United States v. David Gierlus

United States Court of Appeals
For the Eighth Circuit
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No. 13-2720
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
David Vincent Gierlus,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: January 16, 2014
Filed: July 15, 2014
[Unpublished]
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Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
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PER CURIAM.
David Vincent Gierlus, a physician, pleaded guilty to unlawful distribution of
a Schedule III controlled substance. The district court1 sentenced Gierlus to ninety-six
1
The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
months’ imprisonment, a fine of $400,000, and a five-year term of supervised release.
Gierlus appeals, arguing that the district court committed procedural error and abused
its discretion in determining the amount of the fine and in imposing the term of
supervised release. We affirm.
I.
In January 2013, a grand jury charged Gierlus with ninety-five counts of
unlawful distribution of controlled substances, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), 841(b)(1)(E)(i), and 841(b)(2). The indictment alleged that Gierlus
distributed the controlled substances “not for a legitimate medical purpose and outside
the scope of professional practice.” Gierlus pleaded guilty to one of the unlawful-
distribution charges, pursuant to a written plea agreement. As the factual basis for his
guilty plea, Gierlus admitted that he “had inappropriately engaged in sexual contact”
with a female patient before prescribing her hydrocodone “for other than a legitimate
medical purpose.”
At sentencing, the parties agreed that the sentencing guidelines called for an
advisory range of seventy-eight to ninety-seven months’ imprisonment, a fine of
$12,500 to $500,000, and a period of supervised release of at least two years. The
parties agreed to recommend to the court a sentence of ninety-six months’
imprisonment, but made no joint recommendation about the amount of the fine or the
length of the term of supervised release.
At the sentencing hearing, the government sought a fine of $500,000 and a ten-
year period of supervised release. Gierlus countered by urging a fine of $12,500 and
a three-year term of supervised release. After considering the factors laid out in
USSG § 5E1.2(d) and 18 U.S.C. §§ 3553(a) and 3572(a), the district court sentenced
Gierlus to ninety-six months’ imprisonment, a fine of $400,000 and a five-year term
of supervised release.
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II.
The district court explained its determination of the $400,000 fine as follows:
Calculating a fine is difficult here. It’s an unusual case to the extent that
you could pay the maximum. I recognize there are some mitigating
factors here with respect to the fine.
But what I ultimately have decided to do is structure the fine in a way
that makes sense to me, and in doing so I in no way say that this is what
happened—or what it was worth, what happened, but this is how I’ve
decided to structure it.
For each woman you injected and then sexually assaulted, I impose a
fine of $100,000, for a total of $300,000. For each of the four additional
women to whom you made sexual advances that they were required to
accept in order to obtain controlled substances from you, I impose a fine
of $25,000 each, for an additional fine of $100,000. The total imposed
is therefore $400,000.
Gierlus asserts that the district court improperly relied on unproved conduct to
which he did not plead guilty, but a district court is not prohibited from considering
uncharged or even acquitted conduct in calculating a defendant’s sentence. United
States v. Wohlman, 651 F.3d 878, 884 (8th Cir. 2011). Gierlus withdrew all
objections to the facts set forth in the presentence report, S. Tr. 6, and the district court
permissibly accepted those facts as true for purposes of sentencing. Fed. R. Crim. P.
32(i)(3)(A); United States v. Paz, 411 F.3d 906, 909 (8th Cir. 2005). Whatever the
district court might have had in mind when it said that it would “in no way say this is
what happened—or what it was worth,” the pertinent facts in the presentence report
were admitted, and it was not an abuse of discretion for the court to select $100,000
per victim as a measure for an appropriate fine.
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Gierlus also complains that the district court failed adequately to weigh the
statutory and guideline factors that govern imposition of a fine. See 18 U.S.C.
§ 3572(a); USSG § 5E1.2. The record shows that the court did consider the need for
the combined sentence to reflect the seriousness of the offense, USSG § 5E1.2(d)(1);
S. Tr. 27, 30–32, 46, 53–60, the need to deprive Gierlus of illegally obtained gains,
18 U.S.C. § 3572(a)(5); S. Tr. 18–21, the burden the fine would place on Gierlus’s
dependents, 18 U.S.C. § 3572(a)(2); USSG § 5E1.2(d)(3); S. Tr. 21–28, and other
pertinent equitable considerations. USSG § 5E1.2(d)(8); S. Tr. 57–58. A district
court has wide discretion to weigh the undifferentiated factors in a given case. United
States v. Morais, 670 F.3d 889, 893 (8th Cir. 2012). Given the seriousness of the
criminal conduct, and the fact that more than $2 million in assets remained for
Gierlus’s wife and children after imposition of the fine, we do not think the district
court abused its considerable discretion.
Gierlus next objects that the district court abused its discretion by imposing a
five-year term of supervised release, rather than the three-year term that he suggested.
The term imposed was within the statutory range, and Gierlus identifies no compelling
reason why the selection of five years was unreasonable. That he had surrendered his
license to practice medicine and had no criminal history does not dictate that only a
shorter term was permissible. On the other side of the balance, the district court also
was permitted to consider the circumstances of the offense and the need for the
sentence imposed to reflect the seriousness of the offense, to promote respect for the
law, to provide just punishment, and to afford adequate deterrence. 18 U.S.C.
§ 3583(c). Insofar as Gierlus asserts procedural error by the district court in failing
to consider adequately the statutory factors under § 3583(c) or to explain particularly
the choice of a five-year term, he forfeited those claims by failing to object at
sentencing. In any event, the district court did discuss the principal statutory factors
on the record, S. Tr. 53–58, and there is no requirement for the court on its own
initiative specifically to justify the number of years selected.
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The judgment of the district court is affirmed.
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