United States v. McElwee
646 F.3d 328
| 5th Cir. | 2011Background
- Three former private-practice employees convicted of conspiracy to fraudulently obtain hydrocodone; they used pre-signed prescription pads and falsified patient records to conceal fraud.
- Dr. McElwee (OB/GYN) supervised staff and lacked a state dispensing license; he authorized falsified orders and allowed access to staff for hydrocodone.
- Wendy Chriss, a medical assistant, and Ava McElwee, a nurse practitioner and Dr. McElwee’s wife, were implicated in obtaining hydrocodone under false patient identities and altered charts.
- Pharmacy records and a statewide investigation (LSBME subpoenas) led to falsified patient records and a false dispensary log; Chriss created a log book to account for hydrocodone.
- District court varied upward from Guidelines: McElwee received 60 months and $550,000 fine (jointly with Mrs. McElwee); Mrs. McElwee received 36 months; Chriss received 21 months; all three appealed challenging sentences or conviction sufficiency.
- This appeal affirms all sentences and upholds the convictions and non-Guidelines sentences based on §3553(a) factors and substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Reasonableness of McElwee's sentence | McElwee argues inadequate weight given 3553(a) factors. | Court punished him for status and not for conduct; guidelines misapplied. | Affirmed 60-month sentence as reasonable given case-specific factors. |
| Reasonableness of McElwee fine | Fine exceeds Guidelines; asserts inability to pay. | Disability income showed ability to pay; court properly considered ability. | Affirmed $550,000 fine as not an abuse of discretion. |
| Sufficiency of Mrs. McElwee’s conviction and jury instructions | Evidence insufficient to prove conviction and challenged instructions. | Record supported conviction; credibility issues for jury; deliberate-ignorance instruction appropriate. | Conviction sustained; jury instructions not reversible error. |
| Deliberate-ignorance instruction and lesser-included offense for Mrs. McElwee | Deliberate-ignorance instruction should be given to prove knowledge. | Evidence supported deliberate-ignorance instruction. | Deliberate-ignorance instruction held harmless error given substantial evidence of actual knowledge. |
| Chriss safety valve, minor participant reduction, and sentence reasonableness | Argues for safety valve, minor-participant reduction, and leniency. | Safety valve denied; not a minor participant; sentence at bottom of guidelines is reasonable. | Safety valve denied; no error in lacking minor-participant reduction; sentence substantively reasonable. |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (procedural correctness and §3553(a) factors; deferential review of reasonableness)
- Diaz, 637 F.3d 592 (5th Cir. 2011) (explaination of totality-of-circumstances review for reasonableness)
- Brantley, 537 F.3d 347 (5th Cir. 2008) (upward variance and non-Guidelines sentence practice)
- Herrera-Garduno, 519 F.3d 526 (5th Cir. 2008) (upward variance reasoning and deference to district court findings)
- Smith, 440 F.3d 704 (5th Cir. 2006) (upward variance considerations in post-Booker context)