United States v. Michael Thoran
819 F.3d 298
| 6th Cir. | 2016Background
- Defendants Dr. Carl Fowler and Michael Thoran were convicted by a jury of (among other offenses) conspiracy to commit healthcare fraud, conspiracy to distribute controlled substances, and conspiracy to pay/receive healthcare kickbacks arising from a scheme where doctors wrote fraudulent prescriptions and “marketers” (including Thoran) filled and sold controlled drugs.
- Trial and sentencing: Fowler was sentenced to 72 months and ordered to pay $1,752,957 restitution; Thoran was sentenced to 108 months and ordered to pay $2,632,854 restitution. Both appealed; Thoran also challenged his convictions.
- At Fowler’s sentencing the district court agreed with the parties on a 108‑month “starting point” but did not calculate or state the applicable advisory Guidelines range or make factual findings supporting that starting point before imposing sentence.
- At Thoran’s sentencing the court accepted a stipulated Guidelines range (168–210 months) without making independent factual findings or explaining why that range applied, then imposed a lower sentence and ordered restitution based on the Government’s larger loss calculation.
- The parties disputed the proper loss/restitution calculations: testimony suggested only ~20% of Fowler’s prescriptions were illegitimate and that Fowler’s involvement began in mid‑2010, yet restitution calculations attributed broader losses and earlier dates to each defendant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the district court err procedurally by failing to calculate and state the advisory Guidelines range and make factual findings? | Govt: Parties effectively agreed to a starting point; defendants waived the right to a Guidelines calculation. | Defendants: The court must calculate the Guidelines range and make findings on the record; no plain, explicit waiver occurred. | Court: Vacated sentences — district court abused its discretion by failing to calculate and make findings re: Guidelines; parties’ agreement did not relieve court of duty. |
| Can a defendant be deemed to have waived the right to a Guidelines calculation by agreeing to a starting point? | Govt: Yes — agreement on starting point constitutes waiver. | Defendants: No plain, explicit concession that relieves the court of its duty to state findings. | Court: No waiver; even if agreement existed, the court still had an obligation to state findings on the record. |
| Were the restitution/loss calculations supported by reliable evidence? | Govt: Loss amounts are appropriate; alternatively, challenge is waived so plain‑error review. | Defendants: Restitution is based on erroneous/overbroad assumptions (wrong timeframe, overstated % of illegitimate prescriptions, attribution of others’ prescriptions). | Court: Restitution orders vacated and remanded — the district court relied on clearly erroneous findings and unreliable evidence for loss calculations. |
| Is there sufficient evidence to support Thoran’s convictions for (1) conspiracy to distribute controlled substances and (2) conspiracy to pay/receive kickbacks? | Govt: Circumstantial evidence (payments to Thoran, him collecting and selling prescriptions, witness testimony) suffices. | Thoran: Govt presented no proof he knowingly joined or distributed drugs or knew prescriptions were illegitimate. | Court: Affirmed Thoran’s convictions — evidence (including payments, actions collecting/selling prescriptions, and witness testimony) was sufficient for a rational jury. |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (2007) (standard for reviewing reasonableness of sentences and requirement to explain chosen sentence)
- United States v. Booker, 543 U.S. 220 (2005) (Guidelines advisory post‑Booker)
- United States v. Peebles, 624 F.3d 344 (6th Cir. 2010) (vacating sentence where district court failed to address Guidelines range)
- United States v. Blackie, 548 F.3d 395 (6th Cir. 2008) (district court must acknowledge applicable Guidelines range and explain variances to permit meaningful review)
- United States v. Recla, 560 F.3d 539 (6th Cir. 2009) (district court must consider advisory Guidelines range)
- United States v. Wallace, 597 F.3d 794 (6th Cir. 2010) (court should explain why it rejects non‑frivolous sentencing arguments)
- United States v. Moon, 513 F.3d 527 (6th Cir. 2008) (sentence unreasonable where court fails to consider Guidelines and provide sufficient explanation)
- United States v. Jackson‑Randolph, 282 F.3d 369 (6th Cir. 2002) (restitution calculation must rest on information with sufficient indicia of reliability)