School of Nursing,
discussed Rosenberg’s interactions with all four of the
patients in question. She pointed out Rosenberg’s
failings with each, things like not getting an adequate
patient history or conducting a proper examination.
Rosenberg also testified about the reasons she prescribed
the medication to the four patients. Afterward, Willis
reiterated her opinion that Rosenberg had written all of
the prescriptions outside the usual course of medical
practice. The comprehensive testimony given by Willis
provided sufficient evidence for the district court to
conclude that the prescriptions written to the four
patients were out of bounds and thus includable as rele-
vant conduct.
Furthermore, the district court did not properly mix the
criminal and civil standards of liability. As we stated in
Chube, “[i]t is impossible sensibly to discuss the question
whether a physician was acting outside the usual course
of professional practice and without a medical purpose
without mentioning the usual standard of care.” 538
F.3d at 698. Although the district court mentioned the
civil standard of liability, it only did so to illuminate
the criminal standard, which it repeatedly stated.
No. 08-3373 7
For the first time on appeal, Rosenberg challenges the
inclusion as relevant conduct of prescriptions other than
those we have just discussed. Those prescriptions, written
to five “patients,” covered 29 of the counts in the indict-
ment. By choosing not to make these objections to the
district court, Rosenberg waived them and thereby pre-
cluded appellate review. United States v. Cooper, 243
F.3d 411, 416 (7th Cir. 2001). Since Rosenberg knew she
could object to the inclusion of all of the prescriptions
as relevant conduct, it is clear that she chose only to
make limited objections for strategic reasons. But what
did Rosenberg have to gain by choosing not to object to
everything at the district court? Easy. She was awarded
a 3-level reduction to her guideline range for acceptance
of responsibility. If Rosenberg had challenged any more
of the prescriptions—certainly if she challenged all of the
prescriptions—she may not have received the 3-level
reduction. Thus, other than her challenge to the prescrip-
tions we have discussed, Rosenberg waived any chal-
lenge to the other prescriptions.
Accordingly, the judgment of the district court is AFFIRMED.
10-26-09