United States v. McElwee

Case: 10-30099 Document: 00511537617 Page: 1 Date Filed: 07/12/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

July 12, 2011

No. 10-30099 Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

TANDY W. MCELWEE, JR.; AVA CATES MCELWEE,

Defendants - Appellants

-------------------------------------------------------------------------------

Consolidated with 10-30101

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

WENDY KATHLEEN BENSON CHRISS

Defendant - Appellant

Appeals from the United States District Court

for the Western District of Louisiana

Before JOLLY and HAYNES, Circuit Judges, and VANCE, District Judge.*

*

Chief Judge of the Eastern District of Louisiana, sitting by designation.

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E. GRADY JOLLY, Circuit Judge:

Before the court are three former employees of a private medical practice

who stand convicted for engaging in a conspiracy to fraudulently obtain large

amounts of hydrocodone, a controlled dangerous substance. The conspiracy

involved submission of fabricated prescriptions to local pharmacies and

falsification of patient medical records to conceal the fraudulence of the

prescriptions. Appellants were found guilty of various charges, including

conspiracy to obtain a controlled substance by fraud, and were sentenced to

respective terms of imprisonment. All three Appellants challenge their

sentences, and one Appellant contests the grounds for her conviction as well.

For the reasons that follow, we AFFIRM on all issues.

I.

Appellant Tandy McElwee (“Dr. McElwee”) was an OB/GYN physician who

maintained a practice in Bossier City, Louisiana. There he supervised 13

employees including his wife, Appellant Ava McElwee (“Mrs. McElwee”), a nurse

practitioner, and Appellant Wendy Chriss (“Chriss”), a registered medical

assistant. Dr. McElwee was authorized by the U.S. Drug Enforcement

Administration (“DEA”) to prescribe lawful controlled substances, but he did not

have a license to dispense controlled substances from the State of Louisiana.

Over a period of years, employees of the medical practice employed a

variety of fraudulent means to obtain hydrocodone medications including Lorcet,

Lortab, Histussin HC, and Histinex HC, all of which are schedule III controlled

dangerous substances. To effectuate this conspiracy, Dr. McElwee made

available to his employees pre-signed prescription pads, which were used to

request refills of these hydrocodone-containing drugs from various pharmacies.

Trial testimony suggested that the atmosphere in Dr. McElwee’s office was one

that accepted and accommodated the daily use of hydrocodone.

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The coconspirators were able to obtain large amounts of hydrocodone

medication by submitting pre-signed “prescriptions” in the names of fictitious

persons, other family members, and in one case, even a family dog. For example,

Chriss ordered hydrocodone using names like Kathleen Benson (her middle and

maiden name), Eddie Chriss (her husband), Ayden Chriss (her child), Kristina

Randall (her sister), and Rochelle Petouski (an alias for her sister). Dr. McElwee

secured hydrocodone for himself and others by having his medical assistant,

Rebecca Sandifer, go to the pharmacy to pick up prescriptions in the names of

Sandifer’s children and her ex-husband. He also ordered prescriptions using the

name of his dog “Brandi” and his daughter-in-law, Conchita McElwee. When

questioned by a pharmacist, Dr. McElwee represented that “Brandi McElwee”

was a patient under his care.

Dr. McElwee authorized Chriss to order hydrocodone via the Internet from

Moore Medical, LLC, and he testified that he kept a large 500-count bottle in his

office for personal use and gave another 500-count bottle to Chriss for use by

office personnel or their family members. Although Mrs. McElwee’s level of

involvement in these schemes was disputed, many prescriptions—including for

Lortab and Histussin HC—were filled out in her name, and she often retrieved

the medications from the pharmacy. Another employee testified that she

delivered prescriptions to Mrs. McElwee, and the jury apparently credited the

trial testimony suggesting that Mrs. McElwee knew of and participated in the

conspiracy.

Dr. McElwee’s staff frequently submitted prescriptions to QVL Pharmacy

(which was originally named “Safescript”). In June 2007, the Louisiana State

Board of Medical Examiners (“LSBME”) issued subpoenas to QVL and to Dr.

McElwee’s office for approximately 22 patient records, including requests for the

patient records of Dr. McElwee’s staff and for the family members and fictitious

“patients” under whose names the prescriptions had been filled. An employee

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of QVL notified Chriss about the LSBME subpoenas and sent Chriss a fax

containing the details of prescriptions QVL had filled for Dr. McElwee’s office.

Based on these records from the pharmacy, Chriss and other employees altered

and falsified patient records to account for the prescriptions filled by QVL.

Certain patient charts were fabricated wholesale, including those of “Rochelle

Petouski” and “Missy Davis.” Furthermore, the record indicates that Mrs.

McElwee participated in the falsification of patient records, specifically with

respect to Conchita “Brandi” McElwee (the family dog’s name apparently having

been added to the chart for Dr. McElwee’s daughter-in-law).1 These falsified

records were submitted in response to the LSBME subpoena. In addition, Chriss

created a dispensation log book with false names and prescription dates, at Dr.

McElwee’s request, in order to account for the hydrocodone ordered through

Moore Medical. Another employee testified that Mrs. McElwee said Chriss was

“going to save our ass with that book.”

Appellants were indicted along with five other codefendants in an 88-count

indictment that included charges for conspiracy to obtain a controlled substance

by fraud and conspiracy to possess with intent to distribute a controlled

substance. Under a plea agreement, Chriss pleaded guilty to one count of

conspiracy to possess with intent to distribute a controlled substance, in

violation of 21 U.S.C. §§ 846 and 841(a)(1). A jury found Dr. McElwee guilty of

one count of conspiracy to obtain a controlled substance by fraud, in violation of

21 U.S.C. §§ 846 and 843(a)(3); nineteen counts of obtaining a controlled

substance by fraud, in violation of 21 U.S.C. § 843(a)(3) and 18 U.S.C. § 2; one

1

The chart for Conchita McElwee is noteworthy in that two witnesses identified Mrs.

McElwee’s handwriting on an exam note in the chart. The note represents that “Conchita

Brandi McElwee” came in for a vaginal examination and was prescribed Lortab for menstrual

cramps, but Conchita—whose full name is actually Conchita Maria Iglesias

McElwee—testified that she did not go by the name Brandi, that she never had a vaginal

examination by Tandy or Ava McElwee, that she did not have problems with menstrual

cramps, had never been prescribed Lortab, and did not use the QVL pharmacy.

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count of conspiracy to possess with intent to distribute; nine counts of possession

with intent to distribute a controlled dangerous substance, in violation of 21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2; one count of providing false information in

records required to be kept under Title 21, in violation of 21 U.S.C. § 843(a)(4)(A)

and 18 U.S.C. § 2; and one count of health care fraud, in violation of 18 U.S.C.

§§ 1347 and 2. The same jury found Mrs. McElwee guilty of one count of

conspiracy to obtain a controlled substance by fraud and one count of obtaining

or acquiring a controlled substance by fraud.

At sentencing, the district court adopted the factual findings of the

Presentence Investigation Report (“PSR”) with respect to Dr. McElwee and

assessed an offense level of 20 and criminal history category of I. The court

granted the Government’s motion for an upward variance from the Sentencing

Guidelines range of 33 to 41 months, noting that points had not been assessed

for inclusion of false information in a record required to be kept, and that the

32,000 easily identifiable units of hydrocodone were “probably the tip of the

iceberg.” Considering his role and the nature of the offense, the court sentenced

Dr. McElwee to a total of 60 months in prison and a $550,000 fine, up to

$400,000 of which is to be paid jointly and severally with Mrs. McElwee.

Mrs. McElwee was assessed an offense level of 8 with a criminal history

category of I, which yielded a Guidelines range of zero to six months. The court

ultimately imposed a non-Guidelines sentence of 36 months of imprisonment and

a $400,000 fine to be paid jointly and severally with Dr. McElwee.

As to Chriss, the district court adopted the factual findings of the PSR and

assessed an offense level of 16 with a criminal history category of I, imposing a

21-month sentence of imprisonment followed by three years of supervised

release, which was at the bottom of the Guidelines range.

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Dr. McElwee and Chriss timely appeal their sentences, while Mrs.

McElwee appeals both her conviction and her sentence. We have jurisdiction

under 28 U.S.C. § 1291.

II.

At the core of Appellants’ complaints on appeal are their challenges to the

substantive reasonableness of their sentences. We review the reasonableness

of a defendant’s sentence for abuse of discretion. See United States v. Gall, 552

U.S. 38, 46, 51 (2007). We “first ensure that the district court committed no

significant procedural error” and then analyze substantive reasonableness by

considering “the totality of the circumstances, granting deference to the district

court’s determination of the appropriate sentence based on the § 3553(a) factors,

and we may not reverse the district court’s ruling just because we would have

determined that an alternative sentence was appropriate.” Id. at 51 (internal

quotation marks, citations, and modifications omitted). We now turn to address

the issues raised by the Appellants.

A.

We first consider the claims of Dr. McElwee, who challenges the

reasonableness of his prison sentence and the fine imposed by the district court.

1.

Dr. McElwee first contests the length of the 60-month sentence imposed

by the district court. We note, at the outset, that the district court did not

commit any procedural error such as failure to calculate the Guidelines range

or failure to consider the § 3553(a) factors.2 As to substantive reasonableness,

we consider the totality of the circumstances, including the extent of any

deviation from the Guidelines range, while affording “due deference to the

district court’s decision that the § 3553(a) factors, on a whole, justify the extent

2

Indeed, Dr. McElwee does not allege any procedural error.

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of the variance.” United States v. Diaz, 637 F.3d 592, 603 (5th Cir. 2011). The

factors a court shall consider in devising an appropriate sentence include:

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant;

(2) the need for the sentence imposed--

(A) to reflect the seriousness of the offense, to promote respect for

the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational

training, medical care, or other correctional treatment in the most

effective manner[.]

18 U.S.C. § 3553(a)(1)–(2). Other considerations are “the kinds of sentences

available,” § 3553(a)(3); the Guidelines, § 3553(a)(4); “any pertinent policy

statement” issued by the Sentencing Commission, § 3553(a)(5); “the need to

avoid unwarranted sentence disparities,” § 3553(a)(6); and “the need to provide

restitution to any victims,” § 3553(a)(7).

Dr. McElwee argues that the district court did not appropriately weigh all

the relevant § 3553(a) factors. Specifically, he contends that the court did not

give adequate weight to his lack of criminal history, that “there was no evidence

of a widespread distribution network traced back to [his] office,” and that Dr.

McElwee’s abuse of trust had already been factored into the PSR’s Guidelines

evaluation. He further argues that the district court’s attempt to send a

message to the medical profession unduly punished him for his “socioeconomic

status.”

After considering these arguments, we nevertheless conclude that the

district court did not abuse its discretion. Although a 60-month sentence is a

substantial deviation from the Guidelines range of 33 to 41 months, it is

“commensurate with the individualized, case-specific reasons provided by the

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district court.” United States v. Herrera-Garduno, 519 F.3d 526, 531 (5th Cir.

2008). In justifying its decision, the district court observed that the Guidelines

offense level did not take into account conduct such as the inclusion of false

information in a record required to be kept, the fabrication and altering of

patient medical charts, or health care fraud.3 Dr. McElwee also granted

unlimited access to employees to obtain hydrocodone, and thus substantially

more units of the controlled substance could have been attributed to him to

increase his base offense level. In the light of these and other considerations set

forth in the extensive colloquy with defense counsel at sentencing, the district

court observed that the Sentencing Guidelines “did not capture the kind of

special circumstance . . . presented by the evidence.” We afford due deference to

this determination, particularly in the light of Dr. McElwee’s failure

meaningfully to distinguish this case from others in which we have affirmed

similar, and proportionately greater, upward deviations from the Guidelines.

See, e.g., Brantley, 537 F.3d 347; Herrera-Garduno, 519 F.3d 526; United States

v. Smith, 440 F.3d 704 (5th Cir. 2006).

2.

Dr. McElwee next challenges the $550,000 fine assessed by the district

court. Although he leveled a general objection to his sentence, Dr. McElwee did

not file a specific objection to the $550,000 fine at sentencing.4 We therefore

3

The Government’s sentencing memorandum contained the further observation that

there had been no enhancement for obstruction of justice despite Dr. McElwee having denied

many of his actions at trial.

4

Counsel for Dr. McElwee claims that he had no notice that the district court was

contemplating imposing such a large fine. This argument, however, is irrelevant. The

Government filed a motion for a non-Guidelines sentence in this case and asked the court to

impose a “substantial fine.” Even where the Government does not move for a non-Guidelines

sentence, “sentencing courts are not required to give pre-sentencing notice of their sua sponte

intention to impose a non-Guidelines sentence.” United States v. Mejia-Huerta, 480 F.3d 713,

723 (5th Cir. 2007). Moreover, at the very beginning of the sentencing hearing and well before

announcing the fine, the district court gave notice that “[t]here is also the possibility of a

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review the reasonableness of the fine for plain error. See United States v.

Brantley, 537 F.3d 347, 351 (5th Cir. 2008); United States v. Neal, 578 F.3d 270,

272 (5th Cir. 2009) (“To preserve error, an objection must be sufficiently specific

to alert the district court to the nature of the alleged error and to provide an

opportunity for correction.”). The Guidelines provide that a fine shall be imposed

“in all cases,” except where the defendant establishes an inability to pay. The

burden of establishing an inability to pay is on the defendant. United States v.

Landerman, 167 F.3d 895, 899 (5th Cir. 1999). The factors a sentencing court

shall consider when imposing a fine are set forth in U.S.S.G. § 5E1.2(d).5

Dr. McElwee argues that the $550,000 fine is unreasonable because it far

exceeds the $75,000 maximum for his offense level of 20, as suggested in the

Guidelines. The PSR shows that Dr. McElwee’s net worth is $119,477.80, with

[$250,000-per-count] fine for these particular counts . . . .”

5

Specifically, these considerations are:

(1) the need for the combined sentence to reflect the seriousness of the offense

(including the harm or loss to the victim and the gain to the defendant), to

promote respect for the law, to provide just punishment and to afford adequate

deterrence;

(2) any evidence presented as to the defendant’s ability to pay the fine

(including the ability to pay over a period of time) in light of his earning

capacity and financial resources;

(3) the burden that the fine places on the defendant and his dependents relative

to alternative punishments;

(4) any restitution or reparation that the defendant has made or is obligated to

make;

(5) any collateral consequences of conviction, including civil obligations arising

from the defendant’s conduct;

(6) whether the defendant previously has been fined for a similar offense;

(7) the expected costs to the government of any term of probation, or term of

imprisonment and term of supervised release imposed; and

(8) any other pertinent equitable considerations.

U.S.S.G. § 5E1.2(d). Furthermore, “[t]he amount of the fine should always be sufficient to

ensure that the fine, taken together with other sanctions imposed, is punitive.” Id.

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total debt of over $150,000. Although the PSR does not contain a

recommendation regarding an appropriate fine amount, Dr. McElwee asserts

that the PSR shows his “obvious inability . . . to pay anything close to” what was

assessed, and that the district court erred by failing to make explicit factual

findings justifying the deviation.

Dr. McElwee’s argument is unavailing. Although the $550,000 fine is

above the Guidelines range, the PSR reflects that Dr. McElwee has a monthly

income of $22,240 through a personal disability policy, and that this policy will

pay him at least $16,000 per month until his death.6 “Normally, a district court

does not have to express reasons for imposing a fine as long as it is shown that

the judge considered the defendant’s ability to pay.” United States v. Voda, 994

F.2d 149, 155 n.14 (5th Cir. 1993). In this case the district court considered Dr.

McElwee’s ability to pay and adopted the facts in the PSR, which reflected an

income on disability that easily covers—indeed, far exceeds—the fine amount,

even when we limit our consideration to Dr. McElwee’s expected income from

this policy while serving his prison sentence.7

As noted above, in granting the Government’s motion for a non-Guidelines

sentence, the district court explained that the Guidelines offense level did not

take into account conduct such as the inclusion of false information in a record

required to be kept, the fabrication and altering of patient medical charts, or

health care fraud. Moreover, although the fine exceeds the Guidelines range, it

is well within the statutory maximum fine of $250,000 on each count of Dr.

McElwee’s conviction. For these reasons, and because Dr. McElwee has failed

6

Furthermore, it bears noting that the magnitude of the fine is diminished—and Dr.

McElwee’s ability to pay correlatively augmented—by the district court’s decision to make Dr.

McElwee and Mrs. McElwee jointly and severally liable for the $400,000 portion of the fine

pertaining to the two counts on which they were both convicted.

7

Dr. McElwee has made no effort to show that there will be any interruption in his

receipt of disability payments during his prison term.

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to meet his burden of demonstrating an inability to pay, we conclude that the

district court did not err in imposing a fine of $550,000.8

B.

We next turn to Mrs. McElwee, who contests both her conviction and her

sentence. She disputes the sufficiency of the evidence for her conviction, the

instructions given to the jury, and the reasonableness of her sentence.

1.

Mrs. McElwee was convicted of conspiracy to obtain and of obtaining or

acquiring a controlled substance by fraud. She appeals the district court’s denial

of her motion for judgment of acquittal, arguing that the evidence against her

was constitutionally insufficient to support a conviction under Jackson v.

Virginia, 443 U.S. 307 (1979). “A challenge to the sufficiency of the evidence

that is procedurally preserved, as this challenge was, is reviewed de novo.” Diaz,

637 F.3d at 602. “Viewing all the evidence and drawing all inferences and

credibility determinations in the light most favorable to the verdict, we

determine whether a rational jury could have found that the evidence

established the elements of the offense beyond a reasonable doubt.” Id. (internal

quotation marks and citations omitted). Mrs. McElwee asserts “that record-

keeping in the office was admittedly poor, that Dr. McElwee admitted using his

wife’s name to get prescriptions for himself, that there was no evidence

introduced that Ava McElwee’s charts specifically were altered,” and that the

evidence supporting her role in altering patient records “was inconsistent and

confusing.”

As an initial matter, we note that many of the issues Mrs. McElwee raises

involve credibility determinations that are decidedly matters for the jury. See

8

For the same reasons, we alternatively hold—assuming that Dr. McElwee’s objection

to his sentence was sufficiently specific to alert the district court to the nature of the error

alleged—that the $550,000 fine was not an abuse of discretion.

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United States v. Dadi, 235 F.3d 945, 951 (5th Cir. 2000) (“The credibility of

witnesses is a matter for the jury and its determinations demand deference.”).

Moreover, the district court clearly set forth the evidence supporting Mrs.

McElwee’s conviction on both the conspiracy and the fraudulent acquisition

charges in its memorandum ruling on Mrs. McElwee’s motion. Specifically, the

court noted the existence of at least ten pharmacy signature logs purporting to

show that Mrs. McElwee signed for hydrocodone prescriptions, the amounts of

which were strikingly inconsistent with her own medical charts; evidence

indicating that she had altered and falsified an exam note in the patient chart

for Conchita McElwee; testimony from a codefendant suggesting that Mrs.

McElwee believed Chriss was “going to save our ass with that book” (i.e., the

falsified dispensary log book); and further testimony indicating that Mrs.

McElwee told a codefendant to “slow down” the number of prescriptions being

submitted to local pharmacies after she was alerted by a pharmacist to

suspicious prescriptions emanating from Dr. McElwee’s office. Given the volume

of both direct and circumstantial evidence implicating Mrs. McElwee in the

conduct for which she was convicted, the district court did not err in denying her

motion for judgment of acquittal.

2.

With respect to her claim of defective jury instructions: The district court

instructed the jury that it could consider evidence of Mrs. McElwee’s deliberate

ignorance9 as circumstantial proof of her guilty knowledge, to which Mrs.

McElwee objected. “We review an appellant’s objection to jury instructions

under an abuse of discretion standard, affording the trial court substantial

9

The concept of deliberate ignorance is sometimes characterized as a “charade of

ignorance.” See United States v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir. 1990). The

deliberate ignorance instruction is included as an optional second paragraph to the definition

of “knowingly” in the Fifth Circuit Pattern Jury Instructions.

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latitude in describing the law to the jurors.” United States v. Santos, 589 F.3d

759, 764 (5th Cir. 2009) (internal quotation marks and citations omitted). We

begin by noting that the deliberate ignorance instruction “should rarely be

given,” and “is appropriate only when a defendant claims a lack of guilty

knowledge and the proof at trial supports an inference of deliberate

indifference.” United States v. Peterson, 244 F.3d 385, 395 (5th Cir. 2001)

(internal quotation marks and citations omitted). We have also explained,

however, that “the giving of a deliberate ignorance instruction is harmless error

where substantial evidence of actual knowledge was presented.” United States

v. Ricardo, 472 F.3d 277, 286 (5th Cir. 2006).

Mrs. McElwee argues that the district court erred in giving a deliberate

ignorance instruction because the evidence suggested “only that she was aware

of isolated instances of misconduct by Chriss and that she attempted to correct

the problem.” We are unpersuaded. Although Mrs. McElwee claimed the

conspiracy took place without her knowledge, evidence at trial showed

otherwise—that Mrs. McElwee personally picked up a significant number of the

hydrocodone prescriptions from local pharmacies, and that other employees

delivered prescriptions to Mrs. McElwee. In addition, the prosecution elicited

evidence that Mrs. McElwee took part in the fabrication and falsification of

patient records, that she knew about invalid prescription orders and was fully

aware of a fake dispensary log book created by Chriss. In the light of this

evidence, we need not determine whether the deliberate ignorance instruction

was error. There was substantial evidence of actual knowledge before the jury,

such that even an erroneous instruction as to deliberate ignorance was harmless.

3.

Mrs. McElwee further appeals the district court’s denial of her request for

a jury instruction that simple possession of a controlled dangerous substance, 21

U.S.C. § 844(a), is a responsive verdict to the offense of obtaining a controlled

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substance by fraud, 21 U.S.C. § 843(a)(3), because it is a lesser-included offense.

“A defendant is entitled to a lesser-included-offense instruction if (1) the

elements of the lesser offense are a subset of the elements of the charged offense

and (2) the evidence at trial is such that a jury could rationally find the

defendant guilty of the lesser offense yet acquit him of the greater.” United

States v. Finley, 477 F.3d 250, 255 (5th Cir. 2007). “We review the district

court’s determination on the first prong of the above two-part test (whether the

lesser offense is included in the greater offense) de novo. . . . We review the

court’s determination on the second prong (whether a jury could rationally

acquit on the greater offense yet convict on the lesser) for abuse of discretion.”

Id. at 256 (internal citations omitted).

Section 843(a)(3) of Title 21 provides that it is unlawful knowingly or

intentionally to “acquire or obtain possession of a controlled substance by

misrepresentation, fraud, forgery, deception, or subterfuge.” Section 844(a)

provides that it is unlawful knowingly or intentionally to “possess a controlled

substance unless such substance was obtained directly, or pursuant to a valid

prescription or order, from a practitioner, while acting in the course of his

professional practice . . . .” It is difficult to conceive of a case in which the former

offense would not also include the latter. Notwithstanding that observation, in

this case it is clear that the evidence implicating Mrs. McElwee in the scheme

to obtain controlled substances by fraud was so substantial that no rational juror

could convict on possession but acquit on fraudulent acquisition. The record

reflects that Mrs. McElwee personally picked up large amounts of hydrocodone

in her name, that she falsified at least one patient’s medical chart, and that she

knew about other employees’ illicit purchases of hydrocodone as well as the

attempt to cover it up by creating a fake log book. It would thus defy reason to

conclude (1) that Mrs. McElwee knowingly possessed hydrocodone without a

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valid prescription but (2) employed no misrepresentation in doing so.10 Having

reviewed the record, we are convinced that the evidence establishing Mrs.

McElwee’s knowing participation in the fraudulent scheme was such that no

rational juror could convict her of illegally possessing hydrocodone yet acquit her

of fraudulently acquiring it.

4.

We turn finally to Mrs. McElwee’s challenge to her sentence. Although

Mrs. McElwee’s Guidelines range was zero to six months, the district court

sentenced her to 36 months in prison. We note, as a preliminary matter, that

notwithstanding some confusion in the record as to whether the Government

made a motion for a sentence exceeding the Guidelines range, the district court

clearly imposed a non-Guidelines sentence in this case.11

The focus of our inquiry is the reasonableness of the sentence in the light

of the totality of the circumstances. In conducting this review, we begin by

noting that the district court committed no significant procedural error. The

district court “correctly calculated the Guidelines range, treated the Guidelines

as advisory, considered the § 3553(a) factors, allowed both parties to present

arguments as to what they believed the appropriate sentence should be, did not

base [Mrs. McElwee’s] sentence on clearly erroneous facts, and thoroughly

10

She did not, for example, obtain hydrocodone simply by purchasing it from a third

party; the evidence indicates that she received hydrocodone directly from pharmacies, in her

own name even, and that the amount she obtained exceeded the authorization of any valid

prescription.

11

Both parties agree that the Government never filed a written motion requesting an

upward departure. Moreover, the record is confusing as to whether the Government made

even an oral motion for an upward departure. The record is clear, however, that during the

sentencing hearing the district court certainly characterized the Government’s position as a

request for an upward departure—to which the prosecutor agreed, and to which defense

counsel made no objection. Ultimately, the district court made clear that the sentence should

be “characterized as a non-Guideline sentence under Section 3553(a),” and the court checked

the appropriate box in Section IV of the Statement of Reasons and set forth the facts justifying

this sentence in Section VI.

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documented its reasoning.” Herrera-Garduno, 519 F.3d at 530 (citing Gall, 552

U.S. at 51–53).

Mrs. McElwee contests some of the factual findings of the district judge,

who also presided over the trial and was thus intimately familiar with the

record. Many of her arguments in this respect border on the conclusory and, in

any event, they are unavailing. For example, she argues that “[t]here is nothing

in this record to suggest that Ava McElwee was ‘in the thick’ of the illegal

activity occurring at the office,” relying on the fact that Mrs. McElwee worked

in the office only on a part-time basis. There was ample evidence, however,

before the district court—including Mrs. McElwee’s handwriting on a falsified

exam note and her comment to another office employee that Wendy Chriss was

“going to save our ass with that [falsified dispensary log] book”—from which the

court could quite reasonably conclude that Mrs. McElwee was “in the thick” of

the conspiracy. As the Supreme Court has explained, “[t]he sentencing judge is

in a superior position to find facts and judge their import under § 3553(a) in the

individual case. The judge sees and hears the evidence, makes credibility

determinations, has full knowledge of the facts and gains insights not conveyed

by the record.” Gall, 552 U.S. at 51 (internal quotation marks and citation

omitted). With respect for this institutional advantage, and having reviewed the

sentencing transcript and the trial record, we perceive no clear error in the

district court’s factual findings.

We thus turn to the substantive reasonableness of Mrs. McElwee’s

sentence. “In reviewing a challenge to the length of a non-Guidelines sentence,

we may ‘take the degree of variance into account and consider the extent of a

deviation from the Guidelines.’” Herrera-Garduno, 519 F.3d at 530 (quoting Gall,

552 U.S. at 47). “The farther a sentence varies from the applicable Guideline

sentence, the more compelling the justification based on factors in section

3553(a) must be.” Smith, 440 F.3d at 707. “A non-Guideline sentence

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unreasonably fails to reflect the statutory sentencing factors where it (1) does

not account for a factor that should have received significant weight, (2) gives

significant weight to an irrelevant or improper factor, or (3) represents a clear

error of judgment in balancing the sentencing factors.” Id. at 708. We must,

however, “give due deference to the district court’s decision that the § 3553(a)

factors, on a whole, justify the extent of the variance.” Gall, 552 U.S. at 51.

Furthermore, “[t]he fact that the appellate court might reasonably have

concluded that a different sentence was appropriate is insufficient to justify

reversal of the district court.” Id.

Mrs. McElwee argues primarily that the district court improperly relied

upon her marital relationship with Dr. McElwee as a basis for her level of

involvement in the conspiracy. During the colloquy at sentencing and in the

Statement of Reasons, the court did “note[] the heightened duties on behalf of

[Mrs. McElwee], a licensed nurse practitioner and the spouse of the physician

involved.” Indeed, the court made several references to the spousal relationship

in the course of the extensive sentencing colloquy, although the object in doing

so was apparently to emphasize what Mrs. McElwee likely had knowledge of

given her relationship to the conspiracy’s “ringleader.” We cannot conclude that

the court’s inferences about Mrs. McElwee’s knowledge as the spouse of Dr.

McElwee constitute error, particularly given the substantial other

evidence—including her own statements to coconspirators, her falsification of an

exam note in a patient chart, and her substantial involvement in retrieving

hydrocodone prescriptions from pharmacies—indicating that Mrs. McElwee had

knowledge of what was going on in the office.12 Moreover, in discussing her level

12

Mrs. McElwee counters by highlighting the fact that she and her husband spent

much of their office time in separate rooms of the physician’s office. She thus argues that the

district court erred in assuming that she would know about Dr. McElwee’s hydrocodone

addiction. It is apparent to us, however, that the court’s statements in this respect must be

read in context. For example, the district judge observed during the colloquy that Dr.

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of involvement, the district court seemed to place greatest emphasis on her role

as a nurse practitioner—a higher position than that of a medical assistant such

as Wendy Chriss, with substantially greater responsibilities and more

supervisory authority. The sentencing court concluded that the higher

responsibility of a nurse practitioner entails a concomitantly greater abuse of

trust with respect to patients and the medical profession. He thus sought to

avoid unwarranted disparities by placing Mrs. McElwee between Dr. McElwee

and Chriss, a lower-ranking medical assistant, in the order of sentence severity.

The district court underscored that it was considering acquitted conduct

and the testimony of other coconspirators in devising an appropriate sentence

for Mrs. McElwee. He noted that the Guidelines are “woefully inadequate” in

this case because they “do not appropriately capture the breadth, scope, and

nature of the conspiracy for drug distribution.” He further explained that, with

respect to Mrs. McElwee’s role in the conspiracy, “[t]he most telling part of it

appears to be, to me, the drug dispensary notebook that was put together to

McElwee had a “10-to-12-Lortab-a-day habit” and was using the drug while operating on

patients. The court explained its concerns thus:

You know, at what point are you supposed to recognize that in terms of

behavior? She’s not an ordinary nurse. She’s certainly not an administrative

assistant. She’s a nurse practitioner. It does not appear that she, herself, was

involved in a substance abuse addiction or in the substance abuse at all. On the

other hand, her husband’s involvement with it is undeniable. And on a 24/7

basis with these two that were portrayed as close and doing stuff, with Ms.

McElwee being in the operating room and everything else, what other

reasonable conclusions that you can [sic] draw from that in looking at how the

Guideline is supposed to capture the criminal behavior?

In the light of statements such as the foregoing, we do not understand the district court

to have reached the factual conclusion that Dr. and Mrs. McElwee were in each other’s

presence at all times. On the contrary, the court’s clear point is that given Mrs. McElwee’s

level of training as a nurse practitioner and her interaction with her husband at home as well

as at the office, including during some surgical procedures, her position that she knew nothing

about his Lortab addiction borders on the inconceivable. Again, her position must be viewed

in the light of all the evidence incriminating Mrs. McElwee, and we owe substantial deference

to the district court’s conclusions.

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show false entries, false medical records even; the use of the McElwees’ dog,

Brand[i], in prescriptions; the use of the daughter-in-law’s name, Conchita

McElwee, also in multiple forms . . . .” The record contains evidence connecting

Mrs. McElwee to all of these aspects of the conspiracy. Under these facts, it is

not our place to second-guess the district court’s conclusion that Mrs. McElwee’s

culpability requires a significantly greater sentence than the Guidelines

suggest.13

Still, we are struck that Mrs. McElwee’s 36-month prison sentence,

although within the statutory maximum, is fully six times the maximum

sentence suggested by the Guidelines. We emphasize that such variance

demands thorough justification. Here, the district court did just that. The court

explicitly considered the § 3553(a) factors, Mrs. McElwee’s personal history and

characteristics, the absence of a prior criminal record, her level of involvement

and responsibility in the offense, the severity and scope of the conspiracy for

which she was convicted, and the need to avoid unwarranted sentence

disparities among similarly situated defendants. We perceive no failure to

account for a factor that should have received significant weight, reliance on an

improper factor, or clear error of judgment in balancing the relevant

considerations.

In conclusion, it bears remarking that we have upheld substantial

Guidelines deviations in other post-Booker cases where the district court based

its upward variance on permissible, properly spelled-out considerations. See,

e.g., United States v. Key, 599 F.3d 469, 475–76 (5th Cir. 2010), cert. denied, 131

S.Ct. 997 (2011) (upholding sentence of 216 months where Guidelines maximum

was 57 months); United States v. Smith, 417 F.3d 483, 492 (5th Cir. 2005)

(upholding sentence of 120 months where Guidelines maximum was 41 months);

13

In this respect, we note further that Mrs. McElwee put the Government to its burden

of proof in this case, while Chriss pleaded guilty and accepted responsibility for her conduct.

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United States v. Saldana, 427 F.3d 298, 312–13 (5th Cir. 2005) (upholding

sentence four times the Guidelines maximum despite “misgivings about the

length of th[e] sentence”). Thus, we hold that the district court did not abuse its

discretion, and consequently we affirm Mrs. McElwee’s non-Guidelines sentence.

C.

Finally, we consider Wendy Chriss’s three-part challenge to her sentence.

Chriss was assessed an offense level of 16 with a criminal history category of I.

The district court imposed a 21-month sentence of imprisonment followed by

three years of supervised release. This sentence was at the bottom of the

Guidelines range of 21 to 27 months.

1.

Chriss first argues that the district court erred in denying her the benefit

of the safety-valve adjustment under the Guidelines. The Guidelines provide

that a defendant’s offense level must be reduced by two levels if she meets five

conditions, including the following relevant provision:

(5) [N]ot later than the time of the sentencing hearing, the

defendant has truthfully provided to the Government all

information and evidence the defendant has concerning the offense

or offenses that were part of the same course of conduct or of a

common scheme or plan, but the fact that the defendant has no

relevant or useful other information to provide or that the

Government is already aware of the information shall not preclude

a determination by the court that the defendant has complied with

this requirement.

U.S.S.G. § 5C1.2(a); see id. § 2D1.1(b)(11). See also 18 U.S.C. § 3553(f). On

appeal, the parties dispute whether Chriss met this fifth criterion for the safety-

valve adjustment. We review a sentencing court’s decision whether to apply the

safety valve for clear error. See United States v. McCrimmon, 443 F.3d 454, 457

(5th Cir. 2006). Chriss bears the burden of establishing that she is entitled to

the adjustment. Id.

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The Government argues that Chriss failed to truthfully debrief regarding

several specific instances. For example, she denied ever selling hydrocodone to

an individual named Trey Jacobe, but Jacobe testified to the contrary at trial.

The Government further notes that Chriss was less than completely truthful

about when she stopped working for Dr. McElwee. Moreover, Chriss maintained

that she acted pursuant to Dr. McElwee’s direction, but the evidence at trial only

partially supported this proposition. Chriss has failed to rebut these contentions

and relies on the simple response that she “truthfully disclosed all the

information she had concerning the offense” and “accepted responsibility for her

conduct” by pleading guilty. Consequently, by failing to say more than this, she

has failed to meet her burden of showing that the district court erred.

2.

Chriss further argues that the district court erred by denying her the

benefit of a two-level reduction in her offense level, contending that she was only

a minor participant in the conspiracy. The Guidelines provide for a two-level

reduction “[i]f the defendant was a minor participant in any criminal activity.”

U.S.S.G. § 3B1.2(b). This reduction applies to a defendant “who is less culpable

than most other participants, but whose role could not be described as minimal.”

Id. Application Note 5. “It is not enough that a defendant does less than other

participants; in order to qualify as a minor participant, a defendant must have

been peripheral to the advancement of the illicit activity.” United States v.

Villanueva, 408 F.3d 193, 204 (5th Cir. 2005). Whether Chriss was a minor

participant is a factual determination reviewed for clear error. Id. at 203.

Chriss argues that she was “clearly less culpable in the offense than

others,” but her only apparent support for this contention is that she operated

at the instruction of Dr. McElwee, who “fed” her addiction. Chriss’s argument

is insufficient to demonstrate clear error, particularly in the light of her failure

to address the district court’s findings that she was the conduit through whom

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many of the hydrocodone pills were illegally obtained, and that she personally

placed and signed for many of the orders using false prescriptions.

3.

Finally, Chriss disputes the substantive reasonableness of her sentence.

Again, we review the substantive reasonableness of a sentence for abuse of

discretion, considering the totality of the circumstances and affording deference

to the district court’s application of the § 3553(a) factors. See Gall, 552 U.S. at

51; Diaz, 637 F.3d at 603. We start by noting that Chriss’s 21-month sentence

is at the bottom of the 21-to-27 month Guidelines range for her offense level of

16 and criminal history category of I. A sentence within the Guidelines range

is presumptively reasonable. Diaz, 637 F.3d at 603. Nevertheless, Chriss

asserts that her sentence is greater than necessary to achieve the goals set forth

in § 3553(a).

Chriss submits that she is remorseful for her conduct; that she was

addicted to hydrocodone at the time of the conspiracy and has sought treatment

to overcome this addiction; that she does not have a history of criminal behavior;

that she has two minor children who will be forever harmed by her

incarceration; and that she has accepted responsibility and desires

rehabilitation. These arguments will not rebut the presumption of

reasonableness that we must attach to her Guidelines sentence. That

presumption “is rebutted only upon a showing that the sentence does not account

for a factor that should receive significant weight, it gives significant weight to

an irrelevant or improper factor, or it represents a clear error of judgment in

balancing sentencing factors.” Diaz, 637 F.3d at 603 (internal quotation marks

and citations omitted).

Applying these considerations here, Chriss has not pointed to any specific

errors of judgment in the district court’s balancing of the § 3553(a) factors.

Moreover, the district court made explicit factual findings justifying the sentence

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in accordance with the § 3553(a) factors. These findings included her role as

“one of the point people” who facilitated the conspiracy, the length of time during

which she engaged in the conspiracy, and her willingness to assist others in

obtaining hydrocodone. The court further took into account her lack of criminal

history and personal characteristics in devising an appropriate sentence. Chriss

has presented no evidence to call into question the district court’s factual

determinations or its balancing of the § 3553(a) factors. Consequently, we hold

that her Guidelines sentence is substantively reasonable.

III.

We conclude by summarizing our holdings in this case: With respect to Dr.

McElwee, we affirm the 60-month sentence and the $550,000 fine imposed by the

district court. As to Mrs. McElwee, we conclude that the evidence was sufficient

to support her conviction, that the district court committed no error affecting her

substantial rights in its issuance of instructions to the jury, and that the district

court did not abuse its discretion in sentencing her to a 36-month term of

imprisonment. Finally, we affirm Wendy Chriss’s 21-month sentence, including

the district court’s denial of the safety-valve reduction and its refusal to apply

a reduction for her role in the offense.

AFFIRMED.

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